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PETITIONER: SMT. GOMTIBAI (DEAD) THROUGH LRS. & ORS.

       Vs.

RESPONDENT: MATTULAL [DEAD) THROUGH LRS.

DATE OF JUDGMENT:       01/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the learned single Judge of the High Court of Bombay made on March 7, 1977 in Second Appeal No.326/70.      The respondent  gad  filed  suit  against  his  brother Govinddas on  February 1,  1977 for  partition of the plaint schedule property into two equal shares and allotment of one such share  to the  respondent - Mittulal. The plea taken by Govinddas was  that the  property was  gifted over  to their cousin sister  Kusturibai who  had entrusted the property to their  cousin   sister  Kusturibai  who  had  entrusted  the property to  them for  cultivation and was giving produce to them and  thereby the  land is  not partible  and the  suit, therefore, was  not maintainable.  The trial  Court accepted the plea  and dismissed  the suit.  On appeal,  the District Judge reversed  the finding and held that the partition deed between  the   plaintiff  and  the  defendant  was  only  an intention to  gift over  the land  to  their  cousin  sister Kusturibai; it  was not in fact executed and, therefore, the gift  is  not  valid  and  does  not  bind  the  respondent. Accordingly, the  suit was decreed. In the second appeal, it was confirmed. Thus, this appeal by special leave.      The only  question that  arises for  consideration  is: whether an  intention to  give the  land by  gift  to  their cousin-sister Kasturibai  created valid  title in law? It is seen from  the partition  deed executed  in 1947  that  they intend to  gift-over the  suit land  to Kasturibai  and  the correspondence subsequent  thereto was  relied upon  to show that the  land was allotted to Kasturibai. The question is : whether a  valid gift  has been  executed? In  the erstwhile State of  Hyderabad, the  Hyderabad Transfer of Property Act in pari  materia with the Transfer of property Act, 1882 was in force.  An provision  analogous to  Section  124  of  the Transfer of  Property Act  was in  force in  the former  the Transfer of Property Act was in force in the former State of Hyderabad. Section  122 defines  "Gift" to mean 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 donee. How the gift is to be effective has been

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stated inn Section 123 which envisages 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."      Thus, it  seen that  the  gift  of  immovable  property should be  made only  for transferring  the right, title and interest  by   the  donor  to  the  donee  by  a  registered instrument signed  by or  on behalf of the donor and must be attested by  at least two witnesses. The pre-existing right, right, title and interest of donor thereby stand divested in the donee by operation of Section 17 of the Registration Act only when  the gift  deed in  duly registered and thereafter the donor  would lose title to the property. It must also be proved that  the donee  had property. It must also be proved that the  donee had  accepted the property gifted over under the instrument.  In this  case, though  the transfer of gift was acted  upon by  Kasturibai as per the correspondence and evidence on  record, but,  admittedly, there  is no  written instrument executed  by donor, namely, the plaintiff and the defendant in favour of their cousin sister Kasturibai and it got attested  by at  least two  witnesses and  registered in accordance with  the provisions  of the  Stamp Act  and  the Registration Act.  In the  absence of  compliance  of  these formalities, at  best what  could be seen from the partition deed is  that the  original plaintiff and the defendant have expressed their  intention to  gift over  the land  to their cousin sister Kasturibai. As held earlier, in the absence of any registered  instrument of gift and acceptance thereof by the donee,  the said property could not be said to have been legally transferred  in favour  of their  cousin sister;  in other words,  the gift  is not  complete in  the eye of law. Therefore, the  District Court  has rightly  set  aside  the decree of  the trial  Court which was later confirmed by the High Court.  We do  not find  any error  of  law  warranting interference.      The appeal is accordingly dismissed. No costs