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TMI Blog1924 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , called the donee and accepted by or on behalf of the donee. It further provides that such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. 3. Section 123 provides that for the purpose of making a gift 4 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. In the case of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. 4. In the present case, we are concerned with a gift of Immovable property and it seems to me to be the clear effect of these two sections that until the document is registered the gift is incomplete in law even though the other two conditions as to the instrument being duly signed and attested and as to acceptance are satisfied. The essentials of a completed gift, according to these sections, appear to be that a transfer of the property is made voluntarily and without consideration by an instrument which is signed by or on behalf of the donor, and attested by at least two witnesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, we are not concerned with the question as to whether possession of the property has been transferred or not. But we are concerned with the question as to whether there has been a transfer of property within the meaning of the Transfer of Property Act. In Section 5 transfer of property is defined. I may also refer to Section 9, upon which Mr. Shingne has relied, as indicating that a transfer of property may be made under the Act without writing in every case in which a writing is not expressly required by law. But in the case of a gift a writing is required by law as stated in Section 123, and it is also required to be registered. 8. I have already stated my reasons in the referring judgment for the proposition that an incomplete gift can be revoked by the donor at any time, before it is completed; or, if the use of the word 'revoke' appears inapt with reference to an incomplete gift, I would say that the donor can cancel the transaction before the transfer is effected to constitute a complete gift The question is whether until the document is registered the gift can be said to be incomplete in the sense that it leaves the power of revocation in the donor unaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question as to when the power of the donor to put an end to an incomplete gift ceases. 10. In determining the question under the Indian law, it seems to me that all technical rules of English law relating to deeds and delivery of deeds should be left out of consideration. At least they cannot help us in determining this question. In my opinion the question must be determined with reference to the Indian law which is to be found for the purposes of this case in the Transfer of Property Act. The execution of the instrument and the delivery thereof without registration would not have the effect of effecting the transfer or of completing . the gift. 11. I may refer to Section 126 of the Transfer of Property Act, upon which reliance has been placed on behalf of the respondents as indicating that a gift cannot be revoked except as provided in that section. That is perfectly true. But that applies to a case of a completed gift. It does not purport to lay down any rule as to the rights and powers of the donor before the stage of completion is reached. 12. Reference was made in the argument to the consideration that though in the case of sales and mortgages documents are required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the donor has the right to revoke the incomplete gift or to resile from his act before the document is registered. To deny that right to the donor is really to import into the provisions of the Transfer of Property Act a stage in the completion of the gift which is not contemplated or provided for by the Act itself, Shortly stated, I am still of opinion, if I may say so with respect, that the reasoning of the learned Chief Justice in Subba Rama v. Venkatsubba^ is sound and correct 14. As regards the second question, it must depend upon the view which one takes of the first question. It is clear that the document when registered would take effect from the date of its execution. But if it is open to the donor to cancel the transaction before the document is in fact registered, it follows that the fact of registration after revocation cannot affect the revocation. Amberson Barrington Marten, J. 15. The questions referred to this Full Bench are in effect whether a donor of Immovable property can at any time before actual registration revoke a gift purporting to have been effected by a registered instrument signed by him and duly attested and accepted by the donee. It is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale of Immovable property does not of itself create any interest in or charge on such property. 20. Turning next to mortgages, they are defined in Section 58. Then Section 59 enacts that - where the principal money secured is one hundred rupees or upwards, a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. 21. Next we come to gifts. Section 122 defines a gift as :- The transfer of certain existing moveable or Immovable property made voluntarily and without consideration by one person called the donor, to another, called the donee and accepted by or on behalf of the donor. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donor dies before acceptance, the gift is void. 22. Stopping there for a moment, as I have already pointed out, there was an acceptance here by the defendant donee, and moreover the document itself was handed to him. So Section 122 was complied with here. 23. Next we come to Section 123 which rung as follows :- For the purpose of making a gift of Immovable property, the transfer must be effected by a registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opt a different construction in Section 123 ? The Indian Registration Act does not require the consent of the donor to registration any more than it does that of a vendor or a mortgagor. In fact, the document in question in the present case has been registered under part 12 of the Indian Registration Act despite the donor's active opposition. It is, however, said that we ought to adopt a different construction because the transfers referred to in Sections 54 and 59 are for consideration, but Section 123 refers to a transfer without consideration. I agree that in some cases this distinction may make a practical difference as to whether, quite apart from the validity of the transfer, you can obtain specific performance of any antecedent agreement for such transfer. But I entirely fail to see that it affects the validity of the transfer itself. The Act is here dealing with transfers and not with contracts. It indeed expressly excludes contracts of sale in Section 54 from creating any interest in or charge on land, 29. I wish then to emphasize this distinction between transfers or conveyances on the one hand and contracts on the other hand. They are dealt with in separate Acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have, then is it registered V If it is not registered, then under Section 49 of the Indian Registration Act, the document will not affect any Immovable property comprised therein, nor can it he received as evidence of the transactions, But if it is registered, then under Section 47 it is to operate from the time from which it would have commenced to operate, if no registration thereof had been required or made, (that is, the date of the document) and not from the time of its registration, 32. This, again, is an important point. If the plaintiff is correct, registration is really analogous to execution or attestation; and until all the three requisites are satisfied there is no complete document If that argument is sound, then the document ought to operate from the date of registration, and not from the date of its execution. In this respect the fact that Section 4 of the Transfer of Property Act directs Section 123 to be read as supplemental to the Indian Registration Act is material. It assists the view that while the ordinary law as to transfer is stated in Chapter II of the Transfer of Property Act, the provisions as to registration are to be effected in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The section merely provides that the gift should be effected by an instrument executed by the donor, attested by two witnesses and registered, to our opinion a document registered in accordance with the provisions of the Registration Act is registered instrument, and if the document is in fact duly registered in accordance with those provisions the gift is complete and valid. The law does not require that the registration should be at the instance of or with the consent of the donor. 35. Turning, again, to Subba Rama v. Venkatsubba (1924) 26 Bom. L.R. 407 there is no reference in the judgments to the corresponding sections of the Transfer of Property Act dealing with sales and mortgages. We are consequently without the advantage of knowing the exact grounds on which the learned Chief Justice would distinguish the operation of as, 54 and 59 from Section 123. But, speaking for myself, I entirely agree with and respectfully adopt the judgment of the present Chief Justice of Madras in Venkati Rama Reddi v. Pillati Rama Reddi I.L.R.(1916) Mad. 204 where, after setting out in detail the more material sections of the Transfer of Property Act and the Indian Registration Act, he procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substitute written documents and registration for oral evidence as regards certain descriptions of transfers. But if a written document duly registered like the one in the present case is to be liable to be upset on some alleged revocation before registration, one main object of the Act is frustrated. The argument advanced by the plaintiffs does not confine the alleged right of revocation to revocation by a written and registered instrument. If then it may be oral, there is at once an opening for a false oral story which will be easy to concoct and difficult to check-an opening which I have no doubt would be seized on with avidity by many a litigant. And as to how many years must elapse before it would be safe to accept any title depending on a voluntary transfer, supposing the Transfer of Property Act be construed in that way, I would leave to those skilled in the Indian Limitation Act to consider. 38. It was argued by the learned pleader for the plaintiff that the decisions of Parbati v. Baij Nath Pathak I.L.R. (1912)All. 3 and Venlcati Rama Reddi v. Pillati Rama Reddi I.L.R. (1916) Mad. 204 can be distinguished on the ground that in those cases there was merely an absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because as I read Section 129 of the Transfer of Property Act, the validity of a gift is now determined by the Transfer of Property Act under which possession is not essential (or the validity of the gift in the present case 40. Reference was also made during the course of the able arguments to the English law of gifts. One of the clearest statements I know of on that subject is the well known judgment of Sir George Jessel in Richards v. Delbridge (1874) L. R. 18 Eq. 11 . He there points out the difference between a valid gift and a declaration of trust and states that an incomplete gift will not necessarily be treated as a valid declaration of trust. His exact words are (p. 14):- The principle is a very simple one. Amim may transfer his property, without valuable consideration, in one of two ways : he may either do such acts as amount in law to a conveyance or assignment of the property, and thus completely divest himself of the legal ownership, in which case the person who by the so acts acquires the property takes it beneficially, or on trust, as the case may be; or the legal owner of the property may, by one or other of the modes recognised as amounting to a valid decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t registered. But I think that would be stretching the principles of the English law of gift much too far. If sound, the same argument might also equally apply to a document which was not stamped by the vendor. The answer to it is that it is sufficient if the donor has done all that he need do to enable the donee to get the fruits of the intended gift. The cases of In re Patrick [1891] 1 Ch. 82 and In re King (1879) 14 Ch. D. 179 would tend to show that it will suffice for a valid gift if the settlor has done what is necessary on his part for a voluntary assignment, and has thus enabled his assignees to take any further steps that may be necessary to obtain the subject matter of the gift Mallott v. Wilson [1903] 2 Ch. 494 decides that the mere disclaimer by a voluntary assignee, e.g., the trustee will not render a voluntary settlement inoperative, nor give the settlor any power to revoke the gift unless an express power of revocation has been reserved in the instrument. 45. Further, no case has been cited to us to the effect that under the English law of gift a donor can withdraw a gift at any time before registration, supposing the land is in a county where registration is comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the referring judgments and at the bar, I have arrived at the conclusion that the decision of the Division Beach in Subba Rama, v. Venkatsubba AIR1924Bom434 cannot be supported; that the correct principles are those enunciate 1 in Venkati Rama Reddi v. Pillati Rama Reddi I.L.R. (1916) Mad. 204 and Parbati v. Baij Nath Pathetic I.L.R. (1912) All. 3 ; and that accordingly the first question submitted to us should be answered in the negative. Consequently the second question does not arise. C.G.H. Fawcett, J. 48. I retain my former opinion and agree with the judgment of my brother Marten. 49. I think there is a fallacy in the view that a gift is not completed till the required instrument has been registered. Section 123 does not use the word completed but the word effected. The distinction to my mind is that a gift may be complete so far as the donor is concerned, when he has executed and handed over to the donee, who accepts it, the requisite instrument; but the gift is not legally effective as a valid transfer of the Immovable property until the instrument has been registered. 50. As a similar case, J may refer to the law regarding a, non-testamentary and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of the law in force for the registration of documents. It begs the whole question to assume that, unless A himself registers the document or assents to its registration, there is no valid contract. 53. The difference of opinion between the members of this Bench seems to turn ultimately on the question whether the requirement of registration is per se essential, irrespective of the consideration that the donor, by handing the document to the donee, has put it out of his power to prevent registration. I can see nothing in the rule as to locus pcenitentica laid down in Maddison v. Alderson (1883) 8 App. Cas. 467 which extends the locus to such a case. On the contrary Lord Selborne's quotation from Bell's principles at p. 476, viz., from an obligation to which writing is requisite and has not yet been admitted in an authentic shape, refer prima facie merely to the requirements of execution of a proper instrument and not to any subsequent production of the document or other act of that kind, independent of the will of the executant. 54. I would also draw attention to the fact that the rule of Hindu law that a gift is not valid unless it is accompanied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 61. By Section 126 it is provided that the donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked....A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. 62. Transfer of Property is defined in Section 5 as meaning an act by which a living person conveys property to another living person. By Section 9 it is provided that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. The expression registered is defined in Section 3 as meaning registered in British India under the law for the time being in force regulating the registration of documents. The law in force regulating registration at the date of the writing in this case was the Indian Registration Act XVI of 1908. 63. The point involved in the first of the two q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Lord Selborne, but upon the contrary, that that law followed the same rule. 66. Reading Sections 122 and 123 together, a gift is a transfer which must be effected by registered instrument signed by the donor and attested by at least two witnesses. It follows from these two sections that a gift cannot be said to be effected unless the transfer which constitutes the gift is itself effected in the manner prescribed by Section 123. In the present case there is an instrument signed by the donor and attested by two witnesses: but before the instrument was registered, the donor declared his intention not to be bound by it, and he actually denied execution before the Registrar, The position then is this, that at the date on which the donor repudiated the transaction, there was no transfer effected in the manner prescribed by law and there was no valid and complete gift, in other words, there was no gift at all: see the observations of their lordships of the Privy Council in Sadik Huaain Khan v, Hashim Ali Khan (1918) L.R. 43 IndAp 212 where their lordships said that transfer within the meaning of Section 122 meant prima facie a valid transfer. It is true that in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at at the date on which plaintiff No 1 resiled from the transaction, no transfer by way of gift had been effected as required by Section 123 of the Transfer of Property Act, in other words, there was no gift in law. Whether a transfer by way of gift is effected or not is a question to be determined exclusively with reference to the provisions of Section 123. You cannot split the requisites prescribed by the section into two parts, namely, (1) a writing signed and attested, and (2) registration, and say that because according to the English law a gift is effected when the donor executes a deed of gift, there is a gift effected in the present case also, the donor having signed a document attested by two witnesses, and having handed it to the donee. According to the English law, in the case of a voluntary deed, the donee is entitled to possession of the Immovable property immediately on the execution of the deed. It cannot be suggested that in cases governed by the Transfer of Property Act, a donee is entitled to possession immediately on execution of the instrument of gift and before it is registered. The present case seems to me to be pre-eminently a case in which the analog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an agreement to make a gift, the intending donor may withdraw it at his will except in the rare cases where an agreement to make a gift is made in favour of a near relation out of love or affection and it has been registered, as provided in Section 25 of the Indian Contract Act, 1872. Even in that case the agreement, according to the view I take of the law, may be terminated by the donor at his pleasure at any time before it is registered. 69. There are two other sections of the Transfer of Property Act to which I may here refer. One of them is Section 9 which provides that is a transfer of property may be made without writing in every case in which a writing is not expressly required by law. The other is Section 107 by which it is provided that all leases of immoveable property other than those mentioned in the first paragraph of the section may be made ''either by registered instrument or by oral agreement accompanied by delivery of possession. It was argued on behalf of the defendant that as no mention was made of registration in Section S), registration did not form Dart of a transfer, and the transfer in the present case was therefore effected when plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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