RASHEEDA KHATOON (D) THROUGH LRS.versusASHIQ ALI S/O LT. ABU MOHD (D) THROUGH LRS.

•                   (2014) 11 S.C.R. 31


       RASHEEDA KHATOON (D) THROUGH LRS.                          A
                              v.
    ASHIQ ALI S/O LT. ABU MOHD (D) THROUGH LRS.
           (Civil Appeal No. 603 of 2009 etc.)
                    OCTOBER 10, 2014
                                                                  B
       [DIPAK MISRA AND VIKRAMAJIT SEN, JJ.]

      Mohammedan Law - Oral gift (Hiba) - Validity of - Suit
for declaration as owner in possession - On the basis of oral
gift which was later mentioned in written gift (unregistered) - C
Held: To make a gift valid, there has to be actual or
constructive possession by the donee - The plaintiff did not
prove either actual or constructive possession - Hence, suit
not liable to be decreed.
                                                                  D
    Constitution of India, 1950 - Article 136 - Jurisdiction
under- Scope of- Interference with concurrent finding of facts
- Held: Is permissible if the conclusion on factual aspects are
manifestly perverse or unsupported by evidence on record.

     Words and Phrases - 'Possession' - Meaning of                E

     Dismissing the appeals, the Court

     HELD: 1. This Court in exercise of power under Article
136 of the Constitution can interfere with the concurrent         F
findings of fact, if the conclusions recorded on certain
factual aspects are manifestly perverse or unsupported by
the evidence on record. [Para 20] [47-A-B]

     2.1. A gift under the Mohammadan Law can be an
oral gift and need not be registered; that a written G
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
                               31                           H
A
    32      SUPREME COURT REPORTS              [2014] 11 S.C.R.


    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 deed, it does
    not warrant registration under Section 17 of the
B   Registration Act. [Para 16) [44-8-D]

         2.2. 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,
C   but, that gift must fulfill the three essential conditions so
    that it may be termed as a valid gift under the
    Muhammadan Law. [Para 19) [46-F-G]

        2.3. On a perusal of the deed of gift and the evidence
    brought on record it is demonstrable that the donor
D   remained in the premises in question. He did not part with
    physical possession. Therefore, the principle of donor
    getting fully divested or handing over of physical
    possession is not attracted. The donee was not in actual
    physical possession. [Para 21) [47-G; 48-A, DJ
E
       2.4. Actual physical possession may not be always
  necessary if there is constructive possession of the
  donee. The possession can be shown not only by
  enjoyment of the land or premises in question but also
  by asserting who has the actual control over the
F
  property. The evidence on record, clearly reveal that the
  donee was not in constructive possession. Therefore, '
  one of the elements of the valid gift has not been
  satisfied. As the plaintiff could not prove either' actual or
  constructive possession, the gift was not complete and
G hence, the issue of registration does not arise. [Para/
                                                            24)
  [49-8-C, E, F]                                      ·..

        Nasib Ali v. Wajid Ali AIR 1927 Cal 197; Kamarunnissa
    Bibi v. Hussaini Bibi (1880) 3 All 266; Karam llahi v.
H   Sharfuddin AIR 1916 All 351; Mahboob Sahab v. Syed Ismail
•    RASHEEDA KHATOON (D) THROUGH L~S. v. ASHIQ ALI
           S/O LT. ABU MOHD (D) THROUGH LRS.

    and Others (1995) 3 SCC 693: 1995 (2) SCR 975; Hafeeza
                                                             33


                                                                  A
    Bibi and Others v. Shaikh Farid (Dead) by LRS. and Others
    (2011) 5 SCC 654: 1995 (2) SCR 975; Mohd. Abdul Ghani
    v. Fakhr Jahan Begam (1921-22) 49 IA 195: AIR 1932 PC
    13; Assan Ravther v. Manahapara Charayil AIR 1972 Ker 27;
    Javeda Khatun v. Moksed Ali AIR 1973 Gauhati 105; Valia       B
    Peedikakkandi Katheessa Umma and others v. Pathakkalan
    Narayanath Kunhamu (deceased) and after him his legal
    representatives and others AIR 1964 SC 275: 1964 SCR
    549 ; Alame/u & Another v. State (2011) 2 SCC 385: 2011
    (2 ) SCR 147; Heinz India (P) Ltd. and Another v. State of    c
    U.P. and Others (2012) 5 SCC 443: 2012 (3 ) SCR 898 ;
    Vishwanath Agrawal s/o Sitaram Agrawal v. Sar/a Vishwanath
    Agrawal (2012) 7 SCC 288: 2012 (7) SCR 607 - relied on.

         Bishwanath Gosainv. Dulhin Lalmani AIR 1968 Pat 481;
    Boya Ganganna v. State of Andhra Pradesh AIR 1976 SC          D
    1541; Govt. of Hyderbad (Deptt. of Revenue) v. Tayyaba
    Begum AIR 1962 AP 199; Ghulam Ahmad Sofi v. Mohd.
    Sidiq Dareel AIR 1974 J&K 59; Chota Uddandu Sahib v.
    Masthan Bi AIR 1975 AP 271; Amirkhan v. Ghouse Khan
    (1985) 2 MLJ 136; Sunkesula Chinna Budde Saheb v. Raja        E
    Subbamma (1954) 2 MLJ 113 (AP) - referred to.

         Outlines of Muhammadan Law by Asaf A.A. Fyzee 5th
    Edn. (edited and revised by Tahit Mahmood) at P. 182;
    Principles of Mahomedan Law by Mui/a (19th Edn.) P.120 -      F
    referred to.

                        Case Law Reference:
        AIR 1968 Pat 481        referred to         Para 5
        AIR 1976 SC 1541        referred to         Para 5        G
        AIR 1927 Cal 197        relied on           Para 10
        (1880) 3 All 266        relied on           Para 10
        AIR 1916 All 351        relied on           Para 10
                                                                  H




                                                                      1
A
    34       SUPREME COURT REPORTS


         1995 (2) SCR 975         relied on
                                                 [2014] 11 S.C.R.


                                                         Para 11
                                                                       •
         1995 (2) SCR 975         relied on              Para 12
         AIR 1932 PC 13           relied on              Para 12
         AIR 1972 Ker 27          relied on              ~ara 12
B
         AIR 1973 Gauhati 105 relied on                  Para 12
         AIR 1962 AP 199          referred to            Para 15
         AIR 1974 J&K 59          referred to            Para 15
c        Bi AIR 1975 AP 271       referred to            Para 15
         (1985) 2 MLJ 136         referred to            Para 15
         (1954) 2 MLJ 113 (AP) referred to               Para 15

D        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 603
    of 2009.

        From the Judgment & Order dated 05.10.2004 in SA No.
    626 of 1980 of the High Court of Judicature at Allahabad,
    Lucknow Bench.
E
                                   WITH

    C.A. No. 564 of 2009.

      Syed Ali Ahmad, Syed Tanweer Ahmad, S.S.
F Bandyopadhya, Praveen Kumar, Mohan Pandey for the
  Appellants.

         Shakli Ahmed Syed for the Respondents.

G
         The Judgment of the Court was delivered by

       DIPAK MISRA, J. 1. Rasheeda Khatoon, the
  predecessor-in-interest of present appellants, instituted regular
  suit No. 31 of 1975 in the Court of Civil Judge, Faizabad,
  seeking recovery of possession from the original defendants.
H The case of original plaintiff before the trial Court was that one
•    RASHEEDA KHATOON (D) THROUGH LRS. v. ASHIQ ALI                 35
    S/O LT. ABU MOHD (D) THROUGH LRS. [DIPAK MISRA, J.]

    Abdul Haq was the owner of the house No. 2868 situated in             A
    Mohalla Hayat Ganj in Tanda, District Faizabad. The only son
    of Abdul Haq had shifted to Pakistan at the time of Partition
    and there was no one to look after him. The father of Rasheeda
    Khatoon, Hazi Madari, was a close friend of Abdul Haq, and
    being a neighbour, she was looking after him for last 20 years        B
    till 24.01.1972 when he breathed his last at the ripe age of
    ninety. Regard being had to various aspects and fruther being
    pleased with her services, 7 years prior to the institution of the
    suit he made an oral gift of the suit house in her favour which
    was accepted by her and possession of the house was also              C
    handed over. Pursuant to the oral gift she lived in the premises
    in question and looked after him. The tenants who had been
    staying in the southern portion of the house, accepted her status
    and started paying rent to her. Prior to a year of his death being
    apprehensive that some others might disturb in her possession,
                                                                          0
    he executed a deed of gift in writing evidencing the oral gift
    made earlier in favour of the plaintiff. As pleaded, within one
    month from the death of Abdul Haq, the defendants dishonestly
    moved an application under Section 145 CrPC before the SOM,
    Tanda with an intention to evict the plaintiff and in the said
    proceeding the property in question was attached, and all these       E
    "circumstances constrained the plaintiff to file the civil suit for
    declaration that she was the owner in possession of the house
     in question. During the pendency of the suit, as alleged, the
     defendants took over possession in pursuance of the release
     order passed by the SDM on 12.4.1975 and thereafter the              F
     plaintiff amended the plaint and sought the relief of recovery of
     possession.

         2. The defendants entered contest and took various pleas
    to the effect that the suit was under-valued and the court fee        G
    that was paid was not sufficient; that Abdul Haq was in
    possession of the house till his death and never parted
    possession; that there was no oral gift as asserted by the
    plaintiff; that Khairulnisha, Kamrulnisha alias Kumul and
                                                                          H
    36       SUPREME COURT REPORTS                  [2014] 11 S.C.R. •


A Janharulnisha were the daughters of Abdul Haq; that
  Khairulnisha died during the life time of Abdul Haq and her sons
  Mohd. Ayub, Moyuddin, Mohd. Yasin, Sagir Ahmad and Bashir
  Ahmad were alive; that the defendant No.1 is the son of
  Jauharulnisha; that Abdul Haq died leaving behind
B Kamarulnisha, Jauharulnisha and sons of Khair1Jlnisha as his
  legal heirs and they had become the owners; that during life
  time Abdul Haq had given certain properties to the son of the
  defendant No.2; and that after the death of Abdul Haq defendant
  No.2 had constructed a shop with the permission of the
C defendant No.1 on the condition that the shop shall be let-out
  to him. It was also asseverated that Jauhirulnissa had executed
  a sale deed on 8.3.1972 and Usman and Rauf executed a sale
  deed on 31.3.1972 in respect of the suit house in favour of the
  defendant Nos. 2 and 3 and since then the defendants no.2
  and 3 had become the owners in possession; that the
D proceeding initiated under Section 145, CrPC was eventually
  decided in favour of the defendants; and that the plaintiff had
  no right, title and interest over the suit house; and that the
  defendants are the owners in possession of the suit property.

E       3. On the basis of the aforesaid pleadings, the learned trial
    Judge framed the following issues:-

         "1. Whether plaintiff is owner of the disputed house as
         claimed in plaint?

F        2. Whether defendant Nos. 1 to 3 are the owners of the
         disputed house as claimed in their Written statement?

         3. Whether there has been an oral gift and subsequent
         writing evidencing this gift in favour of the plaintiff by Abdul
         Haq on 9.10.1970 as alleged in the plaint?

         4. Whether suit is under-valued and deficient in suit fees?

         5. Whether suit is not maintainable, as alleged in para no.
         29 of the W.S.?
H
•RASHEEDA KHATOON (D) THROUGH LRS. v. ASHIQ ALI
S/O LT. ABU MOHD (D) THROUGH LRS. [DIPAK MISRA, J.]
    6. Whether suit is barred by Section 34 of Specific Relief A
                                                                  37



    Act?

    7. To what relief, if any, is the plaintiff entitled in the case?"

     4. The learned trial Judge on appreciation of the evidence
brought on record came to hold that the plaintiff had proved the B
oral gift executed by Abdul Haq in her favour; that the gift deed
did not require registration; that the deed of gift could not be
ignored solely because it was not registered when it had
demonstrably been established by the oral and documentary
evidence that Abdul Haq had made a gift in favour of the plaintiff C
and had put her in possession; and that she was the owner of
the suit premises and entitled to get back possession. Being
of the said view, the trial court decreed the suit.

      5. Being dissatisfied with the said judgment and decree, 0
the defendants preferred Civil Appeal No. 435 of 1978 and the
first appellate court concurring with the view of the trial court
as regards the character and the nature of instrument, that it is
an oral gift, based its conclusions on the premises that the
contents of the document showed that the 'Hiba' had already E
been accepted by Rashida Kahtoon before the deed was
executed; that the document was only an evidence of the oral
gift which had been made earlier by Abdul Haq in favour of the
plaintiff; that the stand of the defendants-appellants that the
document could not be read in evidence because it was not
registered was bereft of any substance in view of the language F
employed in Section 129 of the Transfer of Property Act (for
brevity 'the Act') which lays down that Section 123 of the Act
which mandates registration in case of a gift of an immovable
property does not apply to any gift made under the
Muhammadan Law and a Muhammadan could make an oral G
gift of immovable property and if a Muhammadan prepares a
document relating to gift such deed of gift continues to be an
evidence of gift. To arrive at the aforesaid conclusions the first
appellate court placed reliance upon the authorities in Karam
                                                                   H
        38         SUPREME COURT REPORTS                 [2014) 11 S.C.R.       ~
A       llahi v. Sharfuddin', Nasib Ali v. Wajid Atr2 , Bishwanath
        Gosain v. Dufhin La/mani' and Boya Ganganna v. State of
        Andhra Pradesh•.

                6. The aforesaid Judgment and decree passed by the first
    .   appellate court was assailed in second appeal and the learned
8
        Single Judge taking note of the substantial question of law
        opined that the core issue was whether the document in
        question is a deed of gift or it evidences the oral gift. The
        learned Single Judge was of the view that if it was accepted
        as an evidence of the oral gift it did not require registration and
c       if it is interpreted otherwise, it required registration. He referred
        to certain provisions of the Act and Section 17 of the
        Registration Act and, thereafter., scrutinized the contents of the
        instrument in question and came to hold that the document in
        question makes it clear that up to the date of execution of gift
D       deed no gift was made; that the executant of the deed was in
        possession of the house; that the deed transferred the property
        in favour of Rasheeda Khatoon in praesenti; and that it is clear
        from the language employed in the gift deed that the executant
        had not delivered possession to the donee. Being of this view,
E       he came to hold that both the courts below had misread the
        deed dated 9.10.1970 executed by Abdul Haq and treated it
        to be an oral gift though it was a document under which transfer
        was made and, therefore, it was compulsorily registrable and
        accordingly, allowed the appeal. Hence, the present appeal by
F       special leave.           ·

             7. We have heard Mr. Fakhruddin, learned senior counsel
        for the appeliant and Mr. A. G. Chaudhary, learned senior
        counsel for the respondents.

G             8. The gravamen of the controversy as is demonstrable

        1.   AIR1916All351.
        2.   AIR 1927 Cal 197.
        3.   AIR 1968 Pat 481.
H       4.   AIR 1976 SC 1541.
•    RASHEEDA KHATOON (D) THROUGH LRS. v. ASHIQ ALI
    S/O LT. ABU MOHD (D) THROUGH LRS. [DIPAK MISRA, J.]

    pertains to is the nature and character of the document
                                                                    39


                                                                          A
    executed by Abdul Haq in favour of Rasheeda Khatoon, the
    predecessor-in-interest of the appellants. Before we keenly
    scrutinize the document, we think it necessary to refer to certain
    authorities in the field that have dealt with the concept of oral
    gift in Muhammadan Law. In this context Sections 123 and 129          B
    of the Transfer of Property Act have to be taken note of. Section
    123 of the Act stipulates that for the purpose of making a gift
    of immovable property, the transfer must be effected by a
    registered instrument signed by or on behalf of the donor, and
    attested by at least two witnesses. Section 129 provides for          c
    savings of donations mortis causa and the gifts made under
    the Muhammadan Law. It is clear from the said provision that
    the Chapter relating to gifts including registration would not
    effect any rule of Muhammadan Law.

          9. In Karam l/ahi (supra) it has been held as follows:-         D

          "It is admitted that a Muhammadan may make an oral gift
          provided that possession follows. It seems to us quite clear
          that the provisions of Section 123 are inapplicable to gifts
          made by Muhammadans and valid according to their law.           El
          It is quite clear that the Legislature had in its mind the
          provisions of Section 123 when enacting Section 129.
          Section 123 is specifically referred to in Section 129. The
          deed of gift is admissible to prove that a gift was made."

          10. In Nasib Ali (supra) Suhrawardy, J. referred to             F
    Kamarunnissa Bibi v. Hussaini Bibi5 and Karam l/ahi
    (supra) and came to hold that the essentials of a gift under the
    Muhammadan Law are a declaration of 'hiba' by the donor, an
    acceptance, express or implied, of the gift by the donee, and
    delivery of possession of the property, the subject-matter of the     G
    gift, according to its nature. A simple gift can only be made by
    going through the above formalities and no written instrument
    is required. In fact no writing is necessary to validate a gift and

    5.   (1880) 3 All 266.                                                H
A
    40        SUPREME COURT REPORTS                   [2014) 11 S.C.R.


    if a gift is made by a written instrument without delivery of
                                                                              •
    possession, it is invalid, in law. Thereafter, the learned judge
    stated thus:- ~

          "The position under the Mohammadan Law is this: that a
B         gift in order to be valid must .be made in accordance with
          the forms stated above; and even if it is evidenced by
          writing, unless all the essential forms are observed, it is
          not valid according to law. That being so, a deed of gift
          executed by a Mohammadan is not the instrument
          effecting, creating or making the gift but a mere piece of
c         evidence. It may so happen after a lapse of time that the
          eyidence of the observance of the above forms might not
          be forthcoming, so it is sometimes thought prudent to
          reduce the fact that a gift has been made into writing. Such
          writing is not a document of title but is a piece of E!Vidence."
D
       11. In Mahboob Sahab v. Syed Ismail and Others6 a
  two-Judge Bench referred to Section 147 of the Principles of
  Mahomedan Law by Mui/a wherein the essentials of valid gift
  under the Muhammadan Law have been elucidated and
E proceeded to explicate the principle. We think the reproduction
  of the relevant passage would be seemly:-

                 "Under Section 147 of the Principles of Mahomedan
          Law, by Mulla, 19th Edn., edited by Chief Justice M.
          Hidayatullah, envisages that writing is not essential to the
F
          validity of a gift either of moveable or of immovable
          property. Section 148 requires that it is essential to the
          validity cf a gift that the donor should divest himself
          completely of all ownership and dominion over the subject
          of the gift. Under Section 149, three essentials to the
G         validity of the gift should be, (i) a declaration of EJift by the
          donor, (ii) acceptance of the gift, express or implied, by
          or on behalf of the donee, and (iii) delivery of possession
          of the subject of the gift by the donor to the donee as

H 6.     (1995) 3 sec 693.
•    RASHEEDA KHATOON (D) THROUGH LRS. v. ASHIQ ALI 41
    S/O LT. ABU MOHD (D) THROUGH LRS. [DIPAK MISRA, J.]

          mentioned in Section 150. If these conditions are complied     A
          with, the gift is complete. Section 150 specifically
          mentions that for a valid gift there should be delivery of
          possession of the subject of the gift and taking of
          possession of the gift by the donee. actually or
          constructively. Then only the gift is complete. Section 152    B
          envisages that where the donor is in possession. a gift of
          immovable property of which the donor is in actual
          possession is not complete unless the donor physically
          departs from the premises with all his goods and chattels.
          and the donee formally enters into possession. It would,       c
          thus, be clear that though gift by a Mohammedan is not
          required to be in writing and consequently need not be
          registered under the Registration1 Act; for a gift to be
          complete, there should be a declaration of the gift by the
          donor; acceptance of the gift, expressed or implied, by or
                                                                         0
          on behalf of the donee, and delivery of possession of the
          property, the subject-matter of the gift by the donor to the
          donee. The donee should take delivery of the possession
          of that property either actually or constructively. On proof
          of these essential conditions, the gift becomes complete       E
          and valid. In case of immovable property in the possession
          of the donor, he should completely divest himself physically
          of the subject of the gift."

                                                 [Emphasis supplied)
                                                                         F
          12. Recently in Hafeeza Bibi and Others v. Shaikh Farid
    (Dead) by LRS. and Others7 a two-Judge Bench referred to
    the authority in Mohd. Abdul Ghani v. Fakhr Jahan Begam8
    wherein the Privy Council had made a reference to
    Muhammedan Law by Syed Ameer Ali and approved the                    G
    statement as regards the essential three conditions for a valid
    gift. Thereafter, the learned Judges referred to Nasib Ali


    7.   (2011i 5 sec 654.
    8.   (1921-22) 49 IA 195   AIR 1932 PC 13.                           H
A
    42         SUPREME COURT REPORTS


    (supra), Assan Ravther v. Manahapara Charayi/9 and
                                                         [2014] 11 S.C.R.
                                                                            •
    Javeda Khatun v. Moksed A/1" 0 and stated the position of law
    thus:-

                 "The position is well settled, which has been stated
          and.restated time and again, that the· three essentials of
B
          a gift under Mohammadan Law are: (1) declaration of the
          gift by the donor; (2) acceptance of the gift by the donee;
          and (3) delivery of possession. Though, the rules of
          Mohammadan Law do not make writing essential to the
          validity of a gift; an oral gift fulfilling all the three essentials
c         makes the gift complete and irrevocable. However, the
          donor may record the transaction of gift in writing."

        13. After so stating the court referred to Asaf A.A.Fyzee
    in Outlines of Muhammadan Law" and Mui/a, Principles
D   of Mahomedan Law12 and eventually ruled thus:-

          "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 a
E
          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
F         requisites are satisfied constituting a valid gift. the
          transaction of gift would not be rendered invalid 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
G

    9.   AIR 1972 Ker 27.
    10. AIR 1973 Gauhati 105.
    11. 5th Edn. (edited and revised by Tahit Mahmood) at P. 182.
H   12. (19th Edn.) P.120.
•    RASHEEDA KHATOON (D) THROUGH LRS. v. ASHIQ ALI 43
    S/O·LT. ABU MOHD (D) THROUGH LRS. [DIPAK MISRA, J.)

        but when the writing is contemporaneous with the making         A
        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."

                                                 [Emphasis added]       B

         14. For a clear understanding of the conception of the valid
    gift under the Muhammadan Law we think it apposite to
    reproduce the passage from Mu/la, Principles of
    Mahomedan Law that has been quoted and approved in C
    Hafeeza Bibi (supra):-

               "Under the Mahomedan law the three essential
        requisites to make a gift valid are: (1) declaration of the
        gift by the donor, (2) acceptance of the gift by the donee
        expressly or impliedly, and (3) delivery of possession to       D
        and taking possession thereof by the donee actually or
        constructively. No written document is required in such a
        case. Section 129 of the Transfer of Property Act excludes
        the rule of Mahomedan Law from the purview of Section
        123 which mandates that the gift of immovable property          E
        must be effected by a registered instrument as stated
        therein. But it cannot be taken as a sine qua non in all
        cases that whenever there is a writing about a Mahomedan
        gift of immovable property there must be registration
        thereof. Whether the writing requires registration or not       F
        depends on the facts and circumstances of each case."

        15. At this stage, it is condign to state that the two-Judge
    Bench ultimately has ruled that it is not the requirement in all
    cases where the gift deed is contemporaneous to the making
    of the gift then such deed must be registered under Section 17 G
    of the Registration Act, and each case would depend on its own
    facts. Be it stated, the Court did not approve the view expressed
    in Govt. of Hyderbad (Deptt. of Revenue) v. Tayyaba

                                                                        H
    44       SUPREME COURT REPORTS                  (2014) 11 S.C.R. •


A   Begum 13, Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel14 ,
    Chota Uddandu Sahib v. Masthan Bi 15 , Amirkhan v.
    Ghouse Khan 16 and Sunkesula Chinna Budde Saheb v.
    Raja Subbamma 17 •

          16. From the aforesaid discussion of the propositions of
B
    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
C   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 deed, it does not warrant registration under Section 17 of
D   the Registration Act.

          17. At this juncture, it is pertinent to refer to a three-Judge
    Bench decision in Valia Peedikakkandi Katheessa Umma
    and others v. Pathakkalan Narayanath Kunhamu
E   (deceased) and after him his legal representatives and
    others'" where the question arose whether a gift by a husband
    to his minor wife and accepted on her behalf by her mother is
    valid. Dealing with the concept of gift under Muhaimmadan Law
    the Court observed that:-
F        "... Muhammadan Law of gifts attaches great importance
         to possession or seisin of the property gifted (Kabz-ul-
         Kami) especially of imm_ovable property. The Hedaya says
         that seisin in the case of gifts is expressly ordained and

G   13. AIR 1962 AP 199.
    14. AIR 1974 J&K 59.
    15. AIR 1975 AP 271.
    16. (1985) 2 MLJ 136.
    17. (1954) 2 MLJ 113 (AP).
H   18. AIR 1964 SC 275.
•    RASHEEDA KHATOON (D) THROUGH LRS. v. ASHIQ ALI                 45
    S/O LT. ABU MOHD (D) THROUGH LRS. [DIPAK MISRA, J.]

        Baillie (Dig P.508) quoting from the lnayah refers to a           A
        Hadis of the Prophet-"a gift is not valid unless possessed."
        In the Hedaya it is stated - "Gifts are rendered valid by
        tender, acceptance and seisin" (p.482) and in the Vikayah
        "gifts are perfected by complete seisin" Macnaghten
        (202)."                                                           8
         After so stating the Court proceeded to lay down that it is
    only actual or constructive possession that completes the gift
    and registration does not cure the defect nor is a bare
    declaration in the deed that possession was given to a minor          C
    of any avail without the intervention of the guardian of the
    property unless the minor has reached the years of discretion.
    It has been further opined therein that if the property is with the
    donor he must divest from it and the donee must enter upon
    possession. However, to that rule there are certain exceptions
    which the Court took note of, stating thus:-                          D

        "Exceptions to these strict rules which are well recognized
        are gifts by the wife to the husband and by the father to
        his minor child (Macriaghten, page 51 principles 8 to 9).
        Later it was held that where the donor and donee reside           E
        together an overt act only is necessary and this rule applies
        between husband and wife. In Mahomed Sadiq Ali Khan
        v. Fakhr Jahan Begum, 59 Ind App 2: (AIR 1932 PC 13)
        it was held that even mutation of names is not necessary
        if the..deed d.eclares that possession is delivered and the       F
        deed is handed to the wife."

        We have referred to this decision only to highlight the
    principle that either there has to be actual delivery of
    possession from the donor or the do nee mus! be in constructive
    possession to make a gift valid under the Muhammadan Law.             G

        18. Presently, we shall deal with the factual score. Mr.
    Fakhruddin, learned senior counsel would submit'·lhat when
    concurrent findings were returned that the plaintiff was in
    possession on the date of execution of the gift deed as the           H
 A
     46        SUPREME COURT REPORTS                     [2014] 11 S.C.R.


     donee had started residing with the donor the High Court should
                                                                                  •
     not have dislodged the finding of possession solely on the
     ground that the gift deed was a contemporaneous document
     which required registration. Per contra, Mr. Chaudhary, learned
     senior counsel would submit that both the courts below had
· B committed serious illegality by coming to hold that an oral gift
     was made in favour of the plaintiff seven years p1"ior the date
    -of execution of gift deed and factum of the said document only
     evidenced the oral gift, though there is no mention of it in the
     deed itself. It is urged by him that by no stretch of examination
  c such a finding could have been recorded. As we notice, the trial
     court as well as the appellate court has returned a finding that
     there was an earlier oral gift by Abdul Haq in favour of the
      original plaintiff. The same is not reflectible from the document
     itself. That apart, there is nothing else on record to support the
  0  same.    The finding of the learned trial Judge as well as the
      appellate Judge is based on unwarranted inferences which are
      not supported by the evidence brought on record. While not
     accepting the said finding of the courts below we are also unable
     to accept the conclusion of the High Court that the document
  E being a contemporaneous document or document in praesenti
    . required registration.

           19. 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
 F   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.
 G
          20. The aforesaid being the position, we are obliged to
     scrutinize the deed of gift and the material brought on record.
     It has become necessitous in the instant case as the original
     and the first appellate court have recorded findings which are
 H   contrary to material brought on record and the High Court has
•    RASHEEDA KHATOON (D) THROUGH LRS. v. ASHIQ ALI 47
    S/O LT. ABU MOHD (D) THROUGH LRS. [DIPAK MISRA, J.]
    proceeded exclusively on the concept of a deed in praesenti. A
    Be it stated, this Court in exercise of power under Article 136
    of the Constitution can interfere with the concurrent findings of
    fact, if the conclusions recorded on certain factual aspects are
    manifestly perverse or unsupported by the evidence on record.
    It has been so held in Atametu ·& Another v. State19 , Heinz B
    India (P) Ltd. and Another v. State of U.P. and Others20 and
    Vishwanath Agrawal slo Sitaram Agrawal v. Sar/a
    Vishwanath Agrawa/2 1•

         21. In this backdrop we proceed to scan the gift deed. On
    a peru~al of the gift deed it is manifest that Abdul Haq had           C
    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      D
    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 executant had stated that he had               E
    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.           F
    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           G
    Haq remained in the premises in question. He did not part with

    19. c2011 l 2 sec 385.
    20. c2012) s sec 443.
    21. c2012i 7 sec 288.
                                                                           H
    48       SUPREME COURT REPORTS                 [2014] 11 S.C.R •


A  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 nol
   attracted. Though, such a finding has been recorded, we find
   it wholly contrary to the evidence on record. Jhe plaintiff was
B 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
c of evidence in the backdrop of the deed, it is extremely difficult
   to hold 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 n•egatived the
   finding of the courts below that the document did not evidence
0
   an oral gift. Thus scrutinized there remains no shadow of doubt
   that she was not in actual physical possession.

        22. We have already stated, actual physical possession
    may not be always necessary if there is constructive
E   possession of the donee. In this context we may reproduce
    Section 152, sub-Section(3) of Mu/la's Muhammadan Law:-

         "No physical departure or formal entry is necessary in the
         case of a gift of immovable property in which the donor
F        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."
G       23. Possession has been defined in Section 394 of the
    Muslim Law by Tyabji. It is thus:-

         "A person is said to be in possession of a thing, or of
         immovable property, when he is so placed with reference
H
•    RASHEEDA KHATOON (D) THROUGH LRS. v. ASHIQ ALI 49
    S/O LT. ABU MOHD (D) THROUGH LRS. [DIPAK MISRA, J.]

        to it that he can exercise exclusive control over it, for the
        purpose of deriving from it such benefit as it is capable
                                                                        A

        of rendering, or as is usually derived from it."

          24. From the aforesaid it is vivid that the possession can
    be shown not only by enjoyment of the land or premises in           8
    question but also by asserting who has the actual control over
    the property. Someone may be in apparent occupation of the
    premises, but the other would have control and gaining
    advantage of possession. In the case at hand plea of actual
    physical possession by Rasheeda Khatoon does not deserve
    acceptance. The existence of any overt act to show control
                                                                        c
    requires to be scrutinised. A plea was advanced by the plaintiff
    that she had been collecting rent from the tenants inducted by
    the donor, but no rent receipts have been filed. On the contrary
    certain rent receipts issued by the donor after the execution of
    the deed of gift have been brought on record. There is no proof     D
    that the land was mutated in her favour by the revenue
    authorities. She was also not in possession of the title deeds.
    Thus, the evidence on record, on a studied scrutiny, clearly
    reveal that Rasheeda Khatoon was not in constructive
    possession. Therefore, one of the elements of the valid gift has    E
    not been satisfied. That being the position there is no necessity
    to advert to the aspect whether the instrument in question
     required registration or not because there can be certain
     circumstances a deed in writing may require registration. In the
    case at hand, we conclusively hold that as the plaintiff could      F
     not prove either actual or constructive possession, the gift was
     not complete and hence, the issue of registration does not
     arise.

         25. In view of the aforesaid premises, we, though for
                                                                        G
    different reasons, affirm the judgment and decree of the High
    Court and dismiss the appeal as a consequence of which the
    suit of the plaintiff stands dismissed. There shall be no order
    as to costs.

                                                                        H
A
    50        SUPREME COURT REPORTS


    CIVIL APPEAL NO. 564 OF 2009
                                                  [2014] 11 S.C.R.
                                                                        •
         26. In view of the dismissal of Civil Appeal No. 603 of 2009
    the present appeal stands dismissed. There shall be no order
    as to costs.
B   Kalpana K. Tripathy                            Appeals dismissed.