Vamulapalli Purnachandra Rao vs The State of A.P.

Ramachandra Rao

In this revision-petition filed u/s 21 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 it is contended that the two items of land given by the petitioner to his daughters towards Pasupukumkuma at the times of their marriages in 1966 and 1967 should be excluded from his holdings. Both the Tribunals below rejected this contention firstly on the ground that the partition list Ex. 12 and the subsequent partition deed Ex. A-13 dated 7-10-1971 executed between the petitioner and his son do not show as to what lands were given to the petitioner''s daughters and that P.W. 2 the son-in-law of the petitioner stated that the land revenue was being paid by the donees only from 1973. The Tribunals also held that even if the said gifts were, true they were only oral gifts and that in the absence of any registered document the donees did not acquire any title to the land gifted and that it was not contended that the donees had acquired any title by adverse possession by more than 12 years prior to 1-1-1975. It is contended by Sri M. Chandrasekhara Rao that the partition list and the partition deed and the other oral evidence establish the truth of the gifts. But the Tribunal''s finding is one of fact and cannot be interfered with in revision.

Even otherwise, as rightly held by the Tribunals below in the absence of any registered deeds of gift, the donees would not acquire any title. Sri Chandrasekhara, Rao sought to contend that under Hindu law, a gift of immovable property to a daughter at the time of her marriage towards Pasupukumkuma is valid even in the absence of a registered document. In support of this contention he has drawn my attention to a passage in "Hindu Law Principles and Precedents" my N.R. Raghavachari and also three rulings Kamala Devi Vs. Bachu Lal Gupta, Seramdaya Pillai and another 1959 (II) M.L.J. 502 and Madam Pillai vs. Badrakali Ammal and another AIR 1922 Mad. 369. In the last of the cases, it was held that a transfer of land of the value of more than Rs. 100/- by a husband to his wife to be enjoyed by her during her life-time in discharge of her claim to future maintenance could be made without writing. The learned Judge held that the transaction there did not amount to a gift or exchange or sale and, therefore the transfer there was not required by law to be in writing. In Kamala Devi Vs. Bachu Lal Gupta, it was observed in paragraph 20 that it is the imperative religious duty and moral obligation of a father, mother or other guardian to give a girl in marriage to a suitable husband and that gifts by a widow of landed property to her daughter or son-in-law on the occasion of the marriage or any ceremonies connected with the marriage are well-recognised in Hindu Law and if a promise is made, of a gift such a promise may be fulfilled afterwards and that a gift made long after the marriage may be supported on the ground that the gift when made fulfils that moral and religious obligation. But the above observations only show that a Hindu widow has power to make an alienation of a reasonable portion of her husband''s estate in favour of the daughter as marriage dowry. But that does not mean that a gift of immovable property could be made without a registered document. Section 123 of the Transfer of Property Act clearly lays down that for purposes of making a gift of immovable property the transfer must be effected by a registered instrument signed by or on behalf of the doner and attested atleast by two witnesses. Therefore while under the personal law of Hindus a gift can be effected by a widow at the time of the marriage of a daughter, the gift of the landed property can only be effected in the manner laid down by section 123 of the Transfer of Property Act. Further the facts of the case show that the marriage was performed on the 10th May 1938 and the gift of four hour houses made at the time of the marriage and which was accepted was later confirmed on the occasion of the gowna ceremony and possession of the houses was also given to the donee and subsequently the deed of gift was executed and registered two years after the marriage and it is that gift that was challenged in that suit as not valid on the ground that the widow had no power to make such a gift under Hindu Law and it is that contention that was repelled by their Lordships. This ruling therefore does not support the contention of the petitioner that a gift of immovable property can be made without a registered document.

Serandaya Pillai and Another Vs. Sankaralingam Pillai and Another, is a case where a contract entered into by the Plaintiffs with the first defendant therein was that in consideration of the first defendant marrying their sister, some properties should be settled upon him. The marriage took place and the first defendant was put in possession of the same. Subsequently the plaintiffs sought for a declaration and injunction or in the alternative for recovery of possession on the ground that the gift was invalid being hit by section 123 of the Transfer of Property Act u/s 17 of the Registration Act. The learned Judge Ramaswami J. held that the transaction entered into by the parties there was neither a sale nor an exchange nor a gift and that, it fell within the scope of section 9 of the Transfer of Property Act and required no writing and no registration. That case also does not help the petitioner. There, it was found that the transaction was not a gift. Moreover, the observations towards the end of the judgment at page 506 show that where a transaction is a gift of immovable property it should be effected by writing and should be registered.

The observations are as follows:--

This is not a case of mere oral gift or an unregistered deed of gift. If that were so, the provisions of section 123 of the Transfer of Property Act being mandatory and imperative and no gift of immovable property can be made except by means of a registered instrument the defendants, cannot resist the claim of the plaintiff''s to take back the land however unjust their claim may be and however opposed it may be to the Sastraic principles exemplified in Manu''s Text (ix-47)...

Mulla''s Hindu Law 13th Edition page 401 states the law as follows:--

(2) As regards Hindu gifts to which the Transfer of Property Act, 1882 applies, the rule of pure Hindu Law that delivery of possession is essential to the validity of a gift is abrogated by Sec. 123 of that Act. Under that Act delivery of possession is no longer necessary to complete a gift, nor is mere delivery sufficient to constitute a gift except in the case of movable property. A gift under that Act can only be effected in the manner provided by Sec. 123.

In Mulla''s Transfer of Property Act, 6th Edition at page 791 dealing with the provisions of section 123, it is stated by the learned author as follows:--

this section applies to Hindus. It applied to Hindus even before the amending Act 20 of 1929 for it was made applicable to Hindus by the old section 129 which expressly abrogated the Hindu rule. The section was held to abrogate the rule of Hindu law that delivery of possession is essential to the validity of a gift.

From the aforesaid rulings as well as the commentaries on Hindu Law and Transfer of Property Act, it is clear that after coming into force of the Transfer of Property Act, a gift of immovable property by a Hindu can only be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. Therefore the alleged gifts of lands to the petitioner''s daughters which are not effected by registered instruments even assuming to be true, are not valid in law.

It is next contended by the learned counsel for the petitioner that the partition list and the partition deeds, Ex. A-12 and A-13 evidence a family arrangement or settlement under which the daughters of the Petitioner were allotted some lands, towards Pasupukumkuma at the times of their marriages and therefore they are valid. Such a plea what not raised before the Tribunal below. Even otherwise, it is not clear from the said documents as to what lands were given to the daughters. Moreover a family arrangement to be valid and operative must have been entered into with the object of settling some property arising out of conflicting claims to properly existing at the time or likely to arise in future. There must be a dispute or at last an apprehension of dispute in order to avoid which the family arrangement must have been concluded. There should be some consideration for a family settlement to be valid. In the instant case, it is not established that the daughters had raised any dispute at the time of the partition or that the daughters are parties to the family arrangements sought to be evidenced by the partition list. Therefore the contention that there was a family arrangement has to be negatived as such an arrangement was not set up or established by the evidence on record. In the result, the revision-petition fails and is dismissed with costs. Advocate''s fee Rs. 100/-.