PARBATI Vs. BAIJNATH PATHAK

JUDGEMENT

(1.) The suit which has given rise to this appeal was for the cancellation of a deed of gift, dated the 18th of November 1909. The case of the plaintiff was that the defendant No. 1 and the father of the defendant No. 2 induced her to sell her immoveable property to (hem; that they got a deed of gift written and that the plaintiff on knowing that it was a deed of gift refused to have it registered; that they procured its registration against her wishes and that, therefore, she sued for its cancellation. The defence was that she executed the deed of gift of her own free will but that when she refused to have it registered, it was registered by the order of the Registrar on the application of the defendants. The Court of first instance, finding that the plaintiff executed the deed of gift of her own free will, dismissed the suit and its decree was affirmed by the lower Appellate Court. The point taken in second appeal is that the deed of gift is ineffectual inasmuch as its registration was procured without the consent of the plaintiff. In support of this proposition, the learned Counsel for the appellant relies on Ramamirtha Ayyan v. Gopal Ayyan 19 M. 433 in which the learned Judges say: We are further of opinion that a deed of gift being a voluntary transfer remains nudum pactum until the donor has done all that is necessary to make it legally complete. To do so, it is necessary, inter alia, that it should be registered; but he can be no more compelled to register the deed than to execute it in the first instance. The registration of the present deed contrary to the supposed donor s wishes, which was ordered by the Registrar was, therefore, void. We accordingly hold that there was no gift.

(2.) The argument of the learned Counsel for the respondents is that the deed of gift is a registered instrument within the meaning of Section 123 of the Transfer of Property Act and that the compulsory character of registration counts for nothing. He relies on Nand Kishore Lal v. Suraj Prasad 20 A. 392 in which it is held that a gift of immoveable property duly made by means of a registered deed is not invalid merely because registration of the deed of gift may have taken place after the death of the donor". Under the Transfer of Property Act, registration is essential to complete a gift of immoveable property and the question we have to decide is whether the registration of a deed of gift of immoveable property against the wishes of the donor is sufficient to complete the gift. I am of opinion that it is not. In order to make a gift complete, it is well settled, both in England and British India, that the donor must do all he can to make the gift complete.

(3.) In re Griffin (1899) Ch. D. 408 : 68 L.J. Ch. 220 : 79 L.T. 442 : 15 T.L.R. 78, it is remarked in effect that the settled law of the Courts of Equity is that where anything remains to be done by the donor, the gift is ineffectual. In Moore v. Moore (1899) L.R. 18 Eq. 474 it was held that a transfer of railway stock in the books of the company being necessary, the mere delivery of the cerificates did not give the intended donee a valid title against the donor.