Excelsior Correspondent
Srinagar, Oct 14: The State High Court today held that the title of immovable property cannot be transferred on the basis of relinquishment to rights made by oral statements or unregistered deeds.
It may be mentioned here that Revenue authorities were transferring the title of immovable property without any registered deeds in Courts but on the basis of oral statement of the owner or unregistered deeds. This was being done to avoid Court fee or on usurp the property which had become a major scandal in Revenue Department.
According to petitioner, Taja daughter of Aziz Malik resident of Sangrama, Tehsil Sopore, her brother Jabbar Malik is bent upon to deprive her of the property left behind by their father, Aziz Malik, who on his death was survived by daughter (Taja), son (Jabbar Malik) and wife (Shahmali).
Aziz Malik has left behind landed property situated at village Sangrama in Sopore tehsil. Taja claimed that at her back and without jurisdiction, NaibTehsildar, Sangrama, vide mutation No.51 transferred her share in favour of Jabbar Malik.
The moment Taja came to know about it in 2002, Taja filed an appeal against the mutation order before Collector, SDM, Sopore, but the it was dismissed (rejected) vide order dated 16th March 2004.
Taja filed a revision petition before Settlement Commissioner, Kashmir, Srinagar, against mutation order no.51 as well as against order of Collector, SDM, which was allowed vide order dated 4th October 2004.
Settlement Commissioner, however, referred the matter to Financial Commissioner in terms of Section 15(4) of Land Revenue Act. Financial Commissioner declined to accept the Reference made by Settlement Commissioner and dismissed revision petition vide order dated 20th August 2008.
Justice Tashi Rabstan, however, allowed the petition of Taja and quashed the impugned order 20th August 2008 passed by Financial Commissioner (Revenue)
The Settlement Commissioner, J&K, Srinagar, order (dated 4th October 2004) said that title to immovable property cannot be transferred on the basis of relinquishment of rights made by oral statements by an owner and that too in mutation proceedings inasmuch as such oral statements or admission in oral proceedings does not confer any title.
Counsel appearing for Jabbar Malik has heavily relied upon a document which, according to Malik, is a relinquishment deed. Court however, said its close peep unearths it a notarised document, purportedly executed on 13th October 1983.
“Such document, in law, does not and cannot change title, more particularly when it relates to immovable property. In this regard it is necessary to be pointed out here that way back in the year 1920 A.D. it was seen that on the authority of some provisions of Standing Order 23-A, there had been general assumption in certain quarters that transfers of land by oral agreements or unregistered deeds, when mutation thereof was sanctioned, were also valid and under such assumption a very large number of transfers of land by oral agreements or unregistered deeds was made and mutations thereof sanctioned.”
“But doubts arose qua correctness of such assumption and such transfers of land by oral agreement or unregistered deeds had been disputed and parties to such transfers believed that transfers made by oral agreements or unregistered deeds were valid. Facing this situation, it was thought pragmatic that such transfers should be avoided in future and accordingly the Transfer of Property Act, 1977 (1920 A.D.) was sanctioned by the Maharaja, which came into force on 1st day of Baisakh, 1978.”
“What springs from Section 138 of the Act is that transfer of immoveable property is valid only after it is effected through a deed, which is duly registered under the provisions of Registration Act. Subsection (3) of Section 138 goes the extra-mile stringent”, Court said.
It in categorical terms, Court held that no person shall take possession of any land in Province of Kashmir, which has been transferred or contracted to be transferred to him unless and until such transfer becomes valid under the provisions of Subsection (1) of the Act. Subsection (3), thus, is a special provision for Kashmir Province only, so it is the duty of the Courts, in Kashmir Province, to see while dealing documents/instruments/indentures, relating to the land in the Kashmir Province that the requirement of subsection (1) of Section 138 of the Act have been complied with.
Court also made it clear that transfer of possession relating to such land is valid only when the land is transferred only in accordance with the provisions of Subsection (1) otherwise not and transfer of possession in violation of such provisions will not create any right or interest in the person who takes possession of land under a document executed in violation of the Section.
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