Inspector General of Registration and Stamps, Govt. of Hyderabad vs Smt. Tayyaba Begum

Chandra Reddy C.J.

This reference is made by the Board of Revenue u/s 55 of the Hyderabad Stamp Act (IV of 1331 F.) to decide whether the document in question operates as a gift deed or whether it merely evidences a past transaction.

The brief facts necessary for the purposes of this reference are these. One Sayyada Tayyaba Begum presented a document engrossed on a stamp paper of Rs. 1-8-0 for registration before the City Registrar, Hyderabad. As the requisite stamp was not paid by the executants, as on a gift deed he referred the matter u/s 54 of the Hyderabad Stamp Act to the Chief Controlling Revenue Authority which is the Board of Revenue. The Chief Controlling Revenue Authority in its turn, made a reference to this Court for its opinion.

This matter came up for hearing once before a Full Bench of the erstwhile Hyderabad High Court. But the learned Judges declined to entertain it as it was signed by only one member of the Board of Revenue. Hence the present reference. This time the whole Board made the reference to the High Court in compliance with the relevant provisions of law.

The short point for determination here is whether the document in questions falls within the connotation of the term ''gift deed.'' In order to judge the nature of the document, it is necessary to look at its contents. It is in the following words:

I, Sayyada Tayyaba Begum, wife of the late Syed Muttaqi Hussain, vakil, caste, Muslim, aged 70 years, occupation house-keeping, resident of Basheer Bagh Himayatnagar, Hyderabad city, do hereby declare that the house bearing old No. 474/7 and new No. A-10-97 situated at Himayatnagar and bounded on the West by waste land belonging lo Nawab Moin Yar Jung, on the East by plot No. 3 belonging to T. K. Shamu, on the North by public road, and on the South by the Garden of Rai Murlidhar, was owned and possessed by me. I intended to make a Hiba (gift) of the said house to my younger son, Syed Ehasan Hussain out of maternal affection and in consideration of his obedience and service and I wanted to confirm the said Hiba (gift) by executing a registered gift deed. With a view to giving effect to my desire, I took legal advice whereupon I came to know that in view of the valuation of the house a large sum of money would be required to be paid towards registration fees and stamp duty which a helpless person like me could not afford to pay without raising a debt. With a view to solving my difficulty and having my desire fulfilled, the legal advisers explained to me that according to the Muslim law, I was at liberty to transfer my property by making an oral gift without executing any document whatsoever. Therefore, on the basis of the legal advice, and in order to fulfil my long cherished desire, I made an unconditional gift ''Hiba Farigh Anil Mashghool'' on 10th October 1951 of the said house in favour of my son, Syed Ehasan Hussain, son of late Syed Muttaqi Hussain, after due offer and acceptance and delivered over the said house into the proprietary possession and enjoyment of the said donee. And now when I have become decrepit and infirm it is likely and probable that some interested person or other might deny the fact of Hiba (gift) and involve my son, Syed Ehasan Hussain in difficulties. Therefore, on the basis of the legal advice, I deemed it necessary to execute a deed also making a declaration in favour of my said son in regard to the said fact of Hiba, so that a deed (written document) may be available and in existence in the shape of my admission of the Hiba (made) in accordance with the Muslim Law. I do hereby declare that I have transferred the said house owned and possessed by me and bearing old No. 474/7 and New No. A-10-97 and situated in Himayatnagar and bounded on the West by the waste land belonging to Nawab Moin Yar Jung, on the East by plot No. 3, belonging to T. K Shamu, on the North by Public Road and on the South by Garden of Rai Murlidhar in favour of Syed Ehasan Hussain, by making an oral gift (hiba) thereof on 10th October, 1951 and that as from that day the said donee has been in proprietary possession and enjoyment of the said house so gifted. I pray that no one may have any kind of doubt, regarding the ownership of Syed Ehasan Hussain and that it perchance any doubt at all should arise, this deed of Ekrarnama may prove sufficient

Now, what is the effect of these recitals? Do they constitute a gift attracting the applicability of Section 123 of the Transfer of Property Act which lays down the mode in which a gift could be effected? Section 123 runs as follows:

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.''

Thus, this section provides for the normal procedure for making a gift. But Section 129 makes an exception in the case of transfers effected by persons governed by rules of Mahomedan Law. It is unnecessary for us to decide whether it governs only rules of Mahomedan law as are specifically declared by the legislature or all rules which are applied in accordance with justice, equity and good conscience, since it is represented to us by the Advocate General as also the counsel on the other side that the law contemplated by Section 129 of the Transfer of Property Act is in operation in Hyderabad.

What follows from Section 129 is that it is needless for a Mahomedan to execute a registered instrument to settle big property on some one. In such a case, it is sufficient to conform to the rule of Mahomedan Law. An oral gift could be made followed by delivery of the property. That section dispenses with the necessity to execute registered instruments in cases falling u/s 129. But it does not prevent persons governed by the rules of Mahomadan law to effect a transfer in the manner contemplated by Section 123. It is only in cases where the parties avail themselves of the benefit of the rule of Mahomedan law in this behalf, they are not required to have a stamped document duly registered.

In the present case, the donor was not satisfied with an oral gift, assuming for the purpose of this inquiry that there was an antecedent oral gift. She was anxious to put it in writing. Now, what was the object of the donor in executing this document. Was it her desire merely to record a past transaction or to convey the property by and under this instrument. We have to gather the intention from the document as a whole.

The main test to be applied in these cases is whether the parties regarded the instrument to be a receptacle and appropriate evidence of the transaction. Was it intended to constitute the gift or was it to serve as a record of a past event? If it is a mere memorandum of the things already transacted and did not embody the gift, no registered document is necessary.

In this connection, the observations of the Privy Council in AIR 1923 50 (Privy Council) which dealt with a question as to when a document is drawn up to evidence a mortgage by deposit of title deeds but not registered oral proof of it was admissible, are relevant.

The law upon the subject admits of no doubt. In the case of Kedarnath Dutt v. Sham Lall Khettry, 11 Beng. LR 405, Couch C. J. said:

.....If the memorandum was of such a nature that it could be treated as the contract for the mortgage and what the parties considered to be the only repository and appropriate evidence of their agreement, it would be the instrument by which the equitable mortgage was created and would come within Section 17 of the Registration Act.''''

So, if the idea in the instant case was merely to reduce to writing what had already happened, the formalities of Section 123 of the Transfer of Property Act need not be observed. But if it is the former, there should be a registered instrument with an attestation of at least two witnesses.

In this connection, we may turn to the provisions of Section 17 of the Indian Registration Act. That requires inter alia all non-testamentary instruments, which purport to or operate to create any right, title or interest in immovable property to be compulsorily registered.

We have to examine the document in question in the light of these rules. No doubt, there was recitals therein which relate to past transaction. But that is not decisive of the matter. What is the purpose which it was designed to serve? That the executant did not treat it as a memorandum of a completed hiba is evident from some of the sentences in the deed, such as "I deemed it necessary to execute a deed also making a declaration in favour of my son... in accordance with the Muslim law.", and the last portion of the document. The anxiety of the donor to free the title of the donee to the property from all doubts and to save him from future litigation is clearly exhibited in the last sentence.

I pray that no one may have any kind of doubt regarding the ownership of Syed Ehasan Hussain and that if per chance any doubt at all should arise, this deed of Ekrarnama may prove sufficient.''''

This sentence is expressive of her intention to silence all doubts regarding the ownership of the property with the aid of this document. She did not want anyone to challenge the title of the donee to the house in question. This object could be attained only if it is regarded as a conveyance, a document which effected the transfer by its own force. If, on the other hand, if it is a mere record of a past transaction, that would not have the desired effect. There is one circumstance which gives some indication as to the intention of the executant of the document. The document is attested by two witnesses as required by Section 123 of the Transfer of Property Act. No doubt, this is not conclusive of the matter. But it is indicative of the desire of the executant that it should serve as evidence of the gift and not as a memorandum of a past transaction.

For these reasons, we hold that the document in question falls within the sweep of Section 17 of the Indian Registration Act and, it is chargeable to duty as a gift deed. The reference is answered accordingly.