From Live Law
Supreme Court on Monday, has held a gift of immovable property which was executed 4 decades ago valid setting aside the concurrent findings of High Court and the Trial Court. Apex Court bench comprising of Justices Anil R. Dave and Adarsh Kumar Goel in Khursida Begum (D) by LRS vs. Komammad Farooq (D) by LRS also observed that Requirement of possession is met when right to collect rent is assigned under the Gift deed.
The High Court had upheld the Trial Court order dismissing the plaint, finding that, though the gift was genuinely executed, it was a gift of undivided share of property which was capable of division and thus invalid under Muslim Law being hiba-bil-musha.
It was also held that gift was of no effect as possession was not delivered to the donee.
Muslim Law on Gifts According Muslim Law, 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 title deed or by request to tenants to attorn to the donee or by mutation..
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.
Freehold property in commercial town
The Court observed that the property 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 shows that it is commercial property in the city of Jaipur which is the capital of the State of Rajasthan and is, thus, a large commercial town.
Requirement of possession is met when right to collect rent is assigned
On the question of Requirement of possession, the Court observed that, when right to collect rent has been assigned to the plaintiff under the gift deed itself, that requirement is satisfied. Finally, the Court decreed the suit holding that High Court and Trial Court were not justified in not giving effect to the gift which has been held to be genuine.