Norman Macleod, Kt., C.J.
1. The plaintiff in this suit was one Subraya Hariappa Hegde. He alleged in the plaint that when his relation Madappa was absent from the village the defendant told him that his interest would suffer if he acted according to the opinion of Madappa and that the defendant would manage his property in such a way as would safeguard his interest. Having given this improper advice, the defendant had forcibly taken him to Honavar about the beginning of the month of Ashadh (Shake year 1841) and had got a document written and took his signature by a thumb impression thereon; that he did not understand what was written in the document, and received nothing in return in connection with it from the respondent. The defendant, in whose favour the document was signed, is the cousin of the plaintiff. Thereafter the plaintiff wished to get the document bad and objected to its being registered. Accordingly his prayer was that it should be declared that the document which the defendant got written from him was void and it should be given back into his possession and that a permanent injunction should be issued to the defendant restraining him from completing the document by getting it registered.
2. The suit was filed on July 21, 1919 The same day the defendant presented an application for registration. On July 24, notice was issued calling upon the defendant to produce the document in Court. In other words that was an application to the Court to prevent the defendant pending the suit from registering it. However before any order was passed on the notice Subraya died in November. Thereafter proceedings took place before the Registrar for registration of the document. Eventually it was registerecd in June 1920.
3. At the hearing of the suit, which was continued by the plaintiff's brother's son to whom Subraya had given the property by will, the allegation that the plaintiff had passed the document under undue influence and misrepresentation was negatived, and a decree was passed dismissing the plaintiff's suit, An appeal from this decree was unsuccessful.
4. We are only concerned in this second appeal with a point of law, which shortly put is as follows:--
5. Can a donor of immoveable property, when the gift can only be effected by a registered document, resile from his action before the document has been registered, and if the donee refuses to give back the document, can the donor obtain an injunction from the Court restraining the donee from proceeding to register the document?
6. The real point in the case has not been observed by either of the Courts below. Both the learned Judges seem to think that the case was governed by the decision in Venkati Rama Reddi v. Pillati Rama Reddi I.L.R. (1916) 40 Mad. 204. There a deed of gift was registered by the donee after the death of the donor without the leave of the legal representative of the donor, and it was held that there was nothing in Section 123 of the Transfer of Property Act which required the donor to be concerned in the registration of the document; all that was required was that he should have. executed it. Once such an instrument is duly executed, the Indian Registration Act allows it to be registered even though the donor may not agree to its registration, and upon registration the gift takes effect from the date of the execution.
7. If nothing further had been done by Subraya except to object to the registration, and to refuse to appear before the Registrar and admit execution, then undoubtedly the donee could have succeeded in getting the document registered even against the consent of the donor. But neither that decision, nor the decision in Ramamirtha Ayyan v. Gopala Ayyan I. L R. (1896) 19 Mad. 433, which is considered as overruled by Venkati Rama Reddi v. Pillati Rama Reddi I. L R. (1916) Mad. 204, have dealt with the point which is before us. It is true that in Ramamirtha Ayyan v. Gopala Ayyan I.L.R. (1896) 19 Mad, 433, the Court was 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 alias, 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.'
8. It is not necessary to go so far as that in this case, because Subraya filed the suit before the document was registered, and if he could obtain from the Court an injunction restraining the donee from registering the document, clearly any subsequent registration during the pendency of the suit would be subject to the final decision of the Court.
9. Now it has been argued for the respondent, that once a donor has executed a deed of gift of immoveable property and handed over the deed to the donee, it is not in his power to withdraw the gift, and as there is no necessity for him to take part in the registration of the document, the donee is entitled to get the document registered whether the donor consents to it or not.
10. It is necessary, therefore, to examine the provisions of the Transfer of Property Act in respect of gifts to see whether this argument can prevail. Under Section 122 'gift'' is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Therefore there are two things essential to a gift (1) transfer of property, and (2) acceptance by the donee.
11. Under Section 123, for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on benalf of the donor, and attested by at least two witnesses.
12. Therefore a gift is a transfer, and the transfer of immoveable property gifted cannot be effected except by a registered instrument. It must follow that the gift is incomplete until the document is registered, although when the document is registered by virtue of Section 47 of the Indian Registration Act, the date of the gift is carried back to the date of the execution of the document.
13. But Section 126 has been relied upon as showing that a gift cannot be revoked except under the provisions of that section, none of which apply to this case But clearly when the section says that 'a gift save as aforesaid cannot be revoked,' it must refer to a complete gift and not to an inchoate gift. For instance, if the donee has not accepted the gift, clearly it is not complete and the donor can revoke it. So if the property has not been transferred, the gift is still inchoate, and in my opinion the donor is entitled, if he so wishes, to prevent it from becoming complete. The donee who is to get the property without consideration, has nothing to complain of, if, before the gift is completed so as to effect a transfer of the property, the donor expresses his wish to withdraw.
14. It seems to me that Subraya was entitled in this case to revoke the gift before the donee had got the document registered, and the filing of the suit would in effect prevent Venkat from getting the document effectively registered against Subraya until the suit was decided one way or the other.
15. Under Section 52 of the Transfer of Property Act:-
During the active prosecution in any Court having authority in British India, or established beyond the limits of British India by the Governor General in Council, of a contentious suit or proceeding in which any right to immoveable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to after the rights of any other party thereto under any decree or order which may be made therein, except under the. authority of the Court and on such terms as it may impose.
16. Clearly the provisions of that section apply to a transfer by the defendant of the suit property to himself. When this suit was filed the title to the property was in the plaintiff, and the defendant by getting the document registered transferred the property to himself, and it is such a transfer which is clearly prohibited by the section.
17. In my opinion, therefore, the appeal succeeds and the plaint if is entitled to a decree. The document (Exhibit 56) to be restored to his possession by the Registrar. The endorsement of registration with reference thereto to he cancelled. Copy of this decree to be sent to the Registrar under Section 39 of the Specific Relief Act. The plaintiff has not succeeded in rescinding the gift on the ground taken in the plaint, and we think that no order as to costs should be made.
18. I agree.
19. I desire to add that quite apart from Section 52 of the Transfer of Property Act, the conclusion reached in this case would be the same. I am not clear as to the application of Section 52 of the Transfer of Property Act to the facts of the present, case. I prefer to reserve my opinion on that point and to base my decision upon the broad ground that it is open to the donor to revoke a gift before it is completed. In the present case before it was completed by registration, he took steps to revoke it and filed a suit to restrain the defendant from getting the document registered and from completing the gift. There is no decision which lays down that the donor cannot revoke it before it is completed.