POSSESSION DELIVERED- Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift. « advocatemmmohan

POSSESSION DELIVERED- Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift. « advocatemmmohan4. Defendants, however, on the premise that the said gift was an onerous

one and the appellant did not fulfil the conditions therefor, viz., failure to  contribute a sum of Rs. 1,00,000/- at the time of marriage of his sister,  cancelled the said deeds of gift by two documents executed on 15.06.1985.  5. Appellant filed a suit inter alia for a declaration that he was the  absolute owner of the suit properties. Prayer for setting aside the said two  deeds of cancellation was also made therein.  6. Contentions of the defendants in their written statements were that:  (i) Appellant had not been rendering any financial help to the family  although he was employed in Sultanate of Oman; (ii) Appellant had not accepted the said gifts.  7. Defendants in their evidence stated that the appellant had promised to  pay Rs. 1,00,000/- to them but after returning to Oman, but he changed his  mind and was not prepared to send the said sum.  8. The learned Trial Judge decreed the said suit opining that the  ingredients of Sections 122 and 123 of the Transfer of Property Act had been  fulfilled and, thus, the same could not have been rescinded by the mere fact  that the donors feeling towards the donee underwent a change.   9. Before the learned Trial Judge, an apprehension was expressed that in  the event a decree is passed, the appellant may evict his parents which was  refused to be gone into on the ground that such a question might arise only  in the future.   The First Appellate Court, however, reversed the said findings  opining that there had been no overt act of possession on the part of the  appellant as he had not paid any tax nor he got his name mutated in the  revenue records. It was noticed that even the deeds of gift were produced by  the defendants.   10. The High Court by reason of the impugned judgment affirmed the  said view.  11. Mr. M.P. Vinod, learned counsel appearing on behalf of the appellant,  submitted that the first Appellate Court as also the High Court committed a  serious error in arriving at the aforementioned findings insofar as they failed  to take into consideration the fact that the deeds of gift being not onerous  ones and the factum of handing over of possession of the properties which  were the subject matter of the gift, having been stated in the deeds of gift  themselves, it was not necessary for the appellant to prove that he accepted  the same. It was furthermore urged that keeping in view the provisions of  Sections 91 and 92 of the Indian Evidence Act, no plea contrary to or  inconsistent with the recitals made in the deeds of gift is permissible to be  raised.   12. Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the  respondents, on the other hand, submitted:  (i) Acceptance of gift being a condition precedent for a valid gift and  the first Appellate Court and the High Court having arrived at a  finding that the same was not accepted, the impugned judgments  should not be interfered with. (ii) The recitals made in the deeds of gift are not conclusive and, thus,  evidence to show that the same were not correct is admissible in  evidence.  (iii) Sections 91 and 92 of the Indian Evidence Act control only the  terms of a contract and not a recital. Even assuming that Sections  91 and 92 of the Indian Evidence Act would be applicable, by  reason thereof, only the onus has shifted on the donor and as they  have discharged the same, the impugned judgments are  unassailable.   13. We have noticed the terms of the deeds of gift. Ex facie, they are not  onerous in nature.    The definition of gift contained in Section 122 of the Transfer of  Property Act provides that the essential elements thereof are: (i) the absence of consideration; (ii) the donor; (iii) the donee; (iv) the subject matter (v) the transfer; and (vi) the acceptance.  14. Gifts do not contemplate payment of any consideration or  compensation. It is, however, beyond any doubt or dispute that in order to  constitute a valid gift acceptance thereof is essential. We must, however,  notice that the Transfer of Property Act does not prescribe any particular  mode of acceptance. It is the circumstances attending to the transaction  which may be relevant for determining the question. There may be various  means to prove acceptance of a gift. The document may be handed over to a  donee, which in a given situation may also amount to a valid acceptance.  The fact that possession had been given to the donee also raises a  presumption of acceptance. [See Sanjukta Ray v. Bimelendu Mohanty AIR  1997 Orissa 131, Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415 and  Samrathi Devi v. Parsuram Pandey AIR 1975 Patna 140]  15. Concept of payment of consideration in whatever form is unknown in  the case of a gift. It should be a voluntary one. It should not be subjected to  any undue influence.   16. While determining the question as to whether delivery of possession  would constitute acceptance of a gift or not, the relationship between the  parties plays an important role. It is not a case that the appellant was not  aware of the recitals contained in deeds of gift. The very fact that the  defendants contend that the donee was to perform certain obligations, is  itself indicative of the fact that the parties were aware thereabout. Even a  silence may sometime indicate acceptance. It is not necessary to prove any  overt act in respect thereof as an express acceptance is not necessary for  completing the transaction of gift.  17. In Narayani Bhanumathi and another v. Karthyayani Lelitha Bhai  [1973 Kerala LJ 354], a learned Single Judge of the Kerala High Court  stated the law, thus:   If the earlier settlement deed was executed  on an assurance that defendants 2 and 3 will be  looked after, that pre-supposes the knowledge of  the gift by the donees and an understanding  reached between them at the time of execution of  the settlement deed which could be sufficient to  support the plea of acceptance especially when  there is no question of the donee getting possession  of properties since there as reservation of right to  enjoy the property in the doners during their life  time.  The evidence bearing on the question of  acceptance of the gift deed will have to be  appreciated in the background of the circumstance  relating to the execution of such a deed. There  may be cases where slightest evidence of such  acceptance would be sufficient. There may be still  cases where the circumstances themselves  eloquently speak to such acceptance. Normally  when a person gifts properties to another and it is  not an onerous gift, one may expect the other to  accept such a gift when once it comes to his  knowledge, since normally, any person would be  only too willing to promote his own interest. May  be in particular cases there may be peculiar  circumstances which may show that the donee  would not have accepted the gift. But these are  rather the exceptions than the rule. It is only  normal to assume than the rule. It is only normal  to assume that the donee would have accepted the  gift deed. One would have to look into the  circumstances of the case in order to see whether  acceptance could be read. Mere silence may  sometimes be indicative of acceptance provided it  is shown that the donee knew about the gift.  Essentially, this is a question of fact to be  considered on the background of circumstances of  each case.  18. Mr. Iyer, however, submitted that it would be open to the donors to  prove that in fact no possession had been handed over. Strong reliance in  this behalf has been placed on S.V.S. Muhammad Yusuf Rowther and  another v. Muhammad Yusuf Rowther and other [AIR 1958 Madras 527]  and Alavi v. Aminakutty & Others [1984 KLT 61 (NOC)].   19. In S.V.S. Muhammad Yusuf Rowther (supra), the Madras High Court  was dealing with a case of gift under the Mohammadan Law. Therein it was  opined:   In my judgment, learned counsel for the  appellants is justified in his complaint that the  courts below have wrongly thrown the onus of  proving that this requirement as to delivery of  possession had been complied with on the  contesting defendants. It is no doubt true that  delivery of possession of gifted properties is an  essential condition of the validity of the gift and its  operative nature under the Muslim Law and it  would be for the donees to establish it.  20. When a registered document is executed and the executors are aware  of the terms and nature of the document, a presumption arises in regard to  the correctness thereof. [See Prem Singh and Ors. v. Birbal and Ors. (2006)  5 SCC 353]   When such a presumption is raised coupled with the recitals in regard  to putting the donee in possession of the property, the onus should be on the  donor and not on the donee.  21. In Alavi (supra), Paripoornan, J. (as His Lordship then was) held:  It is settled law that where the deed of gift itself  recites that the donor has given possession of the  properties gifted to the donee, such a recital is  binding on the heirs of the donor. It is an  admission binding on the donor and those claiming  under him. Such a recital raised a rebuttable  presumption and is ordinarily sufficient to hold  that there was delivery of possession. Therefore,  the burden lies on those who allege or claim the  contrary to prove affirmatively that in spite of the  recitals in the gift deed to the effect that possession  has been delivered over, in fact, the subject matter  of the gift was not delivered over to the donees.   22. Section 91 of the Indian Evidence Act covers both contract as also  grant and other types of disposal of property. A distinction may exist in  relation to a recital and the terms of a contract but such a question does not  arise herein inasmuch as the said deeds of gift were executed out of love and  affection as well as on the ground that the donee is the son and successor of  the donor and so as to enable him to live a good family life.   23. Could they now turn round and say that he was to fulfill a promise?  The answer thereto must be rendered in the negative. It is one thing to say  that the execution of the deed is based on an aspiration or belief, but it is  another thing to say that the same constituted an onerous gift.