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The Transfer of Property Act, 1882
Section 129 in The Transfer of Property Act, 1882
Section 17 in The Transfer of Property Act, 1882
The Registration Act, 1908
Section 17 in The Registration Act, 1908
Citedby 3 docs
Hafeeza Bibi & Ors vs Shaikh Farid(Dead) By Lrs. & Ors on 5 May, 2011
S.M.Syed Mohammed Buhari vs The Sub Registrar on 9 December, 2011
Rasheeda Khatoon (D) Through Lrs vs Ashiq Ali (D) Through Lrs on 10 October, 2014

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Madras High Court
Amirkhan vs Ghouse Khan on 29 April, 1983
Equivalent citations: (1985) 2 MLJ 136
Author: K Shanmukham

ORDER K. Shanmukham, J.

1. Two interesting questions arise for consideration in this revision. One is whether the gift of the immovable property by a Mohamadan if reduced to writing, requires registration. Another is whether the gift deed in this case records any past transaction or the deed itself creates a right in the immovable property. The court below held that the document dated 6.3.1978 itself created a right in the immovable property and therefore requires registration. On that ground it refused to admit this document in evidence. It is this order that is canvassed in this revision.

2. Mohamedan Law recognises an oral gift. The question is whether notwithstanding such right to created a gift orally, if a Mohamedan should reduce the gift to writing, the same requires registration. According to Section 129 of the Transfer of Property Act, nothing in Chapter VII relates to gift of immovable property made in comtemplation of death, or shall be deemed to affect any rule of Mohamedan Law. Thus a gift by a Mohamedan is exempt from the purview of Chapter VII of the transfer of Property Act. This is taken advantage of by the learned Counsel for the petitioner to submit that because the personal law permits an oral gift by a Mohamedan, it would follow that even if the gift deed were to be reduced to writing, it does not require registration. In my view such an approach is wholly erroneous. For under Section 123 of the Transfer of Property Act no gift of immovable property shall be made except by a registered instrument signed by or on behalf of the donor attested by at least two witnesses. In order to avoid any conflict between Section 123 and the personal law which enables Mohamedan to make an oral gift, Section 129 of the Transfer of Property Act was necessitated. That is all the object of Section 129 of the Transfer of Property Act. The fact that there was such an exemption under Section 129 will not ipso facto indicate that the provisions under the Registration Act, 1908 will not also apply to a deed of gift reduced to writing by a Mohamedan. The relevant provisions in the Registration Act are Section 17 and Section 49. There is no saving clause or section in the Registration Act similar to Section 129 found in the Transfer of Property Act. It follows that all documents of gift either created by a Mohamedan or by a non-Mohamedan are governed by the Registration Act. The combined force of Section 17 and Section 49 requires that any deed of gift if reduced to writing should be registered, otherwise it would not be admissible in evidence.

3. Section 17(1)(a) of the Registration Act relates to instrument of gift of immovable property. It expressly mandates that the instrument of gift of an immovable property shall be registered. In the instant case, the document dated 6.3.1978 is a deed of gift, whereby the right in the immovable property is created for the first time. It is necessary at this stage to extract the relevant portion in the document which is in Tamil.

It is clearly indicated therein that only under this deed of gift, the property set out in the schedule is gifted to the donee therein in the presence of his close relations and "known common friends". It also recites that under this document delivery of possession is being handed over. From the above plain next, it is not possible to construe the document as evidencing a past transaction of a gift.

4. In view of my above assessment I cannot but hold that though the Mohamadan can create a valid gift orally, if he should reduce the same in writing the gift will not be valid unless it is duly registered.

5. It is true that Mr. Justice V.R. Krishnayyar as he then was in M. Rawther v. M. Charayil held:

The application of Muslim personal law to gifts does not preclude application of other Laws which do not run counter to the rules of Muslim law. The need for a document its attestation and registration under Section 123 of the Transfer of Property Act are not necessarily inhibited by Section 2 of Act 23 of 1937. Moreover, the expression "gift" in Section 2 along with trusts and trust properties and wakfs takes colour from the society of these words. I am inclined to think that the amplitude of the expression "gift" in the Transfer of Property Act (Section 129) must be so read down to restrict it to transaction and persons with the religious or charitable motivation or purpose.

(sic)nd again in paragraph 8 it observes thus:

I regret my inability to agree with the reasoning in these decisions. In the context of Section 17, a document is the same as an instrument and to draw nice distinctions between the two only serves to baffle, not to illumine, Mulla says: The words "document" and "Instrument" are used interchangable in the Act." An instrument of gift is one whereby a gift is made. Wherein law a gift cannot be effected by a registered deed as such, it cannot be an instrument of gift. The legal position is well settled. A muslim gift may be valid even without a registered deed and may be invalid even with a registered deed. Registration being irrelevant to its legal force, a deed setting out a Muslim gift cannot be regarded as constitute of the gift and is not compulsorily registrable.

The above observation of the learned Judge might support the contention put forward by the learned Counsel for the petitioner that in all cases where a Mohamadan should make a gift, such a gift is valid notwithstanding that it was reduced to writing. I have already pointed out that the very purpose of Section 129 of the Transfer of Property Act is to avoid any friction between Section 123 of the Transfer of Property Act and the personal law relating to Muhamadan which permitted the Muhamadan to make valid gift orally.

6. Secondly, there is no such reservation at all make in the Registration Act. The preamble to the registration act provides that to consolidate the enactment relating to registration of document, it is hereby enacted as set out therein. Neither in Section 17 nor in Section 49 is there any indication even impliedly that these provisions would not be applicable to a gift made by Mohamadan if it should be made in writing. In view of the plain language employed in Section 17 and Section 49 of the Registration Act read in contrast with an express embargo provided under Section 129 excluding the operation of the Transfer of Property Act to the gift made by Muhamadan, I am unable to agree with the learned Judge. As a matter of fact, a learned Judge of the Andhra Pradesh High Court in Chota Uddandu v. Masthan Bi had not approved the observation made in M. Rawther v. M. Charayil . According to the learned Judge, if there is a contemporaneous document it should be registered, notwithstanding if all the formalities as prescribed by Mohamadan law regarding the making of gift are satisfied, gift is valid without a written instrument. With due respect to the learned Judge I prefer to follow the reasoning which is in consonance with the express provision enacted under Sections 123 and 129 of the Transfer of Property Act as also Sections 17 and 49 of the Registration Act.

7. It is interesting to note that the three Judges belonging to the said religion have in Gulam Ahmed v. Mohamed Sidiq A.I.R.1974 Jammu and Kashmir page 59 held that where there is executed an instrument and its execution is contemporaneous with the making of the gift, then in that case the instrument must be registered as provided under Section 17 of the Registration Act. Thus I find, that my construction of Sections 123 and 129 of the Transfer of Property Act in contrast with Sections 17 and 49 of the Registration Act has the approval of a single Judge of the Andhra Pradesh High Court and a Full Bench Judgment of Jammu and Kashmir High Court.

8. In support of the contention that if the documents were to be evidenced of past transaction, then it would not require registration, the learned Counsel for the petitioner brought to my notice the decision of the Supreme Court reported in Tek Bahadur Bhujil. v. Debi Singh Bhujil . I have held that this document does not record the past transaction, but under the instrument itself a right in immovable property is created. Further the Supreme Court decision related to a family arrangement. Thus, I find, the petitioner cannot rely upon the above ration as there is no room for the application of the principles laid down by the Supreme Court.

The result is that this revision fails and is dismissed, but without costs.