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2015 DIGILAW 1058 (GAU)

Saj Begum v. Assam Board of Revenue at Guwahati

2015-08-20

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. B. Ullah, the learned counsel appearing for the petitioner. The legal heirs of late Tafazzul Islam Saikia (respondent No.3) are represented by the learned counsel Mr. Z. Mukit. The learned Govt. advocate Mr. J. Handique appears for the Addl. D.C., Lakhimpur (respondent No.2). 2. The petitioner is the youngest and unmarried daughter of late Tafazzul Islam Saikia, who was the owner of land measuring 4 kathas 7 lechas covered by Dag No.917 of K.P. Patta No.82 of 1st Part Map of North Lakhimpur Town of Lakhimpur Mouza. A portion of this land measuring 336 sq.ft. encompassing 2 rooms plus 12’ x 9’ veranda was orally gifted by the father in the year 1991 and the petitioner accepted the gift and took possession of the gifted property. In the gifted premises, the daughter started a tailoring establishment under the name and style “Farnaz Fashion and Designer”. Subsequently the father acknowledged the oral gift, through written document executed on 01.11.1996. 3. After receiving the valuable gift from her father, the petitioner applied for mutation under Section 50 of the Assam Land and Revenue Regulation, 1886 (hereinafter referred to as the “Revenue Regulation”) and in the resultant Mutation Case No.229/2002 an order was passed on 18.07.2002 (Annexure-I), whereby the Circle Officer noted the succession and the possession of the daughter over the gifted property and accordingly mutation was granted in respect of the property measuring 336 sq.ft. out of the total 4 kathas 7 lechas land owned by the father. 4. Being purportedly aggrieved by the mutation order, the donor applied for cancellation of mutation on 20.03.2006 (Annexure-II), where the father claimed that he has not executed any deed of gift and accordingly projected that the mutation order was secured by the petitioner by producing forged document. In the resultant Revenue Appeal Case No.6/2003, an order was passed on 23.02.2006 (Annexure-III) by the Addl. D.C., North Lakhimpur, where the officer noted that oral gift is valid under the Mohammedan Law and once the 3 essential ingredients of a gift is complete and possession is obtained prior to execution of the written document on the basis of the oral gift, the mutation granted to the petitioner by the Circle Officer was found to be in order and accordingly the father’s appeal under Section 147 of the Revenue Regulation was dismissed through the order dated 23.02.2006 (Annexure-III) by the Addl. D.C. 5. The appellate authority’s order was assailed by respondent No.3 in the Assam Board of Revenue (hereinafter referred to as the “Revenue Board”), where the petitioner appeared. In the case No.85 RA(L)/06, the approach of the Revenue Board was different. The document executed by the father on 01.11.1996 was considered to be the gift deed and since this was an unregistered document, the Revenue Board opined that this cannot confer a valid transfer to the daughter. Accordingly on this basis despite observing that daughter is in possession of the land, the mutation order passed in her favour by the Circle Officer and the Addl. D.C. was set aside by the Revenue Board, through the impugned order dated 06.05.2008 (Annexure-IV). 6.1 Assailing the legality of the impugned order, Mr. B. Ullah, the learned counsel submits that a fundamental error was committed by the Revenue Board by construing the written document of 01.11.1996 to be the gift deed. The petitioner submits the daughter was orally gifted a portion of the father’s property in the year 1991, whereafter, she took possession and the document written by the donor on 01.11.1996 simply acknowledges the previous oral gift and the succession is not based on the written document. Therefore the petitioner argues that since it was an oral gift by a Mohammedan father to his unmarried daughter, the rigors of transfer through a registered instrument specified in Section 123 of the Transfer of Property Act, 1882 (hereinafter referred to as the “T.P. Act”) will not apply to the oral gift and the 1991 oral transaction would be saved by Section 129 of the T.P. Act. 6.2 The petitioner contends that she took possession of the property soon after the oral gift in the year 1991 and subsequently she has obtained a trade licence and have also paid the municipality tax for the gifted property and accordingly it is argued by the petitioner that the written acknowledgement of the oral gift was erroneously construed as a gift deed by the Revenue Board and that is how they erred in their verdict. 6.3 Mr. 6.3 Mr. B. Ullah, the learned counsel submits that Mohammedan Law permits oral gift of immovable property and once the essential requirements of (i) declaration of the gift by the donor (Ijab); (ii) acceptance of the gift by the donee (Qabul); and (iii) delivery of possession (Qabda) is complete and the donee takes possession, the verbal gift is valid and no written document is required for transfer of valid title to the donee. 6.4 Since the legal heirs of the donor Md. Tafazzul Islam Saikia has contested this case by filing counter affidavit after the death of the donor on 17.01.2010, Mr. Ullah contends that the Warish or the legal heirs cannot contest the oral gift, as that was within the knowledge of the donor and the donee and the successors can’t go against the wish of their father. 7.1 On the other hand, Mr. Z. Mukit, the learned counsel submits that the donor himself filed the Revenue Appeal Case No.6/2003 to challenge the mutation granted to his daughter by the Circle Officer on 18.07.2002 (Annexure-I) and accordingly it is argued that the case projected by the legal heirs is consistent with the stand taken by the donor himself, in his lifetime. 7.2 The learned counsel for the private respondents refers to the written acknowledgement of the donor made on 01.11.1996 (Annexure-1 in the counter affidavit) to contend that interpolation was made in that document to create a 2nd document (Annexure-2 to the counter affidavit) to acknowledge the previous oral gift by the donor and it was the donor himself who in his challenge to the mutation order stated that the daughter secured mutation on the basis of forged document. Since fraud obliterates everything, Mr. Mukit argues that the petitioner could not secure any valid right over her father’s property, on the basis of such forged document or the so called oral gift. 7.3 The learned counsel submits that since the issue of title arising out of forged document crops up in the present case, the matter could not have been decided by the Revenue Authorities and under Section 154 of the Revenue Regulation, the case should be left to be decided by the Civil Court. 8. 7.3 The learned counsel submits that since the issue of title arising out of forged document crops up in the present case, the matter could not have been decided by the Revenue Authorities and under Section 154 of the Revenue Regulation, the case should be left to be decided by the Civil Court. 8. The gift of immovable property under Section 123 of the T.P. Act can only be effected by a registered instrument, but an exception is curved out by Section 129 in respect of gifts made under the provision of the Mohammedan Law, where property transfer through oral gifting is legally recognized. 9. In Illahi Shamsuddin Nadaf Vs. Jaitunbi Makbul reported in 1994(5) SCC 476 , the Supreme Court acknowledged that “an oral gift is perfectly valid under the Mohammedan Law. The declaration as well as acceptance of the gift may be oral whatever may be the nature of the property gifted.” Similarly this Court in Md. Hesabuddin Vs. Md. Hesaruddin reported in AIR 1984 GAU 41 declared that a gift under the Mohammedan Law is legally valid once the 3 essential ingredients of Ijab, Qabul and Qabda are fulfilled and the possession of the gifted property is taken over by the donee. The rigors of Section 123 of the T.P. Act for such oral gift is also addressed by the High Court in this decision. Similar views were taken by this Court in Jubeda Khatoon Vs. Moksed Ali reported in AIR 1973 GAU 105 , Nurumahal Nessa Vs. Dr. Abdul Hakim reported in 1995(2) GLT 492 and Saiful Islam Vs. Hasen Ali reported in 2001(1) GLT 1. 10. What emerges from the above discussion is that under the Mohammedan Law, a registered document is unnecessary for gifting immovable property and if the 3 essential ingredients are satisfied, the donee acquires a valid title through an oral gift. In this case, the daughter claims the gift to have been made by her father orally in the year 1991 and according to her, the written document subsequently executed by the father on 01.11.1996, simply acknowledges the previous oral gift. But the impugned order of the Revenue Board clearly shows that the claim of an oral gift projected by the daughter was overlooked and instead the written acknowledgment of 01.11.1996 was construed as the gift deed, whereby the transfer of property was allegedly effected. 11. But the impugned order of the Revenue Board clearly shows that the claim of an oral gift projected by the daughter was overlooked and instead the written acknowledgment of 01.11.1996 was construed as the gift deed, whereby the transfer of property was allegedly effected. 11. If a written document is the instrument of gift, the same is compulsorily register able through application of Section 123 of the T.P. Act. But at the same time unless the 3 essential ingredients of gifting is satisfied under the Mohammedan Law, mere registration of the document does not confer legal validity on the transaction. Here the Revenue Board construed the document of 01.11.1996 executed by the father to be the instrument of gift and since the said document was unregistered, it was thus held that the daughter does not acquire valid title through such unregistered gift deed and on that basis the order passed by the Addl. D.C. on 23.02.2006 (Annexure-II) in the Revenue Appeal Case No.6/2003 was held to be invalid. 12. But the issue here is whether it is a case of succession through oral gift because the petitioner’s projected case is that she accepted the oral gift from her father in 1991 and took possession of the gifted property. In fact, the possession of the daughter is acknowledged by all the forums and that is how the mutation was granted to her on 18.07.2002 (Annexure-I) by the Circle Officer. 13. According to the respondents, interpolation was made in the written document executed by their father on 01.11.1996 to reflect that the property was gifted orally to the daughter earlier in the year 1991. In fact, in the application filed by Md. Tafazzul Islam on 20.03.2006 (Annexure-II) it is alleged that the petitioner secured mutation by producing forged document and the applicant never executed any deed of gift in favour of his daughter. When allegation of forgery is made by a party and on that basis the transfer of title is questioned, the proper forum for adjudication of such dispute is the Civil Court and Section 154 of the Revenue Regulation gets attracted to such matters. In Sukumari Dev Vs. Manindra Ch. Dev reported in (1991)1 GLR 236, this Court after referring to the provisions of Section 154, held that the Civil Court is the best authority to decide title over property and can also direct cancellation of mutation in such cases. In Sukumari Dev Vs. Manindra Ch. Dev reported in (1991)1 GLR 236, this Court after referring to the provisions of Section 154, held that the Civil Court is the best authority to decide title over property and can also direct cancellation of mutation in such cases. 14. It is apparent in the present case that the adjudication process must take into account the allegation of forgery made by the donor. The title issue of the gifted property is also required to be decided. Thus while deciding the appropriate forum, these two factors must be taken into account. 15. Mutation under Section 50 of the Revenue Regulation is granted primarily on the basis of possession by the person succeeding to the estate but it well known that mutation does not confer any title. Therefore, on the strength of the mutation order granted to her on 18.07.2002 (Annexure-I), the daughter cannot claim a legal title, although she may be in possession of the gifted property. 16. It may also be borne in mind that revocation of gift by the donor even after delivery of possession is permissible. But the gift can be revoked only by the donor and not by his legal heirs when the donor is dead. However under sub-clause (4) of Section 167 of the Mohammedan Law, once possession is delivered, revocation of gift can be ordered only through a decree of the Civil Court. 17. When the Court is confronted with an allegation of forgery and the revocation of gifted property is sought by the legal heirs after possession is delivered and taken over by the donee, the proper forum to decide the issue in my perception is the Civil Court where the contesting parties can lay their evidence. In this case the donor and now his legal heirs, are questioning the legality of the gift and have applied for revocation. In their challenge, the donor alleges forgery of the written instrument whereby the oral gift was acknowledged by the donor. In such circumstances, consistent with the provisions of Section 154 of the Revenue Regulation, since the Revenue authorities are not the best forum to decide the issue of title and the question of forgery, it has to be held that the aggrieved party who make the challenge should go to the Civil Court, if so advised. In such circumstances, consistent with the provisions of Section 154 of the Revenue Regulation, since the Revenue authorities are not the best forum to decide the issue of title and the question of forgery, it has to be held that the aggrieved party who make the challenge should go to the Civil Court, if so advised. In that event, if a case is made out by the challengers, the Civil Court can declare the oral gift to be invalid and revoke the same and the title of the land can also be declared in favour of the donor or their successors. The consequential order for correction of mutation can also be ordered by the Civil Court as was held in Sukumari Dev (supra). 18. When the petitioner claims her right to the gifted property on the basis of a verbal gift made by the father to the daughter in the year 1991, the Revenue Board should not have described the written acknowledgement of the donor to be the gift deed. Of course, the appellant before the Revenue Board could have projected that no oral gift was made, but this aspect was never taken into consideration and the Revenue Board proceeded with the erroneous understanding that the written acknowledgement of 01.11.1996 was the gift deed. According to me this was an incorrect approach and therefore the impugned judgment of the Revenue Board rendered in the Case No.85RA(L)/06 is declared to be vitiated and the same is accordingly quashed. But this order will not preclude the right of the respondents if so advised, to approach the Civil Court to apply for revocation of the gift and for declaration of title in their own favour, as the successors of the donor Md. Tafazzul Islam Saikia. It is ordered accordingly. 19. With the above order, this case stands allowed without any order on cost.