Holding

The gift deed is valid and the suit is barred by limitation.

Summary

The father, Haji Sk. Abdullah, executed a registered gift deed on 21‑02‑1973 in favour of his younger son Abdul Razak, transferring a house that was let out to tenants. After the father's death, Razak died and his heirs (the appellants) succeeded to his interest. The elder son (respondent No.1) filed a suit in 1980 seeking to declare the gift deed void. The trial court dismissed the suit as barred by limitation and held the gift valid, noting that the donee had collected rent and that a mutation of the revenue record effected constructive possession. The High Court reversed, holding the suit timely and that possession had not been transferred. The Supreme Court allowed the appeal, ruling that under Mohammedan law a valid gift requires transfer of possession, which can be constructive; the donor’s application for mutation and the donee’s rent collection satisfied this, making the gift complete. It also held that the suit was barred under Article 59 of the Limitation Act, 1963, as knowledge of the transaction arose in 1977, not 1980.

Issues considered

Whether the suit for cancellation of the gift deed is barred by limitation under Article 59 of the Limitation Act, 1963.
Whether the donor transferred possession (actual or constructive) of the gifted property to the donee, thereby rendering the gift valid under Mohammedan law.

Legislation cited

Limitation Act, 1963s. Article 59
Specific Relief Act, 1963s. Section 31

Subjects

Gift deedHibaMohammedan lawConstructive possessionLimitation ActArticle 59Specific Relief ActMutation of revenue recordRegistered deedSuccession

Judgment

[2009] 4 S.C.R. 32

A ABDUL RAHIM & ORS.
V. •
SK. ABDUL ZABAR & ORS.
Civil Appeal No. 1573 of 2009
MARCH 6, 2009
B
[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
transfers with immediate effect the ownership of his E
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 G
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
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]
1.3. It is also well settled that if by reason of a valid
B 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
donee or does all that he can to put it within the power of
D
the donee to obtain possessior [Para 10] [41-C]
Maqbool Alam Khan vs. Mst. Khodaija & ors. (1966) 3
..
SCR 479 and Mu/lie Abdool Guffoor vs Muleka ILR (1884) 10
Calcutta 1112 - referred to.
E Mu/la's Principles of Mohammadan Law: 'Outlines of
Mohammedan Law' by A.A. Faizee; 'Commentary on
Mohammedan Law' by Syed Ameer Ali and 'Muslim Law -
The Personal Law of Muslims in India and Pakistan' by Faiz ...
Badruddin Tyabji - referred to.
F
2. In the present case, 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
G ..._
transaction to show that in law the transaction was not
valid. 'R' had been receiving rent from the tenants. In fact,
respondent No.1 in his suit claimed a decree for
apportionment of rent. This Court would presume that 'R'
had been collecting rent from the tenants during the life
H
ABDUL RAHIM & ORS. V. SK. ABDUL ZABAR & ORS. 35

time of his father. The agency to collect rent, however, A
' came to end as soon as an order of mutation was passed
in his favour. Apart from that 'R' 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. [Para 14] (44-E-G] B
3. 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 R's name in the revenue
... record. The High Court misconstrued the order of the
Revenue Authority. It having failed to take into consider$!- c
tion the import and purport of the donor's application
before the Tahasildar, committed a manifest error in
holding that the order of mutation on that basis was not
decisive. In a case of this nature, thus, the transfer of cons-
tructive possession would sub-serve the requirements of D
law. The High Court committed a serious error in opining
that the possession had not been handed over to 'R' by
the donor. [Paras 15, 17] [44-H; 45-A-B; D-E; 46-D-E]
Valia Peedikakkan di Katheessa Umma & ors. vs.
Pathakkalan Narayanath Kunhamu AIR 1964 SC 275 - relied E
on.
Munni Bai & anr. vs. Abdul Gani AIR (1959) Madhya
Pradesh 225 and Abu Khan vs. Mariam Bibi (1974) 40 Cuttack
Law Times 1306 - referred to. F
4. 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 G
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. [Para 19] [47-D-E]
H
36 SUPREME COURT REPORTS [2009] 4 S.C.R.

A Md. Noorul Hoda vs Bibi Raifunnisa & ors. ([1996) 7
SCC 767 and Sneh Gupta vs. Devi Sarup & Ors. (2009) 2 •
SCALE 765,... referred to.
Case Law Reference

B (1966) 3 SCR 479 referred to Para 12
ILR (1884) 10 Calcutta 1112 referred to Para 12
AIR (1959) Madhya Pradesh 225
referred to Para 16 )

c (1974) 40 Cuttack Law Times 1306
referred to Para 16
AIR 1964 SC 275 relied on Para 16

D (1996) 1 sec 767 referred to Para 19
(2009) 2 SCALE 765 referred to Para 19
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1573
of 2009
E From the Judgement and Order dated 30.06.2008 of the
Hon'ble High Court of Orissa, Cuttack in F.A .. No. 197 of 1982.
R.K. Dash, Suchit Mohanty, Anupam Lal Das, for the
Appellants.
F Bharat Sangal, Prasenjit Das, Mrinalini Dinam, Vernika
Tomar, for the Respondents.
The Judgement of the Court was delivered by
S.B. SINHA, J.
G 1. Leave granted
2. Interpretation and/or application of the Islamic Law on
Gift vis-a-vis handing over of possession of the property gifted
is the question involved in this appeal. It arises out of a judgment
H and order dated 30.6.2008 passed by the High Court of Orissa
ABDUL RAHIM & ORS. V. 37
SK. ABDUL ZABAR & ORS. [S.B. SINHA J]

at Cuttack in First Appeal No. 197 of 1982 whereby and A
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 B
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 C
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 D
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:
E
"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 F
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 transferring the schedule land valued G
-' 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 H
38 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 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."
B
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:
c "I, the present applicant Hazi SeikhAbdullah 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
D 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."
E
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 with the suit land formed a compact
area. The deed of gift was also produced in the said
F 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.
G 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
H
ABDUL RAHIM & ORS. V. 39
SK. ABDUL ZABAR & ORS. [S.B. SINHA J.]

trial judge: (1) Whether the suit was barred by limitation; and (2) A
Whether Haji Sk. Abdullah had handed over the possession of
the properties i~ question in favour of Razak
Indisputably, during pendency of the suit, Razak died and
his legal heirs, appellants herein, were substituted in his place.
B
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
;;~stituted 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 collecting the house
rent from the tenants for the suit lands in his own capacity and C
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. D
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 en 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 E
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 F
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 G
of the respondents, on the other hand, would submit:
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. H
40 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 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
B 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
c 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.

D 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.
E
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.
.. ...-
F
(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.
G (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

H
things not gifted; i.e. should be free from things
which have not been gifted.
-
ABDUL RAHIM & ORS. V. 41
SK. ABDUL ZABAR & ORS. [S.S. SINHA J.]

(f) The thing gifted should come in the possession A
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. B
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 C
possession of trespasser is permissible in law provided the
donor either obtains and gives possession of the property to
the do nee 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 D
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. E
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 F
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 G
estate. Mohammadan Law allows a man to give away the
whole of his property during his 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: H
-·
42 SUPREME COURT REPORTS (2009] 2 S.C.R.

A "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
B 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 do nee
either actually or constructively."
12. In Maqbool Alam Khan vs. Mst. Khodaija & ors.
C [(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
D 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,
E 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
..
F wrongdoer) or of a lessee or a mortgagee cannot be given
away, see Oorrul Mokhtar, Book on Gift, p. 635 cited in
Mu/lie Abdool Guffoorv. 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
G 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
H possession of a trespasser. Such a gift is valid, provided
ABDUL RAHIM & ORS. V. 43
SK. ABDUL ZABAR & ORS. [S.B. SINHA J.]

the donor either obtains and gives possession of the A
property to the donee or does all that he can to put it within
the power of the donee to obtain possession,"
[See also Mu/lie Abdool Guffoor vs. Muleka [ILR 1884
(10) Calcutta 1112)
B
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 C
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 D
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 E
relates back to the time of the declaration."
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 F
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 G
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 H
44 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 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
B 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
c 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
D
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 intended to be made,
has no claim against the heirs."
E 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 ..
F 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
G 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.
H 15. Constructive possession of the suit premises must be
ABDUL RAHIM & ORS. V. 45
SK. ABDUL ZABAR & ORS. [S.B. SINHA J.]

held to have been handed over by the donor as he had himself A
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 the
Tahasildar committed a manifest error in holding that the order B
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 C
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 TL. 7/76. It is not a fact that I knew o
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 E
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 F
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 G
delivered the document to him in token thereof, is sufficient
delivery of possession."
16. A learned single judge of the Orissa High Court in Abu
Khan vs. Moriam Bibi [1974 (40) Cuttack Law Times 1306]
held: H
46 SUPREME COURT REPORTS [2009] 4 S.C.R.

A " .... 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
B 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
c 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."
D
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.
E (See also Valia Peedikakkandi Katheessa Umma & ors.
vs. Pathakkalan Narayanath Kunhamu [AIR 1964 SC 275]
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
F 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:
G "Description of Suit Period of Time from which
Limitation period begins to run
59 To cancel or set aside Three years When the facts
an instrument or entitling the plaintiff
decree or for the to have the instrument
H
ABDUL RAHIM & ORS. V. 47
SK. ABDUL ZABAR & ORS. [S.B. SINHA J.]

rescission of a or decree cancelled A
contract. or set aside or the
contract rescinded
first become known to
him."
Respondent No.1 in his suit prayed for cancellation of and B
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 C
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.
19. A suit for cancellation of transaction whether on the D
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 E
to be barred by limitation.
In Md. Noorul Hoda vs. Bibi Raifunnisa & ors. [1996 (7)
sec 767], this Court held:
" ... .There is no dispute that Article 59 would apply to set F
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 G
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 ofthe alleged H
48 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 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
B 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
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
•
c
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
D
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
E 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]}
F 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/-.

B.B.B. Appeal allowed.