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CASE NO.:

Appeal (civil) 1036 of 2000

Appeal (civil) 4770 of 2001

PETITIONER:

K.Balakrishnan

RESPONDENT:

K.Kamalam. & Ors

DATE OF JUDGMENT: 18/12/2003

BENCH:

Y.K.Sabharwal & D.M. Dharmadhikari

JUDGMENT:

J U D G M E N T

K.Kamalam

Vs.

K.Balakrishnan & Ors

Dharmadhikari J.

The only substantial question of law involved in this appeal is

whether the appellant, who was minor on the date of execution of the

gift-deed dated 24.9.1945, can be held to have legally accepted the

property in suit gifted to him and the said gift-deed was irrevocable.

The appellant shall hereinafter be described as 'the donee' and

his deceased mother as the 'doner.' The relevant dates and facts

leading to this appeal preferred against the impugned judgment

dated 6.8.1999 of the High Court of Kerala, passed in Second Appeal

No.67 of 1992 are thus:-

On 24.9.1945, mother Devyani-donor executed a registered

gift-deed of 1/8th share of the property inherited by her from her

maternal grandfather in favour of her minor son aged 16 years being

the present appellant (donee) and her daughter Kamalam

(respondent No.1 herein) who was aged four years. The 1/8th share

of the property gifted is described in the schedule of gift-deed i.e.

one acre and 25 cents of property in Survey No.7481 & 7482 with

school building in Mayyanad Cherry in the State of Kerala. Under the

terms of the gift-deed ownership of the property, half and half, to

each of the two donees was transferred but the donor retained during

her life time the management of the school and the income from the

property. The original gift-deed is in Malyalam and rendered into

English, it reads thus :-

Gift executed on 8th Kanni 1121 (24-9-1945) Mother

Devayani aged 43, Eznava daughter of Narayanan

residing at Kamolayan from CL Mandiram ,Eravipuram

Pakuthy , Mayyanad Cherry in favour of her children

(1) Balakrishnan aged 16 son of Kunju Pillai and (2)

Kamalam aged 4 residing at Kamalalayam, Mayyanad

Cherry.

You are my children. In consideration of my love and

affection towards you, the under-mentioned properties

are given to you by way of gift. Accordingly from today

you shall enjoy the paddy fields which are obtained my

mortgage by being in possession and payment of tax

and you can recover mortgage money by filing suit or

by receiving it directly after executing a release. You

shall also transfer in your name according to law the

right in respect of the property in which Mayyanad

English School stands as also the buildings and other

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movables therein and enjoy the same with all rights

forever. The responsibility to sign in regard to the

above school and to receive the income will be with me

during my lifetime and after my death the above

responsibilities will vest in the first named donee.

Schedule (Other items omitted)

1/8share in 1 acre 80 cents in property in Sy. No.7481

& 7482 of the Mayyanad Cherry in which the English

school is situated, the entire school buildings and the

entire movables in the above."

On 28.3.1970, the donor executed a cancellation deed whereby

she cancelled the gift-deed dated 24.9.1945 and thereafter executed

a Will on 30.3.1970 bequeathing the same property comprising her

1/8th share in favour of her daughter, first respondent. The donor

died on 6.11.1982. The appellant filed the present suit OS No.145 of

1986 in the Court of Quilon claiming declaration of his title to the

suit property on the basis of the gift-deed and a further declaration

was sought that the cancellation deed dated 28.3.1970 and the Will

dated 30.3.1970 are ineffective and void in law.

The trial court dismissed the suit holding inter alia that the

donee was a minor and no one has accepted the gift on his behalf. It,

therefore, held that the gift deed was invalid and passed no title to

the donee. It also recorded a finding that the gift deed was executed

by the donor during pendency of a suit against her for recovery of

money with intention to save it against execution of the decree

which was likely to be passed in that suit.

The appeal preferred by the present appellant to the first

appellate court was allowed on 21.7.1992 by the District Judge,

Kollam. The first appellate court held that a minor in law is not

disqualified from receiving the property under the gift deed and the

appellant could accept the gift during minority. Such acceptance

could be express or implied. The first appellate court relied on the

oral evidence given by the parties and accepted the version of the

donor that after execution of the gift-deed and its registration, the

document was read by him and kept by his father. It was also held

that for valid acceptance of gift, delivery of possession of property

was not an essential requirement in law.

The High Court in the impugned judgment took a contrary view

and confirming the trial court judgment dismissed the suit of the

donee holding inter alia that the terms of the gift-deed do not

indicate that any property was transferred thereunder. The High

Court held that when the donor reserved to herself the right to sign

the papers with respect to management of the school and right to

take usufruct from the property where the school is situated, there

arose no question of passing over ownership of the property to the

donees which the donees could accept.

The High Court further went on to hold that the entire right in

the property gifted was reserved by the donor to herself and

therefore even when the father had handed over the documents to

the plaintiff there arose no question of any acceptance of gift made in

respect of the school property. The High Court further held that the

same legal position is in respect of property gifted to the minor

daughter and no question of acceptance of gift arose in respect of

that part of the property as well. The High Court has observed thus :-

"In other words, in respect of the school properties,

Ex.A-1 has not taken effect. In respect of all the

properties of Devayani other than those found to be

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accepted in terms of Ex.A-1, necessarily Ex.B1,

settlement-deed and Ex.A3 Will govern the matter of

succession."

On the last finding with regard to properties other than the

school property, the respondents feel aggrieved and have preferred

the connected Civil Appeal No.4771 of 2001 which is being decided

with this appeal.

We have heard the learned counsel appearing for the appellant

who has challenged the correctness of the judgment of the High

Court. The learned counsel appearing for the respondent has tried to

support the same.

We have critically examined the contents of the gift deed. To

us, it appears that the donor had very clearly transferred to the

donees ownership and title in respect of her 1/8th share in

properties. It was open to the donor to transfer by gift title and

ownership in the property and at the same time reserve its

possession and enjoyment to herself during her lifetime. There is no

prohibition in law that ownership in property cannot be gifted without

its possession and right of enjoyment. Under Section 6 of the

Transfer of Property Act "property of any kind may be transferred"

except those mentioned in clauses (a) to (i). Section 6 in relevant

part reads thus :-

"6. What may be transferred.- Property of any kind may

be transferred, except as otherwise provided by this Act or

by any other law for the time being in force,-

(a) ..............

(b) A mere right to re-entry for breach of a condition

subsequent cannot be transferred to any one except the

owner of the property affected thereby.

(c) ...........

(d) All interest in property restricted in its enjoyment to the

owner personally cannot be transferred by him.

(e) A mere right to sue [***] cannot be transferred.

Clause (d) of Section 6 is not attracted on the terms of the gift-

deed herein because it was not a property, the enjoyment of which

was restricted to the owner personally. She was absolute owner of

the property gifted and it was not restricted in its enjoyment to

herself. She had inherited it from her maternal father as a full owner.

The High Court was, therefore, apparently wrong in coming to the

conclusion that the gift-deed was ineffectual merely because the

donor had reserved to herself the possession and enjoyment of the

property gifted.

The second question which has been posed by the High Court

and answered against the donor is regarding acceptance of the gift

and its revocability.

A minor in law suffers from certain specified disabilities. A

minor is not competent to enter into a contract. Section 11 of the

Contract Act states :-

"11. Who are competent to contract. - Every person is

competent to contract who is of the age of majority

according to the law to which he is subject, and who is of

sound mind and is not disqualified from contracting by any

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law to which he is subject."

A minor suffers disability from entering into a contract but he is

thereby not incapable of receiving property. The Transfer of Property

Act does not prohibit transfer of property to a minor. Section 122 of

the Transfer of Property Act defines 'Gift' thus :-

"122. Gift" defined. \026 "Gift" is the transfer of certain

existing moveable or immoveable property made

voluntarily and without consideration, by one person,

called the donor, to another, called the donee, and

accepted by or on behalf of the donee.

Acceptance when to be made. \026 Such acceptance must

be made during the lifetime of the donor and while he is

still capable of giving.

If the donee dies before acceptance, the gift is void."

[Underlining by the Court]

Section 123 of the Transfer of Property Act provides the mode

of effecting transfer by gift which reads:-

"123. Transfer how effected. \026 For the purpose of making

a gift of immovable property, the transfer must be effected

by a registered instrument signed by or on behalf of the

donor, and attested by at least two witnesses.

For the purpose of making a gift of moveable property, the

transfer may be effected either by a registered instrument

signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may

be delivered."

The other relevant Section 126 specifies circumstances under

which a gift can be suspended or revoked :-

"126. When gift may be suspended or revoked. \026 The

donor and donee may agree that on the happening of any

specified event which does not depend on the will of the

donor a gift shall be suspended or revoked; but a gift which

the parties agree shall be revocable wholly or in part, at the

mere will of the donor, is void wholly or in part, as the case

may be.

A gift may also be revoked in any of the cases (save want or

failure of consideration) in which, if it were a contract, it

might be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect

the rights of transferees for consideration without notice."

[Underlining by the Court]

For understanding the provisions on "Gift" contained in Chapter

VII of the Transfer of Property Act, all the sections therein which are

interrelated have to be read conjointly to understand their import and

effect.

Section 127 throws light on the question of validity of transfer

of property by gift to a minor. It recognises minor's capacity to

accept the gift without intervention of guardian, if it is possible, or

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through him.

"127. Onerous gifts \026 Where a gift is in the form of a single

transfer to the same person of several things of which one is,

and the others are not burdened by an obligation, the donee

can take nothing by the gift unless he accepts it fully.

Where a gift is in the form of two or more separate and

independent transfers to the same person of several things,

the donee is at liberty to accept one of them and refuse the

others, although the former may be beneficial and the latter

onerous.

Onerous gift to disqualified person. \026 A donee not

competent to contract and accepting property burdened by

any obligation is not bound by his acceptance. But if, after

becoming competent to contract and being aware of the

obligation, he retains the property given, he becomes so

bound."

[Underlining by the Court]

The last part of Section 127, underlined above, clearly indicates

that a minor donee, who can be said to be in law incompetent to

contract under Section 11 of the Contract Act is, however,

competent to accept a non onerous gift. Acceptance of an onerous

gift, however, cannot bind the minor. If he accepts the gift during his

minority of a property burdened with obligation and on attaining

majority does not repudiate but retains it, he would be bound by the

obligation attached to it.

Section 127 clearly recognises the competence of a minor to

accept the gift. The provision of law is clear and precedents clarify

the position. See the decisions of Judicial Commissioner in the case of

Firm of Ganeshdas Bhiwaraj vs.Suryabhan [1917 XIII Nagpur

Law Reports 18]; Munni Kunwar vs. Madan Gopal [1916

(XXXVIII) ILR Allahabad 62 at 69]; and Firm of Geneshdas

Bhiwaraj vs. Suryabhan [1917 Vol. 39 Indian Cases 46].

The position in law, thus, under the Transfer of Property Act

read with the Indian Contract Act is that "the acquisition of property

being generally beneficial, a child can take property in any manner

whatsoever either under intestacy or by Will or by purchase or gift or

other assurance inter vivos, except where it is clearly to his prejudice

to do so. A gift inter-vivos to a child cannot be revoked. There is a

presumption in favour of the validity of a gift of a parent or a

grandparent to a child, if it is complete [See Halsbury's Laws of

England Vol. 5(2) 4th Edn. Paragraphs 642 & 647]. When a gift is

made to a child, generally there is presumption of its acceptance

because express acceptance in his case is not possible and only an

implied acceptance can be excepted.

Section 122 (quoted above and underlined) covers the case of

a minor donee being a person under legal disability. The section,

therefore, employs the expression - 'accepted by or on behalf of

donee'.

As we have seen above, Section 127 (quoted above and

underlined in its last part) clearly indicates competence of a minor

donee to accept the gift, if he is capable of so doing. Such

acceptance of a gift can be made by himself or on his behalf by

someone else.

Reverting back to the facts of this case, the mother who is one

of the guardians of the donee, was herself the donor and the minor

was in her custody living with her in the same house. The minor's

father, who is the natural guardian under Section 6 of the Hindu

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Minority and Guardianship Act, was also present and living with the

minor in the same house jointly with other members of the family.

The parties belong to an educated Kerala family. As is apparent from

the record, the donee was 16 years of age at the time of making of

gift and as stated in the witness box, he understood and had

knowledge that her mother had gifted the property to him and his

younger sister. According to him after the execution of the gift-deed,

the document written in Malayalam was brought to the house which

was read by the donee and he handed it over to his father. The

document has been produced in the court from the custody of the

daughter with whom the father lived at a time of filing of the suit by

the minor. A question was put to the father as to whether he had

accepted the gift on behalf of his minor son. His reply was that the

minor son did not know about execution of the document and the son

came to know about it only when his sister, on the basis of the deed

of revocation, filed a suit against him for injunction in the year 1985.

The father has, however, not stated that he himself had no

knowledge of the execution of the gift-deed although he denies the

version of the donee that the scribe brought the gift-deed and gave it

to his wife and the wife gave it to him for safe custody. The father's

reply was that the gift-deed remained with the wife. Since the father

lived with the daughter and had supported her case, he naturally

denied the version of the minor of his having derived knowledge of

the gift deed, its reading by him and handing over to the father.

Where a gift is made in favour of a child of the donor, who is

the guardian of the child, the acceptance of gift can be presumed to

have been made by him or on his behalf without any overt act

signifying acceptance by the minor. In the instant case, mother who

is the natural guardian gifted the property to her minor

son in the year 1945. The donee was an educated lad of 16 years

of age, capable of understanding and living jointly with the donor.

Knowledge of the execution of the gift would have been derived in

normal circumstances, by the minor, being beneficiary, sooner or

later after its execution. Knowledge of gift deed to both the parents

as natural guardians and the donee is sufficient to indicate

acceptance of gift by the minor himself or on his behalf by the

parents. The gift deed was revoked by the mother much after its

execution as late as in the year 1970. By that time, the donee had

become major and he never repudiated the gift. We have examined

the terms of the gift-deed. Non-delivery of possession of the gifted

property, non-exercise of any rights of ownership over it, and failure

by the donee, on attaining majority, in getting his name mutated in

official records are not circumstances negativing the presumption of

acceptance by the minor during his minority or on his attaining

majority. The donor had reserved to herself, under the terms of gift

deed, the right to manage, possess and enjoy the property during her

life time. Since the possession and enjoyment of the property

including management of the school were retained by the donor

during her life time, the acceptance of the ownership of the property

gifted could be by silent acceptance. Such acceptance is confirmed

by its non-repudiation by his parents and by him on attaining

majority. As is the evidence on record, mother - the donor was

herself the natural guardian of the minor donee. The father was also

a guardian and had knowledge of the gift. He also did not repudiate

the gift on behalf of the donee. The donee himself was of 16 years of

age and could understand the nature of beneficial interest conferred

on him. He also had knowledge of the gift-deed and on attaining

majority did not repudiate it. These are all circumstances which

reasonably give rise to an inference, if not of express but implied

acceptance of the gift. Where a gift is made by parent to a child,

there is a presumption of acceptance of the gift by the donee. This

presumption of acceptance is founded on human nature. 'A man may

be fairly presumed to assent to that to which he in all probability

would assent if the opportunity of doing so were given to him'. [See

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Halsbury's Laws of England 4th Edition 20 paragraph 48].

In the case of Sundar Bai vs. Anandi Lal [AIR 1983

Allahabad 23], the donee was a child and in the care of the donor

himself. The High Court held that in such circumstance, express

acceptance could not be insisted upon. In the case of Ponnuchami

Servai vs. Balasubramanian [AIR 1982 Madras 281], the father

himself was the donor and executed a gift deed in favour of his minor

son. The parties continued to stay together in the said property even

after the gift. In these circumstances it was held that the gift in

favour of the minor would be deemed to have been accepted as the

father himself was the guardian and had himself executed the gift-

deed.

There is one more relevant fact in the present case. In the

judgment of the courts below there is a mention that under the

contents of the deed of cancellation dated 28.3.1970, there is no

mention by the donor of the gift having not been accepted by the

donee although it is said therein that 'none of the stipulations in the

said gift have come into force.' But she did not revoke the gift deed

by specifically mentioning in the recital of the cancellation deed that

the gift was not complete due to non-acceptance and she was

therefore, making some other arrangement for succession to her

property after her death.

In the case of Vannathi Valappil Janaki vs. Puthiya Purayil

Paru [AIR 1986 Kerala 110], the donors were real uncles of the

donees who were minor children. Subsequently the donors revoked

the gift on the ground that the donees were not bestowing proper

love and affection on the donors which might endanger their future

safety. The High Court of Allahabad on these facts inferred and came

to the conclusion that the gift deed in favour of the minor children

was definitely accepted or else there would have been mention in the

revocation deed that the revocation was necessitated because the

children no longer bestowed love and care on the donors. The

relevant observations of the High Court deserve to be quoted:-

"When the gift of immovable property is not onerous, only

slight evidence is sufficient for establishing the fact of

acceptance by the donee. When it is shown that the donee

had knowledge of the gift it is only normal to assume that

the donee had accepted the gift because the acceptance

would only promote his own interest. Mere silence may

sometimes be indicative of acceptance provided it is shown

that the donee knew about the gift. No express acceptance

is necessary for completing a gift. Where the donors who

were the real uncles of the donees stated in the deed of

revocation that to allow the continued existence of the gift

would endanger their future safety as the donees were not

bestowing proper love and affection towards the donors

which was expected by the donors from the donees as a

recompense for the gift, that statement is clear indication

that the gift had been accepted by the donees."

In the instant case, non-mention of the fact of non acceptance

of the gift by the donee in the cancellation deed reinforces our

inference that the donor mother herself, at the time of cancellation

of the gift, never assumed that the gift was not accepted and

therefore it is revocable.

As seen above, in the case of a minor donee receiving a gift

from her parents, no express acceptance can be expected and is

possible, and acceptance can be implied even by mere silence or such

conduct of the minor donee and his other natural guardian as not to

indicate any disapproval or repudiation of it. [See Shankuntala

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Devi vs. Amar Devi [1986 Himachal Pradesh 109]; and

Narayani Bhanumathi vs. Lalitha Bhai [1973 Kerala Law Times

961].

` In our considered opinion therefore, the trial court and the High

Court were wrong in coming to the conclusion that there was no

valid acceptance of the gift by the minor donee. Consequently,

conclusion has to follow that the gift having been duly accepted in

law and thus being complete, it was irrevocable under Section 126 of

the Transfer of Property Act. Section 126 prohibits revocation of a

validly executed gift except in circumstances mentioned therein. The

gift was executed in 1945. It remained in force for about 25 years

during which time the donee had attained majority and had not

repudiated the same. It was, therefore, not competent for the donor

to have cancelled the gift and executed a Will in relation to the

property.

Consequently, Civil Appeal No.1036 of 2000 filed by the donee

succeeds and is hereby allowed. The impugned order of the High

Court dated 6.8.1999 passed in Second Appeal No.671 of 1992 and

the judgment of the trial court dated 27.9.1989 are set aside.

Consequently, the judgment of the first appellate court dated

21.7.1992 is hereby restored.

The connected Civil Appeal No.4770 of 2001 having been

preferred by respondent K. Kamalam only against certain findings

and observations contained in the impugned judgment of the High

Court is dismissed. In the circumstances, parties shall bear their own

costs.