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

2

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 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

3

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.   

Two issues arose therein for consideration of the learned trial judge:

(1) Whether the suit  was barred by limitation;  and (2) Whether Haji  Sk.

Abdullah had handed over the possession of the properties in question in

favour of Razak

Indisputably, during pendency of the suit, Razak died and his legal

heirs, appellants herein, were substituted in his place.

The trial court dismissed the suit opining that the cause of action for

filing the suit having arisen on 6.4.1977, the suit was instituted beyond the

period of limitation as prescribed by Article 59 of the Schedule appended to

the Limitation Act, 1963.  It was furthermore held that as Razak had been

4

collecting  the  house  rent  from the  tenants  for  the  suit  lands  in  his  own

capacity and not as an agent of his father and also having regard to the order

of mutation in his favour, the deed of gift dated 21.2.1973 was valid in law.  

7. Respondent No. 1 preferred an appeal thereagainst.  The High Court

allowed the said appeal inter alia holding that as Razak had been realising

rent from the tenants even prior to the date of death of his father  and as

there was no material brought on record to show that Haji Sk. Abdullah had

divested  himself  of  the  title  of  the  said  property  and  Razak  was  in

possession thereof.  The High Court furthermore opined that the respondent

No. 1 came to know of the fact of execution of the deed of gift in favour of

Razak only in the year 1980.

8. Mr. R.K. Dash,  learned Senior Counsel  appearing on behalf of the

appellants would submit that the High Court committed a manifest error in

passing the impugned judgment insofar as it failed to take into consideration

that  the  premises  having  been  let  out  to  the  tenants,  handing  over

constructive possession thereof sub-served the requirements of law.   

9. Mr.  Bharat  Sangal,  learned  counsel  appearing  on  behalf  of  the

respondents, on the other hand, would submit:

5

i) Respondent No.1 has not been able to prove any overt

act on the part of the donor to establish that possession

of the premises was in fact delivered to the donee.  

ii) As the rents were being collected from the tenants even

prior to the execution of the deed of gift, collection of

rent by itself would not establish delivery of possession.

iii) The order of mutation having been passed in respect of a

separate strip of land and being not the subject matter of

the  deed  of  gift,  the  same  was  not  relevant  for

determination of the issue.  

iv) The plaintiff having stated on oath that he had not filed

any  objection  in  the  said  mutation  proceedings  and

having come to learn about the execution of the deed of

gift only in the year 1980, the suit must be held to have

been filed within the prescribed period of limitation.  

10. A gift indisputably becomes complete when a person transfers with

immediate effect the ownership of his movable or immovable property to

another  person,  and  that  other  person  himself  or  someone  else  with  his

consent takes possession of the property gifted.  Under Mohammadan Law

it is a contract which takes effect through offer and acceptance.   

6

The  conditions  to  make  a  valid  and  complete  gift  under  the

Mohammadan Law are as under:

(a) The donor should be sane and  major and must be the

owner of the property which he is gifting.

(b) The thing  gifted should  be in  existence  at  the  time of

hiba.  

(c) If the thing gifted is divisible, it should be separated and

made distinct.

(d) The thing gifted should be such property to benefit from

which is lawful under the Shariat.

(e) The thing gifted  should  not  be accompanied by things

not gifted; i.e. should be free from things which have not

been gifted.

(f) The thing gifted  should  come in  the possession of  the

donee  himself,  or  of  his  representative,  guardian  or

executor.  

It is also well settled that if by reason of a valid gift the thing gifted

has gone out of the donee’s ownership, the same cannot be revoked.  

7

The donor may lawfully make a gift of a  property in the possession

of  a  lessee  or  a  mortgagee.   For  effecting  a  valid  gift,  the  delivery  of

constructive  possession  of  the  property  to  the  donee  would  serve  the

purpose. Even a gift of a property in possession of trespasser is permissible

in  law  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.  

11. We may notice  the  definition  of  gift  as  contained  in  various  text

books:

In Mulla’s Principles of Mohammadan Law the ‘HIBA’ is defined as

a  transfer  of  property  made  immediately  without  any  exchange  by  one

person to another and accepted by or on behalf of later.  

A.A. Faizee in his ‘Outlines of Mohammedan Law’ defined ‘Gift’ in

the following terms:

“A man may lawfully make a gift of his property to  another during his  lifetime, or he may give it away to someone after his death by will.  The first is  called  a  disposition  inter  vivos;  the  second  a testamentary  disposition.   Mohammadan  Law permits  both  kinds  of  transfers,  but  while  a disposition inter-vivos is unfettered as to quantum, a testamentary disposition is  limited to one-third of the net estate.  Mohammadan Law allows a man to give away the whole of his property during his

8

life  time,  but  only  one-third  of  it  can  be bequeathed by will.”

Syed  Ameer  Ali  in  his  ‘Commentary  on  Mohammedan  Law’  has

amplified the definition of Hiba in the following terms:

“In  other  words  the  “Hiba”  is  a  voluntary  gift without  consideration  of  a  property  or  the substance of a thing by one person to anther so as to  constitute  the  donee,  the  proprietor  of  the subject  matter  of  the  gift.   It  requires  for  its validity three conditions viz.,  (a) a manifestation of the wish to give on the part of the Donor (b) the acceptance  of  the  Donee  either  impliedly  or constructively  and  (c)  taking  possession  of  the subject matter of gift by the donee either actually or constructively.”

12. In  Maqbool  Alam Khan  vs.  Mst.  Khodaija  & ors.  [(1966)  3  SCR

479], it was held:

“The  Prophet  has  said:  “A  gift  is  not  valid without seisin”. The Rule of law is:

“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 requisite 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 thing given merely by means of  the  contract,  without  seisin.”  [See Hamilton’s Hedaya (Grady’s Edn.), p. 482]

Previously, the Rule of law was thought to be so strict that it was said that land in the possession of  a  usurper  (or  wrongdoer)  or  of  a  lessee  or  a mortgagee  cannot  be  given  away,  see  Dorrul

9

Mokhtar,  Book  on  Gift,  p.  635  cited  in  Mullic Abdool  Guffoor v.  Muleka.  But  the  view  now prevails that there can be a valid gift of property in the possession of a lessee  or  a 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 us 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.”

[See also Mullic Abdool Guffoor vs. Muleka [ILR 1884 (10) Calcutta 1112]

13. Faiz Badruddin Tyabji in his ‘Muslim Law – The Personal Law of

Muslims in India and Pakistan’ states the law thus:   

“395. (1) The  declaration  and acceptance  of  a gift do not transfer the ownership of the subject of gift,  until  the  donor  transfers  to  the  donee  such seisin  or  possession  as  the  subject  of  the  gift permits, viz. until the donor (a) puts it within the power  of  the  donee  to  take  possession  of  the subject  of  gift,  if  he  so  chooses,  or  (b)  does everything  that,  according  to  the  nature  of  the property  forming  the  subject  of  the  gift,  is necessary to be done for transferring ownership of the property, and rendering the gift complete and binding upon himself.

(2) Imam  Malik  holds  that  the  right  to  the subject  of  gift  relates  back  to  the  time  of  the declaration.”

10

Transfer  of  possession  under  the  Muslim  Law  is  necessary  for

transferring complete ownership.  The learned author states:

“Transfer  of  possession  in  hiba  is  not  merely  a matter  of  form, nor  something merely supplying evidence  of  the  intention  to  make  a  gift.   The necessity for the transfer of possession is expressly insisted upon as part of the substantive law, since transfer  of  possession  effectuates  that  which  the gift is intended to bring about, viz. the transfer of the ownership of  the property from the donor to the  donee.   It  may  be  said  that  transfer  of possession is no more a matter of form than the necessity  for  consideration  for  the  validity  of  a contract is a matter of form.  The law does not ask, Did the donor really intend to give the subject of gift,  i.e.  did  he  really  intend  to  transfer  the ownership of  the  subject  of  gift  from himself  to the donee?  What the law asks is, Has the donor actually given away?   or Has the ownership been actually transferred from the donor to the donee? In regard to contracts it has been well expressed: “It is often difficult to determine whether what is said amounts only to a willingness to treat about a matter, or is an absolute contract; and the adoption of a form removes the difficulty.  So that what may have  been  considered  a  mere  matter  of  form becomes  incorporated  in  substantive  law.   What has to be determined is not whether the donor had finally resolved to make a gift, but whether he had actually transferred away the property—and even where the transfer is for consideration, possession has, in most systems of law, an important bearing on  the  rights  of  the  parties  and  others  claiming through  them:  since  (under  Muslim  law)  the owner’s  right  ceases  on  his  death,  and  devolves upon  his  heirs,  it  follows  that  where  the  owner dies without transferring the property to another, the  person  to  whom  a  voluntary  transfer  was

11

intended  to  be  made,  has  no  claim  against  the heirs.”

14. Indisputably, the deed of gift is a registered one. It contains a clear

and unambiguous declaration of total divestment of property.  A registered

document carries with it a presumption that it was validly executed.  It is for

the party questioning the genuineness of the transaction to show that in law

the transaction was not valid.  We have noticed hereinbefore that Razak had

been receiving rent from the tenants.  In fact, the respondent No. 1 in his

suit claimed a decree for apportionment of rent.  We would presume that

Razak had been collecting rent from the tenants during the life time of his

father. The agency to collect rent, however, came to end as soon as an order

of mutation was passed in his favour.  Apart from the fact that the Razak

was  allowed  to  continue  to  collect  rent  which  having  regard  to  the

declaration made in the deed of gift must be held to be on his own behalf

and  not on behalf of the donor.   

15. Constructive possession  of  the suit  premises  must  be held  to  have

been handed over by the donor as he had himself prayed for mutation of

Razak’s  name in  the  revenue  record.    The  High  Court,  in  our  opinion,

misconstrued the order of the Revenue Authority.  It having failed to take

into consideration the import and purport of the donor’s application before

12

the  Tahasildar  committed  a  manifest  error  in  holding  that  the  order  of

mutation on that basis was not decisive.  Respondent No.1 while examining

himself as a witness (P.W.2) furthermore categorically admitted:

“My father applied in that case for recording the lease  hold  land  in  favour  of  D.1.   Despite  my objection the D.1 was accepted as lessee in place of my father in 1976.  Ext. D-4 is the Vakalatnama I  executed  in  favour  of  Sri  N.C.  Mohapatra, Advocate.  Ext.D-5 is the petition of adjournment filed in  that  lease case on my side.   I  could not follow the proceeding in T.L. 7/76.  It is not a fact that I knew about the gift to D.1. from 1976.”

In a case of this nature, thus, the transfer of constructive possession

would sub-serve the requirements of law.    

In  Munni  Bai  & anr.  vs.  Abdul  Gani  [AIR 1959  Madhya Pradesh

225], it was held:

“(6) However,  delivery  of  possession  can  be made in such manner as the subject of the gift is susceptible of : see Sadik Hussain Khan v. Hashim Ali Khan, 43 Ind App 212 at p. 221 : (AIR 1916 PC  27).   In  a  case  of  gift  of  the  equity  of redemption  when  the  mortgage  is  usufructuary, there can be no delivery of physical possession of the property.  In these circumstances, execution of Ex. P-1 by Mst. Dhapli, by which, after making an oral  declaration  of  gift,  she  recognized  the respondent  as  owner  of  the  house  and  delivered the document to him in token thereof, is sufficient delivery of possession.”

13

16. A learned single  judge of  the Orissa High Court  in  Abu Khan  vs.

Moriam Bibi [1974 (40) Cuttack Law Times 1306] held:

“….Delivery of possession may be either actual or constructive.   ‘Possession  has  been  defined  in section  394  of  the  Muslim Law by  Tyabji.  The definition runs thus:-

“A person is  said to  be in possession of a thing, or of immovable property, when he is so  placed  with  reference  to  it  that  he  can exercise  exclusive  control  over  it,  for  the purpose of deriving from it such benefit as it is  capable  of  rendering,  or  as  is  usually derived from it.”

Thus, possession can be shown not only by acts of enjoyment  of  the  land  itself  but  also  by ascertaining as to  in  whom the actual  control  of the thing is to be attributed or the advantages of possession  is  to  be  credited,  even  though  some other person is in apparent occupation of the land. In one case, it would be actual possession and in the  other  case,  it  would  be  constructive possession.”

In  that  case,  handing  over  of  the  deed  of  gift  coupled  with  the

declaration made in the document was held to be sufficient for constituting

a valid gift.   

(See  also  Valia  Peedikakkandi  Katheessa  Umma & ors.  vs.  Pathakkalan

Narayanath Kunhamu [AIR 1964 SC 275]

14

We agree with the ratio laid down therein.

17. We, therefore,  are of the opinion that the High Court  committed a

serious error  in opining that the possession had not  been handed over to

Razak by the donor.   

18. Limitation  for  filing a suit  in  a case of this  nature is  governed by

Article 59 of the Schedule appended to the Limitation Act, which reads as

under:

“Description of Suit Period  of Limitation

Time  from  which  period begins to run

59 To cancel or set aside an  instrument  or decree  or  for  the rescission  of  a contract.

Three years When the facts entitling the plaintiff  to  have  the instrument  or  decree cancelled or set aside or the contract  rescinded  first become known to him.”

Respondent  No.1 in  his  suit  prayed for  cancellation  of  and setting

aside of the deed of gift dated 21.2.1973.  He became aware of the deed of

gift in the proceedings before the Tahasildar.  He had filed objections on the

Razak’s application for grant of lease in his name in respect of the small

patch of  lands which was  being used for  ingress  to  and egress  from the

property in question.  In that proceeding itself, the donor himself had prayed

for mutation of Razak’s name in respect of the property in question.   

15

19. A suit for cancellation of transaction whether on the ground of being

void or voidable would be governed by Article 59 of the Limitation Act.

The suit,  therefore, should have been filed within a period of three years

from the date of knowledge of the fact that the transaction which according

to the plaintiff was void or voidable had taken place.  The suit having not

been filed within a period of three years, the suit has rightly been held to be

barred by limitation.   

In Md. Noorul Hoda vs. Bibi Raifunnisa & ors. [1996 (7) SCC 767],

this Court held:

“….There  is  no  dispute  that  Article  59  would apply  to  set  aside  the  instrument,  decree  or contract between the inter se parties. The question is whether in case of person claiming title through the  party  to  the  decree  or  instrument  or  having knowledge of the instrument or decree or contract and  seeking  to  avoid  the  decree  by  a  specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a  suit  to  set  aside  or  cancel  an  instrument,  a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the  plaintiff  seeks  to  establish  his  title  to  the property  which  cannot  be  established  without avoiding the decree or an instrument that stands as an  insurmountable  obstacle  in  his  way  which otherwise  binds  him,  though  not  a  party,  the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or  set  aside  or  rescinded.  Section  31  of  the Specific  Relief  Act,  1963  regulates  suits  for

16

cancellation of an instrument which lays down that any person against  whom a written instrument is void  or  voidable  and  who  has  a  reasonable apprehension  that  such  instrument,  if  left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that  the  word  ‘person’  in  Section  31  of  the Specific Relief Act is wide enough to encompass a person seeking derivative title  from his  seller.  It would,  therefore,  be  clear  that  if  he  seeks avoidance  of  the  instrument,  decree  or  contract and  seeks  a  declaration  to  have  the  decrees  set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him.”

{See also Sneh Gupta vs. Devi Sarup & Ors. [2009 (2) SCALE 765]}  

20. For the reasons aforementioned, the impugned judgment is set aside.

The appeal is allowed with costs. Counsel’s fee assessed at Rs.25,000/-.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Asok Kumar Ganguly]

……………………………….J. [R.M. Lodha]

17

New Delhi; MARCH 06, 2009

18