In
Mahboob Sahab v. Syed Ismail and Others[6] a two-Judge Bench referred to
Section 147 of the Principles of Mahomedan Law by Mulla wherein the
essentials of valid gift under the Muhammadan Law have been elucidated
and proceeded to explicate the principle. We think the reproduction of
the relevant passage would be seemly:- "Under Section 147 of the
Principles of Mahomedan Law, by Mulla, 19th Edn., edited by Chief
Justice M. Hidayatullah, envisages that writing is not essential to the
[pic]validity of a gift either of moveable or of immovable property.
Section 148 requires that it is essential to the validity of a gift that
the donor should divest himself completely of all ownership and
dominion over the subject of the gift. Under Section 149, three
essentials to the validity of the gift should be,
(i) a declaration of gift by the donor,
(ii) acceptance of the gift, express or implied, by or on behalf of the donee, and
(iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150.
If
these conditions are complied with, the gift is complete. Section 150
specifically mentions that for a valid gift there should be delivery of
possession of the subject of the gift and taking of possession of the
gift by the donee, actually or constructively. Then only the gift is
complete. Section 152 envisages that where the donor is in possession, a
gift of immovable property of which the donor is in actual possession
is not complete unless the donor physically departs from the premises
with all his goods and chattels, and the donee formally enters into
possession. It would, thus, be clear that though gift by a Mohammedan is
not required to be in writing and consequently need not be registered
under the Registration Act; for 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." [Emphasis supplied]
IN THE COURT OF SUPREME COURT OF INDIA
IN THE COURT OF SUPREME COURT OF INDIA
Rasheeda Khatoon (D) through LRS. Vs. Ashiq Ali S/o Lt. Abu Mohd (D) through LRS.
[Civil Appeal No. 603 of 2009]
[Civil Appeal No. 564 of 2009]
Dipak Misra, J.
Dated:October 10, 2014
Dated:October 10, 2014
1.
Rasheeda Khatoon, the predecessor-in-interest of present appellants,
instituted regular suit No. 31 of 1975 in the Court of Civil Judge,
Faizabad, seeking recovery of possession from the original defendants.
The case of original plaintiff before the trial Court was that one Abdul
Haq was the owner of the house No. 2868 situated in Mohalla Hayat Ganj
in Tanda, District Faizabad. The only son of Abdul Haq had shifted to
Pakistan at the time of Partition and there was no one to look after
him.
The
father of Rasheeda Khatoon, Hazi Madari, was a close friend of Abdul
Haq, and being a neighbour, she was looking after him for last 20 years
till 24.01.1972 when he breathed his last at the ripe age of ninety.
Regard being had to various aspects and fruther being pleased with her
services, 7 years prior to the institution of the suit he made an oral
gift of the suit house in her favour which was accepted by her and
possession of the house was also handed over. Pursuant to the oral gift
she lived in the premises in question and looked after him.
The
tenants who had been staying in the southern portion of the house,
accepted her status and started paying rent to her. Prior to a year of
his death being apprehensive that some others might disturb in her
possession, he executed a deed of gift in writing evidencing the oral
gift made earlier in favour of the plaintiff.
As
pleaded, within one month from the death of Abdul Haq, the defendants
dishonestly moved an application under Section 145 CrPC before the SDM,
Tanda with an intention to evict the plaintiff and in the said
proceeding the property in question was attached, and all these
circumstances constrained the plaintiff to file the civil suit for
declaration that she was the owner in possession of the house in
question. During the pendency of the suit, as alleged, the defendants
took over possession in pursuance of the release order passed by the SDM
on 12.4.1975 and thereafter the plaintiff amended the plaint and sought
the relief of recovery of possession.
2.
The defendants entered contest and took various pleas to the effect that
the suit was under-valued and the court fee that was paid was not
sufficient; that Abdul Haq was in possession of the house till his death
and never parted possession; that there was no oral gift as asserted by
the plaintiff; that Khairulnisha, Kamrulnisha alias Kumul and
Janharulnisha were the daughters of Abdul Haq; that Khairulnisha died
during the life time of Abdul Haq and her sons Mohd. Ayub, Moyuddin,
Mohd. Yasin, Sagir Ahmad and Bashir Ahmad were alive; that the defendant
No.1 is the son of Jauharulnisha; that Abdul Haq died leaving behind
Kamarulnisha, Jauharulnisha and sons of Khairulnisha as his legal heirs
and they had become the owners; that during life time Abdul Haq had
given certain properties to the son of the defendant No.2; and that
after the death of Abdul Haq defendant No.2 had constructed a shop with
the permission of the defendant No.1 on the condition that the shop
shall be let-out to him.
It
was also asseverated that Jauhirulnissa had executed a sale deed on
8.3.1972 and Usman and Rauf executed a sale deed on 31.3.1972 in respect
of the suit house in favour of the defendant Nos. 2 and 3 and since
then the defendants no.2 and 3 had become the owners in possession; that
the proceeding initiated under Section 145, CrPC was eventually decided
in favour of the defendants; and that the plaintiff had no right, title
and interest over the suit house; and that the defendants are the
owners in possession of the suit property.
3. On the basis of the aforesaid pleadings, the learned trial Judge framed the following issues:-
"1. Whether plaintiff is owner of the disputed house as claimed in plaint?
2. Whether defendant Nos. 1 to 3 are the owners of the disputed house as claimed in their written statement?
3.
Whether there has been an oral gift and subsequent writing evidencing
this gift in favour of the plaintiff by Abdul Haq on 9.10.1970 as
alleged in the plaint?
4. Whether suit is under-valued and deficient in suit fees?
5. Whether suit is not maintainable, as alleged in para no. 29 of the W.S.?
6. Whether suit is barred by Section 34 of Specific Relief Act?
7. To what relief, if any, is the plaintiff entitled in the case?"
4.
The learned trial Judge on appreciation of the evidence brought on
record came to hold that the plaintiff had proved the oral gift executed
by Abdul Haq in her favour; that the gift deed did not require
registration; that the deed of gift could not be ignored solely because
it was not registered when it had demonstrably been established by the
oral and documentary evidence that Abdul Haq had made a gift in favour
of the plaintiff and had put her in possession; and that she was the
owner of the suit premises and entitled to get back possession. Being of
the said view, the trial court decreed the suit.
5.
Being dissatisfied with the said judgment and decree, the defendants
preferred Civil Appeal No. 435 of 1978 and the first appellate court
concurring with the view of the trial court as regards the character and
the nature of instrument, that it is an oral gift, based its
conclusions on the premises that the contents of the document showed
that the 'Hiba' had already been accepted by Rashida Kahtoon before the
deed was executed; that the document was only an evidence of the oral
gift which had been made earlier by Abdul Haq in favour of the
plaintiff; that the stand of the defendants-appellants that the document
could not be read in evidence because it was not registered was bereft
of any substance in view of the language employed in Section 129 of the
Transfer of Property Act (for brevity 'the Act') which lays down that
Section 123 of the Act which mandates registration in case of a gift of
an immovable property does not apply to any gift made under the
Muhammadan Law and a Muhammadan could make an oral gift of immovable
property and if a Muhammadan prepares a document relating to gift such
deed of gift continues to be an evidence of gift. To arrive at the
aforesaid conclusions the first appellate court placed reliance upon the
authorities in Karam Ilahi v. Sharfuddin[1], Nasib Ali v. Wajid Ali[2],
Bishwanath Gosain v. Dulhin Lalmani[3] and Boya Ganganna v. State of
Andhra Pradesh[4].
6.
The aforesaid Judgment and decree passed by the first appellate court
was assailed in second appeal and the learned Single Judge taking note
of the substantial question of law opined that the core issue was
whether the document in question is a deed of gift or it evidences the
oral gift. The learned Single Judge was of the view that if it was
accepted as an evidence of the oral gift it did not require registration
and if it is interpreted otherwise, it required registration.
He
referred to certain provisions of the Act and Section 17 of the
Registration Act and, thereafter, scrutinized the contents of the
instrument in question and came to hold that the document in question
makes it clear that up to the date of execution of gift deed no gift was
made; that the executant of the deed was in possession of the house;
that the deed transferred the property in favour of Rasheeda Khatoon in
praesenti; and that it is clear from the language employed in the gift
deed that the executant had not delivered possession to the donee. Being
of this view, he came to hold that both the courts below had misread
the deed dated 9.10.1970 executed by Abdul Haq and treated it to be an
oral gift though it was a document under which transfer was made and,
therefore, it was compulsorily registrable and accordingly, allowed the
appeal. Hence, the present appeal by special leave.
7. We
have heard Mr. Fakhruddin, learned senior counsel for the appellant and
Mr. A. G. Chaudhary, learned senior counsel for the respondents.
8.
The gravamen of the controversy as is demonstrable pertains to is the
nature and character of the document executed by Abdul Haq in favour of
Rasheeda Khatoon, the predecessor-in-interest of the appellants. Before
we keenly scrutinize the document, we think it necessary to refer to
certain authorities in the field that have dealt with the concept of
oral gift in Muhammadan Law. In this context Sections 123 and 129 of the
Transfer of Property Act have to be taken note of. Section 123 of the
Act stipulates that 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. Section 129 provides for savings of donations mortis causa
and the gifts made under the Muhammadan Law. It is clear from the said
provision that the Chapter relating to gifts including registration
would not effect any rule of Muhammadan Law.
9. In
Karam Ilahi (supra) it has been held as follows:- "It is admitted that a
Muhammadan may make an oral gift provided that possession follows. It
seems to us quite clear that the provisions of Section 123 are
inapplicable to gifts made by Muhammadans and valid according to their
law. It is quite clear that the Legislature had in its mind the
provisions of Section 123 when enacting Section 129. Section 123 is
specifically referred to in Section 129. The deed of gift is admissible
to prove that a gift was made."
10.
In Nasib Ali (supra) Suhrawardy, J. referred to Kamarunnissa Bibi v.
Hussaini Bibi[5] and Karam Ilahi (supra) and came to hold that the
essentials of a gift under the Muhammadan Law are a declaration of
'hiba' by the donor, an acceptance, express or implied, of the gift by
the donee, and delivery of possession of the property, the subject-
matter of the gift, according to its nature. A simple gift can only be
made by going through the above formalities and no written instrument is
required.
In
fact no writing is necessary to validate a gift and if a gift is made by
a written instrument without delivery of possession, it is invalid, in
law. Thereafter, the learned judge stated thus:- "The position under the
Mohammadan Law is this: that a gift in order to be valid must be made
in accordance with the forms stated above; and even if it is evidenced
by writing, unless all the essential forms are observed, it is not valid
according to law. That being so, a deed of gift executed by a
Mohammadan is not the instrument effecting, creating or making the gift
but a mere piece of evidence. It may so happen after a lapse of time
that the evidence of the observance of the above forms might not be
forthcoming, so it is sometimes thought prudent to reduce the fact that a
gift has been made into writing. Such writing is not a document of
title but is a piece of evidence. "
11.
In Mahboob Sahab v. Syed Ismail and Others[6] a two-Judge Bench referred
to Section 147 of the Principles of Mahomedan Law by Mulla wherein the
essentials of valid gift under the Muhammadan Law have been elucidated
and proceeded to explicate the principle. We think the reproduction of
the relevant passage would be seemly:- "Under Section 147 of the
Principles of Mahomedan Law, by Mulla, 19th Edn., edited by Chief
Justice M. Hidayatullah, envisages that writing is not essential to the
[pic]validity of a gift either of moveable or of immovable property.
Section 148 requires that it is essential to the validity of a gift that
the donor should divest himself completely of all ownership and
dominion over the subject of the gift. Under Section 149, three
essentials to the validity of the gift should be,
(i) a declaration of gift by the donor,
(ii) acceptance of the gift, express or implied, by or on behalf of the donee, and
(iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150.
If
these conditions are complied with, the gift is complete. Section 150
specifically mentions that for a valid gift there should be delivery of
possession of the subject of the gift and taking of possession of the
gift by the donee, actually or constructively. Then only the gift is
complete. Section 152 envisages that where the donor is in possession, a
gift of immovable property of which the donor is in actual possession
is not complete unless the donor physically departs from the premises
with all his goods and chattels, and the donee formally enters into
possession. It would, thus, be clear that though gift by a Mohammedan is
not required to be in writing and consequently need not be registered
under the Registration Act; for 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." [Emphasis supplied]
12.
Recently in Hafeeza Bibi and Others v. Shaikh Farid (Dead) by LRS. and
Others[7] a two-Judge Bench referred to the authority in Mohd. Abdul
Ghani v. Fakhr Jahan Begam[8] wherein the Privy Council had made a
reference to Muhammedan Law by Syed Ameer Ali and approved the statement
as regards the essential three conditions for a valid gift. Thereafter,
the learned Judges referred to Nasib Ali (supra), Assan Ravther v.
Manahapara Charayil[9] and Javeda Khatun v. Moksed Ali[10] and stated
the position of law thus:- "The position is well settled, which has been
stated and restated time and again, that the three essentials of a gift
under Mohammadan Law are:
(1)
declaration of the gift by the donor; (2) acceptance of the gift by the
donee; and (3) delivery of possession. Though, the rules of Mohammadan
Law do not make writing essential to the validity of a gift; an oral
gift fulfilling all the three essentials makes the gift complete and
irrevocable. However, the donor may record the transaction of gift in
writing."
13.
After so stating the court referred to Asaf A.A.Fyzee in Outlines of
Muhammadan Law[11] and Mulla, Principles of Mahomedan Law[12] and
eventually ruled thus:- "In our opinion, merely because the gift is
reduced to writing by a Mohammadan instead of it having been made
orally, such writing does not become a formal document or instrument of
gift. When a gift could be made by a Mohammadan orally, its nature and
character is not changed because of it having been made by a written
document.
What
is important for a valid gift under Mohammadan Law is that three
essential requisites must be fulfilled. The form is immaterial. If all
the three essential requisites are satisfied constituting a valid gift,
the transaction of gift would not be rendered invalid because it has
been written on a plain piece of paper. The distinction that if a
written deed of gift recites the factum of prior gift then such deed is
not required to be registered but when the writing is contemporaneous
with the making of the gift, it must be registered, is inappropriate and
does not seem to us to be in conformity with the rule of gifts in
Mohammadan Law."
[Emphasis added]
14.
For a clear understanding of the conception of the valid gift under the
Muhammadan Law we think it apposite to reproduce the passage from Mulla,
Principles of Mahomedan Law that has been quoted and approved in
Hafeeza Bibi (supra):- "Under the Mahomedan law the three essential
requisites to make a gift valid are:
(1) declaration of the gift by the donor,
(2) acceptance of the gift by the donee expressly or impliedly, and
(3) delivery of possession to and taking possession thereof by the donee actually or constructively.
No
written document is required in such a case. Section 129 of the Transfer
of Property Act excludes the rule of Mahomedan Law from the purview of
Section 123 which mandates that the gift of immovable property must be
effected by a registered instrument as stated therein. But it cannot be
taken as a sine qua non in all cases that whenever there is a writing
about a Mahomedan gift of immovable property there must be registration
thereof. Whether the writing requires registration or not depends on the
facts and circumstances of each case."
15.
At this stage, it is condign to state that the two-Judge Bench
ultimately has ruled that it is not the requirement in all cases where
the gift deed is contemporaneous to the making of the gift then such
deed must be registered under Section 17 of the Registration Act, and
each case would depend on its own facts. Be it stated, the Court did not
approve the view expressed in Govt. of Hyderbad (Deptt. of Revenue) v.
Tayyaba Begum[13], Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel[14], Chota
Uddandu Sahib v. Masthan Bi[15], Amirkhan v. Ghouse Khan[16] and
Sunkesula Chinna Budde Saheb v. Raja Subbamma[17].
16.
From the aforesaid discussion of the propositions of law it is
discernible that a gift under the Muhammadan Law can be an oral gift and
need not be registered; that a written instrument does not, under all
circumstances require registration; that to be a valid gift under the
Muhammadan Law three essential features namely,
(i) declaration of the gift by the donor,
(ii) acceptance of the gift by the donee expressly or impliedly, and
(iii)
delivery of possession either actually or constructively to the donee,
are to be satisfied; that solely because the writing is contemporaneous
of the making of the gift deed, it does not warrant registration under
Section 17 of the Registration Act.
17.
At this juncture, it is pertinent to refer to a three-Judge Bench
decision in Valia Peedikakkandi Katheessa Umma and others v. Pathakkalan
Narayanath Kunhamu (deceased) and after him his legal representatives
and others[18] where the question arose whether a gift by a husband to
his minor wife and accepted on her behalf by her mother is valid.
Dealing with the concept of gift under Muhammadan Law the Court observed
that:- "... Muhammadan Law of gifts attaches great importance to
possession or seisin of the property gifted (Kabz-ul-Kami) especially of
immovable property.
The
Hedaya says that seisin in the case of gifts is expressly ordained and
Baillie (Dig P.508) quoting from the Inayah refers to a Hadis of the
Prophet-"a gift is not valid unless possessed." In the Hedaya it is
stated - "Gifts are rendered valid by tender, acceptance and seisin"
(p.482) and in the Vikayah "gifts are perfected by complete seisin"
Macnaghten (202)." After so stating the Court proceeded to lay down that
it is only actual or constructive possession that completes the gift
and registration does not cure the defect nor is a bare declaration in
the deed that possession was given to a minor of any avail without the
intervention of the guardian of the property unless the minor has
reached the years of discretion. It has been further opined therein that
if the property is with the donor he must divest from it and the donee
must enter upon possession.
However,
to that rule there are certain exceptions which the Court took note of,
stating thus:- "Exceptions to these strict rules which are well
recognized are gifts by the wife to the husband and by the father to his
minor child (Macnaghten, page 51 principles 8 to 9). Later it was held
that where the donor and donee reside together an overt act only is
necessary and this rule applies between husband and wife. In Mahomed
Sadiq Ali Khan v. Fakhr Jahan Begum, 59 Ind App 2 : (AIR 1932 PC 13) it
was held that even mutation of names is not necessary if the deed
declares that possession is delivered and the deed is handed to the
wife." We have referred to this decision only to highlight the principle
that either there has to be actual delivery of possession from the
donor or the donee must be in constructive possession to make a gift
valid under the Muhammadan Law.
18.
Presently, we shall deal with the factual score. Mr. Fakhruddin, learned
senior counsel would submit that when concurrent findings were returned
that the plaintiff was in possession on the date of execution of the
gift deed as the donee had started residing with the donor the High
Court should not have dislodged the finding of possession solely on the
ground that the gift deed was a contemporaneous document which required
registration. Per contra, Mr. Chaudhary, learned senior counsel would
submit that both the courts below had committed serious illegality by
coming to hold that an oral gift was made in favour of the plaintiff
seven years prior the date of execution of gift deed and factum of the
said document only evidenced the oral gift, though there is no mention
of it in the deed itself.
It is
urged by him that by no stretch of examination such a finding could
have been recorded. As we notice, the trial court as well as the
appellate court has returned a finding that there was an earlier oral
gift by Abdul Haq in favour of the original plaintiff. The same is not
reflectible from the document itself. That apart, there is nothing else
on record to support the same. The finding of the learned trial Judge as
well as the appellate Judge is based on unwarranted inferences which
are not supported by the evidence brought on record. While not accepting
the said finding of the courts below we are also unable to accept the
conclusion of the High Court that the document being a contemporaneous
document or document in praesenti required registration.
19.
The real thrust of the matter, as we perceive, is whether the essential
ingredients of the gift as is understood in the Muhammadan Law have been
satisfied. To elaborate, a deed of gift solely because it is a written
instrument does not require registration. It can always be treated as a
piece of evidence evidencing the gift itself, but, a significant one,
that gift must fulfill the three essential conditions so that it may be
termed as a valid gift under the Muhammadan Law.
20.
The aforesaid being the position, we are obliged to scrutinize the deed
of gift and the material brought on record. It has become necessitous in
the instant case as the original and the first appellate court have
recorded findings which are contrary to material brought on record and
the High Court has proceeded exclusively on the concept of a deed in
praesenti. Be it stated, this Court in exercise of power under Article
136 of the Constitution can interfere with the concurrent findings of
fact, if the conclusions recorded on certain factual aspects are
manifestly perverse or unsupported by the evidence on record. It has
been so held in Alamelu & Another v. State[19], Heinz India (P) Ltd.
and Another v. State of U.P. and Others[20] and Vishwanath Agrawal s/o
Sitaram Agrawal v. Sarla Vishwanath Agrawal.[21]
21.
In this backdrop we proceed to scan the gift deed. On a perusal of the
gift deed it is manifest that Abdul Haq had declared therein that he had
always been the owner in possession and the entire house was in his
exclusive ownership and possession and free from all encumbrances. Thus,
the said recital belies the case of the plaintiff that there was an
oral gift seven years prior to filing of the suit, that is, sometime in
the year 1968. The learned trial Jude as well as the appellate court has
brushed aside the said aspect by stating that it has not affected the
stand of the plaintiff inasmuch as some witnesses have deposed about the
gift having been made in 1968.
As
the deed would show the executant had stated that he had executed a Will
earlier in favour of Rasheeda. That apart, such a fact, had it been
true would have definitely formed a part of the written instrument.
Omission of such a fact, in our view, defies common sense. The
conclusion that the gift deed dated 9.10.1970 evidences such a gift, is
absolutely unacceptable. Be that as it may, the issue is whether the
document and the concomitant factors establish factum of gift made by
the donor. As stated earlier, if the essential features are met with no
registration is necessary. On a perusal of the deed of gift and the
evidence brought on record it is demonstrable that Abdul Haq remained in
the premises in question.
He
did not part with physical possession. The case of the plaintiff is that
she resided with Abdul Haq and, therefore, the principle of donor
getting fully divested or handing over of physical possession is not
attracted. Though, such a finding has been recorded, we find it wholly
contrary to the evidence on record. The plaintiff was staying with her
husband. The family register and voters list, Exhibit 122 to 124 C
indicate that Rasheeda Khatoon was residing in her house with her
husband.
Though
the gift deed mentions that she was entitled to get her name mutated in
respect of the premises, yet it was not done. On the analysis of
evidence in the backdrop of the deed, it is extremely difficult to hold
that she was residing with Abdul Haq in the premises in question. The
first two courts have based their conclusions on conjecture and
inferences. The High Court, as we notice, has not dwelled upon this
aspect and has only negatived the finding of the courts below that the
document did not evidence an oral gift. Thus scrutinized there remains
no shadow of doubt that she was not in actual physical possession.
22.
We have already stated, actual physical possession may not be always
necessary if there is constructive possession of the donee. In this
context we may reproduce Section 152, sub-Section(3) of Mulla's
Muhammadan Law:- "No physical departure or formal entry is necessary in
the case of a gift of immovable property in which the donor and the
donee are both residing at the time of the gift. In such a case the gift
may be completed by some overt act by the donor indicating a clear
intention on his part to transfer possession and to divert himself of
all control over the subject of the gift."
23.
Possession has been defined in Section 394 of the Muslim Law by Tyabji.
It is thus:- "A person is said to be in possession of a thing, or of
immovable property, when he is so placed with reference to it that he
can exercise exclusive control over it, for the purpose of deriving from
it such benefit as it is capable of rendering, or as is usually derived
from it."
24.
From the aforesaid it is vivid that the possession can be shown not only
by enjoyment of the land or premises in question but also by asserting
who has the actual control over the property. Someone may be in apparent
occupation of the premises, but the other would have control and
gaining advantage of possession. In the case at hand plea of actual
physical possession by Rasheeda Khatoon does not deserve acceptance. The
existence of any overt act to show control requires to be scrutinised.
A
plea was advanced by the plaintiff that she had been collecting rent
from the tenants inducted by the donor, but no rent receipts have been
filed. On the contrary certain rent receipts issued by the donor after
the execution of the deed of gift have been brought on record. There is
no proof that the land was mutated in her favour by the revenue
authorities. She was also not in possession of the title deeds. Thus,
the evidence on record, on a studied scrutiny, clearly reveal that
Rasheeda Khatoon was not in constructive possession. Therefore, one of
the elements of the valid gift has not been satisfied. That being the
position there is no necessity to advert to the aspect whether the
instrument in question required registration or not because there can be
certain circumstances a deed in writing may require registration. In
the case at hand, we conclusively hold that as the plaintiff could not
prove either actual or constructive possession, the gift was not
complete and hence, the issue of registration does not arise.
25.
In view of the aforesaid premises, we, though for different reasons,
affirm the judgment and decree of the High Court and dismiss the appeal
as a consequence of which the suit of the plaintiff stands dismissed.
There shall be no order as to costs. Civil Appeal No. 564 of 2009 26. In
view of the dismissal of Civil Appeal No. 603 of 2009 the present
appeal stands dismissed. There shall be no order as to costs.
.............................J. [Dipak Misra]
.............................J. [Vikramajit Sen]
New Delhi;
October 10, 2014
[1] AIR 1916 All 351
[2] AIR 1927 Cal 197
[3] AIR 1968 Pat 481
[4] AIR 1976 SC 1541
[5] (1880) 3 All 266
[6] (1995) 3 SCC 693
[7] (2011) 5 SCC 654
[8] (1921-22) 49 IA 195: AIR 1932 PC 13
[9] AIR 1972 Ker 27
[10] AIR 1973 Gauhati 105
[11] 5th Edn. (edited and revised by Tahit Mahmood) at P. 182
[12] (19th Edn.) P.120
[13] AIR 1962 AP 199
[14] AIR 1974 J & K 59
[15] AIR 1975 AP 271
[16] (1985) 2 MLJ 136
[17] (1954) 2 MLJ 113 (AP)
[18] AIR 1964 SC 275
[19] (2011) 2 SCC 385
[20] (2012) 5 SCC 443
[21] (2012) 7 SCC 288
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