TMI Blog2007 (12) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... t A-2 before the learned Trial Judge; relevant averments wherein were: The said 28 cents was divided into two equal portions. On the southern extreme side of the southern 14 cents after the said division there existed a kudikidappu (hut) of one Konnothu George. Three cents and the said hut was demarcated and given to the said George. Lakshmikutty, your mother, purchased the rights of George over the said three cents and the hut thereon vide registered document No. 2214 of 1980. The said property was later gifted by her to you vide Document No. 78 of 1984. The 11 cents of land, remaining after demarcating the abovesaid three cents from the 14 cents, namely the southern one half portion of the 28 cents that originally belonged to me, is still in my possession and enjoyment with all rights. Out of my love and affection for you and in view of the fact that you are my son and successor the said property having a value of ₹ 5,500/- is gifted to you for leading a good family life. I am hereby relinquishing all my rights over the property. The possession of the property is handed over to you and you have accepted the same. 4. Defendants, however, on the premise that the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view the provisions of Sections 91 and 92 of the Indian Evidence Act, no plea contrary to or inconsistent with the recitals made in the deeds of gift is permissible to be raised. 12. Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the respondents, on the other hand, submitted: (i) Acceptance of gift being a condition precedent for a valid gift and the first Appellate Court and the High Court having arrived at a finding that the same was not accepted, the impugned judgments should not be interfered with. (ii) The recitals made in the deeds of gift are not conclusive and, thus, evidence to show that the same were not correct is admissible in evidence. (iii) Sections 91 and 92 of the Indian Evidence Act control only the terms of a contract and not a recital. Even assuming that Sections 91 and 92 of the Indian Evidence Act would be applicable, by reason thereof, only the onus has shifted on the donor and as they have discharged the same, the impugned judgments are unassailable. 13. We have noticed the terms of the deeds of gift. Ex facie, they are not onerous in nature. The definition of gift contained in Section 122 of the Transfer of Property Act pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of properties since there as reservation of right to enjoy the property in the doners during their life time. The evidence bearing on the question of acceptance of the gift deed will have to be appreciated in the background of the circumstance relating to the execution of such a deed. There may be cases where slightest evidence of such acceptance would be sufficient. There may be still cases where the circumstances themselves eloquently speak to such acceptance. Normally when a person gifts properties to another and it is not an onerous gift, one may expect the other to accept such a gift when once it comes to his knowledge, since normally, any person would be only too willing to promote his own interest. May be in particular cases there may be peculiar circumstances which may show that the donee would not have accepted the gift. But these are rather the exceptions than the rule. It is only normal to assume than the rule. It is only normal to assume that the donee would have accepted the gift deed. One would have to look into the circumstances of the case in order to see whether acceptance could be read. Mere silence may sometimes be indicative of acceptance provided it is sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in relation to a recital and the terms of a contract but such a question does not arise herein inasmuch as the said deeds of gift were executed out of love and affection as well as on the ground that the donee is the son and successor of the donor and so as to enable him to live a good family life. 23. Could they now turn round and say that he was to fulfill a promise? The answer thereto must be rendered in the negative. It is one thing to say that the execution of the deed is based on an aspiration or belief, but it is another thing to say that the same constituted an onerous gift. What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Indian Contract Act. It was not done. The deeds of gift categorically state, as an ingredient for a valid transaction, that the property had been handed over to the donee and he had accepted the same. In our opinion, even assuming that the legal presumption therefore may be raised, the same is a rebuttable one but in a case of this nature, a heavy onus would lie on the donors. 24. Keeping in view the relationship of the parties and further in view of the fact that admittedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In regard to handing over of the possession, it was held: In the second place, the deed of gift was handed over to the donee as soon as it was registered. In the case of a gift by a husband to his wife, their Lordships do not think that Mahomedan law requires actual vacation by the husband and an actual taking of separate possession by the wife. In their opinion the declaration made by the husband, followed by the handing over of the deed are amply sufficient to establish a transfer of possession. 27. It will bear repetition to state that we are in this case concerned with the construction of recitals made in a registered document. 28. Mr. Iyer also relied upon a decision of Oudh High Court in Jhumman v. Husain and others [AIR 1931 Oudh 7] to show that a declaration that possession had been given is not conclusive. Therein again, the court was dealing with a case of gift under Mohammadan law. In that case, the gift was accepted after the death of the donor and it was in that situation that emphasis was laid on handing over of possession as a condition of valid gift. 29. In Smt. Gangabai v. Smt. Chhabubai [AIR 1982 SC 20], wherein also reliance has been placed by M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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