Mohammedan Law| Possession If Capable Of Being Delivered Shall Be Parted With By Donor To Donee For A Valid Gift- Kerala HC
The Kerala High Court while dealing with an appeal under Section 100 CPC challenging the order of the Appellate Court has upheld the findings of the Appellate Court that without proper possession of property from donor to donee, the gift deed will not be valid under Mohammedan Law.
The Bench headed by Justice P.G. Ajithkumar said that “The law emerges from the decisions referred to above is that, possession of the whole of the property, if capable of being delivered, shall be parted with by the donor in favour of the donee for the gift to be valid. The appellant was allowed to enjoy half a cent alone from the total of 3 cents of the plaint schedule property. He was allowed to pay tax for the entire property.”
Further, the Court added that “It is true, the right of enjoyment cannot be treated synonymous to the possession of an immovable property. But on a conjoint reading of the whole of the recitals in Ext.A1 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.”
Advocate K.R. Avinash appeared for the Appellant while Advocate V.G. Arun appeared for the Respondent.
A Gift Deed was executed between the Appellant and his father whereby the possession was handed over to the Appellant as claimed. The Father of the Appellant continued to take usufructs from the property. The Gift Deed was challenged by the sisters and sister-in-law of the Appellant. The Additional Munsiff-II, Neyyattinkara held that the gift deed was valid and ordered in favor of the Appellant.
The Respondents appealed before the first Appellate Court wherein it was held that while usufructs are permissible under Mohammedan Law, there was no valid possession for the gift deed to be validated. The Appellant approached the High Court under Section 100, CPC, challenging the decision of the Appellate Court which invalidated the gift deed.
The High Court while examining the provisions of a valid gift deed under Muslim Law, and considering the facts and circumstances of the case said that “It is not stated in Ext.A1 that possession of remaining 2½ cents was handed over to the appellant. It is true, the right of enjoyment cannot be treated synonymous to the possession of an immovable property. But on a conjoint reading of the whole of the recitals in Ext.A1 does not enable to find or infer that possession of 2½ cents of property was delivered over to the appellant.”
Further, the Court said “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.”
Accordingly, the High Court dismissed the Appeal.
Cause Title: Abdul Jabbar v. Khadeeja Beevi and Ors.
