Tripura High Court
Abul Kalam Azad vs Ali Aswab Miah on 19 September, 2024
HIGH COURT OF TRIPURA
AGARTALA
RSA No.36 of 2022
Abul Kalam Azad,
S/o. Lt. Abdul Majid,
Resident of West Bank of Jagannath Dighi,
P.S- R. K. Pur, Udaipur,
District-West Tripura.
------ Plaintiff Appellant
Versus
1. Ali Aswab Miah,
S/o. Lt. Abdul Majid,
Resident of village Fotamati
P.S - R. K. Pur, Udaipur
District- Gomati Tripura.
2. Smt. Fatema Begum,
W/o- Amir Hossen,
Resident of West Bank of Jagannath Dighi
P.S- R. K. Pur, Udaipur,
District- Gomati, Tripura.
3. Sri Rahamat Ullah Miah
S/o Iddris Miah
4. Ebadulla Miah,
S/o Iddris Miah
Resident of village Fotamati
P.S- R. K Pur, Udaipur
District- Gomati Tripura
------ Defendant-Respondents
For Appellant(s) : Mr. D. R. Chowdhury, Sr. Adv, Mr. D. Debnath, Adv, Mr. S. Sarkar, Adv.
For Respondent(s) : Mr. S. M. Chakraborty, Sr. Adv, Mr. Suman Bhattacharjee, Adv, Ms. P. Chakraborty, Adv.
Date of hearing : 12.09.2024
Date of delivery of
Judgment & Order : 19.09.2024
Whether fit for
reporting : YES
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is directed challenging the judgment dated 12.05.2022 and decree dated 18.05.2022 delivered by Learned Page 2 of 27 Addl. District Judge, Gomati District, Udaipur in connection with T.A. No.2 of 2018. By the said judgment, Learned 1st Appellate Court has upheld the judgment dated 18.01.2018 and decree dated 31.01.2018 delivered by Learned CJM cum Civil Judge(Sr. Div.), Gomati District, Udaipur in connection with T.S.(P) No.5 of 2017.
2. Heard Learned Senior Counsel Mr. D. R. Chowdhury assisted by Learned Counsel Mr. D. Debnath and Learned Counsel Mr. S. Sarkar for the appellant and also heard Learned Counsel Mr. Suman Bhattacharjee for the respondent-defendants.
3. Before proceeding with the merit of this appeal let us discuss about the subject matter of the dispute amongst the rival parties before the Learned Trial Court. The present appellant as plaintiff filed one suit before the Court of Learned Civil Judge(Sr. Div.), Gomati JudicaiDistrict, Udaipur for a decree of partition which was numbered as T.S(P) No.5 of 2017.
4. The gist of the case of the appellant, in short, was that, one Abdul Majid being the sole owner and possessor of land measuring 1.88 acres as described in schedule 'C' of the plaint which was within the land as mentioned in schedule 'A' of the plaint sold to the plaintiff i.e. the appellant herein and defendant Nos.1 and 2 i.e. respondent Nos.1 and 2 herein by a registered sale deed vide No.1-710 dated 07.03.1994 and delivered possession of the same to them. Since after the purchase, the plaintiff and the defendant Nos.1 and 2 were in Page 3 of 27 possession of the said land as joint owners and possessors in equal share i.e. 1/3rd share each which is the suit land of that suit. According to the plaintiff, keeping him in dark, the defendant No.1 in connivance with revenue staff obtained a separate khatian No.933 in his name as sole owner and possessor in respect of hal C.S. plot No.2182 land measuring 0.34 acres and hal plot No.2181 land measuring 0.64 acres in total land measuring 0.98 acres which are the part of the land as mentioned in schedule 'C' of the plaint. The plaintiff on so many occasions requested the defendant Nos.1 and 2 for amicable partition of the suit land but they refused. And lastly on 03.05.2017 the plaintiff demanded for amicable partition of the suit land. That time, the defendant No.1 disclosed that he had managed to record the Hal Plot Nos.2182 and 2181 land measuring 0.98 acres in his sole name which was recorded under khatian No.933 and as such, said defendant No.1 refused to make amicable partition of the suit land. Thereafter, the present plaintiff filed the suit praying for a preliminary decree by declaring that the plaintiff and the principal defendant Nos.1 and 2 are the owners of 1/3rd share over the suit land which is described in the schedule 'C' of the plaint.
5. On receipt of summons, the defendant Nos.1 and 2 appeared before the Learned Court and contested the suit by filing their joint written statement denying the plea of the plaintiff in his plaint and also pleaded that the suit was not maintainable. The answering defendants further asserted that Page 4 of 27 the land as mentioned in schedule 'C' of the plaint purchased by the plaintiff and the defendant Nos.1 and 2 jointly by a registered sale deed bearing No.1-710 dated 07.03.1994 from their father Abdul Majid(since dead). It was further asserted that on 07.07.1994 there was an oral amicable settlement amongst themselves that northern portion of land measuring 0.29 acres out of 0.64 acres of land appertaining to R.S. plot and No.2181 and the entire 0.34 acre of land appertaining to R.S. plot No.2182 of the said purchased land was allotted to the defendant No.1 and the plaintiff has got the rest southern portion of land measuring 0.35 acre appertaining to RS plot No.2181. On the same day, the plaintiff considering the poverty of the defendant No.1 verbally gifted the said southern portion of land measuring 0.35 acre in favour of defendant No.1 in presence of Amir Hossen, Abdul Jalil Miah, Ali Assam Miah and Iddris Miah. Accordingly, the defendant No.1 accepted the same and took possession as delivered by plaintiff in favour of said defendant No.1 in presence of defendant No.2 and others and thereby defendant No.1 became the owner in possession of 0.98 acre out of said 1.88 acres of land and accordingly, the said land measuring 0.98 acre was mutated in his name under khatian No.933. It was further submitted that the plaintiff never raised any objection before the revenue authority against the said mutation and since then the defendant No.1 has been possessing the entire land under khatian No.933. It was the plea of the answering defendant Nos.1 and 2 that the plaintiff Page 5 of 27 disobeying/suppressing the fact of oral gift filed the suit to grab the land gifted to the defendant No.1. Hence, the answering defendants by their written statement prayed for dismissal of the suit with costs.
6. The pro-defendant Nos.3 and 4, inspite of receipt of summons did not contest the same as such by order dated 18.07.2017 the suit proceeded ex parte against them.
7. Learned Court below upon the pleadings of the parties framed the following issues by order dated 01.09.2017:
i) Whether the suit is maintainable?
ii) Whether C schedule land of plaint is the joint property of the plaintiff and defendant No.1 & 2?
iii) Whether C schedule land of plaint is partitioned amicably among the plaintiff and defendant No.1 & 2?
iv) Whether plaintiff is entitled to the relief as prayed for and/or any other relief or reliefs in this case?
8. In order to prove the issues both the parties have adduced oral/documentary evidence on record. The present appellant as plaintiff adduced three witnesses including himself and relied upon some documentary evidence which was marked as exhibits. On the other hand, the contesting defendants have adduced three witnesses and relied upon some documents which were also marked as exhibits. For the sake of convenience, the name of the witnesses of the contesting parties and their exhibits are mentioned herein below:
Plaintiff‟s witnesses:
i) PW-1 : Abul Kalam Azad
ii) PW-2 : Shri Subhasis Bandopadhyay
iii) PW-3 : Mrs. Nabanita Majumder Plaintiff‟s Exhibits:
i) Exbt.-1 : Computerized khatian No.933.
ii) Exbt.-2 : Computerized khatian No.1130.Page 6 of 27
iii) Exbt.-3 : Computerized khatian No.49/1.
iv) Exbt.-4 : Computerized khatian No.49/2.
v) Exbt.-5 : Letter dated 13.05.17 issued by SDO (Sub-divisional Magistrate).
vi) Exbt.-6 : Certified copy of khatian No.41/1.
vii) Exbt.-7 : Certified copy of khatian No.41/2.
viii) Exbt.-8 : Authenticated copy of mutation.
ix) Exbt.-9 : Authenticated copy of khatian No.933.
x) Exbt.-10 : Authenticated copy of another khatian No.933.
xi) Exbt.-11 : Authenticated copy of thumb impression register dated 10.01.1994.
xii) Exbt.-12 : Authenticated copy of sale deed No.1-70, dated 10.01.1994.
xiii) Exbt.-13 : Certified copy of sale deed No.1- 709, dated 07.03.1994
xiv) Exbt.-14 : Certified copy of sale deed No.1-
710, dated 07.03.1994.
Defendant‟s witness:
i) DW-1 : Fatema Begam.
ii) DW-2 : Amir Hossen
iii) DW-3 : Jalil Miah.
Defendant‟s Exhibits:
i) Exbt.-A: Certified copy of khatian No.933.
ii) Exbt.-B : Original sale deed No.1-710.
iii) Exbt.-C : Certified copy of plaint of TS 06 of 2017.
9. Finally, on conclusion of trial, the Learned Court below dismissed the suit of the appellant-plaintiff by judgment dated 18.01.2018 and consequential decree dated 31.01.2018. For the sake of convenience, the operative portion of the judgment dated 18.01.2018 runs as follows:
Order In the result, the suit of the plaintiff is dismissed on contest without cost.
The suit is disposed of on contest without cost.
Make necessary entry in the relevant Trial Register.
Prepare decree accordingly and put up before me for signature within 15(fifteen) days from today latest on 02-02-2018.
The record shall be consigned to the Record Room.Page 7 of 27
10. Challenging that judgment and decree, the plaintiff as appellant has preferred first appeal under Section 96 of CPC before the Court of Learned District Judge, Gomati District, Unakoti and the case was endorsed to the court of Learned Addl. District Judge, Gomati, Udaipur for disposal in accordance with law. However, Learned 1st Appellate Court after hearing both the sides by judgment dated 12.05.2022 and decree dated 18.05.2022 dismissed the appeal by upholding the judgment and decree of the Learned Trial Court i.e. Learned Civil Judge(Sr. Div.), Gomati District, Udaipur. For the sake of convenience, I would like to refer herein below the operative portion of judgment dated 12.05.2022 which is as follows:
Order In view of the aforesaid discussion, this Court finds no error or irregularity in the impugned judgment dated 18-01-2018 and decree dated 31-01-2018, passed by the Learned Trial Court in TS(Partition) 05 of 2017 whereby the suit of the plaintiff i.e. the present appellant has been dismissed without cost which is accordingly confirmed and upheld by this Appellate Court. Hence, this Appeal is hereby dismissed being no merits.
Parties are directed to bear their own costs.
Thus the appeal is hereby disposed of on contest.
Prepare decree accordingly.
Send back the L.C. Record along with a certified copy of this judgment and decree.
11. Being dissatisfied with the judgment of the Learned 1st Appellate Court the plaintiff again preferred this appeal under Section 100 of CPC before the High Court. At the time of admission of the appeal by order dated 29.07.2022 this High Court formulated the following substantial questions of law:Page 8 of 27
"A Whether the Learned Courts below failed to appreciate that before legal partition the transfer/gift of the joint property to the Defendant No.1-Respondent by alleged oral gift by specific portion was/is not a valid transfer/gift made by the Plaintiff-Appellant?
B. Whether the plea raised by the Defendant- Respondent No.1 that before making the alleged oral gift of the 1/3rd share of the Plaintiff-Appellant in the suit land being the joint properties was amicably partitioned by way of oral family arrangement can be legally considered where the family arrangement must be nature of a Deed and must be registered also should be registered before giving affect of the Partition by oral and unregistered family arrangement?
C. Whether the Learned Courts below ought to have disbelieved the story of oral gift and Partition by family arrangement of the 1/3rd share of the suit land of the Plaintiff- Appellant to the Defendant-Respondent No.1 and to grant the decree of Partition of schedule-A of the joint property."
12. At the time of hearing of argument of this case, Learned Senior Counsel, Mr. D. R. Chowdhury assisted by Learned Counsel Mr. D. Debnath and Learned Counsel Mr. S. Sarkar first of all drawn the attention of the Court that both the Learned Courts below committed serious error in delivering the judgment for which both the judgments are perverse. According to Learned Senior Counsel, from the contents of the written statement submitted by the respondent Nos.1 and 2 i.e. the defendants of the original suit, it is found that there was no valid partition or family arrangements by registered instrument of the suit properties amongst the rival parties. So, the judgment and decree of the Learned 1st Appellate Court affirming the judgment of the Learned Trial Court cannot be sustained in the eye of law. Learned Senior Counsel further Page 9 of 27 submitted that under Mohammedan law oral gift is valid but until and unless there is any specific boundary or family arrangements by which the land can be identified, there was no scope to dismiss the suit filed by the appellant-plaintiff by the Learned Trial Court. Learned Senior Counsel further referred the provision of Section 17(2)(a) of the Indian Registration Act and submitted that in absence of any valid registered document, there was no scope on the part of the Learned Trial Court to believe the story projected by the respondent Nos.1 and 2 before the Learned Trial Court but the Learned Trial Court did not consider the fate of alleged oral gift and dismissed the suit of the appellant-plaintiff.
13. Learned Senior Counsel Learned Counsel Mr. D. Debnath assisted by Learned Counsel Mr. D. Debnath and Learned Counsel Mr. S. Sarkar referring the Ext.9 and Exbt.12 submitted that the alleged khatian No.933 as relied upon by the respondent No.1 is nothing but a forged and concocted document. Again, referring the relevant MR case Learned Senior Counsel further drawn the attention of the Court that the concerned revenue authority based on fabricated document recorded a portion of suit land in favour of respondent No.1 for which on the basis of fabricated khatian there was no scope to place any reliance upon said Ext.-9 by the Learned Trial Court but the Learned Trial Court did not consider the factual aspects and relied upon the oral testimonies and the said fabricated documents i.e. Exbt.-9 and Exbt.-12 as referred by the Page 10 of 27 respondent-defendant No.1 before the Learned Trial Court. Finally Learned Senior Counsel submitted that in absence of valid partition, there was no scope to transfer any property showing any specific identical portion or in absence of any specific family arrangements by a registered arrangement, there was no scope to place any reliance upon the defence of defendant No.1 i.e. respondent No.1 herein but the Learned Courts below did not consider those aspects and ultimately dismissed the lawful claim of the appellant-plaintiff and urged for allowing this appeal by setting aside the judgment and decree of the Learned 1st Appellate Court.
14. Learned Counsel for the contesting respondents, Mr. Suman Bhattacharjee at the time of hearing of argument strongly resisted the submission made by Learned Senior Counsel, Mr. D. R. Chowdhury and submitted that in the given case both the Courts below gave concurrent findings and there is no infirmity or perversity in the judgment of the Learned Courts below and the Learned Trial Court after considering the oral and documentary evidence on record of the contesting parties rightly dismissed the suit filed by the appellant-plaintiff which was later on affirmed by Learned 1st Appellate Court. Learned Counsel, Mr. Suman Bhattacharjee further submitted that before the Learned Trial Court the present appellant failed to project their case which has been raised before this Court at the time of hearing of argument by the Learned Senior Counsel. So, simply by mere suggestions the appellant-plaintiff could not Page 11 of 27 create any doubt to disbelieve the case of the respondent No.1 and Learned 1st Appellate Court after hearing arguments of both the sides rightly upheld the judgment and decree of the Learned 1st Appellate Court and submitted that the substantial questions of law are related to facts only and here, in the second appeal, there is no scope to consider the facts laid before the Learned Trial Court and submitted that the present appellant has got no merit in the appeal and urged for dismissal of this appeal with costs.
Both the parties have referred few citations at the time of hearing of argument.
15. Admittedly in this case, there is no dispute on record that the suit land measuring 1.88 acres as mentioned in schedule 'C' of the plaint was originally belonged to one Abdul Majid i.e. the predecessor of appellant-plaintiff and the respondent Nos.1 and 2 and said Abdul Majid during his lifetime by a registered deed of sale vide No.1-710 dated 07.03.1994(Exbt.-12) sold said land measuring 1.88 acres to the present appellant and the respondent No.2 for valuable consideration and delivered possession of the same to them. It was the further case of the parties that after purchase they jointly became the owners in possession of the said land measuring 1.88 acres in equal share i.e. owner of 1/3rd share each over the suit land. It was the case of the appellant that no legal or amicable partition or family arrangement was made amongst the appellant-plaintiff and the respondent Nos.1 and 2 Page 12 of 27 over the suit land but the respondent No.2 in connivance with the Revenue Authority vide MR case No.276/95 managed to record the land of the appellant-plaintiff by creating a separate khatian bearing No.933 in the name of defendant No.1 as sole owner and possessor in respect of 0.34 acre of land in CS plot No.2182 and 0.64 acre of land in hal plot No.2181 in his name which is the part of land as mentioned in schedule 'C' of the plaint i.e. the suit land.
16. On the other hand, according to the respondent Nos.1 and 2 that after purchase of the suit land, the appellant-plaintiff and the respondent Nos.1 and 2 possessed the said undivided land by cultivating and also by rearing fish in the pond and enjoyed usufructs therefrom and after 3/4 months of their purchase on 07.07.1994, an oral amicable settlement among themselves in respect of said purchased land was made and as per amicable settlement, land measuring 0.29 acres out of 0.64 acres appertaining to R.S. plot No.2181 and the entire 0.34 acre appertaining to R.S. plot No.2182 of the said purchased land was allotted to the defendant No.1 and the appellant- plaintiff got the rest portion of land measuring 0.35 acres appertaining to R.S. Plot No.2181 out of his share over the purchased land and on the same day, the appellant-plaintiff considering the poverty of the defendant No.1 verbally gifted the said southern portion of 0.35 acres of land in favour of the defendant No.1 in presence of Amir Hossen, Abdul Jalil Miah, Ali Assam Miah and Iddris Miah and the respondent-defendant Page 13 of 27 No.1 accepted the same and took possession over the same land which he made in presence of the respondent-defendant No.2. Thus, the defendant No.1 became the owners in possession of 0.98 acres out of 1.88 acres of land and which was recorded and mutated in khatian No.933 in the name of respondent-defendant No.1. Now here in this appeal, we are to decide as to whether the said alleged oral transfer of land by way of gift measuring 0.35 acres was valid or not in the eye of law. Now let us examine the legal position in this case.
17. Chapter XI of Mulla's Principles of Mahomedan Law deals with gifts. In Section 138, gift is defined which says:
"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."
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 donee and the acceptance of the same by one himself or by some one 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."
From the above definition, it appears that the gift is a transfer of movable or immovable property with immediate effect and without consideration by one person called the donor to another person called the donee and the acceptance of the Page 14 of 27 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.
18. Again in Section 147 prescribes that writing is not necessary in gift which provides as under:
"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:(1880) 3 All. 266, the Privy Council upheld a verbal gift."
From the above, it appears that under Mahomedan law, writing is not essential for the validity of a gift either movable or immovable property. There are three essentials of a gift under Mahomedan Law, namely (1) a declaration of gift by the donor; (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee. If these conditions are fulfilled, the gift is complete. Here in the given case according to the respondent-defendant Nos.1 and 2 that the appellant-plaintiff gifted his share of property in favour of respondent-defendant No.1 in presence of Amir Hossen, Abdul Jalil Miah, Abdul Asad Miah and Iddris Miah, etc.
19. In course of hearing, Learned Senior Counsel for the appellant referred few citations. In Smt. Chanderwati v. Lakhmi Chand and others bearing case No.LPA No.14 of 1975 dated 24.02.1987 reported in AIR 1988 Delhi 13 in para No.8 Hon'ble Apex Court observed as under: Page 15 of 27
"8. A half-hearted argument is addressed by Mr. S. N. Mehta, the learned counsel for the appellant that the document marked „A‟ is merely a recital of the past transaction/oral partition by metes and bounds. In our view, the plaintiffs did not make out a case in the plaint that first oral partition had taken place and possession was taken by metes and bounds including the passage before the execution of the document marked „A‟. The document in the recital itself says that "the same has now been mutually divided by the parties between themselves in equal shares, in the manner hereinafter stated".
No oral evidence was led and no finding of any of the courts below is recorded that any earlier oral partition had taken place or the plaintiffs were given possession of the passage prior to the execution of the document marked „A‟. The allotment of the passage in dispute to the share of the plaintiffs‟ predecessor-in-interest was by virtue of a written document and that document is inadmissible in evidence for want of registration. A partition of immovable property between coparceners or co-owners may be made orally and is not required to be in writing. A document which merely acknowledges or makes an admission, as to prior partition, is not compulsorily registerable. But if there is an instrument effecting a partition of immovable property, as in the present case, it falls under S.17(1)(b) of the Registration Act and is compulsorily registered under that clause. An unregistered document of partition is not admissible in evidence to prove any of the terms contained in the document. An unregistered partition deed is not admissible to show the respective shares of the parties as declared by the document. There is no doubt in our mind that the document marked „A‟ was itself a deed of partition and not a record of earlier oral partition by metes and bounds. It is clear that document marked „A‟ was intended to be a document which was binding on them as a partition deed and which was to be the sole evidence of the terms of such partition. Document marked „A‟ being unregistered cannot be used for establishing as is claimed that the passage on the right side of the left piller of the outer gate shall form part of the share of the plaintiffs and the same being 7‟-4" in width shall run into 44‟ in length where it will form the shape of English letter „L‟ upto its joining the last wall."
Relying upon the aforesaid citation, Learned Senior Counsel Mr. D. R. Chowdhury for the appellant submitted that in the given case, there was no registered deed of partition or family arrangements by showing any specific boundary or clear description of the land. So, the contention of the respondent Page 16 of 27 No.1 i.e. the oral gift was not legally sustainable but the Learned Court below did not consider the same.
20. Learned Senior Counsel Mr. D. R Chowdhury further referred another citation of this High Court reported in 2013(1) TLR 335 (Parimal Ch. Saha and Ors. v. Snehalata Saha and Ors.) bearing case No.RSA No.26 of 2010 dated 22.12.2011 wherein para No.13, this High Court observed as under:
"13. According to law, in a joint property, the right of all co-owners extends to the whole property until and unless it is partitioned by metes and bounds. While the joint ownership is an admitted fact and the plaintiffs claimed that it was not partitioned, the first party defendant, who has been claiming family partition of the suit land, burden lies on him to prove that it was amicably partitioned between the brothers. This burden absolutely lies on the first party defendant alone and the plaintiffs are not required to disprove it. The first appellate court has drawn presumption stating that plaintiffs did not adduce evidence to show that they have also shared money for construction of hut on the suit land. Legally there cannot be such burden on the plaintiffs to prove the fact.
For the argument sake, if it is taken that the first party defendant constructed the hut, it should be presumed that it belonged to all the co-sharers, if the first party defendant cannot prove that there was a partition between the co-sharers. The first party defendant though claimed that there was a partition effected amicably, no date and time is mentioned, even there is nothing as to how the partition was effected and who has measured the suit land and in presence of whom. If there was any such oral partition between the brothers, on which part the share of other co-owners were located? In the absence of any written document of such amicable family arrangement, party defendant was liable to adduce very cogent evidence to prove such partition."
Referring the same, Learned Senior Counsel further submitted that the subject matter of the present appeal is almost similar to the facts as mentioned in the aforenoted case of this High Court and urged for taking note of the citation in deciding the appeal, because in the case at hand, there was no Page 17 of 27 such evidence on record from the side of respondent No.1 that the same arguments have been followed in this case.
21. On the other hand, Learned Counsel for the contesting respondents in course of hearing relied upon few citations. In Ripudaman Singh v. Tikka Maheshwar Chand reported in (2021) 7 SCC 446 bearing case No.Civil Appeal No.2336 of 2021 dated 06.07.2021 wherein in para No.11, Hon'ble the Apex Court observed as under:
"11. The question whether such settlement between the members of the family would require registration or not has come up for consideration before this Corut in a judgment reported in Kale v. Director of Consolidation:(1976) 3 SCC 119 which reads as under: (SCC pp.125-27, paras 9-10) "9. ... The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family Page 18 of 27 arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. ...
* * *
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
„(1)-(3) * * * (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if the bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement‟ " " (emphasis in original) Learned Counsel further referred another citation of Hon'ble the Supreme Court reported in (1976) 3 SCC 119 (Kale and Others v. Deputy Director of Consolidation and others) bearing case No.Civil Appeal No.37 of 1968 dated Page 19 of 27 21.01.1976 wherein in para Nos.7 and 10, Hon'ble the Apex Court and Hon'ble Sarkaria, J observed as under:
"7. In support of the appeal Mr. Garg appearing for the appellants submitted two points of law before us. In the first place he argued that the grounds on which the courts below have not given effect to the family arrangement arrived at between the parties in 1956 culminating in the mutation in 1957 are not legally sustainable. The High Court took an erroneous view of the law in rejecting the compromise on the ground that it was registered. It was argued an oral family arrangement had already taken place earlier and a petition before the Naib Tahsildar was merely for the information of the court for the purpose of mutation of the names of the parties in pursuance of the compromise and, therefore, no question of registration of the compromise in this case arose. Secondly it was contented that even if the compromise was unregistered it would undoubtedly operate as a clear estoppel against the respondents Nos.4 and 5 who having taken benefit thereunder and having remained in possession of the lands for more than seven years cannot be allowed to revoke the compromise.
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.Page 20 of 27
Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will finds no difficulty in giving assent to the same;
(6) Even if the bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
Sarkaria, J.(concurring)- I am at one with my learned Brother that this appeal should be allowed with no order as to costs and that the order dated January 22, 1965 of respondent No.1 quashed, the order dated November 28, 1964, of the Settlement Officer restored, and the revenue authorities directed to attest the mutation in accordance with the antecedent family arrangement which had been orally arrived at between the parties and acted upon for several years. I further agree that the family settlement arrived at by the parties was oral, and the petition filed by them on August 7, 1956 before the Assistant Commissioner, was merely an information of an already completed oral transaction. In other words, the petition was only an intimation to the revenue court or authority that the matters in dispute between the parties had been settled amicably between the members of the family, and no longer required determination and that the mutation be effected in accordance with that antecedent family settlement. Since the petition did not itself create or declare any rights in immovable property of the value of Rs.100 or upwards, it was not hit by Section 17(1)(b) of the Registration Act, and, as such, was not compulsorily registrable. The rest of the reasoning in the judgment of my learned Brother has also my concurrence except that I will reserve my opinion with regard to the alternative proposition, whether this petition - assuming it was compulsorily registrable under Section 17(1)(b) of the Registration Act - could be used to raise an estoppel against any of the parties thereto. Decision of this point, in my opinion, is unnecessary for the disposal of this case."
Thereafter, Learned Counsel referred another citation of Hon'ble the Supreme Court. In Radha Sundar Dutta v. Mohd. Jahadur Rahim and others bearing case No.Civil Appeal No.108 of 1954 dated 18.09.1958 reported in AIR 1959 SC Page 21 of 27 24 wherein in para No.11, Hon'ble the Apex Court observed as under:
"11. Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim "ut res magis valeat qual pereat". What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate „Patni‟, and at the same time reconcile the last two clauses with that construction. Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land comprised in Exhibit B, that no doubt posits the continuance in those persons of the title under the original „Patni‟. But the true purpose of this clause is, in our opinion, not so much to declare the rights of those other persons which rest on statutory recognitioin, but to provide that the grantees under the document should take subject to those rights. That that is the purpose of the clause is clear from the provision for indemnity which is contained therein. Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new „Patni‟ in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other „Patnidars‟ of lot Ahiyapur should such there be, affects that conclusion. We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new Patni."
Referring all the citations, Learned Counsel submitted that since the respondent-defendant No.1 has been able to prove that the appellant-plaintiff made oral transfer after observing all formalities in respect of his share in his favour so in view of the principles of the said citations, no writing was required for showing partition or for showing any family arrangement and as such, the Learned Trial Court rightly dismissed the suit which was rightly affirmed by the Learned 1 st Appellate Court.
22. He further submitted that the contesting respondents by adducing oral evidence on record have been able to establish Page 22 of 27 the fact of oral transfer by the present appellant as plaintiff in his favour which was duly recorded in his favour by the mutation authority and even the present appellant did not challenge the order of mutation to any other forum. So, according to Learned Counsel there was no perversity or infirmity in the judgment of the Learned 1st Appellate Court and as such, he urged for dismissal of appeal with costs.
23. I have gone through the aforesaid citations referred by the parties and also gone through the records of the learned Courts below including the evidence on record of the parties. It appears that to substantiate the issues before the Learned Trial Court, the appellant-plaintiff has adduced three witnesses including the appellant himself and relied upon some documents which were marked as Exbt.1 to Exbt.14. The appellant, as PW- 1 in course of his examination-in-chief by way of affidavit tried to support his version in the plaint. The Contesting respondent- defendants by the art of cross-examination of the said witness could not discard his evidence. Other witnesses of the appellant according to this Court are not relevant for the subject matter of the dispute. Similarly, the respondent Nos.1 and 2 have adduced three witnesses including respondent No.2 Fatema Begum. Respondent No.2 did not turn up before the witness box. DW-1 in her examination-in-chief by way of affidavit tried to support her version in the written statement filed by them before the learned Trial Court and other witnesses i.e. DW-2 and DW-3 Amir Hossen and Abdul Jalil Miah in their Page 23 of 27 examination-in-chief by way of affidavit also tried to support the defence story of the contesting respondents. Those witnesses were also duly cross-examined by the appellant. Although they stated that in their presence the appellant gifted southern portion of land measuring 0.35 acre in favour of the respondent-defendant No.1 but from their evidences I do not find any material to substantiate that the appellant-plaintiff made any oral gift in favour of respondent No.1 because the contesting respondents by their defence story failed to satisfy the requirements of Section 147 i.e. principles of Mahomedan law as stated above.
Furthermore, there is also no evidence on record form the side of contesting respondent No.1 about the time when the oral partition and gift was effected and who measured the land and also in presence of whom. There is also no evidence on record that from the side of the appellant who were present and there was no independent witness in this regard and also the witnesses of the respondent No.1 are also related to each other and which part the share of other co-sharers are located along with specific boundary so as to identify the land.
24. In this regard, Hon'ble the Supreme Court of India reported in (2019) 2 SCC 727 (Jamila Begum (Dead) through Legal representatives v. Shami Mohd. (Dead) through legal representatives and another) bearing case No.Civil Appeal No.1007 of 2013 dated 14.12.2018 in para No.23 made the following observation:
Page 24 of 27
"23. Under the Mohammedan law, no doubt, making oral gift is permissible. The conditions for making valid oral gift under the Mahommedan law are:- (i) there should be wish or intention on the part of the donor to gift; (ii) acceptance by the donee; and (iii) taking possession of the subject-matter of the gift by the donee. The essentials of a valid and complete gift under Mohammedan law have been succinctly laid down in Abdul Rahim v. Sk. Abdul Zabar:(2009) 6 SCC 160 as under: (SCC pp.165-66, paras 13-14) "13. The conditions to make a valid and complete gift under the Mahommedan law are as under:
(a) The donor should be same and major and must be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time of hiba.
(c) If the thing gifted is divisible, it should be separated and made distinct.
(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not gifted i.e. should be free from things which have not been gifted.
(f) The thing gifted should come in the possession of the done himself, or of his representative, guardian or executor.
14. It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee‟s ownership, the same cannot be revoked. The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the delivery of constructive possession of the property to the done would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession." "
From the aforesaid principles, it appears that if the thing gifted is divisible it should be separated and made distinct but here in the given case, there is no such evidence on record from the side of the contesting respondents that the land which according to respondent No.1 gifted to him orally by the appellant was duly separated and it was duly identified and admitted by the appellant.Page 25 of 27
25. Situated thus, it appears that the story as projected by the respondent-defendant No.1 regarding transfer of land measuring 0.35 acre by way of oral gift is not believable and cannot be accepted in the eye of law. Another interesting thing is that as per Exbt.-9, the disputed land which the appellant claimed was recorded in the name of respondent No.1 under khatian No.933 which was marked as Exbt.-9 and on perusal of Exbt.-9, it appears that the land was mutated in his favour vide No.MR. case No.276 of 1995 and on perusal of Exbt.-8, it appears that land of old khatian No.49 was recorded in his favour on the basis of title deed vide No.1-70 dated 07.03.1994 and said deed also has been marked by Exbt.-12 by the Learned Trial Court but on perusal of Exbt.-12, it appears that the sale deed was executed by one Srimanta Kumar Majumder in favour of Phani Bhushan Adhikari and those persons are not the relevant persons for decision of the suit and the land shown in the said deed is in no way connected with the present subject matter of dispute. So, it is surprising as to how the settlement authority on the basis of said Exbt.-12 mutated the land in favour of respondent No.1 vide MR case No.276 of 1995. In course of hearing of argument, Learned Counsel for the contesting respondents failed to give any counter on this point as alleged by the Learned Counsel for the appellant although Learned Counsel took the plea that that order was not challenged.Page 26 of 27
26. Admittedly, it is the settled position of law that khatian does not confer any title on land but on perusal of said Exbt.-9, it appears that the settlement authority or revenue authority without any basis mutated the land in favour of the respondent-
defendant No.1. Learned Trial Court below at the time of delivery of judgment did not consider all those aspects and accordingly dismissed the suit filed by the appellant-plaintiff which in my considered view was perverse and the Learned 1st Appellate Court also in the same line without considering all those relevant facts as mentioned above upheld the judgment of the Learned Trial Court which in my considered view Learned 1st Appellate Court committed serious error in deciding the appeal and in my considered view, this is a fit case which be remanded back to the Learned Trial Court for retrial of the matter and to deliver a fresh judgment on the basis of issues framed. The substantial questions of law in my considered view leans in favour of the present appellant of this case.
27. In the result, the judgment dated 12.05.2022 and decree dated 18.05.2022 delivered by Learned 1st Appellate Court in connection with T.A. No.2 of 2018 affirming the judgment dated 18.01.2018 and decree dated 31.01.2018 delivered by Learned CJM cum Civil Judge(Sr. Div.), Gomati District, Udaipur in connection with T.S.(P) No.5 of 2017 is hereby set aside. The suit is remanded back to the Learned Trial Court with a direction to rehear the suit afresh with the observation that the alleged transfer of property by oral gift was Page 27 of 27 not made in accordance with the principles of Mahomedan Law and to deliver a fresh judgment after taking evidence of both the sides afresh, if required, on the basis of issues framed within a period of 6(six) months from the date of receipt of copy of this judgment. The parties shall appear before the Learned Trial Court i.e. Learned CJM cum Civil Judge (Sr. Div.), Gomati District, Udaipur on 07.10.2024 for further proceeding.
28. With this observation, this appeal is disposed of on contest with costs in favour of the present appellant.
Prepare decree accordingly.
Send down the LCRs along with a copy of this judgment.
Pending application(s), if any, also stands disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.09.20
17:59:45 +05'30'
Deepshikha