Asgar Ali vs Tahir Ali and another

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution challenges the order dated 17-11-2012, whereby the application of the defendant preferred u/s 17 of the Registration Act is allowed by the Court below.

The brief facts necessary for adjudication of this matter are as under:-

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 1-4-1970 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 will dated 1-4-1970 cannot be taken into evidence in absence of its registration u/s 17(1) of the Registration Act.

Shri R.P. Rathi, learned Counsel for the petitioner relied on Sections 145 and 147 of the Mohammedan Law. By taking this Court to the said provisions and Section 129 of the Transfer of Property Act, he submits that the document in question was not required to be registered and the Trial Court erred in allowing the said application.

Per contra, Shri S.K. Shrivastava, learned Counsel for the respondents supported the order and submits that the curtains are finally drawn on this aspect by a recent judgment of the Supreme Court reported in Hafeeza Bibi and Others Vs. Shaikh Farid (dead) by L.Rs. and Others, . He submits that the Court below has relied on this judgment and rightly allowed the application u/s 17 of the Registration Act.

I have bestowed my anxious consideration to the rival contentions advanced at the bar and perused the record.

Learned Counsel for the petitioner relied on various provisions of Mohammedan Law and Transfer of Property Act as aforesaid whereas the bone of contention of Shri S.K. Shrivastava, learned Counsel for the respondents is that if the document/will in question is only a recital or reduction of writing of a prior oral gift then such deed is not required to be registered but when by the present deed for the first time the rights are created and accrued, it must be registered. On the strength of the aforesaid submission, Shri Shrivastava submits that the matter is squarely covered by the judgment of Hafeeza Bibi (supra) and Court below has not committed any error of law which warrants interference under Article 227 of the Constitution.

In the case of Hafeeza Bibi (supra) the judgment of Andhra Pradesh High Court was called in question before the Supreme Court. The matter traveled from the Trial Court. A suit was filed before the Trial Court. The Trial Court framed four issues. The issue relevant for the present purpose was whether Hiba in question is proper, valid and binding on the plaintiffs. The Trial Court after recording evidence and on hearing the parties, answered issue No. 2 in affirmative and held that plaintiffs were not entitled to the shares claimed in the plaint. By judgment and decree dated 27-4-1988, the Trial Court dismissed the plaintiffs'' suit. The judgment and decree was called in question before the High Court. The basic contention before the High Court was that the gift in question was a written document and it was compulsorily required to be registered and stamped and in absence thereof, the gift deed could not be accepted or relied upon for any purpose and such registered gift deed would not confer any title upon the defendant No. 2. High Court was persuaded by the argument and held that unregistered gift deed would not pass any title to defendant as pleaded by him. Accordingly, the High Court set aside the order of the Trial Court and remitted the matter back for the purpose of passing a preliminary decree.

In Hafeeza Bibi (supra), the Apex Court has taken stock of various judicial pronouncements on the subject. A catena of judgments of various High Courts from 1922 were considered. The judgment of Calcutta High Court in the case of Nasib Ali Vs. Wajed Ali, and judgment of Andhra Pradesh High Court in the case of Inspector General of Registration and Stamps, Govt. of Hyderabad Vs. Smt. Tayyaba Begum, were also considered by the Supreme Court.

Calcutta High Court in the case of Nasib Ali (supra), opined that a deed of gift by a Mohammedan is not an instrument effecting, creating or making the gift but a mere piece of evidence. This is so opined by the Apex Court in Para 19 of the judgment in Hafeeza Bibi (supra). In Para 21 of Hafeeza Bibi (supra), the Apex Court dealt with the Full Bench judgment of A.P. High Court in the case of Smt. Tayyaba Begum (supra). After dealing with various other judgments on the subject, the Apex Court opined that it is unable to approve the view taken by A.P. High Court in the case of Smt. Tayyaba Begum (supra) and approved the view of Calcutta High Court in the case of Nasib Ali (supra). In the course of reasoning, the Apex Court considered yet another judgment delivered by High Court of Kerala in the case of Makku Rawther''s Children: Assan Ravther and Others Vs. Manahapara Charayil, (as His Lordship then was) opined that "the logic of the law matters more than the judicial numbers behind a view". The Kerala High Court agreed with the finding of Calcutta High Court and disagreed with the finding of Full Bench of A.P. High Court in the case of Smt. Tayyaba Begum (supra).

The bone of contention of learned Counsel for the respondents is already reproduced in Para 8 of this order whereas the basic submission of Shri Rathi, learned Counsel for the petitioner is that each document needs to be examined on its own facts and there is no straitjacket formula. However, before dealing with this aspect, I deem it appropriate to deal with certain important facets which were considered and decided by Supreme Court in Hafeeza Bibi (supra). In no uncertain terms, it is made 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. Pausing here for a moment, if this litmus test is applied on the instrument in question (Page 13), it will be crystal clear that 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. Thus, the said test is fully satisfied in the present matter. 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". In view of this specific finding by the Apex Court, I am unable to persuade myself with the line of argument of Shri S.K. Shrivastava, learned Counsel for the respondents. The entire edifice of the argument of Shri S.K. Shrivastava 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 immovable 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 17 of the Registration Act. It is held that each case depends on its own facts.

In the light of aforesaid legal position, if the impugned order of the Court below is examined, it will be clear that the Court below has interfered for the singular reason which reads as under:-

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 said case, a declaration of donor was reduced in writing. It was accepted by, the donee and then possession was handed over. In the present case, Nazimuddin and Abbas Ali are the donors whereas Asgar Ali, Gulzar Hussain and Burhanuddin are the donees. The donors are real brothers. A partition between Abbas Ali and Nazimuddin took place long back. The shop/basement in question came in possession of the donor Abbas Ali in partition and thereafter Abbas Ali has the ownership and possession on the shop in question. It is made clear that Abbas Ali is issueless. It is declared in this document that this gift is to be done by Abbas Ali but considering the fact that in near future the legal heirs of Nazimuddin should not create any dispute, the donor Nazimuddin also joined in the said document as a donor. He declared the aforesaid aspect and donated the shop in question. In turn, the possession was given which was accepted by the donees. In my opinion, a microscopic reading of this document shows that a declaration was made by donor Nazimuddin and Abbas Ali in favour of the donees. The question is, can it be said that because a declaration is reduced in writing, it must have been registered ?, the Apex Court already answered this question in Para 34 of the judgment of Hafeeza Bibi (supra). The answer is in negative. The averments of the will makes it clear that it is in the shape of declaration. In that event, in my opinion, it was not required to be compulsorily registered. The Court below had applied the test by holding that the gift deed is contemporaneous to the making of the gift and it is not a document whereby earlier oral Hiba is supported or reduced in writing. On this singular consideration, the interference was made.

In the light of the judgment in Hafeeza Bibi (supra), in my opinion, the view of Court below runs contrary to the legal position settled in Hafeeza Bibi (supra). The distinction pointed out by Shri S.K. Shrivastava will have no application as held in Hafeeza Bibi (supra), in Para 29. 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. The same is set aside. The application u/s 17 of the Registration Act preferred by the respondents is rejected. Petition is allowed. No costs.