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2014 DIGILAW 2214 (BOM)

Sonya Chikhalikar v. Anita Fernandes

2014-10-30

R.S.DALVI

body2014
JUDGMENT R.S. Dalvi, J. 1. This Notice of Motion is taken out by the defendants for vacating and setting aside the ad interim and interim orders dated 8th October, 2001 and 6th November, 2003. The plaintiffs and defendant No. 1 are sisters being children of one Edna Sequeira (Edna). The plaintiffs sued for an injunction restraining the defendants from selling, alienating, encumbering and creating third party rights in the suit property being Sun Rise Cottage, a bungalow in which Edna resided until her death and for revocation of Deed of Gift executed by Edna in favour of defendant No. 2. Since the Gift Deed was challenged, it was looked into by the Court whilst passing the aforesaid orders. The Gift Deed was seen not to have been registered until the filing of the suit. The Gift Deed is document compulsorily registrable. It was observed that the Gift Deed was lodged for registration but was never registered. The Court also observed that what was registered was Deed of Confirmation to which donor was not party. Hence the Court observed that defendant No. 1 could not have got absolute rights under the Gift Deed. Consequently an order of injunction came to be passed. It is this order which is sought to be vacated as the Gift Deed has been registered after filing of the suit and after the ad interim and interim orders came to be passed. 2. The Gift Deed was executed on 24th February, 1985. It was lodged for registration on 28th February, 1985. The Gift Deed showed the valuation of the gifted property which was a bungalow to be of Rs. 49,000/-. The stamp duty of Rs. 4,900/- came to be paid at the time of registration in 1985. The donor had signed the document and admitted registration before the Sub Registrar of Assurances, Mumbai. The donee accepted the gift. The Gift Deed has been attested by two other witnesses one being the Advocate and solicitor of this Court. 3. Thereafter the Deed of Confirmation came to be executed only by defendant No. 1 and not the deceased, Edna. It would confer no rights upon any one. 4. Edna executed her will on 15th November, 1999 and codicil on 26th April, 1999 also bequeathing the suit property. 3. Thereafter the Deed of Confirmation came to be executed only by defendant No. 1 and not the deceased, Edna. It would confer no rights upon any one. 4. Edna executed her will on 15th November, 1999 and codicil on 26th April, 1999 also bequeathing the suit property. She died on 13th May, 1999 and the suit came to be filed in June, 1999 for protection of suit property upon the challenge to the Gift Deed. The Gift Deed has been ultimately registered on 30th June, 2009. This is upon the payment of the requisite stamp duty which was initially found inadequate and insufficient and upon adjudication along with penalty charges levied on 11th May, 2009. Consequently from 1985 until 2009 the Gift Deed executed by Edna in favour of defendant, No. 1 which was lodged for registration, did not get registered. 5. The Gift Deed is a document compulsorily registerable. A document can be registered only after payment of the necessary stamp duty. The stamp duty would have to be adjudicated by the stamp authority. The document lodged for registration would remain at that until the necessary adjudication of the requisite stamp duty is applied for and made if the document did not show the payment of adequate and sufficient stamp duty from the inception. If, therefore, an executant of a document does not pay sufficient, adequate and requisite stamp duty, the document would remain unregistered. The Gift Deed which is unregistered cannot be acted upon and is not a valid gift. It is only upon registration that it would assume validity in law. That would be only when the necessary stamp duty along with penalty is paid and the document is registered. Edna had passed away before registration. Edna, who was the donor, had not paid requisite stamp duty during her lifetime. The Gift Deed could not take effect during her lifetime. She, therefore, continued to be the owner of the suit property during her lifetime. She has executed a will and codicil for which probate has now been applied for and is pending. 6. The contention of the plaintiffs that the suit property has been bequeathed by her and must devolve upon all her heirs as per the bequest made in the will is, therefore, prima facie seen to be correct. She has executed a will and codicil for which probate has now been applied for and is pending. 6. The contention of the plaintiffs that the suit property has been bequeathed by her and must devolve upon all her heirs as per the bequest made in the will is, therefore, prima facie seen to be correct. The case of defendant No. 1 that at the time of the death of Edna she was no longer the owner of the suit property and hence could not have bequeathed the property and the bequest had a deemed or lapsed is, prima facie, seen to be incorrect, in view of the fact that the Gift Deed was never registered during her lifetime and prior to the execution of the will. 7. In the case of (Har Narain (Dead) By LRs. v. Mam Chand (Dead) by LRs.)1, (2010)13 S.C.C. 128 the effect of registration of a sale deed which was also compulsorily registrable document under the Transfer of Property Act, 1882 (TP Act) has been considered. It is held that the sale is not complete unless the document is registered. Under section 54 of the TP Act, a sale has to be made by a registered instrument. Under section 17 of the Registration Act, 1908 the sale is compulsorily registrable. Under section 47 of the Registration Act the registered document would operate from the time of the execution and not from the time of its registration. The concept of the compulsory registration and effect of registration has been explained in paragraph 23 of the judgment. It is held that the sale could not be termed as complete sale until the document was got registered. The registration would relate back to the date of execution but that did not mean that the sale would be complete prior to the date of registration of the document. 8. In this case, therefore, the Gift Deed which was compulsorily registrable had to be registered by the donor. It had to be registered during her life time. That would imply payment of the necessary adequate, requisite and sufficient stamp duty to enable it to be registered by the registering authority. The document would be a complete gift only when it was registered. It would not be a valid gift prior to the registration. It had to be registered during her life time. That would imply payment of the necessary adequate, requisite and sufficient stamp duty to enable it to be registered by the registering authority. The document would be a complete gift only when it was registered. It would not be a valid gift prior to the registration. Once registered, the registration would relate back to its execution but the gift could not have been completed prior to the date of the registration which was after the death of the donor. Consequently the gift could not have been completed during lifetime of the donor. Once that is seen, the completion of the gift after her death would be wholly inconsequential. 9. The document of the Deed of Gift itself shows the aforesaid position. The document is admitted and hence so are the steps taken towards its execution and registration including the payment of stamp duty and the penalty which was paid precisely 10 years after the death of the deceased. 10. In the case of (Hamda Ammal v. Avadiappa Pathar & 3 ors.), (1991)1 S.C.C. 715 also the Supreme Court has considered the purport of section 54 of the Transfer of Property Act and 47 of the Registration Act. It is clear that the registration would relate back to the date of its execution of the document. It is, therefore, argued that once the document was registered, albeit 10 years after the death of the deceased, it would operate from and relate back to the date of its execution and hence deed of gift which was lodged for registration but not registered by the registering authority for a period of 24 years could not affect the right of defendant No. 1 as the donee under the document. However, it would have to be seen whether the document a completed document at the time it was lodged for registration. If the parties registering a document complete all the necessary requirements of law including payment of the requisite stamp duty and if the registering authority fails to register the document for a period of time and the document is thereafter registered, the registration would certainly relate back to the date of lodging the document for registration. If the parties registering a document complete all the necessary requirements of law including payment of the requisite stamp duty and if the registering authority fails to register the document for a period of time and the document is thereafter registered, the registration would certainly relate back to the date of lodging the document for registration. However the transfer could not have been completed prior to the registration and hence prior to the parties performing all the necessary acts for such registration e.g. payment of stamp duty, attestation etc. 11. The observation of the Supreme Court in paragraph 23 of the judgment in the case of Har Narain (supra) makes this clear setting out the fact of section 47 of the Registration Act thus: "... registration would relate back to the date of execution but it does not mean that sale would be complete in favour of respondents 2 to 6 prior to 3rd September, 1971 i.e. the date of registration of the sale deed." 12. The case of Hamda Ammal (supra) being of sale inter vivos, the fact of the sale could take place later and that would relate back to the prior date. In this case because Edna expired without the gift deed being registered and without payment of the necessary stamp duty by her during her lifetime, the gift deed never became a completed valid gift (as was the 'completed sale' in the case of Har Narain. Once this is not done and the gift deed was not executed as a valid document by Edna during her lifetime, the gift deed would remain an invalid document for ever. 13. Consequently the suit property is not seen to have been validly gifted to defendant No. 2. Consequently the suit property continued to remain a part of the estate of the deceased Edna. It, therefore, must continue to be protected by the order of injunction against selling, alienating, transferring, parting with possession or creation of third party rights by the defendant. Hence orders already passed are confirmed and the prayer for vacating the order is refused. Notice of Motion is off accordingly. 14. Written Statement of the defendants is filed. ISSUES "1. Whether the deed of gift dated 27th February, 1985 was a valid gift executed by Edna, the mother of the plaintiffs and defendant No. 1. 2. Hence orders already passed are confirmed and the prayer for vacating the order is refused. Notice of Motion is off accordingly. 14. Written Statement of the defendants is filed. ISSUES "1. Whether the deed of gift dated 27th February, 1985 was a valid gift executed by Edna, the mother of the plaintiffs and defendant No. 1. 2. Whether the gift deed confers any right, title and interest upon the defendant No. 1. 3. What relief, if any, are the plaintiffs entitled to?" 15. The deed of gift dated 27th February, 1985 is an admitted document. The relationship between the parties is also admitted. The parties shall lead oral evidence relating to the disputed facts. The plaintiffs shall file their affidavits of examination-in-chief as also affidavits of documents within four weeks. 16. The reliefs to be granted for the issues in the suit would also relate to the Testamentary petition No. 1080 of 2011 which has been converted into Testamentary Suit No. 23 of 2012 for probate which has been filed by the plaintiffs in respect of the estate of the deceased Edna Sequeira. This suit shall be tried along with the Testamentary Suit between the same parties. Hence both suits shall be tagged. The suit is adjourned to 1st December, 2014 for considering the admissibility of the documents of the plaintiff. The parties shall apply to the Hon'ble the Chief Justice for assignment of one Court for both the suits.