Full Judgment Text
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PETITIONER:
SMT. GOMTIBAI (DEAD) THROUGH LRS. & ORS.
Vs.
RESPONDENT:
MATTULAL [DEAD) THROUGH LRS.
DATE OF JUDGMENT: 01/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
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
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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.
The appeal is accordingly dismissed. No costs