Case: S.SAROJINI AMMA Vs. VELAYUDHAN PILLAI SREEKUMAR

4. The appellant is a childless widow aged 74 years whose husband expired on 06.06.2015. The respondent is the nephew of the appellant (brothers son). In the expectation that the respondent will look after the appellant and her husband and also for some consideration, the appellant executed a purported gift deed in favour of the respondent. The gift deed clearly stated that the gift would take effect after the death of the appellant and her husband5. According to the appellant on or about 02.06.1999, the appellant executed the deed of cancellation No. 1844/1999 cancelling the gift deed. After about eight months, on or about 01.02.2000, the respondent filed Original Suit No. 32/2000 in the Court of the learned Munsif Sasthamcotta for declaration that the cancellation deed executed by the appellant is null and void and also for declaration of his right over the suit property being the subject matter of the purported deed of gift6. On or about 20.03.2000, the appellant filed Original Suit being O.S. No. 97/2000 before the Court of the learned Munsif, Sasthamcotta for permanent injunction restraining the respondent or his men from trespassing or committing waste or mischief in the suit property7. On 12.05.2000, the appellant and her husband filed the written statement in the suit being O.S. No. 32/2000 filed by the respondent. On 25.07.2000, the defendants in O. S. No. 97/2000 filed their written statement contending that the registered document No. 687/2000 was executed for consideration8. By a judgment and order dated 11.12.2006, the learned Munsif, Sasthamcotta decreed Original Suit No. 32/2000 and O.S. No. 97/20009. Being aggrieved, the appellant filed First Appeal being A.S. No. 30/2007 before the District Court Kollam. The defendants in O.S. No. 97/2000 filed their First Appeal before the District Court Kollam. By an order dated 23.09.2010, the Additional District Judge III, Kollam allowed the application being A.S. No. 30/2007 filed by the appellant and dismissed A.S. No. 77/2000 filed by the respondent in O.S. No. 97/200010. The respondent filed Regular Second Appeal against the judgment and decree in A.S. No. 30/2007. By the judgment and order dated 03.04.2017, the High Court allowed the R.S.A. No. 757/2011 and set aside the judgment and decree in A.S. No. 30/2007.

Court's reasoning:
14. Gift means to transfer certain existing moveable or immoveable property voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee as held by the Supreme Court in Naramadaben Maganlal Thakker Vs. Pranivandas Maganlal Thakker and Others (1997) 2 SCC 255 . 15. A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled17. In Reninkuntla Rajamma (supra), this Court held that the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. The Court held that a gift made by registered instrument dulyexecuted by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor.