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 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."