Family & Property Law Update

1. Validity of Gift Deed of Undivided Property under Muslim Law: In Khursida Begum (D) By Lrs & Others vs Mohammad Farooq (D) By Lrs. & Anr. [Civil Appeal 2845 of 2006]: The issue under challenge was the validity of the gift deed executed on February 24, 1976 which was undivided share of property but was capable of division and hence invalid under Muslim law, Hiba-bil-Musha (Section 206 of the Muslim Law: Hiba of Undivided Property). The father of the appellant was the absolute owner of the suit property in which the appellant had one-third share as per the gift deed and the brothers were co-owners in the property upto the extent of two-third. 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, which was rented out to the tenants. Thus, the plaintiff’s claim was for the entitlement for the recovery of one-third of the amount falling to his share. The respondent’s defendants contested the suit denying the validity of the gift deed. It was held by lower court that the gift has no effect, as possession was not delivered to the donee. The gift was duly executed. The Trial Court dismissed the suit. It was held that no family arrangement had taken place as claimed by the defendants. Father of the appellant alone was receiving the rent from the tenants till his death as shown by the rent receipts and other documents, which were proved on record. 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-bil-musha. The High Court also dismissed the appeal. The Hon’ble High Court held that the 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 the title deed, request to the tenant to attorn to the donee or by mutation. It is further clear that the gift of property capable of division is irregular but can be perfected and rendered valid by subsequent partition and delivery. Exception to the same is gift of freehold property in a large commercial town. The Honorable Supreme Court of India held that the gift had no infirmity 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 in the gift deed. The courts below are not justified in not giving effect to the gift, which has been held to be genuine. Therefore, Supreme Court of India, setting aside the impugned judgment and decree the suit, allows this appeal.

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