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1971 (7) TMI 164

V.R. Krishna Iyer, J. 1. One Makku Rowther died at the grand old age of 91 leaving behind properties and disputes, the one the inevitable sequel to the other, for, property often alienate brothers and sisters into plaintiffs and defendants. The death of Makku Rowther was the signal for a scramble for his properties, the plaintiff, one of his daughters, claiming a share and the sons, defendants 1 to 3, together with the only other daughter, the 4th defendant, resisting it setting up gifts to each one of them of some property or the other. If the story of the gifts were true, the plaintiff's suit has to fail and so the primary question that falls for decision before me-and was considered by the courts below-is the truth and validity of the gifts put forward in the written statements. 2. The defendants have a straight case of oral gift, but a second line of defence also has been taken up by them in that they have urged that the oral gift failing, they have a deed, Ext. B1, which operates as a gift although styled an agreement. Ext. B1 is an unregistered instrument and the point has been mooted that, being unregistered, it is inadmissible in evidence to speak to a gift on account o .....

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of a declaration had not been made out. Counsel for the appellant rightly states that declaration, in this context, is not a ritual but a reality. It need not be a formal statement but may be made out by conduct. He is supported by Tyabji on Muslim law where the learned author states: "Even when the declaration and acceptance are not expression in words, so long as the intention is evidenced by conduct, it would be sufficient." However, on the evidence, I am unable to discern any conduct sufficient to manifest the wish to give on the part of the donor. At the most, the documentary material is ambiguous and I am not, therefore, inclined to depart from the findings concurrently rendered on this question. It follows that the oral hiba pleaded by the appellant must fail. Even otherwise, the factual finding is not available to be canvassed. Of course, counsel for the appellant insisted that gross errors in the appreciation of the evidence vitiate the holding. Granting this criticism to be well-founded, I must remind myself and counsel about the finality applicable in such situations. 4. Two minds are better than one and three may improve upon two but then we must halt at two, .....

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s that it must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. But Section 129 of that Act expressly excludes the application of that Chapter to Muslim gifts: "Nothing in this Chapter ..... shall be deemed to affect any rule of Mahomedan law." The argument, therefore, runs that if the rules of Mahomedan law bearing on gifts provide for making one without resort to registration. Section 123 is out of the way-thanks to Section 129. Assuming that, for this reason, the need for a registered deed as prescribed by the Transfer of Property Act is obviated, what is the impact of Section 17 of the Registration Act on compulsory registration of Muslim gift deeds? Section 49 puts an embargo on the reception, as evidence, of any deed affecting immovable property unless it has been registered, provided it is required to be registered by Section 17. (The Transfer of Property Act may be kept out for reasons already explained). Thus, if Ext D1 is registrable under Section 17, it becomes important to effectuate a gift and has also to be shut out as a piece of evidence. The crucial question, therefore, is whether a deed of .....

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set the seal of its authority on this view but did not refer to the Calcutta decision. According to their Lordships, if the idea was merely to reduce to writings what had already happened, a registered instrument may not be necessary, but a Muslim gift deed falls within the sweep of Section 17 if it was intended by the instrument to convey a property. Chandra Reddy, C, J. observed that Section 129 relieved a Mahomedan from, executing a registered instrument in making a gift if he conformed to the rules of Mahomedan law, but it does not prevent a Mahomedan from effecting a transfer in the manner contemplated by Section 123 and where he does execute a transfer deed, the question of reglstrability turns on intention: "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." 8. I regret my inability to agree with the reasoning in these decisions. In the context of Secti .....

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ning myself to this contention for the nonce, I am inclined to hold that Ext. B1 is admissible notwithstanding Sections 17 and 49 of the Indian Registration Act. This conclusion, however, is little premature if I may anticipate my opinion on the operation of Section 129 of the Transfer of Property Act expressed later in this judgment. Indeed, in the light of my interpretation of Section 129, Ext. B1 needs to be registered. For the present I indicate my conclusion, if the law of gifts for Muslims were not to be governed by Section 129. 10. The question of credibility follows close upon the heels of admissibility. So, then, is Ext. B1 an honest deed or a ersatz? There is considerable force in respondent's criticism of spuriousness but there has been no finding by either court, as stated earlier, about the genuineness of this deed. Very much depends on the identity of the signature on it with that of the deceased and the attendant circumstances of its alleged birth. A further question arises as to whether there is sufficient pleading to support the case of gift as resting on Ext. B1. There is reference to it in the notices exchanged antecedent to the suit. There is also mention of .....

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ision tuned to the fundamental rights in Part III. In particular, he relies upon Articles 14 and 15(1) and argues that to avoid the lethal operation of Article 13 a restricted meaning has to be attributed to the word 'gift'. It is absolutely plain that equality before the law and the equal protection of the laws enshrined in Article 14 and the non-discrimination against any citizen on grounds solely of religion promised in Article 15, have been prima facie deviated from in Section 129 which declares that the provisions of the Transfer of Property Act relating to gifts will not affect a class identified by its religion. Absolute equality is a human impossibility and so, the practical sense of the law has evolved the principle of reasonable classification. Equality means that among equals the law should be equal and not that unequals should be treated equally, as that will lead to Procrustean injustice. This spells in the State the power to classify on the basis of rational distinctions relevant to the particular subject dealt with, so that what might appear to be superficially discriminatory may prove, in substance, to be practical equity. Such classification may be religion .....

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confidence upon the statements contained in the register as a full and complete account of all transactions by which his title may be affected unless indeed he has actual notice of some unregistered transaction which may be valid apart from registration." Similarly, attestation also helps to make for certainty of the transaction, its solemnity, the avoidance of disputes and the possibility of easy proof. If these be the objects of the section the religious begins of the grouping must have reasonable relation to these objects. At the first flush it strikes me that unless a recognisable allergy to attestation in the Muslim way of life or an Islamic repugnance to registration as a religious reaction can be made out, the insistence on these formalities by Section 123 cannot be avoided any more by Muslims than by Hindus or Budhists on a religious plea; for, the constitutional foundation for a permissible classification by religion would otherwise be absent. Indeed, the very insistence on delivery of possession is, I have a hunch, visible evidence of those days which a registered deed supplies now. 14. Learned counsel for the appellant, familiar with the relevant religious lore, agr .....

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. A gift by a Muslim paramour to a heathen mistress cannot claim immunity from Section 123 on godly grounds. To hold that any gift, be it of the most mundane and profane category or not, is absolved from the reasonable prescriptions of Section 123 of the Act by the mere incantation of a particular religion is to make a shambles of Articles 14 and 15(1) and a simulacrum of Article 44. The old laws must be tuned up to the new law of the Constitution and the spirit of the times. Religious and charitable transfers stand on a different footing. 16. The Shariat Act, 1937 (Act 26 of 1937) provides for the application of the Personal Law in regard to various matters like marriage, succession, dower, guardianship, gifts, trust and trust properties and wakfs. Counsel for the appellant cited this enactment in support of his proposition that in all controversies relating to gifts the rule of decision shall be the Muslim Personal Law. I do not think that the, application of Muslim Personal Law to gifts precludes the application of other laws which do not run counter to the rules of Muslim law. For instance, the gift tax may be levied from a Musalman although the rules of Muslim law do not provi .....

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, it was beyond the competence of the Legislature to enact it; and whether or not it does so must depend upon the meaning which is to be given to the word 'property' in the Act. If that word necessarily and inevitably comprises all forms of property, including agricultural land, then clearly the Act went beyond the powers of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the Court is bound to construe the word 'property' as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate, that is to say, property other than agricultural land". In a Bombay case (State of Bombay v. Heman Santlal Alreja, AIR 1952 Bom. 16) a similar point arose, the controversy being whether the words "any purpose" would include "purposes of the Union&q .....

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rity judgment proceeded on a slightly different basis. Again, the Supreme Court, as late as AIR 1970 SC 264 (Jothi Timber Mart v. Corporation of Calicut) approved of the principle of interpretation I have elaborated above relying upon: AIR 1941 FC 72. The Court observed: "When the power of the Legislature with limited authority is exercised in respect of a subject-matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is competent to legislate and to no other; and that the Legislature did not intend to transgress the limits imposed by the Constitution." Their Lordships approved of the manner of construction adopted by the Kerala High Court in the Calicut City Municipal case. Indeed, it was an appeal from that writ appeal judgment. 19. Although the various decisions I have referred to relate to the competence of the Legislature. I see no difference in principle when the restriction is enjoined by Part III. To save the life of a legislation a limited judicial surgery, sometimes plastic surgery, is permissible. It is therefore, right, as a matter of constr .....

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ction in an Act The ratio of: AIR 1960 SC 356 also inclines me to this view. 22. In this view, the only question would be whether Ext. Bl is tinged with sacredness in its terms and object or is purely secular in its operation and import. The end result of classifying gifts in the manner I have suggested meets the mandate of Article 44 of a secular symbiosis of many religions which will run in separate streams in matters religious but will flow along the mainstream in matters nonreligious. To a limited extent, the law of gifts becomes common for all citizens of India in keeping with the directive principles. 23. Before parting with this topic. I must refer to two decisions cited at the bar by counsel for the appellant in support of his contention that Section 129 of the Act was altogether immune to any invasion by Articles 14 or 15(1) and even 13. A direct Division Bench decision of the Patna High Court reported in Bibi Maniran v. Mohammed Ishaque (: AIR 1963 Pat 229) and another Bench decision of the Bombay High Court which considerably fortifies the plea of the counsel, were discussed at some length. In the Bombay case, the learned Judges went to the extent of laying down that per .....

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es from this premise: ".....and, therefore, the rules of Mahomedan law regarding gift are based on reasonable classification and the provision of Section 129 of the Transfer of Property Act exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the Constitution." It is really a case of non-sequitur. To hold that religion can form, the basis of classification is one thing; to use it to validate discriminatory laws on subjects or for objects unrelated to religious mores is another. The learned Judges conveniently assume the precise point that needs to be established, for, it is a little obscure how in the nature of the bulk of secular gifts Muslims and Hindus are not similarly situated, particularly regarding attestation and registration. The irrelevance of the basis to the statutory object will be evident if we apply it to Parsi sales and Muslim mortgages and label it religious grouping. The classificatory predicate is religion. Good. But in constitutional technology it must be geared to the propeller, the object or purpose of the impugned law. On the other hand, if we narrow down the scope of Section 129 of the Act by reading down the ambit o .....

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hat the residential house of the plaintiff acquired under Ext. A3 was purchased with the funds of Makku Rawther. The evidence on this aspect of the case has been considered in detail by the court which saw the witnesses and chose to believe D. Ws. 6 and 7. Having heard counsel on the evidence relating to this item. I am satisfied that this finding of the trial court is correct. Obviously, the money needed to purchase the item and to build a house thereon could not have been but that of the deceased father. The plaintiff, a young widow burdened with children, had no means of her own. P. W. 1, her son, got a petty job 2 or 3 years prior to Ext. A3 and the small salary he got was consumed by his own needs, as he himself has deposed. The conclusion is that Ext. A3 property was an asset of Makku Rawther. 27. Counsel for the respondent states that there has been no specific case asking for division of this item set up by the defendants. I think that is correct. There is also another difficulty In the way of the appellants claiming partition of this item. The son of the plaintiff in whose name also Ext. A3 stands is not a party to the present suit. However, a fresh suit for partition of t .....

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