intention to gift transfer of gift

Supreme Court: In a case wherein an appeal was filed to ascertain that whether the transaction of transfer of gift of shares and delivery by the appellant’s father-in-law was completed before his death, the three-judges bench of Mehr Chand Mahajan, Chandrasekhara Aiyar and Vivian Bose*, JJ., did not believe the appellant’s version that the said deed was handed over to him immediately on the day of execution and opined that despite intention of the appellant’s father-in-law to gift away the said shares to the appellant was apparent, the fact remained that transfer was not completed, so the appellant got no title, thus dismissed the appeal.


In the instance case, the appellant’s father-in-law, Haralal purchased a number of shares from time to time. All the share scrips were in his name and were deposited in the Calcutta Branch of Chartered Bank of India, Australia and China.

Thereafter, In July 1938, Haralal’s illegitimate daughter got married to the appellant. Further, on 15-1-1939, Haralal gifted his mistress, Promoda Bala, the house in which they were all residing. Thus, Haralal disposed of all the property except the shares that were in dispute in the present case.

Sometime before his death, Haralal signed eleven share transfer deeds. The appellant had claims under those transfer deeds. The question for the Court was to decide whether the transaction was ever completed.

The appellant’s story regarding the execution of the transfer deed was that Haralal called him on 13-1-1939 at around 8.30 am and had number of printed forms for the transfer of shares with usual blanks. In the presence of the appellant, Haralal filled the two of the several blanks in each form. The blanks were related to the number of shares to which the form related and the serial number of the shares. After, Haralal filled the blanks he asked the appellant to fill his name, address, company’s name and date. The appellant further admitted that the words describing the amount of the consideration were also filled by the appellant, but he could not remember whether that was done at that time or later. Thereafter, the appellant went away.

Meanwhile, Haralal was said to have filled the names of the respective companies, his own name as the transferor and subsequently signed. The two attesting witnesses were also said to have signed. Thereafter, the appellant returned and saw that all the remaining blanks were filled and signed by Haralal and the witnesses. Afterwards, Haralal asked the appellant to sign as a buyer and accordingly he did sign. However, no stamps were affixed at that time and the appellant said he did not know who purchased or affixed them.

Analysis, Law and Decision

On considering the issue that whether the documents were genuine or not, the Supreme Court concurred with the Calcutta High Court that the signatures were genuine.

Further, the Supreme Court observed that the appellant’s story regarding the execution of the transfer deed was disbelieved by both the courts below and opined that even if this Court were to depart from usual rule regarding reassessment of the evidence, this Court would have been unable to reach any different conclusion.

The Supreme Court opined that there were only two witnesses, the appellant and one of two attesting witnesses, Satish Chandra Seal and their story did not sound likely. There were certain improbabilities in their stories which had not been explained.

The Supreme Court opined that why the transferee’s name and date were left for another person to fill and why no attempt was made to register the transfers in the company’s book till after Haralal’s death. The Supreme Court further opined that at that time Haralal was in good health and did not fall ill till two-and-a-half months later and did not die till 13-5-1939. The Supreme Court opined that one would have thought that after the onset of his illness, and his previous two serious illness, he would have at least sent a letter to the companies or the appellant himself would have taken action while Haralal was still alive.

The Supreme Court stated that this Court had little doubt that Haralal intended to gift the shares either to his daughter or to the appellant. It might be that he was hesitant or he did not want to part with them till his end approached, otherwise he would have nothing left or might be that he wanted something more to secure for his daughter. The Supreme Court opined that one could speculate indefinitely but the fact remained that Haralal did not complete the transfer, so the appellant got no title.

Accordingly, the Supreme Court dismissed the appeal and opined that each party should bear its own cost throughout because the respondents had persisted in a case found false by the Calcutta High Court and also called two witnesses who cast scandalous and unnecessary cruel aspersions on Promoda Bala’s character.

[Sachindra Nath Sett v. Naba Kumar Mallick, (1952) 1 SCC 445, decided on 10-4-1952]

Note: Transfer of Property Act, 1882

Section 122 of the Transfer of Property Act, 1882 defines a gift as a voluntary transfer of movable or immovable property made without consideration, by the donor to the donee and accepted by or on behalf of the done. This section further states that such acceptance of gift must be made during the lifetime of donor and while he was still capable of giving. If the done dies before the acceptance of the gift, the gift is void. Further, Section 123 of the Transfer of Property Act, 1882 outlines the requirements necessary for completion of a gift. The section states that for making gift of the immoveable property, the transfer must be affected by a registered instrument signed by or on behalf of donor and attested by at least two witnesses. Further, for moveable property, the transfer may be affected by a signed registered instrument or by delivery.

*Judgment authored by- Justice Vivian Bose

Advocates who appeared in this case :

For the Appellant: Apurbadhan Mukherjee, Senior Advocate (Sachindra Nath Das Gupta, Advocate)

For the Respondents: Panchanan Ghose, Senior Advocate (Shambu Nath Bannerjee, Advocate)

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