1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:09.02.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION(PD)No.242/2011 and MISCELLANEOUS PETITION No.1 / 2011 1.Hajee E.A.A.Jalaludeen 2.E.A.A.Jameemdeen 3.A.Nazeera Beevi 4.A.Z.Mohammed Harish 5.K.Saleema Begum 6.A.Z.Mohameed Harum 7.S.Mehar Nisha 8.Mohammed Hallalla 9.Sabitha Barveen 10.R.Rasana Begam :Petitioners -Vs- 1.E.A.A.Mohammed Siddiq 2.A.Pulkees Beevi 3.M.Selvakumar 4.C.Vanaraj 5.C.Chandran 6.D.Sanjeevi 7.P.Mani 8.M.Mani 9.M.Vijaya 10.V.Rajathiammal 11.V.Prabhakaran 12.V.Perumal 13.P.Vanathi 14.P.Raja 15.R.Rani 16.M.Velammal 17.C.Veerammal :Respondents Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 03.12.2010 passed in Original Suit No.7 of 2006 by the Additional District Court/Fast Track Court, Periyakulam, while recording deposition of D.W.1, refuse to mark Document Nos.6,9,11,13,16,19 and 24 on the side of the petitioners without collecting stamp duty penalty and to pass such other or further orders. For Petitioner : Mr.B.Rajesh Saravanan For Respondent No.1: Mr.N.Dilip Kumar ORDER The order passed in Original Suit No.7 of 2006 by the Additional District Court/Fast Track Court, Periyakulam is being challenged in the present Civil Revision Petition. 2.The first respondent herein as plaintiff has instituted Original Suit No.7 of 2006 on the file of the Court below for the reliefs of partition and separate possession, wherein the present revision petitioners https://hcservices.ecourts.gov.in/hcservices/ 2 and other respondents have been shown as defendants. During pendency of the same, on the side of the revision petitioners, certain gift deeds have been introduced and the Court below has directed to pay stamp duty penalty and against the order passed by the Court below, this Civil Revision Petition has been preferred. 3.The learned counsel appearing for the revision petitioners has contended that the alleged gift deeds have been executed by a Mohammedan As per Section 129 of the Transfer of Property Act, 1882 the gift deeds in question do not require registration and therefore the impugned order passed by the Court below is liable to be set aside. In support of his contention, he has drawn the attention of this Court to the following decisions: (a)In Md. Hesabuddin and others v. Md. Hesaruddin and others reported in AIR 1984 Gauhari 41, it has been held that a gift deed executed by a Mohamedan does not require registration in every case. (b)In Makku Rawther's Children: Assan Ravther and others v. Manahapara Charayil reported in AIR 1972 Kerala 27, it has been observed that for a valid gift under Mohamedan Law the following three things are essential: (i)Declaration of gift by the donor; (ii)express or implied acceptance by or on behalf of donee; and (iii)delivery of possession of the subject of gift to the extent it is susceptible of. Under the said circumstances, it has been held that a deed of gift executed by a Muslim regarding a gift may according to the three conditions laid down by Muslim Law is merely evidence of completed gift and such is not compulsorily registrable. 4.In order to rebut the argument advanced by the learned counsel appearing for the revision petitioners, the learned counsel appearing for the contesting respondent has befittingly drawn the attention of this Court to the decision in Amirkhan v. Ghouse Khan reported in (1985)2 MLJ 136, wherein this Court has held as follows: "Mohammedan Law recognises an oral gift. The question is whether notwithstanding such right to created a gift orally, if a Mohammedan should reduce the gift to writing, the same requires registration. According to Section 129 of the Transfer of Property Act, nothing in Chapter VII relates to gift of immovable property made in contemplation of death, or shall be deemed to affect any rule of Mohammedan Law. Thus a gift by a Mohammedan is exempt from the purview of Chapter VII of the Transfer of Property Act. This is taken advantage of by the learned counsel for the petitioner to submit that because the personal law permits an oral gift by a Mohammedan, it would follow that even if the gift deed were to be reduced to writing, it does not require registration. In my view such an approach is wholly erroneous. For under Section 123 of the Transfer of Property Act no gift of immovable property shall be made except by a registered instrument signed by or on behalf of the donor attested by at least two witnesses. In order to avoid any conflict between Section 123 and the personal law which enables Mohammedan to make an oral gift, Section 129 of the Transfer of Property Act was necessitated. That is all the object of Section 129 of the Transfer of Property Act. The fact that there was such an exemption under Section 129 will not ipso facto indicate that https://hcservices.ecourts.gov.in/hcservices/ 3 the provisions under the Registration Act, 1908 will not also apply to a deed of gift reduced to writing by a Mohammedan. The relevant provisions in the Registration Act are Section 17 and Section 49. There is no saving clause or section in the Registration Act similar to Section 129 found in the Transfer of Property Act. It follows that all documents of gift either created by a Mohammedan or by a non-Mohammedan are governed by the Registration Act. The combined force of Section 17 and Section 49 requires that any deed of gift if reduced to writing should be registered, otherwise it would not be admissible in evidence. Section 17(1)(a) of the Registration Act relates to instrument of gift of immovable property. It expressly mandates that the instrument of gift of an immovable property shall be registered". 5.From a close reading of the decision rendered by this Court, it is made clear that for creating a valid gift by Mohammedan, the conditions mentioned in the decision in Makku Rawther's Children: Assan Ravther and others v. Manahapara Charayil reported in AIR 1972 Kerala 27 are very much essential. But however if a gift is made through a document as per Section 123 of the Transfer of Property Act, 1882, registration is necessary and the same is not exempted from operation of Sections 17 and 17(1)(a) of the Registration Act. Since this Court has already held that if a gift deed is created by a Mohammedan, the same should be registered, this Court is in a position to follow the same. Under the said circumstances, the contention urged on the side of the revision petitioners cannot be accepted and whereas the contention urged on the side of the contesting respondent is really having subsisting force. The Court below after considering the relevant provisions of law has rightly passed its order. 6.In view of the discussion made earlier, this Court has not found any error in the order passed by the Court below and altogether the present Civil Revision Petition deserves to be dismissed. 7.In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs and the impugned order passed by the Court below in Original Suit No.7 of 2006 is confirmed. However, the Additional District Court/Fast Track Court, Periyakulam is directed to dispose of Original Suit No.7 of 2006 before the end of June, 2011 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Deputy Registrar (Writs) / TRUE COPY / Assistant Registrar To: The Additional District Judge/Fast Track Court, Periyakulam. Copy To:The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai (for watching the report) +1CC to M/s.N.Dilipkumar, Advocate. SR.No.5127. +1CC to Mr.B.Rajesh Saravanan, Advocate. SR.No.5092. Smn CRP(PD)(MD)No.242 of 2011 and MP(MD)No.1 of 2011 RP/21.02.2011/3P/5C. 09.02.2011. https://hcservices.ecourts.gov.in/hcservices/