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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 603  OF 2009

Rasheeda Khatoon (D)  Through LRs.      ...Appellants

Versus

Ashiq Ali s/o of Lt. Abu Mohd (D) Through LRs.                ..Respondents

WITH

CIVIL  APPEAL  NO.  564 OF 2009

J U D G M E N T

Dipak Misra, J.

Rasheeda  Khatoon,  the  predecessor-in-interest  of  

present appellants, instituted regular suit No. 31 of 1975 in  

the  Court  of  Civil  Judge,  Faizabad,  seeking  recovery  of  

possession from the original defendants.  The case of original  

plaintiff before the trial Court was that one Abdul Haq was  

the owner of the house No. 2868 situated in Mohalla Hayat  

Ganj in Tanda, District Faizabad. The only son of Abdul Haq

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had shifted to Pakistan at the time of Partition and there was  

no one to look after him.  The father of Rasheeda Khatoon,  

Hazi Madari,  was a close friend of Abdul Haq, and being a  

neighbour,  she was looking after  him for  last  20  years  till  

24.01.1972  when  he  breathed  his  last  at  the  ripe  age  of  

ninety.   Regard  being  had  to  various  aspects  and  fruther  

being  pleased  with  her  services,  7  years  prior  to  the  

institution of the suit he made an oral gift of the suit house in  

her favour which was accepted by her and possession of the  

house was also handed over.  Pursuant to the oral gift she  

lived in the premises in question and looked after him.  The  

tenants who had been staying in the southern portion of the  

house, accepted her status and started paying rent to her.  

Prior to a year of his death being apprehensive that some  

others might disturb in her possession, he executed a deed of  

gift in writing evidencing the oral gift made earlier in favour  

of the plaintiff.   As pleaded, within one month from the death  

of  Abdul  Haq,  the  defendants  dishonestly  moved  an  

application under Section 145 CrPC before the SDM, Tanda  

with  an  intention  to  evict  the  plaintiff  and  in  the  said  

proceeding the property  in  question was attached,  and all  

these circumstances constrained the plaintiff to file the civil  

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suit for declaration that she was the owner in possession of  

the house in question.  During the pendency of the suit, as  

alleged, the defendants took over possession in pursuance of  

the  release  order  passed  by  the  SDM  on  12.4.1975  and  

thereafter  the plaintiff  amended the plaint  and sought  the  

relief of recovery of possession.   

2. The defendants entered contest and took various pleas  

to the effect that the suit was under-valued and the court fee  

that  was  paid  was  not  sufficient;  that  Abdul  Haq  was  in  

possession  of  the  house  till  his  death  and  never  parted  

possession;  that  there was no oral  gift  as asserted by the  

plaintiff;  that  Khairulnisha,  Kamrulnisha  alias  Kumul  and  

Janharulnisha  were  the  daughters  of  Abdul  Haq;  that  

Khairulnisha died during the life time of Abdul Haq and her  

sons Mohd. Ayub, Moyuddin, Mohd. Yasin, Sagir Ahmad and  

Bashir Ahmad were alive;  that the defendant No.1 is the son  

of  Jauharulnisha;  that  Abdul  Haq  died  leaving  behind  

Kamarulnisha, Jauharulnisha and sons of Khairulnisha as his  

legal heirs and they had become the owners; that during life  

time Abdul Haq had given certain properties to the son of the  

defendant  No.2;  and  that  after  the  death  of  Abdul  Haq  

defendant No.2 had constructed a shop with the permission  

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of the defendant No.1 on the condition that the shop shall be  

let-out to him.  It was also asseverated that Jauhirulnissa had  

executed  a  sale  deed  on  8.3.1972  and  Usman  and  Rauf  

executed  a  sale  deed on  31.3.1972  in  respect  of  the  suit  

house in favour of the defendant Nos. 2 and 3 and since then  

the  defendants  no.2  and  3  had  become  the  owners  in  

possession; that the proceeding initiated under Section 145,  

CrPC was eventually decided in favour of the defendants; and  

that the plaintiff had no right, title and interest over the suit  

house; and that the defendants are the owners in possession  

of the suit property.

3. On the basis  of  the aforesaid pleadings,  the learned  

trial Judge framed the following issues:-  

“1.  Whether  plaintiff  is  owner  of  the  disputed  house as claimed in plaint?

2. Whether defendant Nos. 1 to 3 are the owners  of the disputed house as claimed in their written  statement?

3.  Whether  there  has  been  an  oral  gift  and  subsequent writing evidencing this gift in favour  of  the  plaintiff  by  Abdul  Haq  on  9.10.1970  as  alleged in the plaint?  

4. Whether suit is under-valued and deficient in  suit fees?

5. Whether suit is not maintainable, as alleged in  para no. 29 of the W.S.?  

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6. Whether suit is barred by Section 34 of Specific  Relief Act?

7. To what relief, if any, is the plaintiff entitled in  the case?”

4. The learned trial Judge on appreciation of the evidence  

brought on record came to hold that the plaintiff had proved  

the oral gift executed by Abdul Haq in her favour; that the  

gift  deed did not require registration; that the deed of gift  

could  not  be  ignored solely  because  it  was  not  registered  

when it had demonstrably been established by the oral and  

documentary  evidence that  Abdul  Haq had made a  gift  in  

favour of the plaintiff and had put her in possession; and that  

she was the owner of the suit premises  and entitled to get  

back  possession.   Being  of  the  said  view,  the  trial  court  

decreed the suit.  

5. Being dissatisfied with the said judgment and decree,  

the defendants preferred Civil  Appeal No. 435 of 1978 and  

the first appellate court concurring with the view  of the trial  

court as regards the character and the nature of instrument,  

that it is an oral gift, based its conclusions on the premises  

that the contents of the  document showed that the ‘Hiba’  

had already been accepted by Rashida Kahtoon before the  

deed was executed; that the document was only an evidence  

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of the oral gift which had been made earlier by Abdul Haq in  

favour  of  the  plaintiff;   that  the  stand  of  the  defendants-

appellants that the document could not be read in evidence  

because it was not  registered was bereft of any substance  in  

view of the language employed in Section 129 of the Transfer  

of Property Act (for brevity ‘the Act’) which lays down that  

Section 123 of the Act which mandates registration in case of  

a gift of an immovable property does not apply  to any gift  

made  under  the  Muhammadan  Law  and  a  Muhammadan  

could  make  an  oral  gift  of  immovable  property  and  if  a  

Muhammadan prepares a document relating to gift such deed  

of gift continues to be an evidence of gift. To arrive at the  

aforesaid conclusions the first appellate court placed reliance  

upon the authorities in Karam Ilahi v. Sharfuddin1, Nasib  

Ali v. Wajid Ali2, Bishwanath Gosain v. Dulhin Lalmani3  

and Boya Ganganna v. State of Andhra Pradesh4.

6. The aforesaid Judgment and decree passed by the first  

appellate  court  was  assailed  in  second  appeal  and  the  

learned Single Judge taking note of the substantial question  

of law opined that the core issue was whether the document  

in question is a deed of gift or it evidences the oral gift.  The  1   AIR 1916 All 351  2 AIR  1927 Cal  197  3 AIR 1968 Pat 481 4 AIR 1976 SC 1541

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learned Single Judge was of the view that if it was accepted  

as an evidence of the oral gift it did not require registration  

and if it is interpreted otherwise, it required registration.  He  

referred to certain provisions of the Act and Section 17 of the  

Registration Act and, thereafter, scrutinized the contents of  

the  instrument  in  question  and  came  to  hold  that  the  

document in question makes it clear that up to the date of  

execution of gift deed no gift was made; that the executant  

of the deed was in possession of the house; that the deed  

transferred the property in  favour  of  Rasheeda Khatoon  in  

praesenti; and that it is clear from the language employed in  

the gift deed that the executant had not delivered possession  

to the donee.  Being of this view, he came to hold that both  

the  courts  below  had  misread  the  deed  dated  9.10.1970  

executed  by  Abdul  Haq  and  treated  it  to  be  an  oral  gift  

though it  was a document under which transfer was made  

and,  therefore,  it  was  compulsorily  registrable  and  

accordingly, allowed the appeal.  Hence, the present appeal  

by special leave.  

7. We have heard Mr. Fakhruddin, learned senior counsel  

for  the  appellant  and Mr.  A.  G.  Chaudhary,  learned senior  

counsel for the respondents.

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8. The gravamen of the controversy as is demonstrable  

pertains  to  is  the  nature  and  character  of  the  document  

executed by Abdul Haq in favour of Rasheeda Khatoon, the  

predecessor-in-interest of the appellants.  Before we keenly  

scrutinize  the  document,  we think  it  necessary  to  refer  to  

certain  authorities  in  the  field  that  have  dealt  with  the  

concept  of  oral  gift  in  Muhammadan Law.   In  this  context  

Sections 123 and 129 of the Transfer of Property Act have to  

be taken note of.  Section 123 of the Act stipulates that for  

the  purpose  of  making  a  gift  of  immovable  property,  the  

transfer must be effected by a registered instrument signed  

by or on behalf of the donor, and attested by at least two  

witnesses.   Section  129  provides  for  savings  of  donations  

mortis  causa  and the  gifts  made under  the  Muhammadan  

Law.   It  is  clear  from the  said  provision  that  the  Chapter  

relating to gifts  including registration would not  effect  any  

rule of Muhammadan Law.   

9. In Karam Ilahi (supra) it has been held as follows:-  

“It is admitted that a Muhammadan may make  an oral gift provided that possession follows.  It  seems to us quite clear  that  the provisions of  Section  123 are  inapplicable  to  gifts  made by  Muhammadans and valid according to their law.  It  is  quite clear that the Legislature had in its  mind  the  provisions  of  Section  123  when  enacting Section 129.  Section 123 is specifically  

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referred to in Section 129.  The deed of gift is  admissible to prove that a gift was made.”

10. In  Nasib  Ali (supra) Suhrawardy,  J.  referred  to  

Kamarunnissa Bibi v. Hussaini Bibi5  and  Karam Ilahi  

(supra) and came to hold that the essentials of a gift under  

the  Muhammadan  Law  are  a  declaration  of  ‘hiba’  by  the  

donor, an acceptance, express or implied, of the gift by the  

donee,  and  delivery  of  possession  of  the  property,  the  

subject-matter of the gift, according to its nature. A simple  

gift can only be made by going through the above formalities  

and no written instrument is required. In fact no writing is  

necessary to validate a gift and if a gift is made by a written  

instrument without delivery of possession, it is invalid, in law.  

Thereafter, the learned judge stated thus:-  

“The  position  under  the  Mohammadan  Law  is  this:  that  a  gift  in  order  to  be  valid  must  be  made  in  accordance  with  the  forms  stated  above;  and even if  it  is  evidenced by writing,  unless all the essential forms are observed, it is  not  valid  according  to  law.   That  being  so,  a  deed of gift executed by a Mohammadan is not  the instrument effecting, creating or making the  gift  but  a mere piece of  evidence.   It  may so  happen after a lapse of time that the evidence  of the observance of the above forms might not  be  forthcoming,  so  it  is  sometimes  thought  prudent to reduce the fact that a gift has been  made  into  writing.   Such  writing  is  not  a  document of title but is a piece of evidence. ”  

5 (1880) 3 All 266

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11. In  Mahboob Sahab v. Syed Ismail and Others6 a  

two-Judge Bench referred to Section 147 of the Principles of  

Mahomedan Law by Mulla wherein the essentials of valid gift  

under  the  Muhammadan  Law  have  been  elucidated  and  

proceeded  to  explicate  the  principle.  We  think  the  

reproduction of the relevant passage would be seemly:-   

“Under  Section  147  of  the  Principles  of  Mahomedan Law, by Mulla, 19th  Edn., edited by  Chief  Justice  M.  Hidayatullah,  envisages  that  writing is not essential to the  validity of a gift  either  of  moveable  or  of  immovable  property.  Section 148 requires that it  is  essential  to the  validity  of  a  gift  that  the  donor  should  divest  himself  completely  of  all  ownership  and  dominion  over  the  subject  of  the  gift.  Under  Section 149,  three essentials to the validity of  the gift should be, (i) a declaration of gift by the  donor,  (ii)  acceptance  of  the  gift,  express  or  implied, by or on behalf of the donee, and (iii)  delivery of possession of the subject of the gift  by  the  donor  to  the  donee  as  mentioned  in  Section  150.  If  these  conditions  are  complied  with,  the  gift  is  complete.  Section  150  specifically mentions that for a valid gift  there  should be delivery of possession of the subject  of the gift and taking of possession of the gift by  the donee, actually or constructively. Then only  the gift is complete. Section 152 envisages that  where  the  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. It  would, thus,  be clear that though gift by a Mohammedan is  not required to be in writing and consequently  need not  be registered under  the  Registration  

6  (1995) 3 SCC 693

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Act; for a gift to be complete, there should be a  declaration of the gift by the donor; acceptance  of the gift, expressed or implied, by or on behalf  of the donee, and delivery of possession of the  property,  the subject-matter of the gift  by the  donor  to  the  donee.  The  donee  should  take  delivery of the possession of that property either  actually  or  constructively.  On  proof  of  these  essential conditions, the gift becomes complete  and valid. In case of immovable property in the  possession of the donor,  he should completely  divest  himself  physically  of  the  subject of  the  gift.”  

[Emphasis supplied]

12. Recently  in  Hafeeza  Bibi  and  Others  v.  Shaikh  

Farid (Dead) by LRS.  and Others7  a two-Judge  Bench  

referred to the authority in  Mohd. Abdul Ghani v. Fakhr  

Jahan  Begam8 wherein  the  Privy  Council  had  made  a  

reference  to  Muhammedan  Law  by  Syed  Ameer  Ali  and  

approved  the  statement  as  regards  the  essential  three  

conditions  for  a  valid  gift.   Thereafter,  the  learned Judges  

referred  to  Nasib  Ali  (supra),  Assan  Ravther  v.  

Manahapara Charayil9 and   Javeda Khatun v. Moksed  

Ali10 and stated the position of law thus:-  

“The position is well settled, which has been  stated  and  restated  time  and  again,  that  the  three  essentials  of  a  gift  under  Mohammadan  Law are: (1) declaration of the gift by the donor;  (2) acceptance of the gift by the donee; and (3)  delivery  of  possession.  Though,  the  rules  of  

7  (2011) 5 SCC 654 8  (1921-22) 49 IA 195  :  AIR 1932 PC 13 9 AIR 1972 Ker 27  10 AIR 1973 Gauhati 105  

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Mohammadan Law do not make writing essential  to the validity of a gift; an oral gift fulfilling all  the  three  essentials  makes  the  gift  complete  and irrevocable. However, the donor may record  the transaction of gift in writing.”

13. After so stating the court referred to Asaf A.A.Fyzee  

in  Outlines  of  Muhammadan  Law11 and   Mulla,  

Principles  of  Mahomedan  Law12 and  eventually  ruled  

thus:-  

“In  our  opinion,  merely  because  the  gift  is  reduced to writing by a Mohammadan instead of  it  having been made orally,  such writing does  not become a formal document or instrument of  gift.  When  a  gift  could  be  made  by  a  Mohammadan orally, its nature and character is  not changed because of it having been made by  a  written  document.  What  is  important  for  a  valid gift under Mohammadan Law is that three  essential requisites must be fulfilled. The form is  immaterial.  If  all  the three essential  requisites  are  satisfied  constituting  a  valid  gift,  the  transaction of gift would not be rendered invalid  because it has been written on a plain piece of  paper. The distinction that if a written deed of  gift  recites  the  factum of  prior  gift  then  such  deed is not required to be registered but when  the writing is contemporaneous with the making  of the gift, it must be registered, is inappropriate  and does not seem to us to be in conformity with  the rule of gifts in Mohammadan Law.”

[Emphasis added]

14. For a clear understanding of the conception of the valid  

gift  under  the  Muhammadan  Law  we  think  it  apposite  to  

reproduce  the  passage  from  Mulla,  Principles  of  

11  5th Edn. (edited and revised by Tahit Mahmood) at P. 182 12 (19th Edn.) P.120  

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Mahomedan Law  that  has  been quoted and approved in  

Hafeeza Bibi (supra):-  

“Under  the  Mahomedan  law  the  three  essential requisites to make a gift valid are: (1)  declaration  of  the  gift  by  the  donor,  (2)  acceptance of the gift by the donee expressly or  impliedly, and (3) delivery of possession to and  taking possession thereof by the donee actually  or  constructively.  No  written  document  is  required  in  such  a  case.  Section  129  of  the  Transfer  of  Property  Act  excludes  the  rule  of  Mahomedan  Law  from  the  purview  of  Section  123 which mandates that the gift of immovable  property  must  be  effected  by  a  registered  instrument as stated therein.  But  it  cannot be  taken  as  a  sine  qua  non  in  all  cases  that  whenever there is a writing about a Mahomedan  gift  of  immovable  property  there  must  be  registration  thereof.  Whether  the  writing  requires registration or not depends on the facts  and circumstances of each case.”

15. At this stage, it is condign to state that the two-Judge  

Bench ultimately has ruled that it is not the requirement in all  

cases where the gift deed is contemporaneous to the making  

of the gift then such deed must be registered under Section  

17 of the Registration Act, and each case would depend on its  

own facts.  Be it stated, the Court did not approve the view  

expressed in  Govt. of Hyderbad (Deptt. of Revenue) v.   

Tayyaba Begum13, Ghulam Ahmad Sofi v. Mohd. Sidiq  

Dareel14,  Chota  Uddandu  Sahib  v.  Masthan  Bi15,  13 AIR 1962 AP 199 14 AIR 1974 J&K 59 15 AIR 1975 AP 271

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Amirkhan   v.  Ghouse  Khan16 and  Sunkesula  Chinna  

Budde Saheb v. Raja Subbamma17.   

16. From the  aforesaid  discussion  of  the  propositions  of  

law it is discernible that a gift under the Muhammadan Law  

can be an oral gift and need not be registered; that a written  

instrument  does  not,  under  all  circumstances  require  

registration; that to be a valid gift under the Muhammadan  

Law three essential features namely, (i) declaration of the gift  

by  the  donor,  (ii)  acceptance  of  the  gift  by  the  donee  

expressly or impliedly, and (iii) delivery of possession either  

actually or constructively to the donee, are to be satisfied;  

that  solely  because the writing is  contemporaneous of  the  

making  of  the  gift  deed,  it  does  not  warrant  registration  

under Section 17 of the Registration Act.   

17. At this juncture, it is pertinent to refer to a three-Judge  

Bench decision in Valia Peedikakkandi Katheessa Umma  

and  others  v.  Pathakkalan  Narayanath  Kunhamu  

(deceased) and after him his legal representatives and  

others18 where  the  question  arose  whether  a  gift  by  a  

husband to his minor wife and accepted on her behalf by her  

16 (1985) 2 MLJ 136  17 (1954) 2 MLJ 113 (AP) 18 AIR 1964 SC 275

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mother  is  valid.   Dealing  with  the  concept  of  gift  under  

Muhammadan Law the Court observed that:-  

“...  Muhammadan  Law  of  gifts  attaches  great  importance to possession or seisin of the property  gifted  (Kabz-ul-Kami)  especially  of  immovable  property.  The Hedaya says that seisin in the case  of  gifts  is  expressly  ordained  and  Baillie  (Dig  P.508) quoting from the Inayah refers to a Hadis of  the Prophet-“a gift is not valid unless possessed.”  In  the  Hedaya it  is  stated –  “Gifts  are rendered  valid  by  tender,  acceptance  and  seisin”  (p.482)  and  in  the  Vikayah  “gifts  are  perfected  by  complete seisin” Macnaghten (202).”

After so stating the Court proceeded to lay down that it  

is only actual or constructive possession that completes the  

gift and registration does not cure the defect nor is a bare  

declaration in the deed that possession was given to a minor  

of any avail without the intervention of the guardian of the  

property  unless  the  minor  has  reached  the  years  of  

discretion.   It  has  been  further  opined  therein  that  if  the  

property is  with the donor he must divest from it  and the  

donee must enter upon possession.   However,  to that rule  

there are certain exceptions which the Court took note of,  

stating thus:-  

“Exceptions  to  these  strict  rules  which  are  well  recognized are gifts  by the  wife  to  the husband  and by the father to his minor child (Macnaghten,  page 51 principles 8 to 9). Later it was held that  where  the  donor  and  donee  reside  together  an  overt  act only is  necessary and this  rule applies  

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between husband and wife.  In Mahomed Sadiq Ali  Khan v. Fakhr Jahan Begum, 59 Ind App 2 : (AIR  1932  PC  13)  it  was  held  that  even  mutation  of  names is not necessary if the deed declares that  possession is delivered and the deed is handed to  the wife.”

We have referred to this decision only to highlight the  

principle  that  either  there  has  to  be  actual  delivery  of  

possession  from  the  donor  or  the  donee  must  be  in  

constructive  possession  to  make  a  gift  valid  under  the  

Muhammadan Law.  

18. Presently,  we shall  deal  with  the  factual  score.   Mr.  

Fakhruddin, learned senior counsel would submit that when  

concurrent  findings were  returned that  the  plaintiff  was in  

possession on the date of execution of the gift deed as the  

donee had started residing with  the donor  the  High Court  

should not have dislodged the finding of possession solely on  

the  ground  that  the  gift  deed  was  a  contemporaneous  

document  which  required  registration.   Per  contra,  Mr.  

Chaudhary,  learned senior  counsel  would  submit  that  both  

the courts below had committed serious illegality by coming  

to hold that an oral gift was made in favour of the plaintiff  

seven  years  prior  the  date  of  execution  of  gift  deed  and  

factum of  the said  document  only  evidenced the oral  gift,  

though there is no mention of it in the deed itself.  It is urged  

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by him that by no stretch of examination such a finding could  

have been recorded.  As we notice, the trial court as well as  

the appellate court has returned a finding that there was an  

earlier oral gift by Abdul Haq in favour of the original plaintiff.  

The same is not reflectible from the document itself.   That  

apart, there is nothing else on record to support the same.  

The finding of the learned trial Judge as well as the appellate  

Judge  is  based  on  unwarranted  inferences  which  are  not  

supported  by  the  evidence  brought  on  record.   While  not  

accepting the said finding of the courts below we are also  

unable to accept the conclusion of the High Court that the  

document being a contemporaneous document or document  

in praesenti required registration.   

19. The  real  thrust  of  the  matter,  as  we  perceive,  is  

whether the essential ingredients of the gift as is understood  

in the Muhammadan Law have been satisfied.  To elaborate,  

a deed of gift solely because it is a written instrument does  

not require registration.  It can always be treated as a piece  

of evidence evidencing the gift itself, but, a significant one,  

that gift must fulfill the three essential conditions so that it  

may be termed as a valid gift under the Muhammadan Law.  

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20. The  aforesaid  being  the  position,  we  are  obliged  to  

scrutinize  the  deed  of  gift  and  the  material  brought  on  

record.  It has become necessitous in the instant case as the  

original and the first appellate court have recorded findings  

which  are  contrary  to  material  brought  on  record  and the  

High Court  has proceeded exclusively on the concept of  a  

deed  in  praesenti.   Be  it  stated,  this  Court  in  exercise  of  

power under Article 136 of the Constitution can interfere with  

the concurrent findings of fact, if the conclusions recorded on  

certain  factual  aspects  are  manifestly  perverse  or  

unsupported by the evidence on record.   It has been so held  

in  Alamelu & Another v. State19,  Heinz India (P) Ltd.  

and  Another  v.  State  of  U.P.  and  Others20 and  

Vishwanath  Agrawal  s/o  Sitaram  Agrawal  v.  Sarla  

Vishwanath Agrawal.21

21. In this backdrop we proceed to scan the gift deed.  On  

a perusal of the gift deed it is manifest that Abdul Haq had  

declared  therein  that  he  had  always  been  the  owner  in  

possession  and  the  entire  house  was  in  his  exclusive  

ownership and possession and free from all  encumbrances.  

Thus, the said recital belies the case of the plaintiff that there  

19 (2011) 2 SCC 385  20 (2012) 5 SCC 443 21 (2012) 7 SCC 288  

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was an oral gift seven years prior to filing of the suit, that is,  

sometime in the year 1968.  The learned trial Jude as well as  

the  appellate  court  has  brushed  aside  the  said  aspect  by  

stating  that  it  has  not  affected  the  stand  of  the  plaintiff  

inasmuch as  some witnesses  have deposed about  the  gift  

having been made in 1968.   As the deed would show the  

executant had stated that he had executed a Will earlier in  

favour of Rasheeda.  That apart, such a fact, had it been true  

would have definitely formed a part of the written instrument.  

Omission of such a fact, in our view, defies common sense.  

The conclusion that the gift deed dated 9.10.1970 evidences  

such a gift, is absolutely unacceptable.  Be that as it may, the  

issue is whether the document and the concomitant factors  

establish factum of gift made by the donor.  As stated earlier,  

if  the  essential  features  are  met  with  no  registration  is  

necessary.  On a perusal of the deed of gift and the evidence  

brought  on  record  it  is  demonstrable  that  Abdul  Haq  

remained in the premises in question.  He did not part with  

physical  possession.   The  case  of  the  plaintiff  is  that  she  

resided with Abdul Haq and, therefore, the principle of donor  

getting fully divested or handing over of physical possession  

is not attracted.  Though, such a finding has been recorded,  

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we find it  wholly contrary to the evidence on record.   The  

plaintiff was staying with her husband.  The family register  

and voters list, Exhibit 122 to 124 C indicate that Rasheeda  

Khatoon was residing in her house with her husband.  Though  

the gift deed mentions that she was entitled to get her name  

mutated in respect of the premises, yet it was not done.   On  

the analysis of evidence in the backdrop of the deed, it  is  

extremely difficult to hold that she was residing with Abdul  

Haq in the premises in question.  The first two courts have  

based their conclusions on conjecture and inferences.  The  

High Court, as we notice, has not dwelled upon this aspect  

and has only negatived the finding of the courts below that  

the document did not evidence an oral gift.  Thus scrutinized  

there remains no shadow of doubt that she was not in actual  

physical possession.  

22. We  have  already  stated,  actual  physical  possession  

may  not  be  always  necessary  if  there  is  constructive  

possession of the donee.  In this context we may reproduce  

Section  152,  sub-Section(3)  of  Mulla’s  Muhammadan  

Law:-

“No  physical  departure  or  formal  entry  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  

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the gift may be completed by some overt act by  the donor indicating a clear intention on his part to  transfer  possession  and  to  divert  himself  of  all  control over the subject of the gift.”

23. Possession  has  been  defined  in  Section  394  of  the  

Muslim Law by Tyabji.  It is thus:-

“A person is said to be in possession of a thing, or  of immovable property, when he is so placed with  reference  to  it  that  he  can  exercise  exclusive  control over it, for the purpose of deriving from it  such benefit as it is capable of rendering, or as is  usually derived from it.”

24. From the aforesaid it is vivid that the possession can  

be shown not only by enjoyment of the land or premises in  

question  but  also  by  asserting  who has  the  actual  control  

over the property.  Someone may be in apparent occupation  

of the premises, but the other would have control and gaining  

advantage of possession.  In the case at hand plea of actual  

physical possession by Rasheeda Khatoon does not deserve  

acceptance.  The existence of any overt act to show control  

requires  to  be  scrutinised.   A  plea  was  advanced  by  the  

plaintiff that she had been collecting rent from the tenants  

inducted by the donor, but no rent receipts have been filed.  

On the  contrary  certain  rent  receipts  issued  by  the  donor  

after the execution of the deed of gift have been brought on  

record.  There is no proof that the land was mutated in her  

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favour  by  the  revenue  authorities.   She  was  also  not  in  

possession of the title deeds.  Thus, the evidence on record,  

on a studied scrutiny, clearly reveal that Rasheeda Khatoon  

was not  in  constructive possession.   Therefore,  one of  the  

elements of the valid gift has not been satisfied.  That being  

the  position  there  is  no  necessity  to  advert  to  the  aspect  

whether the instrument in question required registration or  

not because there can be certain circumstances a deed in  

writing may require  registration.   In  the case at  hand,  we  

conclusively hold that as the plaintiff could not prove either  

actual or constructive possession, the gift was not complete  

and hence, the issue of registration does not arise.  

25. In  view  of  the  aforesaid  premises,  we,  though  for  

different reasons, affirm the judgment and decree of the High  

Court and dismiss the appeal as a consequence of which the  

suit of the plaintiff stands dismissed.  There shall be no order  

as to costs.   

CIVIL  APPEAL  NO.  564 OF 2009

26. In view of the dismissal of Civil Appeal No. 603 of 2009  

the present appeal stands dismissed.  There shall be no order  

as to costs.  

.............................J. [Dipak Misra]

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.............................J.                                               [Vikramajit Sen]

New Delhi; October 10, 2014    

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