Madras High Court
Sulaiman vs The Sub Registrar on 27 January, 2022
W.P.No.915 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.915 of 2022
Sulaiman ... Petitioner
-Vs-
1. The Sub Registrar,
Sub Registrar Office,
Purasasiwalkam, Chennai.
2. The Inspector General of Registration,
Santhome High Road,
Chennai - 600 028. ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorarified Mandamus,
calling for the records relating to the impugned order "Refusal Check
Slip", dated 05.01.2022 in Ref.No.RFL/Purasaiwalkam/1/2022 passed by
the first respondent relating to the General Power of Attorney in respect
of the property bearing Door No.4 and 5, Erukkanchery High Road,
Vyasarpadi, Chennai - 600 039, comprised in R.S.No.537/1, as per patta
537/8 and 537/9 Block No.27 of Perambur Village, Perambur Taluk,
measuring 302 sq.ft., executed by Rahimunisha Begum by quashing the
same and further directing the first respondent to receive the General
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W.P.No.915 of 2022
Power of Attorney dated 05.01.2022 and register the same in accordance
with law.
For Petitioner : Mr.R.Manickavel
For Respondents : Mr.Yogesh Kannadasan
Special Government Pleader
ORDER
This Writ Petition has been filed for the issuance of Writ of
Certiorarified Mandamus, calling for the records relating to the impugned
order "Refusal Check Slip", dated 05.01.2022 in
Ref.No.RFL/Purasaiwalkam/1/2022 passed by the first respondent
relating to the General Power of Attorney in respect of the property
bearing Door No.4 and 5, Erukkanchery High Road, Vyasarpadi,
Chennai - 600 039, comprised in R.S.No.537/1, as per patta 537/8 and
537/9 Block No.27 of Perambur Village, Perambur Taluk, measuring 302
sq.ft., executed by Rahimunisha Begum by quashing the same and
further directing the first respondent to receive the General Power of
Attorney dated 05.01.2022 and register the same in accordance with law.
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W.P.No.915 of 2022
2. Heard Mr.R.Manickavel, learned counsel appearing for the
petitioner and Mr.Yogesh Kannadasan, learned Special Government
Pleader appearing for the respondents.
3. The property comprised in R.S.No.537/1, situated at Block
No.27 of Perambur Village, Perambur Taluk, ad-measuring 604 sq.ft,
bearing Door No.4 and 5, Erukkanchery High Road, Vyasarpadi,
Chennai - 600 039, belong to one Rahimunisha Begum and her late
husband Ghoush Basha. They purchased the said property by the
registered sale deed, dated 06.02.2009 registered vide Document No.393
of 2009. The said Ghoush Basha gifted his half share by way of Hiba in
favour of his wife Rahimunisha Begum and by the Hiba deed, dated
13.04.2016. Thus, the said Rahimunisha Begum became the absolute
owner of the entire property.
4. Thereafter, the said Rahimunisha Begum executed a Power
of Attorney in favour of the petitioner to deal with the property, dated
23.09.2002. The said Power of Attorney has been presented for
registration on 05.01.2022 before the first respondent. However, the first
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W.P.No.915 of 2022
respondent refused to register the same by the impugned check slip,
dated 05.01.2022 for the reason that as per the Gift deed executed
through Hiba is unregistered one. It is a settled law that the provisions of
the Transfer of Property Act under Section 122 to 129 of Chapter VII
shall not be applicable to Muhammadan Law. The provisions under
Section 123 makes it clear that a deed of gift executed by a donor in
favour of donnee shall be compulsorily registered, but Section 123 shall
not apply if the parties to the transaction of a gift are Muslims.
5. In this regard, the learned counsel for the petitioner relied
upon the Judgment of Hon'ble Supreme Court of India reported in 2001
(5) SCC 654 in the case of "Hafeeza Bibi and others Vs. Shaikh Farid
(Dead) by Lrs and others".
"29. In our opinion, merely because
the gift is reduced to writing by a Mohammadan
instead of it having been made orally, such writing
does not become a formal document or instrument
of gift. When a gift could be made by
Mohammadan orally,its nature and character is
not changed because of it having been made by a
written document. What is important for a valid
gift under Mohammadan Law is that three
essential requisites must be fulfilled. The form is
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W.P.No.915 of 2022
immaterial. If all the three essential requisites are
satisfied constituting valid gift, the transaction of
gift would not be rendered invalid because it has
been written on a plain piece of paper. The
distinction that if a written deed of gift recites the
factum of prior gift then such deed is not required
to be registered but when the writing is
contemporaneous with the making of the gift, it
must be registered, is inappropriate and does not
seem to us to be in conformity with the rule of gifts
in Mohammadan Law".
6. Such being the position of law, the first respondent ought not
have refused to register the Power of Attorney document on the ground
that the Hiba deed is an un-registered one. It is contrary to law, outside
the purview of the Registration Act. The above Judgment is followed by
the Hon'ble Division Bench of this Court, recently reported in CDJ 2020
MHC 5077 and held that, merely because the gift is reduced to writing by
a Mohammadan instead of it having been made orally, such writing does
not become a formal document or instrument of gift. When a gift could
be made by Mohammadan orally, its nature and character is not changed
because of it having been made by a written document. What is
important for valid gift under Mohammadan law is that the three essential
requisites must be fulfilled. i.e. (i) declaration of the gift by the donor (ii)
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W.P.No.915 of 2022
acceptance of the gift by the donee expressly or impliedly and (iii)
delivery of possession either actually or constructively. The form is
immaterial.
7. If all the three essential requisites are satisfied constituting
valid gift, the transaction of gift would not be rendered invalid because it
has been written on a plain piece of paper. The distinction that if a
written deed of gift recites the factum of prior gift then such deed is not
required to be registered but when the writing is contemporaneous with
the making of the gift, it must be registered, is inappropriate and does not
seem to us to be in conformity with the rule of gifts in Mohammadan
Law.
8. Thus, it is well settled that un-registered Hiba does not
require any registration and therefore the refusal to register the Power of
Attorney in which the principal mentioned that she acquired the property
from her late husband through Hiba.
9. In view of the above, the impugned check slip cannot be
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W.P.No.915 of 2022
sustained as against the petitioner and it is liable to be set aside.
Accordingly, the impugned check slip dated 05.01.2022 in
Ref.No.RFL/Purasaiwalkam/1/2022 passed by the first respondent is
hereby quashed.
10. The principal and the petitioner are directed to re-present the
Power of Attorney documents, dated 23.09.2002, before the first
respondent for registration. On receipt of the same, the first respondent is
directed to register and release the same forthwith, if it is otherwise in
order.
11. In view of the above, this writ petition stands allowed. There
shall be no order as to costs.
27.01.2022
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
mn
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W.P.No.915 of 2022
G.K.ILANTHIRAIYAN, J.
mn
To
1. The Sub Registrar,
Sub Registrar Office,
Purasasiwalkam, Chennai.
2. The Inspector General of Registration,
Santhome High Road,
Chennai - 600 028.
W.P.No.915 of 2022
27.01.2022
https://www.mhc.tn.gov.in/judis
