**3.RUKKIA BEEVI v. DIED AND HER LEGAL HEIRS ARE ALREADY ON THE PARTY ARRAY AS

P. BHAVADASAN, J.- - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 724 of 1998- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of March, 2012.JUDGMENTDefendants, who suffered a preliminary decree forpartition in O.S. 184 of 1989 before the Munsiff's Court,Varkala are the appellants. Parties and facts arehereinafter referred to as they are available before the trialcourt. 2. The suit properties belonged to Smt. AthukkaUmmal. She had two children, namely, the plaintiff and thedefendant. The third defendant is the foster daughterof thefirst defendant. According to the plaintiff, on the death ofSmt.Athukka Ummal, 2/3rd share of the property whichbelonged to Smt.Athukka Ummal was inherited by him andthe 1/3rd share by the first defendant. Though the plaintiffsought for partition of the property, the first defendant wasnot inclined to such a course and therefore the suit was laid. S.A.724/1998. 23. According to the defendants, by virtue of twogift deeds, namely, Exts.B1 and B2, Smt. Athukka Ummalgifted the entire properties which belonged to her to herdaughter and the third additional defendant, fosterdaughter of the first defendant. Accordingly, it wascontended that Smt.Athukka Ummal had no rights over theproperty at the time of her death. Subsequently the doneesunder Ext.B1 executed settlement deeds in favour of others.Therefore, it was contended that the suit is only to bedismissed.4. In view of the contentions raised by thedefendants, additional defendants were impleaded in thesuit as additional defendants 2 to 6. 5. The plaintiff filed a replication contending thatSmt.Athukka Ummal had never executed any gift deed andif any such gift deed is put forward by the defendants, thatis a fraudulent document and has not been executed bySmt.Athukka Ummal. According to him he had no S.A.724/1998. 3knowledge of the said deed and he was abroad at therelevant time.6. On the basis of the pleadings, issues wereraised. The evidence consists of the testimony of P.W.1 anddocuments marked as Exts.A1 and A2 from the side of theplaintiff. The contesting defendants had D.W.1 examinedand Exts.B1 to B5(b) marked. On a consideration of thematerials before it, the trial court came to the conclusionthat in view of the fact that the plaintiff had disputed theexecution of Ext.B1 document, Ext.B1 gift had to be provedin accordance with Section 68 of the Indian Evidence Act.Since none of the attesting witnesses have been examined,it is held that the gift was not proved and accordingly apreliminary decree for partition was passed.7. The aggrieved defendants carried the matterin appeal as A.S.52 of 1992. By way of abundant caution,before the lower appellate court, they also prayed that if incase it was found that further proof was necessary in thematter, the matter may be remanded to the trial court to S.A.724/1998. 4enable the defendants to adduce evidence regarding theexecution of Ext.B1 gift deed. The lower appellate courtalso found that Ext.B1 gift is not duly approved and therewas want of compliance with Section 68 of the IndianEvidence Act. Accordingly, the appeal was dismissedconfirming the preliminary decree passed by the trial court.8. Notice has been issued on substantialquestions of law A and G formulated in the memorandum ofappeal.9. Learned counsel appearing for the appellantspointed out that both the courts below have grievouslyerred in law in holding that since Ext.B1 gift has not beenproved in accordance with Section 68 of the IndianEvidence Act, the suit had to be decreed. Both the courtsbelow have omitted to note that the gift involved is aMohammedan gift, and accordingly the provisions of theTransfer of Property Act relating to execution of gift deedare not applicable to the gift deed on hand. Learnedcounsel referred to the various provisions of the S.A.724/1998. 5Registration Act, namely, Sections 60, 34, 35, 58 and 59and pointed out that the endorsement made by the SubRegistrar while registering the document constitutesufficient proof of execution and the burden is on theplaintiff to show that the gift is not duly executed. Insupport of his contention, learned counsel relied on thedecision reported in Ishwar Dass Jain v. Sohan Lal((2000) 1 SCC 434) and Pathu v. Katheesa Umma (1990(2) K.L.T. SN 35 Case No.49). Referring to the evidence ofP.W.1, the plaintiff, it was contended on behalf of theappellants that he has stated that he has not perused Ext.B1document at all and has not bothered to find out whether itwas duly registered or not. His indifferent attitude,according to the learned counsel, is insufficient to doubt thegenuineness of Ext.B1 document. Various provisions of theMohammedan Law relating to the gift were also referred toand it was contended that all that is necessary is to complywith the requirements of Mohammedan Law and theinsistence of the courts below that the gift deed should be S.A.724/1998. 6proved in accordance with Section 68 of the IndianEvidence Act is not legal and sustainable.10. Learned counsel went on to contend that atany rate if the lower appellate court was of the opinion thatfurther proof regarding execution of Ext.B1 was necessary,it ought to have granted an opportunity to the appellant toadduce further evidence since they had filed a petition forthe same before the lower appellate court. Learned counselwent on to contend that except for resorting to such apetition, there is absolutely no reason given by the lowerappellate court as to why such a petition should not beallowed and the appellant be given an opportunity toadduce further evidence in support of their case. 11. Learned counsel appearing for therespondents on the other hand pointed out that by way ofreplication the plaintiff had specifically disputed theexecution of Ext.B1 gift deed and under such circumstancesthe burden was on the defendants to show that Ext.B1 wasduly executed and had taken effect. Learned counsel also S.A.724/1998. 7relied on various provisions of the Mohammedan Lawrelating to gift and pointed out that in the case on hand thethree necessary ingredients to constitute a valid gift are notestablished and therefore the courts below were justified inholding that execution of the gift is not proved. Learnedcounsel went on to contend that even assuming that Section68 of the Indian Evidence Act as such may not be attracted,still it does not relieve the defendants from proving dueexecution and acceptance of the gift which are essential toconstitute a valid gift under the Mohammedan Law.According to the learned counsel, when other evidence areavailable, the factum of registration by itself cannot betaken as a ground to support the contention that the gift isduly executed. In support of his contention, learned counselrelied on the decision reported in Sumathi Amma v.Kunjulekshmi Amma (1964 K.L.T.945). Learned counselalso contended that in the case on pardanashin lady, theexecution of a deed needs to be strictly proved unlike inother cases and in the case on hand there is want of proof in S.A.724/1998. 8that regard. In support of his contention, learned counselrelied on the decision reported in Kharbuja Kuar v.Jangbahadur Rai (AIR 1963 SC 1203). For the purpose ofestablishing the essential ingredients necessary toconstitute a gift, learned counsel relied on the decisionreported in Mahboob Sahab v. Syed Ismail (AIR 1995 SC1205). According to learned counsel, going by Section 101and 111 of Indian Evidence Act, the burden is on thedefendants to show the due execution of Ext.B1 gift and forthe said purpose, learned counsel relied on the decisionreported in Krishna Mohan Kul v. Pratima Maity ((2004)9 SCC 468). According to learned counsel, both the courtsbelow were justified in coming to the conclusion that dueexecution of Ext.B1 gift is not proved and there was noground made out to interfere with the preliminary decreepassed by the trial court as confirmed by the lowerappellate court.12. After having heard counsel on both sides andafter having gone through the records and going by the S.A.724/1998. 9decisions relied on by both sides, it is felt that it is difficultto sustain the preliminary decree passed by the trial courtas confirmed by the lower appellate court. A perusal of thejudgment of the lower courts indicate that the courts belowwere of the opinion that Section 68 applies to the facts ofthe case and since the gift is not proved in accordance withSection 68, the plaintiff has to succeed. Before goingfurther into the matter, it will be useful to refer to theprovisions relating to gift in the Transfer of Property Act.Section 122 of the Transfer of Property Act defines 'gift'.Section 123 deals with how a gift is to be effected. Itstipulates that the transfer by way of gift must be effectedby way of a registered instrument signed by or on behalf ofthe donor and attested by atleast two witnesses. However,one cannot omit to note Section 129, which reads asfollows:“129. Saving of donations mortis causa andMuhammedan Law.- Nothing in this Chapterrelates to gifts of moveable property made in S.A.724/1998. 10contemplation of death, or shall be deemed toaffect any rule of Muhammadan law.”A reading of Section 129 leaves one in no doubt that theprovisions relating to gift contained in the Transfer ofProperty Act are not applicable to Mohammedan Law whichseparately deals with gifts. It is well settled that underMohammedan Law an oral gift is also possible. Therefore,it is not necessary that in the case of a Mohammedan gift,even if there is a document, it needs to be attested by twoattesting witnesses as Section123 is not applicable in suchcases.13. Section 68 of the Evidence Act, on whichconsiderable reliance was placed on by both the courtsbelow read as follows:“68. Proof of execution of documentrequired by law to be attested.- If a documentis required by law to be attested, it shall not beused as evidence until one attesting witness atleast has been called for the purpose of provingits execution, if there be an attesting witness S.A.724/1998. 11alive and subject to the process of the Court andcapable of giving evidence:Provided that it shall not be necessary tocall an attesting witness in proof of the executionof any document, not being a Will, which has beenregistered in accordance with the provisions ofthe Indian Registration Act, 1908(16 of 1908),unless its execution by the person by whom itpurports to have been executed is specificallydenied.”Section 67 may also be of some relevance. Section 68 dealswith a case where the document is required in law to beattested. If the execution of such a document is disputed,then the proof of execution of that document has to beproved by examining atleast one of the attesting witnesses.Section 67 on the other hand deals with proof of otherdocuments. 14. As already noticed, the gift in the case onhand is not covered by Section 123 of the Transfer ofProperty Act and therefore Section 68 of the IndianEvidence Act may not have any application at all. It is S.A.724/1998. 12significant to notice that even assuming that Section 68applies and the due execution of Ext.B1 gift deed is proved,that may not by itself is sufficient under the MohammedanLaw to constitute a valid gift. 15. Here one needs to notice the decisions reliedon by the learned counsel for the appellant regardingregistration which according to him is sufficient to provedue execution of the document. In the decision reported inIshwar Dass Jain's case (supra) it was held as follows:“We shall next refer to the vital evidence orfacts relating to the mortgage which have notbeen considered by the courts below. Thedefendant admitted in his evidence as D.W.2 thatthe mortgage deed was executed by him. Theendorsement of the Sub-Registrar shows that theamount of Rs.1000 was paid as mortgage money.There is a presumption of the correctness of theendorsement made by the Sub Registrar underSection 58 of the Registration Act (vide Baij NathSingh v. Jamal Bros. & Co.Ltd.); it can be rebuttedonly by strong evidence to the contrary.” S.A.724/1998. 1316. In the decision reported in Pathu's case(supra), it was held as follows:“Registration of a document is a solemn actto be performed in the presence of the SubRegistrar, who is statutorily authorised for thatpurpose. He is duty bound to see that documentsare executed by proper and competent persons.He has to get the parties identified by properpersons if they are not personally known to him.he has to ascertain from the executant that theexecution was on free will after understanding thecontents. When it is proved that the document asexecuted and registered, the presumption is thatall the formalities are property and regularlyundergone by the registering authority. Then it isfor the party challenging execution andregistration to prove that some deliberate fraudwas played on the Sub Registrar and theregistration was not legal and proper.”17. Section 60 of the Registration Act deals withcertificate of registration. Section 34 deals with the enquiryto be made before registration by the Registering Officer. S.A.724/1998. 14Section 35 deals with the procedure on admission anddenial of execution respectively. Section 58 deals withthe particulars to be endorsed on documents admitted toRegistration. Going by the provisions of the RegistrationAct and also the principle laid down by the decisions reliedon by the learned counsel for the appellant, it is true thatregistration is treated to be a solemn duty and theendorsements made by the Registration Officer haveconsiderable value with regard to the registration of thedocument. In the decision reported in Sumathi Amma'scase (supra) relied on by the learned counsel for therespondents, it was held as follows:“2. I regard the Privy Council decisions inGangamoyi Debi v. Troiluckhya Nath Chowdhury(I. L. R.33 Calcutta 537), Md. Ihtishan Ali v.Jamma Prasad (AIR 1922 P. C. 56) and Gopal Dasv. Sri Thokurji (AIR 1943 P. C. 83) See alsoVishwanath v. Rahibai (AIR 1931 Bombay 105),Pandappa v. Shivalingappa (AIR 1946 Bombay193) and Kalu v. Bapurao (AIR 1950 Nagpur 6) as S.A.724/1998. 15authority for the proposition that, in cases whereS.68 of the Evidence Act has no a application, thecertificate of registration in the light of thepresumption in S.114 Illustration (e) of theEvidence Act is evidence of execution and can, infit cases, be accepted as proof thereof and withthe contrary view expressed in Salimatul-Fatimaalias Bibi Mossini v. Koylashpoti Narain Singh, (I.L. R.17 Calcutta 903), Marati Balaji v. Dattu (AIR1923 Bombay 253) and Bulakidas Hardas v. ChotuPaikan (AIR 1942 Nagpur 84) neither what is saidin the Privy Council decisions nor the wording ofS.60(2) of the Registration Act lends the leastsupport to the statement in the last mentionedcase that the certificate is only corroborative andnot substantive evidence; the section says that thecertificate is admissible for proving certain factswhich can only mean that it is substantiveevidence regarding those facts I must express myrespectful dissent. To the argument noticed in AraBegam v. Depuiy Commr., Gonds (AIR 1941 Oudh529 at 548), Bulakida Hardas v. Chotu Paikan(AIR. 1942 Nagpur 84 at 85) and Ramanna v.Sambamoorthi (AIR. 1961 Andhra Pradesh 361 at369) that, if the certificate of registration were to S.A.724/1998. 16be accepted as proof of execution, a party who isrequired to prove a document would, if it isregistered, be relieved of the necessity ofexamining any witnesses to prove it and couldrest solely on the certificate, thus opening theway to fraud and fabrication, the answer isobvious. It is that the court is not bound to acceptthe certificate as sufficient proof, and, wherebetter evidence is available, can insist on betterevidence, drawing the presumption in Illustration(g) of S.114 of the Evidence Act against the partywho withholds this better evidence. The betterevidence in the present case, I might remark,would be the evidence of the alleged executantherself who it is not disputed is alive there is noevidence to show whether the attestors or theexecutee or others connected with the documentare alive or dead and, in the circumstances of thecase, I think it would be for the defendants ratherthan for the plaintiff to examine her. For, if, intruth, she did not execute the document, it wouldobviously be in her interest to come forward anddeny execution; it would be against her interest tocome forward and admit execution even if that bethe truth; and her evidence should have been S.A.724/1998. 17more readily available to the defendants than tothe plaintiff.3. With great respect I think that theattempt made in Indernath Modi v. Nandram(AIR. 1957 Rajasthan 231) to distinguish the PrivyCouncil cases on the ground that those casesapply only, “where it is not possible to takerecourse to the method provided in S.67 becauseof the fact that the executant and the marginalwitnesses are either dead or cannot be found” andthat it is only in such cases that recourse can behad “to the presumption under S.60 (2) of theRegistration Act” is vitiated by the assumptionthat S.67 of the Evidence Act prescribes a modeof proof and requires the executant or the“marginal witnesses” to be examined. S.67 saysnothing of the kind. It only says what what factshave to be proved, and, unlike S.68, does notprescribe any particular mode of proof. The factsrequired to be proved under S.67 can be provedby any kind of evidence, and there is nothing inthe section to indicate that the evidence furnishedby the registration certificate by virtue of sub-section (2) of S.60 of the Registration Act and by S.A.724/1998. 18the presumption in Illustration (e) of S.114 of theEvidence Act, is to be excluded. 4. It is pointed out that R.46(2) of the rulesmade under the Travancore Registration Act,which requires that the thumb impression of anexecutant admitting execution who is notpersonally known to the Registrar shall invariablybe taken in the document, has not been compliedwith in this case. But, the operation of sub-section(2) of S.53 does depend on such compliance butonly on compliance with the requirements of thesection itself. Moreover, the evidence in this caseshows that Kaliamma Pillai was a leper, and, inthe case of lepers, R.48 dispenses with the takingof the thumb impression and requires only a noteto be made in the register of thumb impressions(not in the document itself) explaining why thethumb impression was not taken.”18. In the case on hand, even assuming that thereis due registration of the document, that by itself may notbe sufficient to prove the validity of the gift in view of the S.A.724/1998. 19various provisions under the Mohammedan Law. Both sidesreferred to Sections 138, 139, 142, 147, 148, 149, 150 and151 of Mohammedan Law by Mulla, 19th Edn. withreference to the Mohammedan gift and the conditionsnecessary to constitute a valid gift. 19. As already noticed, it is not necessary that aMohammedan gift deed should be effected by a document.There can be an oral gift also. Section 147 says that writingis not essential to the validity of a gift either of movable orof immovable property. Section 148 says that the essentialingredient to the validity of a gift is that the donor shoulddivest himself completely of all ownership and dominionover the subject matter of the gift. Section 149 deals withthe three essential ingredients of the Mohammedan gift.They are (i) there should a declaration of gift by the donor,(ii) an acceptance of the gift, express or implied by or onbehalf of the donee and (iii) delivery of possession of thesubject of the gift by the donor to the donee ascontemplated under Section 150. Section 150 deals with S.A.724/1998. 20delivery of possession. Section 150 is of some relevance andit reads as follows:“150. Delivery of possession.- (1) It isessential to the validity of a gift that there shouldbe a delivery of such possession as the subject ofthe gift is susceptible of (l). As observed by theJudicial Committee, “the taking of possession ofthe subject-matter of the gift by the donee, eitheractually or constructively,” is necessary tocomplete a gift (n). See secs.145, 146, 152, 154. (2) Registration.- Registration of a deed ofgift does not cure the want of delivery ofpossession.(3) If it is proved by oral evidence that agift was completed as required by law (secs. 149and 150), it is immaterial that the donor had alsoexecuted a deed of gift, by the deed has not beenregistered as required by the Registration Act,sec.17(a)(o).(4) A declaration in a deed of gift thatpossession has been given binds the heirs of thedonor (p). But such a declaration is notconclusive and a recital in a deed of gift thatpossession has been given to a minor nephew S.A.724/1998. 21(without the intervention of a father or guardian-sec.156) was on the facts held to be insufficientto support a gift as against the heirs of the donor(q).”20. In the decision reported in MahboobSahab's case (supra), it was held as follows:“5. Under S. 147 of the Principles ofMahomedan Law by Mulla, 19th Ed. Edited byChief Justice M. Hidayatullah, envisages thatwriting is not essential to the validity of a gifteither of movable or of immovable property.Section 148 requires that it is essential, to thevalidity of a gift, that the donor should divesthimself completely of all ownership and dominionover the subject of the gift. Under S. 149, threeessentials to the validity of the gift should be, (i) adeclaration of gift by the donor, (ii) acceptance ofthe gift, express or implied, by or on behalf of thedonee, and (iii) delivery of possession of thesubject of the gift by the donor to the donee asmentioned in S. 150. If these conditions arecomplied with, the gift is complete. Section 150specifically mentions that for a valid gift thereshould be delivery of possession of the subject of S.A.724/1998. 22the gift and taking of possession of the gift by thedonee, actually or constructively. Then only gift iscomplete. Section 152 envisages that where donoris in possession, a gift of immovable property ofwhich the donor is in actual possession is notcomplete unless the donor physically departs fromthe premises with all his goods and chattels, andthe donee formally enters into possession. Itwould, thus, be clear that though gift by aMohammadan is not required to be in writing andconsequently need not be registered under theRegistration Act; a gift to be complete, thereshould be a declaration of the gift by the donor;acceptance of the gift, expressed or implied, by oron behalf of the donee, and delivery of possessionof the property, the subject-matter of the gift bythe donor to the donee. The donee should takedelivery of the possession of that property eitheractually or constructively. On proof of theseessential conditions, the gift becomes completeand valid. In case of immovable property in thepossession of the doner, he should completelydivest himself physically of the subject of the gift.No evidence has been adduced to establishdeclaration of the gift, acceptance of the gift by or S.A.724/1998. 23on behalf of the minor or delivery of possession ortaking possession or who had accepted the giftactually or constructively. Admittedly he was inpossession and enjoyment of the property till itwas sold to the appellant. Equally, inMohammadan Law mother cannot act nor beappointed as property guardian of the minor. Sheequally cannot act as legal guardian.”21. It is thus discernible from the aboveprovisions and decisions that it is not necessary that aMohammedan gift should be in writing and the documentshould be registered as contemplated under the Transfer ofProperty Act. The ingredients to constitute a validMohammedan gift are totally different as could be seenfrom the provisions referred to. While the registration maybe of some help to come to the conclusion that thedocument is duly executed and that by itself is sufficient toconstitute a valid gift under the Mohammedan Law.22. Learned counsel for the appellant relied oncertain portions of the evidence furnished by P.W.1 to the S.A.724/1998. 24effect that he had absolutely no idea about the documentand also that he had not cared even to verify Ext.B1document. It is also pointed out by the learned counsel forthe appellant that after the execution of Ext.B1 in 1972,there have been subsequent transfers by the donees. It isinconceivable according to learned counsel that the plaintiffwas not aware of the gift deed and that his denial ofexecution of the gift deed cannot be accepted.23. As rightly pointed out by the learned counselfor the respondents, since the execution of the gift isdisputed, the burden is on the defendant to show that thereis valid gift as contemplated under the Mohammedan Law.Learned counsel for the respondents also relied on theportion of the evidence given by D.W.1 to the effect that tillthe date of her death, Smt.Athukka Ummal was takingincome from the property. It is therefore contended onbehalf of the respondents that Smt.Athukka Ummal did notdivest herself completely of the domain over the propertyand if that is so, there is no valid gift. It was also contended S.A.724/1998. 25that the foster daughter of the first defendant being aminor, she could not have accepted the gift and also thather mother could not have accepted the gift on her behalf. 24. As to whether the necessary ingredients toprove execution of a valid gift are available or not have notbeen gone into by the courts below and as already noticed,both the courts below gone on the premise that sinceSection 68 has not been complied with, the gift is not dulyproved. As already noticed, Section 68 of the IndianEvidence Act may not have much relevance. 25. Further, as rightly pointed out by the learnedcounsel for the appellant, if the lower appellate court was ofthe opinion that there was want of evidence from the side ofthe defendants to prove the due execution of the gift, itought to have given an opportunity to the defendants toadduce further evidence. They had also filed a petition forthe same before the lower appellate court. Except formentioning that such a petition has been filed, no reasonsare given as to why an opportunity should not be given to S.A.724/1998. 26the appellant before the lower appellate to adduce furtherevidence in support of their case. 26. It may not be quite correct to say that thefoster daughter being a minor at the relevant time wasincapable of accepting the gift. Even if she is a minor, shecould accept the gift. There is yet another fact.Smt.Athukka Ummal and her daughter and the fosterdaughter of the defendant were residing together and insuch case, the burden of proving the acceptance of the giftis very light. 27. The above aspects have not been looked intoby the courts below and therefore it is difficult to sustainthe judgment and decree passed by the courts below.28. Law on the point has not been adverted toand both the courts below have been carried away byirrelevant considerations. The law applicable has not beennoticed and the relevant provisions of the Mohammedan lawhave not been adverted to. S.A.724/1998. 27In the result, this appeal is allowed, the impugnedjudgment and decree are set aside and the matter isremanded to the trial court for fresh disposal in accordancewith law and in the light of what has been stated above.Parties shall appear before trial court on 11.4.2012. Thetrial court may make every endeavour to dispose of the suitas expeditiously as possible at any rate within a period ofsix months from the re-opening of the court after summervacation. The parties are at liberty to adduce furtherevidence if they so choose. P. BHAVADASAN, JUDGEsb.