Oral Transfer of Immovable Property Invalid: HC

Srinagar— The Jammu and Kashmir High Court has held that transfer of immovable property was oral statement was invalid and valid only through registered deed.

A single bench of Justice Tashi Rabstan made the ruling while allowing a petition by woman against financial commissioner’s order, transferring her share in father’s property to her brother in Baramulla district.

“What springs from Section 138 of the (Transfer of Property) 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,” said a bench of Justice Tashi Rabstan.

“Subsection (3) of Section 138 of Act goes the extra-mile stringent. It in categorical terms enjoins 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,” the court, underling sub-section (3) is a special provision for Kashmir Province only, so it is the duty of the Courts, in the Kashmir, to see while dealing documents, instruments, indentures, relating to the land that the requirement of subsection (1) of Section 138 of the Act have been complied with.

“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. 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.”

Brother of the woman, Jabbar Malik son of Aziz Malik of Sangrama Sopore had relied on a “notarised” document executed on 13th October 1983, claiming same to be a relinquishment deed.

“Such document, in law, does not and cannot change title, more particularly when it relates to immovable property,” the court.

In this regard, the court said pointed out 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 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 sanctioned.

Doubts arose vis-à-vis 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 His Highness the Maharaja Sahib Bahadur, which came into force on 1st day of Baisakh, 1978,” the court said.

In this case, the Financial Commissioner, (Revenue) passed an order on 20 August 2008 on a reference made by Settlement Commissioner against an order of Naib Tehsildar, passed on mutation on 7 April 1981 of village Sangrama and order of Sub-Divisional Magistrate Sopore on 16 March 2004.

The woman argued that mutation is without jurisdiction in as much as it can be attested when transferee has acquired title of land by inheritance or by way of some other valid mode.

She said after her father’s death, she did not lose right to inherit, due to her marriage because at that time she had already inherited the share in the property and Naib Tehsildar has no jurisdiction to snatch her property on the basis of a non-existent custom.

“While having glance of order dated 4 October 2004, passed by Settlement Commissioner, , it comes to fore that (brother) has projected that (his sister) was married outside and as per customary law her name was removed from the record by the mutation order,” the court observed, adding, “It is settled position of law that the matters pertaining to inheritance are governed by personal law. Thus, parties herein, being Muslims, are governed by Muslim Personal Law, by which daughter has every right to have her share,” the court said and eventually quashed the financial commissioner’s order.

“It may not be out of place to mention here that fraud avoids all judicial acts, ecclesiastical or temporal, observed Chief Justice Edward Coke of England about three centuries ago. It is the settled position of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law. Such a judgment or decree by the first Court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings,” the court said.

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