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Khushaba Mansing Vs. Chandrabhagabai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 277 of 1905
Judge
Reported in(1908)10BOMLR536
AppellantKhushaba Mansing
RespondentChandrabhagabai
DispositionAppeal allowed
Excerpt:
.....that under sections 122 and 123 of the transfer of property act, there can be no good acceptance of a gift of immoveable property until the transfer has been effected by a registered instrument as required by the law......acceptance of the gift or of the transfer. for, as we understand the argument, there is neither gift nor transfer until the transaction is embodied in a registered instrument.2. now the facts of this case show that, although there was an acceptance by the plaintiff during the life-time of the donor, this acceptance occurred while yet the instrument of gift remained unregistered. we are therefore invited to say that there has been no valid acceptance.3. but the precise point occurred in the case of nand kishore lal v. suraj prasad i l r (1902) 20 all. 392 where it was held that the 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, and we are of opinion.....
Judgment:

Batchelor, J.

1. The first point taken in this appeal is a point of law and depends upon the argument that under Sections 122 and 123 of the Transfer of Property Act, there can be no good acceptance of a gift of immoveable property until the transfer has been effected by a registered instrument as required by the law. It seems to matter little whether the acceptance required is the acceptance of the gift or of the transfer. For, as we understand the argument, there is neither gift nor transfer until the transaction is embodied in a registered instrument.

2. Now the facts of this case show that, although there was an acceptance by the plaintiff during the life-time of the donor, this acceptance occurred while yet the instrument of gift remained unregistered. We are therefore invited to say that there has been no valid acceptance.

3. But the precise point occurred in the case of Nand Kishore Lal v. Suraj Prasad I L R (1902) 20 All. 392 where it was held that the 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, and we are of opinion that we ought to follow that decision.

4. It must be remembered moreover that here the donor had done all that it was required of him to do in order to make the gift, and the subsequent registration could have been effected without any co-operation on his part. Further the deed of gift was registered afterwards, and on registration it operated as from the date of execution; and this, we think, is an answer to the technical objection that there was no acceptance of a registered instrument.

5. The only other point urged was as to the matter of procedure, and it was said that the defendant had been prejudiced by the circumstance that the plaintiff who had never tendered herself for examination throughout the course of the case, was allowed, when the matter came before the District Judge on the remand, to be examined on commission. It is said, therefore, that the result is that the defendant is concluded in this appeal by the evidence of a witness whom no Judge has ever seen. However that may be, it has been the invariable practice of these Courts that when a remand of this nature is ordered, the District Court sends down the case to the first Court in order that the evidence may be taken there, and this is done in the interests of the parties themselves and for their convenience. But nevertheless the lower appellate Court still remains empowered by the order of remand to take what evidence it may see fit to take, and record its findings upon it.

6. We are of opinion, therefore, that the defendant has no just grievance in the matter of the course which this remand has taken.

7. The result is that the decree of the lower Court will be confirmed with costs.


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