Tripura High Court
Sri Abul Kalam Azad vs Sri Ali Ashraf Miah on 15 October, 2020
Equivalent citations: AIRONLINE 2020 TRI 416
Author: Arindam Lodh
Bench: Arindam Lodh
Page 1 of 30
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
RFA. No. 04 of 2017
1. Sri Abul Kalam Azad, son of late Abdul Majid Miah,
resident of West Bank of Jagannath Dighi, P.O. & P.S. R. K.
Pur, Udaipur, District: Gomati Tripura.
.....Appellant
-V E R S U S-
1. Sri Ali Ashraf Miah, son of late Abdul Majid Miah, resident
of village Fotamati (Dakshinpara), P.O. & P.S. R. K. Pur,
Udaipur, District: Gomati Tripura.
2. Smt. Fatema Begam, wife of Sri Amir Hossian, daughter
late Abdul Majid Miah, resident of village Jagannath Dighi
(West Bank) P.O. & P.S. R. K. Pur, Udaipur, District:
Gomati Tripura.
..... Respondents
B_E_F_O_R_E HON'BLE MR. JUSTICE ARINDAM LODH For Appellant(s) : Mr. Arijit Bhowmik, Advocate. For Respondent(s) : Mr. A.K. Bhowmik, Sr. Advocate.
Mr. K. Pandy, Advocate.
Date of hearing : 30.06.2020
Date of delivery of
Judgment & Order : 15.10.2020
Whether fit for reporting : YES
JUDGMENT & ORDER
In impugnment, is the judgment dated 25.11.2016 and decree dated 29.11.2016 in TS (P) 15 of 2015 passed by the learned Civil Judge (Sr.) Division, Gomati District, Udaipur, Tripura, wherein, Page 2 of 30 the suit was decreed preliminary and the plaintiffs & the defendants were declared to be the joint owners in equal shares. The said preliminary decree was granted in the terms as under:
"In the result, I find and it is declared that the plaintiff and defendant No. 1 & 2 each are equal shareholder of the suit land i.e., the plaintiff and defendant No. 1 & 2 are entitled get 1/3rd share each of the suit land. Accordingly, both the parties are directed to amicably partition the suit land by meets and bounds within 20 days failing which any party can move the Court on the next date fixed for final partition of the suit land by appointment of survey commissioner.
Prepare decree accordingly."
[2] The facts of the case as surfaced in the pleadings of the parties and encrypted by the court below may be reproduced hereunder:
"1. This is a suit for partition of the suit land along with a prayer for temporary injunction.
2. The brief fact of the plaintiff‟s case is that the predecessor of the plaintiff and defendants‟ Rabia Khatoon was the original owner of the suit land and she died on 03.03.1993 leaving plaintiff and defendants and her husband Abdul Majid Miah, who subsequently died on 01.03.1995, as legal hairs and, thus, the plaintiff and defendants became the owner of the suit land by way of inheritance and as per Muslim law plaintiff and defendant No. 1 being the sons of original owner entitled to get double share each of the share of defendant No. 2 of the suit land i.e., plaintiff and defendant No. 1 are entitled to get 4/10th Page 3 of 30 share of the suit land each and defendant No. 2 is entitled to get 2/10th share of the suit land but the defendants No. 1 and 2 keeping the plaintiff in dark mutated the suit land in favour of the plaintiff and defendants in equal shares vide MR case No. 201510946 and the suit land is still joint property and no amicable or legal partition was made and the plaintiff requested the defendants on many occasions for amicable partition of the suit land and lastly on 10.09.2015 but the defendants denied to do so. Hence, this suit.
It is also the plea of the plaintiff that on 15.09.2015 the defendants illegally started construction work on the part of the suit land inspite of protest of plaintiff and if construction is completed it will be very difficult to cause partition of the suit land for which the plaintiff filed an injunction petition along with this suit and by order dated 05.0.2016 passed in Civil Misc. No. 83 of 2015 this Court directed and restrained the defendants from constructing any further construction over the suit land until further order and without the leave of the Court till the disposal of this suit.
3. The suit of the plaintiff is contested by defendants No. 1 and
2 by filing separate written statement denying claim of the share of the plaintiff and, inter alia, pleaded that the suit land was orally gifted by the original owner Rabia Khatun during her life time among the plaintiff and the defendants in equal shares and, therefore, the plea of the plaintiff that the plaintiff and defendant No. 1 are entitled to get 4/10th share of the suit land and defendant No. 2 is entitled to get 2/10th share of the suit land is liable to be rejected. It is also pleaded that the plaintiff constructed dwelling house made by half pucca wall fencing and tin roof with wooden structure, pucca floor in the portion 0.05 acre out of 0.14 acres of land in plot No. 2117 and few years back the plaintiff tried to created disturbance in the joint possession of gifted land and the defendant No. 2 on many Page 4 of 30 occasions requested for partition of the suit land but the plaintiff refused to make partition for which the plaintiff filed suit for partition and subsequently, the same was withdrawn due to some defect as the plaintiff illegally claimed other land on the basis of forged deed created by plaintiff in connivance with others and now a criminal case vide R.K Pur P.S. Case No.243/2014 is pending against the plaintiff and the defendant is filing a suit for cancellation of the said forged deed with other relief over their land under other khatian. The defendants also pleaded that in the middle part of the year 2015 the defendant also constructed a dwelling house b y tin fencing and roof over the rest 0.09 acre on the southern part of the plot No. 2117 and the plaintiff suppressing the oral gift filed this false suit and, accordingly, the defendants prayed for dismissal of the suit of the plaintiff."
[3] The learned trial court after hearing the parties to the lis, and having regard to the relevant facts pleaded in plaint and written statement including all other materials brought on record had framed the following issues:
(I) Whether the suit maintainable?
(II) Whether there is any cause of action for filing this suit?
(III) Whether the suit land is gifted by deceased Rabia Khatoon to the plaintiff, defendant No.1 and 2 in equal shares?
(IV) Whether the suit land measuring 1.15 acres or 1.20 acres?
(V) Whether the plaintiff is entitled to get the decree as prayed for and or any other relief/reliefs in this suit?"
[4] The learned trial court took up the issue nos. 1 to 5 together and decided that the suit was maintainable. The court further Page 5 of 30 answered the issue No. 2 as framed, that there was cause of action for filing the suit. While deciding the issue No. 3, the learned trial Judge held that the plaintiff is not legally entitled to get 4/10th share of the suit land and defendant No.2 is entitled to get 2/10th share of the suit land was rejected and further held that the suit land was gifted by Rabia Khatoon, the original owner, in favour of her two sons and one daughter i.e. the plaintiff and the defendants herein in equal shares. Accordingly, the parties are directed for amicable partition of the suit land by meets and bounds within a period of 20 (twenty) days, failing which, any of the parties could move to the Court praying for partition of the suit land by appointment of survey commissioner. [5] In the instant case, the undisputed facts as are depicted by the trial Court is that the gift of the suit land was not reduced into writing, but, it was an oral one.
[6] Heard Mr. Arijit Bhowmik, learned counsel appearing for the appellant (here-in-after referred to as the plaintiff) and Mr. A.K. Bhowmik, learned Sr. counsel assisted by Mr. K. Pandey appearing on behalf of the respondents (here-in-after referred to as defendants). [7] Mr. Arijit Bhowmik, learned counsel for the plaintiff- appellant had raised three issues in order to substantiate the plea of the plaintiff, one of the legal heirs of Rabia Khatoon, that the defendants Page 6 of 30 have failed to fulfil the following three essential requirements for validating gift, viz:-
(i) The gift of the suit land by way of oral declaration was not reduced into writing and did not fulfil the requirements of Section-
123 of Transfer of Property Act and Section-17 of the Indian Registration Act.
(ii) The suit property was not divested completely since the mother had been possessing the suit land physically without any departure from the suit property;
(iii) None of the donee i.e. the plaintiff-appellant as well as the defendant-respondents had accepted the gift.
[8] In addition, Mr. Bhowmik, learned counsel submitted that though mutation of the suit property was recorded in the name of three legal heirs of Rabia Khatoon i.e. the plaintiff and the defendants, but, the plaintiff was in dark as no notice regarding the preparation of khatian (mutation) was served upon him.
[9] Learned counsel for the plaintiff strenuously argued that the oral declaration whereby the suit property was gifted in favour of them, was never acted upon during the life time of their mother, Rabia Khatoon, as would be evident from the fact that the names of the plaintiff and the defendants were mutated after the death of the donor Rabia Khatoon. As such, according to the learned counsel, since the oral gift did not fulfil the essential requirements of "gift", the plaintiff Page 7 of 30 is entitled to get the share which would be the double of the share of his sister, the defendant-respondent No.2, Smt. Fatema Begam. [10] On the other hand, A.K. Bhowmik, learned Sr. counsel assisted by Mr. K. Pandey, learned counsel for the defendant- respondents submitted that the making of gift by way of oral declaration was not required to be reduced into writing under Mohammedan law. He further contended that the suit property was completely divested in favour of the plaintiff-appellant as well as the defendant-respondents herein, during the life time of their mother. According to learned Sr. counsel, three essential requirements of "gift" under Muslim Law were fulfilled and the plaintiff and defendants started to posses the suit property and acquired title in accordance with the terms of the said oral gift. Learned senior counsel further contended that the plaintiff and the defendants had acted upon the gift in compliance with the terms of the gift as determined by their mother Rabia Khatoon.
[11] Mr. Bhowmik, learned Sr. counsel submitted that according to the terms of the gift, the plaintiff as well the defendants would be the owner and possessor of the suit property in equal share which they unequivocally accepted and their ownership and Page 8 of 30 possession were proved by the witnesses who were present at the time of making oral gift by Rabia Khatoon.
[12] Keeping in view the aforesaid submissions of the learned counsels, I have perused the evidence as adduced by the parties to the lis. I have also gone through the judgment delivered by the learned Civil Judge, Sr. Division who has summarized the claims of the plaintiff in the manner as follows:-
"In this case, I find, PW-1, the plaintiff deposed that the suit land is joint property and the plaintiff and defendant No. 1 are entitled to get 4/10th share each of the suit land and defendant No. 2 is entitled to get 2/10th as per Muslim Law as plaintiff and defendant No. 1 are sons and defendant No. 2 is daughter."
[13] In the instant case, the undisputed facts as depicted by the learned trial Court and referred to here-in-above are that the gift of the suit land was not reduced to writing and thereby not registered. As such, there was no written „acceptance‟ and consequently, there was nothing written to suggest that the gift by way of oral declaration by the donor Rabia Khatoon, the mother of the plaintiff and the defendants, was followed by delivery of possession. The questions, thus, fall for consideration are:-
(i) Whether under the Mohammedan law oral gift is valid?
(ii) Whether registration as required under Section 123 of Transfer of Property Act and Section 17 of the Registration Act is sine qua non?Page 9 of 30
(iii) Whether physical departure by the donor or the formal entry by the donee is the requirement of law?
[14] All the questions as raised here-in-above are centered around the essential requirements for a valid "gift" under the Mohammedan Law. As such, I would like to venture upon the law related to "gift".
[15] Section-138 under Chapter-XI has dealt with „gift‟ which defines thus:-
"Para-138. Hiba or gift- a hiba or gift is "a transfer of property‟ made immediately‟ and without any exchange," by one person to another, and accepted by or on behalf of the latter.
„Gift‟ or „Hiba‟ literally means the giving away of such a thing from which the person in whose favour the gift is made may draw benefit. The definition of Hiba or Gift has been given in Kanz al Daquiq in the following words: Hiba is the making of another person owner of the corpus of property without taking its consideration from him."[Al-Nasafi, Abdullah B Mahmud; Kanz al- Daqaiq, Cairo p.352].
"Thus, gift is the transfer of movable or immovable property with immediate effect and without consideration by one person called the donor to another person called the done and the acceptance of the same by one himself or by someone authorized on his behalf, provided that making the gift must totally renounce all his title and rights in the property gifted away of his independent free will.
The basis of the principle of gift is the Prophet‟s saying, "Exchange gifts among yourselves so that love may increase.
Acceptance of gift followed by delivery of possession, are the other essential requirements of gift."Page 10 of 30
[16] Section-123 of the Transfer of Property Act, 1882 (for short, „TP Act‟.), stipulates the manner in which gift of movable property is effected reads as under:-
"Section-123. 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."
[17] Section 122 to 129 of the Chapter VII of the T.P. Act, deal with "gift". By Section 123 of the Act, it is provided that a gift of immovable property must be effected by a registered instrument signed by donor and attested by at least two witnesses". [18] In Paragraph 147 of Mulla's 'Principles of Mohamedan Law, 22nd Edition' [LexisNexis] states thus:-
" 147. Writing not necessary- writing is not essential to the validity of a gift either of movable or of immovable property. In Kamar-un- nissa Bibi V. Hussaini Bibi, the Privy Council upheld a verbal gift."
[19] The above quoted Para simply recognizes the principle that under Mohammedan Law to effectuate a transfer of movable or immovable property by way of gift, writing is not essential which is mandatorily required for a person/donor governed by Hindu Law as envisaged under Section-123 of the T.P. Act and thus, there is Page 11 of 30 apparent distinction between the Muslim Law and the Hindu Law relating to gift. Keeping in mind the established rules of Mohammadan Law, in my opinion, the legislature consciously inserted the saving provision in the T. P. Act as Section-129 exempting the Mohammadan Law from the applicability of certain provisions of the Transfer of Property Act.
[20] Section 129 of the T.P. Act being a saving provision consciously enacted by the legislature excluded the application of the provision of the T.P. Act. Similarly, a mohammedan is not legally bound to comply the requirements as embodied under Section-17 of the Registration Act. Section 129 of the T.P. Act may be reproduced here-in-below for convenience:-
"129. Saving of donations mortis causa and Muhammadan Law.-- Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law"
[21] Therefore, a gift under Mohammedan law is to be effected in the manner prescribed by the Mohammedan law. For Muslims, all that necessary is that firstly, there must be an open declaration or proclamation by the donor in respect of the property he wants to gift in favour of the done/done; secondly, an acceptance of the gift, express or implied, by or on behalf of the done/donee, and thirdly, delivery of possession of the subject of the gift by the donor to Page 12 of 30 the done. Taking over of possession by the donee of the subject-matter of the gift by the done should be either actual or constructive (Ref:-
Section-152) considering various circumstances. Once these essentialities are fulfilled, then, the gift is said to be complete.
[22] After cumulative reading of the relevant Paragraphs/sections as embodied under Chapter-XI relating to gifts, in my considered view, all the essential conditions as envisaged in the preceding Paragraphs are required to be established and proved. To make the gift complete and valid the declaration must be made in open in presence of witnesses or otherwise by way of public statement that he gifted the property in favour of the done and he divested himself of the ownership of the property delivering his possession and the done/donee accepting the same take over the possession of the subject property, either actually or constructively. It is inconceivable that a declaration can be made in secrecy or unilaterally. The principle of oral gift is a typical facility, which is available exclusively to Muslims, but, it does not connote or construe that a Mohammedan can make an oral gift the confines of his house and without the presence of anybody else and agitate the plea that such an oral declaration too fulfills the valid requirements of a gift.Page 13 of 30
[23] The relaxation as provided under Section-129 of T. P. Act exempting the Muslims of proper documentation followed by registration as envisaged under Section-123 of T. P. Act and Section-
17 of Registration Act suggests that when a Mohammedan claims to have the advantage of oral gift, the proof in the form of oral evidence regarding its vital requirements containing declaration, acceptance and delivery of possession as discussed and encrypted in the preceding paragraphs must be cogent, unequivocal and clinching any relapse in this regard is likely to facilitate an individual to trample the rights of other persons to succeed in accordance with law.
[24] Apart from above enunciation of legal positions in regard to the law of gift applicable to Muslims, I would further like to sail through a few authoritative pronouncements to decide the issues involved in this appeal and to examine the merits of submissions of the learned counsel appearing for the parties to the lis. [25] The question as to whether an instrument of gift of immovable property requires registration in view of Section 17(1) (r) of the Registration Act came up for consideration before various Courts.
[26] In Nasib Ali vs. Wajed Ali reported in AIR 1927 Cal 197 argument was advanced before the Division Bench of the Calcutta Page 14 of 30 High Court that a gift deed being not written and registered under the Registration Act is not admissible in evidence. The Calcutta High Court after taking into account various authoritative pronouncements held that a deed of gift by a Mohammedan is not an instrument effecting, creating or making the gift but a mere piece of evidence. [27] However, a full bench of the Andhra Pradesh High Court in Govt. of Hyderabad (Deptt. Of Revenue) v. Tayyaba Begam reported in AIR 1962 AP 199 took a contrary view. Similar contrary view was taken by the Full Bench of the Jammu & Kashmir High Court in Ghulam Ahmad Sofi v. Modh. Sidiq Dareel reported in AIR 1974 J & K 59 and also by the Madras High Court in the case of Amir Khan V. Ghouse Khan reported in (1985) 2 MLJ 136, where the learned Single Bench accepting the views of the Andhra Pradesh High Court and Jammu & Kashmir High Court concluded that though a Mohammedan could create a valid gift orally, if he reduces the same in writing, the gift will not be valid unless it is duly registered. But the Gauhati High Court in Mohd. Hesubuddin v. Mohd. Hesaruddin reported in AIR 1984 Gau 41 following its decision in Jabeda Khatun v. Moksed Ali reported in AIR 1973 GAU 105 accepting the views of Nasib Ali (supra) and held that:-
"a written deed or instrument relating to gift‟ is immaterial for creation of valid gift under the Mohammedan law. The Court held that under Page 15 of 30 Mohammedan law three things are necessary for the creation of a gift . They are;
(i) a declaration of gift by the donor,
(ii) an acceptance of the gift, expressed or implied, by or on behalf of the donee, and
(iii) delivery of possession of the subject of the gift by the donor to the donee."
[28] In Mohd. Abdul Ghani v. Fakhr Jahan Begam reported in (1921-22) IA 195, the Privy Council referred to Mohammedan Law by Syed Ameer Ali had laid down the following three requirements of a valid gift by a Muslim;
(a) manifestation of the wish to give on the part of the donor;
(b) the acceptance of the donee, either impliedly or expressly;
(c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively.
[29] In paragraph 152 of Mulla‟s „Principles of Mohamedan Law‟ it is stated that "a gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels , and the done formally enters into possession".
[30] However, it is noted that in paragraph 152(3) it is stated that "no physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of making the gift. In such a case, the gift may be completed by some overt act by the donor indicating a clear Page 16 of 30 intention on his part to transfer possession and to divest himself of all control over the subject of the gift".
[31] In Hafeeza Bibi & ors vs. Shaikh Farid and ors. reported in (2011) 5 SCC 654 questions relating to gift under Mohammedan law came up for consideration before the Apex Court wherein after taking into account its various past decision had approved the view of the Calcutta High Court in the case of Nasib Ali (supra) as well as the Gauhati High Court and discarded the view taken by the Full Bench of the Andhra Pradesh High Court, Jammu & Kashmir High Court and Madras High Court and it was held that;-
"24. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.
25. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift; such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient.
26. Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words :Page 17 of 30
"Under the Mahomedan law the three essential requisites to make a gift valid : (1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."
27. 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 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.
28. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani1 stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.
29. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is Page 18 of 30 contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.
30. We are unable to concur with the view of the Full Bench of Andhra Pradesh High Court in the case of Tayyaba Begum5. We approve the view of the Calcutta High Court in Nasib Ali3 that a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence, such writing is not a document of title but is a piece of evidence. We also approve the view of the Gauhati High Court in the case of Md. Hesabuddin10 . The judgments to the contrary by Andhra Pradesh High Court, Jammu and Kashmir High Court and Madras High Court do not lay down the correct law."
[32] Now, as regard the facts of the present case, the gift was made orally by Rabia Khatoon in favour of her two sons and one daughter who are the parties to the suit in presence of many persons including D.W-3 & D.W.-4.
[33] The learned trial court has observed that the plaintiff failed to produce a single witness denying the fact of gift of the suit land by the original owner to the plaintiff and the defendants in equal shares. It leads me to have a look at the evidence of the plaintiff. The plaintiff, as the PW-2 deposed that after the death of his parents he became the owner of 2/5th share and the defendant No. 1 is also the owner of 2/5th share and the defendant No. 2 is the owner of 1/5 th share on the suit land. He further deposed in his examination in chief that the defendant Nos. 1 and 2 keeping him in dark jointly made a prayer before the Revenue Authority for mutation of the suit land Page 19 of 30 which was registered as MR. Case No. 201510946 and the Revenue Authority most wrongly and illegally distributed the share of the parties over the suit land equally in violation of Muslim Law. He further deposed that there was no amicable or legal partition in respect of the suit property between the plaintiff and the defendants. To substantiate his claim, the plaintiff deposed that he used to reside at west bank of Jagannathdighi under R. K. Pur police station with his family members and since the suit land is situated at a long distance, it was difficult for him to look after the suit land from his residence. Proceeding further, he deposed that he approached to the defendants to make an amicable partition of the suit land, but they did not do so. According to him, the defendants also did not provide him the original death certificate and survival certificate of his mother which were lying under the custody of the defendant No. 2.
[34] Being confronted with the cross-examination, the plaintiff as PW-1 denied the fact of oral gift in favour him and defendants on 06.12.1992 in presence of my brother Ali Ajjam Miah, Abdul Rashid Miah, Jalil Miah and others of Fotamati and on the same date he himself and the defendants jointly took over the possession of the suit land. The learned trial court has observed that Page 20 of 30 the defendants have been able to establish the fact and circumstance of the fact of gift declaration orally by their mother Rabia Khatoon. [35] It is noticed that the defendants, apart from them, had produced two witnesses which are necessary to be surveyed in brief. In their depositions both the defendants, namely, Ali Ashraf Miah and Smt. Fatema Begam denied the claim of the plaintiff. DW-3, Abdul Rashid Miah has categorically deposed that Rabia Khatoon, during her life time orally gifted the suit land in favour of the plaintiff and the defendants on 06.12.1992 and handed over the possession of the suit land in favour of them simultaneously in presence of elder step brother Md. Ali Ajjam Mia (deceased), Abdul Rasid Miah, Jalil Miah and her brother and many other of Fotamati. According to her, her mother unequivocally declared that she being the daughter and the defendants being her sons would get the suit property in equal 1/3 rd share each. DW-1 further deposed that they jointly took over the possession of the suit land and started to possess their respective shares by metes and bounds but, without any legal partition. However, after a considerable period of death of their mother, their elder brother, the plaintiff-appellant herein, had tried to create dispute to the joint possession over the suit land. She further deposed that she demanded legal partition but the plaintiff was apathetic to her proposal and Page 21 of 30 finally she applied for mutation of the suit land in terms of the oral gift and the authority concerned after observing all formalities and procedures, mutated and recorded the suit land on 1/3rd equal share in the names of the plaintiff and the defendants. She further deposed that the plaintiff had instituted a suit suppressing the oral gift made by their mother Rabia Khatoon who was the original owner of the suit land. Her evidence could not be shaken in her cross-examination by the plaintiff.
[36] DW-2 had deposed in the same language as that of his sister Fatema Begam (DW-1). In his cross-examination Dw-2 denied the suggestion that the suit was never gifted in favour of the plaintiff and the defendants including him in equal shares. [37] DW-3, Abdul Rashid Miah, who deposed that Rabia Khatoon, the mother of the plaintiff-appellant and the defendant- respondents was the sole owner of the entire suit land. He specifically deposed in his examination-in-chief that Rabia Khatoon during her life time orally gifted the suit land in favour of her daughter and two sons and handed over the possession of the suit land to them in the last part of 1992 i.e. 06.12.1992 in presence of Md. Ali Ajjam Mia, elder step brother of the plaintiff and defendants, who is now deceased, he himself along with Jalil Miah and many others of Fotamati village at Page 22 of 30 the time of oral declaration wherein, Rabia Khatoon had expressed her desire that defendant No. 2 and her two sons would get the suit property in equal 1/3rd share each.
[38] Proceeding further, DW-3 has stated that three brothers and sisters jointly took over the possession of the suit land and used to possess the suit land jointly without making legal partition. After the death of Rabia Khatoon, the defendant No. 1 constructed one dwelling house over the suit land. Defendant No. 2 Fatema Begam also constructed house in their respective portion and these constructions were made in the presence and within the knowledge of DW-3, Jalil Miah and others including the plaintiff who himself had shown the place of construction of these houses and the defendants have been enjoying the same within the knowledge of the plaintiff and their relatives including other local persons. He further deposed that since Rabia Khatoon, the original owner being the mother of the plaintiff and the defendants had orally gifted the suit property in favour of them in equal 1/3rd share each. In his cross he denied the suggestion put forth that the suit land was never gifted by Rabia Khatoon in favour of her two sons and one daughter, the plaintiff and the defendants herein.
Page 23 of 30[39] DW-4, Jalil Miah amongst other was also present while Rabia Khatoon declared at the time of the oral gift of the suit property in favour of the plaintiff and the defendant-respondents. He deposed that Rabia Khatoon, being the owner of the suit property gifted the same in favour of her two sons and one daughter, the parties to the suit in front of him and others including Md. Ali Ajjam Mia (deceased), the elder step brother of the plaintiff and the defendants and many others including the plaintiff and the defendants. He further deposed that after the death of Rabia Khatoon, both the defendants and the appellant had constructed their dwelling houses in their respective portion. In cross-examination, the said witness has defended his statement what he had been deposed in his examination-in-chief without any deviation by the plaintiff.
[40] On close scrutiny of the evidence as narrated above, it has become apparent that the plaintiff during his evidence has failed to introduce any witness to substantiate his claim that her mother Rabia Khatoon did not make any oral gift in favour of him and his two brother and sister, the respondents herein. From the very beginning, it is the specific case of the defendants that their mother made an oral gift in presence of them and other witnesses including their elder step brother Md. Ali Ajjam Mia (deceased), Abdul Rashid Miah, Jalil Page 24 of 30 Miah and many other of Fotamati area and they accepted the gift as declared by their mother and took over the possession. [41] In course of trial, the defendants have been able to adduce evidence of Abdul Rashid Miah and Jalil Miah who were present at the time of making oral gift by Rabia Khatoon, the original owner of the suit land, though, the elder step brother had expired by that time. Both DW-3, Abdul Rashid Miah and DW-4, Jalil Miah had categorically supported the case of the defendants as they pleaded in their written statement that the suit land was orally gifted by their mother Rabia Khatoon during her life time divesting the suit property in favour of the plaintiff and the defendants No. 1 & 2 in equal shares. They further supported the case of the defendants that in view of such gift, the plaintiff as well as the defendants took over the possession of the suit land and after the death of Rabia Khatoon and their father they constructed their dwelling house over their respective portion of the suit land. These two witnesses have further categorically deposed that those constructions were made in front of them and the fact of construction was also known to the plaintiff who himself had shown the respective portions over which the defendants would construct their respective dwelling houses. In view of the aforesaid overwhelming evidence in support of the case of the defendants that Page 25 of 30 their mother had unequivocally made an oral gift in favour of the plaintiff and the defendants in equal shares coupled with the delivery of possession has been proved completely.
[42] It reveals from the evidence that while making construction of the dwelling house by the defendants, the plaintiff had never raised any objection. Furthermore, the defendants had prayed for mutation for entering their names in the record of rights before the appropriate authority. Tripura Land Record and Land Reforms Act, 1960, (for short "said Act") provides different stages procedures before preparing finally published "Khatian" i.e. the record of rights (khatian) in favour of any person/persons. As per the prescribed procedure under the said Act, there are four stages and the authority concerned invites objection from the interested parties at one of the four stages. So, I repel the plea of the plaintiff that he was not noticed about the mutation proceeding. Furthermore, since the plaintiff has raised this plea, burden lies upon him to establish the plea that he was not noticed about the mutation proceeding. Accordingly, this plea of the plaintiff is rejected having no foundation. The Record-of-Right was prepared in favour of both the plaintiff and the defendants. Thus, it is aptly clear that the plaintiff was also one of the parties to the mutation proceeding but, he did not respond to the notice inviting Page 26 of 30 objections and resultantly, his right to raise this plea is waived. If the plaintiff was not made a party to the mutation proceedings, then, his name would not have recorded in the khatian as one of the owners and co-sharers of suit land.
[43] In the instant case, what transpires from the evidence of independent witnesses i.e. the DWs-3 and 4 is that there was no reservation in regard to the possession of the suit property by the donor-mother during her life time. On the contrary, there is clear evidence that Rabia Khatoon divested the suit property completely in favour of the plaintiff and the defendants coupled with the delivery of possession. The plaintiff has failed to bring home any sort of evidence to show that his mother Rabia Khatoon had kept the dominion over the subject property of the gift.
[44] Further, the evidence from the side of the defendants makes it manifestly clear that when the gift was declared by Rabia Khatoon in presence of many persons including DW-3 and DW-4, the plaintiff as well as defendants were also present and they accepted the gift. The learned counsel for the plaintiff-appellant strenuously argued that there was no physical handing over of possession. [45] At this juncture, I may gainfully refer the decision of the Calcatta High Court in Abdul Sattar Ostagar & anr. v. Abu Bakkar Page 27 of 30 Ostagar and ors. reported in AIR 1977 Cal 132, where the Division Bench relying upon decision of Sugrabai & ors. v. Mahomedalli Ahmedalli & anr. reported in AIR 1935 Bombay, 34 held that " in order to constitute a valid gift by a father in favour of his minor children it was not necessary to transfer possession but proof of bona fide intention to give should be established". It was further observed that, "since the donor and the done were residing in the same house, it was the subject matter of the deed of gift and it could not be said that it was necessary for the father after executing the deed, to vacate the dwelling house".
[46] The Gujrat High Court in Noorbibi v. Ayeshabibi and ors., reported in AIR 1999 Guj.27: (1998) 3 GLR 2515 has held that:-
"in case of a gift by husband to his wife, who has been living in the house jointly, there is no necessity for formal departure of donor and formal entry of the donee in the property. Implied consent of the donee regarding acceptance of gift can be presumed in such cases and this gift will be perfectly valid".
[47] Again in the case of S.K. Golam Goas V. S.k. Ramjan reported in (1946) CalWN 81, it has been held that:
"under the Mohammedan law where a property, the „subject-matter of a gift‟ is in actual possession of the donor and the donee who are related and the donor declares in unequivocally language that he was divested himself of ownership and authorises the donee to take possession, the character of donee‟s possession which already existed is altered and for all formal purposes, the gift must be considered to have been perfected by such delivery of possession as is feasible in the circumstances"
Principles laid down in this case was further reiterated in the case of Abdul Sattar Ostagar(supra) Page 28 of 30 [48] Madras High Court also had taken similar views in Ayeeshee Bibi v. K.S.A. Mohammad Alim Sahib and ors., reported in AIR 1964 Madras 309 where it was held that:-
"in the case of donor and donee living together, donor physically parting with the property not necessary".
[49] Under Muslim law, no physical departure or formal entry is necessary in the case of gift of immovable property in which the donor and donee are both residing at the time of the gift.
[50] Here, we can refer to the decision of Calcutta High Court in Sahadat Hossain Vs. Sabiha Begam reported in
2016(3)CLJ(CAL)411 wherein the learned High Court had held thus:-
"37. Mr. Gopal Ghosh referred to paragraph 150 where Mullah says that it is essential to the validity of a gift that there should be a delivery of possession of the subject of the gift. The taking of possession of the subject matter of the gift by the donee either actually or constructively, is necessary to complete a gift.
* * * * * * * * * * * * * * * * * *
40. In paragraph 152 of Mulla‟s Principles of Mohamedan Law it is stated that a gift of immovable property of which the donor is in actual possession, is not complete, unless the donor physically departs from the premises with all his goods and the done formally enters into possession. However, in paragraph 152(3) it is stated that no physical departure or formal entry is necessary in the case of a gift of immovable property, in which the donor and the donee are both residing at the time of making the gift. In such a case, the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift.
[51] The proposition of law, which emerges from the aforesaid ratio is that under Mohammedan law in the case of a gift, be Page 29 of 30 it oral or written relating to immovable property between near relations, no physical departure of the donor or formal entry of the donee is necessary, in which both of them reside at the time of making the gift. All that is necessary is the proof of genuine and bonafide intention of the donor to give. In the case in hand, the defendants have been able to prove the fact that their mother Rabia Khatoon during her life time in presence of their relatives and other persons had unequivocally expressed her wish and declared that she had gifted the property described in the schedule of the plaint in favour of the plaintiff and the defendant Nos. 1 & 2 in equal shares, divested herself of ownership and authorised her sons and daughter to take possession and, in consequence thereof, all of them jointly took over the possession of the suit land. There is no convincing evidence in rebuttal adduced by the plaintiff that he and his brother and sister, the defendant Nos. 1 and 2, herein did not take over the control and authority of the gifted property. The defendant Nos. 1 & 2 by way of clinching evidence have been able to establish the factum of oral gift drawing public attention, its acceptance and delivery of possession by their donor-mother and taking of possession of the subject property in perfect alignment with law as discussed and delineated here-in-above.Page 30 of 30
[52] The learned counsel for the appellant tried to persuade this Court that had the suit land been gifted in favour of the plaintiff and the defendant Nos. 1 & 2 in equal shares then, they could have mutated their names immediately after such gift. In my opinion, the law as settled by the Privy Council while deciding the case of Mohd.
Abdul Ghani (supra) that no mutation of names is necessary to complete the transfer of possession in the case of gift still holds good.
In other words, mutation of names is not a valid substitute for delivery of possession [Mohammed Sadiq v. Fakhar Jahan, AIR 1932 PC 13]. Constructive possession by donee‟s acts and conduct is sufficient to hold a complete valid gift.
[53] In the above backdrop, in my considered view, the instant suit filed by the plaintiff and the appeal must fail.
[54] Accordingly, the appeal stands dismissed. The judgment dated 25.11.2016 and decree dated 29.11.2016 in T.S. (P) 15 of 2015 are hereby upheld and affirmed. There shall be no order of costs.
JUDGE A.Ghosh