Back
GAUHATI HIGH COURT
A.K. Goswami, J.
Habibur Rahman & Ors. - Appellant
Versus
Sirajuddin Choudhury (died) & Ors. - Respondent
RSA No. 3/2007 & RSA No. 11/2007
Decided On : 09-10-2015
Evidence Act - Section 67 - Transfer of Property Act - Section 122 and 150 - Registration Act, 1908 – Land Dispute - Gift deed - Evidence - Recovery of possession - Decreed - Predecessor of defendants and grandfather of plaintiff donated the suit land along with some other land measuring 8 bigha 6 chatak to him as father of plaintiff, who was the son had expired during the lifetime of his father and as plaintiff would not otherwise inherit any property of in view of law of inheritance of Mahomedan Law - Plaintiff accepted the gift and got delivery of possession - They also generally denied allegations of the plaintiff - It is averred that the alleged deed of gift is illegal and same was never acted upon by the so called donor or by plaintiff himself and that in fact it was never executed - There was no gift and therefore there was no question of acceptance of gift by and delivery of possession to plaintiff - It is also averred that plaintiff, who was aged about 4/5 years being a minor could not have accepted the gift - It is further pleaded that land left behind by deceased was inherited by legal heirs and their names were mutated in suit patta, which was to knowledge of plaintiff and plaintiff never objected to such mutation raising dispute that there was a gift deed in his favour -Held, Gift was made for benefit of minor and well-being of te minor is of paramount importance - In such circumstances mother who was in charge of the minor, can accept te gift - Acceptance of gift by the mother does not mean that mother was dealing with the property of minor because till the acceptance of gift on behalf of minor, property does not belong to the minor - It is not that the mother had in any way at any point of time sought to dispose of property belonging to the minor - It must not be forgotten that suit land was mutated in names of the vendors of the sale deed by way of inheritance and there was no objection by plaintiff to such mutation - That apart, dag numbers were also wrongly given in the gift deed, Ext. 1 and same were not corrected and rectified - Without there being any challenge to Ext. A, learned courts below proceeded to embark upon an enquiry to find out legality and validity of sale deed and whether defendant No. 14 could have taken possession of land in Dag No. 174 by virtue of such sale deed - Appeals deserve to be allowed
2. RSA No. 3/2007 is preferred against the judgment and decree dated 17.3.2006 passed by the learned Civil Judge (Senior Division) No. 1, Cachar at Silchar in Title Appeal No. 17/2001 dismissing the appeal and affirming the judgment and decree dated 21.5.2001 passed by the learned Civil Judge (Junior Division), No. 1, Cachar at Silchar in Title Suit No. 88/1997. RSA No. 11/2007 is preferred against the judgment and decree dated 17.6.2006 passed by the learned Civil Judge (Senior Division), No. 1, Cachar at Silchar in Title Appeal No. 15/2001 dismissing the appeal and affirming the judgment and decree dated 21.5.2001 passed by the learned Civil Judge (Junior Division), No. 1, Cachar at Silchar in Title Suit No. 88/1997.
3. RSA No. 3/2007 is preferred by the defendant No. 14 and RSA No.11/2007 is preferred by the defendant No. 2.
4. Both the second appeals were admitted to be heard by separate orders passed on 12.4.2007 on identical substantial questions of law, which are as follows:
“1. Whether the learned court below erred in decreeing the suit of the respondents/plaintiffs in respect of the land covered by Dag Nos. 175 and 176 said to have been conveyed by gift deed Ext. 1 though the said document confines the transaction to the land covered by Dag No. 174 and 175?
2. Whether the learned court below erred in law in decreeing the suit of the respondents/plaintiffs by leaving out of consideration the fact that they had failed to prove the statutory prescribed essentialities of a valid gift under the Mohammadan Law?
3. Whether the learned court below erred in law in decreeing the suit of the respondents/plaintiffs on the face of the evidence on record that at the time of purported acceptance of the gift the original plaintiff was a minor and that the same had been accepted by his mother, which is impermissible in law?”
5. During the course of hearing, on 5.10.2015, after hearing the learned counsel for the parties, another substantial question of law was framed which is as follows :
“4. Whether in absence of any challenge to the sale deed, Ext. A, executed in favour of the defendant No. 14 by some of the defendants, the learned courts below could have decreed the suit of the plaintiff declaring his right, title and interest as well as recovery of possession?
6. The plaintiff filed the suit for declaration of right, title, interest and confirmation of possession and injunction over the suit land. The plaintiff had also prayed for a declaration that he is entitled to have mutation over the suit land. The plaint was amended later on. The aspect relating to amendment of the plaint will be dealt with later.
7. The case of the plaintiff is that the predecessor of the defendants and grandfather of the plaintiff, late Hazi Abdul Aziz Choudhury donated the suit land along with some other land measuring 8 bigha 6 chatak to him as the father of the plaintiff, Mufiz Uddin Choudhury, who was the son of Hazi Abdul Aziz Choudhury, had expired during the lifetime of his father and as the plaintiff would not otherwise inherit any property of Hazi Abdul Aziz Choudhury in view of law of inheritance of Mahomedan Law. The plaintiff accepted the gift and got delivery of possession. In connection with the gift, a gift deed dated 26.4.1958 was executed and registered by Hazi Abdul Aziz Choudhury. It is pleaded that in the gift deed, Dag No. 175 was mentioned inadvertently in place of Dag No. 174 in respect of 2nd R.S. Patta No. 7 and Dag No. 176 was wrongly mentioned in place of 175 in respect of 2nd R.S. Patta No. 109. Total land in the aforesaid two dags comprises of 4 bigha 5 katha 6 chatak and both the dags, though in different pattas, are contiguous and was bounded by the boundary as described in the Schedule to the plaint. It is also
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
