KHURS!DA BEGUM (D) BY LRS. & ORS. versus MOHAMMAD FAROOQ (D) BY LRS. & ANR.

Citation: [2016] 1 S.C.R. 484 · Decided: 01-02-2016 · Supreme Court of India · Bench: ANIL R. DAVE · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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[2016] 1 S.C.R. 484 
KHURS!DA BEGUM (D) BY LRS. & ORS. 
MOHAMMAD FAROOQ (D) BY LRS. & Al"R. 
(Civil Appeal ">;o. 2845 of2006) 
FEBRUARYOl.2016 
[ANIL R. DAVE AND ADARSH KUMAR GOEL, JJ.J 
Mohammedan Lmr -- Gift fHiba; - Of undivided property, 
irhich is capable of division - Jn farnur of minor son - Property in 
possession of the renanrs 
Whether rnch gifi is irregular - Held: 
The gift had no infirmity wider The Mohammedan Lall' either on The 
ground Thar The possession mis nor delivered To The donee or on the 
r;round thar The Rifi irns hir br Hiba-bil-\1usha - llrhe properrv is in 
occuparion of Tenanfs. gifr can be complered by delivery of rirle 
deed or by request to temmrs ro a(forn To The donee or by murarion 
- Giji of undivided properr_i· irhich is capable of division though 
irregulm: but can be pe1jected and rendered valid by subsequent 
partition or delivery. 
Allowing the appeal, the Court 
HELD: 1. The gift had no infirmity under the '.\1uslim Law 
either on the ground that the possession was not delivered or 
on the ground that the gift was hit by Hiba-bil-'.\1usha. The courts 
below are not justified in not giving effect to the gift which has 
been held to be genuine. [Para 14][-191-A-B] 
2. While gift of immovable property is not complete unless 
the donor parts with the possession and donee enters into 
possession, but if the property is in occupation of tenants, gift 
can be completed by delivery of title deed or by request to tenants 
to attorn to the donee or by mutation. Further gift of property 
which is capable of dh·ision is irregular but can be perfected and 
rendered valid by subsequent partition or delivery. Exceptions 
to the rule are : where the gift is made by one co-heir to the 
other; where the gift is of share in a zemindari or taluka; where 
gift is of a share in freehold property in a large commercial 
town, and where gift is of share in a land company. [Para II] 
[ -190-C-E] 
-18-l 
KHURSIDA BEGUM (D) BY LRS. v. MOHAMMAD FAROOQ 
(D) BY LRS. 
3. The property in the present case is freehold property. 
Description of property mentioned in plaint and in the gift deed 
itself shows that it is commercial property. Requirement of 
possession is also met when right to collect rent has been assigned 
to the plaintiff under the gift deed itself, genuineness of which 
stands proved. (Para 13] [490-G-H] 
"Mui/a Principles of Mohammedan Law, 20'" Edition 
by Lexis Nexis; "Mohammedan Law" by B.R. Verma, 
13'" Edition - referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2845 
485 
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From the Judgment and Order dated 25. l I .2002 of the High Court 
of Rajasthan at Jaipur in S. B. Regular First Appeal Nos. 78/81, 83/81 
and 84/1981 
S.W.A. Qadri, Jubair Ahmad Khan, laid Ali, Tamim Qadri, 
Saurabh Chopra (for Lakshmi Raman Singh) for the Appellants. 
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Anis Ahmed Khan, Shoaib Ahmad Khan, for the Respondents. 
The Judgment of the Court was delivered. 
ADARSH KUMAR GOEL, J. I. Validity of gift deed dated 
24'" February, 1976 executed by late Hazi Azimuddin in favo•ir of the 
plain:iff 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 
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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· G 
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 24•h 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 
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SUPREME COURT REPORTS 
(2016] I S.C.R. 
was Rs.50/- per month. From I" 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 

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