Case Note & Summary
The appeal by special leave arose from a partition suit between two brothers over the plaint schedule property. The original plaintiff (respondent in this Court) filed the suit seeking partition of the property into two equal shares and allotment of one share to himself. The defendant, his brother, contended that the property had been gifted by both brothers to their cousin sister Kasturibai, who entrusted it to them for cultivation, and therefore the property was not partible. The trial court accepted this plea and dismissed the suit. On appeal, the first appellate court reversed the trial court, holding that the partition deed only recorded an intention to gift the land to Kasturibai and was not in fact executed; hence the gift was not valid and did not bind the plaintiff. The High Court in second appeal confirmed the decree of the first appellate court. Before the Supreme Court, the only question was whether an intention to give the land by gift to the cousin sister created valid title in law. The Court examined the provisions of the erstwhile Hyderabad Transfer of Property Act, which was in pari materia with the Transfer of Property Act, 1882. Section 122 defined gift as the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called the donee, and accepted by or on behalf of the donee. Section 123 provided 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. The Court noted that the right, title and interest of the donor stand divested in the donee by operation of Section 17 of the Registration Act only when the gift deed is duly registered, and that acceptance by the donee must also be proved. In the present case, although the transfer of gift was acted upon by Kasturibai according to correspondence and evidence on record, there was admittedly no written instrument executed by the donors, namely the plaintiff and the defendant, in favour of Kasturibai, and it was not attested by at least two witnesses or registered under the Stamp Act and the Registration Act. In the absence of these formalities, at best the partition deed expressed an intention to gift the land. The Court held that without a registered instrument of gift and acceptance thereof by the donee, the property could not be said to have been legally transferred, and the gift was not complete in the eye of law. The lower courts had rightly decreed partition. The Supreme Court found no error of law warranting interference and dismissed the appeal with no order as to costs.
Headnote
A) Property Law - Gift of Immovable Property - Validity and Essentials - Transfer of Property Act, 1882 Sections 122, 123; Hyderabad Transfer of Property Act (pari materia); Registration Act, 1908 Section 17 - The dispute concerned whether a partition deed expressing intention to gift immovable property to cousin-sister Kasturibai created valid title when no registered instrument of gift was executed. The Court held that gift of immovable property requires a registered instrument signed by or on behalf of donor, attested by at least two witnesses, and acceptance by donee; mere intention or acting upon the gift through correspondence does not satisfy legal formalities. Held that without compliance with these formalities, the gift is incomplete in the eye of law and the property remains partible (Paras Not mentioned). B) Property Law - Transfer of Immovable Property - Mode of Execution and Effect of Non-Registration - Transfer of Property Act, 1882 Section 123; Registration Act, 1908 Section 17 - The Court reasoned that the pre-existing right, title and interest of donor stand divested only upon due registration of gift deed, and stamp and registration formalities are mandatory. Since no written instrument was executed, attested by two witnesses, and registered, the alleged gift did not transfer title. Held that trial court's dismissal was incorrect; district court and High Court rightly decreed partition (Paras Not mentioned).
Issue of Consideration
Whether an intention to give land by gift to cousin-sister Kasturibai created valid title in law; whether gift of immovable property can be effected without a registered instrument and acceptance as required by Hyderabad Transfer of Property Act in pari materia with Transfer of Property Act, 1882.
Final Decision
Appeal dismissed; no costs. The courts below rightly held that no valid gift was made for want of registered instrument and acceptance, so property remained partible and decree for partition stood.
Law Points
- Gift of immovable property must be made by registered instrument signed by or on behalf of donor and attested by at least two witnesses
- mere intention or correspondence acting upon gift does not create valid title
- acceptance by donee must be proved
- donor's right
- title and interest divest only upon due registration
- compliance with Stamp Act and Registration Act mandatory
- absence of registered gift deed renders gift incomplete in law
