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

                             [2016] 1 S.C.R. 484



A               KHURS!DA BEGUM (D) BY LRS. & ORS.


             MOHAMMAD FAROOQ (D) BY LRS. & Al"R.
                       (Civil Appeal ">;o. 2845 of2006)
B                           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:
c   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
D   - 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
E
    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
F   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
G   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]
H
                                      -18-l
 KHURSIDA BEGUM (D) BY LRS. v. MOHAMMAD FAROOQ                             485
                   (D) BY LRS.

       3. The property in the present case is freehold property.           A
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]
                                                                            B
      "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
of2006                                                                     C
      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.                D
       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       E
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
                                                                            F
to be genuinely executed.
        2. Facts are as follows: The appellant filed suit for recovery of
 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 H
486                   SUPREME COURT REPORTS                    (2016] I S.C.R.



 A    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 to his
      share.
             3. The respondents defendants contested the suit denying the
 B    validity of the gift deed. It was stated that Hazi Azimuddin was 95 years
      old suffering from certain ailments and was not in a fit condition to make
      the gift deed. He had no right in the property and had never recovered
      any part of the rent. There was an oral family arrangement under which
      the defendants became the exclusive owners and Hazi Azimuddin
      relinquished all his rights.
 c
            4. The trial Court framed following issues :
                   1. Whether the disputed property has come to the
                   defendants 20 years prior to the institution of the suit
                   by way of oral family arrangement between late
 D                 Azimuddin and. the defendants and they are in
                   possession as owners in their shares for 20 years>
                   2. Whether late Azimuddin on 24.2. 76 made a valid
                   gift of 113 undivided share in the dfaputed property in
                   favour of the plaintiffs and was receiving the rent from
 E                 tenants in his lifetime till 1.1. 77 and was paying 113
                   part of it to the plaintiffs"
                   3. Whether sufficiem court fees has been paid?
                   4. Whether the suit is for partial partition of the
                   property of Azimuddin. If yes, then whether suit for
 F                 partial partition cannot continue?
                   5. Whether the suit is barred by limitation?
                   6. Whether the other sons and daughters of Azimudin
                   are necessary party to the suit. If yes, what is the effect
                   of non-joinder of necessary parties to the suit 1
 G
                    7. Relief"
             The trial Court dismissed the suit. It was held that no family
      arrangement had taken place as claimed by the defendants. Hazi
      Azimuddin alone was receiving the rent from the tenants till his death as
 H    shown by the rent receipts and other documents which were proved on
 KHURSIDA BEGUM (D) BY LRS. v. MOHAMMAD FAROOQ                                 487
        (D) BY LRS. [ADARSH KUMAR GOEL, J.]

record. Gift deed dated 24'" February, 1976 was duly executed. Hazi            A
Azimuddin himself had gone to the office of the Sub Registrar. The case
of the defendants that he was not in a fit state of health was not accepted.
However, gift of undivided property was not valid as the plaintiff was
never given actual or symbolic possession of one-third share of property
and that the gift was hiba-bi/-musha. The High Court dismissed the
                                                                               B
appeal.
       5. We have heard learned counsel for the parties.
        6. Learned counsel for the appellants submitted that once tlie gift
was held to have been duly proved in favour of the appellant who was
minor, transfer of possession was not required to be proved. Further,          c
the property being in possession of the tenant, execution of gift deed by
itself amounted to transfer of constructive possession. It was further
submitted that the gift could not have been declared invalid on the ground
that it related to undivided share of divisible property which was not the
plea in the written statement. There was no absolute bar to such gift.
Even if there is such a bar in certain situations, there are exceptions to     D
the rule which apply. One of the exceptions is that property is freehold
property in a large commercial town which is clearly applicable to the
present case. The courts below thus erred in holding the gift to be
 illegal on that ground.
     7. Learned counsel for the respondents supported the impugned             E
judgment.
       8. Before we advert to the issue, it will be appropriate to refer to
the finding recorded by"the courts below. The trial court observed :
       "Now, it only remains to be decided as to what is the effect of          F
       the said gift-deed. I have gone through Section 206 of Muslim
       Law which is as follows :
       206. Hiba of undivided property (hiba-bil-mushaa)
       Subject to the provisions of Sec. 207 a hiba of an undivided
       share in property which is capable of division is invalid except         G
       in tqe fol/owin~ cases :
              a. Where ii is made by one co-sharer in the property to
              another;
               b. Where the property admits of definite ascertainment
                                                                               H
488             SUPREME COURT REPORTS                (2016] I S.C.R.



 A          of shares and is capable of separate enjoyment without
            division;
            c. Where it is made to a minor who is under the custody
            of the donor and to whom the donor transfers a part of
            the property;
 B          d. Where the property is freehold property in a large
            commercial town (c)
      Fnr Hiba-bil-Mushaa. it is settled principle of Muslim Law
      that gift of undivided share in property, which is capable of
      division is invalid except in 4 aforesaid cases. In my view,
 c    this disputed Hiba does not fall in any of above-stated
      exception and it can be said to be invalid. I have gone through
      the judgment cited by the Learned Counsel for the plaintiff
      according to which even if the case is covered under exception
       "c" and "d", even then it has to be said that handing over of
 D    possession is necessary in Hiba-bi/-Mushaa. If the possession
      has not been handed over, then the principle of Musha would
      be applicable and that Hiba will be considered invalid.
      xxxxxxx
      The plaintiff has totally failed to prove that on 24.2. 76 or
 E    later, they had been handed over possession actual or
      symbolic of undivided 113 share of the property. In such
      circumstances, it has to be said that the principle of Musha
      would be applicable to Hiba and Hiba that has been made
      on 24.2. 76 is not as per the rules and is invalid. As a
      consequence this issue is decided against the plaintiff."
 F
      9. The High Court held:
      "Bare reading of the above provision would show that the
      gift in question in the present case does not come in any of
      the exceptions mentioned above. It has also not been pleaded
 G    or proved in any manner that the property in question is
      freehold property in a large commercial town, so as to attract
      clause (d) of the exception as referred to above.
      After having considered the entire facts and circumstances of
      the present case, in view of the clear provisions of law, as
 H    referred to above, I find no error or illegality in the judgment
 KHURSIDA BEGUM (D) BY LRS. v. MOHAMMAD FAR.OOQ                             489
        (D) BY LRS. [ADARSH KUMAR GOEL. .J.]

      and decree passed by the trial court so as to·call for any            A
      further interference of this court. "
      10. Learned counsel for the parties have referred to the principles
of Mohammedan Law as compiled in "Mu Ila Principles of Mohammedan
Law, 20'h Edition by Lexis Nexis, paras 152 and 160 which ar( :
       "152. Delivery of possession oj'immovable propert.v (}) Where        B
      donor is in possession -A gift of i111111ovable property of 11'hich
      the donor is in actual possession is not complete. unless the
      donor physically departs from the premises H'ith all his goods
      and chattels, and the donee for111ally enters into possession.
      (2) Where property is in the occupation of tenants - A gift of        c
      i111movable property which is in the occupation of tenants may
      be co111pleted by a request by the donor to the tenants to attom
      to the donee, or by delivery of the title deed or by 111utation in
      the Revenue Register or the landlord's sherista. But if the
      husband reserves to himself the right to receive rents during         D
      his lifetime and also undertakes to pay Municipal dues, a
      mere recital in the deed that delivery of possession has been
      given to the donee will not make the gift co111ple!e.
      (3) Where donor and donee both reside in the property - No
      physical departure or formal entry is necessary in the case of        E
      a gift of immovable property in which the donor and the donee
      are both residing at the time of the giji. In such a case the gift
      may be completed by some overt act by the donor indicating
      a clear intention on his part to transfer possession and to
      divest himself of all control over the subject of the gift. The
      principle for the deter111ination of questions of this nature         F
      was thus stated by West, J. in a Bombay case. "When a person
      is present on the premises proposed to be delivered to him, a
      declaration of the person previously possessed puts him into
      possession without any physical departure or formal en11:v.
      160. Gift of mushaa where property divisible. A gift of an            G
      undivided share (mushaa) in property which is capable of
      division is irregular (jasid), but not void (bati/). The gift being
      irregular. and not void, it may be pe1fected and rendered valid
      by subsequent partition and delivery to the donee of the share
      given to him. lf possession is once taken the gift is validated.
                                                                            H
490                   SUPREME COURT REPORTS                    [2016] 1 S.C.R.


 A           Exceptions - A gift of an undivided share (mushaa), though
      it be a share in property capable of division, is valid.from the moment
      of the gift, even if the share is not divided off and delivered to the
      donee, in the following cases -
            (1) where the gift is made by one co-heir to another.
 B          (2) where the gift is of a share in a zemindari or taluka
            (3) where the gift is of a share in freehold property in a
      large commercial town.
            (4) where the gift is of shares in a land company."
 C         11. A perusal of the above shows that while gift of immo·1able
   property is not complete unless the donor parts with the possession and
   donee enters into possession but ifthe 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. It is further clear that gift of property
 D which is capable of division 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.
            12. The courts below appear to have quoted ;'Mohammedan Law"
 E
      by B.R. Verma, Law Publishers {India) Pvt. Ltd, J J•h Edition which is
      by and large to same effect as Mu Ila's book on the subject.
           13. The courts below have held the gift to be invalid on the ground
   that it was gift of undivided property which is capable of division and
   was not covered by any of the exceptions to the rule that gift of such
 F
   property is irregular. It is submitted by learned counsel for the appellant
   that the !Jroperty is freehold property in the city of Jaipur, which is a
   large commercial town. This has been wrongly ignored by the courts
   below on the ground that there was no pleading or proof to that effect.
   Description of property mentioned in plaint and in the gift deed itself
 G shows that it is commercial property in the city of Jaipur which is the
   capital of the State ofRajasthan and is, thus, a large commercial town.
   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.
 H
 KHTJRSIDA BEGUM (D) BY LRS. v. MOHAMMAD FAROOQ                              491
         (0) BY LRS. [ADARSH KUMAR GOEL, J.]

        14. We find force in the submission. The gift had no infirmity       A
under the Muslim Law either on the ground that the possession was not
delivered or on the ground that the gift was hit by Hiba-bil-Musha.
The gift was by father to his minor son. Property is under tenancy. The
gift is by a registered deed. Right to collect rent stands transferred to
donee. The property is located in the city of Jaipur which is mentioned
                                                                             B
in Para 2 of the plaint as well as in the gift deed. The courts below are
notjustified in not giving effect to the gift which has been held to be
genume.
     1S. Accordingly, we allow this appeal, set aside the impugned
judgment and decree the suit.
                                                                             c
K~lpana K. T~ipathy                                        Appeal allmYed.