State of Punjab and others vs Sant Singh

K.S. Tiwana, J.—Sant Singh Respondent owned 35.05 standard acres or land situate in village Attlan, District Bhatinda. On 12th(sic) September 1954, he got entered a report in the roznamcha of the Patwari 10 the effect that he had gitted 13 Bighas and 18 Biswas of land in favour of his wife. The Assistant Collector Agrarian issued him draft statement in Form No. 8 of the Pepsu Tenancy and Agricultural Lands Act; 1955, and after in inquiry, on August 22, 1961 declared 162 standard acres out of his holding as surplus. Sant Singh represented to the Agrarian authorities against this order bringing to their notice the report dated September 17, 1954 pertaining to the gift. He further represented that the mutation entered on the basis of that report had been wrongly rejected by the revenue officers in the absence of the parties. Relying on an unreported decision of this Court in Ranjit Singh and Ors. v. The State of Punjab etc. 1963 C.W.N 721 of Civil Writ No. 721 of 1963, decided by I.D. Dua and Jindra Lal JJ. on November 5, 1963. The Collector Bhatinda District submitted the case of Sant Singh to the Commissioner Patiala Division for review. The learned Commissioner vide his order dated January 28, 1969 sent the case back to the Collector, Bhatinda for ascertaining if the possession of the land bad been actually transferred in the name of the donee as mentioned in the report, before August 21, 1956. The Collector in his turn made a report "that transfer in favour of his (land-owner''s) wife did not take place on the scot. Actually the possession was not transferred before August 2l, 1956, according to revenue record." The Commissioner, Patiala Division, vide his orders dated July 15, 1969 did not accept the gift of Sant Singh Respondent in favour of his wife on the ground that from the record he failed to prove the delivery of possession to the donee before August 21, 1956. He did not follow the decision in Ranjit Singh''s case (supra) as in his view it did not decide the factum of delivery of possession but only concerned about the disruption of the joint Hindu Family property.

Sant Singh filed civil Writ No. 2920 of 1969, in this Court under Articles 226/227 of the Constitution of India for quashing of the orders of the Collector Agrarian declaring 1.6 standard acres of his land as surplus and also the order of the Commissioner of Patiala Division. The learned Single Judge of this Court referring to Ranjit Singh case observed that it only determined the question of the disruption of the Joint Hindu family property on separation of the shares of if members on partition and that this consideration could not be applied to the case of gifts. The learned Single Judge further observed:

The recording of a report before the Patwari by itself does not complete the transaction of gift It has further to be shown that the donee accepted the gift. The gift would be come complete only after it has been accepted by the donee. In the instant case, the reviewing authority has come to a finding of fact that the time when the alleged report was made actual physical possession was not transferred in favour of the wife of the Petitioner. Relying on these circumstances, the Commissioner refused the Collector the permission to review his earlier order. The reasons advanced by the Commissioner are valid and convincing and it would not be open to me to reassess these reasons in proceedings under Article 216 of the Constitution.

An unreported decision in Bakhtawar Singh, v. The State of Punjab 1964 C.W.N 1715 of , decided by Prem Chand Jain, J. on 3rd March, 1971, was cited before the learned Single Judge. On the basis of that judgment which followed another Single Bench judgment in Jagir Singh v. The Financial Commissioner Punjab (1976) 69 P.L.R. 305, the learned Single Judge observed as under:

I, may, however, add that Jagir Singh''s case (supra) related to a partition of a joint family property but the principle laid down in that case was applied by the learned Judge to the case of a gift as well. While sitting in Single Bench, I am bound to follow with respect the view taken by another learned Judge of this Court.

On the basis of the authority in Bakhtawar Singh''s case the learned Single Judge accepted the writ petition and remanded the case to the Collector, Bhatinda for a decision afresh. The State of Punjab has filed the letters patent a peal under Clause X of the Letters Patent.

In the case in hand the revenue authorities upto the Commissioner arrived at a finding that possession of 13 Bighas 18 Biswas of land had not been physically delivered to the donee The Respondent did not place any material on the file of the Writ petition to prove that the findings of the revenue authorities were against the records or otherwise were so erroneous as to require interference under Article 226 of the Constitution of Indin. The Respondent after the finding against him. did not even allege in the petition that he had actually parted with the possession of this property in favour of his wife on 17tb September, 1954, when he made the report to the Patwati. He simply stated in Para 2 of his writ petition -

That on 17th September, 1954 the Petitioner transferred 13 Bighas 18 Biswas of land in favour of (Smt. Jagir Kaur wife of the Petitioner) through Repat Roznamcha." Further in Para 9(i) he stared -

That the transfer in favour of the wife of the Petitioner was complete on 17th September, 1954(sic) " These assertions in clear and unambiguous terms do not state that the possession of 13 Bighas and 18 Biswas of land which is stated to have been gifted away by him never remained with him bat was actually delivered to the donee. He did not even tie the affidavit of his wife to that effect. No Khasra Girdawari was tendered to Drove the change of possession for the purpose of cultivation of this land, on the basis of which it could be said that the conclusion arrived at by revenue authorities was wrong.

The Learned Counsel for the Respondent argued that the donte being the wife of the Respondent was living with him and on that account the acceptance of she gift by her and the delivers of the possession to her require to be presumed. According to the Learned Counsel the husband was performing the acts of a Manager on her behalf in his capacity as a husband. Shri R. K Chhiber, counsel, for the Appellant has contested the delivery of posssesion and urged that atleast the accessary formalities of the gift like the delivery of possession and the acceptance by the donee have to be proved. The Respondent, according to Shri R K. Chhiber, cannot absolve himself of the responsibility to prove these things which are the necessary requisities, when the specific plea of gift. which is not registered, is raised.

Village Attla Kalan where this property is situated is in Bhatinda District which was a part of the erstwhile Patiala and East Punjab States'' Union. The Transfer of Proptrty Act, 1882, was not applicable to that area. The provisions of the Transfer of Property Act regarding the gifts came to be applied in that area for the first time on 15th May, 1967. There was no law in the Patiala and East Punjab States'' Union directly corresponding to Section 123, of the Transfer of Property Act, 1882, for application to the gifts. In these circumstances the gift in this case would be covered by the principle of Hindu Law under which the delivery of possession is necessary for its validity.

"Gift" is a transfer of certain existing moveable or immovable property made voluntarily and without consideration by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Para 358 of Mulla''s Hindu Law (13th Edition) regarding delivery of possession in case of Gift, is as follows:

(1) A gilt under pure Hindu Law need writing. But a gift under that law is not valid unless it is accompanied by delivery of possession of the subject of the gift from the donor to the donee Mere registration of a deed of gift is not equivalent to delivery of possession, it is not therefore sufficient to pass the title of the property from the donor to the donee. But where from the nature of the case physical possession cannot be delivered, it is enough to validate a gift if the donor has done all that he could to complete the gift, as to entitle the donee to obtain possession." A similar case from the erstwhile Patiala and East Punjab States Union area came to be examined by a Division Bench of this Court in Indar Singh Vs. Nihal Kaur and Another, wherein it was held, in para 9, as under:

The property in dispute is situated in the area which formed part of the Patiala and East Punjab states'' Union prior to the merger of that Union with the then existing State of Punjab on November 1, 1956. There was not law corresponding to the Transfer of Property Act in Pepsu. The provisions of Section 123 of the Transfer of Property Act (4 of 1882) were extended on and with efffect from May 15,1967, by notification No. 305-ST-57/2166 of that day published in that day''s Punjab Gazette, Extraordinary to the territories which immediately before November 1, 1956, were imprised in the State of Patiala and East Punjab States'' Union. The gift deed which is in dispute in the present suit was executed and ragistered on April 30, 1957. The provisions of Section 123 of the Transfor of Property Act, are therefore, not applicable to the gift in dispute and the mere registration of the gift deed does not nuke he gift complete or effective. The position regarding a valid and effective gift being made in the Punjab, in the absence of the april cablity of Section 123 of the Transfer of Property Act appears to be the same under the Hindu Law as in cases governed by the Customary Law.

In the case the gift because of non-delivery of possesion and because of undue influence was held to be invalid.

In Maulvi Muhammad Abdul Nayeem v. Jhonti Mahton (1917) 41 I. C. 389 it was held as under:

Among Hindues gifts made subsequent to the transfer of Property Act do not require delivery of possession if there is registration.

The alleged gift made by the Respondent without the delivery of possession cannot be held to be a legally valid which Could be given recognition by the Agrerin authorities for exemption of his 1,62 standard acre of land.

The judgments referred to by the learned Single Judge are not attracted for application to his case.

The facts of Bakhtwar Singh''s case (supra) were that Bakhta-Singh on 17th September, 1954 made a gift of 180 Bighas and 12 Biswas of land in favour of his wife and son by making a report in the Roznamcha of the Patwari. A decree from the Civil Court was also obtained about the gift. In those circumstances the learned Single Judge in that case observed:

The decree evidences only the factum of gift which had come into existence in the year 1954. The act of gifting away the property by the Petitioner to his wife and son had been completed and acomplished in the year 1954.

In that case the question of the delivery of possession of the gifted property which is of exterme importance for the determination of a valid and completed gift in the areas where the provisions about gift as contained in Transfer of property Act were not applicable, was not raised for decision. The circumstances which influenced the mind of the Judge deciding Bakhtawer Singh''s case have been quoted above. The facts of that case on the point of possession were different and judgment being distinguishable does not cover this case.

In Ranjit Singh''s case (supra), relied upon by the Respondent before the revenue authorities and cited before us, a Division Bench of this Court was seized of a case in which Ranjit Singh in his capacity as head or Karta of joint Hindu Family property had partitioned property on 31st August, 1954. In that ease the observations were:

We are, therefore, of the view that the joint family had disrupted on the report having been made to the Patwari which resulted in the entry dated the 31st August, 1954, and, therefore, the Respondents were clearly in error in holding that Section 31 FF of the Pepsu Tenancny agricltural land Act was applicable to the facts of the case.

This being a case of the partition of the joint Hindu family property cannot be stretched for application to the facts of this case. Similarly Ram Kumar and other v. Financial Commissioner, Haryana 1971 P. L. J. 828 and Jagir Singh''s case (supra) concerned the disruption of the statues of the joint Hindu family property on reports made to the Patwari by the head Karta of the family regarding partition.

There is a difference between gift and partition and principles enumerated in the cited cases cannot be taken as a guide line to decide the validity of a gift on the basis of the report in the roznamcha of the Patwari Emnabi and other v. Hajirabai ILR 13 Bom.353 and Ma Mi and Anr. v. Kallander Ammal A.I.R.1972 P.C.22 are the two cases, cited by the Learned Counsel for Respondent. These being under the Mohammdan Law are no index to be followed in cases under the Hindu law.

Simple reporting to the Patwari may not prove a gift. It has to be shown that it was accepted by the donee. In the absence of proof of any act of the donee in the direction of acceptance, the Learned Counsel for the Respondent, argued that the acceptance should be presumed as the donee being the wife was living with the donur Mallia''s(sic) Hindu Law (13th Edition) at page 401 about acceptance of gift, can be quoted with advantage as under:

A gift, according to the Mitakshsra, consists in the relinquishment of one''s own right and the creation of the rights of another. The creation of another man''s right is completed on that other''s acceptance of the gift, but not otherwise. Acceptance is made by three means mental, verbal, or corporeal. It the case of land, as there can be no corporel acceptance without enjoyment of the produce it must be accompanied by some little possession, otherwise the gift, sale or other transfer is not complete.

In the case in hand the mutation which was entered on the basi of the report in the roznmcha was rejected No effort as mode by the wife to assert her right on she basis of the report of the Patwari after the rejection of the mutation. No assertion has been made that the donee was enjoying the usufruct of the gifted land or was exercising type of control on this laud either directly or throught some one, may be her husband. No one has sworn any affidavit that the wife accepted the gift and the Respondent acted wish her permission or her permissive consent in agitating the present matter. On the other hand her disinterest is apparent from her conduct. In the absence of any evidence. much less allegation, a finding in favour of such an acceptance cannot be given.

There is no ground to reassess or reappraise the reason on which the agrarian reviewing authorities based, their findings under Article 226 of the Constitution of India. Bakhtawar Singh''s, case followed by the learned Single Judge, has no application to the facts of this case.

For the foregoing reasons this letters patent appeal is accepted the judgment of the learned Single Judge is set aside and the writ petition is dismissed with costs

R.S. Narula, C.J.

I agree.