: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.455 OF 1990 Faridsaheb Hussensaheb Sharikmaslat, Decd. Thru’ Aminabai F. Sharikmaslat & Ors. .. Appellants V/s. Ahmedsaheb Hussensaheb Sharikmaslat, Decd. Thru’ Didima A. Sharikmaslat & Ors. .. Respondents Mrs. Anjali Helekar i/b. Mr. Neel Helekar for the Appellants. None for the Respondents. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 31 ST MARCH, 2010. PRONOUNCED ON : 9 TH APRIL, 2010. JUDGMENT : 1. The Second Appeal has been preferred against the Judgment dated 1st December, 1982, delivered by the Civil Judge, Junior Division, Miraj, in Regular Civil Suit No.223 of 1978, which has been confirmed by the Judgment delivered in December, 1989, by the Additional District Judge, Sangli, in Regular Civil Appeal No.89 of 1983. : 2 : 2. The respondent, who was the plaintiff before the trial Court, filed a Suit for possession in 1978 against his brother, the defendant. He contended that their father had gifted the suit property to him on 14th March, 1961 and had on the same day delivered possession of the suit property to him. It was further contended that the defendant forcibly obtained possession of the suit property. The plaintiff also contended that contemporaneously his father had executed a Deed by which the property was transferred to him. He styled this document as a Deed of Partition. 3. The defendant opposed the Suit by contending that their father could not have partitioned the property during his life time. He further denied the gift and pleaded that he was the co-owner of the suit property being a legal heir of their deceased father, Hussainsaheb. He contended that he and the plaintiff were entitled to an equal share in the suit property. He also pleaded that he had been residing in the suit property for 20 years : 3 : prior to the filing of the Suit and that he had not forcibly entered into the suit property. 4. The plaintiff led evidence before the trial Court. The document which the plaintiff styled as a Deed of Partition was also placed on record at Exhibit-27. Undisputedly this Deed is not registered, although executed on 14th March, 1961. Evidence was led by the plaintiff before the trial Court. He deposed that the suit property was transferred in his favour by his deceased father by an oral gift made on 14th March, 1961. He further deposed that he was put in actual possession of the suit property on the day the gift was made and that subsequently his father had effected a partition by the aforesaid Deed at Exhibit-27. The defendant did not lead any oral evidence. The trial Court construed the document at Exhibit-27 as a Partition Deed and not as a Deed of Gift. The trial Court, therefore, held that the plaintiff had succeeded in proving his exclusive title to the suit property. It was further held that the plaintiff’s father had transferred the suit property by a Partition Deed : 4 : as well as by an oral gift which is recognized under the Mohammedan Law. The trial Court further held that the defendant was residing in the suit property was in possession of the suit property as a trespasser. 5. Being aggrieved by this decision, the defendant preferred an Appeal before the District Court at Sangli. The District Court has confirmed the decree of the trial Court. The Appellate Court held that the recitals of the Deed at Exhibit-27 indicate that it was a Deed in respect of a gift and not partition. The Appellate Court observed that the respondent had signed this document accepting the arrangement. The finding of the trial Court that the possession of the suit property was delivered to the plaintiff was also accepted. The Appellate Court held, therefore, that the gift was valid and the condition stipulated in the gift was not inconsistent with the same, nor in derogation of the gift. 6. Mrs. Helekar appearing for the descendants of : 5 : the defendant, who are now on record after the latter’s demise, submitted that the gift made by Hussainsaheb in favour of the plaintiff, i.e. the predecessor in title of the respondents who are now on record, was void. She submitted that the testimony of the plaintiff, which has been accepted by both the Courts below, indicates that the suit property had been gifted orally by Hussainsaheb to the plaintiff and contemporaneously he had executed the Deed which is at Exhibit-27 dated 14th March, 1967. She pointed out that under Mohammedan Law an oral gift is recognized, if the possession of the suit property is handed over by the doner to the donee. However, according to the learned Advocate, if there is a Deed by which the gift is made, then it must be registered. She drew my attention to the fact that the Deed at Exhibit-27 is not registered, as required under Section 17 of the Registration Act and therefore, urged that the gift is void. She relied on the judgment of the Jammu & Kashmir High Court in the case of Ghulam Ahmad Sofi vs. Mohd. Sidiq Dareel & Ors., reported in AIR 1974 J & K 59 and the decision of the Kerala High Court in the : 6 : case of Imbichimoideenkutty vs. Pathumunni Umma & Ors., reported in AIR 1989 Kerala 148. 7. The substantial questions of law which arise for determination in the present Second Appeal are as follows :- (i). Whether the plaintiff could claim title to the suit property on the basis of the document dated 14th March, 1967 at Exhibit-27? (ii). Whether it could be said that the plaintiff had been validly gifted the suit property by his father under an unregistered Deed at Exhibit-27? 8. Although the trial Court had held that the Deed at Exhibit-27 was a Partition Deed, the Appellate Court has found on reading the recitals that it was a Deed of Gift. I have perused a copy of this Deed : 7 : and I find that the interpretation of this document by the Appellate Court is correct. Undisputedly the document is described as a “partition agreement”. The contents of the document indicate that Hussainsaheb had decided to divide the property received by him from his ancestors. He then gifted a part of it to the plaintiff. However, it would have to be seen whether such a gift is valid. 9. The three essentials of a Gift or Hiba are ; (a). the declaration of the gift by the doner; (b). an acceptance of a gift expressed or implied by and/or on behalf of the donee; (c). delivery of possession of the subject of the gift by doner to the donee. 10. Thus, under Muhammadan Law an oral gift by : 8 : which, the doner declares his intention to gift a property, the donee accepts the gift and possession of the property is delivered simultaneously to the donee, would be a valid gift. The plaintiff’s evidence has been accepted since there was no evidence led by the defendant in rebuttal. It would be obvious from this evidence that the gift was declared by the plaintiff’s father. The plaintiff had accepted the same and the plaintiff claimed that he had been delivered possession of the suit property. But in this case there is a contemporaneous execution of a document which is a Gift Deed. It is now well settled that any Gift Deed executed by a Muhammadan which is not registered affects the validity of the gift. Thus if there is a document by which a property is gifted and it has been executed simultaneously with an oral gift, that document must be registered. Undoubtedly possession of the property must be delivered before the gift can be said to be valid. Admittedly, in the present case, the document at Exhibit-27 is not registered, although executed contemporaneously with the oral gift. Therefore, : 9 : the gift of the suit property in favour of the plaintiff is not valid. 11. In the case of Ghulam Ahmad Sofi (supra), the Jammu & Kashmir High Court was considering a case where the trial Court has accepted an oral gift made in favour of a party. The Appellate Court on the other hand found that a transfer by way of gift must be effected in the manner provided under Sections 123 and 129 of the Transfer of Property Act. After considering the judgments of various High Courts, the Division Bench of the High Court of Jammu & Kashmir held that Sections 123 and 129 of the Transfer of Property Act do not supersede the Mohammedan Law on matters relating to the making of oral gifts and that it is not essential that there should be a registered instrument, as required under the Transfer of Property Act. It further held that if there is a Deed or Instrument which is executed, and its execution is contemporaneous with the making of a gift, then the instrument must be registered under Section 17 of the Registration Act. The Court further held that : 10 : in the event the making of the gift was an antecedant act and the Deed was executed as evidencing the transaction, it does not require to be registered. This is because the instrument was executed after the property was gifted. That instrument does not create, make or complete the gift, transferring the ownership of the property from the doner to the donee. 12. In the case of Imbichimoideenkutty (supra), the Kerala High Court has taken a similar view as the one taken by the Jammu & Kashmir High Court. 13. If the evidence of an oral gift is to be accepted, then for the gift to be valid, there must be material on record to establish that the oral gift preceeded the deed at Exhibit-27. In the absence of any positive evidence to establish this fact, it must be presumed that the deed was executed either prior to the oral gift or simultaneously with it. Had it indeed been subsequent to the oral gift, there certainly would have been some reference to the oral gift in the : 11 : document. A perusal of the Gift Deed, which is at Exhibit-27, indicates that it is not registered. Such a gift is not valid. 14. The Judgments of the Appellate Court and the trial Court are set aside as the document at Exhibit-27, which is a Gift Deed under which the plaintiff claims possession of the property, is not a registered document. 15. The Second Appeal is, therefore, allowed.