Gauhati High Court
2: Zakir Hussain vs On The Death Of Dr.Khurshid Alom ... on 11 August, 2022
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GAHC010176002009
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/11/2009
ON THE DEATH OF MD. KAMRUZ ZAMAN HIS LEGAL HEIRS, JAMILA
BEGUM AND ORS
REPRESENTED BY-
1.1: JAMILA BEGUM
W/O- LATE KAMRUZ ZAMAN
VILL.- JALAH
MOUZA-SILA SUNDARI GHOPA
P.O.- CHANGSARI
DIST.- KAMRUP
ASSAM
PIN- 781101
CONTACT NO. 9864201606
1.2: ZAKIR HUSSAIN
S/O- LATE KAMRUZ ZAMAN
VILL.- JALAH
MOUZA-SILA SUNDARI GHOPA
P.O.- CHANGSARI
DIST.- KAMRUP
ASSAM
PIN- 781101
CONTACT NO. 986420160
VERSUS
ON THE DEATH OF DR.KHURSHID ALOM HIS LEGAL HEIRS SMT. DEEPA
KHURSHID AND ORS
REPRESENTED BY-
1.1:SMTI. DEEPA KHURSHID
W/O- LATE KHURSHID ALAM
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R/O- S.S. ROAD
LAKHTOKIA
GUWAHATI-1
1.2:SRI SHAHEED ALAM
S/O- LATE KHURSHID ALAM
R/O- S.S. ROAD
LAKHTOKIA
GUWAHATI-1
1.3:SMTI. NILOFER KHURSHID HAZARIKA
D/O- LATE KHURSHID ALAM
R/O- S.S. ROAD
LAKHTOKIA
GUWAHATI-1
2:AKHTARA BEGUM
D/O LT. BADRUL HUDA
R/O G.S.ROAD
LAKHTOKIA
GHY-1
3:MOMTAZ BEGUM
D/O LT. BADRUL HUDA
W/O LT. AKRAM HUSSAIN
R/O COL. J.ALI ROAD
LAKHTOKIA
GUWAHATI-1
4:NUR JAHAN BEGUM
D/O LT. BADRUL HUDA
W/O LT. NURUL HUDA
R/O BIDYANAGAR
JALUKBARI
GHY
5:SACHINDRA KR. BORA
S/O RUPRAM BORA
VILL. BORPUKHURI
PO. MISSAMARI
DIST. GOLAGHA
Advocate for the Petitioner : MR. J H SAIKIA (P
Advocate for the Respondent : FOR CAVEATOR
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BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT & ORDER (CAV)
Date : 11-08-2022
Heard Mr. B. C. Das, the learned Senior Counsel assisted by Mr. GA Saikia
for the Appellant and Mr. S Ali, the learned counsel appearing on behalf of the
Respondent.
2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908
challenging the judgment and decree dated 15/9/2008 passed in Title Appeal
No. 59/2006, whereby the judgment and decree dated 15/5/2001 passed by the
Court of the Civil Judge(Sr. Divisiion) No. 1 in Title Suit No. 106/1994 was set
aside.
3. It is relevant to take note of that, this Court vide an order dated 6/3/2009
admitted the instant appeal by formulating a substantial question of law which
reads as under :
(1) Whether the learned First Appellate Court committed error of law
in construing the Exhibits 4, 6 and 7 as documents of family
settlement between the contesting parties ?
4. Thereafter when the instant appeal was taken up for hearing on
12/5/2022, this Court vide an order formulated two more additional substantial
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questions of law which reads as herein under :-
(1) Whether Exhibits 4, 6 & 7 are Relinquishment Deeds or a
Gift Deed in the facts and circumstances of the instant case ?
(2) Whether Exhibits 4, 6 & 7 if construed to be Relinquishment
Deeds would confer any right upon the parties to the suit ?
5. For the purpose of deciding as to whether the said substantial questions of
law so formulated by this Court vide the orders aforementioned are involved in
the instant appeal, it would be relevant to take note of the brief facts of the
instant case, which led to the filing of the instant appeal. For the purpose of
convenience the parties herein are referred to in the same status as they stood
before the Trial Court.
6. The Respondent Nos. 1 to 5 herein as Plaintiffs had instituted a suit which
was registered and numbered as Title Suit No. 106/1994. The case of the
Plaintiffs in the said suit is that the land measuring 18 Bighas 2 Kathas 2 Lechas
under various Dags i.e. Dag Nos. 344, 343, 120, 601 and 684 covered by K.P.
Patta No. 43(of the 1957-64 settlement) of village Borsajai; Mouza-Beltola
originally belonged to one Sakhawat Ali (since deceased). The said Late
Sakhawat Ali had four sons i.e. (1) Samsul Huda, 2. Nurul Huda, (3) Badrul
Huda and (4) Joinal Abedin. Upon the death of Late Sakhawat Ali, each of his
sons had rights over 4 Bighas 3 Kathas ½ Lecha of land. Sometime in the year
1950-51 the land of Patta No. 43 which was earlier Patta No. 36 was put on
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revenue sale in a proceedings being Revenue Sale Case No.51/50-51. Except
Badrul Huda(since deceased), the other sons of Late Sakhawat Ali were not
interested in the land and expressed their unwillingness to take steps for setting
aside the sale. Late Badrul Huda incurred all expenses and got the sale set
aside in the year 1953 in an appeal before the Revenue Tribunal and deposited
the cost of Rs.68.12 paise by Challan No. 639 dated 3/8/1953. It has been
alleged in the plaint that the other brothers of Badrul Huda gave up their claim
and possession over the land and Badrul Huda continued to pay the revenue of
the land. As the sale was set aside, the names of all the sons of Late Sakhawat
Ali remained in the revenue records, though Late Badrul Huda possessed the
entire patta land.
7. Of the four brothers, Nurul Huda died issueless and his wife also died
immediately thereafter. With the death of Nurul Huda the shares of the brothers
increased from 4 Bigha 3 Katha ½ Lecha to 6 Bigha O Katha 14 Lechas as each
of the brothers inherited 1B Bigha 2 Kathas 13½ Lechas upon the death of Late
Nurul Huda. Subsequent thereto, Badrul Huda died leaving behind the plaintiffs
as his heirs and Samsul Huda died leaving behind the Defendant No. 1 as his
sole heir.
8. It was further mentioned that in pursuance to the amicable settlement so
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reached, three documents were executed and registered which were ---1) Deed
of Relinquishment No.7905 dated 4/11/1972 by Late Joynal Abedin (Ext.4), (2)
Deed of Relinquishment No.7904 dated 4/11/1972(Ext.6) by the Plaintiff No. 1
had Deed of Relinquishment No. 7903 dated 4/11/1972 (Ext.7) by the
Defendant No. 1.
9. It is the further case of the Plaintiffs that on the basis of the said deeds,
the Plaintiff's share in respect to the patta was 13 Bighas 4 Kathas 1½ Lechas
which was made out of 4 Bighas 3 Kathas ½ Lechas inherited from Late Badrul
Huda, 6 Bighas 0 Katha 14 Lechas gifted by Lt. Joynal Abedin and 1 Bigha 2
Kathas 13 ½ Lechas which the Plaintiffs inherited as the share of Nurul Huda
and 1 Bigha 2 Kathas 13 ½ Lechas which the plaintiffs acquired on the basis of
the registered Deed of Relinquishment No. 7903 dated 4/11/1972. It was
further mentioned that the Plaintiff's name was duly entered in the Jamabandi
in respect to 13 Bighas 4 Kathas 1½ Lecha. It was also specifically mentioned
that the Defendant No. 1 was left with only 4 Bighas 3 Kathas ½ Lecha in Dag
No. 684.
10. Out of the said land of 13 Bighas 4 Kathas 1½ Lechas the Plaintiff No. 1
sold 1 Bigha 0 Katha 5 Lechas in Dag No. 120 of Patta No. 43 to one Raj Kumar
Mech and Monoj Kumar Mech by a registered deed of sale in the year 1986. The
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Defendant No. 1 thereafter also sold 4 Bighas 3 Kathas 6 Lechas being the
entire land of Dag No. 684 to one Shri Radheshyam Khatoria, Sushil Kr.
Khatoria, Shyam Sunder Bhatia, Ashok Kr. Bhatia and Onkarman Agarwala vide
various registered deeds of sale. The said land which was sold by the Defendant
No. 1 to the above mentioned persons have been specifically described in
Schedule B to the plaint. The further case of the Plaintiff is that after the said
sale made by the Defendant No. 1, he had no other interest over the Schedule A
land. However, the Defendant No. 1 vide four registered Deeds of Sale on
24/7/1991 sold 1 Bigha 3 Katha in Dag No. 344 of K.P. Patta No. 43 in favour of
Faizuddin Ahmed, Luthura Mazi, Sumanjit Singh and Sachindra Kr. Borah who
were the Defendant No. 2, Proforma Defendant Nos. 14 to 16. The said sale
were put to challenge by the Plaintiff in Title Suit No. 50/1991 which was filed in
the Court of the Assistant District Judge No. 2, Guwahati.
11. Subsequent thereto, the Defendant No. 1 again sold 4 Bighas 3 Kathas 8
Lechas out of 4 Bighas 4 Kathas 16 Lechas of land in Dag No. 601 of K.P. Patta
No. 43 in favour of the Defendant Nos. 2 to 7 in the suit vide 3 registered Deeds
of Sale and three registered Deeds of Gift, the details of which were specifically
mentioned in Schedule D to the plaint. Further to that, the Defendant No. 4 had
sold the land conveyed to her by the Defendant No. 1 to the Defendant No. 8 to
13. The details of such sale transaction were specifically mentioned in Schedule
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D to the Plaint. Under such circumstances, the Plaintiffs filed Title Suit No.
106/2004 seeking inter alia for declaration of their right, title and interest over
Dag No.601 of K.P. Patta No.43, for delivery of khas possession by evicting the
Defendant No. 1 to 13 ; a decree that the Defendant No.1 had no right, title or
interest after transfer of land measuring 4 B 3 K 6L covered by Dag No.684 of
K.P. Patta No. 43; decree that the Defendant Nos. 2 to 7 did not acquire any
interest over the Schedule D land and consequently the Defendant Nos. 8 to 13
also did not acquire any interest over the Schedule D Land and consequently
the Defendant Nos. 8 to 13 also did not acquire any right over the Schedule D
Land; for declaration and cancellation of the various deeds of sale as was
detailed in Schedule-D to the Plaint ; etc.
12. All the principal Defendants i.e. Defendant Nos. 1 to 13 jointly filed a
written statement. It was the case of the Defendants that the Schedule A land
originally belonged to Late Sakhawat Ali. It was the specific case of the
Defendants that one Rudra Kachari @ Boro was a tenant under Late Sakhawat
Ali in respect to 4 Bighas 4 Kathas 16 Lechas of land covered by Dag No. 601 of
K.P. Patta No. 43 and the khatian was also issued in his name in respect to the
said land. After the death of Rudra Kachari, his legal heirs namely the Defendant
Nos. 5, 6 and 7 became the tenant and cultivated the said land. After the death
of Sakhawat Ali, the aforesaid 4 Bighas 4 Kathas 16 Lechas of land devolved
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upon the Defendant No. 1 and the Defendant Nos. 5 to 7 were regularly paying
rent to the Defendant No. 1 and they also enjoyed permanent heritable
transferable right over the said land. As the Defendant Nos. 5, 6 & 7 became
unable to cultivate the said land therefore; by executing a registered Deed No.
7806 dated 16/7/1992 they relinquished their tenancy and delivered possession
of the land to the Defendant No. 1. Thereafter the Defendant No. 1 gifted 3
Kathas of land to the Defendant No. 5, 1 Bigha of land to the Defendant no. 6
and 3 Kathas of land to the Defendant No. 7 from the land covered by Dag No.
601 of K.P. Patta No. 43 by executing 3 registered Deeds of Gift and as such the
Defendant Nos.5 to 7 became the owner and possessor of the said land. The
further case of the Defendants is that after the death of Nurul Huda and Joynal
Abedin the entire share of the aforesaid patta stood devolved upon the Plaintiffs
who were the heirs of Badrul Huda and the Defendant No. 1, the sole heir of
Samsul Huda in equal shares and they have been continuously possessing their
respective shares accordingly. Therefore, the Defendant had saleable rights and
interest in respect to his 9 Bighas 1 Katha 1 Lecha of land. Further the
Defendant No. 1 pleaded that he had right, title and possession over the land of
Dag No. 684 and 601 of Patta No. 43 and as such he sold the land of the said
dags and accordingly the purchasers and donees acquired their right, title and
interest and possession in respect to their respective plots of land. The
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Defendant No.4 purchased 1 Bigha 4 Kathas 8 Lechas of land under Dag No.
601 and she became the absolute owner of the said land and she sold her land
to the Defendant Nos. 8 to 13 by registered Sale Deeds and the Defendant Nos.
8 to 13 also got possession of the land and thereby they acquired right, title and
interest over the land. On the basis of the averments, the Defendant sought for
dismissal of the suit.
13. On the basis of the pleadings, as many as 9 issues were framed which are
as under : -
(1) Whether the suit is maintainable in its present form ?
(2) Whether the suit is barred by limitation ?
(3) Whether there is any cause of action for the suit ?
(4) Whether the suit is properly valued ?
(5) Whether the plaintiffs are entitled to get the relief of declaration of
right, title and interest over the suit land ?
(6) Whether the Defendant No. 1 has the saleable interest over the
suit land ?
(7) Whether the Defendant Nos. 2 to 13 have acquired any right, title
and interest over the suit land on the strength of the sale deeds as
well as the gift deeds executed by the Defendant No. 1 as well as the
Defendant No. 4 ?
(8) Whether the sale deeds and the gift deeds executed by the
Defendant No. 1 as well as the Defendant No. 4 in respect to the suit
land are void, illegal, inoperative and are liable to be cancelled ?
(9) Whether the Plaintiffs are entitled to get any relief or reliefs as
prayed for ?
14. The Plaintiffs adduced evidence of three witnesses and exhibited various
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documents. The Defendants' side adduced the evidence of only one witness but
did not exhibit any document. The Trial Court vide the judgment and decree
dated 15/5/2010 dismissed the suit of the Plaintiffs. The issue Nos. 1 to 4 were
decided in favour of the Plaintiffs. While deciding the issue No. 5 which pertains
as to whether the Plaintiffs were entitled to the declaration of right, title and
interest over the suit land, the Trial Court came to a finding that the entire land
in question remained as ejmali and no partition took place amongst the co
sharers and under that circumstances when Late Joynal Abedin executed the
Deed of Relinquishment, there was no clarification on the Schedule from which
the dag and within which boundary he relinquished his share to the Plaintiffs. It
was further opined that in absence of the dag numbers and boundary of the
land in the said deed, it was difficult to believe that Late Joynal Abedin
relinquished his share of land from Dag No. 601 of the patta and the Plaintiffs
have also failed to give proper explanation of the said land in adducing
evidence. It was further held that it cannot be construed that the Plaintiff No. 1
became the absolute owner of the land which falls under Dag No. 601 and
therefore it was held that both the Plaintiffs and the Defendant No. 1 had equal
share of land under the patta in question and from the above consideration, it
was observed that the suit land measuring 4 Bighas 4 Kathas 16 lechas of land
which falls under Dag No. 601 of Patta No. 43 was owned and possessed by the
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Defendant No. 1 having its saleable right, title and interest and also he had
possession of the same. In view of the decision in issue No. 5, the issue No. 6
was also decided in favour of the Defendants. As regards the issue No. 7 & 8
which were both taken up together, the Trial Court came to a finding that the
Plaintiffs had failed to establish his right, title and interest and possession over
the land under Dag No. 601 and consequently, it was observed that the
Defendant No. 1 had saleable interest over the said land and the Sale Deeds
and the Gift Deeds executed by him as well as by Defendant No. 4 relating to
the land under Dag No.601 was valid and operative. On the basis of the above
finding, the Trial Court had dismissed the suit of the Plaintiffs.
15. Feeling aggrieved and dissatisfied, the Plaintiffs preferred an appeal
before the Court of the District and Sessions Judge, Kamrup(Metro) at
Guwahati. The said appeal was registered and numbered as Title Appeal No.
59/2006 which was endorsed to the Court of the Additional District and Sessions
Judge (FTC) No. 2, Kamrup(Metro) at Guwahati. The First Appellate Court
allowed the said appeal thereby setting aside the judgment and decree passed
by the Trial Court. The First Appellate Court decided the said appeal issue-wise.
While deciding the issue No. 1, 5 and 6 together, the First Appellate Court came
to a finding that from the evidence on record and more particularly, the
evidence of PW-1 read together with Exhibits 4, 6 and 7, it appeared that after
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releasing of the land by paying the arrear land revenue, entire land of Patta No.
43 was in possession of Late Badrul Huda and after his death till 4/11/1972 i.e.
the date of execution of the Deeds of Relinquishment i.e. Exhibits 6 & 7, the
entire land was in actual physical possession of the Plaintiff No. 1. It was further
held that on the basis of the amicable settlement held in 1972, the PW-1 had
relinquished the possession of the land measuring 4 Bighas 3 Kathas ½ Lecha
of Dag No. 684 in favour of the Defendant No. 1 and except the said land
measuring 4 Bighas 3 Kathas ½ Lechas of Dag No. 684, the entire land of
K.P.Patta No. 43 devolved upon the Plaintiffs and they acquired right, title and
interest over the suit land by right of inheritance and on the basis of the Deeds
of Relinquishment i.e. Ext. 4, 6 and 7. On the basis thereof, the First Appellate
Court held that the Defendant No. 1 had no saleable interest over the suit land
for which the suit was maintainable in its present form. While deciding the issue
No. 7, the First Appellate Court held that the Defendant Nos. 2 to 13 did not
acquire any right, title and interest over the suit land on the strength of the Sale
Deeds as well as the Gift Deeds executed by the Defendant No. 1 as well the
Defendant No. 4. Similarly while deciding the issue No. 8, the First Appellate
Court held that as the Defendant No. 1 had no saleable interest at the time of
execution of the Sale Deeds in favour of the Defendant Nos. 2, 3 and 4 and the
Gifts Deeds in favour of the Defendant Nos. 5, 6 and 7 and as such the
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subsequent sale deed executed by the Defendant No. 4 in favour of the
Defendant 8 to 12 also cannot confer any right, title and interest to them, for
which the Sale Deeds exhibited as Exhibits 13 to 18 executed by the Defendant
No. 1 and the Sale Deeds exhibited as Exhibits 19 to 23 executed by the
Defendant No.4 were void, illegal and liable to be cancelled. As regards the
Defendant No. 13, the First Appellate Court observed that as the Defendant No.
4 had no valid right, title, interest and possession over the suit land and as such
the defendant No. 13 is nothing but a trespasser over the suit land alongwith
the Defendant No. 2 to 12. Consequently the First Appellate Court set aside the
judgment and decree dated 15/5/2001 passed in Title Suit No. 106/1994. The
First Appellate Court further declared that the Plaintiff had right, title and
interest in respect to the Schedule D land and the Plaintiffs be put into khas
possession of the Schedule D land by evicting the defendant Nos. 1 to 13
therefrom. Further to that, it was also declared that the deeds exhibited as
Exhibits 13 to 23 were void and illegal and liable to be cancelled for which a
precept was directed to be issued.
16. Feeling aggrieved and dissatisfied, the Defendant No. 1 has preferred the
instant appeal under Section 100 of the Code. Relevant herein to mention that
the Defendant Nos. 2 to 13 in whose favour the Deeds of Sale as well as Gift
Deeds so executed were held to be void and illegal and direction was issued for
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cancellation of the same, have not filed any appeal against the said judgment
and decree dated 15/9/2008.
17. As already observed hereinabove, this Court had framed three substantial
questions of law. A perusal of the three substantial question of law is in respect
to the interpretation to be given to Exhibits 4, 6 and 7 and the effect of the said
documents on the rights of the parties. It is relevant that all the three Exhibits
i.e. Exts. 4, 6 and 7 were executed on the same day between the parties and
the serial number of the said documents also gives an indication that the said
deeds were executed simultaneously.
18. Let this Court take into consideration each of the said Exhibits one by one.
19. Exhibit 4 is a registered Deed of Relinquishment executed by Late Joynal
Abedin on 4th of November, 1972. A recitals of the said document would show
that Late Joynal Abedin alongwith his three brothers were the owners of the
land described in the Schedule to the said Relinquishment Deed. After the death
of Late Nurul Huda, as he had no heir, Late Joynal Abedin took 1/ (one third)
area of his land measuring 1 Bigha 2 Katha 13 ½ Lechas by strength of heirship
and accordingly Late Joynal Abedin's share over the said land described in the
Schedule became 6 Bighas 0 Katha 14 Lechas. It further appears that the said
land was put to auction sale for non-payment of the outstanding dues and at
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that point of time Late Joynal Abedin had relinquished his right, title and
possession over the said land and had delivered it to the father of the Plaintiffs
in 1950 and entrusted the father of the Plaintiffs with the power to get it
released by his own cost. The father of the Plaintiffs thereafter recovered the
said area of land at his own cost and since then the father of the Plaintiffs was
enjoying possession thereon by paying the revenue regularly thereof. However,
the mutation was running in the name of Late Joynal Abedin for which he
considered that there is every possibility of difficulties arising if his name
continues in the record of rights. For that reason he relinquished his title,
possession and interest thereof in favour of the Plaintiff No. 1 on 4 th of
November, 1972. In the said Exhibit-4, it was further mentioned that the Plaintiff
No. 1 shall be entitled to enjoy possession thereon as before and by the
strength of the said deed, the Plaintiff No. 1 shall be entitled to mutation and
shall enjoy the possession thereon from generation to generation.
20. Ext. 6 is the Deed of Relinquishment of title and possession executed by
the Plaintiff No. 1 in favour of the Defendant No. 1. A perusal of the said
document shows that the Plaintiff No. 1 had admitted that the Defendant No. 1
was the owner of an area measuring 4 Bighas 3 Kathas 2 Powas of land
described in the Schedule and in respect to which the Plaintiff No. 1 was
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enjoying possession of the said land since long before. It was further mentioned
that at the request of the Defendant No. 1, the Plaintiff No. 1 voluntarily
relinquished his possession and delivered the possession of the said land to the
Defendant No. 1 declaring inter alia that the Plaintiff No. 1 shall not have any
right, possession and interest over the said land and the Defendant No. 1 shall
have the right of gift and sale or transfer to any other person and shall be able
to enjoy possession from generation to generation. This very deed was also
executed on 4th of November, 1972. The Schedule to the said land clearly shows
that the Schedule mentioned in the said Ext.6 clearly shows that the land in
question measuring 4 Bighas 3 Kathas 2 Powas covered by Dag No. 684 and
K.P. Patta No. 43 situated at Borsajaigoan under Beltola Mouza, Sub-Registry
and P.S. Guwahati.
21. Ext. 7 is the Deed of Relinquishment executed by the Defendant No. 1 in
favour of the Plaintiff No. 1. A perusal of the said document would show that
the Defendant No. 1 had admitted that the father of the Plaintiff, his father, Late
Nurul Hudda and Late Joynal Abedin were owners of the said patta described in
the Schedule. After the death of Nurul Huda, he had no heir to succeed, for
which his 3 brothers had share to his property equally and accordingly the
Defendant No. 1's father had inherited an area of land measuring 1 Bigha 2
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Kathas 131/3 Lechas. It was further mentioned that the Defendant No. 1's father
during his life time had relinquished title, possession and interest of the same
and delivered to the father of the Plaintiff No. 1 and since then the father of the
Plaintiff No. 1 was enjoying possession thereon and thereafter the Plaintiff No. 1
has been enjoying possession over the land by paying the revenue regularly.
Considering that there would be inconvenience for having mutation over
the land, the Defendant No. 1 relinquished all his right, title and possession and
interest of the land which he had over it and have executed the Deed of
Relinquishment whereby the right, title and possession over the land described
in the Schedule as before and by getting mutation done in the Plaintiff's name
on the said land and shall be able to enjoy peaceful possession from generation
to generation.
23. Thus, from the above 3 deeds, it transpires as follows :-
(a) From Ext. 4, it would show that there was a declaration being made by
Late Joynal Abedin to the effect that the land was in possession of the Plaintiff
No. 1 which he had earlier relinquished in favour of the father of the Plaintiff in
the year 1950. By the said deed, he relinquished all his title, possession and
interest and also stated that the Plaintiff No. 1 shall be able to enjoy possession
thereon as before and the Plaintiff No. 1 would be able to effect mutation in his
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name in place of Late Joynal Abedin and shall enjoy the possession thereof from
generation to generation.
(b) Vide Ext.6, the Plaintiff No. 1 declared that the Defendant No.1 was
the owner of 4 Bighas 3 Kathas 2 Powas of land described in the Schedule and
the Plaintiff No. 1 was in possession over the said land. The Plaintiff No. 1
further declared that he voluntarily relinquished his possession and delivered to
the Defendant No. 1 and from that day onwards the Plaintiff shall not have any
right, possession and interest over the said land and the Defendant No. 1 shall
have the right of gift and sale or transfer to any person and shall be able to
enjoy possession from generation to generation.
(c) As per the Ext.7, the Defendant No. 1 declared that on account of the
death of Nurul Huda, his father had obtained an area of land measuring 1 Bigha
2 Katha 13 ½ Lechas and during the life time of the father of the Defendant No.
1, he had relinquished title and possession of the same and delivered it to the
father of the Plaintiff and since then the Plaintiff has been enjoying possession
over the said land. He further declared that he relinquished all his right, title and
possession and interest which he had over it by executing the deed and the
Plaintiff No. 1 shall have right, title and possession over the said land by getting
mutation done in the Plaintiff No.1's name on the said land and the Plaintiff No.
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1 shall be entitled to peaceful possession from generation to generation.
24. Now the question therefore arises what is the effect of the said deeds
inasmuch as for the deed to be a valid gift as per the Mohammadan Law, three
essential requisites are required, which are as under :
1. Declaration of gift by the Doner.
2. Acceptance of gift by the Donee and
3. Delivery of possession.
25. The Supreme Court in the case of Hafeeza Bibi and Ors. Vs. Sk.
Karim(Dead) by LRs. and Ors. vs. Shaikh Farid(Dead) by LRS &
Ors.reported in (2011) 5 SCC 654 held that under the Mohammadan Law, the
3 essential requisites to make a valid gift are--(1) Declaration of the gift by the
doner, (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. It was held that 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 would be made
by a Mohammadan orally, its nature and character is not changed because of it
having been made by a written document. The Supreme Court further observed
that what is important for a valid gift under the Mohammadan Law is that the
three essential requisites must be fulfilled and the form is immaterial. If all the
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three essential requisites are satisfied constituting a valid gift, the transaction
of a gift would not be rendered invalid because it has been written on a plain
piece of paper. In paragraph No. 29 of the said judgment, it was observed that
Section 129 of the Transfer of Property Act, 1882 preserves the rule of
Mohammadan Law and excludes the applicability of Section 123 of the Act of
1882 to a gift of an immovable property by a Mohammadan. Paragraph Nos. 24
to 30 of the said judgment being relevant are quoted hereinbelow :-
"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: ( 1) 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 makes 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, 5th Edn. (edited and revised by
Tahir Mahmood) at p. 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 Edn.), p. 120, states the legal position
in the following words:
"Under the Mahomedan law the three essential requisites to make a gift valid are:
(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 of the 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
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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 a 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 a 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 Mohammadan Law on the subject of gifts inter vivos, the
Privy Council in Mohd. Abdul Ghani stated that when the old and authoritative texts of
Mohammadan Law were promulgated there were not in contemplation of anyone 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 the TP Act preserves the rule of Mohammadan Law and excludes
the applicability of Section 123 of the TP 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 Edn.), p. 120. In
other words, it is not the requirement that in all cases where the gift deed is
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 the Andhra Pradesh
High Court in Tayyaba Begum. We approve the view of the Calcutta High Court in
Nasib Ali 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 Mohd. Hesabuddin. The judgments to the contrary by the Andhra
Pradesh High Court, the Jammu and Kashmir High Court and the Madras High Court do
not lay down the correct law."
26. From the above quoted paragraphs of the judgment, let this Court take
into consideration as to whether the Exhibits 4, 6 and 7 can be considered to be
a valid gift as per the Mohammadan Law. From the recitals as mentioned
hereinabove, it would be seen that there was a declaration made by Late Joynal
Abedin in
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Exhibit-4 in respect to his undivided share of land measuring 6 Bighas 0 Katha
14 Lechas, which was under the possession of the Plaintiff No. 1. It was also
declared that the Plaintiff No. 1 shall be entitled to continue to remain in
possession of his share as before and shall also be entitled to mutation of the
land on the basis of the said deed. Admittedly the said land was mutated in
favour of the Plaintiff No. 1 as would be apparent from the evidence on record.
28. From the Exhibit-6, it would also be clear that there was a declaration
being made that the Defendant No.1 shall have right, title and interest along
with possession in respect to the land measuring 4 Bighas 3 Kathas 2 Powas of
Dag No. 684 of Patta No. 43. It was also declared that the possession
henceforth would be handed over to the Defendant No. 1 and the Defendant
No. 1 would be entitled to remain in possession of the said land and also carry
out mutation in his name over the said land. Admittedly the Defendant No.1's
name was duly mutated against the land measuring 4 Bigha 3 Kathas 2 Powas
in respect to Dag No. 684 of Patta No. 43. From the Exhibit-7, it would also be
seen that there was a declaration being made that the land which the father of
the Defendant No. 1 inherited from Late Nurul Huda measuring 2 Bigha 3
Kathas 13½ Lechas was relinquished in favour of the father of the Plaintiff No. 1
by the father of the Defendant No. 1 and the Plaintiff No. 1 was in possession of
the said land and it was also declared that the Plaintiff No. 1 shall be entitled to
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continue in possession of the said land and get the mutation done in the name
of the Plaintiff No. 1 on the basis of the said deed. Admittedly name of the
Plaintiff No. 1 was also mutated in respect to 1 Bigha 2 Kathas 13½ Lechas on
the basis of the said deed.
27. At this stage, it is also relevant to take note of a judgment of the Supreme
Court rendered in the case of Khursida Begum (Dead) by LRS and Ors. Vs.
Md. Faruk (Dead) by LRS and Anr. reported in (2016) 4 SCC 549. The
Supreme Court in the said judgment took into consideration Sections 206, 152
and 160 of the Mohammadan Law. Section 206 of the Mohammadan Law deals
with "Hiba" of undivided property. It is observed that in view of the provisions of
Section 206 of the Mohammadan Law a "Hiba" of an undivided share in the
property which is capable of division is invalid except in 4 cases, which were--
a) where it is made by one co-sharer in the property to another;
(b) where the property admits of definite ascertainment of shares and is capable
of separate enjoyment without division;
(c) where it is made to a minor who is under the custody of the donor and to
whom the donor transfers a part of the property;
(d) where the property is freehold property in a large commercial town.'
28. In terms with exception (a), a gift of an undivided share in the property
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which is capable of division is not invalid, where it is made by one co-sharer in
the property to another. The Supreme Court in the said judgment while taking
into consideration Sections 152 and 160 of the Mohammadan Law opined that
while gift of an immovable property is not complete unless the doner parts with
the possession and the donee enters into possession, but if the property is in
occupation of tenants, gift can be completed by delivery of title deeds or by
request to the tenant to attorn to the donee or by mutation. It was further
opined that gift of a property which is capable of division is irregular but can be
perfected and rendered valid by subsequent partition or delivery. The Supreme
Court further taking into account the Exceptions stipulated in Section 160 of the
Mohammadan Law further opined that the gift of an undivided share, though it
be a share in a property capable of division, is valid from the moment of the gift
even if the share is not divided off and delivered to the donee-- (i) where the
gift is made by one co-heir to another, (ii) where the gift is of a share in a
zamindari or taluka (iii) where the gift is of a share in a freehold property in a
large commercial town and (iv) where the gift is of shares in a land company.
Paragraph Nos. 11, 12, 13 and 14 of the said judgment is being relevant is
quoted herein below : -
"11. The learned counsel for the parties have referred to the principles of
Mohammedan Law as compiled in Mulla's Principles of Mohammedan Law, 20th Edn.
by Lexis Nexis, paras 152 and 160 of which are:
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"152. Delivery of possession of immovable property
(1) Where 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.
(2) Where property is in the occupation of tenants -- A gift of immovable property
which is in the occupation of tenants may be completed by a request by the donor
to the tenants to attorn to the donee, or by delivery of the title deed or by
mutation in the revenue register or the landlord's sherista. But if the husband
reserves to himself the right to receive rents during his lifetime and also undertakes
to pay municipal dues, a mere recital in the deed that delivery of possession has
been given to the donee will not make the gift complete.
(3) Where donor and donee both reside in the property -- 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 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. The principle for the determination of questions of this nature
was thus stated by West, J. in a Bombay case. When a person is present on the
premises proposed to be delivered to him, a declaration of the person previously
possessed puts him into possession without any physical departure or formal entry.
"160. Gift of mushaa where property divisible. A gift of an undivided share
(mushaa) in property which is capable of division is irregular (fasid), but not
void (batil). The gift being irregular, and not void, it may be perfected and
rendered valid by subsequent partition and delivery to the donee of the
share given to him. If possession is once taken the gift is validated.
Exceptions.--A gift of an undivided share (mushaa), though it be a share in
property capable of division, is valid from the moment of the gift, even if the
share is not divided off and delivered to the donee, in the following cases--
(1) where the gift is made by one co-heir to another,
(2) where the gift is of a share in a zamindari or taluka,
(3) where the gift is of a share in freehold property in a large commercial
town,
(4) where the gift is of shares in a land company."
12. A perusal of the above shows that while gift of immovable property is not
complete unless the donor parts with the possession and donee enters into
possession but if the property is in occupation of tenants, gift can be completed
by delivery of title deed or by request to tenants to attorn to the donee or by
mutation. It is further clear that gift of property which is capable of division is
irregular but can be perfected and rendered valid by subsequent partition or
delivery. Exceptions to the rule are: where the gift is made by one co-heir to the
other; where the gift is of share in a zamindari or taluka; where gift is of a
share in freehold property in a large commercial town, and where gift is of
share in a land company.
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13. The courts below appear to have quoted Mohammedan Law by B.R. Verma,
Law Publishers (India) (P) Ltd., 13th Edn. which is by and large to the same
effect as Mulla's book on the subject.
14. The courts below have held the gift to be invalid on the ground that it was
gift of undivided property which is capable of division and was not covered by
any of the exceptions to the rule that gift of such property is irregular. It is
submitted by the learned counsel for the appellant that the property is freehold
property in the city of Jaipur, which is a large commercial town. This has been
wrongly ignored by the courts below on the ground that there was no pleading
or proof to that effect. Description of property mentioned in plaint and in the
gift deed itself shows that it is commercial property in the city of Jaipur which is
the capital of the State of Rajasthan and is, thus, a large commercial town.
Requirement of possession is also met when right to collect rent has been
assigned to the plaintiff under the gift deed itself, genuineness of which stands
proved."
29. It would therefore be seen that there was a valid declaration being made
vide Exhibits 4, 6 and 7 and there was acceptance of the gift by the donees in
the instant case, as on the basis of the said acceptance, the names of the
donees were duly mutated in the record of rights and the said Exhibits 4 and 7
categorically declared that the Plaintiffs who were already in possession of the
land would be entitled to remain in possession of the land and enjoy the same
by getting the mutation done. The declaration made in Exhibit-4 to the effect
that Late Joynal Abedin had already relinquished his right, title and possession
of the land to the father of the Plaintiff No. 1 in 1950 and the father of the
Plaintiff No. 1 had on that basis continued to remain in possession also
constitutes a valid gift in terms with the Mohamaddan law. Further to that, in
terms with Sections 206 and 160 of the Mohammadan Law, it is clear that the
gift of an undivided share in a property which is capable of division is valid
Page No.# 28/29
where it is made by one co sharer/co-heir to the another. If this Court takes into
account Section 152(3) of the Mohammadan Law, it would also show that by
execution of the Deeds of Relinquishment, the doners in question have by an
overt act had indicated a clear intention on their part to transfer possession and
divest themselves of all control over the subject of the gift.
30. Consequently in view of the above, Exhibits 4, 6 and 7 in the opinion of
this Court constitutes valid gift in favour of the donees therein i.e. the Plaintiff
No. 1, Defendant No. 1 and Plaintiff No. 1 respectively and accordingly the right,
title and interest over the said land stands vested upon the said donees on the
basis of fulfilling conditions of a valid gift. In view of the above, the three
substantial questions of law so formulated which pertains to the interpretation
of Exhibits 4, 6 and 7, though are questions of law but as the said questions of
law shall not have a material bearing on the decision of the case insofar as the
rights of the parties before this Court are concerned, for which the same cannot
be considered to be a substantial questions of law involved in the instant
Appeal. Consequently, this Court therefore, confirms the judgment and decree
dated 15/9/2008 passed by the Court of the Additional District and Sessions
Judge(FTC) No. 2, Kamrup(Metro) at Guwahati in Title Appeal No. 59/2006
thereby dismissing the instant appeal.
31. Prepare the decree accordingly.
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32. The Registry is directed to return the LCR to the Court below forthwith.
JUDGE
Comparing Assistant
