A.K Parichha, J.:— This appeal is directed against the judgment and decree passed by the learned District Judge, Dhenkanal in Title Appeal No. 34 of 1990 confirming the judgment and decree of the learned Subordinate Judge, Talcher in T.S No. 19 of 1989.
2. The appellant, as plaintiff, filed the above noted suit for declaration of his right, title, interest and confirmation of his possession over the suit land or in the alternative for recovery of possession, pleading, inter alia, that he was an orphan staying in the orphanage maintained by the then Ruler of Talcher State. The then Ruler, Hrudaya Chandra Deb gave the suit land measuring Ac.O 12 dec. to him on 2-12-1947 out of compassion in order to provide him shelter. The plaintiff pleaded that he took delivery of possession of that land and has remained in possession of the same ever since and has thus derived title over that land, but the settlement authorities during the current settlement refused to record the suit land in his name and simply noted his possession as illegal possession. He tried to mutate the suit land in his name and filed Mutation Case No. 2052 of 1986, but the said prayer was also rejected. So, he had to file the suit seeking the above mentioned reliefs.
3. The respondent, as defendant, contested the suit, pleading, inter alia, that there was no valid gift of the suit land by the Ruler and the successor sovereign State also did not recognize the said gift and therefore, the plaintiff derived no right, title or possession over the suit property. The defendant also denied the claim of title of the plaintiff by adverse possession.
4. Considering the pleadings of the parties, the trial Court framed several issues and recorded evidence of the parties. On consideration of such evidence, learned trial Court dismissed the suit with the finding that the alleged gift deed (Ext. 4) does not convey any right, title, the same being unregistered and not having been recognized by the successor sovereign State; and that the possession of the plaintiff not being continuous and adverse, he never acquired any title over the suit land by adverse possession. The plaintiff went in appeal before the learned District Judge, Dhenkanal, who dismissed the appeal and confirmed the judgment and decree of the trial Court. Hence, this Second Appeal.
5. At the time of admission of the appeal, the following substantial question of law was formulated:
“Whether Ext. 4 executed by the then ruler of Talcher is a grant or gift?
Parties were also given liberty to urge any other substantial question of law at the time of hearing. Availing the same, they proposed the following question of law.
“Even assuming Ext. 4 is a grant, which is not required to be registered, whether such grant is legally enforceable in the Court of law in absence of recognition of that grant by succeeding new sovereign state?
6. Mr. Ashok Mukherjee, learned senior counsel appearing for the appellant submitted that the contents of Ext. 4 itself suggest that it was not a gift but a grant by the ruler of Talcher and such grant was exempted from registration in view of Section 2 of the Government Grants Act. He alleged that the Courts below did not consider the matter from this angle property and committed legal error in rejecting Ext. 4 on the finding that it was an unregistered document. He placed reliance on Mohsin Ali v. State of Madhya Pradesh, AIR 1975 SC 1518, Prasanta Kumar Patnaik v. Hadu alias Hadibandhu Sahu, 31 (1965) CLT 576 in this regard. Mr. Mukherjee further argued that rejection of the prayer for recording the suit land in the name of the plaintiff by the settlement authorities and Tahasildar does not amount to denial of recognition of the grant by the new sovereign state and that in absence of any specific denial of recognition by the competent, authority, implied recognition of the successive sovereign State can be presumed.
7. Mr. Sangram Das, learned Addl. Standing counsel appearing for the respondent, on the contrary, argued that the document (Ext. 4) is simply a gift document, which requires registration under Section 17 of the Registration Act and the Courts below committed no error in rejecting this document as it was an unregistered one. According to him, even assuming Ext. 4 is a grant, which is not required to be registered, the same does not confer any right, title in favour of the plaintiff as grant by the ex ruler was not recognized by the new sovereign State. According to him, rejection of the prayer for recording the land in the name of the plaintiff by the settlement authorities and the rejection of the prayer for mutation by the revenue authorities of the State amount to denial of recognition of grant by the new sovereign State. In support of this contention, he relied on the decisions in Smt. Shakuntala v. State of Haryana (1979) 3 SCC 226 : AIR 1979 SC 843. The State of U.P v. Zahoor Ahmad, AIR 1973 SC 2520, State of Gujarat v. Vora Fiddall Badruddin Mithibarwala, AIR 1964 SC 1043.
8. Admittedly, Ext. 4 was given by the then Ruler of Talcher State. The document was held to be inadmissible by the Courts below for the reason that it was an unregistered one, even though Section 17 of the Registration Act mandates that gift deeds are compulsorily registrable. Section 122 of the Transfer of Property Act defines ‘gift’ as follows:—
‘Gift’ is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee”.
The essential features of gift, are, therefore, that it should be made by the donor without consideration and should be accepted by or on behalf of the donee. ‘Grant’, on the other hand, is a benevolent concession granted by the Ruler in favour of a subject, which may include property, pension and/or any other fringed benefit. (See AIR 1975 SC 1518, Mohsin Ali v. State of Madhya Pradesh and AIR 1938 Cal 211, Janendra Nath Nanda v. Jadunath Banerjee). The contents of Ext. 4 reveal that the then Ruler of Talcher out of affection allowed the appellant to occupy and reside over Ac.O 12 dec. of land because after closure of the orphanage, the plaintiff had no place to stay. It was mentioned in Ext. 4 that the appellant and his heirs and successors would enjoy that land and may get their name recorded for that land in settlement records. It was a benevolent concession by the Ruler in favour of the appellant. So, it was more in the nature of a ‘grant’ than a ‘gift’. Further more, there is no indication in the document that the ruler as a donor gifted the land and the appellant as a donee accepted the same. No witness has also signed or attested the document as is required in a gift transaction as per Section 123 of the Transfer of Property Act. The document is on the stationery of Talcher palace and has been signed by the Ruler himself. Once all these aspects are taken into consideration, there cannot be any doubt that Ext. 4 was a grant. Section 2 of the Government Grants Act, 1895 provides that in case of grant or other transfers by the sovereign ruler or the Government, the provision of Transfer of Property Act will not apply, which otherwise means that the provision of Section 123 of the Transfer of Property Act regarding registration of a document is not applicable to Ext. 4. In the case of Prasanta Kumar Patnaik (supra), it was held by this Court that the provision of Transfer of Property Act does not apply to any grant or transfer made by or on behalf of the Government to any person. So, in view of Section 2 of the Government Grants Act and the ratio laid down in the case of Prasanta Kumar Patnaik (supra), Ext. 4 was not required to be registered irrespective of whether the transaction noted therein was a gift or grant as it was made by the sovereign authority. The ratio in the case of the State of U.P v. Zahoor Ahmad (supra) has no application to the present case because the facts and circumstances of that case are totally different from those in the present case, inasmuch as the document involved in that case was found to be a document of lease. Similarly, the case of Mohsin Ali (supra) also does not come to any help as in that case the issue was whether the grant extended by the Ruler was an absolute transfer of right over the house in question or was life interest granted to the employee in appreciation of long and distinguished service. The Courts below thus committed error in holding that Ext. 4 was compulsorily registrable in view of Section 42 of the Administrative Report of Talcher State of 1945-1946 and Appendix-II of that report, which stipulate that among other Acts noted in the Appendix, the Registration Act was applicable to the State of Talcher. That was simply a general provision indicating that Registration Act was applicable to the State of Talcher. But in the face of exemption as provided in Section 2 of the Government Grants Act, the said Rule 42 was not applicable to Ext. 4.
9. Learned counsel for the State claims that even assuming that Ext. 4 is a grant, which did not require registration, such grant is legally unenforceable in the Court of law against the subsisting new sovereign State when Ext. 4 has not been recognized expressly or impliedly by the new sovereign State. According to him, refusal by the settlement authorities to record the suit land in favour of the appellant and refusal by the revenue authorities to mutate the suit land tantamounts to non-recognition of the grant by the new sovereign State.
10. In the settlement proceeding as well as in the mutation case, the prayer of the plaintiff-appellant to record the suit land in his name was refused on technical grounds despite the report of the Amins that the plaintiff-appellant was in possession of that land. It was observed by those Courts that Ext. 4 being an unregistered document, did not convey any title, that possession of the appellant was not adverse in nature etc. It is worthwhile to note that the Tahasildar or the Assistant Settlement Officer does not represent the new sovereign State. In the rule of business, the authorities, who represent sovereign State have been described. Any other person or authority cannot represent the State. Moreover, there is no indication in the orders passed by the settlement authorities or mutation authorities that grant extended in Ext. 4 by the former ruler is not recognized by the new sovereign State and on that ground the mutation or recording in the settlement records is being refused. No doubt, the general principle is that the grant made by the former ruler at the tag end of his rule requires recognition by the subsequent sovereign State, but that principle is restricted to a limited field as has been indicated in the case of Vora Fiddali Badruddin Mithibarwala (supra). In that case a Letter of Guarantee was written by the Secretary in the Ministry of State that no order passed or action taken by the Ruler before the date of making over the administration to the Indian Govt. would be questioned unless the order passed or action taken after 1-4-1948 was considered by the Govt. of India to be palpably unjust or unreasonable. In that case, ruler of Sant State had created a grant over some forests in favour of some individuals just before making over the administration of the State to the Central Government and the grant was ultimately found to be unjust, unreasonable and mala fide in nature. Therefore, the Apex Court held that the Government of Bombay and Central Government could refuse to recognize such grants created over the forests. In the present case, there was no stipulation of any cut off date by the Ministry of State nor was there any finding by the new State authorities that grant made in favour of the appellant under Ext. 4 was unjust, unreasonable, or with mala fide in nature. Whenever the State prescribes that the grant would require recognition of the new sovereign State, it has to provide through law, rules or notification the mode in which granted would seek recognition and the conditions under which such grant is to be recognized or not recognized by the new sovereign State. In absence of any such provision, the grants given by the former rulers which are not unjust and unreasonable can be presumed to be recognized by implication. As has been stated earlier, in the present case, the authorities representing the State have not indicated that grant in favour of the appellant was unjust or unreasonable and that the State would not recognize such grant. In absence of any provision for seeking recognition and in absence of any positive refusal of recognition, grant under Ext. 4 can be deemed to have been recognized by the new sovereign State by implication. The Courts below some how did not consider these aspects and committed legal error in holding that the grant under Ext. 4 was not workable due to want of recognition by the new sovereign State.
11. The substantial questions of law are thus answered in favour of the appellant. The grant extended by the then ruler of Talcher in favour of the appellant is found to be valid and, as per the stipulation in the grant, the appellant has derived title and possession over the suit land. The judgment and decree of the Courts below are, therefore, set aside and the right, title, interest and possession of the plaintiff-appellant over the suit land are declared.
12. In the result, the appeal is allowed on contest, but in the above noted peculiar facts and circumstances without any cost.
Appeal allowed.
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