A gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. A gift deed that is not registered is invalid and inoperative.

S.K.Jain, J.

1. Civil Suit No. 167/86 instituted on 26.8.1986 by Hukam Singh, Prem Singh and Jagir Singh, respondents herein, against Sham Lal and five others, appellants herein, for a decree of declaration to the effect that the land described in para No. 5 of the plaint and shown red in the site plan attached with the plaint vested in the proprietory body of the village and that gift-deed dated 12.4.1982 was illegal and void and was not binding on their rights and further for a decree of permanent injunction thereby restraining the defendants from interfering in their possession over the suit land was decreed with regard to declaration but the relief of permanent injunction was declined.

2. Defendants preferred Civil Appeal No. 285 on 27.2.1989. The plaintiffs filed cross-objections. The appeal and the cross objections were dismissed by Additional District Judge, Chandigarh vide his judgment and decree dated 11.9.1991.

3. It is that judgment and decree of the first Appellate Court which has been appealed against by the defendants and which requires my examination of its sustainability.

4. It have seen the pleadings in the suit, the evidence adduced by the parties in the suit and judgment of both the Courts below.

5. Learned trial Court in its judgment has said that admittedly the suit land vested in the proprietory body of the village. The resolution Ex. D-2 was not passed and gift-deed Ex.D3 was not executed by all the proprietors of the village. Therefore, the same was not binding on the rights of the proprietors, who were not party to these documents. Moreover, even the proprietory body had no right to gift the suit land because he could not change the nature of the land without the permission of the competent authority. The gift-deed was illegal and void because it was an unregistered document and therefore, it could not be exhibited in evidence. It was further held that the present diety of the Shiv Mandir was in pos-session of the suit land, that the plaintiffs were not parties to the previous judgment and, therefore, it does not operate as res judicata against them. It was found by him that the suit was within limitation.

6. The learned First Appellate Court affirmed the findings of the learned trial Court. The gift-deed dated 12.4.1982 (Ex.D-3) was held to be illegal and inoperative against the rights of the plaintiffs and further that the plaintiffs being not in possession of the land in dispute were not entitled to the relief of injunction. He also recorded a finding that even though the gift deed was not binding on the plaintiffs yet their remedy to seek partition of their share in the land in dispute. The previous judgment did not operate as res judicata and that the suit was within limitation.

7. Learned counsel for the appellants has argued that in para No.4 of the plaint, it is pleaded that a Mandir was constructed by 6th defendant in the portion shown in blue colour with the implied consent of the villagers. This blue portion was gifted by the villagers vide gift-deed Ex-D-3. This gift-deed includes the red portion. After having admitted that the temple had been constructed by sixth defendant in blue portion with the consent of the proprietors of the village now they cannot bifurcate the gift so as to say that red portion had not been gifted.

8. This argument attractive at first sight is, in my opinion no tenable on the sound appreciation of the facts of the case, evidence on record and the law points involved herein. Firstly, it is the case on both ends that whole of the land in dispute was owned by the proprietory body of the village. It is also admitted that the gift-deed Ex. D-3 had not been executed by all the proprietors. Therefore, the proprietors who have executed the said gift deed could not possibly have gifted the share of those proprietors who are not party to the same.

9. Secondly, Section 123 of the Transfer of Property Act, 1882 provides that for the purpose of making a gift of immovabl