Indian Kanoon - Search engine for Indian Law

21.Reading together Sections 2, 9 and 129 of the Transfer of Property Act, 1882 along with the provisions of the Mahomedan Law, the emerging legal position would be that the provisions the Transfer of Property Act, 1882 have no application to the conditions of a valid gift governed by the Mahomedan Law. While it can be said that a document reduced in writing requires registration under Section 17 of the Registration Act, 1908, the question as to whether a gift is valid or not can only be tested on the touch stone of the provisions of the Mahomedan Law alone. In other words, a document reduced in writing concerned with the donor and donee being Mahomedans can be stated to be compulsorily registrable, nonetheless the validity of a valid gift would be governed only by the Mahomedan Law and not the Transfer of Property Act, 1882.

27.The learned senior counsel appearing for the petitioner has made reliance upon the judgment rendered by this Court in ISMAIL GANI vs. MAIM PONN PATTU BEEVI [1998 (I) CTC 735] and the judgment of the Honourable Apex Court in ASOKAN vs. LAKSHMIKUTTY AND OTHERS [(2007) 13 SCC 210]. These judgments are not applicable to the case on hand, as they have been rendered on a appreciation of the evidence available on record by way of an adjudication through the Civil Courts. The evidentiary value of a registered document particularly with reference to Sections 91, 92 and 114 of the Indian Evidence Act, 1872 is the role of the Civil Court. However, what we are dealing, is the applicability of the conditions of a valid gift under the Mahomedan Law. As discussed above, a registration being a part of procedural law cannot take away the rights and liabilities imposed by way of conditions under a substantive law. Similarly, the decision rendered in S.GANESAN vs. BHARATHIRAJAN [2009 (5) CTC 558] is also of no help as the said case arose from the suit that too not dealing with the Muslim Personal Law. Moreover, in the judgments referred above, the applicability of the Shariat Law has not been considered.

28.The learned counsel appearing for the respondents has also made reliance upon the judgment of the Kerala High Court in MAKKU RAWTHER'S CHILDREN: ASSAN RAVTHER AND OTHERS vs. MANAHAPARA CHARAYIL [AIR 1972 KERALA 27]. The decision of the Kerala High Court was taken into consideration by this Court in a subsequent pronouncement in AMIRKHAN vs. GHOUSE KHAN [(1985) 2 MLJ 136] wherein, it has been held that when a gift deed is reduced in writing even among Mahomedans then the same is required to be registered under the provisions of the Registration Act, 1908. The said decision has no relevancy and application to the present case as the gift deed is registered voluntarily. Section 129 of the Transfer of Property Act, 1882 recognizes the applicability of the rule of Mahomedan Law which would include the conditions for a valid gift. The word "rule" would necessarily mean the conditions of a valid gift. Further the Court was only concerned with the admissibility of an unregistered gift deed. The question for consideration in the present case is not as to whether a gift deed reduced in writing required registration or not but whether the Muslim Personal Law governing the Mahomedans would cease to apply by an act of Registration. In fact, this Court was pleased to hold in the said case that the very purpose of 129 of the Transfer of Property Act, 1882 is to avoid any friction. Section 123 of the Transfer of Property Act, 1882 and the Muslim Personal Law relating to Mahomedans.

31.Therefore as discussed above, the Transfer of Property Act, 1882 and the Registration Act, 1908 on the one hand and the Mahomedan Law on the other hand will have to be read together being complementary to each other. By applying the said principle, the irresistible conclusion would be that even among Muslims when a gift is reduced in writing and registered, such an act of registration would not remove and take away the applicability of the provisions of Mahomedan Law by which conditions have been imposed for a valid gift. By holding so in effect would not only destroy the provisions of the Mahomedan Law but also the protection given under the Transfer of Property Act, 1882 as well.