IMPORTANT POINT
Ingredients of a valid gift under Mohammedan Law.

JUDGMENT

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