Interpretation and/or application of the Islamic Law on Gift vis-`-vis handing over of possession of the property gifted is the question involved in this appeal. « advocatemmmohan

Interpretation and/or application of the Islamic Law on Gift vis-`-vis handing over of possession of the property gifted is the question involved in this appeal. « advocatemmmohan REPORTABLE

 IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION   CIVIL APPEAL NO. 1573 OF 2009  [Arising out of Special Leave Petition (Civil) No. 24819 of 2008]  ABDUL RAHIM & ORS. ... APPELLANTS   VERSUS  SK. ABDUL ZABAR & ORS. ... RESPONDENTS   JUDGMENT  S.B. Sinha, J.  1. Leave granted  2. Interpretation and/or application of the Islamic Law on Gift vis-`-vis  handing over of possession of the property gifted is the question involved in  this appeal. It arises out of a judgment and order dated 30.6.2008 passed by  the High Court of Orissa at Cuttack in First Appeal No. 197 of 1982  whereby and whereunder the First Appeal filed by the respondent No.1 -  plaintiff's has been allowed decreeing the suit.  2  3. Indisputably, the properties in question belonged to one Haji Sk.  Abdullah. He had two sons and four daughters. Respondent No.1 -  plaintiff was his elder son; whereas Abdul Razak (`Razak') (since  deceased), father of appellants, was the younger son. His daughters were  married. He gifted some lands in favour of his daughters in 1960. They in  turn relinquished their rights in his properties. He executed a registered  deed of gift in favour of Razak on or about 21.2.1973. The property gifted  was a house. Adjoining thereby was a small patch of land which belonged  to the State. The State had granted a temporary lease in favour of Haji Sk.  Abdullah. It was being used for ingress to and egress from the said house. It  is also not in dispute that he executed various documents in the year 1975  transferring his properties in favour of respondent No.1, his sons as also the  sons of Razak, appellants herein.   The recitals in the said deed of gift dated 21.2.1973 read as under:   "Description - I, the donor purchased the schedule  land from Sk. Abdul Azizi Ahmedi on 14.10.1958  by registered deed No. 11399 and since the date of  purchase I have been possessing as owner thereof.  Since I have become old, you the donee being my  younger son, you along with your wife have been  looking after me with utmost care and besides also  you both are paying utmost regards to me and so,  satisfied with you I decided to gift you the  schedule land which is my self-acquired property  and being in good health and mind, I am  3   transferring the schedule land valued at rupees  four thousand approximately to you by way of gift  and executing this deed of gift and having done so.  I declare that from to-day onwards you, and your  children by succession will enjoy and possess the  same and pay rent to Anchal and obtain rent-  receipts in your name and whenever necessity  arises you can transfer the same to which I will  have no objection. In case I object, it will not be  accepted by any court of law and this deed will  remain valid and effective.   Dated 21st February, 1973."  4. In the year 1975, Haji Sk. Abdullah filed an application before the  Tahsildar, Bhadrak for mutation of Razak's name in respect of the suit land  in the revenue records marked as Case No. 93 of 1975, stating:   "I, the present applicant Hazi Seikh Abdullah aged  85 years, s/o Sk. Abdul Gafur, at Sankarpur,  Bhadrak, Dt. Balasore, do hereby state that on  account of old age I am unable to walk. Being  satisfied with the services and help rendered by  my son Abdul Razak I have gifted the following  lands to him by a registered gift deed No. 1647  dated 21.2.73 and so, I have no claim over the said  properties.   Therefore, name of my son Abdul Razak  may be entered in the tenancy ledger in place of  my name and rent may be collected from him."  5. Indisputably, Razak also filed T.L. Case No. 7 of 1976 for grant of  temporary lease in respect of the said small patch of Govt. land which along  4  with the suit land formed a compact area. The deed of gift was also  produced in the said proceedings. Respondent No.1 objected to the prayers  made by the appellant. By an order dated 6.4.1977, Tahasildar, Bhadrak  while holding that the objection raised by the respondent No.1 was without  any merit, recommended renewal of the licence in favour of Razak.  6. Respondent No. 1 filed a suit being O.S. No. 112 of 1980 on or about  2.9.1980 in the court of Subordinate Judge, Bhadrakh inter alia praying for a  declaration that the said deed of gift dated 21.2.1973 was illegal, void and  inoperative.   Two issues arose therein for consideration of the learned trial judge:  (1) Whether the suit was barred by limitation; and (2) Whether Haji Sk.  Abdullah had handed over the possession of the properties in question in  favour of Razak   Indisputably, during pendency of the suit, Razak died and his legal  heirs, appellants herein, were substituted in his place.   The trial court dismissed the suit opining that the cause of action for  filing the suit having arisen on 6.4.1977, the suit was instituted beyond the  period of limitation as prescribed by Article 59 of the Schedule appended to  the Limitation Act, 1963. It was furthermore held that as Razak had been  5  collecting the house rent from the tenants for the suit lands in his own  capacity and not as an agent of his father and also having regard to the order  of mutation in his favour, the deed of gift dated 21.2.1973 was valid in law.  7. Respondent No. 1 preferred an appeal thereagainst. The High Court  allowed the said appeal inter alia holding that as Razak had been realising  rent from the tenants even prior to the date of death of his father and as  there was no material brought on record to show that Haji Sk. Abdullah had  divested himself of the title of the said property and Razak was in  possession thereof. The High Court furthermore opined that the respondent  No. 1 came to know of the fact of execution of the deed of gift in favour of  Razak only in the year 1980.  8. Mr. R.K. Dash, learned Senior Counsel appearing on behalf of the  appellants would submit that the High Court committed a manifest error in  passing the impugned judgment insofar as it failed to take into consideration  that the premises having been let out to the tenants, handing over  constructive possession thereof sub-served the requirements of law.  9. Mr. Bharat Sangal, learned counsel appearing on behalf of the  respondents, on the other hand, would submit:  6   i) Respondent No.1 has not been able to prove any overt   act on the part of the donor to establish that possession   of the premises was in fact delivered to the donee.   ii) As the rents were being collected from the tenants even   prior to the execution of the deed of gift, collection of   rent by itself would not establish delivery of possession.   iii) The order of mutation having been passed in respect of a   separate strip of land and being not the subject matter of   the deed of gift, the same was not relevant for   determination of the issue.   iv) The plaintiff having stated on oath that he had not filed   any objection in the said mutation proceedings and   having come to learn about the execution of the deed of   gift only in the year 1980, the suit must be held to have   been filed within the prescribed period of limitation.  10. A gift indisputably becomes complete when a person transfers with  immediate effect the ownership of his movable or immovable property to  another person, and that other person himself or someone else with his  consent takes possession of the property gifted. Under Mohammadan Law  it is a contract which takes effect through offer and acceptance.  7   The conditions to make a valid and complete gift under the  Mohammadan Law are as under:   (a) The donor should be sane and major and must be the   owner of the property which he is gifting.   (b) The thing gifted should be in existence at the time of   hiba.   (c) If the thing gifted is divisible, it should be separated and   made distinct.   (d) The thing gifted should be such property to benefit from   which is lawful under the Shariat.   (e) The thing gifted should not be accompanied by things   not gifted; i.e. should be free from things which have not   been gifted.   (f) The thing gifted should come in the possession of the   donee himself, or of his representative, guardian or   executor.   It is also well settled that if by reason of a valid gift the thing gifted  has gone out of the donee's ownership, the same cannot be revoked.  8   The donor may lawfully make a gift of a property in the possession  of a lessee or a mortgagee. For effecting a valid gift, the delivery of  constructive possession of the property to the donee would serve the  purpose. Even a gift of a property in possession of trespasser is permissible  in law provided the donor either obtains and gives possession of the  property to the donee or does all that he can to put it within the power of the  donee to obtain possession.  11. We may notice the definition of gift as contained in various text  books:   In Mulla's Principles of Mohammadan Law the `HIBA' is defined as  a transfer of property made immediately without any exchange by one  person to another and accepted by or on behalf of later.   A.A. Faizee in his `Outlines of Mohammedan Law' defined `Gift' in  the following terms:   "A man may lawfully make a gift of his property  to another during his lifetime, or he may give it  away to someone after his death by will. The first  is called a disposition inter vivos; the second a  testamentary disposition. Mohammadan Law  permits both kinds of transfers, but while a  disposition inter-vivos is unfettered as to quantum,  a testamentary disposition is limited to one-third  of the net estate. Mohammadan Law allows a man  to give away the whole of his property during his  9   life time, but only one-third of it can be  bequeathed by will."   Syed Ameer Ali in his `Commentary on Mohammedan Law' has  amplified the definition of Hiba in the following terms:   "In other words the "Hiba" is a voluntary gift  without consideration of a property or the  substance of a thing by one person to anther so as  to constitute the donee, the proprietor of the  subject matter of the gift. It requires for its  validity three conditions viz., (a) a manifestation  of the wish to give on the part of the Donor (b) the  acceptance of the Donee either impliedly or  constructively and (c) taking possession of the  subject matter of gift by the donee either actually  or constructively."  12. In Maqbool Alam Khan vs. Mst. Khodaija & ors. [(1966) 3 SCR  479], it was held:   "The Prophet has said: "A gift is not valid  without seisin". The Rule of law is:  "Gifts are rendered valid by tender,  acceptance and seisin.--Tender and  acceptance are necessary because a gift is a  contract, and tender and acceptance are  requisite in the formation of all contracts; and  seisin is necessary in order to establish a right  of property in the gift, because a right of  property, according to our doctors, is not  established in the thing given merely by means  of the contract, without seisin." [See  Hamilton's Hedaya (Grady's Edn.), p. 482]   Previously, the Rule of law was thought to be  so strict that it was said that land in the possession  of a usurper (or wrongdoer) or of a lessee or a  mortgagee cannot be given away, see Dorrul  10   Mokhtar, Book on Gift, p. 635 cited in Mullic  Abdool Guffoor v. Muleka. But the view now  prevails that there can be a valid gift of property in  the possession of a lessee or a mortgagee and a  gift may be sufficiently made by delivering  constructive possession of the property to the  donee. Some authorities still take the view that a  property in the possession of a usurper cannot be  given away, but this view appears to us to be too  rigid. The donor may lawfully make a gift of a  property in the possession of a trespasser. Such a  gift is valid, provided the donor either obtains and  gives possession of the property to the donee or  does all that he can to put it within the power of  the donee to obtain possession."  [See also Mullic Abdool Guffoor vs. Muleka [ILR 1884 (10) Calcutta 1112]  13. Faiz Badruddin Tyabji in his `Muslim Law - The Personal Law of  Muslims in India and Pakistan' states the law thus:   "395. (1) The declaration and acceptance of a  gift do not transfer the ownership of the subject of  gift, until the donor transfers to the donee such  seisin or possession as the subject of the gift  permits, viz. until the donor (a) puts it within the  power of the donee to take possession of the  subject of gift, if he so chooses, or (b) does  everything that, according to the nature of the  property forming the subject of the gift, is  necessary to be done for transferring ownership of  the property, and rendering the gift complete and  binding upon himself.   (2) Imam Malik holds that the right to the  subject of gift relates back to the time of the  declaration."  11   Transfer of possession under the Muslim Law is necessary for  transferring complete ownership. The learned author states:   "Transfer of possession in hiba is not merely a  matter of form, nor something merely supplying  evidence of the intention to make a gift. The  necessity for the transfer of possession is expressly  insisted upon as part of the substantive law, since  transfer of possession effectuates that which the  gift is intended to bring about, viz. the transfer of  the ownership of the property from the donor to  the donee. It may be said that transfer of  possession is no more a matter of form than the  necessity for consideration for the validity of a  contract is a matter of form. The law does not ask,  Did the donor really intend to give the subject of  gift, i.e. did he really intend to transfer the  ownership of the subject of gift from himself to  the donee? What the law asks is, Has the donor  actually given away? or Has the ownership been  actually transferred from the donor to the donee?  In regard to contracts it has been well expressed:  "It is often difficult to determine whether what is  said amounts only to a willingness to treat about a  matter, or is an absolute contract; and the adoption  of a form removes the difficulty. So that what may  have been considered a mere matter of form  becomes incorporated in substantive law. What  has to be determined is not whether the donor had  finally resolved to make a gift, but whether he had  actually transferred away the property--and even  where the transfer is for consideration, possession  has, in most systems of law, an important bearing  on the rights of the parties and others claiming  through them: since (under Muslim law) the  owner's right ceases on his death, and devolves  upon his heirs, it follows that where the owner  dies without transferring the property to another,  the person to whom a voluntary transfer was  12   intended to be made, has no claim against the  heirs."  14. Indisputably, the deed of gift is a registered one. It contains a clear  and unambiguous declaration of total divestment of property. A registered  document carries with it a presumption that it was validly executed. It is for  the party questioning the genuineness of the transaction to show that in law  the transaction was not valid. We have noticed hereinbefore that Razak had  been receiving rent from the tenants. In fact, the respondent No. 1 in his  suit claimed a decree for apportionment of rent. We would presume that  Razak had been collecting rent from the tenants during the life time of his  father. The agency to collect rent, however, came to end as soon as an order  of mutation was passed in his favour. Apart from the fact that the Razak  was allowed to continue to collect rent which having regard to the  declaration made in the deed of gift must be held to be on his own behalf  and not on behalf of the donor.  15. Constructive possession of the suit premises must be held to have  been handed over by the donor as he had himself prayed for mutation of  Razak's name in the revenue record. The High Court, in our opinion,  misconstrued the order of the Revenue Authority. It having failed to take  into consideration the import and purport of the donor's application before  13  the Tahasildar committed a manifest error in holding that the order of  mutation on that basis was not decisive. Respondent No.1 while examining  himself as a witness (P.W.2) furthermore categorically admitted:   "My father applied in that case for recording the  lease hold land in favour of D.1. Despite my  objection the D.1 was accepted as lessee in place  of my father in 1976. Ext. D-4 is the Vakalatnama  I executed in favour of Sri N.C. Mohapatra,  Advocate. Ext.D-5 is the petition of adjournment  filed in that lease case on my side. I could not  follow the proceeding in T.L. 7/76. It is not a fact  that I knew about the gift to D.1. from 1976."   In a case of this nature, thus, the transfer of constructive possession  would sub-serve the requirements of law.   In Munni Bai & anr. vs. Abdul Gani [AIR 1959 Madhya Pradesh  225], it was held:   "(6) However, delivery of possession can be  made in such manner as the subject of the gift is  susceptible of : see Sadik Hussain Khan v. Hashim  Ali Khan, 43 Ind App 212 at p. 221 : (AIR 1916  PC 27). In a case of gift of the equity of  redemption when the mortgage is usufructuary,  there can be no delivery of physical possession of  the property. In these circumstances, execution of  Ex. P-1 by Mst. Dhapli, by which, after making an  oral declaration of gift, she recognized the  respondent as owner of the house and delivered  the document to him in token thereof, is sufficient  delivery of possession."  14  16. A learned single judge of the Orissa High Court in Abu Khan vs.  Moriam Bibi [1974 (40) Cuttack Law Times 1306] held:   "....Delivery of possession may be either actual or  constructive. `Possession has been defined in  section 394 of the Muslim Law by Tyabji. The  definition runs 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."   Thus, possession can be shown not only by acts of  enjoyment of the land itself but also by  ascertaining as to in whom the actual control of  the thing is to be attributed or the advantages of  possession is to be credited, even though some  other person is in apparent occupation of the land.  In one case, it would be actual possession and in  the other case, it would be constructive  possession."   In that case, handing over of the deed of gift coupled with the  declaration made in the document was held to be sufficient for constituting  a valid gift.  (See also Valia Peedikakkandi Katheessa Umma & ors. vs. Pathakkalan  Narayanath Kunhamu [AIR 1964 SC 275]  15   We agree with the ratio laid down therein.  17. We, therefore, are of the opinion that the High Court committed a  serious error in opining that the possession had not been handed over to  Razak by the donor.  18. Limitation for filing a suit in a case of this nature is governed by  Article 59 of the Schedule appended to the Limitation Act, which reads as  under:   "Description of Suit Period of Time from which period  Limitation begins to run  59 To cancel or set aside Three years When the facts entitling the  an instrument or plaintiff to have the  decree or for the instrument or decree  rescission of a cancelled or set aside or the  contract. contract rescinded first  become known to him."   Respondent No.1 in his suit prayed for cancellation of and setting  aside of the deed of gift dated 21.2.1973. He became aware of the deed of  gift in the proceedings before the Tahasildar. He had filed objections on the  Razak's application for grant of lease in his name in respect of the small  patch of lands which was being used for ingress to and egress from the  property in question. In that proceeding itself, the donor himself had prayed  for mutation of Razak's name in respect of the property in question.  16  19. A suit for cancellation of transaction whether on the ground of being  void or voidable would be governed by Article 59 of the Limitation Act.  The suit, therefore, should have been filed within a period of three years  from the date of knowledge of the fact that the transaction which according  to the plaintiff was void or voidable had taken place. The suit having not  been filed within a period of three years, the suit has rightly been held to be  barred by limitation.   In Md. Noorul Hoda vs. Bibi Raifunnisa & ors. [1996 (7) SCC 767],  this Court held:   "....There is no dispute that Article 59 would  apply to set aside the instrument, decree or  contract between the inter se parties. The question  is whether in case of person claiming title through  the party to the decree or instrument or having  knowledge of the instrument or decree or contract  and seeking to avoid the decree by a specific  declaration, whether Article 59 gets attracted? As  stated earlier, Article 59 is a general provision. In  a suit to set aside or cancel an instrument, a  contract or a decree on the ground of fraud, Article  59 is attracted. The starting point of limitation is  the date of knowledge of the alleged fraud. When  the plaintiff seeks to establish his title to the  property which cannot be established without  avoiding the decree or an instrument that stands as  an insurmountable obstacle in his way which  otherwise binds him, though not a party, the  plaintiff necessarily has to seek a declaration and  have that decree, instrument or contract cancelled  or set aside or rescinded. Section 31 of the  Specific Relief Act, 1963 regulates suits for  17   cancellation of an instrument which lays down that  any person against whom a written instrument is  void or voidable and who has a reasonable  apprehension that such instrument, if left  outstanding, may cause him serious injury, can sue  to have it adjudged void or voidable and the court  may in its discretion so adjudge it and order it to  be delivered or cancelled. It would thus be clear  that the word `person' in Section 31 of the  Specific Relief Act is wide enough to encompass a  person seeking derivative title from his seller. It  would, therefore, be clear that if he seeks  avoidance of the instrument, decree or contract  and seeks a declaration to have the decrees set  aside or cancelled he is necessarily bound to lay  the suit within three years from the date when the  facts entitling the plaintiff to have the decree set  aside, first became known to him."   {See also Sneh Gupta vs. Devi Sarup & Ors. [2009 (2) SCALE 765]}  20. For the reasons aforementioned, the impugned judgment is set aside.  The appeal is allowed with costs. Counsel's fee assessed at Rs.25,000/-.   .....................................J.  [S.B. Sinha]   .....................................J.  [Asok Kumar Ganguly]   .....................................J.  [R.M. Lodha]  18  New Delhi; MARCH 06, 2009