Decided on August 11,1954

Sunkesula Chinna Budde Saheb Appellant
Raja Subbamma Respondents


UMAMAHESWARAM,J. - (1.) Defendant is the appellant. The question of law raised in the second appeal is a simple one. It relates to the admissibility of an unregistered document styled as a gift deed executed by Kamalamma in favour of the defendant in 1930. The trial Court rejected it as being inadmissible for want of registration. The lower appellate Court, while holding that it was admissible only for proving the nature and character of possession, held that its probative value was practically nil ; but that document was not marked in evidence even for that limited purpose. The main contention of the learned advocate for the appellant was that, under Muhammadan Law, a registered deed is not necessary to effect a gift, that the gift deed was admissible in evidence, even though it was unregistered and that in any event, it ought to have been marked in evidence and relied on for the collateral purpose of proving the nature and character of possession. For the purpose of appreciating the contentions, it is necessary to set out a few relevant facts as found by Courts below.
(2.) The defendant's mother was the owner of an extent of acres 1.98 in S.N. 28/2. She had two sons, the defendant herein and Pedda Budde Saheb. She executed a mortgage deed dated 19th May, 1936, marked as Exhibit A-2 in favour of Seshayya for the expenses incurred in C.C. No. 12 of 1936 on the file of the Taluk Magistrate, Koilguntla. The criminal case was filed against the defendant and his brother. The property that was mortgaged under Exhibit A-2 by Kamalamma was sold by her to the plaintiff-respondent under Exhibit A-1 dated 16th August, 1939, for the sum of Rs. 300. The certified extract of No. 14. account of Chintakunta village for fasli 1352, marked as Exhibit A-7, shows that the patta had been transferred in favour of the plaintiff. Exhibit A-3 was a lease deed executed in favour of the plaintiff by the defendant's brother Pedda Budde Saheb. It is also in evidence that half the extent purchased by the plaintiff under Exhibit A-1 was sold to Pedda Budde Saheb. The evidence referred to supra clearly establishes that the plaintiff acquired title by reason of the purchase under Exhibit A-1 and was in possession leasing out the suit property to the defendant's brother.
(3.) The case of the defendant is that, 9 years prior to the sale in favour of the plaintiff, he acquired title to the suit property under a gift deed executed by his mother. The document that was tendered in evidence but not marked by the Court below was read out to me in full and I find that the recitals therein clearly show that possession was delivered to the defendant under the document and that an immediate interest was sought to be created in him to be enjoyed from generation to generation. The last clause no doubt provided that the mother would execute a registered gift deed whenever called upon to do so by her son, the donee. Even though there is no proof that the document is a genuine one I assume, for the purpose of deciding the question of law, that it was duly executed by Kamalamma. While excluding the deed of gift as being inadmissible in evidence for want of registration, the District Munsiff of Nandyal permitted the defendant to examine witnesses in support of his case as to his mother having gifted away the suit property to him. The Courts below rightly held that if a valid gift was made, according to rules of Muhammadan Law in favour of the defendant, it was unlikely that she would have asserted title to the suit property and executed a mortgage deed in 1936 in favour of Seshayya for the expenses incurred by the defendant and his brother in defending the criminal case in C.C. No. 12 of 1936 on the file of the Taluk Magistrate, Koilguntla, and a sale deed in favour of the plaintiff in 1939 for discharging the mortgage debt. The lease deed executed by the defendant's brother was properly relied on to negative the case of the defendant that he was in possession as a donee. The cist receipts Exhibits B-1 to B-8, though produced by the defendant, were rightly rejected as not proving that he paid cist in respect of the suit land. The cist receipts stood in the name of Budde Saheb and not in the name of Chinna Budde Saheb, the defendant. As pointed out by the District Munsif in paragraph g, the amount of cist paid was not uniform. From the facts above stated, I am of opinion that the Courts below arrived at the correct conclusion that the defendant did not prove that there was a valid gift in his favour and that he continued in possession as a donee ever since.;

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