TaxTMI 
TaxTMI 
2014 (7) TMI 1284
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....ect that revocation deed dated 5th March, 1986 executed by the defendant-appellant purporting to revoke a gift deed earlier executed by her was null and void. The plaintiff's case as set out in the plaint was that the gift deed executed by the defendant-appellant was valid in the eyes of law and had been accepted by the plaintiff when the donee-defendant had reserved to herself during for life, the right to enjoy the benefits arising from the suit property. The purported revocation of the gift in favour of the plaintiff-respondent in terms of the revocation deed was, on that basis, assailed and a declaration about its being invalid and void ab initio prayed for. 3. The suit was contested by the defendant-appellant herein on several grounds including the ground that the gift deed executed in favour of the plaintiff was vitiated by fraud, mis-representation and undue influence. The parties led evidence and went through the trial with the trial Court eventually holding that the deed purporting to revoke the gift in favour of the plaintiff was null and void. The Trial Court found that the defendant had failed to prove that the gift deed set up by the plaintiff was vitiated by fraud or....
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....ngs recorded against them. 6. When the special leave petition came up for preliminary hearing before a Division bench of this Court, the only question which was urged on behalf of the appellant was whether retention of possession of the gifted property for enjoyment by the donor during her life time and the right to receive the rents of the property in any way affected the validity of the gift. That a gift deed was indeed executed by the donor in favour of the donee and that the donee had accepted the gift was not challenged and the finding to that effect has not been assailed even before us. So also the challenge to the gift on the ground of fraud, misrepresentation and undue influence, having been repelled by the Courts below, the gift stands proved in all material respects. All that was contended on behalf of the appellant was that since the donor had retained to herself the right to use the property and to receive rents during her life time, such a reservation or retention rendered the gift invalid. A conditional gift was not envisaged by the provisions of the Transfer of Property Act, argued the learned counsel of the appellant. Inasmuch as the gift deed failed to transfer, t....
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....d 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." 11. Sections 124 to 129 which are the remaining provisions that comprise Chapter VII deal with matters like gift of existing and future property, gift made to several persons of whom one does not accept, suspension and revocation of a gift, and onerous gifts including effect of non-acceptance by the donee of any obligation arising thereunder. These provisions do not concern us for the present. All that is important for the disposal of the case at hand is a careful reading of Section 123 (supra) which leaves no manner of doubt that a gift of immovable property can be made by a registered instrument singed by or on behalf of the donor and attested by at least two witnesses. When read with Section 122 of the Act, a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same i....
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.... may only refer to a few cases for the sake of reference, Dharmodas v. Nistarini Dasi (1887) 14 Cal. 446, Ballbhadra v. Bhowani (1907) 34 Cal. 853, Alabi Koya v. Mussa Koya (1901) 24 Mad. 513, Mudhav Rao Moreshvar v. Kashi Bai (1909) 34 Bom. 287, Manbhari v. Naunidh (1881) 4 All. 40, Balmakund v. Bhagwandas (1894) 16 All. 185, and Phulchand v. Lakkhu (1903) 25 All. 358. Where the terms of a Statute or Ordinance are clear, then even a long and uniform course of judicial interpretation of it may be overruled, if it is contrary to the clear meaning of the enactment but where such is not the case, then it is our duty to accept the interpretation so often and so long put upon the Statute by the Courts, and not to disturb those decisions, vide the remarks of their Lordships decisions, of the Privy Council in the case of Tricomdas Cooverji Bhoja v. Sri Sri Gopinath Thakur AIR 1916 P.C. 182. We are, therefore, clearly of opinion that it must now be accepted that the provisions of Section 123 do away with the necessity for the delivery of possession, even if it was required by the strict Hindu Law." 12. The logic for the above view flowed from the language of Section 129 of the T.P. Act wh....
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....tion earlier available to such rules from the operation of Chapter VII. Decisions of the High Court of Mysore in Revappa v. Madhava Rao and Anr. AIR 1960 Mysore 97 and High Court of Punjab and Haryana in Tirath v. Manmohan Singh and Ors. AIR 1981 Punjab and Haryana 174, in our opinion, correctly take the view that Section 123 supersedes the rules of Hindu Law insofar as such rules required delivery of possession to the donee. 15. The matter can be viewed from yet another angle. Section 123 of the T.P. Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word "transfer must be effected" used by Parliament in so far as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or "by delivery". The difference in the two provisions lies in the fact that in ....
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....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 a 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 anyone except the owner of the property affected thereby. (c) * * * (d) An 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." 11. 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 persona....