BABY AMMAL
Vs.
RESPONDENT:
RAJAN ASARI
DATE OF JUDGMENT: 02/12/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
We have learned counsel on both sides.
This appeal by special leave arises from the judgment
of the Division Bench of the Kerala High Court, made on
March 17, 1995 in Second Appeal No. 358/94.
The appellant is admittedly the owner of the property
bearing Survey No.1960/6 in Chettivilakam Village of
Trivandrum District. The appellant had filed a suit for
possession and declaration that the respondent is a
licensee. The trial Court decreed the suit on November 3,
1981 and the appeal was dismissed on July 22, 1993. In the
second appeal, the High Court has reversed the finding
holding that the appellant had executed the gift deed on
October 11, 1966 under Ex.A-1 and, therefore, the respondent
had become the donee and remained in possession as owner of
the property. Accordingly, the suit cannot be decreed. Thus,
this appeal by special leave.
The recitals in the deed do
indicate thus:
"All the right to enjoy the
property and the right to reside in
the building will remain with me
during my life time and Rajan Asari
will derive the said rights with
full freedom after my life time."
A reading of the above would indicate that the
appellant had retained the title to the enjoyment of the
property during her life time as full owner with all rights.
Section 122 of the Transfer of Property Act defines gift
executive in the manner indicated thereunder divesting the
title to and possession of the donor in the property and
vesting the same in the donee under Section 123. These must
be proof of delivery and acception of possession of the
gifted property. In this case, both the title and possession
is respect of the property remained with the plaintiff.
There is no acceptance of possession by the respondent in
the light of above recital. As a consequence, the appellant
remained to be the owner during her life time. Under these
circumstances, It cannot be construed to be a gift deed in
favor of the respondents. At best, it would be only a
licence in favour of the respondent to remain in possession
jointly with the appellant. Therefore, the High Court was
not right in concluding that Ex.A-1 is a gift deed and that
the appellant has no title to the property for declaration
as he had parted with possession.
The appeal is accordingly allowed. The judgment and
order of the High Court stand set aside and that of the
trial Court and the appellate Court stand confirmed. The
decree of manse profits granted by the High Court to that
extent stands confirmed. Six months' time from today is
granted to the respondent to vacate the premises. No costs.
