1971 (7) TMI 164 - HC - Indian Laws

Appeal dismissed, costs awarded. Court directs equitable property partition.

Makku Rawther's Children: Assan Ravther and Ors. Versus Manahapara Charayil

The appeal was dismissed with costs, affirming the decree granted by the courts below. The court directed that the trial court consider the partition of ... - Issues Involved:1. Truth and validity of oral gifts claimed by the defendants.2. Admissibility and genuineness of Ext. B1 (unregistered document).3. Impact of the Registration Act and Transfer of Property Act on Muslim law regarding gifts.4. Constitutional validity and interpretation of Section 129 of the Transfer of Property Act.5. Ownership and partition of the property acquired under Ext. A3.Issue-Wise Detailed Analysis:1. Truth and Validity of Oral Gifts:The primary question was the truth and validity of the oral gifts claimed by the defendants. The courts below found that the essentials of a gift under Muslim law-declaration, acceptance, and delivery of possession-were not met. The trial court and the lower appellate court both concluded that there was neither a declaration by the donor nor acceptance by the donee nor delivery of possession. The appellate court emphasized that declaration, in this context, is not a ritual but a reality, which need not be formal but can be evidenced by conduct. However, the evidence did not support any conduct sufficient to manifest the donor's wish to give. Consequently, the oral hiba pleaded by the appellant failed.2. Admissibility and Genuineness of Ext. B1:The defendants alternatively relied on Ext. B1, an unregistered instrument styled as an agreement but argued to operate as a gift. The courts below repelled it as inadmissible due to non-registration, as required by Sections 17 and 49 of the Indian Registration Act. The document, although labelled an agreement, was essentially a unilateral declaration reciting gifts to various defendants. The court found this suspicious, especially given the donor's advanced age and the lack of direct testimony regarding the execution of the document by the deceased. The court concluded that Ext. B1 was inadmissible and not genuine.3. Impact of Registration Act and Transfer of Property Act on Muslim Law Regarding Gifts:The court examined whether the rules of Muslim law regarding gifts are affected by the Registration Act. Section 123 of the Transfer of Property Act requires a registered instrument for a gift, but Section 129 exempts Muslim gifts from this requirement. The court considered various precedents and concluded that a Muslim gift deed is not compulsorily registrable under Section 17 of the Registration Act if it merely evidences a gift already made according to Muslim law. However, if the deed itself purports to effectuate the gift, it must be registered.4. Constitutional Validity and Interpretation of Section 129 of the Transfer of Property Act:The court addressed the constitutional challenge to Section 129, which exempts Muslim gifts from the requirements of Chapter VII of the Transfer of Property Act. The court held that while religion can form the basis of classification, it must have a rational nexus with the object of the law. The court interpreted Section 129 to apply only to gifts with religious or charitable motivations, not to purely secular gifts. This interpretation aligns with Articles 14 and 15 of the Constitution, ensuring non-discrimination and equal protection under the law.5. Ownership and Partition of Property Acquired Under Ext. A3:The court considered whether the property acquired under Ext. A3, allegedly purchased with the deceased's funds, should be included in the partition. The trial court found that the property was indeed acquired with the deceased's funds, and the appellate court agreed. However, since the plaintiff's son, in whose name the property also stands, was not a party to the suit, the court directed the trial court to allow his impleading and amend the written statements to include a demand for partition of Ext. A3 property. The court left the matter of ownership of Ext. A3 property open for fresh consideration by the trial court.Conclusion:The appeal was dismissed with costs, affirming the decree granted by the courts below. The court directed that the trial court consider the partition of Ext. A3 property if a motion is made within two months and ensure equitable allotment of properties, considering the possession and improvements made by the respective parties.