AMIRKHAN Vs. GHOUSE KHAN

JUDGEMENT

(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(l)(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.