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2021 DIGILAW 679 (JK)

Mst. Taja v. Joint Financial Commissioner

2021-12-27

SANJEEV KUMAR

body2021
ORDER : 1. Order dated 09-12-2021, passed by the Joint Financial Commissioner, J&K with the powers of Financial Commissioner, Revenue, Srinagar, in Reference File No. 28/FC/AP titled Mst. Taja vs. Ghulam Ahmad Ellahi, is subject matter of challenge in this petition filed by Mst. Taja under article 226 of the Constitution of India. 2. Precisely put, the facts leading to the filing of this petition are that, on the basis of an oral gift, a mutation bearing No. 1665 dated 05-03-1998 was passed by the Naib Tehsildar with respect to the land measuring 10 kanals and 14 marlas falling under Survey Nos. 144 min, 889 min. 624 min. and 672 of estate Watrihael, Tehsil and District Badgam, in favour of respondent No. 2. Father of the petitioner is shown as donor, whereas respondent No. 2 is a donee in the said mutation, which was impugned before the Divisional Commissioner, Kashmir, in a Revision Petition filed by Mst. Taja - petitioner herein. The petitioner succeeded before the Divisional Commissioner and the impugned mutation, attested in favour of the respondent, was set aside and accordingly reference was made by the Divisional Commissioner to the Financial Commissioner. The Financial Commissioner considered the matter in the presence of learned counsel for the parties and after giving due consideration to the rival contentions, rejected the reference dated 07-06-2021 made by the Divisional Commissioner, Kashmir. The mutation was upheld in terms of its order dated 09-12-2021. 3. Feeling aggrieved and dissatisfied with the order of the Financial Commissioner dated 09-12-2021, the petitioner has filed the instant petition. 4. Order of the Financial Commissioner is assailed by the petitioner in this writ petition primarily on the ground that no mutation on the basis of oral gift could have been attested by the Mutation Officer and, therefore, the decision of the Divisional Commissioner was correct in law. It is further submitted that the mutation was attested by the Mutation Officer in violation of the Standing Order No. 23 and that the mutation, on basis of oral gift made in favour of a stranger to the family, was not entertainable. 5. Having heard learned counsel for the petitioner and perused the record, I am of the considered view that the order impugned passed by the Financial Commissioner is well reasoned. He has eloquently spelt out the reasons in support thereof. 5. Having heard learned counsel for the petitioner and perused the record, I am of the considered view that the order impugned passed by the Financial Commissioner is well reasoned. He has eloquently spelt out the reasons in support thereof. The arguments, which have been raised by the petitioner before me, have been ably dealt with by Financial Commissioner in the order impugned. Relying on the judgment of the apex Court in case titled Mst. Hafiza Bibi and Others vs. Sheikh Fareed, (2011) 5 SCC 654 , the Financial Commissioner has rightly concluded that transfer of immoveable property by way of an oral gift is permissible under muslim law. He is, therefore, correct in arriving at the conclusion that once the oral gift is permissible, the same can very well be reflected in the Revenue Records by way of mutation. Regarding the allegation of the petitioner that an oral gift in favour of a stranger was not permissible, the Financial Commissioner has clearly stated that it was gift of immoveable property in favour of respondent No. 2, who was none other than son-in-law of the donor. It is also noted by the Financial Commissioner that at the time of attestation of mutation, both the donor and the donee were present and the same was also witnessed by the villagers. There is no reason or justification to find fault with the finding of the Financial Commissioner that for constituting a valid gift, three things are required to be complied with: (i) declaration of gift by the donor. (ii) acceptance of the gift by the donee. (iii) delivery of possession. 6. After hearing learned counsel for the petitioner and going through the record, all the three aforesaid ingredients were found fulfilled by the Financial Commissioner before arriving at the decision. The donor and the donee being present on spot and the donor having admitted that pursuant to the oral gift, he has delivered the possession of the subject land to the donee, the transaction, i.e. conveyance by gift was complete. I see no reason or justification to take a view different from the one taken by the Financial Commissioner. The respondent No. 2, being son-in-law of the donor, was looking after the donor till his death and was also maintaining his landed property. I see no reason or justification to take a view different from the one taken by the Financial Commissioner. The respondent No. 2, being son-in-law of the donor, was looking after the donor till his death and was also maintaining his landed property. It is in lieu of the services rendered by respondent No. 2 to the donor that he (donor), out of sheer love and affection, gifted a part of his immoveable property to him (respondent No. 2). This has also been noted with approval by the Financial Commissioner, who is the highest Revenue Authority and a final forum of fact and law under the Land Revenue Act. The judgment passed by the Financial Commissioner ought not to be readily interfered with unless it suffers from perversity. 7. For the foregoing reasons, I find no merit in this petition and the same is, accordingly, dismissed along with connected CMs.