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Synopsis

The Supreme Court has said that although Section 127 of Transfer of Property Act 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.

A bench of Justices Sudhanshu Dhulia and Prasanna B Varale dismissed an appeal against the Punjab and Haryana High Court's judgment which set aside concurrent findings of the courts below which had decreed the suit concerning the gift of 38 bighas 8 biswas of land situated in Jhajjar of Haryana made in 1953.

The admitted case of the plaintiffs was that the land was given in gift to the defendants (their predecessors-in-interest), in the year 1953. But since the condition in the gift was that the defendants would continue to render services and since they were not providing the services anymore, the land should resume the ownership of the plaintiffs.

The plaintiffs i.e., appellants before the court asserted that their forefathers, predecessors-in-interest had donated the land not only for past services but also for future services. The suit was filed in 1998, 45 years after the gift.

The bench noted that though the TPA did not apply to Punjab but, as also held by it in various cases, the broad principles in TPA based on equity, justice and good conscience, would be applicable.

"Now all conditions for a valid gift deed were in existence when it was made on 13.12.1953. The subject matter of transfer was an immovable property (land), and it was without any consideration. There was also an acceptance of this gift deed by the donees, when the donor was alive, as possession of this land was given the very same day to the donees and this undisputed fact is on record," the bench noted.

Examining the conditions of the gift, the court said, this so-called rendering of “services”, was to be in perpetuity means it had to go on forever.

"What would this be, if not 'begar' or forced labour. We must also remember that when the gift deed was executed the Constitution of India had already been enforced. Article 14 and 21 and more particularly Article 23 prohibit forced labour. Hence, the condition as is being read by the plaintiffs where not only the donees but their successors were to continue giving services to the plaintiffs, that too indefinitely, is nothing short of reading forced labour, as a condition," the bench said.

The bench then asked if this would make the gift itself void. "Our answer would be no. In this case, the validity of gift was never ever questioned, either by the plaintiffs or by the defendants. Therefore, a meaningful and purposive interpretation is required here," the bench held.

"The only possible way therefore where the donees and their successors have continued to be in peaceful possession of the property for more than 45 years, is that there was never such a condition of rendering continuous services in the gift deed and services here meant only the 'past services' rendered by the donees to the donor, or at best it may include services to be rendered by the donees to the original donor Rai Bahadur Randhir Singh, who passed away in the late 1950s", the court opined.

"This is the only way it can be construed. In other words, the gift had no condition of continuation of these services till perpetuity as the plaintiffs would like us to read," the bench said.

"We must also remember that Section 127 of TPA, which permits onerous gifts, was not in force in present day Haryana which was earlier part of Punjab, as TPA was not applicable there. Nor can we say that such a condition being based on equity, justice and good conscience can be read into the gift deed as a valid condition," the bench pointed out.

It said it had no doubt in its mind that the plaintiffs had absolutely no case, holding that the impugned judgment called for no interference and thus accordingly dismissed the appeal.

In its judgment, the bench said, "Unfortunately, the courts have lost sight of an important aspect here which has a crucial bearing on the case, which is the background of the transfer of land made in the year 1953".

The court noted that the transaction which was the subject matter of the dispute admittedly occurred in December, 1953. This was the period immediately after independence where each State in the country had already framed or was in the process of framing legislations on land reforms with a focus on redistribution of land. Since the land was on the State list (List II of the Seventh Schedule of the Constitution of India), such legislation was being brought by almost every State in the country. Punjab was no exception.

The court also pointed out that this was being done as this was the pledge given during our freedom movement by the leaders to the nation and immediately after our independence, this was the first task sought to be achieved everywhere in the country.

"The big zamindars and big land owners were fully conscious that they would not be able to retain land beyond the ceiling fixed by the Statute, which had an outer limit of 30 standard Acres for a family. The surplus land (beyond 30 acres) was to vest with the State. The land owners, therefore, either were gifting their land to their helpers, agricultural workers, even to priests or to temples, or in any other manner where they thought their best interest would lie.During this period, gifting, donation or transfer of land in any possible manner permitted by law was common place, not only in Punjab but in all parts of the country," the bench said.

Case Title: Smt Naresh Kumari & Ors Vs Smt Chameli & Ors