Jharkhand High Court
Abdul Sattar Ansari vs Mahammad Khurshid Ansari on 4 February, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 416 of 2016
1. Abdul Sattar Ansari, s/o Late Jan Mohammad Ansari (Deleted vide
order dated 23.08.2024)
1(a) Idrish Ansari, age about 64 years, S/o Late Abdul Sattar Ansari,
R/o vill: Sonepurwa; P.O. Polpol; P.S. Daltonganj; Dist. Palamau
... ... Defendant/Respondent/Appellant
2. Rabindra Kumar Singh
3. Dewendra Kumar Singh
Nos. 2 and 3 sons of Ram Neresh Singh
4. Ranju Devi, W/o Munna Singh
Nos. 2 to 4 R/o vill/P.O. Polpol Kala, P.S. Daltonganj, Dist. Palamau
5. Moh. Said Alam Ansari
6. Moh. Brijesh Ansari
7. Ijahar Asharaf @ Izahar Ashraf
All sons of Idrish Ansari R/o Village Sonpurwa P.O/PS Daltonganj,
Dist. Palamau
... ... Intervenors/Respondents 6 to 11/Appellants
-Versus-
1. Mahammad Khurshid Ansari, S/o Abdul Sattar Ansari, R/o vill.
Sonepurwa, PO/PS Daltonganj; Dist. Palamau
... ... Plaintiff/Appellant/Respondent
2. Nurun Nisha age about 73 years wife of Hazi Samsuddin Ansari,
resident of Village- Asehar, P.O. Sagalim, P.S. Panki, District-
Palamau.
3. Rajibun Nisa age about 67 years wife of Nizamuddin Ansari, resident
of Village Kuchala, P.O.- Chhipadohar, P.S.- Barwadih, District-
Latehar.
4. Hasina Khatoon age about 60 years wife of Gulam Bari Ansari,
resident of Village- Ghutam, P.O.- Nawada, P.S. & District- Latehar.
5. Nasima Khatoon age about 57 years wife of Sabir Ahmad, resident of
Village Amua, P.O. & P.S.- Nawdiha Bazar, District- Palamau
... ... Proforma Respondent Nos. 2 to 5
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY 1
---
For the Appellants : Dr. H. Waris, Advocate
: Ms. Reshma Kumari, Advocate
For the Respondent no.1 : Mr. Rajeev Kumar, Advocate
: Mr. Niraj Kumar Singh, Advocate
For the Resp. Nos. 2 to 5 : None
---
Lastly heard on 12th December 2024
15/04.02.2025
1. This appeal has been filed against the judgment and decree dated 24.06.2016 (decree signed on 05.07.2016) passed in Partition Appeal No. 53 of 2013 by the learned District Judge No. VIII, Palamau at Daltonganj, whereby the learned appellate Court has allowed the appeal filed by the plaintiff against the judgment and decree dated 07.09.2013 (decree signed on 16.09.2013) passed by the learned Senior Civil Judge-I, Palamau Daltonganj in Partition Suit No. 53 of 2009.
2. This appeal was admitted vide order dated 16th August 2019 whereby the following substantial question of law has been framed:
"Whether Mohammedan can transfer his occupancy holding by an oral gift (Hiba) and whether the learned court below has failed to properly consider this aspect of the matter?"
Arguments of the appellants
3. Learned counsel for the appellants while referring to the substantial question of law framed by this Court has made alternative submissions. He has submitted that the point so framed can be directed to be decided by the learned appellate Court or the trial Court who may return a finding with regard to that aspect of the matter and in the alternative, it is submitted that even from perusal of the records of this case, the matter can be decided.
4. The learned counsel has submitted that the plaintiff was the son of the defendant. The defendant (the original appellant before this court) expired during the pendency of this case and his legal heirs have been 2 substituted; some of them have been substituted as proforma respondents in this case who have not appeared before this Court in spite of service of notice.
5. The learned counsel submits that a suit was filed stating that the defendant had given the property involved in this case by way of oral gift to one of his sons, the plaintiff, who had also accepted the gift. The learned counsel submits that as per Mahomedan Law, Mulla 20th Edition, Appendix I, which contains the Muslim Personal Law (Shariat) Application Act, 1937, Section 2 thereof deals with application of personal law to Muslims and upon perusal of the same, it is clear that this act is not applicable to agricultural land and under such circumstances, there cannot be any oral gift with regards to agricultural land.
6. The learned counsel has referred to paragraphs 4 and 6 of the evidence of D.W.-2 who was the defendant to submit that the defendant had clearly denied the execution of oral gift and had also stated that he had other children and therefore there was no question of giving half share of the property to the plaintiff. He has also relied upon the evidence of D.W. 3 and has submitted that D.W. 3 had clearly stated that the land was agricultural land and in paragraph 6, he had clearly stated that the defendant had informed him that the plaintiff is unnecessarily stating that the property was gifted to him orally but he had actually never given the property to the plaintiff and consequently no right accrued in favour of the plaintiff.
7. The learned counsel has further referred to the judgment passed by the Hon'ble Patna High Court reported in AIR 1960 Patna 297 (Mt. Bibi Sharifan Vs. Sheikh Salahuddin & Others) and has submitted that the issue which was raised in that case was as to whether a Mahomedan can transfer his occupancy holding by an oral gift and the said issue was answered by stating that the occupancy holding rights cannot be transferred by oral gift. The learned counsel submits that these aspects of the matter have not been property considered and therefore the substantial 3 question of law so framed by this Court is fit to be answered in favour of the plaintiff.
8. The learned counsel has referred to Sections 11 and 23A of the Chotanagpur Tenancy Act, 1908 to submit that those sections are analogous to the corresponding provisions under Bihar Tenancy Act, therefore the aforesaid judgement decided in the context of Bihar Tenancy Act, would apply to the property covered by Chotanagpur Tenancy Act, 1908.
Arguments of the respondent no.1
9. Learned counsel for the respondents while opposing the prayer has submitted that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as the Act of 1937) does not apply to the facts of this case in absence of any declaration made in terms of Section 3 thereof. He has further submitted that as per Section 6 of the Act of 1937, one of the items which was included in repeals was Section 37(2) of The Bengal, Agra and Assam Civil Courts Act, 1887 but such repeal was itself omitted by Act 16 of 1943 meaning thereby Section 37(2) of the aforesaid Act of 1887 has full application.
10. The learned counsel has also relied upon the judgment passed by the Hon'ble Patna High Court reported in 1962 SCC OnLine Pat 85 (Mt. Bibi Maniran Vs. Mohammad Ishaque) and has submitted that in the said case also, the dispute was relating to oral gift of agricultural land and in paragraph 16 of the said judgment, it has been clearly held that the Mahomedan law of gift applies to non-agricultural property on account of Section 2 of the Act of 1937 and to the agricultural land on the ground of justice, equity and good conscience. The learned counsel submits that the principle relating to section 37 of the aforesaid Act of 1887 has been made applicable and therefore the contention of the appellants that the oral gift does not apply to agricultural land is not sustainable and the judgment passed by Hon'ble Patna High Court in the case of "Mt. Bibi Maniran vs. Mohammad Ishaque" (supra) is binding on this Court.
411. The learned counsel for the respondent no.1 has also submitted that there is no applicability of Bihar Tenancy Act in the facts and circumstances of this case. The property involved in this case at best is to be governed by the provisions of Chotanagpur Tenancy Act, 1908. Rejoinder arguments of the appellants
12. Learned counsel appearing on behalf of appellants in response has submitted that the judgment passed in the case of "Mt. Bibi Maniran vs. Mohammad Ishaque" (Supra) does not apply to the facts and circumstances of this case, inasmuch as, the equity is against the respondent no.1 as the claim of the respondent no.1 is that half share of the property was given to the sole plaintiff (respondent no.1 here) through oral gift although there were number of siblings of the respondent no.1 and therefore if the case is decided in favour of the respondent no.1, it would be against the concept of equity, justice and good conscience.
13. The learned counsel has further submitted that there is no applicability of Section 3 of the aforesaid Act of 1937, inasmuch as, it was the respondent no.1 herein who was the plaintiff and applicability of the Act was exempted when it applies to agricultural land and therefore the reliance on Section 3 of the aforesaid Act of 1937 is misplaced. Findings of this Court
14. Partition Suit No. 53 of 2009 was filed by Mohammad Khurshid Ansari, S/o Abdul Sattar Ansari against his father namely Abdul Sattar Ansari, S/o Jan Mohammad Ansari. The property involved in this case is situated within the district of Palamau/Daltonganj in the State of Jharkhand.
15. The suit was filed for a decree of partition of suit land shown in Schedule-A to E and a prayer was also made that by appointment of Survey Knowing Advocate Commissioner, separate Takhta for half land be carved out in favour of the plaintiff and he be put in exclusive possession of the same. The schedule to the suit property from schedule A to schedule E shows that the property was either Tanr or Dhan with 5 respect to the land mentioned in schedule A, B, D and E (agricultural land) and schedule C land was Gharbari.
16. The plaintiff's case was that common ancestor of the plaintiff and defendant was Karamat Mian and the sole defendant namely Abdul Sattar Ansari came in joint possession of the property with his uncles. Upon partition in the year 1990, the sole defendant was allotted separate land and he separated from his uncles in mess and cultivation. The property which was allotted to the defendant (father of the plaintiff) was described in Schedule A to the plaint. Besides this, the defendant (father of the plaintiff) acquired separately property described in Schedule B; the defendant acquired Schedule C property along with his uncles in the Benami name of his wife namely B.B. Rashidan and after her death, it devolved upon the defendant along with his uncles and by subsequent amicable partition by metes and bounds, the land was allotted to the defendant described in Schedule D of the plaint. The defendant (father of the plaintiff) also acquired further land with his uncles and he was allotted upon partition the land described in Schedule -E and all the lands mentioned in Schedule A to E of the plaint were subject matter of the suit. Further case of the plaintiff was that the defendant had two sons namely Md. Khurshid Ansari (plaintiff) and Md. Idrish Ansari and due to family matters, his father Abdul Sattar Ansari separated from the plaintiff and the sole defendant started living with his younger son namely Md. Idrish Ansari. It was further case of the plaintiff that the defendant, due to love and affection with the plaintiff, on 27th November 2003 in presence of witnesses and other relatives orally gifted his half share and house of the suit land to the plaintiff who accepted oral gift from his father and since then, he has been separated in mess, residence and cultivation. It was his further case that after making the oral gift, the defendant without any partition by metes and bounds, gave two acres of land with some portion of house at village Sonepurwa to the plaintiff and plaintiff cultivated the land which was given to him. It was his further case that the remaining 6 half property was kept by the defendant for his younger son Md. Idrish Ansari and the defendant started living with him. It was the case of the plaintiff that in the year 2006 he got a job of Munshi and went outside and thereafter, his cultivation of the entire land was managed by his younger brother and his father (the defendant). It was his further case that the defendant regularly gave produce to the plaintiff after deducting the cost of cultivation of the land and the cause of action arose when the defendant stopped giving produce to the plaintiff. Consequently, the plaintiff asked him for partition but the defendant refused. The plaintiff had asked the defendant on 30.04.2009 for amicable partition of the suit land but the defendant refused the same. It was the case of the plaintiff that he had accepted half of the suit land as orally gifted to him by his father (defendant) and that he had perfected his right and title over the suit land under the provisions of Sunni Seat of Mahomedan Law.
17. The defendant (father of the plaintiff) filed written statement and raised objection regarding maintainability of the suit, suit being barred by provision of Specific Relief Act, Non-joinder of necessary parties and it was pleaded by the defendant in his written statement that the plaintiff had filed the suit, but the female members of the family were not made party in the suit as well as different purchasers of different parts of the suit land were also not made party in the suit. It was asserted that the suit was barred for non-joinder of necessary parties, law of estoppel, waiver and acquiescence. On the merits of the case, it was asserted that there has been no partition made between the father of the plaintiff and his brothers and all the uncles of the defendant (father of the plaintiff) had died much before the year 1980. An objection was also raised that the suit cannot be allowed in the absence of heir of Karamat Mian in whose name the property was recorded. With respect to the gift, the specific stand of the defendant before the learned Court was that the defendant had never made any oral gift (Hiba) in favour of the plaintiff about any portion of the suit land at any point of time and that the plaintiff never came in possession 7 over any of the suit land and therefore, he was not entitled to any part of the suit land for partition on the basis of Hiba. It was also asserted that in the lifetime of the defendant (father of the plaintiff) his son i.e. plaintiff namely Mohammad Khurshid Ansari had no title and he was not entitled to any share during the lifetime of his father and therefore, the plaintiff was not entitled to file suit for any partition. The cause of action for filing the suit was also denied.
18. The learned trial Court framed as many as 7 issues for consideration which included the issues relating to legality and validity of oral gift (Hiba) for which issue nos. IV and V were relevant.
19. The learned trial Court considered the law regarding basic ingredients of oral gift (Hiba). The learned trial Court recorded its finding in paragraph 23 of the judgment and held that the plaintiff failed to prove the fact of Hiba made by the defendant in favour of the plaintiff for any portion of the suit land. Therefore, both the issues were decided against the sole plaintiff and in favour of the sole defendant and the suit was dismissed.
20. The learned First Appellate Court also considered the issue nos. IV and V, as framed by the learned trial Court, as the main issues and took them as the point of determination. The learned appellate Court held that the appellant/plaintiff, has been successful in establishing his case of alleged 'Hiba' dated 27.11.2003, and was successful in discharging the onus, and held that all the three ingredients of 'Hiba' including the actual delivery of possession was complete and proved and the same was irrevocable. The learned appellate Court further held that the respondent (defendant) orally gifted his half land out of the lands mentioned in the Schedule of the plaint to the plaintiff and the plaintiff accepted the gift and allowed the appeal.
21. The basic ingredients of oral gift (Hiba) having been found to be proved by the learned appellate Court, who has reversed the judgment passed by the learned trial Cout, this Court has framed the aforesaid 8 substantial question of law, as to whether the occupancy holding can be subject matter of Hiba (oral gift) under the Mahomedan Law.
22. As per the case of the plaintiff, the gifted property was handed over to his father (sole defendant) and his brother when he went to join as Munshi and they used to give him the produce of the land after deducting the expenses incurred. Hence, it is not in dispute that the subject matter of suit property and also Hiba (oral gift) included agricultural land. It is further not in dispute during the course of argument that the property involved in the present case falls within the area covered and governed by Chotanagpur Tenancy Act, 1908 (hereinafter referred to as the Act of 1908). Sections 11 and 23-A of the Act of 1908 are quoted as under:
"11. Registration of certain transfers of tenures.- (1) When any tenure or portion thereof is transferred by succession, inheritance, sale, gift or exchange, the transferee or his successor in title shall cause the transfer to be registered in the office of the landlord to whom the rent of the tenure or portion is payable. (2) The landlord shall, in the absence of sufficient reason to the contrary, allow the registration of all such transfers. (3) Whenever any such transfer is registered in the office of the landlord he shall be entitled to levy a registration fee of the following amount, namely :-
(a) when rent is payable in respect of the tenure or portion-a fee of two per centum on the annual rent thereof provided that no such fee shall be less than one rupee or more than one hundred rupees, and
(b) when rent is not payable in respect of the tenure or portion-a fee of two rupees.
(4) If an application for the registration of any transfer of a tenure or portion thereof under sub-section (1) is not made within a period of one year from the date of transfer, and if the registration fee, authorised by sub-section (3) is not paid or tendered within that period, the transferee or his successor-in-title shall not be entitled to recover, at any time after the expiry of the said period by suit or other proceeding, any rent which may have become due to him, as the owner of such tenure or portion, between the date of the transfer and the date of the application for registration.9
(5) Nothing in this Section shall,-
(i) validate a transfer of any tenure or portion thereof which, by the terms upon which it is held, or by any law or local custom, is not transferable, or
(ii) affect the right of the landlord to resume a resumable tenure. 23-A. Registration of certain transfers of occupancy holdings.- (1) When an occupancy-holding or any portion thereof is transferred by sale, gift, will or exchange in accordance with the provisions of this Act, the transferee or his successor in title may cause the transfer to be registered in the office of the landlord to whom the rent of the holding or portion thereof as the case may be, is payable. (2) The landlord shall allow the registration of all such transfers, and shall not be entitled, except in the case of a transfer by sale or gift, to levy any registration fee. In the case of a transfer by sale or gift, the landlord shall be entitled to levy a registration fee of the following amount, namely :-
(i) when rent is payable in respect of the holding or portion, a fee of [five percentum] on the annual rent thereof:
Provided that, such fee shall not be less than rupees two and fifty paise or more than rupees two hundred and fifty; and
(ii) when rent is not payable in respect of the holding or portion, a fee of rupees two and fifty paise.
(3) A registering officer shall not register any instrument purporting or operating to transfer an occupancy holding or portion of an occupancy holding by sale or gift unless there is paid to him in addition to any fee payable under the Act for the time being in force for the registration of documents, a process fee of the prescribed amount and the registration fee payable under sub-section (2), together with the costs necessary for the transmission of the registration fee to the landlord:
Provided that a gift to the husband or wife of the donor or to a son adopted under the Hindu Law or to a relation by consanguinity within three degrees of such donor shall not require any registration fee to be paid to the landlord as provided in sub- section (2).
(4) When the registration of any such instrument is complete, the registering officer shall send to the Deputy Commissioner the registration fee and the costs necessary for the transmission of the 10 same to the landlord and a notice of the transfer and registration in the prescribed form, and the Deputy Commissioner shall cause the fee to be transmitted to and the notice to be served on the landlord named in the notice in the prescribed manner.
(5) If any landlord refuses to allow the registration of any such transfer as is mentioned in sub-section (1), the transferee or his successor-in-title may make an application to the Deputy Commissioner, and the Deputy Commissioner shall thereupon, after causing notice to be served on the landlord, make a such inquiry as he considers necessary, and shall if he is satisfied that the transfer is not contrary to the provisions of this Act, pass an order declaring that the transfer shall be deemed to be registered, and may also pass such order as he thinks fit in respect of the costs of any such inquiry."
23. It is further not in dispute that the plaintiff had one younger brother and also had sisters who were not party in the suit.
24. Sections 2 and 3 of The Muslim Personal Law (Shariat) Application Act, 1937 (Act no. 26 of 1937) reads as under:
"2. Application of Personal Law to Muslims.- Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
3. Power to make a declaration.-(1)Any person who satisfies the prescribed authority-
(a)that he is a Muslim, and
(b) that he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872 (9 of 1872), and
(c) that he is a resident of the territories to which this Act extends, May be declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section, and thereafter the provisions of section 11 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.
(2) Where the prescribed authority refuses to accept a declaration under sub-section (1), the person desiring to make the same may appeal to such officer as the State Government may, by general or special order, appoint in this behalf, and such officer may, if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to accept the same."
25. The application of the Act of 1937 as per section 2 clearly excludes its applicability to agricultural land. This is over and above the fact that sections 11 and 23A of the Act of 1908 requires that occupancy holding is to be transferred by registered document.
26. Sections 12 and 26A of Bihar tenancy Act are quoted as under:
"12. Voluntary transfer of permanent tenure. (1) A transfer of a permanent tenure by sale, gift, exchange or mortgage (other than a transfer by a sale in execution of a decree or by summary sale under any law relating to patni or other tenures) can be made only by a registered instrument.
(2) A registering officer shall not register any instrument purporting or operating to transfer by sale, gift, exchange or usufructuary mortgage a permanent tenure unless there is paid to him in addition to any fee payable under the law for the time being in force for the registration of documents, a process-fee of the prescribed amount and a fee (here-inafter called the landlord's registration fee) together with the costs necessary for the transmission of the landlord's registration fee to the landlord.
(3) The landlord's registration fee shall be,-
(a)(i) in the case of a transfer by sale, gift, usufructuary mortgage and exchange, registration fee payable by the land lord may be fixed and notified by State Government time to time;
(ii) xxx
(b) xxx (4) When the registration of any such instrument is complete, the registration officer shall send to the Collector the landlord's registration fee, the costs necessary for the transmission of the same 12 and a notice of the transfer and registration in the prescribed form and the Collector shall cause the fee to be transmitted to, and the notice to be served on, the landlord named in the notice in the prescribed manner.
26A. Transfer and bequest of occupancy-holdings or portions thereof. - (1) Every occupancy-holding or a portion thereof, together with the right of occupancy therein, shall be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property, and all transfers made by sale, exchange or gift and all bequests shall, subject to the provisions of sub-section (2), be binding on the landlord.
(2) Every transfer of an occupancy-holding or a portion thereof together with the right of occupancy therein, by sale, exchange or gift and every bequest of such holding or portion, together with the right of occupancy therein, shall be made in the same manner and subject to the same conditions as a permanent tenure in respect of registration and the payment of landlord's registration fee."
27. Upon perusal of section 11 and 23A of the Act of 1908 when compared to the provisions of sections 12 and section 26A of Bihar Tenancy Act, it is apparent that both provide that gift with respect to occupancy holding is to be undertaken through registered document and there is no exception with regards to Mahomedan.
28. The aforesaid provisions of Bihar Tenancy Act with respect to Hiba (oral gift by Mahomedan) was subject matter of consideration in the judgment passed by Hon'ble Patna High Court in the case of "Mt. Bibi Sharifan Vs. Sheikh Salahuddin and others" reported in AIR 1960 Pat 297 equivalent to 1959 SCC OnLine Pat 64 wherein the sole issue involved in the matter has been recorded in the opening paragraph 1 of the judgment i.e., Whether the Mahomedan can transfer his occupancy holding by an oral gift?
The Hon'ble Patna High Court in the aforesaid judgment with respect to oral gift and the Mahomedan Law held that a Mahomedan can make an oral gift, and, for the validity of such a gift, writing or a registered 13 instrument is not at all necessary. Registration is not one of the essentials of a valid gift, and, what is necessary to complete a gift is the taking of possession of the subject-matter of the gift by the donee, either actually or constructively. After having held as aforesaid, the Hon'ble Court recorded the crucial question which was involved in the case in paragraph 26 i.e., Whether section 26-A read with section 12 of the Bihar Tenancy Act, would override the Mahomedan Law?
29. The Hon'ble Patna High Court also considered the further issue framed in paragraph 30 of the judgement i.e., Whether the rule of Mahomedan Law, that a Mahomedan can make an oral gift, has been abrogated by the Bihar Tenancy Act, as far as a transfer by gift by a Mahomedan of his occupancy holding is concerned.
30. The findings in connection with the aforesaid aspect is in paragraphs 31 and 32 of the aforesaid judgement wherein the Court specifically held that there is no provision in Bihar Tenancy Act that the rule of Mahomedan Law with regard to oral gift would apply to an occupancy holding notwithstanding the provision of section 26A read with section 12 of Bihar tenancy Act to the contrary.
31. Paragraphs 31 and 32 are quoted as under:
"31. Under the Bihar Tenancy Act, before its amendment in 1938, the Proviso to old S. 26C(1) expressly excluded the application of the provisions of S. 26C(1) to an oral gift made by a Mahomedan. Similarly, S. 26E(2)(a) in specific terms excluded an oral gift made by a Mahomedan from its application, as an oral gift even of occupancy holding by a Mahomedan did not then require registration; and, for that reason, S. 26E(2)(b) provided that the time limit required by S. 26E(2) should be counted from the date of the oral gift made by a Mahomedan. Old sections 26C and 26E(2)(a) and (b), therefore, in clear terms expressly excluded an oral gift made by a Mahomedan from their purview. By repealing Ss. 26C and 26E then, the obvious intention of the Legislature was to make the provisions of the Bihar Tenancy Act applicable to oral 14 gifts of occupancy holdings by Mahomedans also, and to do away with the distinction of a Mahomedan and a non-Mahome-dan.
32. The rule of Mahomedan Law, that a Mahomedan can make an oral gift, has not, however, expressly been excluded by the Bihar Tenancy Act from its application. Nowhere in the Bihar Tenancy Act, there is any provision as before to the effect that all or any of its provisions will not apply to an oral gift of an occupancy holding by a Mahomedan. Nor has this rule of Mahomedan Law been either expressly directed to be applied to an oral gift of an occupancy holding by a Mahomedan. There is no provision in the Bihar Tenancy Act either that this rule of Mahomedan Law will apply to an oral gift of an occupancy holding by a Mahomedan, notwithstanding the provisions of Section 26-A, read with Section 12 of the Bihar Tenancy Act, to the contrary."
32. Thereafter, the Hon'ble Court referred to the question whether the said rule of Mahomedan Law, if not expressly directed to be applied to a gift of an occupancy holding by a Mahomedan, nor, expressly excluded by a legislative enactment, has been excluded by implication by the Bihar Tenancy Act. In order to decide the aforesaid question, the Hon'ble Court referred to the various provisions of Transfer of Property Act, 1882 and the latter enactment namely Bihar Tenancy Act, 1885 and held in paragraph 40 that the rule of Mahomedan Law, that a Mahomedan can make an oral gift, must be deemed to have been excluded by implication from its application to a gift of an occupancy holding by a Mahomedan, by the Bihar Tenancy Act. Paragraphs 39 and 40 of the judgment are quoted as under: -
"39. The Bihar Tenancy Act, therefore, as it now stands, applies to all persons, whether Hindus, or, Mahomedans, or, professing any other faith, provided they are landlords, or, tenants in respect of an agricultural tenancy. It makes no distinction between a Mahomedan and a non-Mahomedan. In order to apply and attract the provisions of the Bihar Tenancy Act, what is necessary is that there should be a tenancy for agricultural purposes, and there should exist the relationship of landlord and tenant between the parties in respect of such agricultural lands. Whoever, therefore, is a tenant, irrespective of whether he is a Mahomedan, or, a non- Mahomedan, he will be governed by the Bihar Tenancy Act, in 15 respect of his occupancy holding. Even, therefore, if a Mahomedan is entitled to do a certain thing under the Mahomedan Law in respect of its occupancy holding, he cannot do now anything in contravention of the provisions of Section 26- A of the Bihar Tenancy Act, as far as his occupancy holdings are concerned.
40. For the above reasons, Section 26-A, read with Section 12 of the Bihar Tenancy Act, must be deemed to control the above rule of Mahomedan Law. In my opinion, therefore, the rule of Mahomedan Law, that a Mahomedan can make an oral gift, must be deemed to have been excluded by implication from its application to a gift of an occupancy holding by a Mahomedan, by the Bihar Tenancy Act."
33. The Hon'ble Court further referred to an earlier judgment dated 21.08.1957 passed in the case of "Most. Bibi Umran Vs. Md. Usman"
and observed that the said case was not a case of gift of occupancy holding. It was also held that the rule of Mahomedan Law cannot be said to be a custom, usage or customary right in order to attract the provisions of section 193 of the Bihar Tenancy Act. The Hon'ble Court further recorded its finding that oral gift of occupancy holding was in contravention of section 23A read with section 12 of Bihar Tenancy Act and held such a gift as invalid and void. As already held above, upon perusal of sections 11 and 23A of the Act of 1908 when compared to the provisions of sections 12 and section 26A of Bihar Tenancy Act, it is apparent that both provide that gift with respect to occupancy holding is to be undertaken through registered document and there is no exception with regards to Mahomedan.
34. In the judgment passed by the Hon'ble Patna High Court reported in 1962 SCC OnLine Pat 85: AIR 1963 Pat 229 (Mt. Bibi Maniran vs. Mohammad Ishaque), the subject matter of dispute was in relation to some agricultural plot in Doranda Notified Area Committee, Ranchi which was subject matter of oral gift said to have been made on 26 th September, 1957. In the said judgment, the provisions of section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887 was also taken into 16 consideration. Section 37 of Bengal, Agra and Assam Civil Courts Act, 1887, as quoted in the said judgement in paragraph 10, is as under:-
"10. The expression "rule of Muharnmadan law" covers only such rules as are enforceable in a Civil Court; and the relevant enactment in this State is Section 37 of the Bengal, Agra ad Assam Civil Courts Act, 1887 (hereinafter to be referred to as 'the Civil Courts Act'), which is reproduced below:
"(1) Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Muharnmadan law in cases where the parties are Muhammadans, and the Hindu law in cases where the parties are Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment, been altered or abolished.
(2). In cases not provided for by sub-section (1) or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience."
35. It was noticed that gift was not expressly included in section 37 (1) of Bengal, Agra and Assam Civil Courts Act, 1887 and as per sub-section 2 it has been provided that in cases not provided under sub-section 1 or by any other law for the time being in force, the court shall act according to justice, equity and good conscience.
36. The court considered the two earlier decisions of Patna High Court in paragraph 15 and 16 of the aforesaid judgement and it was held with reference to the Shariat Act of 1937 that the central legislature had no power in 1937 to make any law in respect of agricultural land and consequently, it was held that the Shariat Act of 1937 applied to 'non- agricultural' property but for custom and usage to the contrary, the rule of Mahomedan Law applied to gifts even prior to the enactment of the Shariat Act of 1937. The Hon'ble Court held that the correct position, therefore, is that after the Shariat Act the Mahomedan Law of gift applies to 'non-agricultural' property on account of section 2 of the Act of 1987 and to the agricultural land on the ground of justice, equity and good 17 conscience. The findings of the Hon'ble Court in the said judgement in paragraph 16 is that after the Shariat Act the Mahomedan law of gift applies to non-agricultural property on account of Section 2 of the Shariat Act and to the agricultural land on the ground of justice, equity and good conscience. The finding on the point is quoted as under:-
"16. ..............The correct position, therefore, is that after the Shariat Act the Mahomedan law of gift applies to non-agricultural property on account of Section 2 of this Act and to the agricultural land on the ground of justice, equity and good conscience. Hence, the contention of Mr. Lalnarayan Sinha fails."
37. In the present case, substantial property involved in the suit were agricultural property and it has been held in the case of Mt. Bibi Maniran (supra) that after the Act of 1937, the Mahomedan law of gift applies to non-agricultural property and to the agricultural land on the ground of justice, equity and good conscience. In the present case, there is neither any foundational pleading nor any evidence to show that the oral gift (Hiba) with respect to agricultural property could have been made in favour of the plaintiff (son of the sole defendant) in terms of justice, equity and good conscience. The fact remained that the plaintiff had one full brother and also had sisters and they were never made party in the suit and the oral gift of half share of the suit property was claimed by the plaintiff against his father who was the sole defendant in the case where the other siblings of the plaintiff were not party. The present appellant is 2nd son of the original appellant (the sole defendant before the trial court) and the other respondents in this case are the daughters of the original appellant (the sole defendant before the trial court). The judgment passed in the case of Mt. Bibi Maniran (Supra) does not help the present respondent no.1 in any manner.
38. The substantial question of law involved in this case is squarely covered by the ratio of judgment passed by the Hon'ble Patna High Court in the case of Mt. Bibi Sharifan (Supra) wherein it was held that oral gift (Hiba) under Mahomedan Law is not applicable with respect to 18 'occupancy holding'. Though the case of Mt. Bibi Sharifan (Supra) was decided by referring to sections 12 and 26A of Bihar Tenancy Act, 1887 but this Court has held as above that similar provisions are there in section 11 and 23-A of Chotanagpur Tenancy Act, 1908 which requires that gift with regard to occupancy right is to be registered.
39. Consequently, the sole substantial question of law is decided in favour of the appellants and against the respondent no.1 and it is held that Mohammedan cannot transfer his occupancy holding by an oral gift (Hiba) and the learned Courts below have failed to properly consider this aspect of the matter.
40. Consequently, even if the learned appellate Court held that all the ingredients of oral gift (Hiba) were duly satisfied in the present case with respect to half share of the suit property, the same being unregistered, is of no consequence. Consequently, the decree passed by the learned First Appellate Court [reversing the judgement and decree of the trial court and allocating half share of the suit property to the sole plaintiff (son of the sole defendant) as prayed in the plaint] on the basis of oral gift (Hiba) cannot be sustained in the eyes of law and is accordingly set-aside. The suit stands dismissed.
41. This second appeal is accordingly allowed.
42. Pending interlocutory application, if any, is closed.
43. Let the records received from the learned Court be sent back to the Court concerned.
(Anubha Rawat Choudhary, J.) Pankaj/Mukul/AFR 19