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Kasi Ammal Vs. Vellai Gounder and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1980)2MLJ232
AppellantKasi Ammal
RespondentVellai Gounder and anr.
Excerpt:
.....over to the donee, the plaintiff herein. thus the twin requirements of valid execution of the gift deed and acceptance of the gift by the decree, are clearly established by the evidence on record. on the other hand, seetharama goundar has clearly stated in exhibit a-1, that he would not revoke the settlement deed (exhibit a-l) for any reason whatsoever. the recitals in exhibit a-1, thus clearly establish that it is an unconditional, absolute gift in favour of the plaintiff. 3. the learned counsel for the respondents vehemently contended that under exhibit a-1, there was only a conditional gift in favour of the plaintiff the condition being that she should live with her husband and look after his welfare and co-operate with him and since this condition has not been fulfilled by the..........has accepted the gift under exhibit a-l. thus the twin requirements of valid execution of the gift deed and acceptance of the gift by the decree, are clearly established by the evidence on record. exhibit a-1 shows that it is an irrevocable deed and the plaintiff's husband seetharama goundar has not reserved any power of revocation under exhibit a-l. on the other hand, seetharama goundar has clearly stated in exhibit a-1, that he would not revoke the settlement deed (exhibit a-l) for any reason whatsoever. the recitals in exhibit a-1, thus clearly establish that it is an unconditional, absolute gift in favour of the plaintiff. when there is a valid gift under exhibit a-1 and the property has vested in favour of the plaintiff, seetharama goundar is not competent to execute exhibit.....
Judgment:

P. Venugopal, J.

1. The plaintiff is the appellant before this Court and the defendants are the respondents. The suit property originally belonged to plaintiff's husband Seetharama Goundar. Under the original of Exhibit A-1, the said Seetharama Goundar settled the suit property in favour of his wife, the plaintiff herein. On the basis of the settlement deed, the, plaintiff has filed the suit for declaration of her title to the suit property and for recovery of possession of the suit property from the defendants. The first defendant contended that the settlement deed (Exhibit A-l) was never acted upon, and Seetharama Goundar himself has revoked the settlement deed under Exhibit B-5 and he is a bona fide purchaser for value from Seetharama Goundar under Exhibit B-1 and the plaintiff is not entitled to a decision and recovery of possession as prayed for. The trial Court held that a valid settlement has been executed in favour of the plaintiff under the original of Exhibit A-1 and the subsequent revocation deed (Exhibit B-S) is an invalid instrument and will not in any way affect the rights of the plaintiff to the suit property. The trial Court further held that the first defendant is not a bona fide purchaser for value, of the suit properties from the plaintiff's husband and on these findings, the trial Court decreed the suit. On appeal, the lower appellate Court held that there was no valid acceptance of the gift by the plaintiff under Exhibit A-1 and the gift under Exhibit A-1 is, therefore, void under Section 122 of the Transfer of Property Act and as the settlement deed is void and not acted upon, the plaintiff's husband executed Exhibit A-5 revoking the settlement deed, and the first defendant is a bona fide purchaser for value and the plaintiff is not, therefore, entitled to the declaration and recovery of possession prayed for in the plaint. Aggrieved against the decree and judgment of the first appellate Court, the plaintiff has filed this second appeal to this Court.

2. Under Section 123 of the Transfer of Property Act, a gift of immovable, property should be mad(c) by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The second requirement is there must be acceptance of the gift by the donee. In the instant case there is no dispute regarding the compliance of the first condition. Regarding the compliance of the second condition viz., acceptance of the gift by the donee, the plaintiff herein, the appellate Court has held, that there, is no acceptance of the gift by the donee and even the original of Exhibit A-1 was not handed over to her. Exhibit A-4 recites:

Thus Exhibit A-1 clearly recites that the possession of the property covered under it has been handed over to the donee, the plaintiff herein. Apart from the recitals in Exhibit A-1, P.Ws. 2 and 3, the attestors to Exhibit A-1 have also given evidence that plaintiff has accepted the gift under Exhibit A-l. Thus the twin requirements of valid execution of the gift deed and acceptance of the gift by the decree, are clearly established by the evidence on record. Exhibit A-1 shows that it is an irrevocable deed and the plaintiff's husband Seetharama Goundar has not reserved any power of revocation under Exhibit A-l. On the other hand, Seetharama Goundar has clearly stated in Exhibit A-1, that he would not revoke the settlement deed (Exhibit A-l) for any reason whatsoever. The recitals in Exhibit A-1, thus clearly establish that it is an unconditional, absolute gift in favour of the plaintiff. When there is a valid gift under Exhibit A-1 and the property has vested in favour of the plaintiff, Seetharama Goundar is not competent to execute Exhibit B-5 and revoke the settlement deed which he had executed under Exhibit A-1. Exhibit B-5, is therefore an invalid instrument and has been rightly ignored as not affecting the rights of the plaintiff to the suit property which she got under the original of Exhibit A-l.

3. The learned Counsel for the respondents vehemently contended that under Exhibit A-1, there was only a conditional gift in favour of the plaintiff the condition being that she should live with her husband and look after his welfare and co-operate with him and since this condition has not been fulfilled by the plaintiff, Seetharama Goundar was perfectly justified in executing Exhibit B-5 and revoking the settlement deed which he had executed under Exhibit A-1. A perusal of Exhibit A-1 shows that no such condition has been imposed when Seetharama Goundar executed Exhibit A-l. Except expressing a pious wish that the wife must look after him and co-operate with him, there is no indication to show that the gift to the plaintiff under Exhibit A-1 was made subject to the condition that she, should live with him and look after his welfare. In fact, the plea that there was a conditional gift made under Exhibit A-1 has not even been made in the written statement of the first defendant. There is absolutely no evidence to show that Exhibit A-1 was a conditional gift and on the failure of the condition mentioned in Exhibit A-1 it became inoperative and the plaintiff's husband was competent to revoke the name. The learned Counsel for the defendants relied on paragraph 5 of the written statement to show that the plea of conditional gift has been averred in the written statement. A perusal of paragraph 5 of the written statement does not make out a case that Exhibit A-1 was a conditional gift and the property was gifted in favour of the plaintiff subject to certain conditions to be fulfilled by her. The learned Counsel for the respondents contended that after the execution of Exhibit A-1, the plaintiff never lived with her husband and she had never taken possession of the property nor was in enjoyment of the same and as such, the plaintiff's husband was competent to execute Exhibit B-5 and revoke the settlement deed under Exhibit A-l. All these arguments of the learned Counsel for the respondents, overlook one essential fact that when under Section 123 of the Transfer of Property Act, there is a valid, absolute gift in favour of the plaintiff, her failure to continue in possession or her nor living with her husband will not have the effect of divesting the title which has already been vested in favour of the plaintiff as a result of Exhibit A-l. As the execution of the original of Exhibit A-1 has been admitted and as the acceptance of the donee, the plaintiff, herein, is also established, the requirements of Sections 122 and 123 of the Transfer of Property Act are fulfilled and as there is a valid gift in favour of the plaintiff and the title has vested in her favour, her husband cannot unilaterally revoke the gift deed, under Exhibit B-5. In this view of the matter, the finding of the trial Court that under Exhibit A-1, there is a valid gift and the plaintiff's husband cannot revoke the same under Exhibit B-5 is fully justified. In the result, the appeal is allowed, the judgment and decree of the first appellate Court are set aside and that of the trial Court are restored. No costs.


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