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Bhabatosh Banerjee Vs. Soleman - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal584
AppellantBhabatosh Banerjee
RespondentSoleman
Cases ReferredPakran v. Kunhammed
Excerpt:
gift - registration--deed of gift of immoveable property after death of the donor--representative of deceased donor--transfer of property act (iv of 1882) sections 4, 123--registration act (iii of 1877) section 35. - .....banerjee executed a deed of gift, which has been found by both the lower courts to be a valid deed of gift, in favour of his wife jagat mohini. he died the next day. the deed was subsequently registered at the instance of his widow jagat mohini. she then sold the property in question to the defendant. the plaintiff, as the reversionary heir of kaliprasanna, brings this action to recover possession of the property, and the only question we have to decide is, whether in the circumstances the deed was validly registered.2. it is urged for the appellant that the deed in question is not a 'registered instrument' within the meaning of section 123 of the transfer of property act. section 123 runs as follows .---'for the purpose of making a gift of immovable property, the transfer must be.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. One Kaliprasanna Banerjee executed a deed of gift, which has been found by both the Lower Courts to be a valid deed of gift, in favour of his wife Jagat Mohini. He died the next day. The deed was subsequently registered at the instance of his widow Jagat Mohini. She then sold the property in question to the defendant. The plaintiff, as the reversionary heir of Kaliprasanna, brings this action to recover possession of the property, and the only question we have to decide is, whether in the circumstances the deed was validly registered.

2. It is urged for the appellant that the deed in question is not a 'registered instrument' within the meaning of Section 123 of the Transfer of Property Act. Section 123 runs as follows .---'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.' If we look at the definition of the term 'registered' given in Section 3 of the Act, we find it means registered in British India under the law for the time being in force regulating the registration of documents. Passing to Section 4 of the Act, it appears that Section 123 of the Transfer of Property Act is to be read as supplemental to the Indian Registration Act of 1877. It is urged for the appellant that 'registered' there means registered by the donor, and that in the absence of such registration by the donor the deed of gift in the present case was incomplete, perhaps I might say inchoate only, and therefore could have no legal effect.

3. I am unable to take that view, and I am supported by the decision in Wand Kishore Lal v. Suraj Prasad (1898) I.L.R. 20 All. 392. To determine whether the deed of gift was a 'registered instrument' or not, we must refer to Section 35 of the Indian Registration Act. That section says, after 'providing for other cases as regards the admission of execution: 'If the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register, etc.' Now, assuming for a moment that the widow was the representative of the executant of the document, within the meaning of Section 35, we have the fact that she appeared before the registering officer, admitted the execution, and it must be taken that the deed was properly registered.

4. Then as regards the main argument of the appellant that a 'registered instrument' in Section 123 means one registered by the donor, we do not find anything to that effect in the section. In fact the language of the section suggests that it was intentionally left out, because as regards the act of the donor all that it says is that 'it must be signed by or on behalf of the donor,' and nothing is said about the necessity of its being subsequently registered by the donor himself. The Legislature contemplated the possibility of the death of the donor between the date of the execution of the deed and registration. When we read this section with Section 4 of the same Act, and Section 35 of the Registration Act, to which Section 123 of the Transfer of Property Act must be treated as supplemental, it is reasonably clear that 'registered' means registered in accordance with the provisions of the Indian Registration Act, which points directly to the case of the executant, the donor, having died before the registration could be effected. I have, therefore, no hesitation in saying that the deed was a 'registered instrument' within the meaning of Section 123.

5. Then arises the point whether the widow was the 'representative' of the person executing the deed of gift, within the meaning of Section 35. There can be no question that she was his representative. She would have been, if she had applied, entitled in the circumstances to letters of administration to his estate. Prima facie then, she was his representative. But it is urged that, inasmuch as she was also the donee under the deed of gift, she could not properly be regarded as the 'representative' for the purpose of admitting the execution. Such a case may probably have been present to the Legislature when it enacted this section, but it draws no such distinction; it simply says 'representative ', and that the widow undoubtedly was. She was the representative and was, therefore, qualified to admit the execution, and so to render the registration proper and effectual. This view is supported to some extent by the decision in Pakran v. Kunhammed (1900) I.L.R. 28 Mad. 580.

6. On these grounds, the appeal fails, and must be dismissed with costs.

Geidt J.

7. I agree.


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