In respect of movable properties, the delivery of possession is said to have taken place at a time when the property is physically transferred to the donee, But, in respect of the immovable or incorporeal properties, it is difficult to prove the exact time of the delivery of possession. However, in India, there are two judicial views regarding the exact time of the completion of delivery of possession.
First, a constructive delivery of possession is complete as soon as the donee starts getting benefits out of the gifted properties. This may be called as the benefit theory. The real test is from which date the donee is reaping the benefits of the property? Where the donor continues to derive the benefits, the transfer is not complete. But, if the donee enjoys the benefits, the delivery of possession is deemed to have taken place. Tyabji observes:
“Where there is any immediate benefit to be derived from possession, the reaping of that benefit is taking possession, and though symbols may be useful to fix the exact point of time, they cannot take the place of actually deriving the benefit from the subject of the gift nor of exercising acts of ownership over it.”
This judicial proposition lays emphasis upon the fact of donee’s benefits from the gifted property instead of the act which symbolises constructive possession. According to this approach, the delivery of possession takes place on the date from which the donee derives the benefits directly or indirectly. Thus, where a house on rent has been gifted, the delivery of possession is given to the donee from the date on which the donee gets the rents from the tenant.
Secondly, the delivery of possession is completed on the date on which the donor intends to transfer the possession to the donee. This view may conveniently be called as the ‘Intention theory’. The intention of the donor is to be proved on the basis of facts which may differ from case to case. But there must be some cogent proof of the intention of the donor that he has physically done everything what he could in the given circumstances.
For example, where donor and donee are living in the same house which is the subject matter of gift, the donor’s intention to part with the possession is sufficiently proved if the donee has been authorised to manage the house. West, J. observes thus:
“Where declaration of gift made and intention to transfer possession is clearly proved, there (as far as possible) effect will be given to clearly proved intention, viz., if possible, it will be held that possession has been transferred as intended.”
In other words, a delivery of possession is deemed to have taken place at a time when the bona fide intention of the donor to complete the gift is fully established. Further proof of the date from which the donee reaps the benefits of the property donated, is not necessary.
But, a clear proof of the intention of the donor is difficult. It depends upon the facts such as, the conduct of the parties or the circumstances in a particular transaction, and also the nature of the property and these facts are not always easy to establish.
However, none of the two approaches are self-sufficient to explain the exact moment of the completion of delivery of possession in each and every case. It is therefore, submitted that in some cases the exact time of the completion of the delivery of possession may be ascertained by the benefit theory whereas in others, by taking into account the intention of the donor.