Page No.# 1/13 vs Md. Sahabuddin Ahmed And 6 Ors
2025 Latest Caselaw 3032 Gua

Gauhati High Court

Page No.# 1/13 vs Md. Sahabuddin Ahmed And 6 Ors on 11 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                 Page No.# 1/13

GAHC010164172010




                                                            2025:GAU-AS:1367

                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : RSA/78/2010

         MD.TAZIMUDDIN AHMED
         S/O LATE ADARSHA SHEIKH, VILL. BALIJHAR, MOUZA-P, BASKA, P.S.
         BARAMA, DIST. NALBARI, ASSAM.



         VERSUS

         MD. SAHABUDDIN AHMED and 6 ORS
         S/O MD. MOFIZ ALI.

         2:MD. SAIFUDDIN AHMED

          S/O MD. MOFIZ ALI.

         3:MD. SULTAN ALI

          S/O MD. MOFIZ ALI.

         4:MD. JAMAL ALI

          S/O MD. MOFIZ ALI.

         5:MD. NUR MOHAMMAD ALI

          S/O MD. MOFIZ ALI.

         6:MD. RIYAZ ALI

          S/O MD. MOFIZ ALI.

         7:NURUN NESSA BIBI

          W/O LATE MOFIZ ALI
                                                                         Page No.# 2/13

           ALL ARE THE RESIDENTS OF VILL. KALJAR
           MOUZA-PACHIM BASKA
           P.S. BARAMA
           DIST. NALBARI
           ASSAM

               For the Appellant(s)      : Mr. J. H. Saikia, Advocate
               For the Respondent(s)     : Mr. P. Choudhury, Advocate

                      Date of Hearing         : 11.02.2025
                      Date of Judgment        : 11.02.2025



                                 BEFORE
                  HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                          JUDGMENT AND ORDER (ORAL)

Heard Mr. J. H. Saikia, the learned counsel appearing on behalf of the Appellant and Mr. P. Choudhury, the learned counsel appearing on behalf of the Respondents.

2. The instant appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'the Code') is directed against the judgment and decree dated 11.12.2009 passed by the learned District Judge, Nalbari (hereinafter referred to as 'the learned First Appellate Court') in Title Appeal No.13/2007 whereby the judgment and decree dated 18.06.2007 passed by the learned Civil Judge (Senior Division) Nalbari (hereinafter referred to as 'the learned Trial Court') in Title Suit No.5/2024 was reversed.

3. It is seen from the records of the instant proceedings that vide an order dated 02.06.2010, the instant appeal was admitted on the following substantial question of law:

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"Whether Exts. Ka, Kha and Cha gift deeds have been proved, as required under Mahamedan Law?"

4. To adjudicate as to whether the said substantial question of law is involved in the instant appeal, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal.

5. One Adarsha Sheikh (since deceased) was the father of the plaintiff as well as the defendant No.7. The defendant Nos. 1 to 6 are the sons of the defendant No.7.

6. The plaintiff was recruited under the Assam Police and it is averred in the plaint that in the year 1964, when the plaintiff's marriage was solemnized, his father asked him to build the dwelling house over the lands covered by Dag Nos. 670, 669, 667 and 671 as convenient to the plaintiff and the defendant No.7. Thereupon the plaintiff and the Defendant No.7 have been residing over the said plot of land. It is stated by the plaintiff that there was no written partition between the plaintiff and the defendant No.7 and the land which have been most specifically described in the Schedules to the plaint was distributed as per verbal partition between the plaintiff and the defendant No.7 and both jointly paid the revenue. On account of his service, the plaintiff had to stay in various places, but his family remained at home. The defendant No.7 cultivated the cultivable land of the plaintiff and the share of crops had been given to the plaintiff. In the year 1999, the plaintiff retired from service and since then, has been residing at his own residence situated over the suit lands. The basti land and the cultivable land was distributed equally between the plaintiff and the defendant No.7 as per the direction of their father in the year 1964 and the plaintiff averred in the Page No.# 4/13

plaint that his share fell in Schedule-Kha and Schedule-Ga. The plaintiff has been residing over the land of Schedule-Ga by constructing a dwelling house.

7. On 22.07.2001, the plaintiff could come to learn that his portion of land at Schedule-Kha was mutated in the name of the sons of the defendant No.7 on different dates by way of gift. The plaintiff being surprised, had asked his father about the gift which his father denied of gifting any land to anybody. It was further stated in the plaint that the defendant No.7 restrained the plaintiff from questioning his father about the matter and tactfully confined his father from the plaintiff. The plaintiff further alleged that the defendant No.7 in collusion with the defendant Nos. 8 to 13, executed the Gift Deeds described in the Scheduled-Gha against the whole land of Schedule-Ka without the knowledge and information of his father taking advantage of his illness. The plaintiff, on coming to learn about the conspiracy hatched by the defendant No.7, filed a case before the Circle Officer against the mutation made in favour of the Defendant Nos. 1 to 6 which was registered as Misc. Case No.1-03. The Circle Officer, after considering all the facts, vide an order dated 17.07.2003, cancelled the mutation in favour of the defendant Nos. 1 to 6.

8. The father of the plaintiff expired on 11.10.2003 at the age of 109 years and it is averred in the plaint that at that point of time, he was not in a position to decide anything and was ill both physically and mentally. It is under such circumstances, the suit was filed seeking a decree in favour of the plaintiff declaring his right, title and interest over the land under Schedule-Kha and Schedule-Ga; for a decree declaring the possession of the Page No.# 5/13

plaintiff over the land of Schedule-Kha and khas possession of land under Schedule-Ga; for decree declaring the Deeds of Gift mentioned in Schedule- Gha null and void; for a decree directing the Registrar to make correction of the Deeds of Gift under the Schedule-Gha; for a decree directing the Circle Officer to make mutation of the land of Schedule-Kha and Ga in favour of the plaintiff and to make necessary correction of the records.

9. Pursuant to the filing of the suit which was registered and numbered as Title Suit No.5/04, the defendants filed their written statement taking various preliminary objections. It was stated in the written statement that the dags described in paragraph No.3 of the plaint were now not ancestral property of the plaintiff and the defendant No.7.

10. At Paragraph No.22 of the written statement, it was stated that the disputed land described in Schedule-Ka of the plaint belonged to the father of the plaintiff and the defendant No.7 who died in the year 2003 at the age of 102. During his lifetime, he gifted land measuring 3 Bighas 2 Kathas 1 Lecha of Dag No.771 of Patta No.17 of village Kalzar to the defendant Nos. 1 to 6 vide a registered Deed of Gift bearing No.77/79 on 05.01.1979. It was mentioned that one Ramjan instituted a suit bearing T.S. No.37/85 in the Court of the Munsiff No.2, Nalbari against the father of the plaintiff and the defendant No.7 as well as the defendant Nos. 1 to 6 alleging that the father of the plaintiff and the defendant No.7 had transferred the said land to him vide a Sale Deed No.592/80. The learned Munsiff dismissed the suit on contest in favour of the defendant Nos. 1 to 6 who were the defendant No. 3 Ka to 3 Cha in the said suit. The decision rendered in the said suit was the land included in Schedule-Ga of the plaint. It was further mentioned that the Page No.# 6/13

father of the defendant No. 7 transferred the land measuring 1 Bigha 1 Katha 10½ Lechas in Dag No. 669 of Patta No.13; land measuring 1 Bigha in Dag No.671 of Patta No. 415; land measuring 1 Bigha 2 Kathas 2½ Lechas in Dag No.670 of Patta No.14 totaling to 3 Bighas 2 Kathas 13 Lechas of Village Kalzar under Paschim Baksa Mouza to the Defendant Nos. 1 to 6 vide a registered Deed of Gift bearing No.158/2000 on 30.03.2000. The defendant Nos. 1 to 6's names were recorded in the revenue records and the land revenue to the Government were paid.

11. It was further mentioned that the plaintiff filed a proceedings bearing No.1/2003 before the Circle Officer, Barama Circle. In his order, it was opined by the Circle Officer that the Gift Deeds executed by the father of the plaintiff and the defendant No.7 was executed in sound mind and good health. The defendant Nos. 1 to 6 filed a revision against his order on the aspect of occupation of the plaintiff in some portion of the gifted land before the Additional Commissioner which was pending for hearing. It was further mentioned that the plaintiff had no possession of the land as alleged in Schedule-Kha of the plaint.

12. On the basis of the said pleadings, as many as nine issues were framed which being relevant are reproduced herein under:

"1. Whether the suit is maintainable in its present form?

2. Whether there is any cause of action for the suit?

3. Whether the suit is barred by res-judicata?

4. Whether the suit is bad for non-joinder and mis-joinder of parties?

5. Whether the suit is barred by the Law of Limitation?

Page No.# 7/13

6. Whether the plaintiff has right, title and interest over the land-in-

question?

7. Whether the plaintiff is entitled to get recovery of possession in respect of the land described in Schedule 'Ga' of the plaint?

8. Whether the plaintiff is entitled to get the reliefs a prayed for?

9. To what other relief(s), the parties are entitled?"

13. The Issue No.6 as quoted above pertains to as to whether the plaintiff had right, title and interest over the land in question. The learned Trial Court, after taking into account the evidence on record came to a finding that the plaintiff side established that the plaintiff side had right, title and interest over the land in question. In respect to the Issue No.7 i.e. as to whether the plaintiff was entitled to get recovery of possession in respect of the land described in Schedule-Ga of the plaint, the learned Trial Court observed that the plaintiff is entitled to get recovery of the possession in respect to Schedule-Ga land.

14. It is relevant for the purpose of the substantial question of law formulated to take note of that while deciding the issue No.7, the learned Trial Court dealt with the three Gift Deeds which were exhibited as Exhibit Ka, Kha and Cha. The learned Trial Court observed that the witnesses who had appeared on behalf of the defendants had categorically stated in their evidence that they had no knowledge about the execution of the Gift Deed. It was observed that in the Gift Deed marked as Exhibit-Ka which was in favour of the six defendants, only defendant No.1 had signed and accepted the gift. No other donees signed in the Gift Deed or accepted the gift. The learned Trial Court further observed that the defendant No.1 while filing the Page No.# 8/13

evidence on affidavit on 19.05.2006 in the Court had stated that he was 40 years and as such as on 23.08.1982, he was a minor. It was observed that if the defendant No.1 who was the eldest son of the defendant No.7 was a minor, all other defendant Nos. 2 to 6 were also minors. The learned Trial Court further perused Exhibit Kha i.e. another Gift Deed dated 05.01.1979 in favour of the six defendants wherein it was stated that all donees were minors and therefore the defendant No.7 was shown as the guardian. The learned Trial Court further observed that in the said Gift Deed, there was no signature of the donees or their father defendant No.7 as guardian. Additionally, the defendants did not produce the Gift Deed dated 30.03.2000. It was further observed that the certified copy of the Gift Deed dated 30.03.2000 was produced. In the said Gift Deed too, it could be seen that there was no acceptance of the gift by the donee. It is on the basis thereof the learned Trial Court held that a plaintiff was entitled to recovery of possession in respect of the Schedule-Ga land.

15. On the basis of the above, the learned Trial Court decreed the suit declaring right, title and interest of the plaintiff over the Schedule-Kha and Ga land described in the plaint; confirmation of possession over the Schedule-Kha land and from the dispossessed part of 2 Kathas 10 Lechas of the Scheduled-Kha land and to get khas possession of Schedule-Ga land. The Gift Deeds as described in Schedule-Gha were declared to be null and void and inoperative in law. Further to that, permanent injunction against the defendants were issued not to enter the plaintiffs Schedule-Kha and Schedule-Ga land.

16. Being aggrieved, an appeal was preferred by the defendant Nos. 1 to 6 Page No.# 9/13

as well as the wife of the defendant No.7, which was registered and numbered as Title Appeal No.13/2007.

17. The learned First Appellate Court vide the judgment and decree dated 11.12.2009, set aside the judgment and decree passed by the learned Trial Court. In doing so, the learned First Appellate Court took note of the provisions of Section 129 of the Transfer of Property Act, 1882 (for short 'the Act of 1882'). It was observed that the donor had given the property to the grandsons with a declaration that his consideration is love and affection towards them and the delivery of possession was also given and as such it becomes a valid gift. The learned First Appellate Court further took note of that the father of the plaintiff and the defendant No.7 though had the option to revoke the gift, but he did not do so and under such circumstances, the Gift Deed executed in favour of the grandsons was enforceable in law.

18. The learned First Appellate Court further observed that from the evidence on record, he did not find that the father of the plaintiff partitioned the suit land and the plaintiff entered into his path after partition of the land of the Schedule-Kha and Ga. It was also observed that the said land in question is transferred by a Gift Deed to the defendant Nos. 1 to 6. The learned First Appellate Court further observed that the land in question was gifted by the father of the plaintiff and the defendant No.7 to the defendant Nos. 1 to 6 through the defendant No.7 as the defendant Nos. 1 to 6 were minors at the time of Gift Deed. The First Appellate Court further observed that there was no anomaly in the execution of the Gift Deeds as the same was done in accordance with the Act of 1882. On the basis of the said observations, it was observed that the learned Trial Court have erred in Page No.# 10/13

deciding the Issue Nos. 6, 7, 8 and 9 and accordingly interfered with the impugned judgment and decree passed by the learned Trial Court dated 18.06.2007. The plaintiff being aggrieved filed the present appeal.

19. This Court had duly heard the learned counsels appearing on behalf of the parties and has perused the records which were called for.

20. The question which needs to be addressed is as to whether the substantial question of law so formulated is involved in the instant appeal. From the materials on record, it is seen that the plaintiff claimed that he was in possession of the land described in Schedule Kha and Ga and further alleged that the defendant No. 7 in connivance with the defendant Nos. 8 to 13 have made the false and fabricated Deeds of the Gifts which were mentioned in Schedule-Gha to the plaint. The defendants in the suit claimed exclusive right over the land belonging to the father of the plaintiff as well as the defendant No.7 on the basis of the Deeds of Gift which were specifically described in Schedule-Gha to the plaint.

21. This Court in the previous segments of the instant judgment has duly taken note of the pleadings of the defendants in their written statement. There is not a single pleadings in the written statement that the gifts so made by the father of the plaintiff and the defendant No.7 to the defendant Nos. 1 to 6 were accepted and possession was handed over.

22. This Court has also perused the evidence of the defendant witnesses wherein the defendant witnesses have categorically stated that they were minor when the Gift Deeds of the year 1979 and 1982 were made. In the evidence of the defendant witnesses, there is no mention that they had Page No.# 11/13

accepted the gift and were handed over the possession. It is relevant to take note of that it is well settled that there are three essential elements which are necessary for a valid Gift Deed under the Mohammedan Law. They are:

(a) The gift has to be necessarily declared by the person making the gift, i.e. the donor;

(b) Such a gift has been accepted either impliedly or explicitly by or on behalf of the donee; and

(c) Apart from declaration and acceptance, there is also a requirement of delivery of possession for a gift to be valid.

23. It is also well settled that the requirement for validity of a Gift Deed are sequential, i.e. one must follow the other. The latter condition can hold if the first one is complied with. In other words, if (a) is not complied with, (b) and (c) would not be of consequence. Similarly, if (a) and (c) are met without (b), it would still be of no consequences. In the end, all the three conditions must be met sequentially. It is also relevant to take note of that registration of a gift is not required under the Mohammedan Law and an unwritten and unregistered Gift Deed executed by the donor in favour of the donees is valid. In the case of Rasheeda Khatoon Vs. Ashiq Ali reported in (2014) 10 SCC 459, the Supreme Court observed the three essential features

for a valid gift which are required to be satisfied. Paragraph 17 of the said judgment is reproduced herein under:

"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 Page No.# 12/13

require registration; that to be a valid gift under the Muhammadan law three essential features, namely, (i) 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."

24. This Court further finds it relevant to take note of that from the pleadings as well as the evidence of the defendants, there is nothing to show that all the three conditions for a valid gift have been proved. There is not even a statement in the pleadings that as the defendant Nos. 1 to 6 were minors at the time when the Gift Deed being Exhibits Ka and Kha were executed, the defendant No.7 who was the father of the defendant Nos. 1 to 6 had accepted the gift on behalf of the defendant Nos. 1 to 6. There is also no evidence in that regard. This Court further finds it relevant to take note of a recent judgment of the Supreme Court in the case of Mansoor Saheb (Dead) and Others Vs. Salima (D) by Lrs. and Others reported in 2024 SCC

OnLine SC 3809 wherein the Supreme Court observed that even in respect to

a registered instrument of gift, the three essential conditions of the gift are to be fulfilled. Paragraph No.28 of the said judgment is reproduced herein under:

"28. Under Mohammedan Law, a gift is to be effected in the manner laid down under the law. If the conditions prescribed by that law are fulfilled, the gift is valid, even though it is not effected by a registered instrument. But if the conditions are not fulfilled, the gift is not valid even though it may have been effected by a registered instrument. Therefore, a valid gift could be made by oral statements as well so long as the three requirements as Page No.# 13/13

discussed above are met thereby. This is because registration is not a requirement which obviates the need for a gift to be reduced in writing."

25. Taking into account the above propositions of law and upon perusal of the evidence on record, Exhibit-Ka, Exhibit-Kha and Exhibit-Cha merely being registered documents would not constitute valid gifts under the Mohammedan Law. Therefore, the substantial question of law which has been formulated by this Court on 02.06.2010 is involved in the instant appeal.

26. Accordingly, the impugned judgment and decree passed by the learned First Appellate Court dated 11.12.2009 in Title Appeal No.13/2007 is set aside and quashed and the judgment and decree dated 18.06.2007 passed by the Learned Trial Court in Title Suit No.5/2004 is restored.

27. The appeal accordingly stands disposed of.

28. The plaintiff shall be entitled to cost throughout the proceedings.

29. The Registry is directed to forthwith return the LCR to the Court below.

JUDGE

Comparing Assistant