SMT. GOMTIBAI (DEAD) THROUGH LRS. AND ORS.versusMATTULAL (DEAD) THROUGH LRS.

       SMT. GOMTIBAI (DEAD) THROUGH LRS. AND ORS.                            A
                                     v.
                MATTULAL (DEAD) THROUGH LRS.

                            OCTOBER 1, 1996

           [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                             B

      Transfer of Property Act, 1882 :

       Ss. 122 and 123-<Jift of immovable property-Held gift of immovable
property should be made only for transferring the right, title and interest by C
donor to donee by a registered instrument signed by or on behalf of donor
and must be attested by at least two witnesses-It must also be proved that
donee had accepted the p,roperty gifted over under the instrument-In the
instant case through the transfer of gift was acted upon as per the correspon-
dence and evidence on record, but there is no written instrument executed by
donor, and as such the property could not be said to have been legally D
tran sferred-<Jift is not complete in the eye of law.

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1519 (N)
of 1980.

     From the Judgment and Order dated 7.3.77 of the Bombay High             E
Court in Appeal No. 326 of 1970.

      Ashok Kr. Singh for the Appellants Nos. 2-4 and 6.

      S.B. Wad, Mrs. J.S. Wad and Abraham N.A. for the Respondents.
                                                                              F
      The following Order of the Court was delivered :

      This appeal by special leave arises from the judgment of the learned
single Jtidge of the High Court of Bombay made on March 7, 1977 in
Second Appeal No. 326/70.                                                  G ·
      The respondent had 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 - Mattulal.
The plea taken by Govinddas was that the property was gifted over to their
cousin sister Kusturibai who had entrusted the property to them for H
                                   155
    156                   SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.

A cultivation and was giving produce to ~hem 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 fin~ing and held that the partition deed between the plaintiff
    and the defendant was only an intention to gift over the land to their cousin
B   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 inten-
  tion to give the land by gift to their cousin-sister Kasturibai created valid
C 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
D 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 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 the donee. How
E the gift is to be effective has been stated in Section 123 which envisages
  that "for thr: 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."

F        Thus, it is 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, 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 is duly registered
G and thereafter the donor would lose title to the 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, admit-
  tedly, there is no written instrument executed by donor, namely, the plain-
H tiff and the defendant in favour of their cousin sister Kasturibai and it was
                      SMf. GOMTI BAI v. MATTU 1AL                           157
got attested by at least two witnesses and registered in accordance with the       A
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 ex-
pressed 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
                                                                                   B
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.
                                                                                   c
R.P.                                                        Appeal dismissed.