A conditional gift not
complete, might be cancelled
This appeal has been filed against the judgment and order dated 3.4.2017 passed by the High Court of Kerala at Ernakulam in R.S.A No. 757/2011 whereby the High Court was pleased to allow the Second Appeal filed by the respondent and set aside the judgment and degree passed by the First Appellate Court in favour of the appellant.
The short question involved in this appeal is whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift. Another related question is whether a gift deed reserving the right of the donor to keep possession and right of enjoyment and enforceable after the death of the appellant and her husband.
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 done as held by the Supreme Court in Naramadaben Maganlal Thakker v. Pranivandas Maganlal Thakker and others. As further held by this Court in Naramadaben Maganlal Thakker (supra) “It would be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes absolute owner of the property.”
Hon’ble Arun Mishra and Indira Banerjee, JJ., have held that 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.
In Reninkuntla Rajamma v. K. Sarwanamma a Hindu woman executed a registered gift deed of immovable property reserving to herself the right to retain possession and to receive rent of the property during her lifetime. The gift was accepted by the done but later revoked.
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 duly executed 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 done. Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance.
It is further held that 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 deed.
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. We are thus constrained to hold that there was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed.
S. Sarojini Amma v. Vilayudhan Pillai Sreekumar, 2018 (192) AIC 6 SC
When a higher forum
passes order on
merit, doctrine of merger would apply
This appeal is directed against the judgment dated 22.1.2007, passed by the learned Single Judge of the High Court of Judicature at Madras in C.R.P. (NPD) No. 1829 of 2006. By the impugned judgment, the High Court while dismissing the revision petition has confirmed the orders of the Executing Court dated 1.11.2006 in E.A. No. 3570 of 2006 in E.P. No. 249 of 2006 in O.S. No. 649 of 1977.
The only question raised by the learned Advocate for the appellant in this appeal is that the execution petition filed in the year 2006 is barred by limitation inasmuch as the same was not filed within 12 years from the date of the judgment of the Trial Court, i.e., dated 14.8.1981.
In sum and substance, the case of the appellant is that the execution petition ought to have been filed within 12 years from the judgment of the Trial Court without waiting for the decision of the First Appellate Court or the Second Appellate Court. He has also submitted that there is no interim order granted by the First Appellate Court and the Second Appellate Court. There was no hurdle for the respondents to file the execution petition within the prescribed period of limitation after the judgment of the Trial Court. It is submitted by the decree holder that the decree of the High Court passed in second appeal. It is further submitted that the order of stay was operating in favour of the judgment debtor/debtor during the pendency of the appeals and hence the judgment debtor continued in possession.
It is not in dispute that the execution petition has been filed within time from the date of the judgment of the High Court. The High Court dismissed the second appeal on 30.12.2003. The execution petition was filed in July 2006. Thus, undisputedly, the execution petition was within the period of limitation from the date of the judgment of the High Court.
Hon’ble N.V. Ramana and M.M. Shantanagoudar, JJ., have held that the aforementioned question raised by the learned Advocate for the appellant is no more res-integra, inasmuch as the very question is decided by Three Judge Bench of this Court, in the case of Chandi Prasad v. Jagdish Prasad, wherein it was observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. A decree is defined in section 2(2), C.P.C., 1908 to mean the formal expression off an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of section 2(2) of the C.P.C. would be enforceable irrespective of whether it is passed by the Trial Court, the First Appellate Court or the Second Appellate Court. When an appeal is prescribed under a statue and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time.
Shanthi v. TD Vishwanathan, 2018 (192) AIC 17 SC