Friday, 1 May 2020

When should court exhibit gift deed even if it is not registered?

Under the provisions of Section 149 of the Mullas Principles of Mohammedan Law, there are only three essential conditions of a valid gift and those are 1] declaration of gift by the donor, 2] an acceptance of the gift, express or implied, by or on behalf of the donee and 3] delivery of possession of the subject of the gift by the donor to the donee. . It is stated in Section 150 that if these conditions are complied with, the gift is complete. In fact, Sub-section 3 of the Section 150 provides that if it is proved by oral evidence that gift was complete as required by law, it is immaterial that the donor has also executed the deed of gift, but the deed had not been registered as required by the Registration Act, Section 17(a). Thus in view of the provisions of Section 150(3) of the Mullas Principles of Mohamedan Law, it is clear that a gift made by the Mohamedan donor in writing is not compulsorily registrable. The trial court ought to have exhibited the document dated 11.4.1966 in the facts and circumstances of the case.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1843/2009

Decided On: 10.11.2009

 Abdul Rahim Vs. Qayyum and Ors.

Hon'ble Judges/Coram:
V.A. Naik, J.

Citation: 2010(1) ALLMR 328,2010(1) MHLJ 343,


1. Rule. Rule made returnable forthwith. The petition is heard finally at the stage of admission as the notice for final disposal was issued to the respondents by an order dated 27.4.2009.

2. By this petition, the petitioner impugns the order passed by the Civil Judge, Junior Division, Samudrapur on 18.3.2009 rejecting the application filed by the petitioner for exhibiting the document dated 11.4.1966, called the Bakshis Patra.

3. The petitioners are the original defendants. The defendants had filed the documents and since the trial court had not exhibited the document dated 11.4.1966, called the Bakshis Patra, on the ground that the document was not a registered document, the petitioners filed an application for exhibiting the document for effectively deciding the dispute between the parties. It was the case of the petitioner that the document dated 11.4.1966 was admitted by the plaintiff in his cross examination and the document being 30 years old, ought to have been exhibited.

4. The prayer made by the petitioner in the said application was strongly opposed by the respondent. The trial court, by order dated 18.3.2009 rejected the application.

5. Shri Akbani, the learned Counsel for the petitioner submits that the trial court committed an error in rejecting the application by holding that the document was compulsorily registrable under the Registration Act. According to the learned Counsel for the petitioner, the document was a Hiba or Gift under the Muslim Law and perusal of the document dated 11.4.1966 clearly revealed that it was in the form of a memorandum written and signed by five panchas on a statement made by the donor. The learned Counsel for the petitioner then relied on the provisions of Section 149 of the Mullas Principles of Mohammedan Law and Section 129 of the Transfer of Properties Act, to submit that it was not necessary to register the gift deed under the Muslim Law and nothing in Chapter 7 of the Transfer of Property Act, would affect any rule of Mohammedan Law. The learned Counsel for the petitioner submitted that the trial court was not justified in rejecting the application by holding that the gift deed was compulsorily registrable as the petitioner had not stated in the application, as to whether the gift was made under the Muslim Law or was made under the General Law.

6. Shri A.S. Chandurkar, the learned Counsel for the respondent No. 1 to 6 supported the order passed by the trial court and relied on the decisions of the Andhra Pradesh High Court reported in MANU/AP/0290/1961 : AIR 1962 AP 199 and 1998 (2) Civil LJ 172 to canvass that the Mohammedans are not prevented to effect transfer in the manner under Section 123 of the Transfer of Property Act 1882 and since it was the case of the petitioner that the document dated 11.4.1966 was a Hiba or gift under the Muslim Law, it was rightly held that the document required registration and the said document could not be exhibited. The learned Counsel for the respondents submitted that the document was compulsorily registrable and the trial court rightly rejected the application filed by the petitioner. In any case, according to learned Counsel for the respondents, exhibition of document is just marking it for identification and mere exhibition of the document would not prove the contents of the documents as true. The learned Counsel for the respondent relied on an unreported decision of this Court in Criminal Application No. 714/2009 dated 3.4.2009 to substantiate his submission.

7. I have considered the submissions made on behalf of the parties and perused the relevant provisions of the Mohammedan Law and the Transfer of Properties Act along with the impugned order dated 18.3.2009. I have also perused the document dated 11.4.1966. A bare perusal of the document dated 11.4.1966 prima facie shows that it is not a gift in the nature of gift which is made under the provisions of Section 123 of the Transfer of Property Act, as the Mohammedan Donner in t his case has merely made a statement before the panchas in regard to the gift and the same has been incorporated in writing and is signed by five panchas. It prima facie appears from the perusal of the document dated 11.4.1966 that it is not a gift under the provisions of Section 123 of the Transfer of Property Act and appears to be a gift under the Mohammedan Law. Merely because, there is no mention in the application filed by the petitioner that the gift was one under Mohammedan Law, it cannot be said that the Gift was compulsorily registrable. It was necessary for the trial court to consider the document dated 11.4.1966 before holding that it was compulsorily registrable and the document could not have been exhibited.

8. Under the provisions of Section 149 of the Mullas Principles of Mohammedan Law, there are only three essential conditions of a valid gift and those are 1] declaration of gift by the donor, 2] an acceptance of the gift, express or implied, by or on behalf of the donee and 3] delivery of possession of the subject of the gift by the donor to the donee. . It is stated in Section 150 that if these conditions are complied with, the gift is complete. In fact, Sub-section 3 of the Section 150 provides that if it is proved by oral evidence that gift was complete as required by law, it is immaterial that the donor has also executed the deed of gift, but the deed had not been registered as required by the Registration Act, Section 17(a). Thus in view of the provisions of Section 150(3) of the Mullas Principles of Mohamedan Law, it is clear that a gift made by the Mohamedan donor in writing is not compulsorily registrable. The trial court ought to have exhibited the document dated 11.4.1966 in the facts and circumstances of the case.

9. It is however, rightly submitted on behalf of the respondent that exhibition of document is for the purpose of marking it for identification and mere exhibition of it would not amount that the contents of the documents are proved to be true. The trial court should therefore bear this in mind. For the reasons recorded herein above, the writ petition is allowed. The impugned order passed by the trial court on 18.3.2009 is hereby quashed and set aside. The application filed by the petitioner for exhibiting of document dated 11.4.1966 is allowed. Rule is made absolute in the aforesaid terms with no order as to costs.


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