Jammu & Kashmir High Court - Srinagar Bench
Mst Taja vs Financial Commissioner And Others on 12 October, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
OWP no.699/2008 Date of order: 12.10.2017 Mst Taja Versus Financial Commissioner and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:
For Petitioner(s): Mr M. A .Qayoom, Advocate For Respondent(s): Mr M. A. Rathore, AAG Whether approved for reporting? Yes/No
1. Financial Commissioner, (Revenue), J&K, Srinagar - respondent no.1 herein, passed an order dated 20th August 2008 on a Reference made by Settlement Commissioner regarding Revision Petition against the order of Naib Tehsildar passed on mutation no.51 dated 7 th April 1981 of village Sangrama and order of Sub Divisional Magistrate Sopore dated 16th March 2004. It is this order of which petitioner is aggrieved at and seeks quashment thereof.
2. Petitioner is sister of Jabbar Malik son of Aziz Malik resident of Sangrama, Tehsil Sopore - respondent no.2 herein. According to petitioner respondent no.2 is bent upon to deprive her of the property left behind by their father, Aziz Malik, who on his death was survived by petitioner, respondent no.2 and Shahmali (wife). Aziz Malik has left behind landed property situated at village Sangrama Tehsil Sopore.
Petitioner claims that at her back and without jurisdiction, Naib Tehsildar, Sangrama, vide mutation no.51, transferred her share in favour of respondent no.2. The moment she acquired knowledge in the year 2002, she filed an appeal against the mutation order before Collector, SDM, Sopore, along with an application for condonation of SWP no. 1718/2017 Page 1 of 7 delay, but the same was dismissed vide order dated 16 th March 2004. Petitioner maintains that she, however, came to know later that Collector, SDM, lacks in jurisdiction to decide the matter. She thereafter filed a revision petition before Settlement Commissioner, Kashmir, Srinagar, against mutation order no.51 as well as against order of Collector, SDM, which was allowed vide order dated 4 th October 2004. Settlement Commissioner, however, referred the matter to respondent no.1 in terms of Section 15(4) of Land Revenue Act. Respondent no.1 declined to accept the Reference made by Settlement Commissioner and dismissed revision petition vide order dated 20th August 2008.
3. Respondent no.1 in his Reply states that petitioner has relinquished her share and to this effect she received due consideration and executed relinquishment deed dated 12th October 1983. Respondent no.2 insists that there is no legal infirmity in the order passed by mutating officer and mutating officer explained petitioner that she would not be deprived for her share in case she was willing to attest mutation in her favour. Petitioner is stated to have expressed her consent and in presence of witnesses, she requested mutating officer that she relinquished from her share and wanted attestation of mutation only in her brother's name. These statements, according to respondent no.2, were recorded in mutation order. It is next urged that petitioner thereafter executed a deed in support of mutation on 12th October 1983, and petitioner, at no stage, threw down the gauntlet on relinquishment deed executed by her and petitioner was not minor at the time of receiving consideration for her share and being competent and major woman, she decided to receive consideration to the full extent and as per prevailing market rates for her share and decided to give relinquishment deed qua her share. The SWP no. 1718/2017 Page 2 of 7 Collector, SDM, is averred to have passed a reasoned order and applied judicial mind.
4. I have heard learned counsel for parties, perused the record and considered the matter.
5. Learned counsel for petitioner states that mutation no.51 is without jurisdiction inasmuch as mutation can be attested when transferee has acquired title of land by inheritance or by way of some other valid mode, i.e. by execution of registered document and in present case land had already been inherited by petitioner and respondent no.2 from their father and mutation to that effect was already attested. He further states that land, inherited by petitioner, could have been mutated in favour of respondent only when petitioner would have executed a registered deed in his favour and mutation order indicates that petitioner was diverted of her rights for two reasons, firstly because she was married outside her father's house and secondly because she made a statement to this effect before Naib Tehsildar that she being married outside father's house, therefore, relinquish her share in favour of her brother. Learned counsel strenuously states that petitioner was a minor unmarried at the time of death of her father and inheritance mutation of her share was duly attested in her favour. After death of father she did not lose her right to inherit, due to her marriage because at that time she had already inherited her share in her father's property and Naib Tehsildar has no jurisdiction to snatch petitioner's property on the basis of a non-existent custom and so-called statement.
6. Per contra, learned counsel for respondent no.2 vehemently argues that petitioner has given already relinquishment of her share and has received due consideration for her share to this effect by way of relinquishment SWP no. 1718/2017 Page 3 of 7 deed dated 12th October 1983 and there is no legal infirmity in the order of mutation.
7. While having glance of order dated 4th October 2004, passed by Settlement Commissioner, J&K, Srinagar, it comes to fore that respondent no.2 has projected that petitioner was married outside and as per customary law her name was rightly removed from the record by the impugned mutation order. The parties in the present controversy are Muslims. Even prior to coming into being of Act No.IV of 2007, the parties were governed by Shri Partap Jammu and Kashmir Laws Consolidation Act, Samvat 1977, which as well unequivocally provided that any question qua succession, special property of females etcetera, the rule of decision was the Muslim Law in case where the parties were Muslims. It is since well settled position of law that the matters pertaining to inheritance are governed by personal law. Thus, parties herein, being Muslims, are governed by Muslim Personal Law, by which daughter has every right to have her share.
8. Now there remains a document that according to respondent no.1 is a relinquishment deed. However, again while having glimpse of order dated 4th October 2004, it has been rightly said by Settlement Commissioner, J&K, Srinagar, that title to immovable property cannot be transferred on the basis of relinquishment of rights made by oral statements by an owner and that too in mutation proceedings inasmuch as such oral statements or admission in oral proceedings does not confer any title.
9. Learned counsel for respondent no.2 has heavily relied upon a document, which, according to respondent no.2, is a relinquishment deed. Its close peep unearths it a notarised document, purportedly executed on 13th October 1983. Such document, in law, does not and SWP no. 1718/2017 Page 4 of 7 cannot change title, more particularly when it relates to immovable property. In this regard it is necessary to be pointed out here that way back in the year 1920 A.D. it was seen that on the authority of some provisions of Standing Order 23-A, there had been general assumption in certain quarters that transfers of land by oral agreements or unregistered deeds, when mutation thereof was sanctioned, were also valid and under such assumption a very large number of transfers of land by oral agreements or unregistered deeds was made and mutations thereof sanctioned. Doubts arose qua correctness of such assumption and such transfers of land by oral agreement or unregistered deeds had been disputed and parties to such transfers believed that transfers made by oral agreements or unregistered deeds were valid. Facing this situation, it was thought pragmatic that such transfers should be avoided in future and accordingly the Transfer of Property Act, 1977 (1920 A.D.) was sanctioned by His Highness the Maharaja Sahib Bahadur, which came into force on 1st day of Baisakh, 1978. It is important to reproduce Section 138 of Transfer of Property Act hereunder because it clinches the matter:
"138. Transfer of immovable property after due registration (1) No transfer of immovable property, except in a case governed by any special law to the contrary, shall be valid unless and until it is in writing, registered and the registration thereof has been completed in accordance with subsection (3) of section 61 of the Registration Act, 1977. (2) No Court shall entertain a suit for pre-emption in respect of transfer of any such immovable property unless the transfer complies with the provision of subsection (1).
(3) No person shall take possession of, or commence to building or building on, any land in the Province of Kashmir which has been transferred or has been contracted to be transferred to him unless and until such transfer becomes valid under the provisions of subsection (1). (4) No person who has obtained a transfer of immoveable property referred to in subsection (1) shall apply for and obtain from any Revenue or Settlement Officer or Court any alteration in any existing entry in any Settlement record or paper, unless such person produces before such officer or Court a duly executed registered instrument, the registration whereof has been completed in the manner prescribed in subsection (1).SWP no. 1718/2017 Page 5 of 7
And no such officer shall alter or cause to be altered any such entry except upon the production of an instrument registered in the aforesaid manner."
10.What springs from Section 138 of the Act is that transfer of immoveable property is valid only after it is effected through a deed, which is duly registered under the provisions of Registration Act. Subsection (3) of Section 138 goes the extra-mile stringent. It in categorical terms enjoins that no person shall take possession of any land in Province of Kashmir, which has been transferred or contracted to be transferred to him unless and until such transfer becomes valid under the provisions of Subsection (1) of the Act. Subsection (3), thus, is a special provision for Kashmir Province only, so it is the duty of the Courts, in Kashmir Province, to see while dealing documents/ instruments / indentures, relating to the land in the Kashmir Province that the requirement of subsection (1) of Section 138 of the Act have been complied with. Transfer of possession relating to such land is valid only when the land is transferred only in accordance with the provisions of Subsection (1) otherwise not. Transfer of possession in violation of such provisions will not create any right or interest in the person who takes possession of land under a document executed in violation of the Section. Having said so, the document relied upon by respondent no.2 does not create any right in him.
11.The Settlement Commissioner, J&K, Srinagar, vide order dated 4th October 2004, has rightly said that immoveable property cannot be transferred on the basis of relinquishment of rights made by oral statement by an owner and that too in mutation proceedings. However, Financial Commissioner (Revenue), oblivious to well settled legal position, has passed impugned order dated 20 th August 2008, which depicts total non-application of mind.
12.It may not be out of place to mention here that fraud avoids all judicial acts, ecclesiastical or temporal, observed Chief Justice Edward Coke of SWP no. 1718/2017 Page 6 of 7 England about three centuries ago. It is the settled position of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law. Such a judgment/decree by the first Court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. The aforesaid observations were made by the Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath and ors (1994)1 SCC 1. Similar observations have been made subsequently by the Supreme Court in Ganpatbhai Mahijibhai Solanki v. State of Gujarat and ors, (2008) 12 SCC 353 and State of Chhattisgarth and ors v. Dhirjo Kumar Sengar, (2009) 13 SCC 600.
13.As a sequel to above discussion, writ petition is allowed and impugned order 20th August 2008 passed by Financial Commissioner (Revenue) - respondent no.1, in which impugned mutation order no.51 has merged, quashed. Disposed of.
14.Record be sent down.
( Tashi Rabstan ) Judge Srinagar 12 October, 2017 Madan I pronounce this judgement under Rule 138(3) of J&K High Court Rules, 1999.
( Sanjeev Kumar ) Judge Srinagar 12 October 2017 Madan SWP no. 1718/2017 Page 7 of 7