The Division bench of High Court of Jammu and Kashmir and Ladakh comprising of Justice Atul Sreedharan and Justice Javed Iqbal Wani while dealing with aLetter Patents Appeal reiterated that oral gift made by a Muslim is permissible under law and a mutation attested upon the said oral gift in terms of instruction 19 of the Standing Order-23-A under clause (7) is valid.
The petitioners before the court had thrown challenge to the judgement and order dated 27.12.2021 passed by writ court. The appellant claiming to be the daughter of one Mohammad Rather R/o Watrail Khansahib Budgam called in question mutation No. 1665 dated 05.03.1998 attested in favour of respondent 2 before the Divisional Commissioner, through the medium of a revision petition with respect to land measuring 10 kanals 14 marlas falling under Survey Nos. 144 min, 889 min, 624 min and 672 of Estate Watrihael, Khansahib Budgam. The said mutation had been attested upon an oral gift made by the above named father of the petitioner-appellant in favour of respondent 2 therein. The Divisional Commissioner, accepted the said revision petition, set-aside the mutation under challenge and consequently made a reference/recommendation to the Financial Commissioner whereupon the Financial Commissioner after considering the matter rejected the recommendation/reference upholding the mutation in question.
Feeling aggrieved of the order of the Financial Commissioner dated the petitioner preferred a writ petition and maintained the same on the grounds that no mutation . on the basis of an oral gift could have been attested in favour of respondent 2 by the attesting officer as the same had been attested against standing Order 23-A and that no such oral gift could have been made in favour of respondent 2 being a stranger to the family of petitioner-appellant. The writ court upon considering and hearing the appearing counsel for the parties dismissed the writ petition in terms of the impugned judgement/order upholding order under challenge passed by the Financial Commissioner.
The Division Bench in order to adjudicate the matter formulated two issues for its consideration:
a. Whether transfer of immovable property in Muslims by way of an oral gift is permissible?
b. Whether the mutation in question could have been attested upon the said oral gift?
While answering the issue (a) the Bench observed that said issue stands set at rest by the Apex court in case titled as “Hafeeza Bibi and Ors., Vs. Shaikh Farid (dead) by Lrs and Ors.” reported in 2011 (5) SCC 654 wherein SC has held:
“24. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammedan Law are; (1) declaration of the gift by the donor; (2) acceptance of the gift by the done; and (3) delivery of possession. Though, the rules of Mohammedan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.”
The court as such held, “In view of the aforesaid legal position and having regard to the facts and circumstances of the case the oral gift made by the father of the petitioner appellant herein in favour of respondent 2 herein cannot said to be illegal more so in view of the fact that the respondent 2 herein has not been a stranger for the family, but son- in-law of the donor”.
While answering the issue (b) the court observed that “In this regard, a reference to instruction 19 of the Standing Order-23-A under clause (7) becomes imperative which inter alia provides that a mutation attested upon a gift or bequest is recognized”.
The Court as such dismissed the letter patents appeal and upheld the order passed by the writ court.
