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1998 DIGILAW 438 (MP)

Chhote Khan v. Johra Bi

1998-06-22

A.S.TRIPATHI

body1998
JUDGMENT This revision has been preferred against the order dated 3rd of Dec. 1997 passed by the Civil Judge Class II, Gwalior whereby the alleged gift-deed dated 3rd of May, 1976 filed on record was refused by the trial Court, to be taken in evidence as it was not registered. A direction was given that the gift-deed so executed requires registration under section 17 of the Indian Registration Act. The contention raised by the learned counsel for the petitioners was that under the Mohamedan Law in view of Article 150 (4) of the Mullah's Mohamedan Law, the law as envisaged amongst Muslims has been enumerated in the following terms: "If it is to be proved by oral evidence that a gift was completed as required by law (secs. 149 and 150), it is immaterial that the donar had also executed a deed of gift, but the deed has not been registered as required by the Registration Act under section 17 (a) of the then Registration Act" Learned counsel for the petitioner urged that in view of the provisions of section 49 of the Indian Registration Act, this instrument of gift at least, could be used for collateral purpose to prove the nature of possession. This point has not been considered by the trial Court as to whether the application of section 49 of the Indian Registration Act could be made between the parties who are Mohamedans applying the principle laid down in section 150 (4) of the Mullah's Mohamedan Law. After hearing learned counsel for the parties and perusing the impugned order, it appears that according to the contention raised by the petitioner, this act of gift has, already been taken place, which could be proved by oral evidence. The deed of gift was also executed lateron in token of the same. In view of these facts and circumstances, once the parties entered into evidence and are able to prove the act of gift by oral evidence, the subsequent document of gift which was executed in token by donar could be accepted in evidence for collateral purpose as envisaged under section 49 of the Indian Registration Act. In view of these facts and circumstances, once the parties entered into evidence and are able to prove the act of gift by oral evidence, the subsequent document of gift which was executed in token by donar could be accepted in evidence for collateral purpose as envisaged under section 49 of the Indian Registration Act. As such, according to the petitioner's counsel the bar of section 17 (a) of the Indian Registration Act does not come in the way of the petitioner to prove the gift by oral evidence and to use this document for collateral purpose in respect of nature of possession. Learned counsel for the respondents-plaintiffs urged that the document which is in the nature of gift deed could not be accepted on record as gift deed without its registration. But he agrees that this document in token of the gift-deed could be considered only for collateral purpose under section 49 of the Indian Registration Act. Therefore, without recording any finding on the points raised between the parties, it is suffice to say that both the parties are mohamedans, personal law is applicable to them, section 150 of the Mullah Mohamedan Law applies, and therefore, it is to be considered by the trial Court in view of the evidence led by the parties at the time of final hearing. But, at the same time, the document could be taken on record for collateral purpose in respect of proving the nature of possession in accordance with section 49 of the Indian Registration Act. It is therefore, directed that the first point as observed above, shall be considered by the trial Court after the evidence led by the parties. But on the second point, the document can be considered and taken on record only for collateral purpose for proving the nature of possession as provided under section 49 of the Indian Registration Act. The impugned order of the trial Court stands modified accordingly, and the revision petition is disposed of finally with the above direction.