'Gift' Under Mohammedan Law Not Valid In Absence Of Delivery Of Possession To Donee: Kerala High Court

The Kerala High Court recently declared as invalid a gift deed under Mohammedan law where the donee was only allowed to enjoy half a cent from a total of 3 cents of the schedule property, and there was no positive assertion by the donor that possession of the rest of the property is handed over to the donee.

Justice P.G. Ajithkumar observed:

"...on a conjoint reading of the whole of the recitals in Ext.A1 (gift deed) does not enable to find or infer that possession of 2½ cents of property was delivered over to the appellant. Such a recital is totally lacking in Ext.A1, whereas, there is a positive assertion that the donor would continue to enjoy the property. From the above the possible deduction is that, the donor did not intend to hand over the possession of 2½ cents of property to the donee immediately". 

One Mohammed Kannu had executed a gift deed in favour of his son, the appellant. The appellant averred that he had accepted the same and taken over possession of the property. The appellant further claimed that he effected mutation and paid tax. While so, it is noted that his father executed a cancellation deed. The appellant subsequently instituted a suit for declaration of his title and injunction alleging that his possession was tried to be interfered with by the respondents, who are his sister-in-law and sisters. 

It is the case of the respondents that the gift deed did not come into effect for want of delivery of the property by the appellant's father, the donor. The respondents claimed that it had been stipulated in the deed that the donor retained possession of 2½ cents, out of the total 3 cents and also retained right of enjoyment of whole of the property, thereby indicating that the gift was not a valid one. The trial court held the gift to be a valid one.

The First Appellate Court however held that possession of of 2½ cents of the property was not delivered over to the appellant in terms of the gift deed, and the right to take usufructs was also retained by the donor, and that the same thus remained as an unenforced gift. It therefore held that a valid gift was not constituted as per the deed.

It is against the same that the present second appeal was preferred raising the substantial question of law, as to whether the finding of the courts below that the donor did not part with possession is sustainable and if so, whether the gift deed would not be valid. 

It was contended by Advocates K.R. Avinash and Abdul Raoof Pallipath that other than the right to take usufructs, nothing had been retained by the donor and the view taken by the First Appellate Court was thus inconsistent with the true intendment of the recitals in the gift deed. The counsels argued that the all the ingredients for constituting a valid gift as per Mohammedan Law had been fulfilled in the present case.

This was however refuted by Advocates V.G. Arun, Indulekha Joseph and Neeraj Narayan appearing on behalf of the respondents, who argued that the transaction was short of delivery of the possession, dehors the property being a deliverable one, and therefore was not a valid Mohammedan gift.

The Court at the outset perused Sections 148 (Relinquishment by donor of ownership and dominion) and 149 (The three essentials of a gift) as stipulated in Mohammedan law. It noted that for a valid gift, there would have to be declaration of the gift by the donor; acceptance of the gift by the donee expressly or impliedly; and delivery of possession either actually or constructively to the donee. 

The Court noted that the only question was as to whether the third requirement of delivery of possession of the property to the donee was satisfied in the present case. A perusal of the recitals of the gift deed by the Court revealed that the donor reserved the right of enjoyment of the property with him during his lifetime. The Court relied upon several precedents to hold that the reservation of the right to take usufructs by the donor during his lifetime would not invalidate the gift. 

However, as regards the delivery of possession of the property, the Court took the view that the donor did not intend to hand over the possession of 2½ cents of property to the donee immediately. 

"There did not surface any other evidence to substantiate that the appellant got possession of the property, when he shied away from mounting the box and give oral evidence. That leads to the irresistible conclusion that Ext.A1 did not create a valid gift in favour of the appellant," the Court held.

The appeal was thus dismissed. 

Case Title: Abdul Jabbar v. Khadeeja Beevi & Ors. 

Citation: 2023 LiveLaw (Ker) 318 

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