[ Naranji Bhimji Family Trust v. Sub-divisional Officer,
Ramtek & Ors., AIR 2009 (NOC) 1934 (Bom.)]
The petitioner claimed to be owner and landlord of the suit
premises. The property originally belonged to one Shamji Naranji and in the
year 1962, by order of the Charity Commissioner, the said property was
included in Naranji Bhimji Family Trust and accordingly entry was also taken
in the city survey record in the year 1969. The petitioner-trust allowed
respondent No. 2 & 3 in the year 1980-81 to occupy the suit premises
consisting of five rooms and two verandahs, etc. as licensee. Respondent no. 3
had filed Regular Civil Suit seeking declaration that he was owner of the
property on the basis of oral gift. That suit came to be dismissed on
8-2-2005. According to the petitioner, they had repeatedly asked the
respondent nos. 2 and 3 to vacate the premises but they avoided.
The petitioner filed application u/s.43 of the Maharashtra
Rent Control Act, 1999 for eviction. The competent authority granted the
respondent leave to appear and contest the above application. The said order
was challenged, wherein the Court held that S. 123 of the Transfer of Property
Act clearly provides that for the purpose of making gift of immovable
property, the transfer must be effected by registered instrument signed by or
on behalf of the donor and attested by at least two witnesses. A gift of
movable property may be made either by registered instrument or by delivery.
Thus immovable property cannot be transferred unless a gift of the same was
made by a registered instrument. Oral gift of immovable property is not
permitted u/s.123 of the Transfer of Property Act. Similarly, S. 17 of the
Registration Act, 1908 makes registration of an instrument of gift of any
immovable property compulsory, irrespective of value of the property. Other
non-testamentary instruments, which purport or operate to create, declare,
assign, limit or extinguish any right, title or interest in immovable
property, the value of which is Rs.100 or upwards are required to be
registered compulsorily. It means that if the value of the property is less
than Rs.100, in case of such documents, they are not compulsorily required to
be registered. However, exception on the basis of the value of the immovable
property is not made in respect of instrument of gift of immovable property.
Thus, it was clear that S. 123 of the Transfer Property Act as well as S. 17
of the Regis-tration Act make registration of the instrument of gift deed of
an immovable property, irrespective of the value, to be compulsory. In view of
this, the ground taken by the respondents in defence of the application for
eviction was not permitted to be raised and proved. In view of this, the order
of competent authority granting leave to defend was set aside.
