Tuesday, Dec 23, 2003
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By J. Venkatesan
A Bench comprising Justice Y.K. Sabharwal and Justice D.M. Dharmadhikari pointed out that Section 127 of the Transfer of Property Act clearly recognised the competence of a minor to accept a gift.
The Bench said "when a gift is made to a child, there is a presumption of its acceptance because expressing acceptance in his case is not possible and only an implied acceptance can be expected".
The Bench said that under the Transfer of Property Act read with the Indian Contract Act, the acquisition of property being generally beneficial, a child could take property in any manner whatsoever either under intestacy (having made no legal will) or by will or by purchase or gift or other assurance, except where it was clearly to his prejudice to do so.
The Bench was allowing an appeal filed by K. Balakrishnan challenging a Kerala High Court judgment holding that the terms of the gift-deed did not indicate that any property was transferred to the recipient under the deed.
In this case, on September 24, 1945, the mother of the appellant, Devayani (the donor) executed a registered gifted-deed of 1/8th share of the property inherited by her from her maternal grandfather in favour of her minor son, Balakrishnan, who was aged 16 at that time and her daughter, Kamalam, who was four years of age.
Under the terms of the gift-deed, the ownership of the property, was transferred to the children but the mother retained the management of a school, a part of the property, and the income from the property during her lifetime.
However, on March 28, 1970, she executed a deed cancelling the gift-deed and executed a will two days later bequeathing the same property comprising 1/8th share in favour of her daughter, Ms. Kamalam.
The donor died on November 6, 1982.
Assailing the cancellation of the gift deed, Mr. Balakrishnan filed a suit in a Quilon civil court, seeking declaration of his title to the suit property on the basis of the gift-deed and also seeking cancellation of the deed dated March 28,1970 and the will dated March 30,1970, as ineffective and void in law.
The trial court dismissed the suit, but the district judge ruled in favour of the appellant. The High Court took a contrary view and confirmed the trial court judgment. The present appeal is directed against the High Court judgment.
Allowing the appeal, the Bench said that where a gift was made in favour of a child of the donor, who was the guardian of the child, the acceptance of the gift could be presumed to have been made by him or on his behalf without any overt act signifying acceptance by the minor.
The Judges said "non-delivery of possession of the gifted property, non-exercise of any rights of ownership over it and failure by the donee, on attaining majority, in getting his name removed from official records are not circumstances negativing the presumption of acceptance by the minor during his minority or on his attaining the majority".
Further "where a gift is made by parent to a child, there is a presumption of acceptance of the gift by the donee. This presumption of acceptance is founded on human nature", the Bench observed.
The Bench was of the view that section 126 of the Transfer of Property Act prohibited revocation of a validly executed gift-deed except in circumstances mentioned in it. "The gift was executed in 1945.
It remained in force for about 25 years during which time the donee had attained majority and had not repudiated the same.
It was, therefore not competent for the donor to have cancelled the gift-deed and executed a will in relation to the property", the Bench said and set aside the High Court judgment and restored the order of the district judge.
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