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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8814 OF 2022
Rajiv S. Somani, Age 65 years, R/at-16, Laxmi Bhavan, 4th
Floor, “D” Road, Churchgate, Mumbai – 400 020. with his office at Mehta Mahal, Top Floor, 15, Mathew Road, Opera House, Mumbai – 400 004.
Through its Power of Attorney Holder
Mr. Vikram Shelar.
) … Petitioner.
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2 The Addl. Commissioner, Konkan Division, Mumbai.
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3 The Additional Collector, Raigad, Near Collector Office, Alibaug, District-Raigad.
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4 The Sub-Divisional Officer, Alibaug, Near Tahsildar Officer, Alibaug, District-Raigad.
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5 Naib Tahsildar, Tahsildar Officer, Alibaug, District- Raigad.
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6 Vinod Shenoy, Living heir of Late Smt. Jessica
Iqbal Lukmani, R/at – 212-B, Jolly Maker-1, Cuffe Parade, Mumbai 400 005.
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7 Sara Farhan Lukmani (deceased)
Through her Legal Heir
Soledad Gramajo
R/at 213-B, Jolly Maker-I, )
8 Yasmeen Mamoon Lukmani, R/at-154, Jolly Maker-III, Cuffe Parade, Mumbai – 400 005.
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9 Sharmila Iqbal Lukmani, R/at-C/o. 154, Jolly Maker-III, )
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) …. Respondents
Mr. Rohan Kadam along with Ms. Rucha Vaidya, Ms. Ravina Rajpal, Advocate-Archi Gala and Ms. Simran Jha i/b. V. M. H. & Associates, Advocates for the Petitioner.
Mr. Kedar B. Dighe, Addl. GP along with Mr. R. S. Pawar, AGP for the
Respondent-State.
Mr. Girish Godbole, Senior Advocate along with Mr. Raghavan Sarathy, Mr. Indrajeet Suryavanshi i/b. Thodur Law Associates, Advocates for
Negandhi Shah and Himayatullah, Advocates for Respondent No.7.
JUDGMENT
1. This petition takes exception to the order dated 11th May 2022 passed by the Revenue Minister in Revision Application bearing Nos.RTS-2820/Pr.Kr.151/J-4A, RTS-2821/Pr.Kr.373/J-4A and RTS- 2821/Pr.Kr.374/J-4A, filed under Section 257 of the Maharashtra Land Revenue Code 1966 (for short “MLRC”).
2. The facts as they appear from the petition as well affidavit-inreply sought to be contended by rival parties can be narrated in brief as under: Jessica Iqbal Lukmani was married to Iqbal Lukmani who died in 1993. She inherited a beach house and 1/3rd share in landed properties of Iqbal Lukmani situated at Alibaug. It is the claim of the petitioner that Mrs.Jessica Lukmani professed Mohammedan faith. The claim of the petitioner in this regard rests upon the disclosure made by her to that effect in the revision proceeding filed before the Commissioner, Konkan Division in the year 2000, Short Cause Suit No.286 of 2015 before the City Civil Court at Mumbai and also in appeal filed by her.
3. It is further case of the petitioner that petitioner took care and looked after Mrs. Lukmani from time to time and also has rendered financial assistance to her. It is claimed by the petitioner that out of love and affection for him, Mrs. Lukmani executed a gift deed in his favour in respect of subject properties ie. beach house and her undivided share in the lands situated at Alibaug. He further claimed that he accepted the gift and also took possession of the subject properties. Thus, according to him, the gift stood complete under Mohammedan law. It is his further case that respondent No.6 claimed execution of a Will by Mrs. Lukmani in his favour on 21st May 2013 and a certificate was duly appended to the said Will indicating her sound physical and mental health to execute the said document. Respondent No.6 also claimed that she executed a power of attorney authorising him to manage her properties, investments, bank accounts etc.. According to the petitioner, Mrs. Lukmani not only filed suit against respondent No.6 for cancellation of power of attorney as well as documents but has also filed criminal complaint against him. Respondent No.6 filed petition bearing No.4 of 2015 before the City Civil Court, Mumbai under Mental Health Act 1987 (for short “the Act”). He sought appointment to himself as guardian of his mother-Mrs.Lukmani under Section 53 of the Act. According to the petitioner, the order passed by the City Civil Court, Mumbai, came to be challenged before this Court successfully and the said order of appointment of respondent No.6 as guardian was set-aside, on the ground that medical certificate is not reliable. This order is also confirmed by the Hon’ble Supreme Court.
4. The petitioner filed an application before Tahsildar on 2nd January 2015 for mutation of land records in his name on the basis of gift deed dated 21st November 2003. It is thereafter Mrs. Lukmani filed Short Cause Suit No.286 of 2015 before the City Civil Court at Mumbai for cancellation of all power of attorneys, Wills or documents executed in favour of respondent No.6. On 30th January 2015, application filed by the petitioner before the Tahsildar for mutation of his name in the revenue record in respect of subject properties came to be allowed. An entry was taken in revenue records bearing No.2180.
5. On 1st September 2015, respondent No.5 passed order of certifying Entry No.2180 in the name of the petitioner on the ground that Mrs.Lukmani is a Mohammedan lady and that essential requisites of valid gift under Mohammedan law stood satisfied. It is also recorded therein that the donor has declared the gift which has been accepted by the donee and there is handing over of possession of the property.
6. Respondent No.6 in the capacity of legal guardian of Mrs. Lukmani under the Mental Health Act preferred RTS Appeal No.74 of 2015 before respondent No.4. Respondent No.7 in her individual capacity preferred RTS Appeal No.15 of 2016 before Respondent No.4. This authority allowed the RTS Appeals filed by respondent No.6 as well as respondent No.7 and set-aside the order dated 1st September 2015 passed by respondent No.5-Tahsildar. Being aggrieved by the said orders, the petitioner preferred RTS Appeal Nos.100 and 101 of 2016 before the Additional Collector successfully. The Additional Collector setaside the orders passed by the Sub-Divisional Officer (SDO)and that the Mutation Entry No.2180 recorded by the Tahsildar was held to be correct. Respondent No.6 in the same capacity as legal guardian of Mrs.Lukmani preferred Revision Application No.1159 of 2016 before the Commissioner which was dismissed. Revision Application No.1185 of 2016 preferred by Respondent No.7 also came to be dismissed. Hence, revision came to be filed under Section 257 of the MLRC before the State. It is in this proceeding, respondent No.6 i.e. Revenue Minister passed the impugned order dated 11th May 2022 setting-aside the order passed by the Commissioner. Pursuant to the said order, name of Mrs.Lukmani was restored in the revenue record.
7. Being aggrieved by the said order passed by the Minister and the act of revenue authorities in restoring the name of Mrs. Lukmani in the revenue record, this petition.
8. Learned counsel for the petitioner submits that the SDO as well as Revenue Minister have committed error in not considering the legal position with regard to the execution of a Will by a person professing Mohammedan faith. It is his submission by placing reliance on the judgment of Patna High Court in case of Tabera versus Ajodhya Prasad and ors. Manu/BH/0033/1929 that oral gift with delivery of possession of the property is complete. Reference is also made to the judgment of the Hon’ble Supreme Court in the case of Hafeeza Bibi and ors. Versus Shaikh Farid (Dead) by Lrs. and ors. (2011) 5 SCC 654 wherein three essential ingredients of valid gift under Mohammedan law has been enumerated. It is his submission that the declaration of the gift by donor may be orally and acceptance thereof by delivery of possession is sufficient for completion of the gift in accordance with law. It is submitted that merely because the gift deed is reduced in writing, the same does not become a formal document or instrument of gift and that its registration is not contemplated. It is his further submission that the revenue authorities, while accepting the contention of the petitioner about Mrs. Lukmani being Muslim have not determined of her faith but merely on the basis of the available evidence, recorded findings on incidental issue, which is permissible in law. To support his submission, he has placed reliance on the judgment of the Supreme Court in case of Hiralal and others versus Gajjan and ors. reported in 1990 (3) SCC 285. It is his further submission that the suit filed by respondent No.6 against the petitioner and the order passed therein by this Court clearly indicate the possession of the petitioner over the subject properties and, as such, it cannot be said that there is no handing over of possession of subject properties to complete gift. It is further submitted that the issue of the handing over possession of the gifted property can become subject matter between the donor and donee only and that a stranger to the gift has no locus to raise any such objection to support his submission. To support this submission, reliance is placed on the judgment of this High Court in Halimbi w/o. Mohammad Akbar versus Rahmatali Kasam Ali reported in AIR 1940 Nag 70. It is his further submission that the Revenue Minister while passing the impugned order has not recorded any reasons but has mechanically accepted the findings recorded by the SDO.
9. With regard to the objection sought to be raised by respondent No.7, it is submitted that this respondent is not likely to be affected by the mutation entry in any manner whatsoever as mutations are recorded to the extent of share of Mrs.Lukmani. As far as respondent No.7 is concerned, it is contended that this respondent had filed claims/proceedings/suits before the authorities on the basis of false medical certificate of Mrs. Lukmani and this fact has been accepted by this Court as well as the Hon’ble Supreme Court. Thus, it is his submission that both respondent Nos.[6] and 7 have no locus standi to raise any objection in respect of the orders impugned. On these amongst other submissions, interference is sought in the impugned order.
10. Learned counsel for respondent No.6 takes serious exception to the jurisdiction being exceeded by the revenue authorities while deciding the faith of Mrs.Lukmani. It is his submission that since the suit has been filed with regard to the properties in question and where the issue of faith of Mrs.Lukmani is raised, it is not open for the revenue authorities to record any finding in this regard, even incidentally. It is his further submission that the gift deed by itself does not show that the same has been executed by a Muslim and it also does not indicate delivery of possession. He drew attention of this Court to the affidavit dated 30th November 2004 filed by the petitioner in Contempt Petition No. 406 of 2004, wherein it is categorically stated that the petitioner visits the subject properties as a guest. It is his submission that once said fact has been admitted by the petitioner himself on oath, it cannot be held that the possession of subject properties were handed over to him pursuant to the execution of gift. He, therefore, cannot claim possession thereof actual or constructive. The sum and substance of his contention is that, all these issues are required to be decided by the Civil Court and unless right has been crystallised in favour of the petitioner in the subject properties, his name cannot be allowed to be mutated into the revenue record.
11. Learned counsel for respondent No.7 submits that the contention of the petitioner about the handing over of the possession of the suit property on the basis of gift is not supported by the application filed on record as the same runs contrary to the document of gift. It is his further submission that undisputedly, this respondent is biological son of Mrs. Lukmani and her legal heir and thus, it is in this capacity, he is always within his right to take exception to the mutation entry, after death of Mrs. Lukmani.
12. In order to ascertain correctness of impugned order, this Court is required to take into consideration certain relevant facts. This exercise is done by prima facie appreciation of the same for this limited purpose. Needless to say that the observations made hereinafter are only on prima facie consideration of record.
13. At the outset, it would be relevant to take note of the application filed by the petitioner before the Tahsildar for recording his name in respect of the subject properties in the revenue record. It is specifically stated in the said application that from time to time, he has given financial assistance to Mrs. Lukmani and, therefore, on 21st November 2003, she gifted 1/3rd share of her in the subject property. It is specifically claimed that the day, on which, the gift deed was executed, he was handed over the possession of house No.266 as well as the entire subject properties. It is specifically claimed therein that Mrs.Lukmani is Muslim and, therefore, she had right to orally gift her properties to the petitioner and for these reasons, the gift document was notorized, instead of registration.
14. It is pertinent to note that the petitioner though claims to have obtained possession of subject properties on 21st November 2003 i.e. date on which gift document is executed by Mrs.Lukmani, but application for recording his name has been filed after a long period of 12 years. He does not give any reason therefor.
15. Perusal of this application itself indicates that the petitioner was conversant with the fact that the issue of Mrs.Lukmani being Muslim is relevant for the purpose of substantiating his claim on the basis of gift. Apart from this, it is specifically contended that on 21st November 2003 itself, the entire properties were put into physical possession of the petitioner. This contention of the petitioner, however, clearly goes contrary to his affidavit dated 30th November 2004 filed in Contempt Petition No.406 of 2004 wherein it is specifically averred by him that he used to visit the said properties as a guest. The moment such plea has been raised, at least ex-facie, it can be said that the properties in question were not handed over possession to the petitioner as on the 21st November 2003 for completion of gift. He does not claim as to when the subject properties were handed over to him thereafter. There cannot be any dispute made with regard to the legal position that unless possession of subject matter of gift is handed over physically or constructively, gift is not complete. The affidavit of petitioner himself apparently shows that he was neither in physical nor even in constructive possession of the subject properties. The judgments cited in case of Halimbi w/o. Mohammad Akbar (supra) and Rasheeda Khatoon (dead) through Legal Representatives versus Ashiq Ali s/o. Lieutenant Abu Mohd (dead) through Legal Representatives reported in (2014) 10 SCC 459 would not come to any assistance of the petitioner. Thus, at least at this stage, it can be said that there is serious dispute about the completion of transaction of gift and on that count its validity.
16. Even if it is accepted that the certificate obtained by respondent No.7 to declare Mrs. Lukmani as a person not competent to take decision on her own is discarded and order of appointment of guardian under the Mental Health Act 1987 is set-aside and the order passed by this Court has been confirmed by the Supreme Court, but the question remains as to whether the biological son of Mrs. Lukmani would get right to raise an objection with regard to recording of entries in favour of the petitioner in respect of the properties in question. A candid answer to the same would be in positive for the reason that in any event after the death of Mrs. Lukmani, he would claim interest in subject properties as her heir. Merely, for the reason of orders passed in the proceedings under Mental Health Act, his right as her heir cannot be abrogated.
17. Though it is sought to be argued on behalf of the petitioner by placing reliance on the judgment of this Court in case of Halimbi w/o. Mohammad Akbar (supra) that a stranger cannot raise an issue about handing over possession of the gifted property, however, respondent No.7 is not a stranger and also at least to some extent, respondent Nos.[5] and 6 also cannot be called so and being not concerned with the properties at all. Undisputedly, these properties are undivided properties of these respondents and Mrs. Lukmani. The Court in case of Halimbi w/o. Mohammad Akbar (supra) has observed so, as in that case, dispute as to validity of the gift was not between donee or donor or a person claiming under her. In considered view of this Court, for material difference in the faith, this judgment has no application to the present case.
18. One more aspect occurs for consideration at this stage is the injunction granted by the City Civil Court in respect of the two properties which are part of subject properties. In this regard, it is sought to be argued on behalf of the petitioner that the transfer of property during the pendency of the suit is not void ab initio. No doubt, it is so held by Hon’ble Supreme Court in Balwantbhai Somabhai Bhandari versus Hiralal Somabhai Contractor (Deceased) rep. by Lrs. and others reported in 2023 SCC OnLine SC 1139. However, in this case, the Hon’ble Supreme court in fact has held that although transfer of suit property pendente lite may not be termed as void ab initio, yet, the Court can declare such transaction void to maintain majesty of Court. Now the question arises as to whether at this stage, when the Court/any authority finds that the transfer has been effected contrary to the order of injunction passed by the Civil Court, it is not permissible to act upon such transfer during pendency of proceeding in which order of injunction has been passed. It would be different case if finally the petitioner succeeds in establishing his right in respect of properties, a transfer which is effected contrary to the order passed by the Court. But certainly, at this stage, in order to maintain the majesty of law, it should not be permitted, that transfer which is on the face of it is in violation of order of injunction granted by competent Civil Court, to become basis for mutating name of such transferee, in revenue record, even in other rights column.
19. While considering contention of the petitioner that the issue which is incidental to the main issue can be gone into by the authority by relying upon Hiralal and others(supra),it needs to be considered that in the said case, as recorded in paragraph 12 of the judgment, there was incidental issue as to whether the Civil Court had jurisdiction to try a suit for injunction when question of title arose incidentally. Undeniably, Civil Court’s jurisdiction to decide the question of title is not questionable at all. Insofar as authorities under MLRC are concerned, it would be beyond jurisdiction to declare/decide the religious faith of any person which could only be a subject matter of decision of civil court. For instance, a civil court would not have jurisdiction to decide the issue of agricultural tenancy under Bombay Agricultural and Tenancy Act 1948 and, in a case, any such issue arises even incidentally, the same has to be referred to the competent authority for its decision. Thus, the decision of Tahsildar as well as Collector which is confirmed by the Commissioner with regard to the faith of Mrs.Lukmani being Muslim certainly amounts to transgression of jurisdiction by these authorities. The SDO, on the other hand, has rightly taken into consideration the said fact and refused to confirm such findings recorded by Tahasildar.
20. Finally, though there is a suit filed against the present petitioner by contesting respondent and orders are passed by the Trial Court as well as this Court, the question arises as to whether the filing of such suit can be treated as handing over of possession of the subject properties by the donor to the petitioner. The suit has been filed not admitting the possession of the petitioner over the suit properties as donee but it is alleged that the petitioner has encroached upon these properties. Thus, filing of the said suit cannot help the petitioner in any manner to hold that pursuant to the gift, the property has been handed over to him by the donor and, therefore it is a complete gift.
21. It is settled law by various pronouncements of Hon’ble Supreme Court that essential ingredients for a valid gift are (i) declaration of gift by donor; (ii) acceptance of gift by donee and (iii)delivery of possession of property. Unless all three ingredients are fulfilled, there is no valid gift. Revenue authorities would not have jurisdiction to decide if any dispute arises in respect of the same. Unless competent Civil Court decides the said issues, there would be no reason for revenue authorities to act upon such document.
22. With aforestated facts appearing from record, it is not possible to cause any interference in the impugned order, as serious doubts are raised with regard to the validity of gift for want of possession of subject properties, faith of donor, transaction of some properties in breach of order of injunction etc. In view of these facts, it cannot be said that the petitioner can be said to have acquired right in the subject properties in order to mutate his name in the subject properties under Section 149 of the MLRC. This Court, therefore, does not find substance in the challenge to the impugned order. As a result of this, petition stands dismissed. (R. M. JOSHI, J.)
23. After pronouncement of the Judgment, learned counsel for the petitioner seeks extension of the order of status quo dated 20th September 2022 for a period of four weeks. Learned counsel for the respondents oppose the request on the ground that the petition has been disposed of on merits and, in any case, the order of status quo would be of no consequence in respect of the mutation of the revenue record. The petitioner is within his right to challenge the order passed by this Court before the Supreme Court. The order of status quo is in force at least for a period more than two years. This Court, therefore, finds no reason to reject the request for extension of the same for a period of four weeks. Hence, order dated 20th September 2022 stands extended for four weeks. (R. M. JOSHI, J.)