Constructive possession suffices for the validity of a Hiba under Muslim law, and actual physical possession is not required.

JUDGMENT :

ROHIT W. JOSHI, J.

1. This appeal is preferred by the original defendant Nos.1 to 6 who has suffered a decree of possession in the suit filed by the respondent-sole. The plaintiff claims his ownership over the suit property on the basis of Hiba in his favour by his father on 11/06/2005. Thereafter, oral gift dated 11/06/2005 is reduced into writing on 12/06/2005. The father is arrayed as defendant in the suit. The father has supported the case of the plaintiff in his written statement. It is not the contention of defendant Nos.1 to 6, that the written statement was filed by his father under the influence of plaintiff. The learned Trial Court has accepted the case of oral gift i.e. Hiba by father defendant No.7 in favour of the plaintiff and has accordingly passed a decree for possession in favour of the plaintiff. The defendant Nos.1 to 6 challenged the said decree by filing first appeal bearing Regular Civil Appeal No.262/2019 which is also dismissed vide Judgment and Decree dated 28/03/2022. The present second appeal is preferred against these concurrent Judgments and Decrees.

2. Shri M.R. Joharapurkar, learned counsel for the appellants has contended that the evidence on record is insufficient to establish the case for transfer of property by the father defendant No.7 in favour of the plaintiff. The said contention is liable to be rejected. In view of the fact that the father is party to the suit and has supported the case of the plaintiff by filing his written statement. As stated above, it is not even the case of appellants i.e. defendant Nos.1 to 6 that the father has filed written statement not on his own accord or free will, but under the influence of the plaintiff.

3. In that view of the matter, the fact that the gift by father -defendant No.7 in favour of son, the plaintiff cannot be doubted.

4. I have also perused the findings recorded by the learned Courts with the able assistance of learned advocates appearing in the matter and find that the Courts have correctly appreciated the evidence on record including the evidence of sister of the parties. He supports the case of the plaintiff with respect to the oral deed / Hiba. The contention with respect to the father transferring the property to the plaintiff by Hiba is, therefore, liable to be rejected.

5. The other contention raised by Mr.M.R.Joharapurkar, learned counsel for the appellants is that in order to constitute transfer of property by way of Hiba, the possession of property should be essentially transferred. He contends that the evidence on record would suggest that the father did not transfer possession of the suit property to his son i.e. the plaintiff and therefore, the transaction cannot be said to be Hiba. He has placed reliance on the Judgment of the Hon’ble Supreme Court in the matter of Hafeeza Bibi and others Vrs. Shaikh Farid (dead) by LRs and others, reported in AIR 2011 SC 1695 to advance his contention. The controversy in the said Judgment was as to whether in cases where Hiba is made orally and subsequently, the terms are reduced into writing, registration of the document will be compulsory or not. It is held that when the Hiba is made orally and the same is thereafter reduced in writing, registration of the deed is not compulsory. In this context, the Hon’ble Supreme Court has referred three essential ingredients of valid gift under Muslim law namely; a]Declaration of gift by donor, b] Acceptance of gift by donee and c] Delivery of possession. It is however, not held that delivery of possession should be actual physical possession.

6. As regards, the transfer of possession by doner in favour of donee under Hiba, it is not necessary that delivery of possession should be actual physical possession. It can also be constructive possession. In the facts of the present case, the property which is given by way of Hiba is house property. At the relevant time, the father i.e. the doner was residing in the residential house along with his son - the