Gauhati High Court
Mozibar Rahman vs Bhanu Nessa & Ors on 28 September, 2015
Author: A.K. Goswami
Bench: A.K. Goswami
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
(F.R.)
RSA No.13/2006
Mozibar Rahman,
Son of Late Dindar Ali,
Village- Soulmari, Mouza- Titapani,
P.S. Baghbor, P.O. Chandmama, Dist- Barpeta.
...... Appellant/Defendant
-Versus-
1. Bhanu Nessa,
D/o. Late Tomez Ali,
Wife of Sorhab Ali,
Village- Barbhita, Mouza- Titapani,
P.S. Baghbor, Dist- Barpeta, Assam.
...... Respondent/Plaintiff
2. Fazal Hoque,
Son of Late Magrab Ali,
Village- Soulmari, Mouza- Titapani,
Dist- Barpeta, Assam.
...... Pro forma Respondent
BEFORE
THE HON'BLE MR. JUSTICE A.K. GOSWAMI
For the appellant : Ms. R. Choudhury, Advocate,
For the respondent : Mr. M. Dutta, Advocate,
Dates of hearing : 21.09.2015 & 28.09.2015.
Date of judgment : 28.09.2015.
JUDGMENT & ORDER
(ORAL)
Heard Ms. R. Choudhury, learned counsel for the appellants/defendant. Also heard Mr. M. Dutta, learned counsel for the respondent No.1/plaintiff.
RSA No.13/2006 Page 1 of 112. This appeal by the defendant is preferred against the judgment and decree dated 15.12.2005 passed by the learned Civil Judge (Sr. Divn.), Barpeta in Title Appeal No.21/2004 dismissing the appeal and upholding the judgment and decree dated 17.05.2004 passed by the learned Civil Judge (Jr. Divn.), No.2, Barpeta in Title Suit No.85/2003, whereby the suit of the plaintiff was decreed.
3. The plaintiff is the only daughter of one late Tomez Ali. It is pleaded that land measuring 1 Bigha 19 ½ Lecha out of 2 Bigha 1 Katha 19 Lecha in Dag No.92 of Patta No.10 of village Soulmari and land measuring 7 Bigha 2 Katha 2 Lecha under Dag No.647 covered by Periodic Patta No.134 of village Barbhita, more fully described in Schedule A and Schedule B, respectively, belonged to Tomez and the plaintiff is the only heir of deceased Tomez. The pleaded case is that the entire land of Schedule A measuring 2 Bigha 2 Katha 19 Lecha was sold by one Abdul Aziz to Magrab Ali and Tomez and after death of Magrab Ali, Fajal Hoque, his heir, who is arrayed as pro forma defendant No.2, had his name mutated in respect of share of land belonging to Magrab Ali. After death of Tomez, she was in possession of the suit land, both Schedule A and Schedule B, and on 01.06.1998, she could learn that the defendant had surreptitiously obtained mutation on 24.06.1976. She immediately filed a petition for cancellation of mutation. However, no action was taken by the Circle Officer, Kalgachia as mutation was granted more than three years before. On 02.09.1998, the defendant, without having any manner of right, title and interest over the suit land, dispossessed the plaintiff. The defendant, inspite of not being an heir of Tomez, obtained mutation by way of inheritance, though the Circle Officer, Kalgachia in his order dated 21.09.1998 in connection with Petition No.691/97-98 filed for mutation of Schedule A land by the defendant had noted that a gift deed being No.5850 dated 28.09.1967 was shown. Accordingly, the suit was filed praying for declaration of right, title and interest and khas possession in respect of the suit land in Schedule A and Schedule B and for issuance of precepts to Revenue Authority for mutation of the name of the plaintiff, partition of Schedule A land and permanent injunction etc.
4. The defendant filed written statement stating that father of the plaintiff brought up and maintained the defendant providing food and shelter and treated him as his son and Tomez gifted the suit land in Schedule B by executing a registered gift deed dated 28.09.1967 because of love and affection and as he treated the defendant like an adopted son. The defendant accepted the gift and in course of time, Schedule B land, which was an annual patta land, was converted to periodic patta land considering possession of the defendant. So far as Schedule A land is concerned, it is pleaded that since the death of father of the plaintiff RSA No.13/2006 Page 2 of 11 on 05.10.1969, he was looking after the property as plaintiff was residing with her husband all along at a different place and she had no connection with the suit land. The Schedule A land was under his exclusive possession, which he was possessing by way of adverse possession from 05.10.1969.
5. Subsequently, plaintiff filed an application for amendment of the plaint to challenge the gift deed. The defendant filed an additional written statement after the plaint was amended. The pro forma defendant had filed a petition supporting the case of the plaintiff.
6. At the stage, it will be relevant to take note of the fact that in the consolidated amended plaint filed, paragraph 3 of the original plaint was not reproduced and both the learned courts below overlooked this aspect of the matter. There was no prayer for any deletion of any paragraph in the application for amendment and amendment was prayed for to include the prayer to challenge the gift deed and corresponding averments in connection thereto to be added in paragraph 2. The original plaint contained six paragraphs and the same was reduced to five paragraphs because of inadvertent deletion of paragraph 3 of the original plaint in the consolidated amended plaint.
7. During trial, plaintiff examined 4(four) witnesses and the defendant examined 3(three) witnesses.
8. The learned Trial Court initially framed 11 issues and thereafter 3(three) additional issues were framed. They are reproduced hereinbelow:
"1. Whether there is cause of action for the suit ?
2. Whether the suit is under valued and plaint is under stamped ?
3. Whether the suit is barred by law of limitation ?
4. Whether plaintiff has right, title and interest over the suit land ?
5. Whether the mutation order dtd. 24.06.76 passed in favour of the defendant in respect of A and B schedule land by C.O. is illegal and void?
6. Whether the plaintiff is entitled to get a decree to issue precept to revenue authority for mutation of the suit land in favour of the plaintiff ?
7. Whether the plaintiff was dispossessed from the suit land by the defendant on 2.9.98 and as such the plaintiff is entitled to get a decree of khas possession over the suit land ?RSA No.13/2006 Page 3 of 11
8. Whether the land shown in schedule B of the plaint was gifted by the Momizuddin vide registered deed no.5850 dtd. 28.09.67 in favour of the defendant ?
9. Whether the defendant acquired right, title and interest over the suit land as shown in schedule A of the plaint by adverse possession ?
10. Whether the plaintiff is entitled to a decree as prayed for ?
11. What other relief or reliefs if any the plaintiff is entitled ?"
ADDITIONAL ISSUES:
"12. Whether the suit is barred by law of limitation ?
13. Whether the gift deed no.5850 dtd. 28.9.67 submitted by the defendant is illegal, void and in operative in the eye of law ?
14. Whether the annual land is not heritable and transferable ? "
9. The plaintiff had exhibited certified copy of Jamabandi in respect of Schedule A land as Ext-1 and certified copy of Chitha of 1958-65 as Ext-2. The gift deed was exhibited by the defendant as Ext-'ka' apart from some other documents.
10. Issue Nos.4,5,8,9 and 12 were taken up for consideration together by the learned Trial Court. The learned Trial Court recorded the finding that claim of adverse possession made by the defendant is baseless as there is no evidence on record to support the plea of adverse possession. The learned Trial Court negated the claim put forward by the defendant on the basis of Ext-'ga', mutation order dated 24.06.1976, whereby mutation was accorded to the defendant on the basis of inheritance holding that when the defendant was not the son of Tomez, mutation granted, is, ex facie, illegal and inoperative. In respect of Ext-'kha', the letter dated 16.09.1998 issued by the Government in respect of conversion of Schedule B land from annual patta land to periodic patta land, the learned Trial Court noted that the name of the defendant was recorded therein as son of Tomez and thus, the learned Trial Court opined that such order was obtained by the defendant by misleading the authority. The learned Trial Court held the gift deed to be illegal as the defendant failed to prove the genuineness of the gift deed by examining the witnesses. With regard to the question of possession in respect of the suit land, on the basis of the evidence on record, the learned Trial Court concluded that the plaintiff was dispossessed by the defendant from Schedule B land and that plaintiff still continued to retain possession in respect of Schedule A land. With such findings recorded, the learned Trial Court decreed the suit of the plaintiff without the relief of recovery of khas possession in respect of Schedule A land.
RSA No.13/2006 Page 4 of 1111. The learned lower Appellate Court, while affirming the judgment of the learned Trial Court, noted that the defendant had stated in his evidence as DW-1 that his mother was married to late Tomez and that the defendant could not inherit any property belonging to Tomez as Mahomedan Law does not recognise adoption.
12. The second appeal was admitted to be heard by an order dated 03.03.2006 on the following substantial question of law:
"Whether the finding of the courts below, as regards the deed of gift, is per se bad in law and perverse ?"
13. Ms. R. Choudhury, learned counsel for the appellant has submitted that the mother of the defendant married Tomez at a later point of time and the defendant resided along with his mother in the house of Tomez. Tomez treated him like a son and realizing that there is no concept of adoption in Mahomedan Law, in order to protect the well being of the defendant and to give him some property which he could not have inherited, executed a deed of gift in respect of Schedule B property and the learned courts below did not really consider the validity of the gift made by Tomez in favour of the defendant in the correct perspective. According to her, though writing is not required for a Mahomedan to gift a property, in the instant case, a gift deed was drawn up and was also registered. Gift was accepted and possession was delivered to the defendant, and he continued to remain in possession and such state of affairs is manifest from the evidence of DW-3, the Gaonbura of the village. Therefore, there being a valid gift, the learned courts below committed manifest illegality in decreeing the suit of the plaintiff in respect of Schedule B land. As he was in possession of Schedule B land, which was originally an annual patta land, authorities subsequently converted the same to periodic patta in the name of the defendant and an inference can also legitimately be drawn that the defendant was put in possession after the gift was made in favour of the defendant, she submits.
14. Ms. Choudhury has, in support of her submission, placed reliance on the judgments of M ahboob Sahab -Vs- Syed I sm ail and Ors., reported in (1995) 3 SCC 693 ; Hafeeza Bibi and Ors. -Vs- Shaikh Farid (Dead) By LRs. and Ors., reported in (2011) 5 SCC 654 ; Rasheeda K hatoon (Dead) through LRs. -Vs- Ashiq Ali (Dead) through LRs , reported in (2014) 10 SCC 459 and Habibar Rahm an and Anr. -Vs- M ustt. Um m e Nessa @ K ulsum , reported in (2011) 6 GLR 474 .
RSA No.13/2006 Page 5 of 1115. Mr. M. Dutta, learned counsel for the respondent No.1/plaintiff has submitted that there was no pleading by the defendant in the written statement that his mother was married to Tomez. Even though some evidence was sought to be led to show that his mother was married to Tomez, the same would have to be excluded from the purview of consideration. The admitted position being that the plaintiff was the only heir of Tomez, the conduct of the defendant in obtaining mutation in respect of the Schedule A land and in conversion of the patta portraying himself as the son of Tomez go to show that the defendant had misled the authorities in order to deprive the only legal heir of late Tomez of the property he had left behind. No evidence was led by the defendant in whose presence gift was made and there is no evidence also to indicate that such so-called gift was accepted and delivery of possession effected. It is contended that the ingredients of a valid gift was not fulfilled in the instant case. Even in the written statement, there was no pleading regarding compliance of all the essential formalities to constitute a valid gift. None of the witnesses who purportedly witnessed execution of the gift by Tomez were examined to lead credence to his version of execution of a gift deed. In these circumstances, it is submitted by him that no case is made out by the appellant to interfere with the findings of fact recorded by the learned courts below.
16. Mr. Dutta has placed reliance in the case of Jahura Begum & Ors. -Vs- Rupjahan Begum & Ors., reported in 2012 (3) GLT 934 .
17. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
18. Section 122 of the Transfer of Property Act, 1882, (for short, "the TP Act") defines gift as a transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called a donor to another, called a donee, and accepted by or on behalf of donee. Such acceptance must be made during the lifetime of the donor and while he still capable of giving.
19. Section 123 of the TP Act lays down the manner in which gift of immovable property may be effected. It reads thus:
"11. 123. Transfer how effected - For the purpose of making a gift of immovable 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.RSA No.13/2006 Page 6 of 11
For the purpose of making a gift of movable 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."
20. Thus, section 123 of the TP Act provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of donor, attested at least by two witnesses.
21. Section 129 of the TP Act is very material for the purpose of this case and therefore, the same is quoted hereinbelow:
"129. Saving of donations mortis causa and Muhamedan Law - Nothing in this Chapter relates to gifts of movable property made in contemplation of death or shall be deemed to affect any rule of Muhamedan Law."
22. Section 129, thus, provides that nothing in Chapter VII relates to gift of movable property made in contemplation of death or shall be deemed to affect any rule of Mahomedan Law.
23. Therefore, in case of a gift by a Mahomedan, provisions of the TP Act will not be applicable and the gift will be governed by his Personal Law.
24. At this stage, it will be appropriate to take note of concept of gift under Mahomedan law. Chapter XI of Mulla's Principles of Mahomedan Law (20th Edition) is devoted to gifts and it says that 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. Every Mahomedan of sound mind and who is a major may dispose of his property by gift. There are three essentials of a gift recognized by Mahomedan Law and the same is delineated under Section 149 of Principles of Mahomedan Law. Section 149 reads as follows:
"149. The three essentials of a gift It is essential to the validity of a gift that there should be (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 as mentioned in Section 150. If these conditions are complied with, the gift is complete."RSA No.13/2006 Page 7 of 11
25. Section 150 deals with delivery of possession and it provides that it is essential to the validity of a gift that there should be delivery of such possession as the subject of the gift is susceptible of. The taking of possession of the subject-matter of the gift by the donee, either actually or constructively, is necessary to complete a gift.
26. In M ahboob Sahab (supra), the Apex Court had held that gift under Mahomedan Law is not required to be in writing and consequently, need not be registered under the Registration Act, 1908. It was also held that only on proof of fulfillment of essential conditions, the gift becomes complete and valid. In case of possession of immovable property in possession of the donor, he should completely divest himself physically of the subject of gift. It was stated as under:
"5. Under Section 147 of the Principles of Mahomedan Law by Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express 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 as mentioned in Section 150. If these conditions are complied with, the gift is complete.
Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only the gift is complete. Section 152 envisages that where the donor is in possession, 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 donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. No evidence has RSA No.13/2006 Page 8 of 11 been adduced to establish declaration of the gift, acceptance of the gift by or on behalf of the minor or delivery of possession or taking possession or who had accepted the gift actually or constructively. Admittedly he was in possession and enjoyment of the property till it was sold to the appellant. Equally, in Mohammedan law mother cannot act nor be appointed as property guardian of the minor. Equally, she cannot act as legal guardian."
27. In Hafeeza Bibi (supra), the Apex Court had laid-down that the rules of Mahomedan Law do not make writing essential to the validity of gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. The donee may choose to record the transaction in writing but merely because the gift is reduced to writing by a Mahomedan instead of it having been made orally, such writing does not become a formal document or instrument of gift. The nature and character is not changed because of the gift having been made by a written instrument or document. While the form is immaterial, it is essential under the Mahomedan Law that the three indispensable sine qua non norms for a valid gift are in existence. It was stated as follows:
"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 Rasheeda K hatoon (supra), the Apex Court held as follows:
"17. From the aforesaid discussion of the propositions of law it is discernible that a gift under the Muhammadan law can be an oral gift and need not be registered; that a written instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan law three essential features, namely, (i) RSA No.13/2006 Page 9 of 11 declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act."
29. This Court in Habibar Rahm an (supra), had held that it was not necessary for a Mahomedan to register a gift deed for the purpose of validity of the gift. In Jahura Begum (supra), this Court had held that delivery of possession is essential and registration of the gift deed cannot cure the want of delivery of possession.
30. Bearing in mind the principles governing a valid gift under Mahomedan Law as elucidated hereinabove, it is time to consider the present case. It is to be noted that there is no dispute that Tomez was the owner in respect of Schedule A and Schedule B land. There is also no dispute with the fact that the plaintiff was the only issue of Tomez. In the written statement, or in the additional written statement, no plea was taken by the defendant that his mother had contracted marriage with Tomez. There is no categorical averment also that he was residing in the same house hold with Tomez. Only statement made by the defendant was that Tomez brought up and maintained him providing food and shelter. The defendant while examining himself had stated that his mother had married Tomez and started living in the residence of Tomez. Whether someone is a wife of some particular person is a foundational fact which is required to be pleaded. No amount of evidence can be looked into on a plea not taken. Whether or not mother of defendant married Tomez may not be of crucial importance inasmuch as under Mahomedan Law, gift can be made to strangers also. In Ext-'ka', it is recited that the defendant is an adopted son of Tomez and he had gifted the Schedule B land in favour of the defendant. It is recited that the defendant would be entitled to enjoy the gifted property and the defendant would be obliged to look after Tomez. The gift deed does not indicate that delivery of possession had been effected or that gift was accepted. It is indisputable that Tomez was in actual possession of the suit property. Under Section 152 of the principles of Mahomedan Law, a gift of immovable property of which donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels and the donee formally enters into possession. No evidence has been led by the defendant that there was compliance of the aforesaid requirement. Where the donor and donee both reside in the property which is gifted, it may not be necessary for physical departure of the donor and formal entry of the donee to the premises which is subject-matter of gift. Even it is held that defendant also resided with the donor, in which event gift may be RSA No.13/2006 Page 10 of 11 completed by some overt act by the donor indicating a clear intention on his part to transfer possession and divest himself of all control over the subject of gift, such evidence is lacking.
31. DW-2 is a Mondal who deposed in connection with mutation and throws no light on the aspect of validity of the gift. DW-3 did not say that he was a Gaonbura and he identified himself in his deposition as a cultivator. Even if it is assumed as contended by Ms. Choudhury that he was a Gaonbura (village headman), it is not stated by him that pursuant to the gift, Tomez delivered possession to the defendant. Defendant examined himself as DW-1 and he had made a solitary statement that after accepting the gift he was possessing the land. For the purpose of validity of the gift, such evidence will not suffice for fulfilling third condition for valid gift, namely, delivery of possession. There is no other evidence of any other witness demonstrating delivery of possession. There is no evidence how possession was delivered by the donor. Assuming that defendant is in possession after the death of the donor, the same will not fulfil the ingredient of delivery of possession by the donor. Fact that the defendant held himself out as a son of Tomez and on that basis obtained mutation in respect of Schedule A land and conversion of Schedule B land from annual patta to periodic patta, are facets which cannot be ignored.
32. In view of the above discussion, I am of the considered opinion that no interference is called for in this appeal and accordingly, the same is dismissed. No cost.
33. Registry will send back records.
JUDGE Benoy RSA No.13/2006 Page 11 of 11