Atmaram Sakharam Kalkye v. Vaman Janardhan Kashelikar

Shah, A.C.J:— The facts which have given rise to this appeal are these:—

2. Plaintiff No. 1, Sakharam Kesbav Kalkye, executed a deed of gift in favour of defendant No. 1 on September 17, 1917 in respect of this several movable and immovable properties. At that time plaintiff No. 1 had no son. Soon after this deed of gift defendant No. 1 attempted to go and live with plaintiff No. 1. There was a dispute between the parties and criminal proceedings were initiated on September 30, 1917, by plaintiff No. 1 against defendant No. 1 for criminal trespass. The deed was presented for registration by defendant No. 1 on September 26, 1917, but plaintiff No. 1 did not appear before the Sub-Registrar and the Sub-Registrar refused to register the deed, on October 8, 1917, treating the conduct of plaintiff No. 1 as being equivalent to a denial of the execution of the document. Dependent No. 1 appealed to the Registrar. During the course of the hearing before the Registrar plaintiff No. 1 appeared but reviled from his action and denied execution. The Registrar ordered it to be registered in November 1917 and accordingly it was registered on December 18, 1917. Subsequently plaintiff No. 1 adopted plaintiff No. 2 and both of them filed the present suit on August 7, 1920, to set aside the deed of gift and for possession of the property described in the plaint, alleging that the deed of gift was invalid and that it was fraudulently obtained from plaintiff No. 1 who was a weak minded man. Defendant No. 1 pleaded that plaintiff No. 1 had executed the deed willingly and with full knowledge of the contents of the document and that it was not obtained by any undue, influence, or in a fraudulent manner and that as the deed was registered, the gift was valid. On these pleadings issues were framed, but after examining the parties, the trial Court framed a preliminary issue in these terms: “It the gift deed valid as its registration took place without the consent of the donor”? The learned trial Judge found in the negative on this issue and also recorded findings on issues Nos. 3 and 5. Issues Nos. 1 and 3 related to the adoption of plaintiff No. 2 with which we are not concerned. But as a result of the finding on the preliminary issue the learned Judge held that the plaintiffs were entitled to cancel the deed of gift and accordingly passed a decree in favour of the plaintiffs. Defendant No. 1 appealed. The First class Subordinate Judge with appellate powers found that the deed of gift relied upon by the dependent was not invalid on the ground of the absence of consent of the donor to its registration. He accordingly reversed the decree of the trial Court and remanded the suit for trial on the merits.

3. The plaintiffs have appealed to this Court from this order of remand. It is urged in support of the appeal that it is not merely a question of want of consent to the registration on the part of plaintiff No. 1 and that in fact it is a case of revocation of the gift before the document was registered. In support of this his conduct immediately after the deed is relied upon as showing that it indicated revocation of the gift on his part. Further it is urged that id was competent to plaintiff No. 1 to revoke the gift before it was completed, and that the gift would not be complete until the document was in fact registered whether with or without the consent of the donor. In support of this contention reliance is placed upon the decision in Subba Rama v. Venkatsubba(1).

4. On behalf of the respondents it is urged that plaintiff No. 1 did not in fact revoke the gift, that it was not competent to him to revoke it, and the fact that the document was ultimately registered makes it effective as from the date of the document, that is from September 17, 1917. Several decisions have been relied upon by Mr. Shingne in support of the contention that the consent of the donor to the registration is in no way essential and that the registration, when it is effected in accordance with the provisions of the Indian Registration Act, whether with or without the donor's, consent, becomes effective against the donor. The decisions relied upon in support of this proposition are Khashaba v. Chandrobhagabai(2), Parbati v. Baij Nath Pathak(3); and Venkata, Rama Reddi v. Pillati Rama Reddi(4). In addition to these cases I may also refer to the decision in Bhabatosh Banerjee v. Soleman(5) and the differing judgments in Parbati v. Baij Nath Pathak which were considered in appeal in Parbati's case. As regards the decision of this Court in Subba Rama v. Venkatsubba it is contended by Mr. Shingne that it does not lay down the law correctly, and that the ratio decidendi of that case is not consistent with the reasoning underlying the other cases above referred to and that the question as to whether it is competent to a donor to revoke the gift before the document is registered may be considered by a Full Bench.

5. As regards the first question as to whether in fact this is merely a case of not consenting to the registration or a case of real revocation of the gift before the document was in fact registered, we have come to the conclusion that it is a case of revocation, before the document was in fact registered. This position was not seriously challenged by Mr. Shingne though not conceded. The criminal proceedings which were immediately initiated by plaintiff No. 1 and also his refusal to consent to registration clearly indicate that he wanted to revoke the gift and did in fact do so. I may mention that in the lower Courts this question has not been considered. The case has been considered on the basis whether the absence of the donor's consent to registration is sufficient to invalidate the gift. If it were merely a case of absence of such consent, I should not feel any difficulty in following the current of decisions above referred to. But when the donor goes further than merely withholding his consent to registration so as to justify the inference of revocation before actual registration, a difficult question arises, viz., whether the revocation is effective in law in view of the fact that the document has been subsequently registered.

6. “Gift” is defined by Section 122 of the Transfer of Property Act, and S. 123 provides that 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. In the present case the instrument was executed on September 17, 1917, and the gift would be complete, when the document is registered. If the gift is not complete until the document is registered, it is clear to my mind that it would be open to the donor to revoke it before registration. An incomplete gift can, of course, be revoked by the donor at any time: see Standing v. Bowring(6). In the words of Batty J. in Joitaram v. Ramkrishna(7) “the essential to the validity of a gift seems to be…that donor should have done all he could do to complete the gift.” The gift would be incomplete so long as registration is not effected. It is quite true that the law of registration does not require that the executing party must be a consenting party at the time of registration. It may happen at the time of registration, according to that law, that either the donor's consent may be given on his behalf by some one else or registration may be ordered in spite of his not consenting to the registration. These positions are possible under the Indian Registration Act. All that the cases which I have referred to decide is that it is not essential to the validity of the gift of immovable property that the registration of the deed by which such gift is effected should be either at the instance of or with the consent of the donor. That was the only point decided in Parbati v. Baij Nath Pathak. In Venkata Rama Reddi's case the question decided by the Full Bench was whether a deed of gift registered by the donee after the death of the donor without the consent of the legal representative of the donor was valid. That is practically the point decided in Khashaba v. Chandrabhagabai and in effect nothing more is decided in Bhabatosh Barterjee v. Soleman. I accept the conclusion reached in these cases that it is not essential to the validity of a gift of immovable property, to which Section 123 of the Transfer of Property Act applies, that registration should be effected with the consent of the donor. But I do not think that the question whether the donor can revoke the gift before the document is in fact registered arose or, was considered in any of these cases. The question was considered by this Court in Subba Rama v. Venkatsubba and it was held that until the document was in fact registered the gift was inchoate and that it was open to the donor to revoke it before it was completed by registration. It is true that in that case the deed was not in fact registered before the dispute arose: and to that extent it can be differentiated from the present case. The question is whether the ordinary rule applicable to the law of gift that until, the gift is completed, it is open to the donor to revoke it is in any way affected by the provisions of the Indian-Registration Act under which it is possible that the document can be registered without the consent of the donor at the time of the registration. I do not think that it would be right to apply the provisions of the Indian Registration Act in that way to the rules relating to the law of gift. It is a statute relating to the registration of documents generally, and has no direct connection with the law of gift. When the law provides that a gift of immovable property can be effected only by a registered instrument, the stage of completion of the gift is marked by the actual registration. Up to that time it is open to the donor to revoke the gift. It does not matter to my mind whether registration in fact is ordered at the instance of the donor or against his wishes. It is open to the donor to revoke the gift before it is complete, and it is difficult to see how that rule can be affected by the mere fact that registration is possible according to the Indian Registration Act without the consent of the donor, and further that registration, when it is effected, makes the document effective as from the date of its execution. In such cases the question must be whether the donor has merely withheld his assent to the registration or has gone beyond that stage and revoked the gift. Where he has merely withheld his consent and has done nothing more to indicate that he revokes the gift, the cases which I have already referred to would apply. But where he goes beyond that stags and indicates a clear intention on his part to revoke the gift the revocation should be and would be effective despite the fact that registration is subsequently ordered according to the rules of the Indian Registration Act. It is quite true that in Subba Rama v. Venkatasubba the act of revocation was absolutely unequivocal and beyond question. In the present case it is not so clear. The present suit was filed long after the registration was in fact effected. But the principle is the same as to whether it is open to a donor to revoke a gift before the document is in fact registered. If it is open to a donor to revoke the gift before registration, it must be determined on the circumstances of each case whether in fact he has revoked it before that stage is reached. In the present case the lower Courts have not appreciate this difference between revocation and mere absence of consent to registration. The difference would be real in many Cases; and the question of law that arises for consideration in this appeal is of practical importance. I find it difficult to hold that the ratio decidendi in Subba Rama v. Venkatasubba conflicts with the other cases I have referred to in this judgment. But there are observations in the various judgments indicating that the power to revoke before registration would be ineffective when the document is in fact registered and takes effect according to the provisions of the Indian Registration Act as from the date of its execution. This point was not considered and decided in Subba Rama's case, but the ratio decidendi of that case is in favour of the view that it is open to the donor to revoke the gift, and that the revocation cannot be affected by the subsequent registration of the donee contrary to the wishes of the donor. Under the circumstances I think that the following questions should be referred to a Full Bench for decision:—

(1) Was it competent to the donor to revoke the gift of immovable property before the instrument was in fact registered?

(2) If so, whether the subsequent registration of the document against the wish of the donor makes the revocation ineffective?

Fawcett, J.:— In my opinion there is a conflict of view, which vitally affects the decision of this appeal. The first view is that, when an intending donor has executed a deed of gift, attested by at least two witnesses, he has (so far as he is concerned) done all that he need do towards completing the gift, inasmuch as the subsequent registration can be effected without his co-operation and even against his consent: therefore the doctrine that a donor can revoke an incomplete gift has no application to such a case, and he has no locus pœnitentiœ between the time of execution of the document, and the time of its registration.

7. This view has, it seems to me, been clearly adopted by the High Courts of Madras and Allahibad in Venkata Rama Reddi v. Pillati Rama Reddi and Parbati v. Baij Nath Pathak. Both of these cases dissent from Ramamirtha Ayyan v. Gopala Ayyan(8), where the exact point now before us arose, as stated in the passage from the lower Appellate Court's judgment which is cited at p. 434, and both of these decisions hold that the law was not correctly laid down in that case. The Allahabad decision also expresses agreement with the judgment of Chamier J., who expressly rejected this theory of the donor having a locus pœnitentiœ prior to registration of the instrument: see Parbati v. Baij Nath Pathak.

8. Though the remarks on the point are perhaps obiter dicta, yet the following passage from Batchelor J.'s judgment in Khashaba v. Chandrabhagabai distinctly favours the same view (p. 444):—

“It must be remembered moreover that there the donor had done all that it was required of him to do in order to make the gift, and the subsequent registration could have been effected without any cooperation on his part. Further, the deed of gift was registered afterwards, and on registration it operated as from the date of execution; and this, we think, is an answer to the technical objection that there was no acceptance of a registered instrument.”

9. The second view is that adopted by this Court in Subba Rama v. Venkatambba and the Madras High Court in the overruled case of Ramamirtha Ayyan v. Gopala Ayyan, viz., that the gift is incomplete until the deed has been registered, and the donor can revoke the gift prior to registration.

10. There being thus two contrary views adopted by different Benches of this Court, and the point being of general importance, I think it should be referred to a Full Bench and I concur in the reference proposed by the learned Chief Justice.

11. I am inclined at present in favour of the first view. It seems to me that, when the donor has executed a deed, which will be effectual to vest the gift in the donee if it is registered and if the donee accepts the gift, then the stage of an inchoate or incomplete gift has been passed, registration being a subsequent operation independent of his consenting to it. It is an entirely different case to one of a gift resting merely in promise or unfulfilled intention, which under English law can be revoked at any time; cf. Halsbury's Laws of England, Vol. XV, Article 852 at p. 428. I also think that, if the legislature had intended that a donor should have such a locus pœnitentiœ, provision would have been made for it, before saying in Section 126 of the Transfer of Property Act, 1882, “save as aforesaid, a gift cannot be revoked.” I do not think the argument used in Subba Rama v. Venkatasubba that a donor can revoke a gift which is not accepted by the donee and is therefore an inchoate gift, is conclusive against the application of S. 126 to an incomplete gift in the sense of a gift by an instrument which has not been registered. English law lends no support to the view that a donor can revoke a gift that is otherwise complete, before the donee knows of it and accepts it the case of Standing v. Bowring in fact decides that he cannot. So far as I am aware, there is no authority to the contrary in India and therefore the statement of Macleod, C.J that “if the donee has not accepted the gift, clearly it is not complete, and the donor can revoke it” is open to serious criticism: cf. Halsbury's Laws of England, Vol. XV, Article 830 at p. 418. But even supposing S. 126 refers only to complete gifts, in the sense of gifts fully effected in the manner stated in S. 123, my present opinion, for the reasons already given, is that there is no locus pœnitentiœ for the donor between execution and registration. I may add that under English law a deed of gift, which has been formally sealed and delivered, cannot ordinarily be revoked, even though it still remains in the possession of the executing party. (Halsbury, Vol. XV, Article 831 at p. 418). In the present case the donor went further and handed over the instrument to defendant No. 1, who presented it for registration. It is not, therefore, a case, where it can be said the donor omitted to do anything which was necessary to be done in order to transfer the property and render the gift binding upon him, to use the language of Turner, L.J in Milroy v. Lord(9) cited in Behari Lal Ghose v. Sindhubala Dasi(10). It might have been different, if he had not parted with possession of the instrument, for in that case it could not have been presented for registration without his consent. The necessity supplies a reason for saying that the English rule mentioned at the beginning of this paragraph cannot properly be applied in India.

12. I agree with my learned brother that in the present case the evidence clearly shows that the donor revoked the gift before the document was registered, and as to the form of the two questions to be referred to the Full Bench for decision.

[The judgment of the Full Bench was as follows:—]

Shah, A.C.J:— The questions arising on this reference have been fully and ably argued on both sides. I have already indicated in my referring judgment the view to which I was inclined then, and my reasons for that view. It is not necessary to repeat the facts. I have considered the arguments on both sides and after giving my best consideration to the arguments, my opinion is that question No. 1 should be answered in the affirmative, and question No. 2 should be answered in the negative.

13. I shall briefly state my reasons for this view in the light of the arguments which have been urged before us. Chapter VII of the Transfer of Property Act deals with gifts, and S. 122 defines “gift” as “the transfer of certain existing moveable or immoveable 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.” It further provides that “such acceptance must be made during the life-time of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.”

14. S. 123 provides that “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.” In the case of moveable property, the transfer may be effected by a registered instrument signed as aforesaid or by delivery.

15. In the present case, we are concerned with a gift of immovable property and it seems to me to be the clear effect of these two sections that until the document is registered the gift is incomplete in law even though the other two conditions as to the instrument being duly signed and attested and as to acceptance are satisfied. The essentials of a completed gift, according to these sections, appear to be that a transfer of the property is made voluntarily and without consideration by an instrument which is signed by or on behalf of the donor, and attested by at least two witnesses, and which is registered, that is, registered in British India under the law for the time being in force regulating the registration of documents, and that it is accepted by the donee. Until all these conditions are fulfilled, according to my reading of the sections, the gift is incomplete.

16. To illustrate my meaning with reference to the essential nature of registration to complete a gift, I may put it in this way. If a document has been executed by the donor, and attested by two witnesses, and delivered to the donee, but neither party takes the trouble to get it registered according to the provisions of the Indian Registration Act, and the document remains unregistered, the gift, in my view, is incomplete, and does not take effect. The donor continues to be the owner and the donee would have no rights in the property even though the instrument is duly signed and attested and though the transfer is accepted by the donee.

17. The next step which I take is that so long as the transfer is incomplete, it is open to the donor to re-tile from it, and to cancel what he may have done. The gift, in my view, is incomplete according to law so long as the document is not registered, and it is open to the donor to revoke it before it is complete. It is a recognised rule of the law of gift that before the gift is complete the donor can revoke it. As to when the gift can be said to be complete must necessarily depend upon the law of the land. For instance, before the Transfer of Property Act, according to the view taken in this Court the transfer of possession was considered essential to complete a gift by a Hindu, and where transfer of possession is essential, the gift would be revocable, in spite of the delivery of any written instrument to the donee before the transfer of possession is effected. Similarly, after the Transfer of Property Act, the necessity of transfer of possession to validate a gift is dispensed with, but the necessity for an instrument in writing signed by the donor and attested by two witnesses, and registered according to the provisions of the Act, is laid down. It may be mentioned that whatever be the necessity for the transfer of possession in order to complete a gift by a Hindu before the Transfer of Property Act, the requirements of a valid gift after the Act came to be applied to this Presidency have to be determined with reference to the provisions of the Act. It is hardly necessary to refer to any authority on this point as the effect of the provisions of the Act is clear. I may mention that in Bai Rambai v. Bai Mani(11) this effect has been clearly pointed out.

18. In the present case, therefore, we are not concerned with the question, as to whether possession of the property has been transferred or not. But we are concerned with the question as to whether there has been a transfer of property within the meaning of the Transfer of Property Act. In S. 5 “transfer of property” is defined. I may also refer to S. 9, upon which Mr. Shingne has relied, as indicating that a transfer of property may be made under the Act without writing in every case is which a writing is not expressly required by law. But in the case of a gift a writing is required by law as stated in S. 123, and it is also required to be registered.

19. I have already stated my reasons in the referring judgment for the proposition that an incomplete gift can be revoked by the donor at any time, before it is completed or, if the use of the word ‘revoke’ appears inapt with reference to an incomplete gift, I would say that the donor can cancel the transaction before the transfer is effected to constitute a complete gift. The question is whether until the document is registered the gift can be said to be incomplete in the sense that it leaves the power of revocation in the donor unaffected. It is urged by Mr. Shingne for the respondents that the donor's power to revoke is at an end as soon as he has executed a document, attested by two witnesses, and delivered it to the donee, and it is accepted by the donee, that the act of registration does not necessarily depend upon the volition of the executant according to the provisions of the Indian Registration Act, and that the donor having done all that he need do according to law, his power of revocation is at an end. Though there has been a somewhat elaborate discussion of the provisions of the Indian Registration Act, in my view of the case, it is not necessary to deal with the provisions of the Act in detail. It is dear under the provisions, and I readily accept the proposition, that for the purposes of registration, under the Indian Registration Act, it is not essential that the document should be presence by the executant for registration, or that he should be a consenting party to the registration. The document could be presented by any person satisfying the requirements of Section 32 of the Indian Registration Act, that is, by a person executing it or by any person claiming under the document. It is also clear that registration may be effected even though the executant does not consent to registration.

20. The question to my mind is whether the provisions of the Indian Registration Act as regards registration can affect in any way the law which would govern transactions by way of gift, or they simply regulate the registration of the document when resented for registration. The provisions of the Transfer of Property Act, as contained in the definition in the word “registered” in Section 3, and in Section 4 of the Transfer of Property Act, have no effect upon the power of the donor to revoke the gift up to a certain stage which exists independently of the provisions as to the necessity for registration of deeds of gift. I do not think that by making these provisions relating to documents requiring to be registered supplemental to the provisions of the Indian Registration Act, the legislature could have meant to lay down anything more than this, that those documents were compulsorily registrable, though all of them may not require to be registered under the Indian Registration Act. The provisions of the Indian Registration Act, as I understand them, do not and cannot affect the question as to when the power of the donor to put an end to an incomplete gift ceases.

21. In determining the question under the Indian law, it seems to me that all technical rules of English law relating to deeds and delivery of deeds should be left out of consideration. At least they cannot help as in determining this question. In my opinion the question must be determined with reference to the Indian law which is to be found for the purposes of this case in the Transfer of Property Act. The execution of the instrument and the delivery thereof without registration would not have the effect of effecting the transfer or of completing the gift.

22. I may refer to Section 126 of the Transfer of Property Act, upon which reliance has been placed on behalf of the respondents as indicating that a gift cannot be revoked except as provided in that section. That is perfectly true. But that applies to a case of a completed gift. It does not purport to lay down any rule as to the lights and powers of the donor before the state of completion is reached.

23. Reference was made in the argument to the consideration that though in the case of sales and mortgages documents are required to be registered, it is not suggested that the executants would have power to revoke up to the time of actual registration. The argument based on the analogy does not, however, seem to me to be well-founded. It is perfectly true to say, with regard to those documents, as with regard to a deed of gift that the sale is not complete or that the mortgage is not complete until the document is registered, just as a gift would not be complete until the document is registered. But the vendor who has agreed to sell the property and has executed a conveyance not registered or a mortgagor who has executed an instrument duly attested as required by law but not registered cannot be said to have the power to revoke the contract in the case of a gift, we are dealing with a transaction which is ex hypothesi without consideration, and the right to revoke an incomplete gift in the donor or to cancel his own act before the transfer is effected is an incident of this type of transaction.

24. As regards the decided cases, I do not consider it necessary to refer to them in detail now. I have considered all the cases; and my view is that, so far as they lay down that it is not essential for the purposes of valid registration that its should be with the consent of the donor, I am in complete agreement with them. But I am unable to agree, so far as the observations or the decisions go to show, that as it is not essential that the donor should be a consenting party to registration, the gift is complete so far as he is concerned as soon as he has execute a document and delivered it to the donee and it is accepted by the donee and it cannot be revoked even though registration is not effected. That proposition is largely based upon the rule of English law relating to deeds and delivery of deeds. I am very conscious that on this point the weight of judicial opinion is against the view which I take. In spite of my desire to accept that view if possible, I remain unconvinced and it becomes my duty to state the opinion which I have formed. As I consider it essential that in the case of a transaction without consideration like a gift, the points arising in this case should be determined with reference to the Indian law and as I do not feel any doubt in my mind that a gift is revocable on account of the very nature of the transaction, until is completed according to law, I hold that the donor has the right to revoke the incomplete gift or to resile from his act before the document is registered. To deny that right to the donor is really to import into the provisions of the Transfer of Property Act a stage in the completion of the gift which is not contemplated or provided for by the Act itself. Shortly stated, I am still of opinion, if I may say so with respect, that the reasoning of the learned Chief Justice in Subba Rama v. Venkatsubba is sound and correct.

25. As regards the second question, it must depend upon the view which one takes of the first question. It is clear that the document when registered would take effect from the date of its execution. But if it is open to the donor to cancel the transaction before the document is in fact registered, it follows that the fact of registration after revocation cannot affect the revocation.

Marten, J.:— The questions referred to this Full Bench are in effect whether a donor of immovable property can at any time before actual registration, revoke a gift purporting to have been effected by a registered instrument signed by him and duly attested and accepted by the donee. It is common ground for the purposes of this reference that such an instalment in writing was in fact executed by the plaintiff and attested by two witnesses, and that it was handed to the defendant who accepted the same. It is also common ground that despite the plaintiff's protests the instrument was subsequently registered under the provisions of the Indian Registration Act, 1908.

26. It is, however, contended by the plaintiff in reliance on Subba Rama v. Venkata Subba (???) that he had power to revoke this gift at any time before actual registration, and that he did in fact so revoke it. On behalf of the defendant it is contended that this decision is opposed, at any rate in principle, to several decisions in other High Courts, and that it cannot be supported if the material sections of the Transfer of Property Act, 1882, and the Indian Registration Act be closely investigated.

27. Turning then first to the Transfer of Property Act, which was applied to this Presidency in 1893, it is material to observe that is S. 3 “registered” is defined to mean “registered in British India under the law for the time being in force regulating the registration of documents.” Next, S. 4 provides that “S. 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act.” Next, Chapter II deals with transfers of property by act of parties and it defines a ‘transfer of property” as meaning “an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons.” S. 9 provides that “a transfer of property may be made without writing in every case in which a writing is not expressly required by law.”

28. Then if one turns to Ss. 54, 59 and 123, it will be found that in the case of certain sales or mortgages or gifts of immovable property a registered instrument is required. S. 54 defines “sale” as “a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.” It then enacts that “such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of reversion or other intangible thing, cant be made only by a registered instrument” It also provides that “a contract for the sale of immovable property does not of itself create any interest in or charge on such property.”

29. Turning next to mortgages, they are defined in S. 58. Then S. 59 enacts that “where the principal money secured is one hundred rupees or upwards, a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.”

30. Next we come to gifts. S. 122 defines a gift as:—

“The transfer of certain existing move-able 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. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.”

31. Stopping there for a moment, as I have already pointed out, there was an acceptance here by the defendant donee, and moreover the document itself was handed to him. So. S. 122 was complied with here.

32. Next we come to S. 123 Which runs as follows:—

“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 purposes of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid, or by delivery. Such delivery may be made in the same way as goods sold may be delivered.’

33. Section 126 provides for revocation of a gift in certain specified events which have not taken place here, and it ends as follows: “Save as aforesaid a gift cannot be revoked.”

34. The use in S. 123 of the expression “registered instrument” has led to the argument that unless and until the instrument is registered, it is no more an instrument within the meaning of the Act than it would be if it had never been executed at all. But I think the proper way to construe this section is first of all to read the definition of “registered” into the section and then see how it stands. It would then run; “The transfer must be effected by an instrument signed by or on behalf of the donor, and attested by at least two witnesses and registered in British India under the law for the time being in force regulating the registration of documents.” Moreover it is important to observe that Ss. 54 and 59 use the same expression “registered instrument.” I think, therefore, that expression should be dealt with in the same way in all these three sections.

35. Now as regards transfers by sale or by mortgage under Ss. 54 and 59, it is not contended that a vendor or a mortgagor could revoke a conveyance or a mortgage at any time before registration and there is one very good reason for that, viz., that the Indian Registration Act does not necessitate the consent of the transferor being obtained to the registration. Under part 12 of the Indian Registration Act, the Registrar has power to register a document despite the refusal of the transferor, provided he is satisfied that it has been executed. (See S. 75(1)). It is only if he refuses to order registration that there is an appeal to the Civil Court under S. 77.

36. Consequently Sections 54 and 59 of the Transfer of Property Act are construed as necessitating two things, viz., (a) a transfer executed by the transferor, and (b) registration which may be effected by either of the parries, but which does not depend on the consent of the transferor.

37. Why then should we adopt a different construction in Section 123? The Indian Registration Act does not require the consent of the donor to registration any more than it does that of a vendor or a mortgagor. In fact, the document in question in the present case has been registered under part 12 of the Indian Registration Act despite the donor's active opposition. It is, however, said that we ought to adopt a different construction because the transfers referred to in Ss. 54 and 59 are for consideration, but S. 123 refers to a transfer without consideration. I agree that in some cases this distinction may make a practical difference as to whether, quite apart from the validity of the transfer, you can obtain specific performance of any antecedent agreement for such transfer. But I entirely fail to see that it affects the validity of the transfer itself. The Act is here dealing with “transfers” and not with contracts. It indeed expressly excludes contracts of sale in S. 54 from creating any interest in or charge on land.

38. I wish then to emphasize this distinction between transfers or conveyances on the one hand and contracts on the other hand. They are dealt with in separate Acts, viz., the Transfer of Property Act as to the one, and the Indian Contract Act as to the other; and disregard of the distinction between the two can only result in confusion. Further, since the arguments were concluded, my brothers Fawcett and Mulla have pointed out to me that in India under Section 25(1) of the Indian Contract Act, a voluntary agreement in writing made on account of natural love and affection between parties standing in a near relation to each other is a binding contract if registered. Consequently one might have a voluntary registered contract to transfer under S. 25(1), which would be as equally binding as a contract to sell or to mortgage. Whether the transfer to be effected in pursuance of that contract would be validly effected or not would depend on whether the provisions of the Transfer of Property Act were duly complied with. If they were it would be a valid transfer. If they were not, there would in the eyes of the law be no transfer, and the parties would be relegated to their rights under the contract if any. In either event, the validity of the transfer would not depend on the contract nor on the Indian Contract Act, and even as regards contracts one might get a binding voluntary contract under S. 25(1) and on the other hand in most cases of mortgage transactions and in some cases of sales, there would be no binding contract at all prior to the document of transfer, though their would normally be some negotiations.

39. The question then of an antecedent contract or consideration would seem to form no adequate basis for construing the directions as to registration in the sale and mortgage sections in the Transfer of Property Act differently from the corresponding directions in the gift sections of the same Act. In the absence, however, of any argument on S. 25(1) I give no opinion as to whether specific performance could be obtained of such a contract. So, too, as regards mortgages, there may be difficulties in the way of getting specific performance of an agreement to lend on mortgage: see South African Territories Ltd. v. Wallington(12) and In re Smelting Corporation(13).

40. Turning then to the gift sections once more, what are the requisites for a valid voluntary transfer? We have first to see whether we have an instrument duly signed by the donor and attested. Next, if we have, then is it registered? If it is not registered, then under Section 49 of the Indian Registration Act, the document will not affect any immovable property comprised therein, nor can it be received as evidence of the transactions. But if it is registered, then under S. 47 it is to ‘operate from the time from which it would have commenced to operate, if no registration thereof had been required or made, (that is, the date of the document) and not from the time of its registration.”

41. This, again, is an important point. If the plaintiff is correct, registration is really analogous to execution or attestation; and until all the three requisites are satisfied there is no complete document. If that argument is sound, then the document ought to operate from the date of registration, and not from the date of its execution. In this respect the fact that Section 4 of the Transfer of Property Act directs Section 123 to be read as supplemental to the Indian Registration Act is material. It assists the view that while the ordinary law as to transfer is stated in Chapter II of the Transfer of Property Act, the provisions as to registration are to be effected in accordance with the provisions of the Indian Registration Act, which are the governing provisions and which in no way necessitate the continuing consent of the transferor.

42. I am accordingly unable to agree with the judgment of Sir Norman Macleod in Subba Rama v. Venkatasubba where he says (p. 430):—“Therefore a gift is a transfer, and the transfer of immovable property gifted cannot be effected except by a registered instrument. It must follow that the gift is incomplete until the document is registered.” The answer to this contention I have endeavoured to give above, but it is more pithily expressed by Sir Edward Chamier in Parbati v. Baij Nath Pathak where he says (p. 305):—

43. “Registration is not the act of the donor but the act of an officer appointed by law to register documents.” No doubt in one sense a gift is incomplete until registration, just as transfers on sale or mortgage may in a broad sense be said to be incomplete before registration. But they are not incomplete in the sense that the transferor can annul the transaction. It might equally be argued that an unstamped transfer is incomplete because until it is duly stamped it cannot be put in evidence having regard to Section 35 of the Indian Stamp Act. But it could not be contended that would enable a vendor or a mortgagor to cancel the instrument before it was stamped, and I do not see why a donor should be in a different position. Stamping like registration does not depend on the donor's will and pleasure, but rests with the assignee and the officers appointed by law for those purposes.

44. The above decision of Sir Edward Chamier, who subsequently became the Chief Justice of Patna, was afterwards adopted on appeal in preference to the judgment of his dissenting colleague: see Parbati v. Baij Nath Pathak. The Allahabad appellate Court included the Chief Justice Sir Henry Richards, and in the course of their judgment it was stated as follows (p. 4):—

“The sole question to decide, therefore, is whether or not it is necessary in order that there should be a valid gift of immovable property not only that the instrument should be duly executed and attested in the manner provided by Section 123 of the Transfer of Property Act, but also that the registration should be either at the instance of or at least with the consent of the donor. The section merely provides that the gift should be effected by an instrument executed by the donor, attested by two witnesses and registered. In our opinion a document registered in accordance with the provisions of the registration act is a registered instrument, and if the document is in fact duly registered in accordance with those provisions the gift is complete and valid. The law does not require that the registration should be at the instance of or with the consent of the donor.”

45. Turning, again, to Subba Rama v. Venkatasubba there is no reference in the judgments to the corresponding sections of the Transfer of Property Act dealing with sales and mortgages. We are consequently without the advantage of knowing the exact grounds on which the learned Chief Justice would distinguish the operation of Ss. 54 and 59 from S. 123. But, speaking for myself, I entirely agree with and respectfully adopt the judgment of the present Chief Justice of Madras in Venkati Rama Reddi v. Pillati Rama Reddi where, after setting out in detail the more material sections of the Transfer of Property Act and the Indian Registration Act, he proceeds as follows (p. 208):—

It seems to me that the whole of this machinery for compulsory registration can only apply to cases where in substance the executant of the document or the representative of the executant does not wish to have the document registered. The enquiry will not serve any purpose except on the assumption that the executant desires to withdraw the document from registration. But if the argument to which effect given in Ramamirtha Ayyan v. Gopala Ayyan is right, in all such cases an enquiry would be wholly beside the point, because all that the donor or his representative has to say is that nothing is to be inquired into. ‘I do not think the Registrar is to go at length into the question as to whether I did or did not execute this deed. It is sufficient for me to say that I decline to act upon it and I refuse to register it.’ If that is right, of course, it involves this: that the whole of Part XII which is perfectly general in its terms must be confined to transactions other than transactions of gift. There is nothing to indicate any such intention on the part of the legislature, and, for my part, I see no reason at all for the distinction suggested between transfers by gift and transfers by sale. As it is pointed out in some of the text books, the effect of the decision in Ramamirtha Ayyan v. Gopala Ayyan is to draw a distinction which is nowhere indicated in the Act between documents registered with the consent of the executant in the first instance and documents registered with the consent of the representatives…now that the matter has been raised directly before us, my own opinion emphatically is that it is contrary to principle and cannot be supported and it would create hopeless difficulties and inconsistencies in the matter of registration.”

46. The point was, however, referred to the Full Bench who agreed with the opinion expressed by Mr. Justice Courts Trotter, and in the course of their judgment it was said (p. 211):—

“The doctrine that a donor who has left his gift incomplete cannot be compelled to complete it, has no application to a case like this; for so far as he is concerned he has by executing the deed dona all that he need do, for registration can be effected even without his co-operation.”

47. Speaking for myself, I think that the policy of the Transfer of Property Act is to substitute written documents and registration for oral evidence as regards certain descriptions of transfers. But if a written document duly registered like the one in the present case is to be liable to be upset on some alleged revocation before registration, one main object of the Act is frustrated. The argument advanced by the plaintiffs does not confine the alleged right of revocation to revocation by a written and registered instrument. If then it may be oral, there is at once an opening for a false oral story which will be easy to concoct and difficult to check—an opening which I have no doubt would be seized on with avidity by many a litigant and as to how many years must elapse before it would be safe to accept any title depending on a voluntary transfer, supposing the Transfer of Property Act be construed in that way, I would leave to those skilled in the Indian Limitation Act to consider.

48. It was argued by the learned pleader for the plaintiff that the decisions of Parbati v. Baij Nath Pathak and Venkati Rama Reddi v. Pillati Rama Reddi can be distinguished on the ground that in those cases there was merely an absence of consent by the donor to the registration whereas in the present case there was an act of positive withdrawal or revocation. But I am unable to see that in principle there is any essential difference in this particular class of case. The mere use of the word “revoke,” as used in the formal questions submitted to us, implies that a gift has already been affected, and not that there is an absence of one of those conditions of consent which are necessary for the efficacy of a transaction before it can be said to be completed. Consequently we are asked to treat the instrument much as if it contained an implied power of revocation in the donor prior to actual registration. If the donor wished to retain any such power, or for the matter of that a more extensive power of revocation, it could easily have been inserted in the instrument. But in fact the instrument contains nothing of the sort, nor in my opinion is there anything in the Act which on its fair construction reserves any such power of revocation in the donor, any more than it does in cases of sales or mortgages. On the contrary, S. 126, as I read it, would appear expressly to negative any such right on the part, of the donor. It provides that “save as aforesaid a gift cannot be revoked.”

49. Some reference was made to the fact that the parties are Hindus, and that under Hindu law, as laid down in these Courts, prior to the application of the Transfer of Property Act to this Presidency, possession would have been essential for a gift whether or no a writing was required. But be learned pleader for the plaintiff evidently found it difficult to contend that prior to the Transfer of Property Act, a Hindu donor could revoke his gift before registration, provided possession had been given. Consequently there seems all the less reason for contending that he should now be given such a power merely because an instrument in writing duly attested is substituted for the possession formerly required under the Bombay decisions for the validity of a gift, and that registration is also required just as it was before if the gift was in writing. I say the Bombay decisions because subsequent rulings of the Privy Council have thrown some doubt upon the point. But I need not pursue the matter further, nor consider the question of possession in the present case which I understand is a disputed point of fact, because as I read Section 129 of the Transfer of Property Act, the validity of a gift is now determined by the Transfer of Property Act under which possession is not essential for the validity of the gift in the present case.

50. Reference was also made during the course of the able arguments to the English law of gifts. One of the clearest statements I know of on that subject is the well known judgment of Sir George Jessel in Richards v. Delbridge(14). He there points out the difference between a valid gift and a declaration of trust, and states that an incomplete gift will not necessarily be treated as a valid declaration of trust. His exact words are (p. 14):

“The principle is a very simple one. A man may transfer his property, without valuable consideration, in one of the two ways; he may either do such acts as amount in law to a conveyance or assignment of the property, and thus completely divest himself of the legal ownership, in which case the person who by those acts acquires the property takes it beneficially, or on trust, as the case may be; or the legal owner of the property may, by one or other of the modes recognised as amounting to a valid declaration of trust, constitute himself a trustee, and, without an actual transfer of the legal title, may so deal with the property as to deprive himself of its beneficial ownership, and declare that he will hold it from that time forward on trust for the other person…The true distinction appears to me to be plain, and beyond dispute for a man to make himself a trustee there must be an expression of intention to become a trustee, whereas words of present gift show an intention to give over property to another, and not retain it in the donor's own bands' for any purpose, fiduciary or otherwise.”

51. In India, as has been pointed opt to me by my brother Fawcett after the conclusion of the arguments, Section 5 of the Indian Trusts Act 1882 requires a trust of immovable property to be in writing and registered. We have heard no argument on this section, and therefore I give no definite opinion on it. But to me it would seem difficult to argue that the declarant has a locus pœnitentiœ or an implied power of revocation at any time after execution and before actual registration. Here, again, registration could be effected even if he actively dissented.

52. Kekewich v. Manning(15) is another leading case on the subject of gifts or voluntary settlements. There Lord Justice Knight Bruce had to determine whether an alleged gift or settlement was complete or merely inchoate, and he stated the question in the following terms (p. 187):—

“The present case has raised, necessarily or unnecessarily, a question which on several occasions, under different aspects, and in various circumstances, has been brought before this Court, especially since the time of Lord Hardwicke the question, namely, whether an act or intended act of bounty, whether a gift or a promised or intended gift, was in truth a perfect act, a completed gift, resting neither in promise merely, nor merely in unfulfilled intention; or was incomplete, was imperfect, and rested merely in promise or unfulfilled intention.”

53. Melroy v. Lord, which is cited in the referring judgment of Mr. Justice Fawcett, is another leading case on the subject of English gifts.

54. It has been argued before us that on the principles laid down in those decisions the donor here has not done all that he could do to perfect the gift because he himself might have got it registered. But I think that would be stretching the principles of the English law of gift much too far. If sound, the same argument might also equally apply to a document which was not stamped by the vendor. The answer to it is that it is sufficient if the vendor has done all that he need do to enable the donee to get the fruits of the intended gift. The cases of In re Patrick(16) and In re King(17) would tend to show that it will suffice for a valid gift if the settlor has done what is necessary on his part for a voluntary assignment, and has thus enabled his assignees to take any further steps that may be necessary to obtain the subject matter of the gift. Mallott v. Wilson(18) decides that the mere disclaimer by a voluntary assignee, e.g, the trustee will not render a voluntary settlement inoperative, nor give the settlor any power to revoke the gift unless an express power of revocation has been reserved in the istrument.

55. Further, no case has been cited to us to the effect that under the English law of gift a donor can withdraw gift at a any time before registration, supposing the land is in a county where registration is compulsory. So far as my own recollection goes, there is no such authority, nor have I any recollection of its being customary on sales to frame requisitions asking whether a donor had revoked his gift before registration, as might have been the case if the plaintiff's present contentions are sound in law. There are, however, material differences between the English and the Indian laws of registration, as is pointed out by their lordships of the Privy Council in Tilakdkari Lal v. Khedan Lal(19). That decision does not, however, refer to Section 20 of the English Land Transfer Act, 1897, which provides that on sales of land in compulsory districts a purchaser does not get the legal estate unless and until the document is registered under that Act. Registration under that Act is quite distinct from registration under the Middlesex or Yorkshire Registry Acts. But I have not thought it necessary to refresh my memory by making any extensive search of the English authorities on the subject, as after all the case which we have to deal with is a case of Indian land and is governed by an Indian statute. The real question we have to decide is what is the true effect of that statute or rather of the two statutes, the Transfer of Property Act and Indian Registration Act.

56. Summarizing then the rival arguments, I find that the plaintiff has to concede that neither a vendor nor a mortgagor can revoke a transfer at any time before registration and that even voluntary transfers do not require the active consent of the donor to the registration Further, a voluntary transfer may in some cases be in pursuance of a binding contract under Section 25(1) of the Indian Contract Act, just as a transfer on sale or mortgage may be in pursuance of an antecedent contract. But we are asked by the plaintiff to draw a distinction in the case of certain gifts between passive and active dissent to registration, and to say that while the former is immaterial, the latter invalidates the transaction. Speaking for myself I think that this distinction is nowhere to be found in the Acts, and should not be drawn; and that on the contrary the Acts were intended to shut out the very class of evidence on which this distinction if once allowed would normally be based—I mean oral evidence.

57. After giving then my best consideration to the several contentions put before us in the referring judgments and at the bar, I have arrived at the conclusion that the decision of the Division Bench in Subba Rama v. Venkatsubba cannot be supported; that the correct principles are those enunciated in Venkati Rama, Reddi v. Pillati Rama Reddi and Parbati v. Baij Nath Pathak; and that accordingly the first question submitted to us should be answered in the negative. Consequently the second question does not arise.

Fawcett, J.:— I retain my former opinion and agree with the judgment of my brother Marten.

58. I think there is a fallacy in the view that a gift is not “completed” till the required instrument has been registered. S. 123 does not use the word “completed” but the word “effected.” The distinction to my mind is that a gift may be “complete” so far as the donor is concerned, when he has executed and handed over to the donee, who accepts it, the requisite instrument: but the gift is not legally “effective” as a valid transfer of the immovable property until the instrument has been registered.

59. As a similar case, I may refer to the law regarding a non-testamentary and voluntary settlement of immovable property. Under Section 5 of the Indian Trusts Act 1882, this can only be done by an “instrument in writing signed by the author of the trust or the trustee and registered.” S. 78 provides that when the trusts of the settlement have been “declared by a non testamentary instrument,” they can only be revoked in exercise of a power of revocation expressly reserved to the author of the trust. If the author of the trust gave the instrument to the beneficiary and the latter got it registered, the language of S. 78 seems to me to be against the supposition that the author of the trust could revoke it before it is actually registered. If that had been intended, one would expect the word “registered” before “non-testamentary instrument”: cl, (b) of S. 78.

60. I agree with my learned brother Marten that the fact of a gift being without consideration makes no difference. This point was discussed in Behari Lal Ghose v. Sindhubala Dasi and the learned Judges say (p. 439);—“The substance of the matter is that although in contracts for sale, mortgage, lease or exchange, there is pecuniary consideration, and in a gift there is no such consideration, the right of rescission is circumscribed by the same set of circumstances.’

61. It is to be noted that Section 59 of the Transfer of Property Act uses the same word “effected,” as is used in S. 123, yet it is not contended that the mortgagor has a “locus pœnitentiœ” to resile from the transaction before the instrument of mortgage is registered. It is, however, said that the case of a gift is different, because Section 25 of the Indian Contract Act allows the intending donor, in the case of an agreement to make a gift, to withdraw it at his will unless the agreement has been registered, as stated in Section 25 of the Indian Contract Act. But this seems to me to beg the question at issue before us. Thus take illustration (b) to S. 25, viz.:—

“A, for natural love and affection, promises to give his son, B, Rs. 1,000. A puts his promise to B into writing and registers it. This is a contract.” To my mind, the words of clause (1) of s. 25 equally apply to a case like that before us, and the illustration might be altered by substituting for the words “and registers it” the words “and hands the document to B, who gets it registered under the provisions of the law in force for the registration of documents.” It begs the whole question to assume that, unless A himself registers the document or assents to its registration, there is no valid contract.

62. The difference of opinion between the members of this Bench seems to turn ultimately on the question whether the requirement of registration is per se essential, irrespective of the consideration that the donor by handing the document to the donee, has put it out of his power to prevent registration. I can see nothing in the rule as to locus pœnitentiœ laid down in Maddison v. Alderson(20) which extends the locus to such a case. On the contrary Lord Selborne's quotation from Bell's principles at p. 476, viz., “from an obligation to which writing is requisite and has not yet been admitted in an authentic shape,” refers prima facie merely to the requirements of execution of a proper instrument and not to any subsequent production of the document or other act of that kind, independent of the will of the executant.

63. I would also draw attention to the fact that the rule of Hindu law that a gift is not valid unless it is accompanied by delivery of possession of the subject of the gift from the donor to the donee was not construed to allow the donor a locus pœnitentiœ up to actual delivery, provided the donor had done all that he could to complete the gift. Kalidas Mullick v. Kanhaya Lal Pundit(21) and Joitaram v. Ramkrishna. This is, in my opinion, weighty authority in favour of applying the same principle to the requirement of registration, in any case where the donor has done all he need to complete the gift and by handing the instrument to the donee has put it out of his power to prevent its registration.

64. I would, therefore, answer the reference as proposed by my brother Marten.

Mulla, J.:— The facts which have given rise to the present reference are shortly as follows:—

On September 17, 1917, plaintiff No. 1 executed an instrument of gift in favour of the defendant of certain moveable and immovable properties belonging to him, and handed it to the defendant. On September 26, 1917, the defendant presented it for registration. Plaintiff No. 1 did not appear before the Sub-Registrar, and the Sub-Registrar refused to register the deed. The defendant appealer to the Registrar. During the course of the proceedings before the Registrar the plaintiff appeared before the Registrar and declared his intention not to abide by the writing and denied execution. The Registrar ordered it to be registered, and it was accordingly registered on December 18, 1917. Subsequently, plaintiff No. 1 adopted plaintiff No. 2 and they both filed the present suit on August 7, 1920, to set aside the alleged gift and for possession of the properties.

65. The questions referred to the Full Bench are:—

(1) Was it competent to the donor to revoke the gift of immovable property before the instrument was in fact registered?

(2) If so, whether the subsequent registration of the document against the wishes of the donor makes the revocation ineffective?

66. The provisions of the Indian law bearing on gifts are contained in Chapter VII of the Transfer of Property Act, IV of 1882. “Gift” is defined in S. 122 as a “transfer of… property made voluntarily and without consideration by one person, called the donor to another, called the donee.”

67. S. 123 of the Act is as follows:—“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.”

68. By S. 126 it is provided that “the donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked…A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked.”

69. “Transfer of Property” is defined in S. 5 as meaning an act by which a living person conveys property to another living person. By S. 9 it is provided that “a transfer of property may be made without writing in every, case in which a writing it not expressly required by law.” The expression “registered” is ??? in S. 3 as meaning “registered in British India under the law for the time being in force regulating the registration of documents.” The law in force regulating registration at the date of the writing in this case was the Indian Registration Act XVI of 1908.

70. The point involved in the first of the two questions retired to the Full Bench is whether an intending donor who has executed an instrument of gift, attested as required by Section 123 of the Transfer of Property Act, and handed it to the, intending donee, has a locus pœnitentiœ or implied power of revocation prior to registration of the instrument, or whether after he has executed and handed the instrument as aforesaid, the plea of locus pœnitentiœ is barred.

71. The limits of the rule as to locus pœnitentiœ were thus stated by Lord Selborne in Maddison v. Alderson (pp. 476, 477):—

“It is not in England only that such a doctrine prevails; a similar (perhaps even a larger) equity is also recognised in other countries, whose equitable jurisprudence is derived from the same original sources as our own. By the law of Scotland, ‘written contracts in strict technical language are those of which authentic written evidence is required, not merely in proof, but in solemnity; as obligations relative to land; or obligations agreed to be reduced to writing; or those required by statute to be in writing.’ To constitute any such contract there must be a ‘final engagement’; and as a corollary to that rule a ‘locus pœnitentiœ’ is given; i.e, a power of resiling from an incomplete engagement, from an unaccepted offer, from a mutual contract to which all have not assented, from an obligation to which writing is requisite and has not yet been exhibited in an authentic shape.’ But to this ‘rei interventus raises a personal exception, which excludes the pis a of locus pœnitentiœ. It is inferred from any proceedings, not unimportant, on the part of the obligee, known to and permitted by the obligor to take place on the faith of the contract, as if it were perfect; provided they are unequivoeably referable to the contract, and productive of alteration of circumstances, loss, or inconvenience, though not irretrievable.’ Bell's Principles, Ss. 18, 25, 26.”

72. Portions of the passage cited above were cited with complete approval by their lordships of the Privy Council in Mahomed Musa v. Aghore Kumar Ganguli(22) and also in Malraju Lakshmi Venkayyamma v. Venkata Narasimha Appa Rao(23). In the former case their lordships observed that there was nothing in the law of India inconsistent with the law as stated by Lord Selborne, but upon the contrary, that the law followed the same rule.

73. Reading Ss. 122 and 123 together, a “gift” is a transfer which must be “effected” by registered instrument signed by the donor and attested by at least two witnesses. It follows from these two sections that a gift cannot ‘be said to be effected” unless the transfer which constitutes the gift is itself “effected” in the manner prescribed by S. 123. In the present case there is an instrument signed by the donor and attested by two witnesses; but before the instrument was registered, the donor declared his intention not to be bound by it, and he actually denied execution before the Registrar. The position then is this, that at the date on which the donor repudiated the transaction, there was no transfer “effected” in the manner prescribed by law and there was no valid and complete gift, in other words, there was no gift at all: see the observations of their lordships of the Privy Council in Sadik Husain Khan v. Hashim Ali Khan(24) where their lordships said that “transfer” with the meaning of S. 122 meant prima facie a valid transfer. It is true that in the present case the donor did “all that he need do” towards completing the gift, namely that he executed the writing and handed it to the donee, but it cannot be said, having regard to the language of S. 123, that because he did so, there was a transfer “effected” by way of gift, for a transfer by way of gift under that section can only be “effected” by a registered instrument. It is also true that having regard to the provisions of the Indian Registration Act, the registration could be effected without the co-operation, of the donor and even against his consent, and further, that on the instrument being registered, it operates from the date of it execution as distinguished from the date of registration, but it cannot be inferred, from this that a transfer by way of gift had been “effected” in the manner prescribed, by S. 123 before the date on which the, donor drew back from the transaction. It is also true that when the donor executed and handed over the document to the donee, there was a clear intention expressed on his part to give, and a clear intention on the part of the donee to take, but that does not conclude the case. The intention must be expressed in the manner prescribed by law, that is, by a registered instrument signed by the donor and attested by at least two witnesses. Thus prior to the enactment of the Transfer of Property Act, delivery of possession was necessary in the case of Hindus, to complete a gift, where possession could be delivered. If a donor prior to that Act executed an instrument of gift attested by witnesses and even if he got it registered, there was no gift if the transfer was not accompanied by delivery of possession, though the intention to give and to take was unequivocally expressed by the instrument; the reason being that the condition prescribed by the law, namely, delivery of possession, had remained unfulfilled and the same was held of a Mahomedan gift in Sadik Husain Khan's case referred to above. It seems to me that the registration prescribed by S. 123 is not mere evidence of the gift, but is part of the gift itself. It is, I think, a necessary part of the proposition that a gift has been “effected.” It is not mere evidence to prove that there has been a gift, but it is a fact to be proved to constitute the proposition that there has been a gift. For the above reasons, I have come to the conclusion that at the date on which plaintiff No. 1 resiled from the transaction, no transfer by way of gift had been “effected” as required by Section 123 of the Transfer of Property Act, in other words, there was no gift in law. Whether a transfer by way of gift is effected or not is a question to be determined exclusively with reference to the provisions of S. 123. You cannot split the requisites prescribed by the section into two parts, namely, (1) a writing signed and attested, and (2) registration, and say that because according to fie English law a gift is effected when the donor executes a deed of gift, there is a gift “effected” in the present case also, the donor having signed a document attested by two witnesses, and having handed, it to the donee. According to the English law, in the case of a voluntary deed, the donee is entitled to possession of the immovable property immediately on the execution of the deed. It cannot be suggested that in cases governed by the Transfer of Property Act, a donee is entitled to possession immediately on execution of the instrument of gift and before it is registered. The present case seems to me to be pre-eminently a case in which the analogies of English law ought not to be applied in construing an Indian enactment nor can you say, that in cases governed by the Transfer of Property Act, a transfer by way of gift may be deemed to be “effected” for the purpose of excluding the plea of locus pœnitentiœ, and not yet “effected” for the purpose of making it a valid gift. It seems to me that the distinction sought to be drawn in this case between a “complete” transfer and a “valid or effective” transfer is far-fetched, and it cannot be supported either in principle or on authority. I readily accept the proposition that a donee under an instrument of gift can have the document registered without the consent and even against the wishes of the donor, but that does not, in my view, justify the proposition that registration is not an essential part of a transfer by way of gift. The gift in the present case when it was withdrawn was inchoate, and plaintiff No. 1 had therefore a locus pœnitentiœ. I do not think that the locus pœnitentiœ was barred by anything done by him subsequent to the execution of the writing. There is no such rei interventus in the present case as could raise a personal exception, which excludes the plea of locus pœnitentiœ.

74. Such being my view of the case, S. 126 does not apply. It applies only to a “gift” that is, a gift made in the manner prescribed by S. 123. In the present case, there was no “gift” on the date on which plaintiff No. 1 resiled from the transaction.

75. It was contended on behalf of the defendant that Section 54 of the Transfer of Property Act which relates to sales and S. 59 of the same Act which relates to mortgages are in terms similar to S. 123, and that if a vendor or a mortgagor cannot after execution of the instrument of sale or mortgage resile from the transaction before the instrument of sale or mortgage is registered, a din or also cannot resile after execution of the instrument of gift and before registration thereof. I feel myself unable to accede to that contention. The reason why a conveyance or a mortgage cannot be revoked after execution and before registration is not because registration may be effected in spite of the donor's protest but because in the case of sales and mortgages once a contrast of sale or mortgage is made, neither a vendor nor a mortgagor could rescind it at his pleasure, while in the case of an agreement to make a gift, the intending donor may withdraw it at his will except in the rare cases where an agreement to make a gift is made in favour of a near relation out of love or affection and it has been registered, as provided in Section 25 of the Indian Contract Act, 1872. Even in that case the agreement, according to the view I take of the law may be terminated by the donor at his pleasure at any time before it is registered. There are two other sections of the Transfer of Property Act to which I may here refer. One of them is S. 9 which provides that a transfer of property may be made without writing in every case in which a writing is not expressly required by law.” The other is S. 107 by which it is provided that all leases of immoveable property other than those mentioned in the first paragraph of the section may be made “either by registered instrument or by oral agreement accompanied by delivery of possession.” It was argued on behalf of the defendant that as no mention was made of registration in S. 9, registration did not for in part of a “transfer,” and the transfer in the present case was therefore “effected” when plaintiff No. 1 executed and handed the instrument of gift to the defendant. Now it is to be observed that just as there is no mention made of registration in S. 9, so there is no mention made of delivery of possession in that section. If the argument addressed by the pleader for the defendant were sound, it would follow that a lease of the kind mentioned above could be mile merely by an oral agreement, and delivery of possession should be treated as registration is sought to be treated, as mere evidence of the lease as distinguished from part of the lease itself. Such a proposition is, on the face of it, untenable. The fact of the matte is that S. 9 does not deal with the essentials of a transfer. It indicates only two modes of transfer, namely, a transfer in writing and an oral transfer. Transfer by delivery which is one of the alternative modes of transfer in the case of a gift of moveable property is not mentioned in the section, and yet transfer by delivery is undoubtedly one of the modes of transfer. S. 9 does not purport to deal with the various modes of transfer. The mode of transfer are prescribed in Ss. 54, 59, 107 and 123, S. 9 says no more than this that where a writing is not expressly required by law, a transfer may be made without writing. It simply recognises oral transfers. The marginal note to the section, namely, “Oral transfer,” indicates the scope and intent of the section. Upon long consideration, I have reached the conclusion that the first question mist be answered in the affirmative and the second question in the negative. Before concluding this judgment I feel I ought to say that the case was argued with remarkable ability by the learned pleader on both sides. Indeed, it could not have been argued better.

Kincaid, J.:— I agree with the judgment given by my learned brother Marten, and would answer the reference in the manner indicated by him.

Shah, A.C.J:— In accordance with the opinion of the majority, the answer to the first question will be in the negative. There will be no answer to the second question as being unnecessary.

76. Answer accordingly.