Can the deed of donation be canceled unilaterally by the donor after acceptance by the donee? Discussions with the Kerala High Court

The unique bench of Justice K. Babu dealt with an appeal in a suit for declaration of title. The applicant in the original case had claimed that the property in question was gifted to her by her mother, Kunhimatha. Both^sd the accused, grandson of Kunhimatha, claimed that the petitioner did not accept the gift. Therefore, the gift deed was canceled by Kunhimatha and later she transferred the same property to him.

The Court found that the gift had been accepted by the applicant. The Court examined whether a gift could be canceled after having been accepted by the donee.

Section 126 of the Transfer of Property Act deals with suspension or revocation of git. At the time of the donation, the donor and the donee may agree that upon the occurrence of a specific event, which does not depend on the wishes of the donor, the donation may be suspended or revoked. The gift can also be revoked in any case where a contract can be canceled, unless there is a need for consideration. A gift which the parties agree is revocable at the donor’s sole discretion will be invalid.

The Court relied on various decisions of the Supreme Court and the Kerala High Court. In Thota Ganga Laxmi against Andhra Pradesh government (2010), the Supreme Court dealt with the legality of a deed of cancellation by which a deed of sale was cancelled. The deed of cancellation has been registered. The Court held that such a deed of annulment cannot be registered or executed. The Court stated that the only remedy a person has to set aside a deed of sale is to file a civil action.

In Suresh Babu SR and others against Beena and another (2022), the Kerala High Court held that unless there is a right of revocation in the deed itself, any unilateral cancellation of the gift deed is legally untenable.

The High Court of EA Pavithran and others versus Erayi Arakkalath and others (2023) held that unilateral cancellation of a complete gift deed is not legally permissible and such cancellation is void. The only exceptions in the provisions are when the donor or donee accepts that the deed of donation may be canceled upon the occurrence of a specific event, or in any case where a contract could be terminated (except for lack of consideration) .

The Court declared that the applicant had a right to the property concerned.

Counsel for the appellants: Advocate R. Parthasarathy

Counsel for the respondents: Advocates MA Bindu, VR Kesava Kaimal, S. Venkatasubramonia Iyer

Case no: RSA no 421/2003

Case Title: Kakkoth Radha and others v Bathakkathalakkal Batlak Musthafa and others

Citation: 2024 LiveLaw(Ker) 375

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