Source: Supreme Court 

Why in News? 

A bench of Justice Sudhanshu Dhulia and Justice PB Varale held that although Section 127 of TPA permits onerous transfer, a gift which is occasioned on perpetual rendering of services is violative of the Constitution.                     

• The Supreme Court held this in the case of Smt. Naresh Kumari & Others v. Smt. Chameli & Others. 

What was the Background of Smt. Naresh Kumari & Others v. Smt. Chameli & Others Case?  

• A land measuring 38 Bighas 8 Biswas was gifted by a donor to donee in 1953. 
• The oral gift was duly executed and mutation carried out in favor of the donees. 
• A suit was filed in 1998, after 45 years, for declaration and for possession or for resumption of property. 
• The case of the plaintiffs was that they were heirs to the donor, and they have asserted that the defendants have stopped rendering services and since the original donees have died the suit land should revert to the plaintiffs in terms of the gift condition. 
• The Trial Court held that since the services have been stopped the land is liable to be reverted to the plaintiffs. 
• The First Appellate Court agreed with the findings of the Trial Court. 
• The High Court allowed the defendant’s second appeal and held that it is nowhere provided in the mutation that the donees will have to serve the heirs of the donor. 
• Further, it was also held that the plaintiffs have failed to disclose what these “services” were and when they exactly stopped. 
•  Thus, the matter was before the Supreme Court 

What were the Court’s Observations?  

• Context in which the Transfer took Place: 
  • It was observed that the aforementioned transfer took place in December 1953 which was the period immediately after our independence when each State in the country had framed or was in the process of framing laws on land reforms with a focus on redistribution of land. 
  • It was thus clear to the land owners that they would not be able to hold land beyond a particular ceiling limit. 
  • The land owners therefore gifted the land to helpers or priest in whatever manner they thought would be in their best interest. 
  • The Court held that it is very important to view this transfer in the context in which it has been given and the entire accumulating circumstances including the fact that the possession of the property was transferred the same day.
• Applicability of Transfer of Property Act, 1882 (TPA): 
  • It is to be observed that the transfer in this took place in 1953 in the present-day Haryana. 
  • Even though the Transfer of Property Act, 1882 (TPA) was not applicable at that time in the State of Haryana what definitely would be applicable are the provisions of TPA which are based on the principles of equity, justice and good conscience. 
  • The above has been held by the Court in the case of Shivshankara v. H.P. Vedavyasa Char (2023).
• Validity of the Gift Deed: 
  • It was admitted that the possession was transferred on the date the gift was entered into. 
  • This transfer of the possession has a very strong bearing in the present facts. 
  • The Court made a very important observation with respect to onerous gift or gifts that have conditions attached: 
    • 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.  
    • The Court held that when the gift deed was executed the Constitution of India, 1950 (COI) had already come into existence and the above gift deed violates Article 14, Article 21 and Article 23 of the COI. 
• It was finally held by the Court that the gift deed cannot be said to be void as the validity of the gift deed was not challenged by either the plaintiffs or the defendants. 
• The Court hence concluded that the plaintiff has no case in the present facts and the order of the High Court was not interfered with by the Supreme Court.

What is Gift under TPA?

• Section 122 to Section 129 contained in Chapter VII of Transfer of Property Act, 1882 deals with gifts. 
• A gift is considered a gratuitous transfer as an existing property is transferred in favour of another person without consideration. 
  • A gift between living persons is intervivos (between the living) gift and it is a transfer of property within the meaning of Section 5 of this Act. 
• The following gifts do not come within the purview of this Act: 
  • Testamentary gift that is a gift by operation of law. 
  • A gift made in apprehension of death. 
• A gift is defined in Section 122 of the Act, which reads as follows: 
  • A 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.

What are Onerous Gifts under TPA?

• A gift is said to be onerous when it is accompanied by a burden or obligation. 
  • This section is based on the maxim ‘qui sentit commodum sentire debetet onus’ which means that he who receives advantage must also bear the burden. 
• Section 127 of this Act deals with the concept of Onerous Gifts. It states that: 
  • 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 accept a property which, 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.

What are the Provisions in the Constitution Relating to Forced Labour ? 

• Article 23 and Article 24 are a part of Right against Exploitation under Part III of the COI. 
• Article 23 lays down about prohibition of traffic in human beings and forced labor. 
• Clause (1) lays down : 
  • Traffic in human beings and begar and other similar forms of forced labor are prohibited. 
  • Any contravention of this provisions shall be an offence and punishable in accordance with law.   
• Clause (2) lays down an exception and lays down that: 
  • Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.