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2003 DIGILAW 1303 (AP)

S. Ameena v. Shaik Hussainvali

2003-10-23

P.S.NARAYANA

body2003
( 1 ) THE Revision Petitioners-Plaintiffs filed the present Civil Revision Petition tinder article 227 of the Constitution of India, aggrieved by the order dated 07-07-2003 made in O. S. 1465 of 1998 on the file of the principal Junior Civil Judge, Tirupathi. ( 2 ) THE petitioners-Plaintiffs filed an application before the Court below to reopen the matter for the purpose of marking an unregistered gift settlement deed 24-12-1988 through P. W. 1 and an objection was taken by the respondent-defendant that the said document being an unregistered one, is inadmissible in evidence. The learned principal Junior Civil Judge, Tirupathi upheld the objection taken by the respondent-defendant and held that the said document is inadmissible in evidence. Aggrieved by the same, the present Civil revision Petition had been preferred. ( 3 ) SRI Seshadri Naidu representing sri R. N. Hemendranath Reddy, the learned counsel for the petitioners made the following submissions: ( 4 ) THE learned counsel would maintain that under Muslim Law, a gift need not be registered at all and the same need not be reduced into writing even provided the other conditions and the ingredients necessary for constituting a valid gift under Muslim Law are satisfied. The learned counsel also submitted that though a contention was advanced that, for collateral purpose the said document may be looked into and willingness was also expressed by the revision petitioners-Plaintiffs to pay, the stamp duty and penalty if any liable to be paid on the said document, the learned Judge had arrived at a conclusion that an unregistered gift deed by a Mohammadan also is inadmissible in evidence. This approach of the Court below is totally erroneous. The learned counsel also had brought to my notice that the petitioners-plaintiffs in fact had moved an application in i. A. No. 1284 of 2003 in O. S. No. 1465 of 1998, expressing their readiness to pay the stamp duty and penalty on the unregistered gift deed dated 24-12-1988 and the said application was dismissed as infructuous. ( 5 ) IN view of the importance involved in the matter, at the instance of the Court sri Subhash Chandra Bose has assisted this court as amicus curiae since none represents the respondent-defendant. ( 6 ) THE facts are plain and simple. The question involved is relating to the admissibility of an unregistered gift deed dated 24-12-1988. ( 5 ) IN view of the importance involved in the matter, at the instance of the Court sri Subhash Chandra Bose has assisted this court as amicus curiae since none represents the respondent-defendant. ( 6 ) THE facts are plain and simple. The question involved is relating to the admissibility of an unregistered gift deed dated 24-12-1988. It is pertinent to note that an application to reopen the case was made and the said application in fact was not decided in view of the objection raised by the counsel representing the respondent- defendant. ( 7 ) SRI Subhash Chandra Bcse, the learned amicus curiae assisting the Court had explained the essentials of a valid gift by a mohammadan and also had cited several decisions relating to this aspect. ( 8 ) THE learned counsel also submitted that the non-registration of a document is something different from a document which is liable for stamp duty and penalty. These two aspects may have to be viewed sepa rately while deciding the admissibility cf a document. The learned amicus curiae had also contended that as can be seen from the facts of the case the learned Principal Junior civil Judge, Tirupathi had considered the effect of the non-registration of the gift only and the other aspect had not been adverted to. ( 9 ) HEARD both the counsel. ( 10 ) AS can be seen from the material available on record, no doubt, an application to reopen the case was made at a belated stage. But , however, while making anattempt to mark the unregistered gift deed dated 24-12-1988, a contention was advanced that the same can be looked into for collateral purpose and also an application in fact was moved, expressing the willingness to pay the stamp duty and penalty, if any, liable to be paid on the said document. But , however, while making anattempt to mark the unregistered gift deed dated 24-12-1988, a contention was advanced that the same can be looked into for collateral purpose and also an application in fact was moved, expressing the willingness to pay the stamp duty and penalty, if any, liable to be paid on the said document. ( 11 ) IN a decision in Mahaboob Sahab v. Syed ismaili, case while dealing with essential conditions for a valid gift under Muslim law, the Apex Court Held as under:"though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act; a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. " ( 12 ) IN a decision in 1g of Regis and Stamps v. T. Begum while dealing with an oral gift by a muslim lady and subsequent document evidencing transaction executed as ekararnama, it was held by a Full Bench of this Court as under:"a deed called ekararnama was executed by a muslim lady on a stamp paper of Rs. 1. 8. 0 in which she stated that she had already gifted a house to her younger son orally and had put it in his proprietary possession of the property. She however declared that there should be no doubt about the transfer and so she executed the ekararnama. The document recited all these circumstances and described her intention to make the gift, the boundaries of the property and was also attested by two witnesses. The question was whether the document operated as a gift deed or merely evidenced a past transaction that the document in question falls within the sweep of Section 17 of the Indian registration Act and it is chargeable to duty as a gift deed. The question was whether the document operated as a gift deed or merely evidenced a past transaction that the document in question falls within the sweep of Section 17 of the Indian registration Act and it is chargeable to duty as a gift deed. " ( 13 ) IN a decision in Chota Uddandu v. Masthan Bi, it was held as under:"after amendment in 1929 in section 129, the operation of the provisions of Chapter VII have been excluded in regard to gifts made by persons professing Muslim faith and made under that law. There is also no justification for making any distinction between secular and non-secular gifts. Hence, if all the formalities, as prescribed by Muslim Law, regarding the making of gifts, are satisfied, the gift is valid notwithstanding the fact that it is oral and without any instrument. If there is a contemporaneous document, it should be registered. But, it the gift is antecedent and the deed is subsequent merely evidencing the past transaction, it does not require registration, because it does not by itself make or complete the gift. ( 14 ) IT was further held as follows: according to the Mohamaedan Law, there canbe a valid gift, if three essentials of the gift are satisfied. (1) a declaration of the gift by the donor, (2) the acceptance of the gift express or implied by or on behalf of the donee and (3) delivery of possession of the subject of gift by the donor to the donee. It is not necessary that there should be deed of gift to make it a valid gift. ( 15 ) IN a decision in Ghoushia Bee v Rajan bi while dealing with an unstamped and unregistered document and consideration of such a document for collateral purpose, this Court held as under:"it is open to the petitioner to specify the total sale consideration by amending the plaint and/or by filing an affidavit. If such step is taken by the petitioner, the lower Court will collect the stamp duty and penalty according to the provisions of the Stamp Act and admit the same in evidence. However, if the lower Court feels that the consideration is understated solely with a view to reduce the liability of stamp duty, it may reject the request of the petitioner. However, if the lower Court feels that the consideration is understated solely with a view to reduce the liability of stamp duty, it may reject the request of the petitioner. When once it is admitted in evidence, it can only be looked into for a collateral purpose of proving that certain amount was paid to the vendor in connection with the sale of the particular property by the father-in-law and husband of the plaintiff. By virtue of the bar contained in Section 49 of the registration Act, the document (as and when subjected to stamp duty) cannot be looked into for any purpose other than the collateral purpose. "reliance was also placed on the decisions in imbichimoideenkutty v. Pathumunni Utnma, md. Hesabuddin v. Md. Hesaruddin, M. Rawther v. M. Charayil, and Ghulam Ahmad v. Mohd. Sidiq (FB ). ( 16 ) IN a decision in Secy. of State v. Harcharan das, it was held that an unregistered deed of gift executed after the passing of the Transfer of Property Act (4 of 1882) is invalid to evidence a transfer but it is relevant for a collateral purpose to show the continuous possession of the plaintiff. ( 17 ) IN a decision in Bondar Singh v. Nihal singh, it was held that under the law a sale deed is required to be property stamped and registered before it can convey title to the vendee. However, legal position is clear that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purpose. ( 18 ) IT is no doubt true that a gift need not be in writing under the Mohammadan Law. But by virtue of Section 129 of the Transfer of property Act, 1882, which specifies that nothing in this chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of mohammadan Law, need not be in writing provided the other conditions relating to the essentials of a gift made by a Mohammadan are satisfied. ( 19 ) IN view of the fact that the petitioners had expressed their willingness to pay the stamp duty and penalty, the learned Judge could have considered this aspect, instead of arriving at a conclusion that the document is inadmissible in evidence for want of registration. ( 19 ) IN view of the fact that the petitioners had expressed their willingness to pay the stamp duty and penalty, the learned Judge could have considered this aspect, instead of arriving at a conclusion that the document is inadmissible in evidence for want of registration. ( 20 ) IN the light of the facts and circumstances, it is no doubt true that the court is at liberty to decide the question whether in fact the document which is sought to be marked is for the collateral purpose or the main purpose. The factual details relating to the respective contentions of the parties on the strength of the respective pleadings and also the material available on record had not been adverted to by the learned Judge and the objection relating to admissibility of the document was decided at the stage where a reopen application was made. ( 21 ) IN view of the peculiar facts and circumstances, the impugned order cannot be sustained and hence, the order in question is hereby set aside and the matter is remitted to the learned Judge to consider whether the document in question is admissible in evidence for collateral purpose on payment of the requisite stamp duty and penalty, ( 22 ) THE Civil Revision Petition is accordingly allowed to the extent indicated above. No orders as to costs. ( 23 ) THIS Court appreciates the assistance rendered by Sri Subhash Chandra Bose as amicus curiae.