Smt. Gomtibai
& Ors Vs. Mattulal [1996] INSC 1231 (1 October 1996)
K. Ramaswamy,
G.B. Pattanaik
ACT:
HEAD NOTE:
O R D
E R
This
appeal by special leave arises from the judgment of the learned single Judge of
the High Court of Bombay made on March 7, 1977 in Second Appeal No.326/70.
The
respondent gad filed suit against his brother Govinddas on February 1, 1977 for partition of the plaint
schedule property into two equal shares and allotment of one such share to the
respondent - Mittulal. The plea taken by Govinddas was that the property was
gifted over to their cousin sister Kusturibai who had entrusted the property to
their cousin sister Kusturibai who had entrusted the property to them for
cultivation and was giving produce to them and thereby the land is not partible
and the suit, therefore, was not maintainable. The trial Court accepted the
plea and dismissed the suit. On appeal, the District Judge reversed the finding
and held that the partition deed between the plaintiff and the defendant was
only an intention to gift over the land to their cousin sister Kusturibai; it
was not in fact executed and, therefore, the gift is not valid and does not
bind the respondent.
Accordingly,
the suit was decreed. In the second appeal, it was confirmed. Thus, this appeal
by special leave.
The
only question that arises for consideration is:
whether
an intention to give the land by gift to their cousin-sister Kasturibai created
valid title in law? It is seen from the partition deed executed in 1947 that
they intend to gift-over the suit land to Kasturibai and the correspondence
subsequent thereto was relied upon to show that the land was allotted to Kasturibai.
The question is :
whether
a valid gift has been executed? In the erstwhile State of Hyderabad, the
Hyderabad Transfer of Property Act in pari materia with the Transfer of
property Act, 1882 was in force. An provision analogous to Section 124 of the
Transfer of Property Act was in force in the former the Transfer of Property
Act was in force in the former State of Hyderabad. Section 122 defines
"Gift" to mean the transfer of certain existing movable or immovable
property made voluntarily and without consideration, by one person, called the
donor, to another, called the donee, and accepted by or on behalf of donee. How
the gift is to be effective has been stated inn Section 123 which envisages
that "for the purpose of making a gift of immovable property, the transfer
must be effected by a registered instrument signed by or on behalf of the
donor, and attested by at least two witnesses." Thus, it seen that the
gift of immovable property should be made only for transferring the right,
title and interest by the donor to the donee by a registered instrument signed
by or on behalf of the donor and must be attested by at least two witnesses.
The pre-existing right, right, title and interest of donor thereby stand
divested in the donee by operation of Section 17 of the Registration Act only
when the gift deed in duly registered and thereafter the donor would lose title
to the property. It must also be proved that the donee had property. It must
also be proved that the donee had accepted the property gifted over under the
instrument. In this case, though the transfer of gift was acted upon by Kasturibai
as per the correspondence and evidence on record, but, admittedly, there is no
written instrument executed by donor, namely, the plaintiff and the defendant
in favour of their cousin sister Kasturibai and it got attested by at least two
witnesses and registered in accordance with the provisions of the Stamp Act and
the Registration Act. In the absence of compliance of these formalities, at
best what could be seen from the partition deed is that the original plaintiff
and the defendant have expressed their intention to gift over the land to their
cousin sister Kasturibai. As held earlier, in the absence of any registered
instrument of gift and acceptance thereof by the donee, the said property could
not be said to have been legally transferred in favour of their cousin sister;
in other words, the gift is not complete in the eye of law.
Therefore,
the District Court has rightly set aside the decree of the trial Court which
was later confirmed by the High Court. We do not find any error of law
warranting interference.
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