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Oral gifts of immovable property cannot be made and mere delivery of possession without a written instrument cannot confer title: Sikkim High Court.

In the present case which was brought in front of the Sikkim High Court namely Tenzing Samchok Bhutia V. Health Care & Family Welfare Department and Ors. [W.P. (C) No. 47 of 2020] a writ petition has been filed by the petitioner seeking a mandamus against the Health Care and Family Welfare Department (respondent no.1) and Land Revenue and Disaster Management Department (respondent no. 2) of the Government of Sikkim.

The facts of the case were that in the year 2018 the petitioner learnt, while initiating construction in his property i.e. plot no.588, that the respondents had constructed three structures in his property measuring 0.1480 Hectares (Ha) (15,930 square feet) by acquiring an area approximately 0.1050 Ha (11,302 square feet) without following the provisions of the Land Acquisition Act, 2013. It was further stated that as per the land records the plot has a total area of 0.1480 Ha out of which 0.1050 has been encroached by the respondent no.1.

In response, the respondent nos. 1 to 6 has filed a joint counter affidavit in which they aver that plot no.588 was originally recorded in the name of the petitioner’s father. Since there were no medical facility in Lachung, the petitioner’s father came forward along with the then ‘Pipon’ of Lachung ‘Zumsa’ and proposed to gift his land to the Government of Sikkim for the establishment of the Primary Health Sub-Centre (PHSC). Accordingly, the Government of Sikkim in the year 1987-88 established a PHSC on plot no.588 by constructing a wooden structure.

The learned counsel for the petitioner submits that the act of the respondents of illegally taking over the petitioner’s land and constructing the structures thereon is in the teeth of Article 300A of the Constitution of India. He further submits that the unverifiable claim of the respondents that his father had made an oral gift of plot no.588 to the Government of Sikkim for the construction of PHSC is not only without any proof thereof but barred by Section 123 of the Transfer of Property Act, 1882.

The learned judge Bhaskar Raj Pradhan held that at plot no. 588 is recorded in the name of the petitioner and earlier in the name of his late father is not disputed. “The Supreme Court in Gomtibai & Ors. Vs. Mattulal [AIR 1997 SC 127] examined whether an intention to give the land by gift created valid title in law and held that gift of immovable property should be made only by transferring the right, title and interest by the donor to the done by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses.”

Further, relying on various Supreme court and high court judgments the learned judge held that Although the respondents have taken a plea of oral gift by the petitioner’s father there is no record to evidence such a gift. In any case, Section 123 of the Transfer of Property Act, 1882 provides that for the purpose of making gift of immovable property, the transfer must be affected by registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The State, this court is certain, were aware of the law. Oral gifts of immovable property cannot be made and mere delivery of possession without a written instrument cannot confer title. Although the respondent’s claim that the oral gift was made by the petitioner’s father pursuant to which the PHSC had been built and functioning since 1987-88, the respondents admit that the plot no.588 continued to remain in the name of the petitioner’s father until it was mutated in the petitioner’s name.

It is not in dispute that the respondents have constructed PHSC on the area encroached by them at a substantial cost. The respondents are therefore, directed to initiate acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Thus, the writ petition was allowed.

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Judgment Reviewed by Anshuman Singh

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