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TMI Blog2014 (7) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... time of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor. The High Court was in that view perfectly justified in refusing to interfere with the decree passed in favour of the donee - appeal dismissed. - CIVIL APPEAL NO. 4195 OF 2008 - - - Dated:- 17-7-2014 - MR. T.S. THAKUR, MR. V. GOPALA GOWDA AND MR. C. NAGAPPAN, JJ. For Appellant (s) - Mr. Nitin S.Tambwekar, Adv., Mr. B.S.Sai, Adv., Mr. K.Rajeev, Adv. For Respondent(s) - Mr. V.R.Anumolu, Adv. JUDGMENT An apparent conflict between two earlier decisions rendered by this Court one in Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker Ors. (1997) 2 SCC 255 and the other in K. Balakrishnan v. K. Kamalam Ors. (2004) 1 SCC 581 has led to this reference to a larger bench for an authoritative pronouncement as to the true and correct interpretation of Sections 122 and 123 of The Transfer of Property Act, 1882. Before we deal with the precise area in which the two decisions take divergent views, we may briefly set out the factual matrix in which the controversy arises. 2. The plaintiff-respondent in this appeal filed O.S. No.979 of 1989 for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ham gift deed was held not established especially when Sankaraiah had died three years prior to the execution of the revocation deed by the defendant. If the gift deed was executed by the donor to save the property from the covetous eyes of Sankaraiah, as alleged by the defendant, there was no reason why the defendant should have waited for three years after the death of Sankaraiah before revoking the same reasoned the Court. The first Appellate Court also affirmed the finding of the trial Court that the donee had accepted the gift made in his favour. The appeal filed by the defendant (appellant herein) was on those findings dismissed. 5. Concurrent findings of facts recorded by the Courts below did not deter the appellants from preferring Civil Second Appeal No.809 of 2003 in which the appellants made an attempt to assail the said findings. The High Court, however, declined to interfere with the judgments and orders impugned before it and dismissed the second appeal of the appellant holding that the case set up by the defendant that the gift was vitiated by undue influence or fraud had been thoroughly disproved at the trial. The present appeal is the last ditch attempt by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule of Hindu Law stood superseded by Section 123 of The Transfer of Property Act. 9. Chapter VII of the Transfer of Property Act, 1882 deals with gifts generally and, inter alia, provides for the mode of making gifts. Section 122 of the Act defines gift as a transfer of certain existing movable or immovable 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. In order to constitute a valid gift, acceptance must, according to this provision, be made during the life time of the donor and while he is still capable of giving. It stipulates that a gift is void if the donee dies before acceptance. 10. Section 123 regulates mode of making a gift and, inter alia, provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In the case of movable property, transfer either by a registered instrument signed as aforesaid or by delivery is valid under Section 123. Section 123 may at this stage be gainfully extracted: 123. Transfer how effected For the making of a gift of imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a condition for making of a valid gift. This is evident from the following passage from the above decision where the High Court repelled in no uncertain terms the contention that Section 123 of the T.P. Act merely added one more requirement of law namely attestation and registration of a gift deed to what was already enjoined by the Hindu Law and that Section 123 did not mean that where there was a registered instrument duly signed and attested, other requirements of Hindu Law stood dispensed with: 7. Dr. Katju, on behalf of the appellant, has strongly contended that by Section 123 it was merely intended to add one more requirement of law, namely, that of attestation and registration, to those enjoined by the Hindu Law, and that the Section did not mean that where there was a registered document duly signed and attested, all the other requirements of Hindu Law were dispensed with. Section 123 has, however, been interpreted by all the High Courts continuously for a vary long period in the way first indicated, and there is now a uniform consensus of opinion that the effect of Section 123 is to supersede the rule of Hindu Law, if there was any, for making the delivery of posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of possession as an essential condition for the completion of a gift. The correctness of that statement of law cannot be questioned. The language employed in Section 129 before its amendment was clear enough to give Section 123 an overriding effect vis-a-vis rules of Hindu Law. Section 129 was amended by Act No. 20 of 1929 whereby the words or, save as provided by Section 123, any rule of Hindu or Buddhist Law have been deleted. Section 129 of the T.P. Act today reads as under: 129. Saving of donations mortis causa and Muhammadan Law Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law. 14. The above leaves no doubt that the law today protects only rules of Muhammadan Law from the rigors of Chapter VII relating to gifts. This implies that the provisions of Hindu Law and Buddhist Law saved under Section 129 (which saving did not extend to saving such rules from the provisions of Section 123 of the T.P. Act) prior to its amendment are no longer saved from the overriding effect of Chapter VII. The amendment has made the position more explicit by bringing all other rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghter. The property gifted included a school building. The gift deed stipulated that the responsibility to sign in regard to the said school and the right to income would be with the donor during her lifetime and thereafter would be vested in the donee. After the execution of the gift deed the donor cancelled the same and made a will bequeathing the property in favour of her daughter whereupon the donee-appellant filed a suit for declaration of his title to the suit property on the basis of the gift and a further declaration for annulment of the cancellation deed and the will executed by the donor. The Trial Court dismissed the suit while the First Appellate Court decreed the same. The High Court restored the view taken by the Trial Court and held that when the donor had reserved to herself the right to sign the papers with respect to management of the school and the right to take usufruct from the property where the school was situated, no property was transferred under the deed. In appeal before this Court, the view taken by the High Court was reversed and that taken by the First Appellate Court restored. This Court held: 10 . We have critically examined the contents of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the donee had not accepted the gift thereby making the gift incomplete. This Court, further, held that the donor cancelled the gift within a month of the gift and subsequently executed a Will in favour of the appellant on a proper construction of the deed and the deed cancelling the same this Court held that the gift in favour of the donee was conditional and that there was no acceptance of the same by the donee. The gift deed conferred limited right upon the donee and was to become operative after the death of the donee. This is evident from the following passage from the said judgment: 7 . It would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property. The question is whether the gift in question had become complete under Section 123 of the TP Act? It is seen from the recitals of the gift deed that Motilal Gopalji gifted the property to the respondent. In other words, it was a conditional gift. There is no recital of acceptance nor is there any evidence in proof of acceptance. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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