Judgment:
Ajoy Nath Ray, J.
1. In this application the writ petitioner challenges the order dated 15th October, 1977 declaring certain lands of the petitioner and his family to be vested under the West Bengal Land Reforms Act, 1955. As the writ petitioner had filed no return in relation to the land in Form 7A, a sup moto case had been started. It appears from a perusal of the order that the case of the writ petitioner that am oral gift of lands had been made to the five sons: of the writ petitioner was rejected on the ground of non registration of the writings accepting such gifts. Though the respondents have not appeared before me and there is no Affidavit-in-Opposition on record yet it appears from the order itself that the case of the writ petitioner was that the oral gifts had been made in or about the year 1967, that is, some two years prior to the date 7th August, 1969 whereafter under Section 14P of the said Act transfers would not be effective in the matter of bringing the land area below the ceiling specified under Section 14M.
2. It is quite clear that in passing the impugned order dated 15th October, 1977 the concerned officer made a clear error of law apparent on the face of the record. The Transfer of Property Act, 1882 talks of gifts in Chapter'VII. Though under that chapter transfer is generally to be effected by a registered instrument as per Section 123 yet savings of donatin mortis causa and under the special Rules of Mohamadan Law are made by Section 129 contained in that chapter.
3. The learned advocate appearing for the petitioner has also referred to two passages from the reprinted book of Justice Amir Ali which was published after the delivery of Tagore Law lectures in 1884. In my opinion he has correctly stated, relying upon pages 40 and 41 of the said book in volume I thereof that a Mohamadan gift might be oral and that the Transfer of Property Act leaves this provision untouched. The learned counsel also correctly submits that it is not a registered instrument that is necessary for validation of an oral Mohamadan gift but for the same the three necessary conditions are :-
(a) a manifestation of the wish to give ;
(b) an acceptance by the donee; and
(c) that taking of possession by the donee.
The practical wisdom of these rules can be easily seen from the third of the conditions which would protect third parties and the world at large against frauds being committed by setting up of alleged old oral gifts. The taking of possession would give the best notice to third parties or purchasers about the necessity of making enquiries of the person in possession.
4. Be that as it may, the order in question clearly suffers from placing of an undue importance upon the requirement, of a registered instrument and thus suffers from an illegality which needs to be rectified in this jurisdiction. Under these circumstances there will be a Rule absolute in the nature of certiorari quashing the impugned order dated 15th October, 1977 and there shall also be a declaration that the said order is to be treated by the respondents and all of them and all others concerned as being void ab initio.