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Bhubaneswar Naik Santoshrai and Etc. Etc. Vs. the Special Tahsildar Land Reforms Tekkali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. Nos. 2221, 2274, 3151 and 4004 of 1978
Judge
Reported inAIR1980AP139
ActsTransfer of Property Act, 1882 - Sections 122; Registration Act, 1908 - Sections 17
AppellantBhubaneswar Naik Santoshrai and Etc. Etc.
RespondentThe Special Tahsildar Land Reforms Tekkali and ors.
Appellant AdvocateN.V. Rangantham, Adv.
Respondent AdvocateGovernment Pleader
Excerpt:
(i) property - gift to daughter - section 122 of transfer of property act, 1882 and section 17 of registration act, 1908 - appellant gifted some land to his daughter in marriage as 'pasupu kumkuma' - question raised was whether land gifted to daughter in marriage required to be conveyed by registered document - gift given to daughter in marriage could not be termed as 'gift' under section 122 - transaction not falling under section 122 such document need not to be registered under section 123 - document not actually gift but expression of intention to give away property showed that property being given away toward 'pasupu kumkuma' was admissible evidence - held, document need not to be registered. (ii) registration - section 122 of transfer of property act, 1882 and section 17 of..........at the time of marriage as 'pasupu kumkuma'.c. r. p. 2221 / 78:the petitioner who has only one daughter, gifted orally in 1963 at the time of marriage to the extent of ac. 13-73 cents. her name is shown in pahanis which is ex. a. 2 wherein she has been shown as owner and cultivator from the year 1971 -72 onwards.c. r. p. 2274 / 78:this is also oral settlement effected in the year 1964 at the time of marriage and ever since the daughter is in possession of lands.c. r. p. 3151 / 78:3. the contention of the learned counsel for the petitioner is that under hindu law, the father is under an obligation to 'maintain' an unmarried daughter which term includes reasonable expenses of and incident to her marriage and therefore, any property immovable or moveable given to the daughter as 'pasupu.....
Judgment:

Seetharam Reddy, J.

1. This batch of Civil Revision Petitions Nos. 3151/78, 4004/78, 2221/78, and 2274/78 wherein common questions of law do arise, has been directed to be posted before a Division Bench by our learned brother M. Ramachandra Raju, J. for the authoritative pronouncement of judgment, for the reasons that the decision in V. Purnachandra Rao v. State of A. P. (1977) 1 APLJ (HC) 132 BY Justice M. Ramachandra Raju himself, and A, Gangadhara Rao v. G. Gangarao, : AIR1968AP291 by Ekbote, J. (as he then was) require reconsideration in view of the decisions of the Supreme Court as well as of this court. The main and important question that arises is whether a gift of land made in favour of daughter of sister towards 'Pasupu Kumkuma' as marriage provision requires to be conveyed by a registered document. Secondly, whether such lands the possession of the same given to the daughter or sister without any deed of conveyance being registered is liable to be excluded from the holding of the donor for the purpose of Section 8 of the A. P. Land Reforms (Ceiling of Agricultural Holdings ) Act 1973.

2. The facts are brief and admit of no controversy.

C. R. P. No. 3151 of 1978.

In this , the petitioner gifted two extents of land to his two daughters Ac. 3-05 cents each on different dates as marriage provision. By means of two unregistered documents Ex. P. 1 dated 20th April 1964 and Ex. P. 2 dated 29th of May, 1969 which are unstamped and unregistered , the gifts were effected.

C. R. P. No. 4004 /1978:

The petitioner-declarant who has only three daughters and no sons made oral gifts of Ac. 5-05 cents and Ac. 4-72 cents each in favour of second and third daughters, respectively, in the year 1969 at the time of marriage as 'Pasupu Kumkuma'.

C. R. P. 2221 / 78:

The petitioner who has only one daughter, gifted orally in 1963 at the time of marriage to the extent of Ac. 13-73 cents. Her name is shown in Pahanis which is Ex. A. 2 wherein she has been shown as owner and cultivator from the year 1971 -72 onwards.

C. R. P. 2274 / 78:

This is also oral settlement effected in the year 1964 at the time of marriage and ever since the daughter is in possession of lands.

C. R. P. 3151 / 78:

3. The contention of the learned counsel for the petitioner is that under Hindu Law, the father is under an obligation to 'maintain' an unmarried daughter which term includes reasonable expenses of and incident to her marriage and therefore, any property immovable or moveable given to the daughter as 'Pasupu KumKuma' towards this obligations is not a gift within the meaning of Section 122, T. P. Act and therefore, does not require any registration. Exs. P. 1 and P. 2 through which an expression of desire to gift away the property has been made in favour of the daughter by the petitioner cannot be termed a gift so as to require any registration. His further contention is that the said Exs. P. 1 and 2 have been already admitted in evidence and cannot now be objected to for their being admitted in evidence and even assuming for some reason, the said documents are not admissible in evidence for want of registration, the same can be used under Section, 49 of the Indian Registration Act for a callateral purpose and at any rate, the petitioner, even if the said exhibits are to be overlooked, can establish the said transaction of giving away the property, by way of oral evidence as admittedly, the daughters are in possession ever since 1964 and 1969 respectively with reference to the entry in the revenue records. He relied on the following decisions in support of his contentions: C. G. T. v. Chandra Sekhara Reddy : [1976]105ITR849(AP) , Serandayya Pillai v. Shankaralingam Pillai ((1959) 2 Mad LJ 502) , Subbayya V. Andhra Ramayya, AIR 1929 Mad 586 (FB) , Hira Devi v. Official Assignee, Bombay, : [1958]1SCR1384 and Kale V. Dy. Director of Consolidation : [1976]3SCR202 . The learned Government Pleader, on the other hand, contends that giving any property for the purpose of 'Pasupu Kumkuma' is a gift within the meaning of Section 122 of the Transfer of Property Act and so it requires registration under section 123, T. P. Act or sec. 17(1)(b) of the Registration Act. Without which no transfer can be effected and that in respect of unregistered documents, the benefits of Section 53-A , T. P. Act cannot be involved, and relied on the decision in A. Gangadhara Rao v. G. Gangarao (Supra) and Commr. of Gift Tax. A. P. v. Ch. Chandrasekhara Reddy ( (1977) 1 Andh WR (HC) 82).

4. Section 3(b) of the Hindu Adoptions and Maintenance Act defines 'maintenance' as under:-

'Maintenance' includes:-

(i) ......... ................. ............. ........

(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage.

5. In a Full Bench decision of the Madras High Court in Subbayya v. Andhra Ramayya (supra) Ramesam, J. speaking for the bench held:-

'The text of Manu quoted at page 294 of Colbrooke's Digest Vol. 2, shows that three-forths of the whole is taken by the brothers and one-fourth is taken by the sisters, though it is expressed in a round about form 'let each give a fourth part of his own distinct share'. The text of 'Katyayana' quoted at page 297 is to the same effect: 'For unmarried daughters a fourth share is ordained, and three shares for sons'.

It is further held:-

'It is settled law that the daughters are not entitled to a share but all the same the discussion shows that the right of the daughter for maintenance up to the going to the husband's house and for marriage expenses is the present remnant of the right to a share'.

6. In Sirkar's Hindu Law, Edition 6 page 328 , the unmarried daughter's right is thus described:

'Similarly an unmarried daughter acquires an imperfect right in the father's property by virtue of which she enjoys the same and in maintained out of it until marriage and is also entitled to a quarter share, if partition takes place before her marriage, that is to say, when she continues as a member of the family'.

In Serandayya Pillai v. Sankaralingam Pillai (supra) a contract was entered into by the plaintiffs with the first defendant that in consideration of the first defendant marrying their sister some properties would be settled upon him. The marriage took place and the defendants were put in possession of the property. The plaintiffs asked for declaration and injunction or in the alternative for recovery of possession on the ground that the gift was invalid it being hit by Section 123, T. P. Act and Section 17 of the Registration Act. It was held therein:-

'The transaction entered into by the parties was neither a sale, not a lease nor an exchange, not a gift. This transaction fell within the scope of section 9 of the T. P. Act and required no writing and no registration'.

A Bench of this Court in C. G. T. v. Chandrasekhara Reddy (supra) held that a Hindu father, mother or other guardian has got a legal as well as a moral obligation to give his or her daughter in marriage to a suitable husband and is entitled to set apart a portion of the family property for the purpose of her marriage. In enacting Section 3(b)(ii) of the Hindu Adoptions and Maintenance Act,, 1956, the legislature did nothing more than to codify the well settled principles of Hindu Law and provided for payment of reasonable expenses incidental to the marriage. Hence, both under general Hindu law and the Hindu Adoptions and Maintenance Act, 1956 , the father is under an obligation to give some property on the occasion of her marriage. If the conveyance is made to discharge the obligation of the father to provide for maintenance of the daughter and the share of reasonable expenses incidental to the marriage, it can be said to be a transfer for consideration and as such it will not be a 'gift' liable to gift tax under the Gift-tax Act, 1958. The Bench relied on the decision of the Supreme Court in Kamla Devi v. Bachulal Gupta, : [1957]1SCR452 . In Kale. V. Dy. Director of Consolidation (supra) , where a family arrangement was oral and the mutation petition was merely filed before the Court of the Assistant Commissioner for information and for mutation in pursuance of the compromise the Supreme Court held:

'That the compromise was not required to be registered. Even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement'.

'Held further in view of the principle enunciated in the aforesaid case it is obvious that the respondents 4 and 5 would be estopped from denying the existence of the family arrangement or from questioning its validity.'

In Hira Devi v. Official Assignee, Bombay (supra) , the impact of Secs. 91 and 92 of the Evidence Act was discussed and it was held: 'What Section 91 of the Evidence Act prohibits is the admission of oral evidence to prove the contents of the document. From the terms of Section 92 itself, it is clear that strangers to the document are outside the scope of Section 92'. In A. Gangadhara Rao v. G. Gangarao (supra) , Ekbote, J. held:-

'It is difficult to accept the contention that a gift made at the time of marriage is not required to be in writing by any law. Any such contention would be flying in the face of Section 123, T. P. Act. It may be that under the Traditional Hindu Law no writing for the validity of transfer of property made at the time of marriage was necessary. There was no transaction under Hindu Law which absolutely required a writing. But after the T. P. Act came into force, to say that the oral gift can be made at the time of marriage by way of Pasupukukuma would be inconsistent with section 123 of T. P. Act. That is a provision applicable to all gifts which transfer immoveable property. It is therefore necessary in order to constitute a valid gift that not only it should be in writing but it must also be registered'.

Durgaiah v. Commr. of Gift-tax, (1972) 1 Andh WR 206 was a case wherein the recitals of the settlement deed executed by the father in favour of his children did not disclose the intention of the donor to provide for the education of his minor child but established that the beneficiaries are not the executants of the document along with the father and they had no say in the transaction and therein it was held:-

'The transaction in question cannot be held to be a family arrangement. It is a simple settlement or a gift executed by the father in respect of his self-acquired properties in favour of his children out of love and affection. There is no consideration for such a document by the father. The transaction is only a unilateral one'.

What becomes manifest from the conspectus of above case law is that a daughter under Hindu Law had at the time of 'Manu' a right to share in the father's property along with her brothers. After a considerable passage of time, the ultimate remnant is that a father is under an obligation to maintain her within the meaning of S. 3 of the Hindu Adoptions and Maintenance Act which includes the reasonable expenses of her marriage and therefore any property moveable or immoveable, given to her for or at the time of marriage can not be termed as a 'gift' within the meaning of Section 122, T. P. Act as the essential ingredients of gift are conspicuous by their absence in this transaction of giving the property to the daughter by way of 'Pasupukumkuma' which is both involuntary as well as for consideration. Once the said transaction is taken out of the ambit of Section 122 of T. P. Act, it is not at all obligatory that the said document, if it is in writing, requires any registration within the meaning of Section 123, T. P. Act and u/s 17 of the Registration Act. In fact, it is quite apparent that the transaction of giving away the property by way of 'Pasupukumkuma' could very well be done orally and if any instrument in writing has been brought into existence, the same does not require any registration as the said instrument can be used for the proof of transaction by way of evidence. There is yet another angle: the unregistered instrument can be used for the purpose of Section 53-A, T. P. Act as proof of part performance. In this case, admittedly, possession has been given to the daughters and in order to attract the provisions of the section 53-A. T. P. Act, it is needless that the instrument should have been registered.

7. From the foregoing discussion, it is evident and we unhesitatingly hold that the so-called gift of the land purported to have been made by the petitioner through the instruments Exs. P. 1 and P. 2 is legal , valid, and binding. They did not require any registration, for they are not gifts within the meaning of Section 122, T. P. Act not do they fall in any one of those transactions enumerated in Section 122 of the T. P. act requiring thereby any registration. The document Exs. P.1 and P. 2 which are not actually the gift but the expression of intention to give away the property can be used for the purpose of evidencing the fact of the property being given away towards 'Pasupu Kumkuma' and the same are admissible in evidence, Even otherwise, it is clear that the transaction which has been evidenced by way of giving possession and consequential entry into the revenue record amply demonstrate towards the completion of the transaction and that could be established orally as well by way of Exs. P. 1 and P.2 which are to be admitted under Sections 91 and 92 of the Evidence Act, as it is not a dispute between the parties to the document. Viewed from any angle, the transaction of giving the land by the petitioner in favour of his daughters for the purpose of 'Pasupu Kumkuma' in our judgment, in clinchingly established. In view of the above, we are not inclined to agree with the ratio laid down in V. Purnachandra Rao. V. State of A. P. (supra); A. Gangadhara Rao v. G. Ganga Rao (supra) and C. R. P. No. 2177 of 1977 dated 9-3-1978 (A.P.). In the view we have taken, the contentions of the learned Government pleader have no foundation and therefore must fail.

8. Regarding the second part of the case viz., whether the petitioner is liable for exclusion of the lands given away by way of 'Pasupu Kumkuma' from his holding, it is argued by the learned counsel for the petitioner relying on the decision in Authorised Officer v. K. C. V. Narasayya (1978) 1 APLJ (HC) 98) that by virtue of Section 3 (1) (iv) of the Land Reforms Act, it is quite clear that the land must necessarily be included in the holding of the transferee or alienee, the person who is in actual possession of the land.

We have already concluded that the act of giving away the lands by the petitioner in favour of the daughters towards 'Pasupu Kumkuma' is legal and valid. If that were so, the answer to the query is simple and affirmative. The petitioner is not, therefore, liable for inclusion of the lands in question in his holding. Even otherwise by virtue of Section 3 (I) (v), the transferee who is in lawful possession of the land and has not enforceable right under the doctrine of part performance, must necessarily be said to be holding , the land. In fact, the word 'otherwise' which has been employed in Section 3 (I) (v) must be given a comprehensive meaning and if a person is in possession either by virtue of a mortgage by conditional sale or through part performance of contract for sale of land or 'otherwise' that land must be included in the holding of that person. No restrictive meaning can be given to the enactments of this nature which are exproprietary in character. We have, therefore, no hesitation in holding that the expression 'holding' and the expression 'held by a person' occurring in Sec. 3 (I) must necessarily mean, to be in actual possession. To be held otherwise, would be doing violence to the language and also intendment. We have held the same view in a recent batch of civil Revn. Petns. Nos. 385 of a978 etc. (Reported in : AIR1980AP89 ). Same is the view recently expressed by a Division Bench of this Court in Authorised Officer V. K. C. V. Narasayya (supra).

9. In the result, the Civil Revision Petitions are allowed, setting aside the orders of the lower Tribunals. No costs.

10. Revisions allowed.


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