Case Summary
| Citation | Tila Bewa v. Mana Bewa AIR 1962 Ori 130 |
| Keywords | sec 122, 126 TPA, gift, conditional gift, daughter in law, revocation, pious wish |
| Facts | Mother in law, defedant, was the owner of certain properties. She executed a gift deed in favour of daughterin law, plaintiff, in the hope that pliamtiff would marry her son, live with them, and look after both of them in their old age. Thereafter plaintiff married her son and came to live with them. Subsequently the son died, and after a while plaintiff felt neglected and went back to her natal place. Plaintiff applied for mutation of names, but defendant executed a deed of cancellation on the ground that as the gift was not acted upon the same could be cancelled. She pleaded that it was a conditional gift and was subject to a condition that plaintiff would live with her and look after her. Since plaintiff had gone back to her father’s place, the condition was not fulfilled and she was empowered to revoke the same. |
| Issues | Whether the gift is a conditional or not? Whether revocation is possible? |
| Contentions | |
| Law Points | The court held that if the deed is a conditional gift, the fact that it is conditional must be apparent from the language of the document. The document should also provide that in case the condition that the gift is subject to is not fulfilled, the gift would be revoked. It is only in such a situation that the gift can be revoked. Thus, unless the gift deed contains a clause for its revocation, it cannot be revoked. Under section 122 the Transfer of Property Act, a gift is complete when it is accepted by or on behalf of the donee; where there is evidence that the gift of property by a person to his wife and children was accepted by the donees, the fact, – that the donor, who had no other property, – stayed on the property, even after the gift, – does not show that the gift had not taken effect. If the terms of the gift deed were that there had been as absolute transfer of the property in favour of the donee, such a direction for maintenance shall be regarded only as an expression of pious wish on the part of the donor. The gift deed, the court held did not contain any revocation clause. What was contained in the gift was the wish of a mother that the daughter-in-law would live with her and look after her. But it did not provide as to what would happen if she did not comply with her wishes. The gift therefore was held as an absolute gift, and once it was executed, it could not be revoked. |
| Judgement | Court held that in the absence of condition whose failure would revoke the gift cannot be revoked. It has no agreement that on failure of plaintiff to perform any condition the gift will be invalid. Therefore, the deed is valid. Hence, the plaintiff is entitled to immediate possession of the disputed property. |
| Ratio Decidendi & Case Authority |
Full Case Details
S. BARMAN, J. – The plaintiff is the appellant, in this second appeal, from a decision of the
learned Subordinate Judge of Cuttack, whereby he allowed in part, an appeal from the decision of the
learned Munsif, Cuttack and decreed the plaintiffs suit with certain conditions.
2. The plaintiff is the daughter-in-law of the defendant.
3. On May 10, 1951, the defendant mother-in-law gifted away the suit lands in favour of the
plaintiff daughter-in-law, by a registered deed of gift (Ext. 1). Until 1953, the plaintiff remained in
possession of the suit lands and lived with her husband Natabar who died in 1953. After Natabar’s
death, the plaintiff lived with the defendant mother-in-law till 1954. In 1954, the plaintiff having been
neglected by the mother-in-law she (plaintiff) left for her father’s house. Thereafter the plantiff
applied for mutation in respect of the suit lands. On May 31, 1954 the defendant mother-in-law
executed a deed of cancellation of the gift deed (Ext. A). Thereafter on September 19, 1954, this suit
was filed by the plaintiff for declaration of title and possession in respect of the suit lands. The
defendant mother-in-law’s defence, – as taken in the suit, shortly stated – is this; her son Natabar’s
first wife, after marriage, did not come to live with him. There after the defendant got her son married
to plaintiff; during the marriage negotiations, the defendant executed the deed of gift, in order to
induce the plaintiff to come and live with her son; that the deed of gift was not acted upon; that it was
a conditional gift to the plaintiff on condition that the plaintiff will maintain the defendant; the
plaintiff having failed to maintain the defendant, she (defendant), – according to her, – is entitled to
revoke the deed of gift and accordingly she cancelled the deed of gift by Ext. A; further that the
plaintiff having re-married, she is not entitled to the property under the deed of gift.
4. The trial Court found that the gift was genuine and valid; that the gift was accepted by the
plaintiff through her husband who then was alive; that she was entitled to the suit lands, even after the
plaintiff’s remarriage; and accordingly the suit was decreed in favour of the plaintiff. In appeal, the
learned lower appellate Court found that there was no clause for revocation of the gift under any
contingency; that the plaintiff carried on the Seva of the defendant till her husband death; that the
plaintiff had remarried; that there was no fraud, coercion, undue influence, mistake or misrepresentation in executing the deed of gift in favour of the plaintiff; the defendant accepted the terms
of the gift; that the defendant knew fully well the terms when executing the deed; that the transaction
was not a nominal nor make-believe; in fact it was acted upon; that the deed of gift cannot thus be
revoked; that the plainttif’s title to the suit property as property gifted to her by the defendant, was
declared with the condition that the defendant mother-in-law will remain in possession till her death;
and accordingly the suit was decreed in favour of the plaintiff declaring the title in her favour but she
will get (sic) possession during the life-time of the defendant. From this decision of the learned lower
appellate Court this Second appeal has been filed by the plaintiff as the appellant. A cross-appeal was
also filed by the defendant mother-in-law on the ground that the deed of gift was not valid because of
undue influence, fraud and coercion.
5. The points, urged on behalf of the plaintiff appellant, were that the document having been
registered and attested as required under Section 123 of the Transfer of Property Act, the gift became
complete; that it cannot be revoked unless there is an agreement between the donor and the donee that
on the happening of a specified event, which does not depend on the will of the donor of the gift, it
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shall be suspended or revoked as provided in Section 126 of the Transfer of Property Act. On a
plain reading of the document itself, it does not provide that the defendant mother-in-law was to
remain in possession of the gifted lands during her life-time.
6. The well settled legal position, based on authorities, is that a gift, subject to the condition that
the donee should maintain the donor, cannot be revoked under section 126 of the Transfer of Property
Act for failure of the donee to maintain the donor, firstly for the reason that there is no agreement
between the parties that the gift could be either suspended or revoked; and secondly, this should not
depend on the will of the donor; again, the failure of the donee to maintain the donor as undertaken by
her in the document is not a contingency which should defeat the gift; all that could be said is that the
default of the donee in that behalf amounts to want of consideration; Section 126 thus provides
against the revocation of a document of gift for failure of consideration; if the donee does not
maintain the donor as agreed to by the donee, the latter (donor) could take proper steps to recover
maintenance; it is not open to a settler to revoke a settlement at his will and pleasure and he has got to
get it set aside in a court of law by putting forward such pleas as bear on the invalidity of a deed of
gift. Under section 122 the Transfer of Property Act, a gift is complete when it is accepted by or on
behalf of the donee; where there is evidence that the gift of property by a person to his wife and
children was accepted by the donees, the fact, – that the donor, who had no other property, – stayed on
the property, even after the gift, – does not show that the gift had not taken effect; where no right in
the property is reserved in the donor, the fact that there is a clause in the deed (as in the present case)
that the donee should maintain the donor, does not show that the donor continued to be the beneficial
owner; a direction in a gift deed that the donee should maintain the donor till his death will not make
the gift a conditional one; if the terms of the gift deed were that there had been as absolute transfer of
the property in favour of the donee, such a direction for maintenance shall be regarded only as an
expression of pious wish on the part of the donor.
On the aspect of such pious wishes, the legal position is that where a gift deed, after the operative
portion of the deed, provided that the donee was to render services to the donor and to meet the
donor’s funeral expenses, such directions are only pious wishes and do not give any right to the donor
to revoke the gift if the conditions are not observed; when, therefore, there is an out and out transfer,
followed by a direction to the donee to maintain the donor, the latter direction is only a pious wish; on
the other hand if the gift deed starts with a statement that it is made with the object of providing for
maintenance of the donor, and this statement is followed by the operative clause, – there can be no
doubt that the gift is subject to the liability to maintain the donor.
7. This leads me to the construction of the deed of gift, in the present case, in the light of the legal
position as stated above. On a plain reading of the document, it is clear that the defendant donor
makes a complete gift of the suit lands in the operative portion of the document, making the plaintiff
full owner in possession from the date thereof “Aja dina than sampurna malik dakhalke karai” (in
vernacular); it is after making the plaintiff full owner, in respect of the suit lands, that the defendant
expresses her pious wish later on in the document to the effect that the plaintiff would render to the
defendant “Sebadharama and Bharan Poshan”, that is to say, to render to the defendant services and
maintain her during her lifetime and she further expressed a wish that after her death the plaintiff
would perform her funeral rites; then the document ends, by providing that the defendant or her heirs
will not have, in any way any right to the suit lands and if they claim any right then on the strength of
this document such claim will be invalid in law courts; the only condition attached to the gift as stated
in the last sentence is that the plaintiff will not be able to sell or mortgage without the consent of her
husband (plaintiff’s husband), and that the plaintiff will not alienate the suit lands by sale or
mortgage etc. during the lifetime of the defendant, and that if she does so, it will be invalid; thus,
reading the document as a whole, it is clear that it was an out and out gift, and that the directions as to
her maintenance and Sebadharma are only pious wishes expressed by the defendant in the document.
8. Mr. S. Mohanty, learned counsel for the defendant respondent, submitted that the gift was an
unconscionable bargain, as it was by coercion, undue influence and fraud on defendant, that the
defendant executed the document without knowing the full implications of the document; that the gift
was not acted upon inasmuch as no mutation took place. In my opinion, in view of there having been
no specific issue as to the alleged coercion, undue influence, fraud, mistake or misrepresentation as
alleged, the defendant’s cross-appeal, challenging the deed of gift as altogether a void document, on
the grounds as alleged, has no substance.
9. In support of his proposition, that the deed of gift is revocable, the learned counsel for the
defendant, respondent relied on a decision of the Allahabad High Court in Balbhadar Singh v.
Lakshmi Bai [AIR 1930 All 669], holding that under Hindu Law if a person makes a gift to another in
expectation that the donee will do more work in consideration of the gift, it follows that if the donee
failed to do that which it has conditioned he should do, the gift is revocable. The learned counsel’s
point is that in order that the defendant may get Sebadharma (services) from the plaintiff she
(plaintiff) has to remain in the house; but the plaintiff having remarried, she cannot perform the
Sebadharma of the defendant because the plaintiff has left the house of the defendant and remarried.
In my opinion, this argument cannot stand, in view of the legal position as stated above. With regard
to the decision, relied on by the learned counsel, it appears that the Allahabad High Court observed
that it was arguable that in the absence of an express power of revocation for failure of the condition
the gift cannot be impugned or revoked. Therefore, the Allahabad decision, – which was decided on
the particular facts of the case, – does not support the defendant’s contention. In the present case, as is
clear from the document itself, there is no agreement that on failure on the part of the plaintiff to
perform any of the conditions, namely, Sebadharma etc. the gift will be invalid. In other words, there
must be a defeasance or default clause in order to make the gift revocable; if there was a condition
that on failure to perform any of the conditions the gift will be void, then certainly the gift could have
been revoked; the document does not make any provision to that effect. Here, the defendant cancelled
the gift, – as appears from the deed of cancellation, – in apprehension that the plaintiff might waste the
properly by transfer; it is not the defendant’s case that by reason of the plaintiff’s having failed to
perform her Sebdharma etc. that she revoked the deed of gift.
It is, however, expected that the plaintiff will respect the pious wishes of the defendant that the
plaintiff will perform her Sebadharma in the manner, that is possible under the circumstances and also
carry out her other obligations as contained in the deed of gift, — all out of the income of the suit
lands, in terms of the deed of gift.
10. In this view of the case, the decision of the learned lower appellate Court is modified to the
extent that clauses (3) and (4) of ordering portion in paragraph 18 of the judgment are set aside; the
rest of the decision of the learned lower appellate Court is confirmed; it is further declared that the
plaintiff is entitled to immediate possession of the suit lands, and that be given such possession
accordingly. The result, therefore, is that the appeal is partly allowed with the modifications as
aforesaid. The cross appeal is dismissed. In the circumstances of the case, each party to bear own
costs throughout, except that the court-fees for the plaint will be paid by the parties in equal shares to
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the State Government as per clause 2 of the ordering portion of the judgment of the learned lower
appellate Court.
