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2010 DIGILAW 663 (AP)

Mohd. Ghouse v. Shareefunnisa

2010-07-27

NOUSHAD ALI, V.ESWARAIAH

body2010
Judgment Noushad Ali, J. This Writ Petition is filed assailing the orders, dated 04-05-2010 passed in L.G.C.No.11 of 2009 on the file of the Special Court under A.P.Land Grabbing (Prohibition) Act, Hyderabad (“Special Court” for brevity) whereunder the Court declined to accept an unregistered gift deed presented by the petitioner as evidence. The petitioner claims to be the absolute owner and possessor of land, measuring an extent of Ac.1.10 guntas situate in Sy.Nos.139 and 140, corresponding to T.S.No.3, 4, 5 and 7, Ward No.6, Block-N of Panchamulaguda, Yellareddyguda, Hyderabad. It is his claim that one Mohd.Sadiq Ustad, son of Rehman Saheb was the original owner of the said land by virtue of a patta granted by the then Office of Aval Taluqdar, Atraf Balda. The said pattedar was a bachelor and he, out of love and affection towards the petitioner, gifted the land to the petitioner and executed a gift deed, dated 09-03-1971. The petitioner thus assumed and remained in possession of the said land till 2006. As the said land has been allegedly grabbed, the petitioner initiated the L.G.C. in the Special Court. During the course of proceedings, the petitioner produced the said gift deed in support of his claim. On the objection of the respondents, the Special Court, on the ground that the document is an unregistered gift, held by virtue of the impugned order that the same cannot be received as evidence. Heard the learned counsel for the petitioner. The learned counsel would submit that the Special Court did not examine the document, a perusal of which would disclose that the gift was made out of natural love and affection in favour of the petitioner and that the said gift was not contemporaneous. The document, if properly read and examined, would show that the gift was made in the year 1971 itself, hence does not require registration. He would further urge that in any event, a gift under Mohammedan Law does not require registration. He would therefore contend that the order impugned is not maintainable. In order to verify whether the gift was contemporaneous, we perused the said document, which is filed as Ex.P2 in the Writ Petition. The document is titled as “Gift Deed”. It was executed on 09-03-1971 at Hyderabad by Mohd.Sadiq Ustad, son of late Mohd. He would therefore contend that the order impugned is not maintainable. In order to verify whether the gift was contemporaneous, we perused the said document, which is filed as Ex.P2 in the Writ Petition. The document is titled as “Gift Deed”. It was executed on 09-03-1971 at Hyderabad by Mohd.Sadiq Ustad, son of late Mohd. Rehman Saheb, resident of Panchamulaguda, Yellareddyguda, Hyderabad as the “Donor” in favour of Mohd.Ghouse, son of Khasim Saheb, resident of Panchamulaguda, Yellareddyguda, Hyderabad as the “Donee”. The gift deed to the extent relevant is as under : “xxx xxx xxx AND WHEREAS the Donor herein have an intention to gift the said property to the Donee in consideration of natural love and affection towards the donee and in view of services rendered by the donee towards the donor, and the donor herein today gifted the said property to the donee and delivered the possession of the same to donee and the donee herein has accepted the said gift and obtained the possession of the said property hereby gifted to him by the donor. 1. xxx xxx xxx 2. xxx xxx xxx 3. xxx xxx xxx 4. xxx xxx xxx 5. That the donor herein has delivered the peaceful actual and vacant possession of the property to the donee and since today onwards the donee is have full right and title of the said property.” The recitals “the donor herein today gifted the said property to the donee herein and the donee herein has accepted the said gift and obtained possession; and since today onwards the donee is having full right and title of the said property”, are unambiguous. On a plain reading, the said recitals show that the gift has been made by virtue of the document and possession has been handed over under the document only. Therefore merely because it was executed in the past in the year 1971 does not make the document non-contemporaneous. The next contention which is reiterated in this writ petition that a gift under Mohammedan Law is not compulsorily registerable, is equally misconceived. Under Section 147 of the Principles of Mohammedan (Mulla), writing is not essential to the validity of a gift either of movable or immovable property. The next contention which is reiterated in this writ petition that a gift under Mohammedan Law is not compulsorily registerable, is equally misconceived. Under Section 147 of the Principles of Mohammedan (Mulla), writing is not essential to the validity of a gift either of movable or immovable property. Gift in such cases is valid if there is a declaration of gift by the donor, an acceptance of gift expressly or by implication coupled with deliver of possession of the subject of the gift by the donor to the donee. A gift of this nature does not require registration for effecting it. However, when the parties to the transaction do not take recourse of Mohammedan Law, instead take recourse to general law under Transfer of Property Act, Section 123 thereof mandates that a gift of immovable property must be effected by a registered instrument signed on behalf of the donor and attested by at least two witnesses. Only in the case of movable property transfer can be effected either by a registered instrument signed as stated above or by delivery in the same way as goods sold may be delivered. A gift made in writing even by a Mohammedan to be valid therefore requires registration. In the instant case since it is held that the gift was in writing and contemporaneous, but the instrument has not been registered is not acceptable in evidence. The Special Court has elaborately considered this aspect and rightly declined to accept the gift deed as evidence. In the analysis above, there are no merits in the Writ Petition. The Writ Petition is, therefore, dismissed at the admission stage.