# N.P. Saseendran v. N.P. Ponnamma & Ors

- **Citation:** 2025 INSC 388
- **Court:** Supreme Court of India
- **Decided:** 2025-03-24
- **Case number:** Civil Appeal No. 4312 of 2025
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-p-saseendran-v-n-p-ponnamma-ors-38221
- **Pages:** 54

## Headnote

The question to be decided herein is twin fold, whether the document
of the year 1985 is a gift or Settlement or Will and whether the
requirements under law or conditions in the deed have been
satisfied to vest a legal right.
Headnotes†
Transfer of Property Act, 1882 - ss.122 - 123, 126, 127,
128 - Indian Stamp Act, 1899 - Art. 33 - Kerala Stamp Act,
1959 - Art.31 - Registration Act, 1909 - s.17 - Specific Relief
Act, 1963 - s.2(b) - Indian Succession Act, 1925 - Part VI -
ss.2(h), 59, 61, 62, 63, 70, 89 - Respondent No.1 was the
plaintiff (daughter) in O.S.No.27 of 1994 and the appellant was
defendant No.2 (son) in the said suit - Respondent no.1 alleged
that the suit schedule property was gifted by her father, who
was defendant No.1 in the suit, vide registered deed dated
26.06.1985 - Respondent No.1/plaintiff filed the said suit for
declaration of right, title and interest over the suit schedule
property and also for a declaration that the cancellation deed
and sale deed dated 19.10.1993 executed by the defendant
No.1/father in favour of the appellant/defendant No.2 as null
and void and for consequential injunction - The High Court
upsetting the concurrent findings of the Courts below, granted
a decree in favour of the plaintiff/respondent No.1 declaring
her right, title and interest over the suit schedule property by
virtue of Ext.A1 settlement deed dated 26.06.1985 and declared
that cancellation deed (Ext.A2) dated 19.10.1993 and sale deed
(Ext.A3) dated 19.10.1993 both executed by defendant No.1
would not bind the plaintiff as far as her right, title and interest
over the suit schedule property is concerned - Correctness:
* Author
958
[2025] 3 S.C.R.
Supreme Court Reports
Held: Ext.A1 document dated 26.06.1985 was executed by
defendant No.1/father in favour of respondent No.1/plaintiff
(daughter) - It was categorically stated therein that the suit
schedule property belonged to defendant No.1/father and he
was in possession and enjoyment of the same with full rights -
The contents of the document would clearly reveal that there is
consideration, conveyance, imposition of conditions and reservation
of life interest by the executant, defendant No.1/father satisfying
the requirements to classify the document as a "settlement" - The
conditions to construct a house, to reside in the house, retention
of life interest, the right of mortgage up to a sum of Rs.2,000/- and
avail loan on that basis, cannot alter the gift, by which in unequivocal
terms, the property stood vested in the plaintiff by earlier part - The
condition, creating a life interest in favour of father and mother
and the restriction regarding mortgage, would further imply that
defendant No.1 had ceased to be the absolute owner - Defendant
No.1 has also enabled the plaintiff to construct the house from then
on and no outer time has been fixed for the construction of the
house - Since the life interest was reserved in favour of defendant
No.1 and his wife, defendant No.1 was only holding an ostensible
possession and ownership as contemplated u/s.41, while the true
owner being the plaintiff, after the clear conveyance by earlier
clause - In the instant case, the clear and unambiguous language
employed in the first part of Ext.A1 document dated 26.06.1985,
reveals a clear disposition by defendant No.1/father to the plaintiff,
by only retaining a life interest in the second part - Therefore,
the instrument of 1985 is a gift by settlement - Now, as far as
question that whether the gift was accepted and acted upon is
concerned, it is not in dispute that the plaintiff has registered the
instrument - Such registration by the plaintiff is possible only if the
document was handed over by defendant No.1 - The factum of
acceptance can be derived from the conduct of the parties - The
plaintiff, when the suit was filed, was in possession of the original
title deed - Even assuming that the original deed was returned
after registration, the fact that it was already acted upon, ca

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[2025] 3 S.C.R. 957 : 2025 INSC 388
N.P. Saseendran
v.
N.P. Ponnamma & Ors.
(Civil Appeal No. 4312 of 2025)
24 March 2025
[J.B. Pardiwala and R. Mahadevan,* JJ.]
Issue for Consideration
The question to be decided herein is twin fold, whether the document
of the year 1985 is a gift or Settlement or Will and whether the
requirements under law or conditions in the deed have been
satisfied to vest a legal right.
Headnotes†
Transfer of Property Act, 1882 - ss.122 - 123, 126, 127,
128 - Indian Stamp Act, 1899 - Art. 33 - Kerala Stamp Act,
1959 - Art.31 - Registration Act, 1909 - s.17 - Specific Relief
Act, 1963 - s.2(b) - Indian Succession Act, 1925 - Part VI -
ss.2(h), 59, 61, 62, 63, 70, 89 - Respondent No.1 was the
plaintiff (daughter) in O.S.No.27 of 1994 and the appellant was
defendant No.2 (son) in the said suit - Respondent no.1 alleged
that the suit schedule property was gifted by her father, who
was defendant No.1 in the suit, vide registered deed dated
26.06.1985 - Respondent No.1/plaintiff filed the said suit for
declaration of right, title and interest over the suit schedule
property and also for a declaration that the cancellation deed
and sale deed dated 19.10.1993 executed by the defendant
No.1/father in favour of the appellant/defendant No.2 as null
and void and for consequential injunction - The High Court
upsetting the concurrent findings of the Courts below, granted
a decree in favour of the plaintiff/respondent No.1 declaring
her right, title and interest over the suit schedule property by
virtue of Ext.A1 settlement deed dated 26.06.1985 and declared
that cancellation deed (Ext.A2) dated 19.10.1993 and sale deed
(Ext.A3) dated 19.10.1993 both executed by defendant No.1
would not bind the plaintiff as far as her right, title and interest
over the suit schedule property is concerned - Correctness:
* Author
958
[2025] 3 S.C.R.
Supreme Court Reports
Held: Ext.A1 document dated 26.06.1985 was executed by
defendant No.1/father in favour of respondent No.1/plaintiff
(daughter) - It was categorically stated therein that the suit
schedule property belonged to defendant No.1/father and he
was in possession and enjoyment of the same with full rights -
The contents of the document would clearly reveal that there is
consideration, conveyance, imposition of conditions and reservation
of life interest by the executant, defendant No.1/father satisfying
the requirements to classify the document as a "settlement" - The
conditions to construct a house, to reside in the house, retention
of life interest, the right of mortgage up to a sum of Rs.2,000/- and
avail loan on that basis, cannot alter the gift, by which in unequivocal
terms, the property stood vested in the plaintiff by earlier part - The
condition, creating a life interest in favour of father and mother
and the restriction regarding mortgage, would further imply that
defendant No.1 had ceased to be the absolute owner - Defendant
No.1 has also enabled the plaintiff to construct the house from then
on and no outer time has been fixed for the construction of the
house - Since the life interest was reserved in favour of defendant
No.1 and his wife, defendant No.1 was only holding an ostensible
possession and ownership as contemplated u/s.41, while the true
owner being the plaintiff, after the clear conveyance by earlier
clause - In the instant case, the clear and unambiguous language
employed in the first part of Ext.A1 document dated 26.06.1985,
reveals a clear disposition by defendant No.1/father to the plaintiff,
by only retaining a life interest in the second part - Therefore,
the instrument of 1985 is a gift by settlement - Now, as far as
question that whether the gift was accepted and acted upon is
concerned, it is not in dispute that the plaintiff has registered the
instrument - Such registration by the plaintiff is possible only if the
document was handed over by defendant No.1 - The factum of
acceptance can be derived from the conduct of the parties - The
plaintiff, when the suit was filed, was in possession of the original
title deed - Even assuming that the original deed was returned
after registration, the fact that it was already acted upon, cannot
be altered - Once a gift has been acted upon, the same cannot be
unilaterally cancelled - The receipt of the original document by the
plaintiff and registration of the same, would amount to acceptance
of the gift and the transaction satisfies the requirement of Section
122 of the Transfer of Property Act, 1882 - Once the document is
categorized as a gift, in the absence of any clause or reservation
to cancel, the executant has no right to cancel the same - The
[2025] 3 S.C.R.
959
N.P. Saseendran v. N.P. Ponnamma & Ors.
reasons for cancellation or revocation of gift have to be proved in a
court of law - Therefore, the unilateral cancellation of the document
is void and as a natural corollary, the sale deed dated 19.10.1993
executed by defendant No.1/father also, is invalid - Furthermore,
the recitals in the document apparently demonstrate and satisfy
the requirement to classify the document as a "settlement" - The
Judgment of the High Court is confirmed. [Paras 15.1, 16, 18, 21]
Gift - Settlement - Interplay between Gift and Settlement:
Held: The primary difference between the Gift and the Settlement
is the existence of consideration in the settlement - Consideration
is nothing but the quid pro quo, that each party to a contract is to
perform or render a part of their obligation under the contract - In
view of the fact that a gift is a voluntary disposition, it is essentially
not an agreement and hence, the element of consideration is taken
away from it - Settlement on the other hand is always coupled with
consideration as it is mostly executed in favour of a family member -
The gift or settlement of an immovable property has to be registered
as per Section 17 of the Registration Act - The conditions regarding
acceptance, reservation of life interest and restriction on revocation
are applicable to both "gift and settlement" - The vesting of the
right also takes place in praesenti in both the cases - Therefore,
there is an element of gift in every settlement. [Para 11.3]
Gift - Will - Interplay between Gift and Will:
Held: A Will is the declaration of the intention of the testator to give
away his property - Such will comes into force after the death of
the testator - The most important requirement for a valid will is that
it must again be a voluntary disposition in sound mind, which must
be explicit from the instrument itself - Therefore, it can be concluded
that every will also has an element of gift, with the difference being
the disposition deferred until the death of the testator - Insofar as
the revocation is concerned, the testator is at liberty to revoke or
alter the will any number of times until his demise, but it is essential
that he remains of sound mind while doing so. [Para 11.4]
Gift - Will - Settlement - Interplay between Gift, Will and
Settlement:
Held: The element of voluntary disposition is common to all the
three deeds - The element of gift is traceable to both "settlement"
and "will" - As settled in law, the nomenclature of an instrument
960
[2025] 3 S.C.R.
Supreme Court Reports
is immaterial and the nature of the document is to be derived
from its contents - While so, a voluntary disposition can transfer
the interest in praesenti and in future, in the same document - In
such a case, the document would have the elements of both the
settlement and will - Such document, then has to be registered and
by operation of the doctrine of severability, becomes a composite
document and has to be treated as both, a settlement and will
and the respective rights will flow with regard to each disposition
from the same document - It is pertinent to mention here that the
reservation of life interest or any condition in the instrument, even
if it postpones the physical delivery of possession to the donee/
settlee, cannot be treated as a will, as the property had already
been vested with the donee/settlee. [Para 11.5]
Case Law Cited
Ramachandra Reddy (dead) through LRs and Others v. Ramulu
Ammal through LRs [2024] 11 SCR 2329 : 2024 SCC Online SC
3304; K. Balakrishnan v. K. Kamalam [2003] Supp. 6 SCR 1097 :
(2004) 1 SCC 581 : 2003 SCC OnLine SC 1428; Renikuntla
Rajamma v. K. Sarwanamma [2014] 8 SCR 890 : (2014) 9 SCC
445 : (2014) 5 SCC (Civ) 1 : 2014 SCC OnLine SC 565; Daulat
Singh v. State of Rajasthan [2020] 11 SCR 845 : (2021) 3 SCC
459 : (2021) 2 SCC (Civ) 197 : 2020 SCC OnLine SC 1004; Satya
Pal Anand v. State of M.P. [2016] 12 SCR 26 : (2016) 10 SCC 767 :
(2017) 1 SCC (Civ) 1 : 2016 SCC OnLine SC 1202; Navneet Lal
@ Rangi v. Gokul and Others [1976] 2 SCR 924 : (1976) 1 SCC
630; P.K.Mohan Ram v. B.N. Ananthachary and Others [2010] 3
SCR 401 : (2010) 4 SCC 161; Mathai Samuel v. Eapen Eapen
[2012] 10 SCR 1098 : (2012) 13 SCC 80; Mauleshwar Mani v.
Jagdish Prasad [2002] 1 SCR 423 : (2002) 2 SCC 468 : 2002
SCC OnLine SC 113; Sadaram Suryanarayana v. Kalla Surya
Kantham [2010] 12 SCR 808 : (2010) 13 SCC 147 : (2010) 4
SCC (Civ) 812 : 2010 SCC OnLine SC 1198; Madhuri Ghosh v.
Debobroto Dutta (2016) 10 SCC 805 : (2017) 1 SCC (Civ) 208 :
2016 SCC OnLine SC 1271 at page 809; Bharat Sher Singh
Kalsia v. State of Bihar [2024] 1 SCR 1165 : (2024) 4 SCC 318 :
2024 SCC OnLine SC 87 at page 327; Naramadaben Maganlal
Thakker v. Pranjivandas Maganlal Thakker & Ors [1996] Supp.
4 SCR 780 : (1997) 2 SCC 255; Khursida Begum (D) by Lrs v.
Mohammad Farooq (D) by Lrs [2016] 1 SCR 484 : C.A. No. 28452845/2006; Sarojini Amma v. Velayudha Pillai Sreekumar [2018]
13 SCR 554 : C.A. No 10785/2018 - relied on.
[2025] 3 S.C.R.
961
N.P. Saseendran v. N.P. Ponnamma & Ors.
Baby Ammal v. Rajan Asari [1996] Supp. 9 SCR 418 : (1997)
2 SCC 636; Reninkuntala Rajamma (Dead) v. K.Sarwanamma
[2014] 8 SCR 890 : (2014) 9 SCC 445; K. Balakrishnan v. K.
Kamalam and Others [2003] Supp. 5 SCR 1097 : (2004) 1 SCC
581; Sawarni v. Inder Kaur [1996] Supp. 5 SCR 165 : (1996) 6
SCC 223; P. Kishore Kumar v. Vittal K. Patkar [2023] 14 SCR
796 : Civil Appeal No. 7210 of 2011; Arunkumar & Another v.
Shriniwas & Another [2003] 3 SCR 453 : AIR 2003 SC 2528;
Bajrang Factory Ltd. & Another v. University of Calcutta & Others
[2007] 7 SCR 363 : Civil Appeal No. 3374/2006 - referred to.
Ramaswami Naidu and Another v. Gopalakrishna Naidu and Others,
AIR 1978 Madras 54 - referred to.
List of Acts
Transfer of Property Act, 1882; Indian Stamp Act, 1899; Kerala
Stamp Act, 1959; Registration Act, 1909; Specific Relief Act, 1963;
Indian Succession Act, 1925.
List of Keywords
Gift; Will; Settlement; Interplay between Gift, Will and Settlement;
Interplay between Gift and Will; Interplay between Gift and
Settlement; Settlement deed; Cancellation of deed; Absolute owner;
Testamentary document; Creation of life interest; Registration of
gift; Possession of document; Element of voluntary disposition;
Delivery of possession; Transfer of interest in praesenti; Gift by
settlement.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4312
of 2025
From the Judgment and Order dated 10.06.2019 of the High Court
of Kerala at Ernakulam in RSA No. 1338 of 2004
Appearances for Parties
Advs. for the Appellant:
V. Chitambaresh, Sr. Adv., Karthik S.D., C. Govind Venugopal.
Advs. for the Respondents:
P.V. Dinesh, Sr. Adv., Zulfiker Ali P. S, Ms. Anna Oommen.
962
[2025] 3 S.C.R.
Supreme Court Reports
Judgment / Order of the Supreme Court
Judgment
R. Mahadevan, J.
Leave granted.
2.
This appeal has been filed against the final judgment and decree
dated 10.06.2019 passed by the High Court of Kerala at Ernakulam1
in R.S.A. No.1338 of 2004, whereby the High Court allowed the said
Regular Second Appeal and set aside the concurrent findings of the
Courts below, besides granting a decree in favour of the plaintiff
/ Respondent No.1 declaring her right, title and interest over the
suit schedule property by virtue of Ext.A1 settlement deed dated
26.06.1985. The High Court also declared that cancellation deed (Ext.
A2) dated 19.10.1993 and sale deed (Ext.A3) dated 19.10.1993 both
executed by Defendant No.1 would not bind the plaintiff as far as her
right, title and interest over the suit schedule property is concerned.
3.
The Respondent No.1 was the plaintiff (daughter) in O.S.No.27 of
1994 filed before the Sub Court, Cherthala2 and the appellant was
Defendant No.2 (son) in the said suit. Alleging that the suit schedule
property was gifted by her father, who was Defendant No.1 in the
suit, vide registered deed dated 26.06.1985, the Respondent No.1/
plaintiff filed the said suit for declaration of right, title and interest
over the suit schedule property and also for a declaration that the
cancellation deed and sale deed dated 19.10.1993 executed by
the Defendant No.1 / father in favour of the appellant / Defendant
No.2 are null and void and for consequential injunction. During the
pendency of the suit, the Defendant No.1 / father died on 06.01.1995
and his legal heirs viz., Respondent Nos.2 and 3 herein were
impleaded as Defendant Nos.3 and 4 therein. The trial Court, after
due contest by the parties, accepted the defence put forth by the
appellant / Defendant No.2 that the deed executed in 1985 was
only a Will and not a gift, and dismissed the suit by judgment dated
28.05.2001. Challenging the same, the Respondent No.1 / plaintiff
1
Hereinafter referred to as "the High Court"
2
Hereinafter referred to as "the trial Court"
[2025] 3 S.C.R.
963
N.P. Saseendran v. N.P. Ponnamma & Ors.
preferred an appeal being A.S.No.109 of 2001 before the Additional
District Court, Fast Track Court No.II, Alappuzha3. The First Appellate
Court vide judgment dated 20.12.2003, affirmed the findings of the
trial Court and dismissed the appeal suit. Aggrieved by the same,
the Respondent No.1 / plaintiff preferred a Regular Second Appeal
being R.S.A. No. 1338 of 2004 before the High Court. By judgment
dated 10.06.2019, the High Court upset the concurrent findings of
the Courts below and granted a declaratory decree in favour of the
Respondent No.1 / plaintiff, by construing the document of 1985 as
a gift deed. Aggrieved by the judgment passed by the High Court,
the appellant / Defendant No.2 is before us with the present appeal.
4.
During the pendency of this appeal, the Respondent No.2 died and
her legal heirs were brought on record. Taking note of the same, the
name of Respondent No.2 was deleted from the array of parties, vide
order dated 24.11.2023 and cause title was accordingly, amended.
5.
The learned counsel for the appellant contended that the document
executed by the Defendant No.1 / father in 1985 was only a Will
and not a gift deed, since there was no immediate transfer of
ownership; possession of the suit schedule property was retained
by the Defendant No.1 / father and was never handed over to the
Respondent No.1 / plaintiff (daughter).
5.1. Adding further, it is submitted that the main test to find out
whether the document constitutes a Will or a gift is to see
whether the disposition of interest in the property is in praesenti
in favour of the settlee or whether the disposition is to take
effect on the death of the executant. If the disposition is to
take effect on the death of the executant, it would be a Will.
But, if the executant divests his interest in the property and
vests his interest in praesenti on the settlee, the document
will be a settlement [Refer: Ramaswami Naidu and another v.
Gopalakrishna Naidu and others4 as confirmed by this Court in
P.K.Mohan Ram v. B.N. Ananthachary and Others5]. In the instant
case, the Defendant No.1 / father never intended to transfer
the ownership of the suit schedule property while executing the
3
Hereinafter referred to as "the First Appellate Court"
4
AIR 1978 Madras 54
5
(2010) 4 SCC 161
964
[2025] 3 S.C.R.
Supreme Court Reports
document of 1985 and hence, the same can only be construed
as a Will and not a gift deed as claimed by the Respondent
No.1 / plaintiff and thus, he had the right to revoke his will and
consequently, convey the suit schedule property in favour of
the appellant / Defendant No.2 by way of a sale deed without
any impediment.
5.2. According to the learned counsel, it is borne out by the evidence
that the Defendant No.1 / father had sent a legal notice to the
Respondent No.1 / plaintiff (daughter) demanding / calling her
to return the Will executed on 26.06.1985, which clearly shows
that the Respondent No.1 / plaintiff (daughter) was holding the
Will against the wishes of the testator i.e., Defendant No.1/
father. Even assuming that the document in question was a
gift deed, the same was never accepted by the Respondent
No.1/ plaintiff during the lifetime of the Defendant No.1/ father
and therefore, the gift was not acted upon.
5.3. Referring to the decision of this Court in Baby Ammal v. Rajan
Asari6, it is submitted that going by the recitals in the document
of 1985, the Defendant No.1 / father had retained the title to
the enjoyment of the property during his lifetime as full owner
with all rights. That apart, the Respondent No.1 / plaintiff failed
to prove that she had accepted the alleged gift. On the other
hand, the appellant / Defendant No.2 took possession of the
suit schedule property, effected mutation and paid necessary
taxes, pursuant to the sale deed dated 19.10.1993 executed in
his favour and that he has been in possession and enjoyment
of the same since then. Taking note of all these factors, the trial
Court and the First Appellate Court had rightly dismissed the
suit filed by the Respondent No.1 / plaintiff. However, the High
Court set aside the concurrent judgments of the Courts below
and granted the declaratory decree in favour of the plaintiff,
by the judgment impugned herein, which has to be set aside,
as the same is contrary to law, facts of the case and evidence
on record.
6.
To begin with, the learned counsel for the Respondent No.1 / plaintiff
submitted that there is no substantial question of law involved
6
(1997) 2 SCC 636
[2025] 3 S.C.R.
965
N.P. Saseendran v. N.P. Ponnamma & Ors.
in this case. According to the learned counsel, the suit schedule
property belongs to the Respondent No.1 as per the gift deed dated
26.06.1985 bearing Document No.3148 of 1985 executed by
Defendant No.1 / father. It was stated in the said gift deed that the
right to take income was reserved in favour of the settlor (father)
and also during the lifetime of mother of Respondent No.1; and
that the settlor was having the right to mortgage the property upto
a sum of Rs.2,000/-, but possession of the property was transferred
to Respondent No.1. However, claiming that he continued to be
the owner of the property, Defendant No.1 / father on 19.10.1993,
executed a cancellation deed of the gift deed vide Document
No.4233 of 1993 as well as a sale deed bearing Document No.4234
of 1993 in favour of the appellant / Defendant No.2. The suit filed
by the Respondent No.1/ plaintiff came to be dismissed by the trial
Court as affirmed by the First Appellate Court. Yet, the High Court
correctly set aside the judgments of the Courts below and granted
the declaratory reliefs in favour of the Respondent No.1 / plaintiff.
6.1. Elaborating further, the learned counsel submitted that the
ownership of the existing property has been transferred
voluntarily to Respondent No.1 (donee) without any
consideration and the same was also accepted by Respondent
No.1 during the lifetime of Defendant No.1 by presenting the
deed for registration, vide Document No.3148 of 1985, on
the file of SRO, Cherthala and hence, all the requirements in
accordance with section 122 of the Transfer of Property Act
have been satisfied.
6.2. The learned counsel also submitted that the tone and tenor of
the document will clearly show that it was a gift deed, as the
recitals of the deed indicate that only limited rights were reserved
to the settlor i.e., right to take income during the lifetime of the
father and mother of Respondent No.1 and a provision, which
enabled the settlor to mortgage the property upto a sum of
Rs.2,000/-. Apart from the said two conditions, there was no
restriction placed on the absolute ownership and enjoyment
of the property by Respondent No.1. Therefore, upon valid
execution of the gift deed, the same was also duly presented
by the Respondent No.1 for registration, which itself amounts
to acceptance of gift.
966
[2025] 3 S.C.R.
Supreme Court Reports
6.3. Referring to the decision of this Court in Reninkuntala Rajamma
(Dead) v. K.Sarwanamma7, the learned counsel submitted that
transfer of possession of property is not necessary for the
acceptance of a valid gift deed.
6.4. The learned counsel further submitted that Ext.A1 deed
was accepted in 1985 and the same was acted upon by the
Respondent No.1. After the period of 7 years, the Defendant
No.1 / father executed a cancellation deed of the said gift deed
and a sale deed in respect of the subject property, without
any notice to the Respondent No.1. According to the learned
counsel, Ext.A1 is a gift deed and it cannot be unilaterally
revoked as per section 126 of the Transfer of Property Act. In
this regard, reliance was placed on the decision of this court
in K. Balakrishnan v. K. Kamalam and others8.
6.5. It is also submitted that the Respondent Nos.2 and 3 (Defendant
Nos.3 and 4 in the suit) supported the case of the Respondent
No.1 and they stated in their written statement that the
Defendant No.1 never had any right to cancel the document
and the appellant / Defendant No.2 had no right over the suit
schedule property.
6.6. Regarding the appellant's contention that after execution of the
sale deed, revenue record was mutated and he has been in
possession of the suit property since then, the learned counsel
submitted that mutation of the property in the revenue record
does not create or extinguish title nor has it any presumptive
value on title, and it only enables the person in whose favour
mutation is ordered to pay the land revenue in question. In this
regard, reference was made to the decision of this Court in
Sawarni v. Inder Kaur9 and P.Kishore Kumar v. Vittal K. Patkar10.
Therefore, such contention of the appellant is incorrect and
deserves to the rejected by this court.
6.7. Pointing out the above submissions, the learned counsel prayed
for dismissal of this appeal filed by the appellant / Defendant No.2.
7
(2014) 9 SCC 445
8
(2004) 1 SCC 581
9
(1996) 6 SCC 223
10
Civil Appeal No. 7210 of 2011
[2025] 3 S.C.R.
967
N.P. Saseendran v. N.P. Ponnamma & Ors.
7.
We have considered the rival submissions made by the learned
counsel and perused the materials available on record, more
particularly, Ext.A1 dated 26.06.1985.
8.
Primarily, the learned counsel for Respondent No.1 has contended
that there is no substantial question of law to entertain this appeal.
We do not agree with the same because the right to appeal under
Section 100 or 109 of the Code of Civil Procedure and Article 133
of the Constitution of India can basically be on the same premise of
existence of a substantial question of law and if the question raised
before us is not substantial, the High Court could not have interfered
with the concurrent findings without substantial question of law.
A substantial question of law is always of general importance. That
apart, we are invigorated with the authority under Article 142 of the
Constitution to do complete justice, though bridled with a responsibility
to be exercised in appropriate cases. Hence, we proceed to decide
the question of law raised in the facts of the present case.
9.
The relationship between the parties is not in dispute. Seemingly,
the father of the appellant originally executed a document in 1985
titled as "Dhananischayaadharam" in respect of the suit schedule
property, in favour of Respondent No.1 (daughter). Subsequently,
he cancelled the said document and executed a sale deed for
valid consideration on 19.10.1993 in favour of the appellant (son).
Claiming that the document of 1985 was a gift deed, Respondent
No.1 instituted a suit for declaration and consequential injunction.
Pending the suit, Defendant No.1/ father died on 06.01.1995; and
the suit was dismissed by the trial Court as affirmed by the First
Appellate Court by construing the document of 1985 as Will. But the
High Court set aside the concurrent judgments of the Courts below
and granted the declaratory reliefs to Respondent No.1, interpreting
the said document as settlement. Therefore, this appeal came to be
filed by the appellant before us.
10. The question to be decided herein is twin fold, whether the document
of the year 1985 is a gift or Settlement or Will? and whether the
requirements under law or conditions in the deed have been satisfied
to vest a legal right?
11. Before proceeding further, it is necessary to analyze the nature, scope
and provisions dealing with the above document in brief. Section
122 of the Transfer of Property Act, 1882 defines "Gift". Article 33
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of the Indian Stamp Act, 1899 and Article 31 of the Kerala Stamp
Act, 1959, defines "Gift" as an instrument of, not being settlement,
will or transfer. Therefore, a valid Gift, as defined would refer to an
instrument by which there is voluntary disposition of one's existing
property either movable or immovable, without consideration to
another, the acceptance of which should be made during the lifetime
of the donor, implying imminent vesting of the right upon acceptance.
Section 123 states, how a gift is to be made. It has two parts.
The earlier part deals with immovable property and the later, with
movable property. Insofar as an immovable property is concerned,
registration is mandatory, which is in tune with Section 17 of the
Registration Act. Whereas, it is not only mandatory to register a gift
of a movable property, it also can be effected by delivery. Section
126 states, as to when a gift can be suspended or revoked. This
section bars unilateral revocation. Section 127 enables the donor
to impose any condition in the deed, which has to be accepted for
the gift to take effect or in other words, the donee without accepting
the obligation, cannot be said to have accepted the gift. Section 128
deals with the liability of the donee for the debts of the donor to the
extent of the property comprised therein. A conspicuous reading of
the provisions would disclose that for a gift of an immovable property
to be valid, it has to be registered, universal cancellation of the gift
is impermissible and delivery of possession is not a condition sine
qua non to validate the gift.
11.1. Insofar as a settlement deed is concerned, Section 2(b) of
the Specific Relief Act, 1963, defines the same to be a nontestamentary instrument whereby, there is a disposition or an
agreement to dispose of any movable or immovable property to
a destination or devolution of successive interest. "Settlement"
under the Indian Stamp Act and the Kerala Stamp Act under
Section 2(q) refers to a non-testamentary disposition of any
movable or immovable property in writing, in consideration
of marriage or for the purpose of distributing the property of
the settlor among his family or to those to whom he desires
to provide or for the purpose of providing for some person
dependent on him or for any religious or charitable purpose and
includes an agreement in writing to make such a disposition.
However, insofar as immovable properties, the registration is
mandatory under Section 17 of the Registration Act. From the
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N.P. Saseendran v. N.P. Ponnamma & Ors.
above definitions, it can be discerned that a settlement would
mean a disposition of one's property to another directly or to
vest in any such person after successive devolution of rights
on other(s). Further, the circumstances and reasons that led to
the execution of such a settlement deed are described as its
consideration, which need not necessarily be of any monetary
value. More often than not, it consists of love, care, affection,
duty, moral obligation, or satisfaction, as such deed are typically
executed in favour of a family member. Also, a settlor is entitled
to reserve a life interest either upon himself or upon others
and impose any condition. The person in whose favour, a life
interest is created, is permitted to use and enjoy the income
arising out of such property during his life time, but has no
right of alienation as the property had already vested in the
settlee. The breach of any condition in the settlement, would
then render the settlement void. However, there are restrictions
under the Transfer of Property Act,1882 on the conditions
that can be imposed. Section 11 of the Transfer of Property
Act, 1882 states that when by virtue of a transfer, absolute
right and interest has been vested in a party, any condition
restricting or directing that the property must be enjoyed in
a particular manner would be void as it is repugnant to the
original grant. Similarly, any condition restraining or limiting
the transferee from enjoying the property is also void to that
extent. Though under both the situations, the conditions are
void, the interest vested already can be enjoyed absolutely
as per the will of the transferee.
11.2. Will is a testamentary document dealt under the Indian
Succession Act, 1925. Part VI of the Act deals with the
Testamentary Succession. We will consider only the relevant
provisions applicable to this case. Will is defined under
Section 2(h) as a legal declaration of the intention of the
testator to be given effect after his death. Such declaration
is with respect to his property and must be certain. As per
Section 59, every person of sound mind, not being a minor,
may dispose of his property by executing a Will. Section 61
states the circumstances under which a Will is void. Section
62 enables a person to revoke or alter a Will at any time
while he is competent to dispose of his property by will.
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Needless to say, since the Will comes into effect only after
his life time, he is at full liberty to revoke or alter his earlier
Will any number of times as long as he is in sound state of
mind and not hit by the circumstances enumerated under
Section 62. Section 63 deals with execution of the Will. As
per this section, a Will must be signed by the testator or
have his mark affixed by him, or by any other person in his
presence and under his direction. It must also be attested
by at least two witnesses in the presence of the testator,
either by actually witnessing the execution of the Will by the
testator or by receiving an acknowledgment from the testator
that he or a person authorized by him has signed or affixed
his mark. It is not necessary for the witnesses to attest at
the same time. Section 70 speaks about the revocation of
unprivileged will which can be revoked by marriage or by
execution of another will or codicil or by writing in some other
instrument clearly expressing his intention to revoke the will
or by destroying the will by burning or tearing or in some
other form by the testator or by his authorised person in his
presence with the intention to revoke the same. Chapter VI
of Part VI deals with construction of wills. The provisions
consider the various rules regarding the construction of wills
to determine the true intention of the testator and to ensure
that object of such testament is achieved. The rules prescribe
the remedy to deal with certain errors and circumstances like
misdescription, misnomer and the need for causes omisus.
They also lay down that the meaning is to be discerned from
the contents of the entire will and every attempt must be made
to give effect to every clause. Section 89 states that the later
clause will prevail in case of the two conflicting clauses of
gifts in the will, if they are irreconcilable.
Interplay between Gift and Settlement
11.3. As we have already seen, the primary difference between
the Gift and the Settlement is the existence of consideration
in the settlement. Consideration is nothing but the quid pro
quo, that each party to a contract is to perform or render a
part of their obligation under the contract. In view of the fact
that a gift is a voluntary disposition, it is essentially not an
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N.P. Saseendran v. N.P. Ponnamma & Ors.
agreement and hence, the element of consideration is taken
away from it. Settlement on the other hand is always coupled
with consideration as it is mostly executed in favour of a family
member. The gift or settlement of an immovable property
has to be registered as per Section 17 of the Registration
Act. The conditions regarding acceptance, reservation of life
interest and restriction on revocation are applicable to both
"gift and settlement". The vesting of the right also takes place
in praesenti in both the cases. Therefore, there is an element
of gift in every settlement. At this juncture, it will be useful to
refer to the recent judgment of this court in Ramachandra
Reddy (dead) through LRs and others v. Ramulu Ammal
through LRs11, in determining, what a "consideration" is or
can be, qua a "settlement deed" in the following paragraphs:
"15. Since the point which the High Court in its wisdom
found to be the determining factor qua the nature
of the deed is the element of consideration and its
adequateness, let us consider the same.
15.1 It shall be useful to refer to certain provisions
of the Indian Contract Act, 1872. The relevant part
of the interpretation clause thereof says -
"2...
(d) When, at the desire of the promisor, the
promisee or any other person has done or
abstained from doing, or does or abstains from
doing, or promises to do or to abstain from doing,
something, such act or abstinence or promise
is called a consideration for the promise;
(e) Every promise and every set of promises,
forming the consideration for each other, is an
agreement;
(f) Promises which form the consideration or part
of the consideration for each other are called
reciprocal promises;..."
11
2024 SCC Online SC 3304
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15.2 The discussion regarding the meaning of the
word 'consideration' made in CITv. Ahmedabad
Urban Development Authority,5 is relevant for our
purposes here:
"165. The term "consideration" however is broader.
The plain meaning is a monetary payment, for
something obtained, in the form of goods, or services.
In CCE v. Fiat India (P) Ltd. [CCE v. Fiat India (P)
Ltd., (2012) 9 SCC 332 : (2012) 12 SCR 975] this
Court explained the meaning of that term : (SCC pp.
360-61, paras 68-73)
"68. ... Consideration means something which
is of value in the eye of the law, moving from
the plaintiff, either of benefit to the plaintiff or
of detriment to the defendant. In other words, it
may consist either in some right, interest, profit
or benefit accruing to the one party, or some
forbearance, detriment, loss or responsibility,
given, suffered or undertaken by the other, as
observed in Currie v. Misa [Currie v. Misa, [L.R.]
10 Exch. 153].
69. Webster's Third New International Dictionary
(unabridged) defines, "consideration" thus:
'Something that is legally regarded as the
equivalent or return given or suffered by
one for the act or promise of another.'
70. In Vol. 17 of Corpus Juris Secundum (pp.
420-21 and 425) the import of "consideration"
has been described thus:
'Various definitions of the meaning of
"consideration" are to be found in the
textbooks and judicial opinions. A sufficient
one, as stated in Corpus Juris and which
has been quoted and cited with approval
is "a benefit to the party promising or a
loss or detriment to the party to whom the
promise is made...."
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N.P. Saseendran v. N.P. Ponnamma & Ors.
At common law every contract not under
seal requires a consideration to support it,
that is, as shown in the definition above,
some benefit to the promisor, or some
detriment to the promisee.'
71. In Salmond on Jurisprudence, the word
"consideration" has been explained in the
following words:
'A consideration in its widest sense is
the reason, motive or inducement, by
which a man is moved to bind himself
by an agreement. It is for nothing that he
consents to impose an obligation upon
himself, or to abandon or transfer a right.
It is in consideration of such and such a
fact that he agrees to bear new burdens
or to forego the benefits which the law
already allows him.'
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73. From a conspectus of decisions and
dictionary meaning, the inescapable conclusion
that follows is that "consideration" means a
reasonable equivalent or other valuable benefit
passed on by the promisor to the promisee or by
the transferor to the transferee. Similarly, when
the word "consideration" is qualified by the word
"sole", it makes consideration stronger so as to
make it sufficient and valuable having regard
to the facts, circumstances and necessities of
the case."
(Emphasis supplied)
15.3 Chidambara Iyer v. P.S. Renga Iyer which
cites similar authorities is also important for our
consideration.
15.4 What flows from the above-cited judgments as
also provisions of law, is that 'consideration' need
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not always be in monetary terms. It can be in other
forms as well. In the present case, it is seen that the
transfer of property in favour of Govindammal was
in recognition of the fact that she had been taking
care of the transferors and would continue to do so
while also using the same to carry out charitable
work. Although the deed stands reproduced supra,
for immediate recollection the relevant extract is once
again reproduced hereinbelow:
"...execute this Settlement deed that you are
the only daughter of Bagi Reddi and that we do
not have any wife or children or legal heirs and
you happened to be the daughter of our elder
brother Chenga Reddi and that since we do not
have any wife or children and you happened
to have looked after us very well till now and
that herein after you will look after our food and
shelter needs and in the belief that you would
do all the charitable work."
15.5 In that view of the matter, the High Court has erred
in taking such a constricted view of 'consideration',
especially taking note of the fact that this settlement
was between the members of a family."
Further, in both the cases, unilateral revocation is not permitted as
evident from Section 126 of the Transfer of Property Act, 1882. There
can be a clause permitting such revocation in the deed. Similarly,
the creation of a life interest would not affect the grant and change
the character of the document. Similarly, the delivery of possession
is not mandatory as in both cases. In case of a gift or settlement, it
is sufficient if the donee/settlee had accepted the same during the
life time of the executor of the document and such acceptance can
be either express or implied, but must be visible from the conduct
of the parties. Putting the donee/settlee into possession or handing
over the document to the recipient can also be recognised as
valid acceptance. The registration of the gift by the donee and the
possession of such document will also amount to valid acceptance.
At this point it will be useful to refer to the following judgements of
this court:
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N.P. Saseendran v. N.P. Ponnamma & Ors.
(i)
K. Balakrishnan v. K. Kamalam12
"10. We have critically examined the contents of the
gift deed. To us, it appears that the donor had very
clearly transferred to the donees ownership and title in
respect of her 1/8th share in properties. It was open to
the donor to transfer by gift title and ownership in the
property and at the same time reserve its possession
and enjoyment to herself during her lifetime. There
is no prohibition in law that ownership in a property
cannot be gifted without its possession and right of
enjoyment.