Karnataka High Court
Afsarmiyan S/O Hasanuddin vs Smt. Gouri Begum W/O Late Zaheeruddin on 11 September, 2023
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RSA No. 7216 of 2009
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7216 OF 2009 (DEC)
BETWEEN:
AFSARMIYAN S/O. HASANUDDIN
AGED 46 YEARS, OCC: BUSINESS,
R/O. ANSARI GALLI, BIDAR TOWN,
DIST.: BIDAR - 585 414. ... APPELLANT
(BY SRI R.S. SIDHAPURKAR, ADVOCATE)
AND:
Digitally signed
by 1. SMT. GOURI BEGUM
LUCYGRACE
Location: HIGH W/O. LATE ZAHEERUDDIN
COURT OF
KARNATAKA AGED 63 YEARS, OCC: HOUSE HOLD,
R/O. ANSARI GALLI BIDAR.
(R-1 DEAD R-2 TO R-8 ARE TREATED AS
LR's OF R-1 VIDE ORDER DATED 01/02/2021)
2. MOHD. NAYEEMUDDIN
S/O. LATE MOHAMMED ZAHEERUDDIN,
AGED 37 YEARS, OCC: PRIVATE SERVICE,
R/O. ANSARI GALLI, BIDAR.
3. MD. JAFFARUDDIN
S/O. LATE MD. ZAHEERUDDIN
AGED 35 YEARS, OCC: PRIVATE SERVICE,
(R-3 DEAD R-2, R-4 TO R-8 ARE TREATED AS
LR's OF R-3 VIDE ORDER DATED 11/09/2023)
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RSA No. 7216 of 2009
4. MD. SHAKEEL
S/O LATE MD. ZAHEERUDDIN
AGED 31 YEARS, OCC: MECHANIC WORK,
5. MD. FAHEEMUDDIN
S/O. LATE MD. ZAHEERUDDIN,
AGED: 31 YEARS, OCC: PRIVATE SERVICE,
REST AS ABOVE.
6. MD. KHAYUM
S/O. LATE MD. ZAHEERUDDIN,
AGED: 24 YEARS, OCC: PRIVATE SERVICE,
7. AJMERI BEGUM
D/O. LATE MD. ZAHEERUDDIN,
AGED 24 YEARS, OCC: HOUSEHOLD,
8. LABEEBUDDIN
S/O. LATE MD. ZAHEERUDDIN,
AGED 19 YEARS,
ALL ARE RESIDENT OF ANSARI GALLI,
BIDAR, DIST. BIDAR - 585 414. ... RESPONDENTS
(BY SRI K.M. GHATE, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL BY REVERSING THE
JUDGMENT AND DECREE DATED 15.07.2009 PASSED IN
R.A.NO.117/2006 BY THE LEARNED PRINCIPAL DISTRICT
JUDGE, BIDAR AND RESTORE THE JUDGMENT AND DECREE
DATED 18-09-2006 PASSED IN O.S.NO.149/94 BY THE
LEARNED ADDL. CIVIL JUDGE (SR.DN.) BIDAR WITH COST
THROUGH OUT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7216 of 2009
JUDGMENT
The present second appeal by the defendant assailing the judgment and decree dated 15.07.2009 in R.A. No.117/2006 on the file of the Principal District Judge, Bidar reversing the judgment and decree dated 18.09.2006 in O.S.No.149/1994 on the file of the Additional Civil Judge (Senior Division), Bidar.
2. This Court while admitting the appeal has framed the following substantial question of law:
"(1) Whether the first appellate court was right in holding that Ex.D.1 is not a document, which was referred to in the written statement by the defendant and therefore, such a document which was produced in evidence could not be believed as Ladlibi had made an oral gift and hence, there could not have been made an oral gift accompanied with Ex.D1?
(2) Whether the first appellate court was right in decreeing the plaintiffs suit although under Ex.D1 the original owner of the suit schedule property Ladlibi had gifted the property to the husband of plaintiff No.1 and to the defendant in equal share and they had also signed Ex.D1 by accepting the said gift?"-4-
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3. Learned counsel for the appellant and learned counsel for the respondents have been heard on the substantial questions of law framed by this Court.
4. Learned counsel for the appellant would contend that the First Appellate Court has held that the memorandum of gift at Ex.D.1, which is admittedly between the Mohammedans, requires registration under Section 17 of the Indian Registration Act and in the absence of any registration, the gift leads to a doubt of the genuineness of the document is unsustainable. Learned counsel would contend that the entire approach of the first appellate Court in appreciating the document is contrary to Section 138 of Mulla's Principles of Mohammedan Law.
5. Per contra, learned counsel appearing for the respondent would justify the judgment and decree of the First Appellate Court and would contend that the First Appellate Court has rightly decreed the suit of the plaintiffs, declared that the plaintiffs are the owners of the suit schedule property and the defendant has been -5- NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 restrained from interfering with the peaceful possession and enjoyment of the suit schedule property and would contend that the substantial questions of law need to be answered against the appellants.
6. The facts of the case are that, the suit for declaration to declare that the plaintiffs are the joint owners and in joint possession of the suit schedule property. It is the case of the plaintiffs that the suit schedule property belonged to one Ladlibi, she died issueless. After the death of Ladlibi, her sister-Shahzadibi and her brother-Shaik Mahboob were the joint owners in joint possession of the suit schedule property. On death of Shaik Mahboob, his wife Qayumbi were the joint owner along with Shahzadibi. It is further averred that Shahzadibi and Qayumbi orally gifted the suit houses in February, 1967 in favour of the husband of plaintiff No.1- Zaheeruddin and the same was accepted, and on the date of the oral gift, the husband of plaintiff No.1 and plaintiffs were residing in the suit schedule property. It is stated -6- NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 that Shahzadibi and Qayumbi filed affidavits before the Municipal authorities stating that they have no objection to mutate the name of the husband of plaintiff No.1- Zaheeruddin and accordingly, the name of Zaheeruddin was mutated in the revenue records. Since the defendant denied the right of the plaintiffs, the present suit was filed.
7. The suit was resisted by the defendant, inter alia, contending that Ladlibi was the absolute owner of the suit schedule property, Ladlibi was looked after by the father of the defendant and with the consent of the father of defendant, in the year 1965, Ladlibi gifted the suit schedule property in favour of the defendant and his elder brother Md. Zaheeruddin, mutation was effected in the name of Md. Zaheeruddin, since the defendant was a minor and further contended that Shahzadibi and Qayumbi have no right in the suit schedule property. The defendant contended that the gift has been executed both in favour of the defendant and his elder brother Md. Zaheeruddin and that Zaheeruddin's legal representatives cannot claim -7- NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 to be the absolute owners of the suit schedule property merely on the basis of the mutation entry, which has been effected in the name of Zaheeruddin.
8. The Trial Court on basis of the pleadings, framed the following issues:
"1. Whether the plaintiffs proves that after the death of Ladleebi, her sister Shazedi Bee and her brother Shaik Mehboob became the joint owners and joint possessors of the suit houses?
2. Whether the plaintiffs prove that after the death of Shaik Mahboob, his wife Quyalm Bee and Shazadi Bee became the joint owners and joint possessors of the suit houses?
3. Whether the plaintiffs proves that Shazadi Bee and Quyambee orally gifted the suit houses in February, 1967 and same was accepted by late Zaheeruddin, husband of plaintiff No.1 and father of plaintiffs No.2 to 8?
4. Whether the plaintiffs proves that in view of the said gift, late Zaheeruddin became the owner and possessor of the suit houses from February, 1967?
5. Whether the plaintiffs p[roves that after the death of Zaheeruddin, plaintiff No.1 to 8 being his -8- NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 legal heirs became the joint owners and possessors of the suit houses?
6. Whether the defendant proves that, the plaintiff No.1 has no legal right to file the suit as guardian for minor plaintiffs Nos.5 to 8?
7. Whether the defendant proves that in the year 1965 late Ladliji orally has gifted the suit houses in his favour and in favour of his late brother Mohd.Zaheeruddin and gift on his behalf was accepted by his father as he was minor at that time?
8. Whether the defendant proves that he is also in possession of the suit houses?
9. Whether the defendant proves that this Court has no jurisdiction to try the suit?
10. Whether the plaintiffs are entitled to the relief of declaration and injunction sought for?"
9. The plaintiffs in order to substantiate their claim, plaintiff No.1 examined himself as P.W.1 and two witnesses as P.W.2 and P.W.3 and got marked documents at Exs.P.1 to P.18 and Defendant No.1 examined himself as D.W.1 and one witness as D.W.2 and got marked documents at Exs.D.1 to D.4.
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10. The Trial Court on the basis of the pleadings, evidence and material on record held that:
a) The plaintiffs failed to prove that on the death of Ladlibi, her sister Shazedibi and her brother Shaik Mehboob became the absolute owners and joint possessors of the suit schedule property.
b) The plaintiffs failed to prove that Shazadibi and Qayumbi orally gifted the suit schedule property in February, 1967 and the same has been accepted by Zaheeruddin, the husband of plaintiff No.1 and father of plaintiff Nos.2 to 8.
c) That defendant proved that in the year 1965 late Ladlibi orally gifted the suit schedule property in favour of his brother and himself and since the defendant was a minor at that point of time, the gift was accepted by his father.
And by judgment and decree, the Trial Court dismissed the suit of the plaintiffs.
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11. Aggrieved by which, the plaintiffs preferred the first appeal before the First Appellate Court. The First Appellate Court, held that Ex.D.1-Memorandum of Gift requires registration under Section 17 of the Indian Registration Act, disbelieved the memorandum of gift and arrived at a conclusion that the plaintiffs are entitled for decree by holding that the plaintiffs are absolute owners of the suit schedule property and granted permanent injunction. Aggrieved by the reversal by the first appellate Court, the present second appeal by the defendant.
12. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record
13. The facts reveal that the suit schedule property was in the ownership of Ladlibi. It is also not in dispute that the father of defendant was taken care of by Ladlibi. It is the contention of the plaintiffs that on the death of Ladlibi, Shahzadibi and Shaik Mahboob became the
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 absolute owners of the suit schedule property and on the death of Shaik Mahboob, his wife Qayumbi came into possession of the suit schedule property and Qayumbi and Shahzadibi executed an oral gift in favour of the husband of plaintiff No.1-Zaheeruddin in February 1967. On the other hand, it is the contention of the defendant that Ladlibi orally gifted the suit schedule property in favour of Zaheeruddin and defendant, pursuant to which, a memorandum of gift deed was executed on 12.06.1965. The fact remains that the parties herein are Mahommedans, the Section that applies to the present facts is 138 of Mulla's Principles of Mahomedan Law and Section 138 of Chapter XI of Mahomedan Law reads as under:
"138. Hiba or gift.--A hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter.
Whether a document is a gift deed or a will, can be gathered from the recitals in the document. Even the title given to it is not conclusive of its true nature. Therefore, the terms, conditions and recitals alone
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 determine the nature of the disposition. They are to be taken as a whole. Where the disposition of the right, title and interest accrues in praesenti it cannot be treated as a will because in a will the disposition is carried into effect after the death of the maker. When once it is clear from the recitals that the ownership has been transferred in praesenti absolutely it is a gift and any condition imposed on the enjoyment of the property is invalid. The gift must be accepted and completed by such delivery of possession as the nature of the property admits (a).
Hedaya, 482; Baillie, 515. See Transfer of Property Act, 1882, sec. 122, and also sec. 129."
14. As envisaged, the "Gift" or "Hiba" literally means the giving away of such a thing from which the person in whose favour the gift is made may draw benefit. The definition of Hiba or Gift has been given in Kanz al Daquiq in the following words:
"Hiba is the making of another person owner of the corpus of property without taking its consideration from him."
15. Thus, gift or hiba is the transfer of movable or immovable property with immediate effect and without
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 consideration by one person called the donor to another person called the donee and the acceptance of the same by one himself or by someone authorized on his behalf, provided that making the gift must totally renounce all his title and rights in the property gifted away of his independent free will.
16. Section 122 of the Transfer of Property Act defines 'Gift' as under:
"122. "Gift" defined.--"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void."
17. The essential ingredients of a gift is a transfer of an immovable property made voluntarily and without consideration. Similarly, hiba or gift under Mohammedan Law is a transfer of property made immediately and
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 without any exchange by one person to another and accepted by or on behalf of the latter. Though Section 123 of the Transfer of Property Act, makes it mandatory that a gift must be effected by a registered instrument, by virtue of Section 129 of the Transfer of Property Act, Chapter- VII, which deals with the gifts under the Transfer of Property Act. However, the Transfer of Property Act does not affect any rule of Mohammedan Law. Therefore, hiba, the subject matter of whatever value need not be registered as required by Section 123 of the Transfer of Property Act. It can be oral, but the main criteria is, it should be adequately proved.
18. The Division Bench of this Court, in the case of Mr. Syed Basheer Malik and Another vs. Smt. Jameela Begum and Others1, has held at paragraph Nos.47 and 48 as under:
"47. Therefore the essential ingredients of a gift is a transfer of an immovable property made voluntarily and without consideration. Similarly, 1 2015 SCC OnLine Kar 8637
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 Hiba or Gift under Mohammedan Law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. Though Section 123 of the Transfer of Property Act, makes it mandatory that a gift must be effected by a registered instrument, by virtue of Section 129 of the Transfer of Property Act, Chapter VII which deals with gifts under the Transfer of Property Act, does not affect any rule of Mohammedan Law. Therefore, Hiba, the subject matter of whatever value need not be registered as required by Section 123. It can be oral, but it should be adequately proved.
48. The Apex Court in the case of Hafeza Bibi v. Shaikh Farid (Dead) By LRs, has clarified and has set at rest the ambiguity on application of Chapter VII to the Muslims. It is held that Section 129 of the Transfer of Property Act, preserves the rule of Mohammedan Law and excludes the applicability of Section 123 of the Transfer of Property Act to a gift of an immovable property by a Mohammedan. A gift without consideration of property or substance of a thing could be oral, it does not require registration once three conditions which are necessary to constitute a valid gift, namely, a declaration of 'gift' by Donor and acceptance of the gift, express or implied by or on behalf of the 'Donee' and delivery
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 of possession of the subject of the gift by Donor to Donee completes the gift."
18. Relying on the dictum of the Apex Court in the case of Hafeeza Bibi vs. Shaikh Farid (Dead) by L.Rs.2 the Division Bench of this Court has taken a view that Section 129 of the Transfer of Property Act, preserves the rule of Mohammedan Law and excludes the applicability of Section 123 of the Transfer of Property Act to a gift of an immovable property by a Mohammedan. A gift without consideration of property or substance of a thing could be oral, it does not require registration, once the three conditions which are necessary to constitute a valid gift, namely, a declaration of gift by donor, acceptance of the gift and express or implied by or on behalf of the donee and a delivery of possession of the subject property by donor to donee completes the gift.
19. Returning to the present facts and circumstances, Ladlibi, along with the father of the 2 AIR 2011 SC 1695
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 defendant and Zaheeruddin, were residing in the suit schedule property. The defendant, as on the date of execution of the oral gift by Ladlibi, was a minor and was represented by his guardian. The plaintiffs' contention that on the death of Ladlibi, who was the owner of the property, her sister and her brother became the absolute owner of the suit schedule property and they gifted the suit schedule property to the husband of plaintiff No.1. There are no materials showing in what capacity the sister and the brother had acquired the right of the suit schedule property when the plaintiffs themselves admit that the father of the defendant and Zaheeruddin had been looked after by Ladlibi. Ex.D.1-memorandum of gift deed said to have been executed by Ladlibi in the year 1965 in favour of the defendant as well as the husband of plaintiff No.1- Zaheeruddin. Ex.D.1(a)-translated copy of Ex.D.1- Memorandum of Gift dated 12.06.1965, perusal of the contents of the gift deed evidences that the property has been gifted equally to the two sons of Hasanuddin i.e., Zaheeruddin and Afsaruddin-defendant. The contents
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 reveal that after the oral gift, both the children of Hasanuddin are in possession of the same as owner under the care and protection of their parents. It also evidences that Ladlibi has executed this oral gift by executing Ex.D.1-memoranudm of gift. The document was signed by the guardian Hasnuddin, who is father of defendant since he was a minor at that time of execution of the document. The essential ingredients of the gift is that, there should be a declaration, express or implied by or on behalf of the donee and delivery of possession of the subject of the gift by donor to donee, then the gift completes.
20. The oral gift has been executed during the life time of Ladlibi, is evidenced as per Ex.D.1. The donee Zaheeruddin and the father of the defendant have accepted the gift and delivery of possession, since they have already been residing in the suit schedule property. Affidavit was filed by Hasnuddin, the father of defendant before the Court in O.S.No.149/1994 about the execution of the gift by Ladlibi. There were two other affidavits in
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 O.S.No.149/1994 filed by Qamru Bee wife of Md. Hasnuddin and Md. Zahed Ali Qayumbi about the execution of the oral gift in favour of Mohammed Zaheeruddin and the defendant.
21. The First Appellate Court held that Ex.D.1-gift deed is a document which requires registration under Section 17 of the Indian Registration Act. The First Appellate Court not only held that Ex.D.1 does require registration, but also went to the extent of holding that the document is a tampered document, since the actual date of issuance of the stamp paper is not forthcoming on the document.
22. It is settled proposition of law that, merely because the gift is reduced to writing by a Mohammadan instead of being made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by a Mohammadan orally, its nature and character would not change, because it has been made as a written document. What is important for a valid
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 gift under Mohammedan Law is that, three essential requisites must be fulfilled. The form in which it is made is immaterial, and if all the three essential requisites are satisfied constituting a valid gift, the transaction of the gift would not be rendered invalid only because it has been written on a plain piece of paper or even on the stamp paper as held by the Apex Court. The Apex Court in the case of Hafeeza Bibi and Others Vs. Shaikh Farid (Dead) by LRs. and others3 at paragraph Nos.27 to 29 has held as under:
"27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid 3 (2011) 5 SCC 654
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.
28. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohd. Abdul Ghani stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.
29. Section 129 of the T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edn.), p. 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts."
23. The gift deed which has been executed by way of a document by the deceased Ladlibi is just a piece of evidence to prove the contention of the defendant that there was an oral gift in favour of the defendant and his brother Zaheeruddin. The First Appellate Court, on the assumption that the said document requires registration, has come to the conclusion that Ex.D.1 cannot be relied to hold that there was a gift in favour of the defendant. The substantial questions of law framed by this Court needs to be answered holding that Ex.D.1 is not a document of title, but a piece of evidence, and the gift deed or hiba does not require registration since Section 129 of the Transfer of Property Act preserves the rules of Mohammedan law and excludes the applicability of Section 123 of the Transfer of Property Act, a gift of immovable property by Mohammedan. The essential ingredient of a
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 valid gift has been proved by the defendant by placing the oral and documentary evidence.
24. The Apex Court in the case of Rasheeda Khatoon (Dead) Through Legal Representatives Vs. Ashiq Ali, S/o Lieutenant Abu Mohd. (Dead) Through Legal Representatives4 has considered the ingredients essential for proving an oral gift of an immovable property under the Mohammedan Law and the validity thereof and at paragraph No.17, 20, 22 and 23 has held as under:
"17. From the aforesaid discussion of the propositions of law it is discernible that a gift under the Muhammadan law can be an oral gift and need not be registered; that a written 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 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 4 (2014) 10 SCC 459
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 deed, it does not warrant registration under Section 17 of the Registration Act.
x x x
20. The real thrust of the matter, as we perceive, is whether the essential ingredients of the gift as is understood in the Muhammadan law have been satisfied. To elaborate, 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, but, a significant one, that gift must fulfill the three essential conditions so that it may be termed as a valid gift under the Muhammadan Law.
x x x
22. In this backdrop we proceed to scan the gift deed. On a perusal of the gift deed it is manifest that Abdul Haq had declared therein that he had always been the owner-in-possession and the entire house was in his exclusive ownership and possession and free from all encumbrances. Thus, the said recital belies the case of the plaintiff that there was an oral gift seven years prior to filing of the suit, that is, sometime in the year 1968. The learned trial Jude as well as the appellate court has brushed aside the said aspect by stating that it has not affected the stand of the plaintiff inasmuch as some witnesses have deposed about the gift having been made in 1968. As the deed would show the
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 executant had stated that he had executed a Will earlier in favour of Rasheeda. That apart, such a fact, had it been true would have definitely formed a part of the written instrument. Omission of such a fact, in our view, defies common sense. The conclusion that the gift deed dated 9-10-1970 evidences such a gift, is absolutely unacceptable. Be that as it may, the issue is whether the document and the concomitant factors establish factum of gift made by the donor. As stated earlier, if the essential features are met with no registration is necessary. On a perusal of the deed of gift and the evidence brought on record it is demonstrable that Abdul Haq remained in the premises in question. He did not part with physical possession. The case of the plaintiff is that she resided with Abdul Haq and, therefore, the principle of donor getting fully divested or handing over of physical possession is not attracted. Though, such a finding has been recorded, we find it wholly contrary to the evidence on record. The plaintiff was staying with her husband. The family register and voters list, Exhibit 122 to 124 C indicate that Rasheeda Khatoon was residing in her house with her husband. Though the gift deed mentions that she was entitled to get her name mutated in respect of the premises, yet it was not done. On the analysis of evidence in the backdrop of the deed, it is extremely difficult to hold
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 that she was residing with Abdul Haq in the premises in question. The first two courts have based their conclusions on conjecture and inferences. The High Court, as we notice, has not dwelled upon this aspect and has only negatived the finding of the courts below that the document did not evidence an oral gift. Thus scrutinized there remains no shadow of doubt that she was not in actual physical possession.
23. We have already stated, actual physical possession may not be always necessary if there is constructive possession of the donee. In this context we may reproduce Section 152, sub-Section (3) of Mulla's Principles of Muhomedan Law:
"No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. 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 divert himself of all control over the subject of the gift."
25. The Apex Court held that the gift under Mohammedan Law can be an oral gift and need not be registered and the written instrument, under all
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 circumstances require registration, to be a valid gift under the Mohammedan law the three conditions have to be fulfilled. The Apex Court held that, solely because the writing is contemporaneous of making of the gift deed, it does not warrant registration under Section 17 of the Registration Act. The Apex Court further held that the actual physical possession need not always be necessary, if there is constructive possession of the donee.
26. In light of the reasons and the dictum of the Apex Court stated supra and the facts and circumstances of the case the defendants having established the essential ingredients of the valid gift as is understood in Mohammedan law, the First Appellate Court was not justified in reversing the judgment and decree of the Trial Court. Accordingly, the substantial questions of law is answered in favour of the appellants and this Court pass the following:
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NC: 2023:KHC-K:7242 RSA No. 7216 of 2009 ORDER i. The Regular Second Appeal filed by the defendants is allowed.
ii. The judgment and decree of the First Appellate Court is set aside.
iii. The suit of the plaintiff is hereby dismissed.
iv. The plaintiffs and defendants are the joint owners in joint possession of the suit schedule property.
Sd/-
JUDGE MBM List No.: 1 Sl No.: 51