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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2845 OF 2006

KHURSIDA BEGUM (D) BY LRS. & ORS.          …APPELLANTS

VERSUS

MOHAMMAD FAROOQ (D) BY LRS. & ANR.      ...RESPONDENTS

J U D G M E N T

ADARSH KUMAR GOEL, J.

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  

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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 one-

third share to the plaintiff by a registered deed and informed  

the tenants.  After the gift deed, the plaintiff was to get one-

third 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 :

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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  

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one-third  share  of  property  and  that  the  gift  was  hiba-bil-

musha.  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 :

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“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.”

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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   

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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  

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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,  

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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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