Gauhati High Court
2: Zakir Hussain vs On The Death Of Khurshid Alam His ... on 29 September, 2022
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GAHC010200742004
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/114/2004
ON THE DEATH OF 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 KHURSHID ALAM HIS LEGAL HEIRS DEEPA KHURSHID
AND ORS
REPRESENTED BY-
1.1:SMTI. DEEPA KHURSHID
W/O- LATE KHURSHID ALAM
R/O- S.S. ROAD
LAKHTOKIA
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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-
Advocate for the Petitioner : S ROY
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Date : 29-09-2022
1. Heard Mr. B. C. Das, the learned Senior counsel assisted by Mr. J. H.
Saikia, the learned counsel appearing on behalf of the Appellants and Mr. A.
Iqbal, the learned counsel appearing on behalf of the Respondents. This Court
earlier also heard Mr. S. Ali, the learned counsel appearing on behalf of the
Respondents.
2. The instant appeal has been filed challenging the judgment and decree
dated 21.02.2004 passed by the Adhoc Additional District Judge, Kamrup in Title
Appeal No.7/2002 whereby the judgment and decree dated 05.03.2002 passed
by the Civil Judge (Senior Division), Kamrup in Title Suit No.50/1991 was set
aside.
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3. This Court vide an order dated 04.04.2005 admitted the instant appeal by
formulating the following substantial question of law :
"Whether the learned Trial Court committed error of law in holding that on
the basis of relinquishment of deed, without any partition, the plaintiffs' suit
for declaration of right, title and interest in specific share of the suit land
would be maintainable in the true effect of the case?"
4. The learned counsel for the Appellants has submitted that while framing
the said substantial question of law, there was an inadvertent error inasmuch as
the said question of law should have been "Whether the learned First Appellate
Court committed error in law in holding that on the basis of relinquishment
deed, without any partition, the plaintiffs' suit for declaration of right, title and
interest in specific share of the suit land would be maintainable in the true effect
of the case ?"
5. For appreciating as to whether the said substantial question of law so
formulated by this Court would be a substantial question of law involved in the
instant appeal, it would be relevant to take note of that the plaintiffs have
claimed right, title and interest over the suit land on the basis of two documents
i.e. the relinquishment deed dated 24.07.1991 which were exhibited as Exhibit-2
and Exhibit-3. It is also relevant to take note of that the Plaintiff No.1 had also
executed a deed of relinquishment of the same date in favour of the Defendant
No.1 which was exhibited as Exhibit-4.
6. The learned counsel for the parties have jointly submitted that this Court
in Second Appeal i.e. RSA No.11/2009 vide the judgment and order dated
11.08.2022 reported in MANU/GH/0607/2022 have already decided the affect of
the said Exhibits Nos. 2, 3 and 4. It has been submitted that Exhibit-2, Exhibit-3
and Exhibit-4 in the instant proceedings were marked as Exhibit-4, Exhibit-7 and
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Exhibit-6 respectively in the said proceedings which led to RSA No.11/2009.
7. In the backdrop of the above submissions, let this take into consideration
the said judgment passed by this Court. From a perusal of the said judgment, it
appears that the Exhibit Nos. 2, 3 and 4 herein were Exhibit Nos. 4, 7 and 6
respectively in the said case. This Court in Paragraph No.22 dealt with the said
Exhibits in detail and thereupon took up the question as to whether the said
Exhibits can be considered to be a valid gift as per the Mohammadan Law. This
Court after taking into account the judgment of the Supreme Court in the case
of Khursida Begum (Dead) by LRS and Others Vs. Mohammad Farooq (Dead) by
LRS and Another reported in (2016) 4 SCC 549 had come to an opinion that that
there was a valid declaration being made vide Exhibit-4, Exhibit-6 and Exhibit-7
(Exhibit Nos. 2, 4 and 3 herein) and there was an acceptance of the gift by the
donees and on the basis of the said acceptance, the names of the donees were
duly mutated in the record of rights. It was further observed that Exhibit Nos.4
and 7 (Exhibit Nos.2 and 3 herein) categorically declared that the plaintiffs were
already in possession of the land and would be entitled to remain in possession
of the land and enjoyed the same by getting the mutation done. The declaration
made in Exhibit-4 (Exhibit-2 herein) 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 continued to
remain in possession also constitutes a valid gift in terms with the Mohammadan
Law. Further, this Court taking into consideration Sections 206 and 160 of the
Mohammadan Law observed that the gift of an undivided share in the property
which is capable of division is valid, where it is made by one co-sharer/co-heir to
another. Further taking into consideration Section 152(3) of the Mohammadan
Law it was observed that by execution of the deed of relinquishment the donors
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in question by way of an overt act had indicated a clear intention on their part
to transfer possession and to divest himself of all control over the subject of the
gift.
8. On the basis of the above, this Court observed that Exhibit Nos. 4, 6 and 7
(Exhibit Nos.2, 4 and 3 herein) constitutes a valid gift in favour of the donees
therein i.e. the Plaintiff No.1, Defendant No.1 and the Plaintiff No.1 respectively
and accordingly right, title and interest over the said land stood vested upon the
said donees on the basis of fulfilling of the conditions of a valid gift. It is on the
basis thereof, this Court in the said judgment had decided and interpreted the
Exhibit Nos. 4, 6 and 7 (Exhibit Nos.2, 4 and 3 herein) conferred right, title and
interest upon the parties to the suit.
9. Applying the said ratio to the instant case, the substantial question of law
so framed as to whether on the basis of the relinquishment of deed, without any
partition, the plaintiffs' suit for declaration of right, title and interest in specific
share of the suit land would be maintainable or not, in the opinion of this Court
is not a substantial question of law involved in the instant appeal taking into
consideration that by virtue of Exhibit Nos. 4 and 7 (Exhibit Nos. 2 and 3 herein)
there was a valid gift in favour of the Plaintiff No.1 in respect to the suit land
and by virtue of Exhibit-6 (Exhibit-4 herein) there was a valid gift in favour of
the Defendant No.1 only in respect to the specific plot of land measuring 4
Bighas 3 Kathas 2 Poa in Dag No.344 of K.P. Patta No.43.
10. Consequently, the sale which have been made by the Defendant No.1 in
favour of the Defendant Nos. 2, 3 and 4 in the suit was rightly held by the First
Appellate Court to be illegal and unauthorized.
11. Consequently, this Court therefore does not find any infirmity in judgment
and decree dated 21.02.2004 passed in Title Appeal No.7/2002.
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12. Accordingly, the instant appeal stands dismissed.
13. Return the LCR to the Court below.
14. Prepare the decree accordingly.
JUDGE
Comparing Assistant
