KELAN Vs. GOVINDAN
LAWS(KER)-1968-10-11
HIGH COURT OF KERALA
Decided on October 18,1968

KELAN Appellant
VERSUS
GOVINDAN Respondents

JUDGEMENT

- (1.) IT is regrettable that neither of the courts below has understood the plaintiff's case properly. The first question that calls for consideration is whether the gift was valid and had taken effect. A mere reading of Ex-A1 is sufficient to convince any one that it is a valid gift and that it had taken effect then and there. The document was executed in favour of his upatavazhi out of love and affection for the members thereof. The property was delivered over simultaneously with the document, and the donees were directed to effect improvements also thereon. His right of enjoyment for life was alone reserved with him. Thus the property was put in their hands; but the right to take the usufruct was alone retained by him. All the prior title deeds of the property were also handed over to the donees. In the face of these clear statements in the document it is now idle to contend that the gift did not take effect and possession was not handed over. Under S. 123 of the Transfer of property Act, in the case of a gift of immovable property the transfer is effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. All these requirements have been satisfied in the present case and the document was perfect in every respect. A Full Bench of the Allahabad High Court in Lallu Singh v. Gur Narain (ILR. 45 All. ll5) has held that immediate handing over of possession is not necessary for the validity of a gift. The learned judges observed: "on a construction of S. 123 of the Transfer of property Act, 1882. that, even if delivery of possession was essential to the validity of a gift made by a Hindu prior to the passing of that Act, it is now no longer necessary. A Hindu lady, who is the full proprietor of immovable property, can by a registered document, duly signed and attested, validly make an immediate gift of it, although she reserves to herself the enjoyment of the usufruct or profits of a part of the property for her life time and without retaining any power of alienation over it. " There is no basis for the contention that the gift was not accepted by the donees. Pokkan after the execution of the gift was staying with the donees and from their conduct it was never possible to infer that the gift was not accepted by them. Pokkan himself says in the document that possession was delivered and that the title deeds were also handed over. Then how could it be said fiat the gift was not accepted? In the face of the above statement in the document it was for the defendants to show that by their conduct they had repudiated the gift. In the subsequent cancellation, Pokkan stated that he was obliged to cancel the document, due to the protest raised by the other members of the tavazhi. This is a further circumstance to show that the gift had taken effect. The courts below have stated that there is no case for the plaintiffs that they have made improvements in the property, and this is a circumstance to show that actual possession did not pass. I do not think that such an inference could legitimately be drawn from the mere absence of improvements in the property.
(2.) A valid gift accepted by the donees can, on no account, be revoked. This is a settled position, unassailable. In Atmaram sakharam Kalkye v. Vaman Janardhan Kashelikar (ILR. 49 Bom. 388) a Full Bench of the Bombay High Court has held: "where the donor of immovable property has handed over to the donee an instrument of gift duly executed and attested, and the gift has been accepted by the donee, the donor has no power to revoke the gift. " But if the document is not complete until registration, the donor can revoke it. 'gift' is defined by S. 122 of the Transfer of Property act, and S. 123 provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument. So the document is, in fact, inchoate until it is registered. But in the present case such a difficulty does not arise at all. The document was registered and was handed over to the donees along with the title deed. We see in Ex-Al a complete extinction of the proprietory rights of the donor and in such a case, the donor has no power of revocation except under S. 126 of the Transfer of Property Act. S. 126 provides for revocation of a contingent gift if the condition is not fulfilled; but the donor cannot revoke the will at his pleasure. The gift in the present case being not subjected to any condition, S. 126 can have no application. In the deed of cancellation the reason stated is that the other members of the donor's tavazhi protested and that the tavazhi itself was threatened with disruption. This is equivalent to saying that it was a folly that such a deed was executed by him; but his own folly is no ground for revocation of the gift. In Allcard v. Skinner (1887-36 Ch. D. 145) Lindley, C. J. observed: "what then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly? or is it right and expedient to save them from being victimised by other people? In my opinion, the doctrine of undue Influence is founded on the second of these principles. Courts of equity have never set aside gifts on the ground of folly, imprudence or want of foresight on the part of the donors. The courts have always repudiated any such jurisdiction. " I therefore, agree with the learned appellate judge in her conclusion that the revocation is invalid; but in refusing relief to the plaintiff she would rely on the defence contention that the plaintiff has not established possession within 12 years of the suit. This is again begging the question. When once the gift is upheld, it follows that it had taken, effect and legal possession had also passed on to the donees; all that the donor retained was the right to take the usufructs. Pokkan died only in 1955 and the suit itself was filed within 3 years of that. It, therefore, cannot be said that the plaintiff had no possession within 12 years of suit. Since the right to take usufruct was reserved actual enjoyment of the property by the donees was not possible before his death. But legal possession was all along with them. Subsequent to the cancellation, the tenancy was renewed and some of the other documents had also come into existence; but none of them is of any significance since. the cancellation itself is invalid. The defendants, if they are in possession, can only be treated as trespassers and the plaintiff has asked in the alternative for recovery of possession also. I would, therefore, set aside the judgment of the learned appellate judge in so far as it relates to possession and recovery of the property. The plaintiff's suit is allowed with costs. Perpetual injunction is granted and the prayer for recovery is also allowed.;


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