An unregistered gift deed conveying a right, title, and interest in an immovable property cannot be used for collateral purpose, as per the provisions of the Transfer of Property Act, 1882, and the Registration Act, 1908.

Judgment

Order dated 03.04.2008 is being called in question vide this petition under Article 227 of the Constitution of India. By said order the trial Court, in a suit for declaration and permanent injunction brought by the petitioner, over-ruled the petitioner's objection for admitting an unregistered and unstamped gift deed dated 30.12.83 in evidence allowing the same for collateral purpose, purportedly, as per proviso to Section 49 of the Registration Act, 1908.

2. The suit by the petitioner for declaration, injunction and possession with respect to the land described in Schedule A, annexed to the plaint is founded on a will dated 26.08.1987 said to be executed by one Rajkumari bai, mother in law of the petitioner (as will of respondent). The claim of the petitioner plaintiff is countered by the respondent defendant. It is contended that the will in question is forged and fabricated and that she is in possession and ownership of the suit land by virtue of gift deed dated 30.12.83.

3. The said gift deed, admittedly, unregistered, on a Stamp paper of Rs.5 (Rupees Five), was when tendered in evidence by the respondent defendant was objected at by the petitioner plaintiff on the ground that the same being insufficiently stamped and unregistered. The trial Court by impugned order allowed the same to be taken for collateral purpose under Section 49 of 1908 Act.

4. The order is being questioned on the ground that the gift deed since" conveys a title and is foundation for establishing ones own title and possession against the claim put forth by the petitioner plaintiff, unless registered could' not even be taken for collateral purpose.

5. The respondent on its turns support the impugned order stating that/ the same being in consonance with the proviso to Section 49 of 1908 Act does -not warrant an interference. It is also contended that the gift of the suit land by the respondent's mother-in-law being customary it was not at all necessary to have it registered as the same is not a gift under the Transfer of Property Act, 1882.

6. Catena of decisions were relied upon by respective counsels in support of respective contentions.

7. Chapter VII of the Transfer of Property Act, 1882 deals with gifts. Section 122 defines "Gift" as "the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person, called the donor, to another called the donee, and accepted by or on behalf of the donee."

8. Section 123 of 1882 Act makes the provision as to how the transfer of the immovable property, gifted is effected. It stipulates "123-Transfer how effected-for the purpose of making a gift of immovable property the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of movable property, the transfer may be effected by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same was as goods sold may be made."

9. The gift deed is registrable is also evident from Section 17 (1) (a) of the Registration Act, 1908 which stipulates:

"17. Documents of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been exempted on or after the date on which Act No. XVI of 1864, or the India Registration Act, 1866, or the India registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes, into force, namely, (a) instruments of gift of immovable property."

10. Thus Section 123 of Transfer of Property Act 1882 and Section 17 (1) (a) of the Registration Act, 1908 makes an instrument of gift of immovable property compulsorily registrable, as the same conveys a title in favour of donee.

11. The reliance placed upon by the respondent on the decision in Bhubaneshwar Naik Santoshrai and etc. etc. v. The Special Tahsildar Land Reforms Te