REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1573 OF 2009

[Arising out of Special Leave Petition (Civil) No. 24819 of 2008]

ABDUL RAHIM & ORS.

… APPELLANTS

VERSUS

SK. ABDUL ZABAR & ORS.

… RESPONDENTS

J U D G M E N T

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 -

plaintiff’s 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

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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 21^st February, 1973.”

4.

In the year 1975, Haji Sk. Abdullah filed an application before the

Tahsildar, Bhadrak for mutation of Razak’s 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.

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.”

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

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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 objectio