Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 469

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA, THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY & THE HONOURABLE MR. JUSTICE R.M. LODHA
Abdul Rahim & Others
Versus
Sk. Abdul Zabar & Others
Civil Appeal No.1573 of 2009 [Arising out of Special Leave Petition (Civil) No. 24819 of 2008]
Decided on : 06-03-2009

Advocates Appeared:
For the Appellants :RK. Dash, Sr. Advocate, Suchit Mohanty, Anupam Lal Das, Advocates. For the Respondents:Bharat Sangal, Prasenjit Das, Mrinalini Dinam, Vernika Tomar, Advocates

IMPORTANT POINTS
Handing over constructive possession subserves the requirement of law to hold a gift valid.
To set aside a void or voidable deed the suit has to be filed within three years of knowledge of the deed.

Headnote:(a) Mohammedan Law – Gift, Hiba – Ingredients – Tender, acceptance and seisin – Registered gift – Presumption of valid execution – Instantly, presumption of Razak collecting rent from tenants during life time of his father – On his own behalf – Not on behalf of donor – Donor himself applying for mutation in name of donee – Constructive possession deemed to be handed over to donee – Gift held valid. (Para 14, 15, 17)
       (1966) 3 SCR 479 – Relied upon
       AIR 1959 Madhya Pradesh 225; 1974 (40) Cuttack Law Times 1306 – Cited with approval
       ILR 1884 (10) Calcutta 1112; AIR 1964 SC 275 – Referred
       (b) Limitation Act, 1963 – Schedule, Article 59 – Respondent no. 1 filing suit for cancellation of gift deed – Suit filed after lapse of more than three years of knowledge of gift deed – Rightly held to be barred by limitation. (Para 19)
       (1996) 7 SCC 767 – Relied upon
       2009 (2) SCALE 765 – Referred
       Facts of the case:
       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), 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.
       In the year 1975, Haji Sk. Abdullah filed an application before the Tahsildar, Bhadrak for mutation of Razaks name in respect of the suit land in the revenue records
       Razak also filed a case for grant of temporary lease in respect of the said small patch of Govt. land which along with the suit land formed a compact area. Tahasildar, Bhadrak recommended renewal of the licence in favour of Razak.
       Respondent No. 1 filed a suit 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.
       The trial court dismissed the suit.
       Respondent No. 1 preferred an appeal there against. The High Court allowed the said appeal.
       Thus interpretation and/or application of the Islamic Law on Gift vis-à-vis handing over of possession of the property gifted is the question involved in this appeal.
       Finding of the Court:
       High Court committed a serious error in opining that the possession had not been handed over to Razak by the donor.
       Result:
       Appeal allowed with cost.

Judgement Key Points

The core subject of this judgment is the interpretation and application of Islamic law regarding the validity of a gift, specifically focusing on whether the transfer of possession, either actual or constructive, fulfills the legal requirements for a valid gift under Muslim law. The primary question addressed is whether the handing over of possession—whether actual, constructive, or deemed—subserves the legal necessity for establishing the validity of a gift, and whether the possession was effectively transferred in this case to render the gift valid.

Judgment :-

S.B. Sinha, J.

1. Leave granted

2. Interpretation and/or application of the Islamic Law on Gift vis-à-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 - plaintiffs has been allowed decreeing the suit.

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 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 Razaks 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.

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 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.

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."

Two issues

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2009 Supreme(SC) 469

IMPORTANT POINTSHanding over constructive possession subserves the requirement of law to hold a gift valid. To set aside a void or voidable deed the suit has to be filed within three years of knowledge of the deed.

Cases Referred (5)

IMPORTANT POINTS
Handing over constructive possession subserves the requirement of law to hold a gift valid.
To set aside a void or voidable deed the suit has to be filed within three years of knowledge of the deed.