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TMI Blog1971 (7) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... endants 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 of the embargo contained in Section 17(1)(a) and Section 49 of the Indian Registration Act. An interesting argument has been addressed that, Muslim law notwithstanding all gifts by Mahomedans must comply with the legal requirements prescribed by the general law applicable to all citizens in the country contained in the Transfer of Property Act. Section 129 of the Transfer of Property Act is either violative of Articles 14 and 15 of the Constitution and therefore void under Article 13 or must be so construed as to make it constitutional, in which case secular gifts like Ext. B1 cannot claim the benefit of exemption. After some argument, counsel for the respondent virtually gave up the plea of ultra vires and urged that while Section 129 was good, it had to receive a restricted construction for its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise, 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, for practical reasons. Not that affirmation in first appeal invests the finding with infallibility but that in this imperfect world the smaller chances of error even beyond the second tier and the expense and delay of escalated litigation justify closing the door when the first two Judges concur in the factual conclusion at separate levels. Miscarriage of justice takes many forms, even too many notches of the appellate ladder. Legal issues are a thing apart. 5. At this stage, a consideration of Ext. B1 becomes necessary, both regarding its admissibility in evidence and its genuineness, because while the appellants have alternatively sought to support their case of gift on the strength of this document, the respondents have successfully repelled it in the courts below as inadmissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence, 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 gift executed by a Muslim is hit by Section 17. For this part of the argument, I am assuming that the three requisites of a valid Muslim gift, of declaration, acceptance and vesting of possession have been complied with. 7. Section 17(1) of the Indian Registration Act enumerates the documents which shall be registered and includes therein "instruments of gift of immovable property". Counsel for the respondent, supporting the view taken by the courts below, cited the rulings reported in Maula Bakhsh v. Hafiz-ud-Din AIR 1926 Lah 372), Sunkestila Chinna Budde Saheb v. Raja Subbamma, 1954 2 MLJ 113, Jannat Bai v. Firm Jdnce Khusalji Jethaji ILR (1960) Raj 1470) and Inspector General of Registration and Stamps v. Tayyaba Begum AIR 1962 AP 109 (FB). He also relied Upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 Section 17, a document is the same as an instrument and to draw nice distinctions between the two only serves to baffle, not to illumine. Mulla says: "The words 'document' and 'instrument' are used interchangeable in the Act". An instrument of gift is one whereby a gift is made. Where in law a gift cannot be effected by a registered deed as such, it cannot be an instrument of gift. The legal position is well-settled. A Muslim gift may be valid even without a registered deed and may be invalid even with a registered deed. Registration being irrelevant to its legal force, a deed setting out a Muslim gift cannot be regarded as constitutive of the gift and is not compulsorily registrable. 9. Against this argument counsel invoked the authority of the An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it in the written statement. What is more, the parties have gone to trial and have led evidence on this document and the Courts have considered the case of a gift based on it. In this background, it may be too technical to decline consideration of the plea of the appellants that Ext. B1 constitutes a gift by Makku Rowther. No surprise nor prejudice; and indeed there is some reference to it in the pleadings and actual consideration of it by the courts below --enough to warrant a disposal on merits of the defence based on Ext. B1. AIR 1956 SC 593 lends support to this view. 11. If there was an earlier oral gift why Ext. B1? The two cases militate against each other and the penalty a party pays for raising inconsistent pleas is judicial scepticism about bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssification. 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-oriented. The crucial tests of a valid classification are (1) an intelligible basis for segregation and (2) such basis having en intelligent nexus with the object of the law challenged. 12-A. Mere appeal to religion is never enough. For, religion, in a democratic republic, is no amulet, the wearing of which by a statute will inhibit invalidation of any and every discriminatory law. But where a religion, around which practices and institutions have grown differentiating it from other denominations, becomes the active foundation of real classification of persons and transactions, it may legitimately and legally wash away the apparent vice of discrimination. The uneasy conscience of the equality article is satisfied once the concession to classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malities 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, agreed that there is no reference anywhere in the verses of the Quran to a hiba. Nor do the hadiz which also have religious import, being the great Prophet's sayings, advert to gifts except as acts of love and goodwill. The Hedaya (See Hamilton, 2nd Edition at page 482) states "Deeds of gifts are lawful; because the Prophet has said. "Send ye presents to each other for the increase of your love," which implies the legality of gifts, as by presents is meant gifts." Even the traditions and the opinions of doctors or divines do not object to documentation of gifts or their being recorded before a public officer. While Imams have evolved the three ingredients of declaration, acceptance and vesting of possession under the then c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provide for such levy. Therefore, the need for a document, its attestation and registration are not necessarily inhibited by Section 2 of Act 26 of 1937. Moreover, the expression 'gifts' in Section 2 along with trusts and trust properties and wakfs takes colour from the society of these words. I am inclined to think that the amplitude of the expression 'gift' in the Transfer of Property Act (Section 129) must be so read down as to restrict it to transactions and presents with a religious or charitable motivation or purpose. 17. Whatever might have been, the content of the word 'gift' in Section 129 when it was originally enacted, its meaning has to be gathered today in the constitutional perspective of Articles 14, 15, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" making the Act ultra vires of the State Legislature. Chagla C. J. disposed of the contention thus: ".....There is a very important principle which must be borne in mind in construing a statute .....If possible, a construction should be placed upon a statute which would put it within the limits of the competence of the legislature rather than outside those limits." Again, in a Kerala decision (reported in NeeJikkandy Kunhammad Haii v. Agricultural Income Tax Officer. I. L. R. (1960) Ker. 822) M. S. Menon, J. (as he then was) adopted the same canon of construction and held that the Agricultural Income Tax Act. 1950, when it defined "agricultural income", must be deemed to have used those words with the implicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 construction, to limit the scope of the expression 'gift' in Section 129 of the Act to that category of gifts which has a religious import or charitable motivation. Sadaqahs, for instance, come under this category. There may be gifts for pious purposes or to pious persons made by a Muslim for securing spiritual benefit, falling into well recognised categories familiar in his religion such as a gift to a person who is required to recite the Quran for the good of the donor's family. Purely secular gifts cannot get the protection of Section 129 if that provision is read down to vindicate a reasonable classification. The Transfer of Property Act is a pre-Constitution statute and the expression 'gift' in Section 129 may, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 personal law is not included in the expression "laws in force" used in Article 13(1). With great respect. I demur to the proposition and to the reasoning adopted in reaching this result. Personal law so-called is law by virtue of the sanction of the sovereign behind it and is, for that very reason, enforceable through court. Not Manu nor Muhammed but the monarch for the time makes 'personal law' enforceable. Article 13(1) gives an inclusive and not exhaustive definition. And I respectfully venture the opinion that Hindu and Mohomedan laws are applied in courts because of old regulations and Acts charging the courts with the duty to administer the personal laws and not because the ancient lawgivers obligate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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 of 'gift' to confine it to all manner of religious and charitable gifts, the dual elements of reasonable classification will be fulfilled. The oddity of any larger area of exemption is heightened when we remember that gifts by Muslims even to non-Muslims are covered by Section 129, read without the limitation suggested; and a variety of gifts with peppercorn consideration are regarded as hiba bil iwaz or sales and require attestation and registration. Our Civil law may thus be reduced to a set of totems contrary to the approach sketched by Article 44. The conclusion that I reach about the construction of Section 129 of the Act, against the backdrop of Article 44 and inseminated by Articles 14 and 15(1) is that suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this small item should be avoided, if possible, so that multiplicity of litigation may be eliminated. I, therefore, direct the trial court to permit P. W. 1 being impleaded and the written statements of the defendants amended so as to include a demand for division of Ext. A3 property, if a motion is made for these reliefs within two months from today. If P. W. 1, when made a party is able to adduce any further evidence tilting the scales against the deceased Rawther's ownership of Ext. A3 property, it will be open to the court to come to its own conclusion. It might look a little odd that there should be divergent findings in the same suit in regard to different parties on the same subject. I think it, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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