Supreme Court of India
Smt. Naresh Kumari vs Smt. Chameli on 11 December, 2024
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
REPORTABLE
2024 INSC 965
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8244 OF 2009
SMT. NARESH KUMARI & ORS. …APPELLANT(S)
Versus
SMT. CHAMELI & ORS. …RESPONDENT(S)
JUDGMENT
SUDHANSHU DHULIA, J.
1. The appellants / plaintiffs are before this Court against the
judgement of the Punjab & Haryana High Court dated 20.08.2009,
whereby the second appeal of the respondents / defendants was
allowed and the concurrent decisions of the courts below, which
had decreed the suit, were set aside.
The facts are as follows:
2. Land measuring 38 Bighas 8 Biswas (hereinafter “suit land”)
was gifted by one Rai Bahadur Randhir Singh (“donor”) to
Signature Not Verified
Digitally signed by
Nirmala Negi
Sanwalia, Ratiram and Sheochand, all sons of one Chhailu
Date: 2024.12.11
17:35:48 IST
Reason:
(“donees”) in 1953. The oral gift was duly executed and mutation
1
was carried out in favour of the donees on 13.12.1953. Thepossession of this land was also given to the donees on 13.12.1953.
Things remained peaceful, for 45 long years, then a suit was
filed in the year 1998 for declaration and for possession, or more
precisely for resumption of this property. The case of the plaintiffs
was that they are the heirs of the erstwhile donor and that the suit
land was gifted in lieu of the services, which had to be rendered by
the donees and their heirs to the donor and his heirs lifelong. It
was then asserted that since the defendants have stopped
rendering these services and since the original donees have died
anyway, the suit land should revert to the plaintiffs in terms of the
gift condition.
These plaint averments were countered in an extremely dull
even unimaginative manner in the written statements of the
defendants. Nevertheless, the defendants opposed the plaint
averments, contending that though the gift was for services
rendered, there was no condition for the gift to revert to the donor
upon the death of the donees. Even otherwise, they contended that
the plaintiffs have no cause of action as the terms of the gift are
being complied with and the defendants have been rendering “all
kind of services”, to the plaintiffs! It was also asserted that records
2
relating to possession and ownership of the suit land have beenmutated in their favour since 1953 and that the suit is hopelessly
barred by limitation.
3. The Trial Court, after hearing the parties, concluded that
what was crucial was that the subject matter of the gift was only a
life interest in suit land and since the services have been stopped,
the land was liable to be reverted in favour of the plaintiffs.
Consequently, the suit was held to be within time and as the
plaintiffs’ title was proved, the suit was decreed. The First Appellate
Court agreed with these findings and dismissed the defendant’s
appeal!
The High Court though allowed the defendant’s second appeal
and dismissed the suit, largely on the ground of limitation, though
it was, inter alia, also observed that nowhere in the mutation dated
13.12.1953 is it mentioned that the donees had to serve the heirs
of the donor as well and it could be presumed that proper services
were rendered to the donor during his lifetime. Further, the
plaintiffs failed to disclose what these “services” were and when
exactly they were stopped.
Apart from making a bald statement in the plaint that the
defendants have stopped rendering services, there is no worthwhile
3
evidence placed by the plaintiffs before the Trial Court. On the
contrary, evidence has been placed by the defendants in form of
DW-1 who has stated that after the death of the donor-Randhir
Singh, his children had left the village and nobody from the family
of the donor remained in the village and therefore there was no one
who could be served. This evidence, however, has not been
considered either by the Trial Court or by the First Appellate Court
and no reason has been assigned as to why this was done.
4. At the centre of this dispute lies the oral gift, which came to
be recorded in the mutation order dated 13.12.1953. The same, as
translated to English, is reproduced below:
In a general meeting Rai Bahadur Randhir Singh
donor along with identifier Neki Ram Lambardar
who appeared and made a statement that he has
gifted the land measuring 38 Bigha 8 Biswas in
lieu of services till life to Sanwalia etc. and
delivered the possession to them. if donees
refused to render the services in that case the land
shall revert to the donor or to his heirs. Sanwalia,
Rati Ram and Sheo Chand donees are also present
who admit the above statement as correct. As
such with the consent of the parties the land
comprised in Khewat No.64, Khasra Nos.
1169[13-18], 1171[6-11], 1173[7-0], 1174 [10-19]
total 38 Bigha 8 Biswas on behalf of Rai Bahadur
Randhir Singh donor in favour of donees
Sanwalia, Rati Ram, Sheo Chand in equal
share.Mutation is sanctioned in favour of donees.
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5. Unfortunately, the courts have lost sight of an important
aspect here which has a crucial bearing on the case, which is the
background of the transfer of land made in the year 1953.
The transaction which is the subject matter of the dispute
admittedly occurred in December, 1953. This was the period
immediately after our independence where each State in the
country had already framed or was in the process of framing
legislations on land reforms with a focus on redistribution of land.
Since land was in the State list (List II of the Seventh Schedule of
the Constitution of India), such legislation was being brought by
almost every State in the country. Punjab was no exception. The
land reforms were for acquisition of land from big landlords and
zamindars after placing a limit on land holding and then to
redistribute it to the landless and the marginal agriculturist. This
was being done as this was the pledge given during our freedom
movement by the leaders to the nation and immediately after our
independence, this was the first task sought to be achieved
everywhere in the country.
The reference in our case would be to the Punjab Security
and Land Tenures Act, 1953 (hereinafter “1953 Act”), which had
become effective on 15th April, 1953. Even prior to this, attempts
5
were made to reform land ownership such as the Punjab Act No.12
of 1950 and the Punjab Act No.5 of 1951, which were repealed by
the 1953 Act. The big zamindars and big land owners were fully
conscious that they would not be able to retain land beyond the
ceiling fixed by the Statute, which had an outer limit of 30
standard Acres for a family. The surplus land (beyond 30 acres)
was to vest with the State. The land owners, therefore, either were
gifting their land to their helpers, agricultural workers, even to
priests or to temples, or in any other manner where they thought
their best interest would lie. One thing was clear that technically
they would not be able to keep land beyond the surplus limit.
During this period, gifting, donation or transfer of land in any
possible manner permitted by law was common place, not only in
Punjab but in all parts of the country. We have to examine the
present transfer of land which took place in December, 1953 with
this context and background in our mind. It is true again, that
what we have here is a pure civil matter and considerations as we
have just referred above are outside the scope of pure civil
litigation. The answer to this would be that civil matters will
undoubtedly be decided on facts and law as they exist and as they
are applicable, but again in order to appreciate the facts we have
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to keep the context in mind. Context is always very important.
The above reference was only with that aspect in mind.
6. Another factor which has an extremely important bearing in
this case and which has again not been satisfactorily dealt with by
the Trial Court and the First Appellate Court is the long delay by
the plaintiffs in seeking resumption of their so-called property. It
is a settled position of law that in cases of resumption of land or
immovable property where there has been long and uninterrupted
possession of the defendants, strong evidence is required to be
placed by the plaintiffs to set up a claim, when the plaintiff is
seeking a decree of possession. In this case, the nature of pleadings
have already been referred to in the preceding paragraphs. The
entire case of the plaintiffs rests on the proposition that their
predecessors-in-interest have gifted this land to the forefathers of
the defendants with the condition that the land is being given to
them so that they continue to provide lifelong services to the donor
as well as to their descendants, and since they have discontinued
these services, the land is liable to revert to the descendants/legal
heirs of the original donor. This assertion, however, is not backed
by any plausible evidence. Moreover, this proposition has legal
implications which may go against the plaintiffs.
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7. This suit is based on the aforesaid extremely thin proposition
of law and on top of it there is no worthwhile evidence placed by
the plaintiffs in their case, except for their reliance on words and
phrases in the gift deed, to which unfortunately the defendants
have also fallen prey. It is the case of none other but the plaintiffs
that the agricultural land, which was the subject matter of the suit,
was given in gift to the predecessors-in-interest of the defendants,
but it was not an unconditional gift. It was an onerous gift with a
condition and since the respondents have violated the conditions
of the gift, the land is liable to be reverted to the plaintiffs. Even if
we look at this case as a land given as a gift to the defendants or
their predecessors-in-interest, the nature of the gift, the context in
which it has been given and the entire accumulating
circumstances including the fact that the possession of land was
handed over the same day goes to show that it was actually an
absolute transfer of property with transfer of interest in favour of
the donees and their descendants, the only exception being that
the donees were not given right over the “common land” of the
village, known as “shamlat land”.
8. Now the Transfer of Property Act, 1882 (for short “TPA”) was
not in force in erstwhile Punjab when the gift was executed in
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19531, yet such provisions in TPA which are based on principles of
justice, equity and good conscience have always been enforced by
Courts.2 In any case, before the enforcement of Transfer of
Property Act, 1882, the transfer of immovable property in India was
governed by the principles of English laws of equity.
Sections 126 and 127 of the TPA where provisions regarding
the suspension or revocation of gifts and onerous gifts is defined
respectively are quoted below:
Section 126. When gift may be suspended or
revoked.— The donor and donee may agree that
on the happening of any specified event which
does not depend on the will of the donor a gift shall
be suspended or revoked, but a gift which the
parties agree shall be revocable wholly or in part
at the mere will of the donor is void wholly or in
part, as the case may be.
A gift may also be revoked in any of the cases (save
want or failure of consideration) in which, if it were
a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed
to affect the rights of transferees for consideration
without notice.
Illustrations
(a) A gives a field to B, reserving to himself, with
B’s assent, the right to take back the field in case
1
Parts of Transfer of Property Act, 1882 came to be enforced in erstwhile Punjab vide
Gazette Notification No. 1605-R(CH)-55/589 dated March 26, 1955.
2
Partap Das v. Nand Singh, AIR 1924 Lah 729 (1); Captain Parmodh Singh v. Labh Singh,
AIR 1955 P&H 49.
9
B, and his descendants die before A. B dies
without descendants in A’s lifetime. A may take
back the field.
(b) A gives a lakh of rupees to B, reserving to
himself, with B’s assent, the right to take back at
pleasure Rs. 10,000 out of the lakh. The gift holds
good as to Rs. 90,000 but is void as to Rs. 10,000
which continue to belong to A.
Section 127. Onerous gifts.—Where a gift is in
the form of a single transfer to the same person of
several things of which one is, and the others are
not, burdened by an obligation, the donee can
take nothing by the gift unless he accepts it fully.
Where a gift is in the form of two or more separate
and independent transfers to the same person of
several things, the donee is at liberty to accept one
of them and refuse the others, although the former
may be beneficial and the latter onerous.
Onerous gift to disqualified person.—A donee
not competent to contract and accepting property
burdened by any obligation is not bound by his
acceptance. But if, after becoming competent to
contract and being aware of the obligation, he
retains the property given, he becomes so bound.
Illustrations
(a) A has shares in X, a prosperous joint stock
company, and also shares in Y, a joint stock
company, in difficulties. Heavy calls are expected
in respect of the shares in Y. A gives B all his
shares in joint stock companies. B refuses to
accept the shares in Y. He cannot take the shares
in X.
(b) A, having a lease for a term of years of a house
at a rent which he and his representatives are
bound to pay during the term, and which is more
than the house can be let for, gives to B the lease,
and also, as a separate and independent
transaction, a sum of money. B refuses to accept
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the lease. He does not by this refusal forfeit the
money.
9. As far back as 1870, the Privy Council in Forbes v. Meer
Mahomed Tuquee, 1870 SCC OnLine PC 21 had an occasion to
consider broadly a similar case, where the appellant/plaintiff
sought resumption of land granted to the defendants. The land was
originally granted on the condition of rendering services, which
were to keep off the incursion of wild elephants and attend to the
safety of tenants in nearby areas. It was the appellants case that
since the services are not required any more as the incursion of
elephants has itself ceased, the land should revert to him as part
of their zamindari. Lower Court decreed the suit in favour of the
plaintiff on the grounds, inter alia, that since the defendants
therein have ceased to render the services, the land must revert to
the plaintiff therein. This decree of the lower court was reversed by
the High Court and the matter finally reached the Privy Council
where defendants/grantees argued that they had rendered the
services till they were required to do so and since the elephant
incursion has stopped on its own, they are no longer bound by the
condition. Privy Council considered that grantees had enjoyed
peaceful possession of land for a long period of time and they were
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in long cultivation of this land, and hence, the agreement was
construed in such a manner that the Sunnad was “…partly as a
reward for past, partly as an inducement for future, services.”
Similarly in the present case, the gift was for past services but
even if it is assumed that it was for some past and some future
services, there was no occasion for the defendants to render the
services as the appellants had left the village and now, when
defendants have been enjoying peaceful possession of land for long,
resumption of land in favour of appellants will not be justified. The
defendants had produced their witness DW-1 before the Court who
gave the evidence that the plaintiffs had left the village long ago,
immediately after the death of the Donor, which would be only a
few years after the gift deed was executed in 1953 and therefore,
there was no question of rendering any further service.
10. The conditional oral gift was executed on 13.12.1953 and all
land records pertaining to ownership were transferred in the
defendant’s names along with possession. The oral gift, as recorded
in the Mutation, has a default clause, i.e., “if the donee refuses to
render services in that case the land shall revert to the donor or to
his heirs”. The position regarding revocation of gifts upon breach is
a possible condition. However, merely incorporating a defeasance
12
clause will not exempt the plaintiff from discharging his burden.
The plaintiff has to satisfy the Court and lead evidence to show
what exactly was the nature of the services agreed upon, that a
demand for these services was communicated and that the
defendants refused rendering of services having reneged on the
agreement.
11. On a perusal of the material on record, both the plaint and
PW-1’s deposition are conspicuously silent regarding any specific
instances where services were denied by the defendants or their
predecessors-in-interest. There was only a vague and conclusory
allegation that services have been refused, without any evidence in
support of the same.
The defendants primarily asserted that they have continued
to render services and did not raise any plea of adverse possession.
Their assertion has to be read only to the extent that they
continued to render services to the donor or even his heirs, till the
time they were physically residing in the village.
12. PW-1 deposed in his cross-examination (on 17.05.2000) that
the donor died some 40 to 45 years back. What this means is that
the donor passed away in the late 1950s soon after the gift was
executed and possession was transferred. However, the plaintiffs
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only filed their suit in 1998, around 45 years after the gift’s
execution and around 20 years after the last original surviving
donee died during the 1970s. While the defendants enjoyed
uninterrupted possession throughout this period.
13. Transfer of suit land by way of gift took place in the year 1953
in Jhajjar district of present day Haryana which at that time was a
part of the erstwhile State of Punjab, where provisions of TPA were
not applicable. All the same, as stated in the preceding paragraphs,
even though TPA was not applicable, what would definitely be
applicable would be the provisions in TPA which are based on the
principles of equity, justice and good conscience.
The admitted case of the plaintiffs is that the land (the
subject matter of the case), was given in gift to the defendants (their
predecessors-in-interest), in the year 1953. But since the condition
in the gift was that the defendants will continue to render services
(what was meant by these ‘services’ has nowhere been explained),
and since they are not providing the services anymore, the land
should resume to the ownership of the plaintiffs. The plaintiffs i.e.,
appellants before this Court had asserted that their forefathers /
predecessors-in-interest had donated a piece of land to the
defendants as a gift which was an onerous gift with a condition
14
that it is not only being given for past services but also for future
services, the donees and their successors will continue to provide
to the donor and his successors and if the services stop, the
property will revert to the donor or his successors. Now, since the
successors of the defendants have stopped rendering services as
claimed by the plaintiffs, the gift is being revoked. This was the
precise claim set up in the plaint. A banal written statement was
filed by the defendants where it was admitted that their forefathers
were donated this property by the forefathers of the plaintiffs and
they had a permanent interest in the property, they are its absolute
owners. Moreover, they have continued to render “all kinds of
services” to the plaintiffs and their successors and therefore, there
is no question of property being now revoked in favour of the
plaintiffs as no condition of the gift deed has been breached by
them.
14. Now admittedly, the TPA which is of the year 1882 and came
to be enforced on 01st July, 1882 was not applicable to all parts of
India. For our convenience, it must be stated that it was not in
force in the State of Punjab (including the present territory of
Haryana) in the year 1953 when the gift deed was executed.
Nevertheless, the TPA itself is a codification of broad principles
15
which were applicable at the relevant point of time, relating to
transfer of property, though after codification it also has some new
provisions, such as registration of gift deed etc. The TPA was not
applicable to Punjab but, as discussed earlier and also held by this
Court in various cases, the broad principles in TPA based on
equity, justice and good conscience, would definitely be applicable.
(See: Shivshankara v. H.P. Vedavyasa Char 2023 SCC OnLine
SC 358 & Chander Bhan v. Mukhtiar Singh 2024 SCC OnLine
SC 761)
One of such principles in TPA based on equity, justice and
good conscience is the definition of gift itself which is contained in
Section 122 of TPA and reads as under:
Section 122. “Gift” defined.—“Gift” is the transfer of
certain existing moveable or immoveable property
made voluntarily and without consideration, by one
person, called the donor, to another, called the donee,
and accepted by or on behalf of the donee.
Acceptance when to be made.—Such acceptance
must be made during the lifetime of the donor and
while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
15. Now all conditions for a valid gift deed were in existence when
it was made on 13.12.1953. The subject matter of transfer was an
16
immovable property (land), and it was without any consideration.
There was also an acceptance of this gift deed by the donees, when
the donor was alive, as possession of this land was given the very
same day to the donees and this undisputed fact is on record.
Another important factor which must be kept in mind is that
in a case of gift of land, possession has an extremely important
bearing. Although, after the enforcement of TPA, registration
became essential in a gift of immoveable property as the transfer
will now be seen in terms of Section 123 of TPA, which is as follows:
Section 123. Transfer how effected.—For the
purpose of making a gift of immoveable property, the
transfer must be effected by a registered instrument
signed by or on behalf of the donor, and attested by at
least two witnesses.
For the purpose of making a gift of moveable property,
the transfer may be effected either by a registered
instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods
sold may be delivered.
16. Under TPA a valid gift can be made without giving immediate
possession to the donee as has been held by this Court in
Renikuntla Rajamma v. K. Sarwanamma (2014) 9 SCC 445
where it was held that section 123 of TPA supersedes Hindu Law
17
and delivery of possession is not an essential requirement for the
gift to be valid under provisions of TPA.
Nevertheless, in Punjab and in all other places of North India
where Mitakshara law was applicable, gift of land usually was
accompanied by handing over possession to the donee, as there
was no purpose of enjoying land without being in its possession3.
In other words, in cases governed by Hindu Law, possession is an
extremely important ingredient where validity of the gift is to be
determined. Since TPA was not in force, delivery of possession
which has been done in the present case has an important bearing.
In the present case, the admitted fact is that the plaintiffs have
never questioned the validity of the gift given by their forefathers
to the defendants. Their entire case, in fact, depends on a valid
gift of land of which they admit possession was also given along
with the gift deed in the year 1953 itself. Their case is that, the gift
has to be revoked now for non-fulfillment of certain conditions.
Plaintiffs have also, in other words, admitted that the defendants
are in peaceful possession of this land since the date of gift.
There is another aspect to the entire case. What are those
conditions of which a violation is being alleged? The condition is
3 We must note here that both the donor and the donees were Hindus.
18
that the defendants have discontinued to serve the successors of
the donor i.e. plaintiffs. Can such a condition ever be part of a
gift? This is the first question; the Trial Court and the Appellate
Court should have asked. Although Section 127 of TPA permits an
onerous gift but a gift which is conditioned upon perpetual
rendering of services without any remuneration would amount to
a “begar” or forced labour, even slavery and therefore it is not just
wrong or illegal but even unconstitutional, being violative of
fundamental rights of the donees. It has to be remembered that
this so-called rendering of “services”, was to be in perpetuity. It
has to go on forever. What would this be, if not “begar” or forced
labour. We must also remember that when the gift deed was
executed the Constitution of India had already been enforced.
Article 14 and 21 and more particularly Article 23 prohibits forced
labour. Hence, the condition as is being read by the plaintiffs
where not only the donees but their successors were to continue
giving services to the plaintiffs, that too indefinitely, is nothing
short of reading forced labour, as a condition.
But will this make the gift itself void? Our answer would be
no. In this case, the validity of gift was never ever questioned,
either by the plaintiffs or by the defendants. Therefore, a
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meaningful and purposive interpretation is required here. The
only possible way therefore where the donees and their successors
have continued to be in peaceful possession of the property for
more than 45 years, is that there was never such a condition of
rendering continuous services in the gift deed and services here
meant only the “past services” rendered by the donees to the donor,
or at best it may include services to be rendered by the donees to
the original donor Rai Bahadur Randhir Singh, who passed away
in the late 1950s. This is the only way it can be construed. In other
words, the gift had no condition of continuation of these services
till perpetuity as the plaintiffs would like us to read.
17. We must also remember that Section 127 of TPA, which
permits onerous gifts, was not in force in present day Haryana
which was earlier part of Punjab, as TPA was not applicable there.
Nor can we say that such a condition being based on equity, justice
& good conscience can be read into the gift deed as a valid
condition.
The stipulated condition of “services” and the continuation of
the rendering of such services has to be read in the context when
the deed was executed. Thus, services shall be understood only as
‘past services’ rendered, or at most, the services which had to be
20
rendered by the original donees to the original donor during his
lifetime.
18. Under such facts and circumstances, we have no doubt in our
mind that the plaintiffs had absolutely no case. Hence, the
impugned judgment calls for no interference by us. We accordingly
dismiss this appeal.
19. Interim order(s), if any, shall stand vacated.
20. Pending applications, if any, shall stand disposed of.
……………….………………….J.
[SUDHANSHU DHULIA]
.……..………………………….J.
[PRASANNA B. VARALE]
New Delhi.
December 11, 2024.
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