Mohd. Maqbool Bhat vs Rafiqa

Mr. Hasnain Massodi, J. - Challenge is to orders of Joint Financial Commissioner (AR) dated 20th August 2009, whereby revision

petitions, titled Mst. Rafiqa v. Mohd. Maqbool Bhat (File No. 390/Jt.FC/App) and Mst. Rafiqa v. Mohd. Maqbool Bhat and others

(File No. 391/Jt.FC/App), have been accepted and mutation order no. 587 dated 21st January 1989 and mutation order no. 2453, dated 2nd

July 1996, set-aside, and matter remanded to Tehsildar, Ganderbal, for fresh orders. Petitioner also calls in question order dated 9th June 2010,

passed by J&K Special Tribunal in appeal titled Muhammad Maqbool Bhat v. Mst. Rafiqa, whereby appeal against order of Joint Financial

Commissioner (AR) has been held not maintainable.

I have gone through pleadings as also record available on record, and have heard learned counsel for parties.

From perusal of record, it transpires that Sultan Bhat son of Nabir Bhat resident of Chaundina Tehsil Ganderbal, passed away, sometime before

dispute regarding his estate cropped up, leaving behind a son and six daughters. Petitioner is son of deceased and respondents 1 to 6 are his

daughters. Sometime after demise of Sultan Bhat, mutation in respect of his estate at Tulmulla was attested vide mutation order no. 587 dated 21st

January 1989 in favour of petitioner on the basis of oral gift, to the exclusion of respondents 1 to 6. Similarly, mutation in respect of estate left by

deceased at village Shala Bugh was attested vide mutation order no. 2453 dated 2nd July 1996, in favour of petitioner on similar grounds and to

the exclusion of respondents 1 to 6.

Mutation orders, passed by Naib Tehsildar Tulmulla and Tehsildar Ganderbal, being no. 587 (village Tulmulla) and no. 2453 (village Shala

Bugh), were questioned in two revision petitions before Financial Commissioner (Revenue). Revision Petitions came to be transferred to Joint

Financial Commissioner (AR) for disposal. Revisional Authority accepted both petitions, taking view that oral gift was not recognised as a mode of

transfer of immovable property as per Standing Order 23-A (Mutation) and therefore. orders deserved to be set-aside. Revisional authority,

setting aside mutation orders, remanded the matter to Tehsildar, Ganderbal, for fresh orders in terms of J&K Muslim Personal Law (Shariat)

Application Act, 2007, after hearing all interested parties.

The order of Joint Financial Commissioner (AR) dated 20th August 2009 was questioned in an appeal before J&K Special Tribunal. The

Tribunal held appeal as non-maintainable as the order was not passed under J&K Agrarian Reforms Act, 1976.

Heard. Considered.

Revisional Court while disposing of revision petitions failed to appreciate that it is permissible for a person, professing Islam, to make oral gift of

his property in favour of any person and once oral gift is made, subject matter of gift gets transferred to donee. However, gift is to satisfy all three

conditions as are required to be satisfied in case of a gift in writing.

The conditions, to make oral gift valid, are: that declaration of gift must be made by donor; it must be accepted by donee, and possession of

subject matter of gift delivered to donee. It appears, that Full Bench judgment of J&K High Court reported as Ghulam Ahmad Sofi v. Mohd.

Sidiq Dareel and others [2010 (7) JKJ 244 [HC] : 1974 AIR J&K 59] has not been brought to the notice of Revisional Authority by counsel

for parties while addressing arguments in the matter. The view taken by Revisional Authority that oral gift was not recognised under law, mutation

orders in question could not have been attested in favour of petitioner, therefore, cannot be accepted.

Hon'ble Supreme Court in Hafeeza Bibi and Ors. v. Sheikh Farid (Dead) by LRs and Ors. (2011) 5 SCC 652 had an occasion to

consider validity of oral gift of immovable property made by a Muslim. Oral gift was held to be valid as long as it satisfied essential ingredients laid

down under law. It would be advantageous to reproduce paragraphs 27 to 29:

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:

(i) declaration of the gift by the donor; (2) acceptance of the gift by the done 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 make the gift complete and irrevocable.

However, the donor may record the transaction of gift in writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and

revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds: (i) it may merely recite the fact of a prior gift; such

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 authority says that registration, however, by itself without the other necessary conditions, is not sufficient.

Mulla, Principles of Mohammadan Law (19th Edition), Page 120, states the legal position in the following words:

Under the Mohammadan law the three essential requisites to make a gift valid: (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 Transfer of Property Act, excludes the rule of Mohammadan 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 Mohammadan 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.

In our opinion, 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 could be made by 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 the essential requisites

must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting 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.

Apex Court judgment was noticed by Secretary to Government, Revenue Department, who vide Circular No. Rev/S/163/2011 Part-II dated

9th October 2013, impressed upon all concerned authorities to implement judgment viz-a-viz law/rules governing the subject matter. The orders

dated 20th August 2009, whereby revision petitions were accepted, therefore, cannot stand legal scrutiny and are liable to be set-aside. In the said

background, it is not necessary to examine order rendered by J&K Special Tribunal, opining that order impugned before it, was not one passed

under J&K Agrarian Reforms Act, and therefore, appeal to Tribunal was not maintainable.

For reasons discussed, writ petition is allowed and orders dated 20th August 2009, set aside. However, respondents 1 to 6 would be free to

question oral gift, on the basis whereof mutation has been attested in appropriate proceedings, if so advised, on the ground that gift was not made

or did not satisfy essential ingredients necessary to be fulfilled to make gift valid. In the event any such proceedings are initiated, the Court shall

deal with the matter uninfluenced by observations made in this order.

Disposed of. Record be sent down.