- (1.) KHEM Karan, J. Impugned in this writ petition, is the order dated 25-4-88 (Annexure 2) passed by the Board of Revenue (O. P. No. 1) under Section 218 of U. P. Land Revenue Act, by which it set at naught the mutation proceedings, in itiated on the basis of oral gift, by the petitioners. An important legal point in volved in this petition is whether a Mohammedan can make an oral gift of his agricultural land, governed by the UPZA and LR Act.
(2.) BRIEF facts, giving rise to this peti tion are that the petitioners moved for mutation before Tahsildar Mawana of dis trict Meerut, on the basis of oral gift, said to have been made by Smt. Zubeda Begum (O. P. No. 3) in respect of an agricultural land, mentioned in para 1 of the writ peti tion. Tahsildar allowed this mutation ap plication vide his order dated 21-2-84. Smt. Zubeda Begum moved for setting aside this order and for hearing her in the matter. Vide order dated 25-6-84, Tahsil dar Mawana recalled his order dated 21-2-84 and restored the mutation proceedings to their original number. Aggrieved by this order dated 25-6-84, the present petitioners preferred a revision before the Addl. Commissioner, who vide his order dated 10-8-84, took the view that the order dated 25-6-84 was not justified in the facts and circumstances of the case and so made a reference to the Board of Revenue under Section 218 of Land Revenue Act, for set ting aside the said order and for restoring the order dated 21-2-84 of Tahsildar. Both the parties put in appearance before the Board of Revenue and after hearing the parties' Counsel, the Board of Revenue, relying on its own decision in Masood Mujaffar/javed Mujaffarv. Hasan Mujaffar, LCD 1985 (3) at page 435, quashed the entire mutation proceedings, taking the view that oral gift of an agricul tural land was not permissible in view of Section 2 of Shariat Act, 1937 and also on the ground that if permitted compliance of the rest of the provisions of UPZA and LR Act imposing certain restrictions on such transfer, will not be possible. The Opposite Party No. 3 has filed a counter-affidavit sup porting the view taken by the Board of Revenue and taking other pleas to oppose theprayer made in the writ petition. Sri Mohd. Arif Khan, learned Counsel for the petitioners has submitted that it stands well settled that a Moham medan can make oral gift of his movable and immovable property, as per the Rule of Mohammedan Law and sinee gift is also one of the mode of transfer and since by virtue of Section 121 of the Transfer of Property Act, the provisions contained in Sections 122 to 128 of that Act do not affect the Rule of the Mohammedan Law relating to the gift and since no specific mode of transfer is prescribed under the UPZA and LR Act, so a bhumidhar belonging to a Mohammedan community is free to transfer his holding under Sec tion 152 of the UPZA and LR Act by making an oral gift. He submits that Sec tion 2 of the Shariat Act, 1937, in terms does not affect that Rule of Mohammedan Law on the subject of gift, He has referred to a number of judicial pronouncements and the same arc Aminabai v. Khamrunnisa, AIR 1974 Madras 54; Kulsum Bibi v. Shyam Sunder, AIR 1936 Alld. 600 Ghulam Ahmad v. Mohd. Siddiq and others, AIR 1974 Jammu and Kashmir 59 (Full Bench); Chhota Uddandu v. Masthan Bi, AIR 1975 Andhra Pradesh page 271, Mst. Tabera v. Ayodhha Prasad, AIR 1929 Patna page 417; and Ja wwad Hussain v. Dy. Director Consolidation, Lucknow Law Journal 1982 page 26.
(3.) ON the other hand, learned Coun sel for Opposite Parly No. 3 has submitted that Section 2 of Shariat Act, 1937, relied on by the Board of Revenue, , clearly ex cludes agricultural land from the applica tion of the Rules of Mohammedan Law. He has also argued that in case an oral gift of an agricultural land is permitted in the case of Mohammedans, an anomalous situation will be created, so much so, one section of a Bhumidhar with transferable rights will be having the benefitof transfer ring the land by oral gift and the rest of the bhumidars, with transferable rights but not belonging to the Muslim community will not enjoy that benefit. He has gone to the extent to say that to uphold the conten tion of Sri Mohd. Arif Khan would amount to make a discrimination between the bhumidhars with transferable rights. He has also submitted that a bhumidhar under the UPZA and LR Act is neither Muslim nor Hindu nor Christian and all of them stand on the same footing, so far as their right to transfer the holding is concerned. He submits that to import Personal Law into the UPZA and LR Act will be against the spirit of the Law contained under the UPZA and LR Act. An attempt has also been made to say that introduction of transfer by oral gift will create various complications as noted by the Board of Revenue in Noor Mohd. v. Smt. Khatoon, RD 1976 page 288 and also in Masood Mujaffar't, case (supra ). As regards the contention of Sri Mohd. Arif Khan that under Moham medan Law, oral gift of a property movable or immovable is permissible in accordance with the Rules of Mohammedan Law and in view of Section 129 of the Transfer of Property Act, the provisions contained in Sections 122 to 128 of the same Act of 1882, will not affect such a Ruls of the Mohammedan Law, is concerned, there appears to be much force in it, in view of the law cited by him. Under the Moham medan Law, essentials of a valid gift are (i) a declaration of gift by the donor, (ii) an acceptance of the gift expressed or implied by or on behalf of the donee and (iii) delivery of possession of the subject of gift by the donor to the donee.;