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Thursday, February 18, 2016

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? =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. = Apex court held The gift is valid = 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.= “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 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.”=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.-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.          …APPELLANTS




                                   VERSUS


KOMAMMAD 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 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 :


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 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 :

“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.”





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 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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