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THE HIGH COURT OF SIKKIM AT GANGTOK
PIUS C. KURIAKOSE, J.
Nar Bahadur Khatiwada - Appellant/Plaintiff
Versus
State of Sikkim - Respondents/Defendants
R.F.A. No. 2 of 2013
Decided on: 15.07.2013
The Court held that the gift deed executed by the donor in favor of the plaintiff was valid and the plaintiff had taken possession of the property covered by the gift deed. The defendants were duty-bound to register the gift deed. The acquisition of the property by the defendants during the pendency of the suit did not affect the right derived by the plaintiff over the property by virtue of the gift deed. The defendants did not act malafide in paying the compensation to the donor notwithstanding the gift deed. The plaintiff was entitled to a declaration that he was in possession of the suit property at the time of the acquisition and that the defect in the title due to non-registration of the gift deed was caused by the defendants. The plaintiff could seek relief for his grievance regarding the compensation amount by filing a suit against the legal representatives of the donor.
Fact of the Case:
The plaintiff filed a suit against the defendants, the State of Sikkim and the Sub-Registrar, seeking a declaration of his right, title, and interest in a property covered by a gift deed executed in his favor by the donor, L.D. Kazi. The plaintiff also sought a direction for the registration of the gift deed and an injunction restraining the defendants from interfering with his possession of the property. The defendants resisted the suit, contending that the gift deed was invalid due to non-registration and that the property had been acquired by the State under the Land Acquisition Act.
Finding of the Court:
The Court found that the gift deed executed by L.D. Kazi in favor of the plaintiff was valid and that the plaintiff had taken possession of the property covered by the gift deed. The Court also found that the defendants were duty-bound to register the gift deed and that the acquisition of the property by the defendants during the pendency of the suit did not affect the right derived by the plaintiff over the property by virtue of the gift deed. The Court further found that the defendants did not act malafide in paying the compensation to L.D. Kazi notwithstanding the gift deed.
Issues: 1. Whether the gift deed executed by L.D. Kazi in favor of the plaintiff was valid and whether the plaintiff had taken possession of the property covered by the gift deed. 2. Whether the defendants were duty-bound to register the gift deed. 3. Whether the acquisition of the property by the defendants during the pendency of the suit affected the right derived by the plaintiff over the property by virtue of the gift deed. 4. Whether the defendants acted malafide in paying the compensation to L.D. Kazi notwithstanding the gift deed.
Ratio Decidendi: The Court held that a gift deed is valid if it is executed by the donor and accepted by the donee, and if it is attested by two witnesses. The registration of a gift deed is only a necessary formality and does not affect the validity of the gift. The Court also held that the acquisition of property under the Land Acquisition Act does not affect the right of a person who has derived a right over the property prior to the acquisition. The Court further held that the defendants were not justified in paying the compensation to L.D. Kazi after the gift deed had been executed in favor of the plaintiff.
Final Decision: The Court declared that the plaintiff was in possession of the suit property at the time of the acquisition and that the defect in the title due to non-registration of the gift deed was caused by the defendants. The Court also directed the District Collector to pass an order on the plaintiff's application for reference under Section 18 of the Land Acquisition Act. The Court further observed that the plaintiff could seek relief for his grievance regarding the compensation amount by filing a suit against the legal representatives of L.D. Kazi.
Pius, J.
The unsuccessful plaintiff in Title Suit No.08 of 2012 on the files of the Court of the District Judge, Special Division–II, East Sikkim at Gangtok is the appellant in this First Appeal. The respondents/defendants are – (i) the State of Sikkim through the Secretary, Land Revenue Department, Government of Sikkim and (ii) Sub-Registrar/District Collector, East District, Sikkim. Parties will be referred to hereinafter, for the sake of convenience, as “appellant/plaintiff” and “respondents/defendants” respectively. The appellant’s case as pleaded by him has been narrated in great detail by the Court below in the impugned judgment and hence for the seek of brevity, I am adverting to them only briefly.
2. According to the appellant, on 10.12.1986 a gift deed was executed by Late Kazi Lhendup Dorjee Khangsarpa (L. D. Kazi for short,) in his favour in respect of the suit property, which is an extent of 0.35 acres corresponding to 0.0845 hectares of land bearing plot No. 713 at Gangtok Bazar, East Sikkim bounded within the following 4 (four) boundaries –
East : 31 A National High Way.
West : Masjid Compound.
North : Road to old West Point School and Masjid.
South : Building of Dr. (Mrs.) Changchup, D. Chankapa and T.T. Chankapa.
According to him, the above gift deed was presented on the day of execution before the Sub-Registrar, East Sikkim for registration, who after receipt of the same, deferred the registration to 11.01.1987 issued public notice inviting objection, if any, regarding the proposed registration. The appellant says that even though nobody filed any objection in response to the public notice given by the Sub-Registrar, the Sub-Registrar on 24.07.1987 and 15.03.1988 refused to register the gift deed on the reason that the transaction was not permissible in the absence of express sanction from the State Government in view of Revenue Order No.1. The appellant made an appeal against the order of the Sub-Registrar to the Appellate Authority (the Secretary, Land Revenue Department, Government of Sikkim). The Appellate Authority by its Order dated 15.03.1988 would uphold the Order of the Sub-Registrar, nevertheless observing that the suit property is not an agricultural property indicating that the same is urban property falling within the limits of Gangtok town.
3. According to the appellant, thereafter, he, the Donee and L.D. Kazi, the Donor filed Writ Petition No.6 of 1988 arraying the defendants as respondents challenging the order of the Appellate Authority before the High Court of Sikkim. The High Court of Sikkim allowing the writ petition quashed the Order of the Appellate Authority and issued a direction to the respondents to register the gift deed in favour of the appellant. The appellant avers that against the judgment of the High Court of Sikkim in Writ Petition No.6 of 1988, the respondents preferred Special Leave Petition No.9706 of 1989 before the Hon’ble Supreme Court. The above Special Leave Petition was later registered as Civil Appeal No.6706 of 1995. The appellant submits that the civil appeal was dismissed by the Hon’ble Supreme Court, taking the view that the issue involved therein had become purely academic in view of the subsequent event of the State Government acquiring the suit property under the provisions of the Land Acquisition Act and the compensation for the suit property being paid already to the Donor, Shri L.D. Kazi.
4. The appellant points out that even as the Civil Appeal was dismissed, the Hon’ble Supreme Court had left open the question of law involved to be decided in an appropriate case. He further points out that the notification for acquisition of the suit property was promulgated by the State Government during the pendency of Writ Petition No. 6 of 1988 and that though he and the Donor together filed the Writ Petition No. 18 of 1988 challenging the land acquisition proceedings, the Donor, L.D. Kazi withdrew his name from the writ petition leaving him alone to pursue the legal ba
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