An interesting question came up recently. A Gift Deed was executed but not registered ,and it was subsequently registered after death of Donor without consent of legal heirs. The question arose is such registration valid?

We scanned the provisions of the Transfer of Property Act,1882 ( TPA) and the Registration Act ,1908. (RA)

Section 123 of the TPA is relevant Section.

Section 4 provides that,

Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration Act.—The Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 (9 of 1872). 1[And section 54, paragraphs 2 and 3, and sections 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 2[1908 (16 of 1908)].]

Section 122- 123 of TPA provides that,

  1. “Gift” defined.—“Gift” is the transfer of certain existing moveable or immoveable 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. Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

Section 123 Of TPA provides that;

123.Transfer how effected For the purpose of making a gift of immoveable 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. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.

Section 47 of RA says-

  1. Time from which registered document operates.—A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

Judgments:

Madras High Court in Venkati Rama Reddi And Ors. vs Pillati Rama Reddi And Ors. on 19 July, 1916  (1916) 31 MLJ 690  who answered  question referred to the Bench      ” whether a deed of gift registered by the donee after the death of the donor without the consent of the legal representatives of the donor is valid ” in the affirmative.

It was observed that,there is nothing in this section which requires the donor to have the deed registered; all that is required is that he should have signed the registered instrument. Once such an instrument is duly executed, the Registration Act allows it to be registered even though the donor may not agree to its registration and upon registration the gift takes effect from the date of execution. The doctrine that a donor who has left his gift incomplete cannot be compelled to complete it has no application to a case like this, for so far as he is concerned he has by executing the deed done all that he need do, for registration can be effected even without his cooperation.

This view of the law is adopted in Parbati v. Baij Nath Pathak (1914) 28 M.L.J. 378 Nand Kishore Lal v. Suraj Prasad (1902) I.L.R. 25 Mad. 672 : 12 M.L.J. 109 Hardei v. Bam Lal (1896) I.L. R 19 Mad. 433, Khashaba v. Chandrabhagabai (1898) I.L.R. 20 All. 392 and Bhabatosh Banerjee v.Soleman (1912) I.L.R. 35 All, 3.

 On the other hand the decision in Ramamirtha Ayyan v. Gopala Ayyan (1889) I.L.R. 11 A. 319 followed in Dasi Svarnam v. Deivanayagam Pillai (1896) I.L.R. 19 M.433 : 6 M.L.J. 207 has proceeded upon a different view and so also the case in Amirdam v.Muthukumara Chetty (1903) 13 M.L.J. p. 303.

The ruling in Meiyyalu Nadan v. Anjalay (1911) 28.M.L.J. p. 378 that the consent of the personal representative of the deceased donor to registration would validate the gift does not seem however to be quite consistent with these decisions.

 Ramamirtha Ayyan v. Gopala Ayyan (1889) I.L.R. 11 A. 319 does not lay down the law correctly.

Bombay High Court in Bombay High Court Kalyanasundaram Pillai vs Karuppa Mooppanar on (1927) 29 BOMLR 833

The learned Chief Justice in the Court below, after referring to the above sections, said :-

The effect of these sections in my judgment is that if a title is complete except for registration, no subsequent alienation or dealing with the property by the vendor or donor as the case may be can defeat the title which on registration becomes an absolute title dating from the date of the execution of the document.

The other two Judges concurred in this view, making special reference to the case of Venkati Rama Reddi v. Pillati Rama,Reddi (1916) I.L.R. 40 Mad. 204, F.B., which, being a decision of the Full Bench, was binding upon them. In that case the donor died on the day following the execution of the deed of gift, and the deed was not presented for registration until a period of six months had elapsed from the date of his death; facts which, as it appears to their Lordships, were certainly not less cogent in favour of incompleteness than are those in the present case; and there the District Judge held that the gift deed, not having been registered by the donor during her lifetime, was void, and that the post-mortem registration was of no effect. This judgment was, however, reversed on appeal by the unanimous decision of the Full Bench. There was no express finding of fact, so far as appears from the report, that the deed of gift had been delivered to and accepted by the Donee prior to the death of the donor, although, perhaps, this may be implied from the circumstances. In the present case, fortunately, there is no room for doubt on this point, because the learned Judges of the High Court remitted this question of fact to the Subordinate Judge and he reported that the deed had been delivered over, on the day of its execution, to one of the trustees appointed under it on behalf of himself and the other trustee. The decision of the Full Bench in Venkati Rama Reddi’s case is thus summarized in the head-note :-

There is nothing in Section 123 of the Transfer of Property Act which requires the donor to have the deed registered; all that is required is that he should have executed the deed. Once such an instrument is duly executed, the Registration Act allows it to be registered even though the donor may not agree to its registration, and upon registration the gift takes effect from the date of execution.

Also see Recent Calcutta High Court Judgement in Dinabandhu Mondal & Ors.Vs.Laxmi Rani Mondal & Ors

 Shruti Desai

20th June,2019

Mumbai