Oral Gift Of Immovable Property Invalid; Title Cannot Pass Without Registered Instrument Under Section 123 TPA: Delhi High Court

Rejecting a plea that a deceased property owner had orally gifted portions of a residential property to his son, the Court held that such a gift was legally untenable and consequently passed a preliminary decree declaring the plaintiff entitled to a 5/6th share in the suit property.

The Court was hearing a partition suit instituted in respect of a residential property situated at Model Town-III, Delhi. The plaintiff claimed that after the death of his father, and subsequent execution of relinquishment deeds by his sisters, he became entitled to a 5/6th share in the property.

The legal representatives of the plaintiff's deceased brother resisted the suit by alleging an oral partition and claiming that their predecessor had received portions of the property by way of gift from the father.

A Bench of Justice Vikas Mahajan observed: “a gift of immovable property can be effected only in writing by way of a registered document. A bare perusal of Section 123 of the Transfer of Property Act, 1882 makes it evident that a gift of immovable property cannot pass any title to the donee if it is not registered and signed by or on behalf of the donor, as well as attested by at least two witnesses, which means that no oral gift could be made.”

Advocate Jai Sahai Endlaw appeared for the plaintiff, while Advocate Mannu Dayma appeared for the defendant.

Background

The suit concerned a three-storey residential property situated at Model Town-III, Delhi, which had originally belonged to the plaintiff's deceased father. According to the plaintiff, after the demise of his parents, the property devolved upon the surviving children, each inheriting an equal share in accordance with the law of succession.

The plaintiff pleaded that four of his sisters subsequently executed registered relinquishment deeds relinquishing their respective shares in his favour. On the strength of the said relinquishment deeds, he claimed entitlement to a 5/6th share in the suit property and sought partition, injunction and other consequential reliefs.

The contesting defendants, being the legal representatives of the plaintiff's deceased brother, opposed the suit. They asserted that the property had been orally partitioned nearly three decades earlier and further claimed that portions of the property had been gifted by the deceased owner to his sons. They also pleaded that the sisters had agreed to relinquish part of their shares in favour of their predecessor-in-interest, though no relinquishment deed was ultimately executed in his favour.

Court's Observations

The Court first examined the plea of oral partition raised by the contesting defendants. It noted that the burden of proving the alleged partition rested entirely upon them. Upon evaluating the evidence on record, the Court found that the defendants had failed to produce any reliable evidence establishing that the suit property had ever been orally partitioned.

The Court observed that the testimony led in support of the plea was either hearsay in nature or unsupported by any documentary material and therefore insufficient to discharge the burden cast upon the defendants.

The Bench further found that the documentary material relied upon by the defendants did not support the theory of partition. The records produced before the Court continued to reflect the property in the name of the deceased owner and did not indicate any prior division of the property amongst family members.

The Court observed that apart from self-serving assertions, there was no evidence demonstrating that the alleged oral partition had ever been acted upon or recognised.

The Court also found the defendants' own case to be internally inconsistent. While asserting that the property had already been partitioned between the two sons of the deceased owner, the defendants simultaneously acknowledged the rights of the daughters in the property and relied upon arrangements allegedly contemplated with respect to their shares.

According to the Court, this stand itself undermined the plea that the property had already stood exclusively divided between the two brothers.

While dealing with the plea that the deceased owner had gifted portions of the property to one of his sons, the Court held that such a defence was legally untenable. Referring to Section 123 of the Transfer of Property Act, 1882, the Bench observed that transfer of immovable property by way of gift can only be effected through a duly registered instrument executed by the donor and attested by witnesses. Since no such document existed in the present case, the Court held that the alleged oral gift could not confer any right, title or interest in the property.

In support of this conclusion, the Court relied upon the decision of the Supreme Court in Gomtibai v. Mattulal (1996), wherein it was held that a gift of immovable property is not complete unless it is effected through a registered instrument and accepted by the donee.

Referring to the judgment, the Court reproduced the Supreme Court's observation that “in the absence of any registered instrument of gift and acceptance thereof by the donee, the said property could not be said to have been legally transferred.”

The Bench also relied upon R.N. Dawar v. Ganga Ram Saran Dhama (1992), wherein the Delhi High Court had held that “Any oral gift of immoveable property cannot be made in view of the provisions of Section 123 of the Transfer of Property Act.” The Court reiterated that mere possession, in the absence of a valid registered instrument, cannot confer title in immovable property.

Having rejected the pleas of oral partition and oral gift, the Court proceeded to determine the shares of the parties. The Bench found that the deceased owner had died intestate and that no testamentary disposition had been set up by any party.

The Court further noted that the registered relinquishment deeds relied upon by the plaintiff stood duly proved and remained unchallenged. Consequently, the plaintiff was held entitled to a 5/6th share in the suit property, while the contesting defendants collectively retained a 1/6th share.

The Court also declined to entertain the defendants' attempt to recast their case as one of family settlement during final arguments. The Bench observed that no such plea had been raised in the pleadings, no issue had been framed on that basis, and no evidence had been led to establish the existence of any family settlement. The Court therefore held that reliance upon Kale v. Deputy Director of Consolidation (1976) was misplaced.

Conclusion

The Delhi High Court held that the defendants had failed to prove either the alleged oral partition or the plea of oral gift. The Court consequently passed a preliminary decree declaring that the plaintiff held a 5/6th share in the suit property, while Defendant Nos. 1 to 6 collectively held a 1/6th share.

The Court also granted a decree of permanent injunction and appointed a Local Commissioner to examine whether the property could be partitioned by metes and bounds.

Cause Title: Anil Kumar Gupta v. Laxmi Devi & Ors (Neutral Citation:2026:DHC:5108)

Appearances

Plaintiff: Jai Sahai Endlaw and Shambhavi Kala, Advocates

Defendants: Mannu Dayma, Pranav Bhatt and Anukool Chawla, Anand Varma and Apoorva Pandey, Advocates

Click here to read/download Judgment