June 20, 2019

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, “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- 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 […]

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