Asgar Ali vs. Tahir Ali AIR 2013 MP 151
A petition was filed challenging the order dated 17-11-2012, whereby the application of the defendant preferred u/s. 17 of the Registration Act was allowed by the lower court.
The petitioner/plaintiff instituted a suit for eviction. During pendency of the suit, the respondents/ defendants preferred an application before the trial Court stating that the gift deed in question dated 01-04-1970 is inadmissible in evidence for want of its registration u/s. 17 of the Registration Act.
In turn, petitioner/plaintiff submitted a reply to the defendant’s application denying the averments and pleaded that the gift of immovable property under the Muslim Law requires no registration. The essential requirements of oral gifts are present in the gift in question and therefore, the said application needs to be rejected.
The trial Court after hearing both the parties, allowed the said application and opined that the will dated 01-04-1970 cannot be taken into evidence in absence of its registration u/s. 17(1) of the Registration Act.
The Hon’ble Court dealt with certain important facets which were considered and decided by the Supreme Court in Hafeeza Bibi & Ors vs. Shaikh Farid (dead) by LRs AIR 2011 SC 1695. In no uncertain terms, it has made it clear that in the Mohammedan Law, for the purpose of determining gift or Hiba, three essential ingredients must be there. These are — (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee, and (iii) delivery of possession. The aforesaid three ingredients are present in the said document. The donor has given a specific declaration regarding gift, it is accepted by the donee and the possession is handed over to the donee. Now the basic question is whether in such situation the document/instrument was required to be registered under the provisions of Registration Act and whether in absence thereof it cannot be taken into account for any purpose including for the purpose of evidence. In para 29 of the judgment in Hafeeza Bibi (supra) the Apex Court opined that “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 Mohammedan Law.”
The entire edifice of the argument of the respondents is based on the aforesaid distinction in para 34 of the judgment of Hafeeza Bibi (supra) the Apex Court, in the facts and circumstances of the case, examined and found that the aforesaid three ingredients of declaration, acceptance and delivery are available. Then it is opined that Nasib Ali (decided by Calcutta High Court) is the correct authority. In addition, in para 31 it is mentioned that section 129 of Transfer of Property Act preserves the rule of Mohammedan Law and excludes the applicability of section 123 of T.P. Act to a gift of an immoveable property by a Mohammedan. The Supreme Court approved the statement of law reproduced in the said judgment from Mulla, Principles of Mohammedan Law (19th Edition), page 120. In other words, it is held that it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered u/s.s 17 of the Registration Act. It is held that each case depends on its own facts. The aforesaid reasoning adopted by the court below shows that the interference is made solely on the ground that by way of will in question, the conditions of gift are written for the first time and the said will does not contain any recital or mention of earlier oral Hiba. At the cost of repetition, it is apt to mention that in Hafeeza Bibi (supra), the Apex Court has made it clear that in all cases where the gift deed is contemporaneous to the making of the gift then such gift must be registered u/s. 17 of the Registration Act, is not a rule of thumb. Each case needs to be considered on its own facts. In the light of the judgment in Hafeeza Bibi (supra), the view of court below runs contrary to the legal position settled in Hafeeza Bibi (supra). It is also relevant to note that the Apex Court by following the judgment in Nasib Ali (supra) allowed the appeal and set aside the judgment of High Court.
Consequently, the impugned order cannot be permitted to stand.
