The following IRAC is related to a sub issue within the main case, pertaining especially to the Transfer of Property Act 1882

Issue
In the modern legal scenario, Under Transfer of Property Act 1882 , whether the property of land, received by Rukminibai from her brother Damodar Rao by way of "Pasupu Kumkuma", is legitimately under her title and possession now?

Rule
Pasupu1 Kumkuma is defined as a gift, settlement or assignment of land to a daughter. At the time of Manu, a daughter along with her brothers had a right to share in the father's property. With the passage of time, it became a duty of the father to maintain the daughter covering all the reasonable expenses.

Section 122 in The Transfer of Property Act, 1882
122. Gift defined: Gift is 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. Acceptance when to be made.-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.

Section 123. TPA, Transfer how effected.
For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of 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

Section 3 in The Hindu Adoptions and Maintenance Act, 1956

Definitions.-In this Act, unless the context otherwise requires,-

1. The expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy: and Provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family;
    
2. Maintenance includes:
   
   1. In all cases, provision for food, clothing, residence, education and medical attendance and treatment;
   2. In the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage;
3. "Minor" means a person who has not completed his or her age of eighteen years.

Section 17: Indian Registration Act, 1908

1. The following documents shall be registered, if the properties to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, of the Indian Registration Act 1866, or the Indian Registration Act 1871, or the Indian Registration Act 1877, or this Act came or comes into force, namely:
   
   1. Instruments of gift of immoveable property;
   2. Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immoveable property;
   3. Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
   4. Leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
   5. Non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property

The presumption that arises from the legal maxim "possession follows title" arises only where there is no definite proof of possession by anyone else.

Analysis/Application
In the present case, the relevant portions are:

• The plaintiffs led evidence to the effect that Damodar Rao orally gifted the backyard portion of No.13/775 and 13/776, (separated from the main building by a dividing wall) to his sister Rukminibai in the year 1961, by way of 'Pasupu Kumkumam' (a gift made to a daughter or sister, conferring absolute title, out of love and affection, with a view to provide for her); that Rukminibai sold three portions of the gifted site to PW3, plaintiff No.1, plaintiff No.2 in the year 1968 and they were in possession ever since 1968. On the other hand, defendant led evidence denying that the suit property was given to Rukminibai by way of 'Pasupu Kumkumam'.
  
  His vendor Damodar Rao gave evidence that he was the owner of the suit property and he sold it to the defendant under deed dated 7.11.1977 and put him in possession thereof. While plaintiffs alleged that plots were mutated in their names after their purchase, defendant alleged that the suit property purchased by him was a part of plot No.13/776 which stood in the name of Damodar Rao in the municipal records. Neither party produced the order of mutation or any certificate from the municipal authorities, certifying or showing mutation to their names.
   
• Later on, it was discovered that Rukminibai did not have any title deed to the suit property. The case of plaintiffs during arguments was that the gift made in the year 1961, being by way of 'Pasupu Kumkumam' in favour of a sister by a brother, could be oral and did not require a registered instrument. But the property allegedly gifted to Rukminibai was not mutated in the name of Rukminibai in the municipal records, but continued in the name of Damodar Rao even after 1961. Damodar Rao was a resident of Warangal and staying in the house adjoining the suit property. Rukminibai was a resident of Hyderabad.
  
  Therefore, as on the date of sales in favour of the plaintiffs 9.12.1968, Rukminibai had neither any title deed nor actual possession. Nor was the property mutated in her name in the municipal records. The tax paid receipts produced by the plaintiffs related to a period subsequent to the execution of the sale deeds by Rukminibai in their favour and subsequent to the sale by Damodar Rao in favour of defendant. On the other hand, the suit property was sold in favour of the defendant by Damodar Rao who was shown as registered owner in the municipal records and who even according to the plaintiffs was the original owner of the property.
   
• The first appellate court found that the evidence of plaintiffs and their witnesses as to the title of plaintiffs' vendor Rukminibai was sketchy and inconsistent. It referred to three versions as to how Rukminibai got the property. The first version (as per PW1) was that the suit property belonged to Rukminibai's father and he had given it to his daughter Rukminibai by way of 'Pasupu Kumkumam'. The second version (as per PW2) was that after the death of Rukminibai's father, there was an oral partition between K. V. Damodar Rao and Rukminibai and at that partition, the suit property was allotted to Rukminibai.
  
  But both PW1 and PW2 admitted that they did not make any enquiry with Rukminibai about her title. The third version (as per PW4 - Rukminibai) was that Damodar Rao made an oral gift of the plot in her favour by way of 'Pasupu Kumkumam' in the year 1961. She admitted that there was no special occasion for gifting the plot to her in the year 1961, as she was married long prior to 1961.
   
• The suit sites were vacant plots. Both sides admitted that Damodar Rao was the original owner and that entire property stood in his name. The defendant claims title through Damodar Rao. The plaintiffs claim title through Rukminibai who neither has any deed of title nor any document in support of title or possession. Admittedly, there was no mutation in her name. This means that plaintiffs claim title through someone who claimed to be owner in pursuance of an oral gift in the year 1961 without the property being mutated in her name, whereas the defendant claims title from the person who was admittedly the original owner who was registered as owner in the revenue records.

Now we shall begin analysis:

• Rukminibai claimed to have been orally gifted by Damodar Rao orally the backyard portion of No.13/775 and 13/776, (separated from the main building by a dividing wall) in the year 1961, by way of 'Pasupu Kumkumam. Later on, it was discovered that Rukminibai did not have any title deed to the suit property.
  
  The case of plaintiffs during arguments was that the gift made in the year 1961, being by way of 'Pasupu Kumkumam' in favour of a sister by a brother, could be oral and did not require a registered instrument. But the property allegedly gifted to Rukminibai was not mutated in the name of Rukminibai in the municipal records, but continued in the name of Damodar Rao even after 1961. Moving on.
  
  The first appellate court found that the evidence of plaintiffs and their witnesses as to the title of plaintiffs' vendor Rukminibai was sketchy and inconsistent and referred to three versions as to how Rukminibai got the property. The first version was that the suit property belonged to Rukminibai's father and he had given it to his daughter Rukminibai by way of 'Pasupu Kumkumam'.
  
  The second version was that after the death of Rukminibai's father, there was an oral partition between K. V. Damodar Rao and Rukminibai and at that partition, the suit property was allotted to Rukminibai. The third version which was according to Rukminibai herself was that Damodar Rao made an oral gift of the plot in her favour by way of 'Pasupu Kumkumam' in the year 1961. This casts aspersions as to the legitimacy of her claims, along with the lack of official transfer of title and possession of property and subsequent lack of mutation in the municipal records.
   
• To further worsen her case, She admitted that there was no special occasion for gifting the plot to her in the year 1961, as she was married long prior to 1961 which goes against the basic principles of "Pasupu Kumkumam" and Section 3 (b)(ii) in The Hindu Adoptions and Maintenance Act, 1956.
   
• Shifting the focus to Damodar Rao, He gave evidence that he was the owner of the suit property and he sold it to the defendant under deed dated 7.11.1977 and put him in possession thereof. While plaintiffs alleged that plots were mutated in their names after their purchase, defendant alleged that the suit property purchased by him was a part of plot No.13/776 which stood in the name of Damodar Rao in the municipal records.
   
• Both sides have admitted that Damodar Rao was the original owner and that entire property stood in his name. The defendant claims title through Damodar Rao whereas the plaintiffs claim title through Rukminibai who neither has any deed of title nor any document in support of title or possession.

To worsen her case, there was no mutation in her name. This means that plaintiffs claim title through someone who claimed to be owner in pursuance of an oral gift in the year 1961 without the property being officially mutated in her name, whereas the defendant claims title from the person who was in unison form both parties admitted to be the original owner who was registered as owner in the revenue records.

After a clear perusal of the impugned matter, I analyzed and present the following:
Here are some influential case laws and principles with regards to "Pasupu Kukuma" which are helpful with regards to this particular case and with which my analysis has been made.

It was in the case of Gandevalla Jayaram Reddy vs Mokkala Padmavathamma And Others,2 it was held that "Pasupu Kukuma" as defined in P. Ramanatha Iyer's Law Lexicon means a gift, a settlement or assignment of land to a daughter. Inevitably therefore, such a gift of immovable property, the consideration whereof would be love and affection could come within the meaning of Section 123 thereof.

It was contended that gift of immovable property by way of 'Pasupu Kumkuma' to a daughter at the time of marriage given under a document requires stamp duty and registration since it is a gift within the meaning of Section 123 of the Transfer of Property Act, and no oral gift by way of 'Pasupu Kumkuma' is permissible and it must be by a document duly stamped and registered only."

The learned Judge, Ramaswami, J. also observed in Serandaya Pillai And Anr. vs Sankaralingam Pillai And Anr3. that where a transaction is a gift of the immovable property, it should be registered and effected by writing.

Ekbote, J. in his renowned and strong judgement in A. Gangadhara Rao Vs. G. Ganga Rao 4 (AIR 1968 AP 291), refused to accept the contention that a gift made during marriage is not required to be registered by law. He stated his refusal and dissent in these words:

"It is difficult to accept the contention that a gift made at the time of marriage is not required to be in writing by any law. Any such contention would be flying in the face of Section 123, T. P. Act. It may be that under the Traditional Hindu Law no writing for the validity of transfer of property made at the time of marriage was necessary. There was no transaction under Hindu Law which absolutely required a writing.

But after the T. P. Act came into force, to say that the oral gift can be made at the time of marriage by way of Pasupu Kumkuma would be inconsistent with section 123 of T. P. Act. That is a provision applicable to all gifts which transfer Immovable property. It is therefore necessary in order to constitute a valid gift that not only it should be in writing but it must also be registered".

After reading the above judgements, It becomes manifestly clear that in the modern context, it is currently a well settled principle of law that any gift of immovable property to a daughter by the way of 'Pasupu Kumkuma' during marriage is required to be stamped and registered since it is a gift within the ambit of the meaning of S.122 of the Transfer of the Property Act and has to registered within the meaning of S.123 which says that the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. It is not permissible to give away oral gifts by the way of 'Pasupu Kumkuma' as was supposedly done in the present case.

Rukminibai "received" the gift of the immovable property, that is, the land which is specifically backyard portion of No.13/775 and 13/776, by her brother Damodar Rao orally by way of 'Pasupu Kumkumam' in1961. It "conferred" upon her absolute title, out of love and affection, with a view to provide for her, and was legitimate under traditional Hindu law.

However, It was later discovered that her brother Damodar Rao had never actually transferred the possession and title and mutated the name of the alleged new owner Rukminibai in the municipal records, and in effect, the immovable property continued in the name of Damodar Rao even after 1961. Thus, after a thorough read of the above facts, and the current established principles of law and judgements regarding Pasupu Kumkuma'.

I would say that it becomes manifestly clear that in the modern context, it is currently a well settled principle of law that any gift of immovable property to a daughter by the way of 'Pasupu Kumkuma' during marriage is required to be stamped and registered since it is a gift within the ambit of the meaning of S.122 of the Transfer of the Property Act and has to registered within the meaning of S.123 which says that the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses.

It is not permissible to give away oral gifts by the way of 'Pasupu Kumkuma' as was supposedly done in the present case. If Rukminibai wanted a strong title and possession of the gifted property, she should have asked her brother to effect a legitimate transfer of a gift of immoveable property by a registered instrument signed by or on behalf of the him, and attested by at least two witnesses.

The fact doesn't help her that she "received" the property in 1961. She admitted that there was no special occasion for gifting the plot to her in the year 1961, as she was married long prior to 1961. This would contradict the concept of 'Pasupu Kumkumam', which requires a gift, settlement or assignment of land to a daughter by father or brother at the time of marriage. Add to this the fact that along with lack of proper legal documentation, as stated in the case her "evidence" of title and possession was sketchy and inconsistent as she had three versions as to how she got the property.

The presumption that arises from the legal maxim "possession follows title" arises only where there is no definite proof of possession by anyone else. In the present case, after a clear perusal of the facts, it is clearly established that

Damodar Rao was shown as registered owner in the municipal records and who even according to the plaintiffs was the original owner of the property and that title and possession of the entire property stood in his name, despite "gifting" a portion to his sister. His sister on the other hand had neither has any deed of title nor any document in support of title or possession. Admittedly, there was even no mutation in her name in the municipal records.

Therefore, we can safely conclude this analysis by stating that Damodar Rao is the real and undisputed owner of the property, by usage of the legal maxim "possession follows title"

Conclusion
Thus I conclude, that with regards to the facts and circumstances of the present case, in the modern legal scenario, Under Transfer of Property Act 1882 , the property of land, received by Rukminibai from her brother Damodar Rao by way of "Pasupu Kumkuma", is not legitimately under her title and possession, but rather is under the title and possession of her brother Damodar Rao, by usage of the legal maxim "possession follows title", as he has properly proven his title by being the registered owner in the municipal records.

Bibliography:

1. https://blog.ipleaders.in/pasupu-kumkuma-transfer-property
2. https://indiankanoon.org/doc/1727292/
3. https://indiankanoon.org/doc/661638/
4. https://indiankanoon.org/doc/1461158/

Written By: Mohammed Arafat Mujib Khan