Jammu & Kashmir High Court – Srinagar Bench
Abdul Majid Bhat S/O Late Mohammad … vs Gulzar Ahmad Bhat on 18 April, 2025
Author: Justicejaved Iqbal Wani
Bench: Justicejaved Iqbal Wani
IN THE HIGH COURT OF JAMMU& KASHMIR AND LADAKH
AT SRINAGAR
.......
CSA No. 13/2017
Reserved on 27.02.2025.
Pronounced on 18.04.2025.
1. Abdul Majid Bhat S/O Late Mohammad Ismail Bhat.
2. Mst. Humeera Majid W/O Abdul Majid Bhat.
Residents of Bagath, Srinagar.
....... Appellant(s)/Petitioner(s)
Through: Mr. H. U Salathi, Advocate.
Versus
Gulzar Ahmad Bhat.
S/O Mohammad Ismail Bhat
R/O Bagath, Srinagar.
......Respondent(s)
Through: Mr. Hakim Suhail Ishtiaq, Advocate.
CORAM: HON'BLE MR. JUSTICEJAVED IQBAL WANI, JUDGE
JUDGMENT
1. The instant Civil Second Appeal has been filed under Section 100 of the
Code of Civil Procedure, by the appellants herein, against the judgment
and decree dated 17.07.2017, (for short ‘Impugned judgment’) passed by
the court of Principal District Judge, Bandiproa (for short ‘Appellate
court’) in Civil 1st Appeal titled as “Gulzar Ahmad Bhat vs. Abdul Majid
Bhat and Another“, filed against the judgment and decree dated
28.05.2015, passed by the court of Munsiff Sumbal (for short ‘trial court’)
in a suit titled as ‘Abdul Majid Bhat and Another vs. Gulzar Ahmad Bhat‘.
2. FACTS
(i) The plaintiffs/appellants herein filed a suit for Declaration and
perpetual Injunction against the defendant/respondent herein before the
trial court on the premise that Mohammad Ismail Bhat being father of
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CSA No. 13/2017.
appellant 1 and respondent herein and father-in-law of appellant 2 herein
(for short ‘Estate holder’), upon his death was survived by his wife, two sons
and daughters and owned land measuring 14 Kanals and 11 Marlas (12
Kanals and 08 marlas in survey No. 1048 and 02 Kanals 03 Marlas in survey
No. 1049) situated at Shilwat, Sonawari (for short ‘suit property’), as also a
residential house with land underneath and appurtenant thereto situated at
Barbarshah. Srinagar, besides, a share in business styled as “Appolo Motors”
jointly held by him with his wife, appellant 1 and respondent herein and that
pursuant to a family settlement, the respondent herein was given the
goodwill and the lease hold rights in the aforesaid business, whereas the
daughters, except one were given their share in cash and kind in full and final
settlement of their rights in the joint family assets, while as the other
daughter had been orally gifted the aforesaid residential house and that the
suit property came to be orally gifted by him; the Estate holder to the
plaintiffs/appellants herein and were put in exclusive possession thereof to
the exclusion of others including the respondent herein and claimed
independent of the said oral gift perfection of their title over the suit
property on account of being in adverse possession thereof, and that the
Estate holder had made an express declaration of the aforesaid oral gift qua
the suit property on 12.06.1987, 04.05.1988 and 07.02. 1989 respectively
before the Sadar Mufti, Central Darul-Fathua, Srinagar, confirming the
bequeathing of the suit property and transfer of its possession in equal
shares in favour of the plaintiffs/appellants herein, consequent to which
mutations bearing No’s 814,816 and 836 came to be attested in their favour
Abdul Rashid Ganaie
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CSA No. 13/2017.
and that on 08.03.2001, defendant/respondent herein attempted to
interfere with the possession of the appellants over the suit property by
cutting some trees, resulting to registration of an FIR against him in the local
Police Station.
(ii). On the strength of the aforesaid facts, the plaintiffs/appellants in the suit
supra sought the following reliefs:-
(a) A decree for declaration to the effect that the
plaintiff are in possession in equal shares as
owners thereof of the land measuring 14 Kanals 11
Marlas covered under Khasra No. 1048 to the
extent of 12 Kanals and 8 marlas and Khasra No.
1049 to the extent of 02 Kanals 3 marlas situated
at RakhShelwat Tehsil Sonawari.
(b) A decree for perpetual injunction restraining
the defendant from interfering in the possession of
the plaintiff over the land.
(iii). The defendant/ respondent herein after appearing before the trial court
in the suit through his counsel on 04.03.2002, though sought time to file
written statement to the suit, yet did not file the same and eventually on
31.05.2003, ex-parte proceedings were initiated against defendant/respondent
herein.
(iv) The plaintiffs/appellants herein to support their claim lodged in the suit
supra examined as many as 11 witnesses in ex-parte before the trial court.
(v). On 01.06.2012, the defendants/respondent herein filed an application
before the trial court for setting aside of the ex-parte proceedings which
application came to be however, dismissed on 18.03.2012, aggrieved
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CSA No. 13/2017.
whereof the defendant/respondent herein challenged the same before this
Court in a petition which also came to be dismissed on 06.09.2013,
however, the defendant/respondent herein was permitted to join the
proceedings and argue the case before the trial court.
(vi). The trial court after hearing the counsel for the parties in the suit,
decreed the same vide judgment and decree dated 28.05.2015 in favour of
the plaintiffs/appellants herein, holding that the plaintiffs/appellants have
succeeded in proving the factum of gift in view of the statements of the
scribe of the declarations namely Mufti Mohammad Mehraj-U-din.
(vii). The defendant/respondent herein challenged the judgment and decree
dated 28.05.2015 in an appeal before the Appellate court on multiple
grounds including that the decree was passed on the basis of pleadings
which were never proved during the trial and that there was no evidence
that the plaintiffs/appellants were in possession of the suit property to his
exclusion and that the plaintiffs/appellants have resorted to approbate and
reprobate as on one hand they claimed to be the owners of the suit
property on the basis of an oral gift and on the other hand claimed that they
perfected their title over the suit property on account of being in its
adverse possession.
(viii). During the pendency of the aforesaid appeal before the Appellate court,
the defendant/respondent herein filed an application before the Appellate
court contending therein that the plaintiffs/appellants herein were not
married on the date of pronouncement of alleged gifts, qua the suit
property, requiring thus the plaintiffs/appellants to produce their Nikha
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CSA No. 13/2017.
Nama in this regard in the objections filed thereto the said application by
the plaintiffs/appellants herein, it came to be stated that since they happen
to be cousins and had been engaged to each other prior to the declaration of
the gifts in question by the Estate holder, the traditional Rukhsati in the
marriage however had taken place in the year 1990 and that the Nikha
Nama, in fact, stands destroyed in the floods of September, 2014 and, as
such, cannot be produced.
(ix). The Appellate court after considering the appeal and hearing the
counsel for the parties vide impugned judgment and decree reversed the
judgment and decree of the trial court on the premise that none of the
witnesses of the plaintiffs/appellants herein had either deposed before the
trial court qua the declaration of gifts made by the Estate holder or else to
the handing over of the actual possession of the suit property pursuant to
the said gifts. The said conclusion came to be drawn by the Appellate court
on the premise that the plaintiffs/appellants herein were not in the
relationship of a husband and wife at the time of making of gifts in
question by the Estate holder according to the objections filed by the
plaintiffs/appellants herein to the application filed by the
defendant/respondent herein before it i.e. the Appellate court wherein the
production of Nikha Nama was also sought by the respondent herein in the
application filed before it. The Appellate court also concluded that the
scribe of the gift deeds in question had also only proved the execution of
said deeds and not as to when the plaintiffs/appellants were put in
possession of the suit property by the Estate holder pursuant to the gifts.
The Appellate court lastly concluded in the impugned judgment that the
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authenticity of this
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CSA No. 13/2017.
gift deeds in question were compulsorily required to be registered under
Section 17 of the Jammu and Kashmir Registration Act, 1977, and thus
reliance placed by the trial court on the said gift deeds was legally
impermissible.
03. The plaintiffs/appellants herein have challenged the impugned
judgment on multiple grounds in the instant appeal.
04. This Court has admitted the instant appeal on 15.12.2021, on the
following substantial questions of law:-
(I) Whether the declarations made on 12.06.1987,
04.05.1988 and 07.02.1989 made by the donor
amounts to valid gift under Mohammadan Law?
(II) Whether the findings returned by the appellate
court that the appellant is not in possession of suit
property is perverse?
Heard learned counsel for the parties and perused the record.
04.According to Mr. H. U Salathi, appearing counsel for the
plaintiffs/appellants herein, the finding of the Appellate court that the gift
deeds in question were compulsorily to be registered under Section 17 of
the Registration Act, supra is against the mandate of Section 23 and 129 of
The Jammu and Kashmir Transfer of Property Act, 1977 as well as the
judgment of the Apex Court passed in case tilted as Hafeeza Bibi v.
Sheikh. Farid, reported in 2011 SCC 654 and also that the gift deeds in
question were in fact only a declaration of the oral gifts made by the Estate
holder in favour of plaintiffs/appellants herein earlier pursuant to a family
settlement.
Abdul Rashid Ganaie
I attest to the accuracy and
authenticity of this
document
7
CSA No. 13/2017.
05. On the contrary Mr. Hakim Suhail Ishtiaq, appearing counsel for the
defendant/respondent herein contended that the entire claim of the
plaintiffs/appellants herein over the suit property, in fact, is founded on the
family settlement, pursuant to which the Estate holder is stated to have
orally gifted the share in his estate to the plaintiff appellant 1 herein, to
which the plaintiff appellant 1 herein was entitled. Mr. Hakim Suhail
would submit that, however, neither the said alleged family settlement has
been proved nor can the said gift deeds be construed as declarations made
prior to oral gift in question as they are contemporaneous with the
aforesaid act of the gifting the same to the plaintiff appellant 1 herein and
do not anywhere record the factum of delivery of possession of the gifted
property. Mr. Hakim, thus would insist that in absence of proving the said
family settlement inasmuch as, delivery of possession of the suit property,
the gift deeds cannot said to be fulfilling the essential requisites of a valid
gift. Mr. Hakim would contend that the gift deeds did not contain any
mention of any family settlement, but the reason for the oral gift has been
mentioned the services rendered by the plaintiffs/appellants towards Estate
holder in his old age. Mr. Hakim would also reiterate the plea of the
defendant/respondent herein that the plaintiffs/appellants herein were not
married on the date of alleged gift, as the actual marriage between them
had taken place in the year 1990 having been admitted by them in the
objections filed to the application filed by the defendant/respondent for
production of Nikha Nama before the trial court and, therefore, the
execution of gift deeds becomes seriously doubtful. In support of his
submission, Mr. Hakim has heavily relied upon the judgment of the Apex
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CSA No. 13/2017.
Court passed in case tilted as Lilian Coelho & Ors. Vs. Myra Philomena
Coalho [Civil Appeal No. 7198 of 2009] to suggest that it is within the
jurisdiction of a court to hold that an instrument even though having been
held genuine is not worthy to act upon if it is shrouded in suspicious
circumstances when the propounder fails to remove such suspicious
circumstances to the satisfaction of the court.
06. Before proceedings further in the matter it would be advantageous to
refer to the essential ingredients of a valid gift under Muslim Personal Law
being, (a) Declaration of the gift by the donor;(b) Acceptance of the gift by
the donee: and (c) Delivery of Possession of the gifted property.
Thus in law, for a gift to be valid, compliance of the above three
essentials are necessary in the aforesaid sequence and if one of the said
essentials is missing, a gift cannot be said to have been validly made.
07. Besides a reference to Sections 123 and 129 of J&K Transfer of
Property Act, supra would also be advantageous which reads as under:-
123. Transfer how effected. -For the purpose of
making a gift of immoveable property, the transfer must
be effected by a registered instrument singed by or on
behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable
property, the transfer may be effected either by a
registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods
sold may be delivered.
Explanation.-The word “attest” has the same meaning in the
section as in section 59.
Abdul Rashid Ganaie
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CSA No. 13/2017.
129. Saving.- Nothing in this chapter relates to gifts of
moveable property made in contemplation of death or
shall be deemed to affect, save as provided by section 123,
any rule of Hindu or Buddhist law, or to effect any rule of
Mohammedan Law.
As is manifest from the above provisions, in terms Section 123 supra
transfer by virtue of a gift can only be effected by a registered instrument
signed by or on behalf of the donor and attested by at least two witnesses to
this general requirement however, has an exception contained in Section 129
supra which provides that nothing in the chapter relating to gifts shall be
deemed to affect any rule of Mohammedan Law.
The aforesaid position contained in the said provisions have also been
authenticated by the Apex Court in the case of “Hafiza Bibi” supra wherein at
para 29, following has been held:-
“29. 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 a 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 three 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”.
Abdul Rashid Ganaie
I attest to the accuracy and
authenticity of this
document
10
CSA No. 13/2017.
08. Thus, what emanates from above is that in Muslims a gift is valid if the
above three essentials are fulfilled even though it is not registered by a
registered instrument, but if the conditions are not fulfilled, the gift is not
valid even though it may have been effected by a registered instrument.
Therefore, a valid gift could be made by oral statements as long as three
requirements discussed above are met thereby, in that it is because
registration is not a requirement which obviates the need for a gift to be
reduced in writing. Accordingly, the only conclusion, in law, that could be
drawn is that even if a gift is reduced in writing or a declaration of an oral
gift, made earlier in point of time, is reduced in writing, it is valid even
without registration.
09. Having regard to the aforesaid settled legal position and coming back to
impugned judgment in regard thereto, the observations made by the Appellate
court in this behalf that registration in terms of the Section 17 of the Act supra
was mandatory qua the gift deeds in question is patently dehors the aforesaid
legal position and therefore legally unsustainable.
10. Having held above that the gift deeds in question did not require the
registration under the Act of 1977 supra to be valid, yet a bare perusal of the
gift deeds do not conclusively suggest the fulfilment of the essentials of the
gift referred above, as such, necessitating the remanding of the matter back to
Appellate court, in that, this Court refrains from making any observation in
this regard, lest it may prejudice the rights and interests of the parties herein as
also notwithstanding the substantial questions of law framed in the matter.
Abdul Rashid Ganaie
I attest to the accuracy and
authenticity of this
document
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CSA No. 13/2017.
11.Viewed thus, for what has been observed, considered and analyzed
hereinabove, the impugned judgment and decree dated 17.07.2017, passed
by the Appellate court is set aside and the matter is remanded back to the
Appellate court with a direction to proceed in the matter afresh in
accordance with law.
12. Disposed of.
13. Parties to appear before the Appellate court on 30.04.2025.
(Javed Iqbal Wani)
Judge
Srinagar
18.04.2025.
“Ab. Rashid PS”
Whether the judgment/order is speaking; Yes/No
Whether the judgement/order is reportable; Yes/NoAbdul Rashid Ganaie
I attest to the accuracy and
authenticity of this
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