IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No 254 of 1979 For Approval and Signature: Hon'ble MR.JUSTICE R.BALIA. ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- HALIMBIBI W/O ABDUL RAHIM Versus ABDUL RAHEMAN ABDULRAHIM -------------------------------------------------------------- Appearance: MR RS SANJANWALA for Petitioners MR PV NANAVATI for Respondent No. 1 SERVED for Respondent No. 2 DELETED for Respondent No. 6 -------------------------------------------------------------- CORAM : MR.JUSTICE R.BALIA. Date of decision: 14/08/97 ORAL JUDGEMENT 1. This second appeal is filed against the judgment and decree passed by Extra Assistant Judge, Surat in Regular Civil Appeal No. 194 of 1977 on 22.1.1979 affirming the judgment and decree dated 31.3.1977 passed in Regular Civil Suit No. 368 of 1971 by Joint Civil Judge (J.D.) Surat by which the preliminary decree was passed in suit filed by one Abdul Rehman for administration of the property left by Abdul Rahim Abdul Razak. The following three substantial questions were framed by this court while admitting appeal which were required to be considered in this appeal: (1) "Whether the plaintiff's suit was barred under Section 7 read with Section 50 of the Administration of Evacuees Property Act." (2) "Whether the suit was barred by res-judicata on account of decision between the parties in earlier suit No. 326 of 1969." (3) Whether the gift was made under the Mohammedan Law and was void or whether it was executed under the Transfer of Property Act and was valid." 2. Learned counsel for the appellants has pressed only Question No.3 referred to above and therefore other two questions deemed to have been abandoned. 3. Facts essential for the decision of the aforesaid Question No.3 may be noticed. Parties are Sunni Muslims. Abdul Rahim Abdul Razak had married thrice in his life time. Plaintiff and respondents Nos. 1 to 4 are the children of Abdul Rahim through his first wife Aminabibi, who died in year 1943. Plaintiff and defendants Nos. 1 and 2 are the sons, defendants Nos. 3 and 4 are the daughters. The second marriage of Abdul Rahim with Jebunnisa resulted in divorce. Through this wedlock, defendants Nos. 5, 6 and 7 were born. Thereafter said Abdul Rahim married present appellant No.1 and defendant No.8. Out of this wedlock three sons and four daughters were born who are defendants Nos. 9 to 15 and appellants Nos. 2 to 8. Said Abdul Rahim died on 19.12.1968 at Surat leaving behind properties which included house property No. 2447 at Ward No. 11 and 2 rented rooms 232 to 238 situated at Limda Chowk, Surat. He was residing in the house along with his third wife and children through her, all minors. On 18.6.1968 Abdul Rahim had executed registere gift deed making gift of his property bearing Registration Entry No. 2447 in favour of the present appellants. It is this gift which is bone of contention between the parties in this appeal. 4. After Abdul Rahim died, in the first instance an administration suit No.326/69 was filed by defendant No.1 in present suit, (a full brother of present plaintiff), to which all heirs of Abdul Rahim including present plaintiff were impleaded as parties. The present appellant resisted the suit on the ground of gift in their favour. Present plaintiff migrated to Pakistan in 1947 and settled there, though was served with notice and appeared in Court on 7/7/70 and went back to Pakistan. Thereafter, before he could put in appearance again on his next visit, suit was dismissed as withdrawn on compromise. Thereafter, prsent plaintiff filed present suit for administration of estate of deceased Abdul Rahim. The plaintiff challenged the validity of gift made in favour of appellants Nos. 1 to 4. 5. The plaintiff has contended that there being no delivery of possession of the corpus of the subject matter of gift to donees, the gift is void and cannot affect his right to his share in the property as heir of Abdul Rahim. On the other hand it is the contention of appellants donees that there being unequivocal declaration in the deed that donor has delivered the possession of the property in question to donees and donees having accepted that gift in the circumstances that donees are spouse and children of the donor and were residing together, actual physical delivery of the property was not required to be made and the declaration in the gift deed about the delivery of the possession coupled with handing over of the gift deed to appellant no.1 satisfies the condition of the delivery of possession as could be made in law, making the gift complete. Any conditions in the gift deed, which are repugnant to absolute ownership of the donees are invalid and such condition cannot affect the validity act of gift. 6. On construction of the deed of gift both courts found that there was no delivery of possession of the property in question and therefore no gift in accordance with Muslim law came into existence. Therefore, the property comprised in House NO. 2447 of ward No.11 at Surat is also available for division amongst heirs of deceased Abdul Rahim. 7. Section 129 of the Transfer of Property Act dealing with the gifts provides that nothing in the chapter relating to gifts shall be deemed to affect any rule of Mohammedan law. Thus the validity of gift by a muslim has to be tested as per the personal law applicable to the muslims concerning gifts. 8. According to Mulla in his Principles of Mohammadan Law , a `Hiba' or gift is transfer of property made immediately, and without any exchange by one person to another and accepted by or on behalf of the latter. Transfer of ownership in the property in presenti in absolute is necessary ingredient of a valid gift. Three pillars of a valid gift under Mohammedan law are declaration, acceptance and delivery of possession. 9. Prophet has said `Gift is not valid without seisin`. 10. The rule of seisin has been explained in Hamilton's Hedaya `Rule of law is that 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 requisit 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 things given merely by means of contract without seisin.`` 11. Three conditions which are necessary for a valid gift under Mohammedan law has been stated by Syed Ameer Ali; (a) manifestation of the wish to give on the part of donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of the possession of the subject matter of the gift by the donee either actually or constructively. 12. The aforesaid opinion of Syed Amir Ali was quoted with approval by Privy Council in Mohd. Abdul Ghani v. Fakhr Jahan Begam reported in AIr 1922 PC 281 explaining that "object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and donee intended at the time that the title to the property should pass from the donor to donee and the hand over by the donee and acceptance by the donee of the property should be good evidence that the property had been given by the donor and has been accepted by the donee as a gift." 13. The requirement of delivery of possession for a valid gift was considered to be so strict originally that property in possession of third parties whether as a usufruct or as a lessee or a mortgagee could not be made subject matter of gift being in capable of physical delivery. However, as noticed above, the opinion of Ameer Ali that taking of possession by donee may be constructively was approved by the courts and the view which has has come to prevail is that so far as the requirement of delivery of possession as the nature of property admits. The stringent view taken in Mullick Abdool Guffoor reported in (1884) ILR 10 Cal 1112 was not adhered to by Privy Council in Mahomed Buksh Khan v. Hosseini Bibi reported in (1888) 15 Ind App 81. After noticing the facts of the case, the Privy Council said: "In this case it appears to Their Lordships that the lady did all she could to perfect the contemplated gift and had nothing more was required from her. The gift was attended with utmost publicity, the hibbanama itself authorises the donees to take possession and at it appears that in fact they did take possession. Thier Lordships hold under these circumstances, that there can be no objection to the gift on the ground that Shahzadi had not possession, and that she herself did not give possession at that time." 14. The aforesaid declaration of law as to requirement as to the delivery of possession to be essential requirement of valid gift and that delivery of possession can be actual physical as well as constructive found its approval by the Supreme Court in Maqbool Alam Khan v. Mst. Khodija and others reported in AIR 1966 SC 1194. The Court said : "The three pillars of a valid gift under the Mohammedan law are declaration, acceptance and delivery of possession. The Court after finding that delivery of possession being an essential ingredient of a valid gift opined as to the nature of delivery contemplated for making a valid gift, in possession of third parties said : "That there can be valid gift of property in the possession of a lessee or 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 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." 15. Apart from accepting delivery of constructive possession as the property is capable of another exception to Rule as to physical delivery which has been recognised by Mohammedan law are cases where donor and donee are residing in the same property at the time of gift. In such a case, the gift may be completed by same overt act by the donor indicating a clear intention on his part to transfer possession and divest himself of all control over the subject of the gift. Mulla in his book Mohammedan Law has stated the law as to delivery of possession of immovable property in para 152.15) as under: "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." In such case the gift may be complete 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. In such cases, it is not considered necessary for the purpose of effecting delivery of possession that the donor must physically depart from the premises with all his goods and chatels and a formal entry be effected by the donee in the premises. In such circumstances, a declaration of the person previously possessed of the property to that effect is sufficient to put the donee into possession without any physical act or departure or formal entry. 16. This principle was enunciated by West, J in a Bombay case reported in (1884) 9 Bom. 146 that - "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." 17. A division bench of Calcutta High Court in Abdul Sattar Ostagar v. Abu Bakkar Ostagar reported in 1977 Cal 132 held that where a father makes a gift of a dwelling house to his sons and both the father and donees are residing in the house there is no need for delivery of possession. The rule is applied to gifts of immovable property from a wife to husband or by a husband to wife where the property is used by them for their joint residence or is let out to tenants. 18. The very important aspect of delivery of possession of the subject matter of gift has been dealt with by Syed Amear Ali in his Work Mahommadan Law as under: ``An acknowledgment of hiba implies an acknowledgment that all the necessary formalities were complied with. If a man were to say, ``I have made a gift of a certain property to Zaid,``such acknowledgment will be effectual also as to possession; in other words, he had delivered possession according to the law. In this view, where a gift is made in writing and the donor acknowledges at the time the deed is registered under the Indian Registration Act, that he had complied with all the requirements of the law, it would limply that possession had been duly parted with. 19. In this connection, however, two matters must be born in mind; first, the relation of the donee to the donor, and secondly, the ability of the donor to give possession within the meaning of the Mohammedan Law. For example, if the donee is an infant to all intents and purposes under the guardianship of the donor, delivery of seisin will not be required. Again if the subject matter of the gift is landed property and the donor is too ill to send for the tenants to make them attorn to the donee, his mere handing over of the title deeds together with the deed of gift ought to amount to a sufficient authorisation to take possession of the property. 20. It can now be taken to be well settled that in the case of a gift by a Mohammedan, delivery of possession of the property subject of gift is an essential condition, the delivery may be actual physical delivery of the property if it is capable of being so delivered, in case it is in possession of tenants or in possession of other parties, the constructive delivery of possession resulting in evidence of transfer of ownership right in the donee and doing of such acts by the donor that he could to put within the power of the donee to exercise power of ownership and obtain possession. In the case of property in which donor and donee are residing together and donor continues to reside with the donee actual physical by the donor moving out in the first place, putting the donee in exclusive possession and thereafter reentering the property is not required. In such circumstance, mere declaration on the part of donor to the fact of delivery of possession to donee may be sufficient compliance with the requirement of delivery of possession making it valid gift. However, it will presently be seen in what circumstances, a declaration to that effect by the donor can be considered to be equivalent to delivery of possession of the property subject matter of gift by the donor to donee depend in each case, upon the facts and circumstances of that case. 21. In the case where the property subject to gift is in possession of a trespasser, the Supreme Court said in Maqbool Alam Khan (supra): "A gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession, or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If apart from making a declaration, the donor does nothing else, the gift is invalid." 22. In Humera v. Nazimunnisa (1905) 28 All 17, where a Mohammedan lady who was residing with her nephew and who was brought up by her executed a deed of gift of the nephew of the house in which they both were residing. Apart from declaration there was no physical departure and entry by the donor and donee but in view of the circumstances, when the property was later on transferred in the name of nephew and the rents were recovered in his name the gift was held to be complete without there being a formal delivery of position. 23. In yet another Allahabad case, Baldev Prasad Balgovind vs. Subratan 164 I.C. 720 where a Mohammedan gifted half of the house in favour of his daughter in law with whom he was residing at the time of making of a gift, and the declaration was made in the deed authorising the daughter in law to take possession of that house. This declaration itself was held sufficient delivery notwithstanding that there was no mutation of the names in the municipal register to that effect. 24. In Abdul Razak vs. Zainab Bi reported in AIR 1933 Madras 86, Mohammedan lady living with her son executed a deed of gift in favour of her son of the house. In the deed it was recited that possession was given to the donee. The son and the mother continued to live jointly as before in the house. Declaration coupled with the circumstance that the son had paid municipal tax after the execution of deed was held sufficient to complete the gift, even in the absence of physical delivery of the property. 25. The principle that no physical departure or formal entry is necessary in the case where there is a gift of immoveable property in which donor and donee reside together at the time of gift, has been applied with greater liberality in the case where there is a gift of immoveable property by wife to the husband or by husband to the wife which is used for their joint residence. The proposition was stated by Sir M. Sausse, C.J. in (1864)(1) Bombay H.C. 157 in Amina Bibi vs. Khatiji Bibi as cited by Mulla in his Principles of Mahomedan Law in para-153 - "In my opinion, the relation of husband and wife and his legal right to reside with her and to manage her property rebut the inference which in the case of parties standing in a different relation would arise from a continued residence in the house after the making of the hiba (gift), and in the husband generally receiving the rents of the chawl annexed to that house." 26. It was a case having facts like the present case wherein the husband had made a gift to the wife of a property, which consisted of a house in which husband and wife lived together and of a chawl adjoining to the house which was let out to the tenant. In the present case also, the gift consists of a house in which donor and donee reside together and part of which is in possession of the tenant. 27. In Ma Mi and another vs. Kallander Ammal AIR 1927 Privy Council 22, the property in question was gifted by husband to the wife and the husband was found to be managing the properties. On the question - whether a valid gift came into existence by noticing the fact about mutation, it was held by Their Lordships of Privy Council that - "It must therefore be taken that mutation was effected by Moideen himself, and in the case of a gift of immovable property by a Mohammedan husband to his wife, once mutation of names has been proved the natural presumption arising from the relation of husband and wife existing between them is that the husband's subsequent acts with reference to the property were done on his wife's behalf and not on his own." 28. Going further in the case of Nawab Mirza Mohammad Sadiq Ali Khan vs Nawab Fakir Jahan Begam AIR 1932 PRIVY COUNCIL 13, wherein the facts were that the husband has gifted a portion of kherad property for residence when she wishes to live there and the deed declared that, `I deliver possession of the gifted property to the aforesaid second wife.` Wife did not exercise any individual acts of proprietorship over any portion of the property as to be the matter of gift during the life time of her husband. In her and her husbands absence, the property shall be occupied by the servants of the estate and repairs as were necessary were done at husbands expenses and no mutation names were made in the Government records. However, the deed had been handed over to the donee and had remained in possession of the donnee. 29. From these facts, Their Lordships to the question of delivery of possession, approving the statement of law made by West. J. referred to above, opined that, ``But in the first place, the deed contained the statement `I delivered possession of the gifted property to him to my said wife,` and this as a declaration of fact must be regarded as binding on the heirs of the donor`` In the second place, the deed of gift was handed over to the donee as soon as it registered. In the case of a gift by a husband to his wife, Their Lordships do not think that Mohammedan Law requires actual vacation by the husband and actual taking of separate possession by the wife. In their opinion, the declaration made by the husband, followed by the handing over of the deed are amply sufficient to establish a transfer of possession. ***** ***** ***** ....they think that as between a husband and his wife who are living together, it is undoubtedly a reasonable interpretation of the requirement of the law and they adopt it is applicable to the case before them.`` 30. The principle that execution of a deed of gift in favour of wife amounts to menifestation of intention of husband divesting himself of his ownership of the property in favour of the donee and the delivery of deed to his wife or someone on her behalf makes the gift complete was approved by Their Lordships of the Supreme Court in Nagraj vs. State of Mysore AIR 1964 SC 275. 31. It was a case where the parties belonged to Hanafi Sect. The husband made a gift of property including immoveable property, by registered deed, to his minor wife who had attained puberty and discretion, and the gift was accepted on her behalf by her mother in whose house the husband and wife were residing, when the minor`s father and father`s father are not alive. The deed was handed over to the minor`s mother and possession of the property was not given to a guardian specially appointed for the purpose by the Civil Court. A question was raised - whether the gift by husband to his minor wife and accepted on her behalf by her mother valid ? After referring to a large number of decisions and the text, the Court opined thus; ``The strict rule of Mohammedan Law about giving possession to one of the