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SCI JCA 2017 PART II
created Apr 15th, 10:08 by Devashish Dey
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Once such an instrument is duly executed, the Registration Act allows it to be registered even though the donor may not agree to its registration and upon registration, the gift takes effect from the date of execution. It was further held, that the doctrine that a donor who has left his gift incomplete cannot be compelled to complete it, has no application to a case where the donor, by executing the deed has done all that he needs to do; registration can be effected even without his cooperation. If the interpretation of Section 123 of the Transfer of Property Act and Section 47 of the Registration Act as canvassed by the defendant were to be accepted, it will open the doors for all purchasers of immoveable property to avoid payment of stamp duty on the sale deeds and become owners only on the basis of executed unstamped and unregistered sale deed and claim to be unable to pay the stamp duty and have liberty to pay the stamp duty whenever they desire. I may in this regard notice that Section 54 of the Transfer of Property Act pertaining to sales is at par with Sections 122 and 123 of the Act pertaining to gifts. I may in this context also record that per Section 17 of the Indian Stamp Act, 1899, instruments chargeable with stamp duty and executed by any person in India have to be stamped before or at the time of execution and per Section 29 thereof, in the absence of an agreement to the contrary, the expense of providing the proper stamp duty is to be borne, in the case of a conveyance and which would include a gift, by the grantee i.e. donee as the defendant claims to be in the present case. The counsel for the defendant, in rejoinder, contrary to his earlier categorical stand that the defendant is not seeking enforcement of the gift, argued that the suit be put to trial to determine the intention of the parties. It is also argued that it is to be determined in trial, as to who is in possession of the property.
