STATE OF KERALA Vs. BALKIS UMMA

JUDGEMENT

(1.) STATE of Kerala is the revision petitioner. The challenge is against the order passed by the Taluk Land Board, Chittoor, in CC 953 of 1973, dated 9th July, 1998.

(2.) THIS case has got a chequered history. Hence the facts of the case for the purpose of appreciating the contentions between the parties are briefly stated as hereunder: In the ceiling case of a declarant Sri. K. N. Noor Mohammed Rawther he set up a contention that an extent of 15. 30 Acres of land was gifted to his son K. N. Abdul Kareem on 05/04/1970 orally and subsequent to that, to avoid problems of the family, he executed a stamp paper document on 15/04/1970 as per Ext. B1 and a second document in 1975 by a registered deed as according to him, in order to avail loan a registered deed was found necessary. He contended that the gift in favour of his son is a valid transfer by virtue of S. 84 (1) (A) of the Kerala Land Reforms Act and therefore, the land covered by the gift has to be excluded from the account of the declarant for the purpose of reckoning the extent of land possessed or held by them as on 01/01/1970. It was contended that Ext. B1, though not a registered document, is not hit by the provisions contained in S. 123 of the Transfer of Property Act because of the saving provisions contained in S. 129 of the said Act since the gift made is valid as per the personal law applicable to Muslims. According to him, as per S. 147, S. 149 and S. 150 of the Mohammedan Law, any Muslim can gift his property orally and as such, the oral gifts are valid in the case of Mohammedan. According to him, delivery of property and acceptance of the same by the donee alone are essential and in this case, an extent of 15. 30 Acres of land were taken possession of by the donee right from 05/04/1970, the date of the oral gift and the donee being in possession of the same after paying tax as evidenced by Ext. B2 series of receipts, the gift have been completed in all respects and no further legal formalities are required in the case of such Mohammedan gift. The Land Board accepted the contention and upheld the gift and excluded an extent of 15. 30 Acres of land covered by the gift while reckoning the ceiling limit of the declarant. Proceedings were thus completed based on such finding. The said order was challenged by the State before this Court in CRP 1147/1991. THIS Court found that some of the contentions put forth by the Government Pleader appearing on behalf of the State were not considered properly and hence the civil revision petition was allowed by way of remand to the Land Board for fresh consideration of the matter in accordance with law. Thereafter, by order dated 09/07/1998, which is impugned in this civil revision petition, the Taluk Land Board accepted the gift as valid and saved under S. 84 (1) (A) and not hit by the main provision under S. 84 (1) of the Kerala Land Reforms Act. It is aggrieved thereby, that the State has filed this revision petition.

(3.) THEREFORE, the definite contention of the declarant was that there was an oral gift on 05/04/1970 of an extent of 15. 30 Acres in favour of his son Abdul Kareem, that Abdul Kareem, the donee accepted the gift during the life time of the donor and he was paying the tax etc. , that the unregistered deed dated 15/04/1970 merely reiterates or acknowledges the oral gift dated 05/04/1970, as could be seen from the recitals contained therein and the relevant portion which is extracted as above and the second registered document also only acknowledges the previous oral gift deed made on 05/04/1970. THEREFORE, the gift, as far as the declarant is concerned, was orally made on 05/04/1970 and as per the rule of Mohammedan Law, such oral gift is valid. His further contention is that though such oral gift was made after 01/01/1970, it is not hit by the main provision under S. 84 (1) as it is saved by sub-section (1a) of S. 84.