KHUSHAL CHAND SWARUP CHAND ZABAK JAIN versus SURESH CHANDRA KANHIYALAL KOCHAR AND ANR.

Citation: [1994] SUPP. 4 S.C.R. 218 · Decided: 04-10-1994 · Supreme Court of India · Bench: K. RAMASWAMY, S.C. AGRAWAL, N. VENKATACHALA · Disposal: Dismissed
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Judgment (excerpt)

A 
KHUSHAL CHAND SWARUP CHAND ZABAJ< JAIN 
B 
v. 
SURESH CHANDRA KANHIYALAL KOCHAR AND ANR. 
OCTOBER 4, 1994 
(K. RAMASWAMY, S. C. AGRAWAL AND 
N. VENKATACHALA, JJ.) 
Transfer of Property Act, 1882-Section 123-Gift Deed-Registered 
document-Execution admittecf-Due execution presumed-Beneficial enjoy-
C ment of property retained by donor for her life time-Valid Gift-Will executed 
subsequently bequeathing property already gifted over is inconsequential. 
One R executed a gift deed dated June 20, 1957 in favour of respon-
dent. Donor died in year 1966. About five months prior to her death she 
executed a registered Will dated 27th December, 1965 in favour of the 
D appellant bequeathing the self-shared property gifted over to the first 
respondent under the Gift Deed. The appellant filed a suit for declaration 
that he was the owner of the property. The suit was decreed. Appeal filed 
against the judgment was allowed by the High Court holding that the gift 
deed was duly executed by the donor in favour of the respondent and, 
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F 
G 
therefore, the appellant does not get any right under the Will. In the appeal 
by special leave filed against the judgment of the High Court, the appellant 
sought to contend that the gift deed has not been duly proved as the donor 
remained in the possession and enjoyment of the property as the owner 
and therefore, it must be treated to be a Will. Since she had execnted 
another Will dated 27th December, 1965, it must be deemed that the earlier 
Will stood revoked. 
Dismissing the appeal, this Court 
HELD : 1. It is seen from the pleadings that the execution of the 
document has not been denied. On the other band the recitals in the Will 
executed by the donor establish that she admitted the execution. Once the 
execution of the document has been specifically admitted, the due execu-
tion under the Registration Act is presumed to have been done as the gift 
is admittedly a registered document. Obviously the beneficial enjoyment 
of the property has been retained by her for her life time. Under these 
H circumstances Rajabai having divested of her title of the property after 
218 
K.C.S.C. ZABAKJAIN v. S.K. KOCHAR 
219 
due execution and registration of the gift deed, she has been divested of A 
her right and interest except her beneficial right to enjoyment of the 
property during her life time. Therefore, the Will execnted by her in favour 
of the appellant is a document which does not confer any right in the 
bequeathed properties on the appellant and is inconsequential. 
[221 ·A, B, D, E) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5028 of 
1990. 
From the Judgment and Order dated 14.3.88 of the Bombay High 
Court in L.P.A. No. 60 of 1984. 
V.A. Bobde, S. L. Mudaliar and Alamjit S. Nand for the Appellant. 
A.M. Khanwilkar for the Respondents. 
The following Order of the Court was delivered: 
The unsuccessful plaintiff is the appellant before us. One Raja Bai 
had executed a gift deed dated June 20, 1957 in favour of respodent No.1 
Sureshchandra Kanhaiyalal Kochar. She died on 21 May, 1966. About five 
months prior to her death she executed a registered Will dated 27th 
December, 1965 in favour of the appellant bequeathing the self-shared 
property gifted over to the first respondent under the Gift Deed dated June 
20, 1957. Initially the appellant filed the suit against the tenants claiming 
possession thereof but when they pleaded the gifting over in favour of 
Sureshchandra, the appellant impleaded him as a third respondent who 
had pleaded in the written statement that Raja Bai had bequeathed the 
property to him under the gift Deed dated June 20, 1957. Thereafter the 
appellant has amended the plaint and sought for a declaration that he is 
the owner of the property. The trial court decreed the suit. In First Appeal 
No. 174 of 1974 and Letters Patent Appeal No., 60 of 1984 the learned 
Single Judge of the High Court and the Division J;!ench had held that the 
B 
c 
D 
E 
F 
gift deed was dnly executed by Rajabai in favour of Sureshchandra and, 
therefore, the appellant does not get any right under the Will. Accordingly G 
they dismissed the suit. Thus, this appeal by special leave. 
Shri Bobde, learned senior counsel for the appellant, sought to 
contend that the gift deed has not been duly proved. He also contended 
that the donor had not parted with the possession of the prope1ty covered 
by the gift deed. On the other hand evidence on record shows that she H 
220 
SUPRE
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