LexRASHEEDA KHATOON (D) THROUGH LRS. versus ASHIQ ALI S/O LT. ABU MOHD (D) THROUGH LRS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
• (2014) 11 S.C.R. 31 RASHEEDA KHATOON (D) THROUGH LRS. A v. ASHIQ ALI S/O LT. ABU MOHD (D) THROUGH LRS. (Civil Appeal No. 603 of 2009 etc.) OCTOBER 10, 2014 [DIPAK MISRA AND VIKRAMAJIT SEN, JJ.] Mohammedan Law - Oral gift (Hiba) - Validity of - Suit B for declaration as owner in possession - On the basis of oral gift which was later mentioned in written gift (unregistered) - C Held: To make a gift valid, there has to be actual or constructive possession by the donee - The plaintiff did not prove either actual or constructive possession - Hence, suit not liable to be decreed. Constitution of India, 1950 - Article 136 - Jurisdiction under- Scope of- Interference with concurrent finding of facts - Held: Is permissible if the conclusion on factual aspects are manifestly perverse or unsupported by evidence on record. Words and Phrases - 'Possession' - Meaning of Dismissing the appeals, the Court D E HELD: 1. This Court in exercise of power under Article 136 of the Constitution can interfere with the concurrent F findings of fact, if the conclusions recorded on certain factual aspects are manifestly perverse or unsupported by the evidence on record. [Para 20] [47-A-B] 2.1. A gift under the Mohammadan Law can be an oral gift and need not be registered; that a written G instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan Law three essential features namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee 31 H 32 SUPREME COURT REPORTS [2014] 11 S.C.R. • A expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the B Registration Act. [Para 16) [44-8-D] 2.2. A deed of gift solely because it is a written instrument does not require registration. It can always be treated as a piece of evidence evidencing the gift itself, C but, that gift must fulfill the three essential conditions so that it may be termed as a valid gift under the Muhammadan Law. [Para 19) [46-F-G] 2.3. On a perusal of the deed of gift and the evidence brought on record it is demonstrable that the donor D remained in the premises in question. He did not part with physical possession. Therefore, the principle of donor getting fully divested or handing over of physical possession is not attracted. The donee was not in actual physical possession. [Para 21) [47-G; 48-A, DJ E F 2.4. Actual physical possession may not be always necessary if there is constructive possession of the donee. The possession can be shown not only by enjoyment of the land or premises in question but also by asserting who has the actual control over the property. The evidence on record, clearly reveal that the donee was not in constructive possession. Therefore, ' one of the elements of the valid gift has not been satisfied. As the plaintiff could not prove either' actual or constructive possession, the gift was not complete and G hence, the issue of registration does not arise. [Para 24) / [49-8-C, E, F] · .. Nasib Ali v. Wajid Ali AIR 1927 Cal 197; Kamarunnissa Bibi v. Hussaini Bibi (1880) 3 All 266; Karam llahi v. H Sharfuddin AIR 1916 All 351; Mahboob Sahab v. Syed Ismail • RASHEEDA KHATOON (D) THROUGH L~S. v. ASHIQ ALI 33 S/O LT. ABU MOHD (D) THROUGH LRS. and Others (1995) 3 SCC 693: 1995 (2) SCR 975; Hafeeza A Bibi and Others v. Shaikh Farid (Dead) by LRS. and Others (2011) 5 SCC 654: 1995 (2) SCR 975; Mohd. Abdul Ghani v. Fakhr Jahan Begam (1921-22) 49 IA 195: AIR 1932 PC 13; Assan Ravther v. Manahapara Charayil AIR 1972 Ker 27; Javeda Khatun v. Moksed Ali AIR 1973 Gauhati 105; Valia B Peedikakkandi Katheessa Umma and others v. Pathakkalan Narayanath Kunhamu (deceased) and after him his legal representatives and others AIR 1964 SC 275: 1964 SCR 549 ; Alame/u & Another v. State (2011) 2 SCC 385: 2011 (2 ) SCR 147; Heinz India (P) Ltd. and Another v. State of c U.P. and Others (2012) 5 SCC 443: 2012 (3 ) SCR 898 ; Vishwanath Agrawal s/o Sitaram Agrawal v. Sar/a Vishwanath Agrawal (2012) 7 SCC 288: 2012 (7) SCR 607 - relied on. Bishwanath Gosainv. Dulhin Lalmani AIR 1968 Pat 481; Boya Ganganna v. State of Andhra Pradesh AIR 1976 SC D 1541; Govt. of Hyderbad (Deptt. of Revenue) v. Tayyaba
Excerpt shown. Read the full judgment & AI analysis in Lexace.