IMPORTANT POINT
The central legal point established in the judgment is the requirement to prove the execution of gift deeds in accordance with the law, including the need for delivery of possession for a valid gift.

JUDGMENT :

This is appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the judgment and decree dated 24.09.2008 passed in Title Appeal No.36/2006 by the Court of the learned Civil Judge, Barpeta whereby the judgment and decree dated 17.07.2006 passed by the learned Munsiff No.1 Barpeta in connection with Title Suit No.12/2000 was upheld.

2. This Court vide order dated 19.02.2020 admitted the instant appeal by formulating the substantial question of law as to whether a gift deed executed in terms with Section 123 of Transfer of Property Act, 1882, there is a requirement of delivery of possession to constitute a valid gift ?

3. For ascertaining as to whether the said substantial question of law arises in the instant appeal, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal:

The respondent herein as Plaintiff had instituted a suit against the Appellant Nos.1 and 2 herein seeking declaration of her right, title and interest as well as khas possession in respect to the land described in Schedule B to the plaint. The Plaintiff also sought for permanent injunction. From the facts narrated in the plaint, it reveals that the Plaintiff claimed to be the daughter of one Nayan Ali Kha and the Schedule A land originally belonged to the said Nayan Ali Kha and Mazam Ali, who were both sons of Tahar Ali. After the death of Nayan Ali Kha, the name of the Plaintiff was duly mutated as the legal heir. Along with the Plaintiff, the name of one Aymona Khatun was also mutated as the legal heir, after the death of Mazam Ali, inasmuch as, the said Aymona Khatun was the wife of Late Mazam Ali. Subsequent thereto, Aymona Khatun expired leaving no heir. It was also mentioned that one Joynal Uddin Khan was the son of Tachur Ali, whose name was mutated in connection with 5 bighas, 2 kathas, 4 lechas of land out of the land mentioned in Schedule A. The said Joynal Uddin Khan expired leaving behind no legal heir except the Plaintiff and as such the Plaintiff claimed to be entitled to the properties of Late Joynal Uddin Khan.

4. It was also mentioned that after the death of Joynal Uddin Khan, the name of one Kanchu Sheikh was mutated as the share-holder in place of Joynal Uddin Khan on 14.09.1993 and pursuant to the death of Kanchu Sheikh, the names of the defendants, who were the sons were mutated. It was mentioned that on 15.03.1995, the defendants dispossessed the Plaintiff from the suit land on the strength of the mutation. It was alleged that Late Kanchu Sheikh had collusively mutated his name during his lifetime in connection with the lands of Late Joynal Uddin Khan. It is on account of the defendants denying the title of the Plaintiff, the suit was filed seeking declaration of right, title and interest as well as for khas possession evicting the defendants from the suit land; for declaration of the order of chitha mutation dated 14.09.1993 as illegal, void, and inoperative in law; an order for sending a precept to the Revenue Authority for correction of the records; for permanent injunction etc.

5. Pursuant to the filing of the plaint, written statement was filed by the defendant Nos.1 & 2 jointly, taking various preliminary objections. Apart from denying the statement and allegations mentioned in the plaint, it was stated that the Plaintiff and the defendants are from one and the same ancestors’ family, namely, Kudrat Khan. The said Kudrat Khan had two sons namely, Taher and Usman. Taher Khan died leaving behind three sons namely, Mazam Khan, Nayan Khan and Joynal Uddin Khan. On the other hand, Usman Khan died leaving behind his sons, Jashim Khan and Kanchu Khan. The Plaintiff is the daughter of Nayan Khan and the defendants are the sons of Kanchu Khan. It was further mentioned that there was civil suit between Late Joynal Uddin and Aymona Khatun in the Civil Court wherein Joynal Uddin got a decree against pattadar Aymona Khatun over 5 bighas 2 kathas and 4