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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 ..... consideration by one person, called the donor, to another, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.R. (1898) 23 Bom. 234 this effect has been clearly pointed out. 7. In the present case, therefore, 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 gif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration Act. The provisions of the Indian Registration Act, as I understand them, do not and cannot affect the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of the very nature of the transaction, until it is completed according to law, I hold that 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dred rupees and upwards, or in the case of reversion or other intangible thing, can be made only by a registered instrument" It also provides that "a contract for the 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng two things, viz., (a) a transfer executed by the transferor, and (6) registration which may be effected by either of the parties, but which does not depend on the consent of the transferor. 28. Why then should we adopt 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5] 1 Ch. 472 . 31. Turning then to the gift sections once more, what are the requisites for a valid voluntary transfer ? We have first to see whether we have an instrument duly signed by the donor and attested Next, if we 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only that the instrument should be duly executed and attested in the manner provided by Section 123 of the Transfer of Property Act, but also that the registration should be either at the instance of or at letter with the consent of the donor. 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 judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; for so far as he is concerned he has by executing the deed done all that he need do, for registration can be effected even without his co operation. 37. Speaking for myself, I think that the policy of the Transfer of Property Act is to 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay decisions because subsequent rulings of the Privy Council have thrown some doubt upon the point. But I need not pursue the matter further, nor consider the question of possession in the present case which I understand is a disputed point of fact, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another leading case on the subject of English gifts. 44. It has been argued before us that 011 the principles laid down in those decisions the donor here has not done all that he could do to perfect the gift, because he himself might have got it 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trary the Acts were intended to shut out the very class of evidence on which this distinction if once allowed would normally be based-I mean oral evidence. 47. After giving then my best consideration to the several contentions put before us 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 hande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B, ₹ 1,000, A puts his promise to B into writing and registers it. This is a contract." To my mind, the words of Clause (J) of Section 25 equally apply to a case like that before us, and the illustration might be altered by substituting for the words "and registers it" the words "and hands the document to B, who gets it registered under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Indian law bearing on gifts are contained in Chapter VII of the Transfer of Property Act, IV of 1882. "Gift" is defined in Section 122 as a "transfer of property made voluntarily and without consideration by one person, called the donor, to another, called the donee." 60. Section 123 of the Act is as follows :-"For the purpose of making a gift 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples, sections 1H, 25, 26. 65. Portions of the passage cited above were cited with complete approval by their lordships of the Privy Council in Mahomed Musa v. Aghore Kumar Ganguli (1915) L.R. 42 I.A. and also in Malrajy, Lakshmi Venkayyamma v. Venkita, Narasimha Afjpu Rao (1916) L.R. 44 IndAp 18. In the former case their lordships observed that there was nothing in the law of India inconsistent with the law as stated 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled. And the same was held of a Mahomedan gift in Sailik Husnin Khan's case referred to above. It seems to me that the registration prescribed by Section 123 is not mere evidence of the gift, but is part of the gift itself, It is, I think, a necessary part of the proposition that a gift has been " effected " It is not mere evidence to prove that there has been a gift, but it is a fact to be proved to constitute the proposition that there has been a gift. For the above reasons, I have come to the conclusion that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mortgage resile from the transaction before the instrument of sale or mortgage is registered, a donor also cannot resile after execution of the instrument of gift and before registration thereof. I feel myself unable to accede to that contention. The reason why a conveyance or a mortfaee cannot be revoked after execution and before registration is not because registration may be effected in spite of the donor's protest but because in the case of sales and mortgages once a contract of sale or mortgage is made; neither a vendor nor a mortgagor could rescind it at his pleasure, while in the case of 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 trans ..... 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