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Parbati Vs. Baijnath Pathak and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.61
AppellantParbati
RespondentBaijnath Pathak and anr.
Excerpt:
transfer of property act (iv of 1882), section 128 - gift--registration without the consent of the donor--validity of the gift. - - in order to make a gift complete, it is well settled, both in england and british india, that the donor must do all he can to make the gift complete. it is sufficient for me to say that the case on which the appellant came into court failed. if it were an essential part of the gift, every gift of this kind would of necessity fail if the deed were not registered during the life-time of the donor......the donor is sufficient to complete the gift. i am of opinion that it is not. in order to make a gift complete, it is well settled, both in england and british india, that the donor must do all he can to make the gift complete.3. in re griffin (1899) ch. d. 408 : 68 l.j. ch. 220 : 79 l.t. 442 : 15 t.l.r. 78, it is remarked in effect that the settled law of the courts of equity is that where anything remains to be done by the donor, the gift is ineffectual. in moore v. moore (1899) l.r. 18 eq. 474 it was held that a transfer of railway stock in the books of the company being necessary, the mere delivery of the cerificates did not give the intended donee a valid title against the donor.4. batty, j., in joitram v. ram krishna 27 b. 31 says:the other privy council case of ibrahim ali khan.....
Judgment:

Karamat Husain, J.

1. The suit which has given rise to this appeal was for the cancellation of a deed of gift, dated the 18th of November 1909. The case of the plaintiff was that the defendant No. 1 and the father of the defendant No. 2 induced her to sell her immoveable property to (hem; that they got a deed of gift written and that the plaintiff on knowing that it was a deed of gift refused to have it registered; that they procured its registration against her wishes and that, therefore, she sued for its cancellation. The defence was that she executed the deed of gift of her own free will but that when she refused to have it registered, it was registered by the order of the Registrar on the application of the defendants. The Court of first instance, finding that the plaintiff executed the deed of gift of her own free will, dismissed the suit and its decree was affirmed by the lower Appellate Court. The point taken in second appeal is that the deed of gift is ineffectual inasmuch as its registration was procured without the consent of the plaintiff. In support of this proposition, the learned Counsel for the appellant relies on Ramamirtha Ayyan v. Gopal Ayyan 19 M. 433 in which the learned Judges say:

We are further 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 alia, 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. We accordingly hold that there was no gift.

2. The argument of the learned Counsel for the respondents is that the deed of gift is a registered instrument within the meaning of Section 123 of the Transfer of Property Act and that the compulsory character of registration counts for nothing. He relies on Nand Kishore Lal v. Suraj Prasad 20 A. 392 in which it is held that a 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'. Under the Transfer of Property Act, registration is essential to complete a gift of immoveable property and the question we have to decide is whether the registration of a deed of gift of immoveable property against the wishes of the donor is sufficient to complete the gift. I am of opinion that it is not. In order to make a gift complete, it is well settled, both in England and British India, that the donor must do all he can to make the gift complete.

3. In re Griffin (1899) Ch. D. 408 : 68 L.J. Ch. 220 : 79 L.T. 442 : 15 T.L.R. 78, it is remarked in effect that the settled law of the Courts of Equity is that where anything remains to be done by the donor, the gift is ineffectual. In Moore v. Moore (1899) L.R. 18 Eq. 474 it was held that a transfer of railway stock in the books of the company being necessary, the mere delivery of the cerificates did not give the intended donee a valid title against the donor.

4. Batty, J., in Joitram v. Ram Krishna 27 B. 31 says:

The other Privy Council case of Ibrahim Ali Khan v. Ummatul Zohra 19 A. 267 : 24 I.A. 1 seems to establish the converse, viz., that when the alleged donor has not done all he could to complete the gift but has made a reservation of the jus disponendi, the alleged gift is unsustainable. The essential to the validity of a gift seems to be, therefore, that the donor should have done all he could to complete the gift.

5. The mere acceptance of an offer in a gift creates no right whatsoever in favour of the intended donee and he, therefore, is not entitled to apply for the registration of the deed of gift. If he succeeds in procuring registration of the deed of gift against the wishes of the donor, such a registration cannot possibly complete the gift. When a donor refuses to have a deed of gift registered, it cannot be said that he did all he could to complete the gift. He changed his mind to give. Registration does not show that a document is valid and the following remarks of Earl Selborne, L.C., in France v. Clark 26 Ch. D. 257 at p. 263 : 53 L.J. Ch. 585 : 50 L.T. 1 : 32 W.R. 466 relating to registration in the books of a company apply with equal force to registration in British India:

This, in our opinion, renders it unnecessary to consider whether before the registration was complete, the company and the appellant had notice of the plaintiff's claim; for registration in the name of a transferee only gives complete effect to a prior valid transfer, registration does not make effectual what was as between the alleged transferor and transferee inoperative and of no effect.

6. The view taken in Kanhaya Lal v. Sardar Singh. 29 A. 284 : 4 A.L.J. 171 : A.W.N. (1907) 46 also points that way.

7. The case of Nand Kishore v. Surai Parsad 20 A. 392 and the cases which follow it are distinguishable from the case before us. The Allahabad case simply lays down that a post mortem registration does not render a gift of immoveable property duly made invalid. It does not rule that a deed of gift of immoveable property registered against the wishes of the donor is sufficient to make it complete. In Bhabatosh Banerjee v. Soleman 33 C. 584 : 10 C.W.N. 717 : 4 C.L.J. 340 two propositions are laid down:

(1) The expression registered instrument' in Section 123 (of the Transfer of Property Act) means an instrument registered in accordance with the provisions of the Indian Registration Act, and not necessarily one registered by the donor himself.

(2) Where a Hindu executed a deed of gift in favour of his wife and it was registered after his death on her admission she being his representative the deed was a registered instrument within the meaning of Section 123 of the Transfer of Property Act.

8. The case proceeds on treating the widow as the representative, of her deceased husband and on regarding her admission of execution to be sufficient for the purposes of registration. It does not touch the point that registration of a deed of gift contrary to the wishes of the donor completes the gift. In Khushaba v. Chandrabhagabai 32 B. 441 : 10 Bom. L.R. 536 in following the rule laid down in Nand Kishore Lal v. Surai Prasad 20 A. 392 Batchelor, J., remarks:--'It must be remembered, moreover, that here the donor had done all that was required of him to do in order to make the gift complete and the subsequent registration could have been effected without any co-operation on his part.' With great respect to the learned Judge, I am unable to hold that when a deed of gift is registered against the wishes of a donor, it can be said that he did all be could to complete the gift and that in such a case registration could be effected without his co operation in order to complete the gift. The donor in such a case, as a mere volunteer, has no remedy and is not entitled to apply for registration.

9. In Pakran v. Kunhammed 23 M. 580 the mother of three sons executed a deed of gift in favour of one of them. The donee alone after the death of his mother registered the document, the other sons not appearing. The act of the Registering Officer in treating the donee as the representative of the donor was held to be an error in procedure which did not render the registration invalid. This case also does not deal with the effect of registration against the wishes of the donor on the validity of the gift.

10. In Meiyyalu Nadan v. Anjalay 25 M. 672 it is held that the voluntary registration of a deed of gift by the legal representative of the donor has the same effect as its voluntary registration by the donor himself in his lifetime. This case has no hearing on the point we have to decide. It is noteworthy that in the cases decided after Ramamirtha Ayyan v. Gopal Ayyan 19 M. 433 no reference is made by any of the Judges to that case. This lends support to the view that the point decided in that case is quite different from the point decided in the other cases.

11. For the above reasons, I would allow the appeal and decree the plaintiff's claim with costs in all Courts including in this Court fees on the higher scale.

Chamier, J.

12. The facts of this case have been stated by my learned colleague. It is sufficient for me to say that the case on which the appellant came into Court failed. Four points are taken in the memorandum of appeal presented to this Court. The first, second and third were abandoned by the learned Vakil for the appellant. The only point pressed is that the deed of gift is not enforceable against the appellant because she withdrew her consent thereto before it was registered as is shown by the fact that the respondents had it registered against her will. The learned Counsel for the appellant relied upon the decision of the Madras High Court in Ramamiriha v. Gopala 19 M. 433 that a deed of gift registered against the will of the executant confers no title upon the donee and he referred also to the cases of Meiyyalu v. Anjalay 25 M. 672 and Kanhaya Lal v. Sardar Singh 29 A. 284 : 4 A.L.J. 171 : A.W.N. (1907) 46. The first of these three cases certainly goes the whole length of the appellant's contention but has been criticised unfavourably by Sir H. Shephard who was a Judge of the same Court in his work on the Transfer of Property Act. The second case merely decides that consent to registration given by the legal representative of a donor is sufficient to validate the gift. In the third case, the Court decided that the Sub Registrar had refused to register a document under Section 76, therefore a suit lay under Section 77 of the Regsitration Act and that the only question to be decided in a suit under Section 77 was whether the deed was genuine. This case appears to have no bearing upon the question which we have to decide.

13. Gift is defined in Section 122 of the Transfer of Property Act. In the present case, there was a duly executed deed of gift and acceptance by the donees. Section 123 of the Act provides that for the purpose of making a gift of immoveable 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. Here we have a duly registered instrument signed and attested as required by the Act. Does the fact that the donor changed her mind after executing the deed and after the gift had been accepted by the donees affect the validity of the gift? I think not. The argument that a donor has a kind of locus poeintentiae till the deed has been registered and that a gift evidenced by a written instrument is incomplete till registration, is attractive but is, I think, unsound. Registration is not the act of donor but the act of an officer appointed by law to register documents. A document need not even be presented for registration by the executant. It has been held in several cases that a deed of gift registered after the death of the executant is valid and the law expressly provides that a registered deed shall operate from the time when it would have commenced to operate if no registration were required or made. Consent to the registration of a deed of gift is not part of the gift. If it were an essential part of the gift, every gift of this kind would of necessity fail if the deed were not registered during the life-time of the donor. The contrary has been decided in several cases. See, for example, Pakran v. Kunhammed 23 M. 580; Nand Kishore v. Suraj Prasad 20 A. 392 and Khushaba v. Chandrabaghabhai 32 B. 441 : 10 Bom. L.R. 536. In other words it appears to me that if consent to the registration of a deed of gift is part of the gift, the gift must be regarded, in part at all events, as the act of the person who consents and the question of the validity of the deed must depend not upon whether the executant had power to give and did in fact give the property but upon whether the persons who consented to the registration had the power to give and did in fact intend to give the property to the donee.

14. I agree with the decision in Bhabatosh Banerjee v. Soleman 33 C. 584 : 10 C.W.N. 717 : 4 C.L.J. 340 that the expression 'registered instrument' in Section 123 of the Transfer of Property Act means an instrument registered in accordance with the provisions of the Registration Act, and not necessarily an instrument registered with the consent of the executant donor. I think also that Batchelor, J., was right, when he said in the case reported in Khushaba v. Chandrabhagabai 32 B. 441 : 10 Bom. L.R. 536 where the donee had died before registration-

15. It must be remembered that the donor had done all that was required of him to make the gift and the subsequent registration could have been effected without any co operation on his part'.

16. For the above reasons, I am of opinion that the gift now in question should not be held to be invalid merely because the deed was registered without the consent or against the will of the appellant. I would dismiss the appeal with costs.

17. The order of the Court is that the appeal be dismissed with costs which in this Court will include fees on the higher scale.


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