An oral gift of agricultural land under Mahomedan law is invalid unless registered, per statutory requirements, overriding personal law principles.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. This appeal has been filed against the judgment and decree dated 24.06.2016 (decree signed on 05.07.2016) passed in Partition Appeal No. 53 of 2013 by the learned District Judge No. VIII, Palamau at Daltonganj, whereby the learned appellate Court has allowed the appeal filed by the plaintiff against the judgment and decree dated 07.09.2013 (decree signed on 16.09.2013) passed by the learned Senior Civil Judge-I, Palamau Daltonganj in Partition Suit No. 53 of 2009.

2. This appeal was admitted vide order dated 16^th August 2019 whereby the following substantial question of law has been framed:

“Whether Mohammedan can transfer his occupancy holding by an oral gift (Hiba) and whether the learned court below has failed to properly consider this aspect of the matter?”

Arguments of the appellants

3. Learned counsel for the appellants while referring to the substantial question of law framed by this Court has made alternative submissions. He has submitted that the point so framed can be directed to be decided by the learned appellate Court or the trial Court who may return a finding with regard to that aspect of the matter and in the alternative, it is submitted that even from perusal of the records of this case, the matter can be decided.

4. The learned counsel has submitted that the plaintiff was the son of the defendant. The defendant (the original appellant before this court) expired during the pendency of this case and his legal heirs have been substituted; some of them have been substituted as proforma respondents in this case who have not appeared before this Court in spite of service of notice.

5. The learned counsel submits that a suit was filed stating that the defendant had given the property involved in this case by way of oral gift to one of his sons, the plaintiff, who had also accepted the gift. The learned counsel submits that as per Mahomedan Law, Mulla 20^th Edition, Appendix I, which contains the Muslim Personal Law (Shariat) Application Act, 1937 , Section 2 thereof deals with application of personal law to Muslims and upon perusal of the same, it is clear that this act is not applicable to agricultural land and under such circumstances, there cannot be any oral gift with regards to agricultural land.

6. The learned counsel has referred to paragraphs 4 and 6 of the evidence of D.W.-2 who was the defendant to submit that the defendant had clearly denied the execution of oral gift and had also stated that he had other children and therefore there was no question of giving half share of the property to the plaintiff. He has also relied upon the evidence of D.W. 3 and has submitted that D.W. 3 had clearly stated that the land was agricultural land and in paragraph 6, he had clearly stated that the defendant had informed him that the plaintiff is unnecessarily stating that the property was gifted to him orally but he had actually never given the property to the plaintiff and consequently no right accrued in favour of the plaintiff.

7. The learned counsel has further referred to the judgment passed by the Hon’ble Patna High Court reported in AIR 1960 Patna 297 (Mt. Bibi Sharifan Vs. Sheikh Salahuddin & Others) and has submitted that the issue which was raised in that case was as to whether a Mahomedan can transfer his occupancy holding by an oral gift and the said issue was answered by stating that the occupancy holding rights cannot be transferred by oral gift. The learned counsel submits that these aspects of the matter have not been property considered and therefore the substantial question of law so framed by this Court is fit to be answered in favour of the plaintiff.

8. The learned counsel has referred to Sections 11 and 23A of the Chotanagpur Tenancy Act, 1908 to submit that those sections are analogous to the corresponding provisions under Bihar Tenancy Act, therefore the aforesaid judgement decided in the context of Bihar Tenancy Act, would apply to the property covered by Chotanagpur