1. On 23-9-1960, Partap Singh gifted part of his agricultural land in favour of Balwant Singh, his daughter's son by a registered deed Exhibit P. 1 Pratap Singh died on 2-6-1969, and after his death, Balwant Singh applied for sanction of mutation in his favour with regard to the gifted land. The mutation was entered but it was not finally sanctioned because the natural heirs disputed the validity of the gift. Thereafter, on 17-12-1971, Balwant Singh filed the present suit to seek possession of the land which was gifted to him as the same was taken possession of by the sons and grandsons of Pratap Singh in the plaintiffs' absence as he was serving in the Army. Since the sons and grandsons of Pratap Singh contested the suit and pleaded that the gift was not valid, one of the pleas raised was that the gift deed was not acted upon inasmuch as possession of the gifted land had not been given to the donee. The validity of the gift was also challenged under custom but during the pendency of the suit the right to challenge any alienation was taken away with retrospective effect with the result that only one point survived for consideration of the Courts below that whether there was a completed gift or not. Both the Courts below held that it was not proved that the possession of the gifted land was delivered to the donee, nor it was proved that the gift was accepted by or on behalf of the donee. Consequently, the suit was dismissed. This is second appeal by the plaintiff.
2. After hearing the learned counsel for the parties, I am of the view that the Courts below erred in law in coming to the conclusion that the gift was not accepted by the donee or his mother on his behalf. At this stage it would be worthwhile to notice that the gift in question was made at a time when S. 123 T.P., Act, (Hereinafter called the Act) was in force as it was made applicable in the year 1957 to the territory where the gifted land is situate. Prior thereto, such gifts could be made only under the Customary Law, i.e. on the basis of para 60 contained in the Rattigna's Digest which is the general custom or under special custom, i.e. Riwaj-i-Am of a particular place which may be applicable to the contesting parties. Under the custom, the gift could be made orally but to make it valid it was necessary that the possession of the property should be delivered to the donee. Without delivery of possession, the gift remained inoperative. After S. 123 of the Act has been made applicable, the fundamental change came about that the gift would be complete even without the delivery of possession provided the gift is accepted by or on behalf of the donee. See S. 122 of the Act in this behalf. Even a reading of S. 123 of the Act shows that for making a gift of immovable property, the transfer must be effected by a registered document, signed on behalf of the donor and attested by the least two witnesses. Under S. 123 of the Act no ingredient has been laid either for the delivery of possession or for acceptance of the gift. Since the gift is denied in S. 122 of the Act, reference has to be made to the definition of gift contained in S. 122 and, therefore, even if the gift is made by a registered document the same has to be accepted by or on behalf of the donee to make it complete, failing which the gift will be bad. A reading of the second party of S. 123 of the Act shows that for making a gift or movable property, the transfer should be effected either by a registered instrument or by delivery of possession. Therefore, delivery of possession in case of movable property is necessary if it is not made by a registered instrument. Otherwise, even the gift of movable property would be valid if made by a registered document and the gift is accepted by or on behalf of the donee. In this background of the law, the facts brought on the record would be appreciated for the determination of the controversy between the parties.
3. The registered gift deed was executed and registered on 23-9-1960. The same was attested by Amar Singh Lambardar, Kishan Singh and Sri Ram, Municipal Commissioner of Mansa as witnesses. Below the three attesting witnesses Jangir Kaur, mother of Balwant Singh donee of Village Gill, District Faridkot appended her thumb impression. When Balwant Singh appeared as witness on 15-1-1973, he was of 27 years. On this basis when the gift was executed on 23-9-1960, he would be about 14 yeas of age and being minor he could not accept the gift and somebody on his behalf alone could accept the gift. The gift deed was executed by the donor with regard to his land situate in village Autanwali, District Batinda. The presence of Smt. Jangir Kaur at the time of the execution of the will goest to show that she was sent for by the donor to accept the will on behalf of the minor donee and in token thereof her thumb impression was obtained on the gift. This fact is supported by her statement when she appeared as a witness in this case. She further steed that she had taken possession of the land on his behalf. Besides this, the gift deed has come from her custody which goest to show that after the gift deed was executed, her thumb impression was obtained thereon in token of acceptance of gift on behalf of the donee. The gift deed was handed over to her after registration. In the gift deed it is recited that the donee was brought up by the donor and was being educated by him and that the donee was serving him. It has come in the evidence of the donee and his own witness, besides other evidence on the record that it was the donor who got him into the military service later on. The donor remained alive for little less than nine years after the execution of the gift deed and at no point of time during such a long period the donor repudiated the gift or claimed that the gift was not accepted and, therefore, he was owner thereof. The defendants had placed reliance on will Exhibit D 1 dated 4-10-1966 executed by Pritam Singh (the donor) in favour of his son and grandsons. In the will all that he owned or will own at the time of his death will pass on to his son and grandsons. Even there he did not mention that gift was not acted upon and, therefore, was void or that he was owner thereof or it will pass to his son and grandson under the will. This fact and the description of the gifted property is conspicuously absent from the will. Therefore, the will relied upon by the defendants does not advance their case. The trouble arose when after the death of the donor, the plaintiff claimed mutation on the basis of the gift and the defendants claimed mutation on the basis of the will.
4. It has been held in Samrathi v. Parasuram AIR 1975 Patna 140 that if the gift deed is handed over to the donee or someone on his behalf that is enough acceptance of the gift. In Balwant Singh v. Mehar Singh 1973 Pun LJ 668: (Air 1974 Punjab 130), it was held that if the donee sings the gift deed both at the time of the execution as well as at the time of the presentation to the Sub Registrar, his signatures on the two occasions must be held to be appended in token of having accepted the gift. As already noticed, the law is clear that either the donee may accept the gift or it may be accepted on his behalf. Though the facts have not clearly come on record that the plaintiff was minor at the time of the execution of the gift, but most probably he was a minor at that time because when the donor appeared on 15-1-1973 as P.W. 1 he gave his age as 27 years, which means that he was about 14 years at the time of the execution of the gift deed and, therefore, he was not competent in the eye of law to accept the gift. Probably for that reason, his mother was called to accept the gift and the acceptance of the gift is amply proved from the fact that she was made to thumb mark the gift deed and the same was handed over to her and has now come from her custody. Both the aforesaid decisions relate to the execution of registered gift after the applicability of S. 123, T.P. Act, and therefore, being on all fours are applicable to the facts of the present case. Relying on them by applying the same to the facts of the present case, I hold that it is amply proved on record that the mother of the donee accepted the gift and, therefore, the gift was complete.
5. For the reasons recorded above, the finding to the contrary recorded by the two Courts below are hereby set aside.
6. As already noticed, delivery of possession under the gift was not necessary because it was not a case of oral gift or gift under custom.
7. The learned counsel for the respondents has placed reliance on Pakhar Singh v. Ran Singh (deceased) 1969) 1 SCWR 59 and Inder Singh v. Nihal Kaur AIR 1968 Punjab 495 for the proposition that delivery of possession under the gift is necessary to complete the gift. A reading of the aforesaid two decisions show that both the decisions were rendered about a gift under custom and not about a gift under S. 123 T. P. Act. In two reported cases, gift was made before S. 123 T. P. Act was extended to the State of Punjab. Under the Customary Law, i.e. on the basis of para 60 contained in the Rattigan's Digest, gift is complete only when it is followed by possession. Therefore, both these cases are distinguishable on facts. Of course, if gift had been under custom, then certainly these cases would have been applicable.
8. For the reasons recorded above, the appeal is allowed and after setting aside the judgments and decrees of the two Courts below, the plaintiff's suit with regard to the possession of the gifted land is hereby decreed but without any order as to costs.
9. Appeal allowed.