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TMI Blog2003 (12) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf 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 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. "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. Such accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numathi 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 pref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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