Tila Bewa v Mana Bewa (1962)

Section 126 allows a gift to be suspended or revoked on an agreed contingency, and expressly says that a gift cannot be revoked for want or failure of consideration. The recurring examination problem is the gift made to a relative coupled with a direction to maintain the donor, where the donee then fails to do so. Tila Bewa is the leading Indian authority on that problem, and its answer is memorable: such a direction is ordinarily a pious wish, not a condition, and the gift cannot be revoked for its breach.

It also gives the drafting rule that decides the harder cases: where in the deed the direction sits relative to the operative clause.

On 10 May 1951 the defendant, a mother-in-law, gifted the suit lands to the plaintiff, her daughter-in-law, by a registered deed of gift. The plaintiff remained in possession until 1953, living with her husband Natabar, who died that year. She lived with her mother-in-law until 1954, then, being neglected, went to her father's house and applied for mutation.

On 31 May 1954 the mother-in-law executed a deed of cancellation of the gift. On 19 September 1954 the daughter-in-law sued for declaration of title and possession.

The defence was that the gift had been made during the marriage negotiations to induce the plaintiff to come and live with her son; that it was conditional on the plaintiff maintaining the defendant; that the plaintiff had failed to do so; and that the plaintiff, having remarried, could not take.

The lower appellate court found the gift genuine, free of fraud, coercion, undue influence, mistake or misrepresentation, and acted upon, with no clause for revocation; but it decreed title to the plaintiff subject to the mother-in-law remaining in possession till her death. Both sides appealed.

Can a gift subject to a direction that the donee shall maintain the donor be revoked under s. 126 when the donee fails to maintain?

No. The gift was an out-and-out gift; the directions were pious wishes; the deed of cancellation was ineffective. The appeal was partly allowed, the condition of the donor's life possession was set aside, and the plaintiff was declared entitled to immediate possession. The cross-appeal alleging undue influence was dismissed.

1. Completion of the gift. The document being registered and attested as s. 123 requires, the gift was complete; and under s. 122 "a gift is complete when it is accepted by or on behalf of the donee". Here it had been accepted by the plaintiff through her husband, then alive.

2. What s. 126 requires. A gift can be suspended or revoked only where there is an agreement between donor and donee that on the happening of a specified event which does not depend on the will of the donor it shall be suspended or revoked. The Court states the settled position in one long sentence, which is the heart of the case:

"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"

and further, that failure to maintain "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".

The donor's remedy is not self-help: "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."

3. The donor staying on does not defeat the gift. Where a gift is accepted, "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"; and "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".

4. The pious wish rule, and the placement test. "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 deed effects an absolute transfer, such a direction "shall be regarded only as an expression of pious wish on the part of the donor". Directions to render service and to meet funeral expenses "are only pious wishes and do not give any right to the donor to revoke the gift if the conditions are not observed".

Then comes the rule of construction to memorise:

"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."

5. Applied to the deed. The operative portion made the plaintiff full owner in possession from the date of the deed; only afterwards did the donor express her wish that the plaintiff would render services and maintenance and perform her funeral rites. The deed then declared that the donor and her heirs would have no right in the lands. The only real condition was a restraint on alienation by sale or mortgage without the husband's consent and during the donor's lifetime. Reading the document as a whole, 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."

6. A defeasance clause is indispensable. Distinguishing the Allahabad decision in Balbhadar Singh v Lakshmi Bai, the Court laid down: "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."

7. The real motive was fatal to the defence. The cancellation had in fact been executed "in apprehension that the plaintiff might waste the properly by transfer"; it was not even the donor's case that she had revoked for failure of Sebadharma. (read property)

1. A gift complete under ss. 122 and 123 is irrevocable except in the two ways s. 126 allows: by an agreed contingency not depending on the donor's will, or as a contract voidable at the donor's option; and it can never be revoked for want or failure of consideration. 2. A direction that the donee shall maintain the donor, coming after an out-and-out transfer, is a pious wish and not a condition. If the object of providing maintenance is stated before the operative clause, the gift is subject to that liability. 3. Revocation requires a defeasance or default clause in the deed; without one the donor must sue, and cannot cancel unilaterally. 4. The donor's continued residence, where no right is reserved to her, does not show that the gift never took effect.