Gifting Property Without Possession

Question: My father gifted property to me, and my brothers are in possession of some part of it — how do I get that possession back?

Answer: For this I would like to describe a case that went all the way to the Supreme Court. A man gifted a house to his son. It was first an oral gift, then a memorandum of gift, then the memorandum of gift was registered, and then its mutation was passed. After the father's death, the son to whom the gift had been made filed a claim that this house has been gifted to me, and my brothers also live in this house, so possession should be handed over to me, and they should also pay rent. The civil court dismissed that claim; the appellate court granted a decree; and the High Court dismissed it.

They went to the Supreme Court. The grounds on which leave to appeal was granted, in legal language, were that yes, this case would be heard — it was on the point of whether a gift can be made without possession, and that this gift deed was made to deprive [others] of their right of inheritance. These were the two points on which leave was granted. It is important to understand what an oral gift, a memorandum of gift, a declaration of gift, and, after that, a registered gift deed actually are. An oral gift is this: A gifted a house to B, and also gave him its possession. Now this oral gift happened today; two months later, the one who made the gift said, I do not know how long I will live, so let's put it in writing — then they write a memorandum of gift stating that two months ago, in the presence of witnesses, I offered to gift this house, and he accepted that offer, as a result of which I handed over possession of the house on that very day. This becomes the memorandum of gift. Now this same memorandum of gift is then got registered; once registered, this gift's mutation takes place. Making the offer, accepting the offer, and as a result of the acceptance of that offer, obtaining possession. Now, the case that was filed before the trial court — the one to whom the gift had been made filed a claim that this property was gifted to me by my father, and now my brothers are not returning possession to me, so possession should be recovered for me from them.

It is worth noting that when he filed this case, the brothers, when they came to court, stated in their written statement in reply to the claim that this gift deed was made to deprive [him] of his right of inheritance, that it has no legal standing, that this gift deed is bogus, is based on fraud, and was created through forgery — pay close attention to both of these points, listen carefully. Now in this case, the courts fixed one thing in their minds: that this gift was without possession — constructive possession, express possession, actual possession — he did not get it, because the other brothers were in possession there. Now the trial court, taking this very point as its basis, dismissed the claim for recovery of possession. They went to the appellate court, and the appellate court declared that order [of dismissal] void and decreed the claim — yes, he should get possession. The High Court upheld the trial court and said that the trial court was correct, that there was no possession in this, and a gift cannot happen without possession. Now what clearly emerged in all three courts was that a gift cannot happen without possession. In the language of the law, all courts up to the Supreme Court accept this — there is no other opinion on this.

Now the thing to understand is that when this matter went up to the Supreme Court, the Supreme Court read, moment by moment, both this plaint along with it, and read the written statement in reply in depth, and laid down a rule: that you cannot go beyond the plaint and the written statement.

The Supreme Court looked at this closely. After looking at it, the Supreme Court said that whatever case a person builds in the plaint, they cannot later take that case in any other direction. Similarly, in this case, whatever case, whatever position, has been established in the written statement in reply — to refute the plaintiff's claim — one cannot go beyond that position. When one cannot go beyond that position, both parties are bound by what they have written, bound to prove what they have written — so if someone never even touched a particular foundation, they cannot make that foundation the basis of their case.

What happened in this case was that when the Supreme Court read the written statement in reply and the plaint, the defendants had never taken that stance in their written statement in reply — they had never laid that foundation, had never adopted that position — that, sir, possession is with us, what kind of gift is this in which there is no possession at all — this was never their foundation. The Supreme Court said that the lower courts decided on the basis of this position, that a gift cannot happen without possession, but the lower courts never noticed that this position was not even the defendant's — the defendant never even spoke of possession anywhere; the defendant is saying that this gift deed that was made is the result of forgery, the defendant is not saying that this gift deed is the result of forgery which is supported by the fact that possession is with us — that was never said anywhere.

On this basis, the Supreme Court said that what the lower courts, the subordinate courts, held — that there is no gift without possession — is absolutely correct as a matter of law, but it is not correct as applied to the facts of this case, because in the facts of this case, non-delivery of possession was never even a ground, and they could not prove that this gift deed was made through fraud and forgery — on what basis had the deceased, during his lifetime, made that gift? That gift deed had gone to court, and in court the deceased had acknowledged: yes, I have gifted this property to this son of mine, it has been fully gifted, and possession has also passed.

I made the offer, he accepted it, and possession also passed to him. They neither challenged that order nor challenged that decision — that this decision is only now coming to our knowledge, that this too is the result of collusion, that he took the father and misled him — nor did they challenge possession, the key element being possession, and possession is with us. So in this whole chain of reasoning, the Supreme Court said that the gift took place, that gift was valid, that gift was entirely correct, and as a result of it, these brothers should vacate this house and hand over possession to the one to whom the gift was made.

Keeping all these things in mind, in any future matters, whether your right is being taken away or you want to take away someone else's right, keep these points in mind, and if you do the things that were not done in this case, matters will go in your favour.