Wednesday, 6 April 2016

Whether gift of immovable property in muslim law will be valid even though no actual possession of property was given to donee?

 The courts below have held the gift to be invalid on the
ground that it was gift of undivided property which is capable
of division and was not covered by any of the exceptions to the
rule that gift of such property is irregular. It is submitted by
learned counsel for the appellant that the property is freehold
property in the city of Jaipur, which is a large commercial town.
This has been wrongly ignored by the courts below on the
ground that there was no pleading or proof to that effect.
Description of property mentioned in plaint and in the gift
deed itself shows that it is commercial property in the city of
Jaipur which is the capital of the State of Rajasthan and is,

thus, a large commercial town. Requirement of possession is
also met when right to collect rent has been assigned to the
plaintiff under the gift deed itself, genuineness of which stands
proved.
 We find force in the submission. The gift had no infirmity
under the Muslim Law either on the ground that the possession
was not delivered or on the ground that the gift was hit by
Hiba-bil-Musha. The gift was by father to his minor son.,
Property is under tenancy. The gift is by a registered deed.
Right to collect rent stands transferred to donee. The property
is located in the city of Jaipur which is mentioned in Para 2 of
the plaint as well as in the gift deed. The courts below are not
justified in not giving effect to the gift which has been held to
be genuine.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2845 OF 2006
KHURSIDA BEGUM (D) BY LRS. & ORS. 
VERSUS
MOHAMMAD FAROOQ (D) BY LRS. & ANR. 
Dated;FEBRUARY 1, 2016.


1. Validity of gift deed dated 24th February, 1976 executed
by late Hazi Azimuddin in favour of the plaintiff Rafiuddin is the
sole question for consideration. The courts below have held
the same to be a gift of undivided share of property which was
capable of division and thus invalid under Muslim Law being
hiba-bil-musha. It has also been held that gift was of no effect
as possession was not delivered to the donee. Factually, the
gift was held to be genuinely executed.
2. Facts are as follows : The appellant filed suit for recovery
of the amount received by the defendants by way of rent to
the extent of one-third share of the plaintiff (based on gift
deed in his favour by his father) in the property which was
rented out to the tenants. Claim of the plaintiff is that his
father late Hazi Azimuddin was the absolute owner of the suit
property. In the sale deed, his father got the names of the
defendants (brothers of the plaintiff) recorded as owners to the
extent of two-third. On 24th February, 1976, he gifted his onethird
share to the plaintiff by a registered deed and informed
the tenants. After the gift deed, the plaintiff was to get onethird
share of the rent. The total rent was Rs.50/- per month.
From 1st January, 1977, the defendants received the entire rent
and did not pay the plaintiff’s share to him. Thus, the plaintiff
was entitled to recover one-third of the amount falling to his
share.
3. The respondents defendants contested the suit denying
the validity of the gift deed. It was stated that Hazi Azimuddin
was 95 years old suffering from certain ailments and was not
in a fit condition to make the gift deed. He had no right in the
property and had never recovered any part of the rent. There
was an oral family arrangement under which the defendants
became the exclusive owners and Hazi Azimuddin relinquished
all his rights.
4. The trial Court framed following issues :
2Page 3
1. Whether the disputed property has come to
the defendants 20 years prior to the institution
of the suit by way of oral family arrangement
between late Azimuddin and the defendants and
they are in possession as owners in their shares
for 20 years?
2. Whether Late Azimuddin on 24.2.76 made a
valid gift of 1/3 undivided share in the disputed
property in favour of the plaintiffs and was
receiving the rent from tenants in his lifetime till
1.1.77 and was paying 1/3 part of it to the
plaintiffs?
3. Whether sufficient court fees has been
paid?
4. Whether the suit is for partial partition of
the property of Azimuddin. If yes, then whether
suit for partial partition cannot continue?
5. Whether the suit is barred by limitation?
6. Whether the other sons and daughters of
Azimudin are necessary party to the suit. If yes,
what is the effect of non-joinder of necessary
parties to the suit?
7. Relief.”
The trial Court dismissed the suit. It was held that no
family arrangement had taken place as claimed by the
defendants. Hazi Azimuddin alone was receiving the rent from
the tenants till his death as shown by the rent receipts and
other documents which were proved on record. Gift deed
dated 24th February, 1976 was duly executed. Hazi Azimuddin
himself had gone to the office of the Sub Registrar. The case of
the defendants that he was not in a fit state of health was not
accepted. However, gift of undivided property was not valid as
the plaintiff was never given actual or symbolic possession of
3Page 4
one-third share of property and that the gift was hiba-bilmusha.
The High Court dismissed the appeal.
5. We have heard learned counsel for the parties.
6. Learned counsel for the appellants submitted that once
the gift was held to have been duly proved in favour of the
appellant who was minor, transfer of possession was not
required to be proved. Further, the property being in
possession of the tenant, execution of gift deed by itself
amounted to transfer of constructive possession. It was
further submitted that the gift could not have been declared
invalid on the ground that it related to undivided share of
divisible property which was not the plea in the written
statement. There was no absolute bar to such gift. Even if
there is such a bar in certain situations, there are exceptions to
the rule which apply. One of the exceptions is that property is
freehold property in a large commercial town which is clearly
applicable to the present case. The courts below thus erred in
holding the gift to be illegal on that ground.
7. Learned counsel for the respondents supported the
impugned judgment.
8. Before we advert to the issue, it will be appropriate to
refer to the finding recorded by the courts below. The trial
court observed :
4Page 5
“Now, it only remains to be decided as to what is
the effect of the said gift-deed. I have gone
through Section 206 of Muslim Law which is as
follows :
206. Hiba of undivided property (hiba-bil-mushaa)
Subject to the provisions of Sec. 207 a hiba of an
undivided share in property which is capable of
division is invalid except in the following cases :
a. Where it is made by one co-sharer in the
property to another;
b. Where the property admits of definite
ascertainment of shares and is capable of
separate enjoyment without division;
c. Where it is made to a minor who is under
the custody of the donor and to whom the
donor transfers a part of the property;
d. Where the property is freehold property in
a large commercial town (c)
For Hiba-bil-Mushaa, it is settled principle of
Muslim Law that gift of undivided share in
property, which is capable of division is invalid
except in 4 aforesaid cases. In my view, this
disputed Hiba does not fall in any of above-stated
exception and it can be said to be invalid. I have
gone through the judgment cited by the Learned
Counsel for the plaintiff according to which even if
the case is covered under exception “c” and “d”,
even then it has to be said that handing over of
possession is necessary in Hiba-bil-Mushaa. If the
possession has not been handed over, then the
principle of Musha would be applicable and that
Hiba will be considered invalid.
xxxxxxx
The plaintiff has totally failed to prove that on
24.2.76 or later, they had been handed over
possession actual or symbolic of undivided 1/3
share of the property. In such circumstances, it
has to be said that the principle of Musha would
be applicable to Hiba and Hiba that has been
made on 24.2.76 is not as per the rules and is
invalid. As a consequence this issue is decided
against the plaintiff.”
5Page 6
9. The High Court held :
“Bare reading of the above provision would show
that the gift in question in the present case does
not come in any of the exceptions mentioned
above. It has also not been pleaded or proved in
any manner that the property in question is
freehold property in a large commercial town, so
as to attract clause (d) of the exception as
referred to above.
After having considered the entire facts and
circumstances of the present case, in view of the
clear provisions of law, as referred to above, I find
no error or illegality in the judgment and decree
passed by the trial court so as to call for any
further interference of this court.”
10. Learned counsel for the parties have referred to the
principles of Mohammedan Law as compiled in “Mulla
Principles of Mohammedan Law, 20th Edition by Lexis Nexis,
paras 152 and 160 which are :
“152. Delivery of possession of immovable
property (1) Where donor is in possession – A gift
of immovable property of which the donor is in
actual possession is not complete, unless the
donor physically departs from the premises with
all his goods and chattels, and the donee formally
enters into possession.
(2) Where property is in the occupation of
tenants – A gift of immovable property which is in
the occupation of tenants may be completed by a
request by the donor to the tenants to attorn to
the donee, or by delivery of the title deed or by
mutation in the Revenue Register or the
landlord’s sherista. But if the husband reserves to
himself the right to receive rents during his
lifetime and also undertakes to pay Municipal
dues, a mere recital in the deed that delivery of
possession has been given to the donee will not
make the gift complete.
(3) Where donor and donee both reside in the
property – No physical departure or formal entry
6Page 7
is necessary in the case of a gift of immovable
property in which the donor and the donee are
both residing at the time of the gift. In such a
case the gift may be completed by some overt act
by the donor indicating a clear intention on his
part to transfer possession and to divest himself
of all control over the subject of the gift. The
principle for the determination of questions of this
nature was thus stated by West, J. in a Bombay
case. “When a person is present on the premises
proposed to be delivered to him, a declaration of
the person previously possessed puts him into
possession without any physical departure or
formal entry.
160. Gift of mushaa where property
divisible. A gift of an undivided share (mushaa) in
property which is capable of division is irregular
(fasid), but not void (batil). The gift being
irregular, and not void, it may be perfected and
rendered valid by subsequent partition and
delivery to the donee of the share given to him. If
possession is once taken the gift is validated.
Exceptions – A gift of an undivided share
(mushaa), though it be a share in property
capable of division, is valid from the moment of
the gift, even if the share is not divided off and
delivered to the donee, in the following cases –
(1) where the gift is made by one co-heir to
another.
(2) where the gift is of a share in a zemindari or
taluka
(3) where the gift is of a share in freehold
property in a large commercial town.
(4) where the gift is of shares in a land
company.”
11. A perusal of the above shows that while gift of
immovable property is not complete unless the donor parts
with the possession and donee enters into possession but if
the property is in occupation of tenants, gift can be completed
by delivery of title deed or by request to tenants to attorn to

the donee or by mutation. It is further clear that gift of
property which is capable of division is irregular but can be
perfected and rendered valid by subsequent partition or
delivery. Exceptions to the rule are : where the gift is made by
one co-heir to the other; where the gift is of share in a
zemindari or taluka; where gift is of a share in freehold
property in a large commercial town, and where gift is of share
in a land company.
12. The courts below appear to have quoted “Mohammedan
Law” by B.R. Verma, Law Publishers (India) Pvt. Ltd, 13th
Edition which is by and large to same effect as Mulla’s book on
the subject.
13. The courts below have held the gift to be invalid on the
ground that it was gift of undivided property which is capable
of division and was not covered by any of the exceptions to the
rule that gift of such property is irregular. It is submitted by
learned counsel for the appellant that the property is freehold
property in the city of Jaipur, which is a large commercial town.
This has been wrongly ignored by the courts below on the
ground that there was no pleading or proof to that effect.
Description of property mentioned in plaint and in the gift
deed itself shows that it is commercial property in the city of
Jaipur which is the capital of the State of Rajasthan and is,

thus, a large commercial town. Requirement of possession is
also met when right to collect rent has been assigned to the
plaintiff under the gift deed itself, genuineness of which stands
proved.
14. We find force in the submission. The gift had no infirmity
under the Muslim Law either on the ground that the possession
was not delivered or on the ground that the gift was hit by
Hiba-bil-Musha. The gift was by father to his minor son.
Property is under tenancy. The gift is by a registered deed.
Right to collect rent stands transferred to donee. The property
is located in the city of Jaipur which is mentioned in Para 2 of
the plaint as well as in the gift deed. The courts below are not
justified in not giving effect to the gift which has been held to
be genuine.
15. Accordingly, we allow this appeal, set aside the
impugned judgment and decree the suit.
……..…………………………….J.
 [ANIL R. DAVE]
.….………………………………..J.
 [ ADARSH KUMAR GOEL]
NEW DELHI;
FEBRUARY 1, 2016.

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