ABDUL RAHIM & ORS. versus SK. ABDUL ZABAR & ORS.

Citation: [2009] 4 S.C.R. 32 · Decided: 06-03-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 4 S.C.R. 32 
A 
ABDUL RAHIM & ORS. 
V. 
• 
SK. ABDUL ZABAR & ORS. 
Civil Appeal No. 1573 of 2009 
B 
MARCH 6, 2009 
[S.B. SINHA, ASOK KUMAR GANGULY AND R.M. 
LODHA, JJ.] 
Mohammedan Law - Gift - Validity of - Interpretation 
and/or application of Islamic Law on Gift vis-a-vis handing over 
c of possession of the property gifted - Father executing gift 
deed in favour of son in respect of property - Property had 
been let out to tenants - Held: In a case of this nature, transfer 
of constructive possession would sub-serve the requirements 
of/aw. 
D 
Limitation Act, 1963 - Art. 59 - Suit for cancellation of 
transaction - Not filed within period of three years - Held: The 
suit was barred by limitation. 
Interpretation and/or application of the Islamic Law 
E on Gift vis-a-vis handing over of possession of the 
property gifted was in issue in the present appeal. 
The father of 'R' executed the gift deed in question in 
favour of 'R' in respect of property. The property had been 
JI 
let out to the tenants. The deed was executed on or about 
F 21-2-1973. In 1980, Respondent No.1, the elder brother of 
'R' filed suit praying for a direction that the said gift deed 
was illegal, void and inoperative. Two questions arose for 
consideration before the trial Court, viz. whether the suit 
filed by respondent no.1 was barred by limitation and 
G whether the donor had handed over the possession of 
the property in quP,stion in favour of 'R'. The trial court 
dismissed the suit holding that the same was instituted 
beyond the period of limitation as prescribed by Article 
H 
32 
-
ABDUL RAHIM & ORS. V. SK. ABDUL ZABAR & ORS. 33 
_,, 
59 of the Schedule appended to the Limitation Act, 1963. A. 
It furthermore held that as 'R' had been collecting house 
rent from the tenants for the suit property 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. 
B. 
Respondent No.1 preferred appeal which was 
allowed by the High Court inter alia on the ground that 
there was no material brought on record to show that the 
~ 
donor divested himself of the title of the said property and 
'R' was in possession thereof. 
c 
In appeal to this Court, it was submitted by the 
appellants 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 D 
out to the tenants, handing over constructive possession 
.... 
thereof to 'R' sub-served the requirements of law . 
Allowing the appeal, the Court 
HELD:1.1. A gift becomes complete when a person 
E 
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. [Para 10] [40-D-E] 
F 
1.2. 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 
G 
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 
1 
should not be accompanied by things not gifted; i.e. 
H 
34 
SUPREME COURT REPORTS 
[2009] 4 S.C.R. 
-
A 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. [Para 10] [40-E; 41-A] 
B 
1.3. 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. [Para 10] [41-B] 
1.4, The donor may lawfully make a gift of a property 
in the possession of a lessee or a mortgagee. For 
> 
c 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 
D donee or does all that he can to put it within the power of 
the donee to obtain possessior [Para 10] [41-C] 
.. 
Maqbool Alam Khan vs. Mst. Khodaija & ors. 

Excerpt shown. Read the full judgment & AI analysis in Lexace.