TaxTMI 
TaxTMI 
2009 (3) TMI 596
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.... registered deed of gift in favour of Razak on or about 21.2.1973. The property gifted was a house. Adjoining thereby was a small patch of land which belonged to the State. The State had granted a temporary lease in favour of Haji Sk. Abdullah. It was being used for ingress to and egress from the said house. It is also not in dispute that he executed various documents in the year 1975 transferring his properties in favour of respondent No.1, his sons as also the sons of Razak, appellants herein. The recitals in the said deed of gift dated 21.2.1973 read as under: "Description - I, the donor purchased the schedule land from Sk. Abdul Azizi Ahmedi on 14.10.1958 by registered deed No. 11399 and since the date of purchase I have been possessing as owner thereof. Since I have become old, you the donee being my younger son, you along with your wife have been looking after me with utmost care and besides also you both are paying utmost regards to me and so, satisfied with you I decided to gift you the schedule land which is my self-acquired property and being in good health and mind, I am transferring the schedule land valued at rupees four thousand approximately to you by way of gi....
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.... the cause of action for filing the suit having arisen on 6.4.1977, the suit was instituted beyond the period of limitation as prescribed by Article 59 of the Schedule appended to the Limitation Act, 1963. It was furthermore held that as Razak had been collecting the house rent from the tenants for the suit lands in his own capacity and not as an agent of his father and also having regard to the order of mutation in his favour, the deed of gift dated 21.2.1973 was valid in law. 7. Respondent No. 1 preferred an appeal thereagainst. The High Court allowed the said appeal inter alia holding that as Razak had been realising rent from the tenants even prior to the date of death of his father and as there was no material brought on record to show that Haji Sk. Abdullah had divested himself of the title of the said property and Razak was in possession thereof. The High Court furthermore opined that the respondent No. 1 came to know of the fact of execution of the deed of gift in favour of Razak only in the year 1980. 8. Mr. R.K. Dash, learned Senior Counsel appearing on behalf of the appellants would submit that the High Court committed a manifest error in passing the ....
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....ke a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. 11. We may notice the definition of gift as contained in various text books: In Mulla's Principles of Mohammadan Law the `HIBA' is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of later. A.A. Faizee in his `Outlines of Mohammedan Law' defined `Gift' in the following terms: "A man may lawfully make a gift of his property to another during his lifetime, or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second a testamentary disposition. Mohammadan Law permits both kinds of transfers, but while a disposition inter-vivos is unfettered as to quantum, a testamentary disposition is limited to one-th....
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....ullic Abdool Guffoor vs. Muleka [ILR 1884 (10) Calcutta 1112] 13. Faiz Badruddin Tyabji in his `Muslim Law - The Personal Law of Muslims in India and Pakistan' states the law thus: "395. (1) The declaration and acceptance of a gift do not transfer the ownership of the subject of gift, until the donor transfers to the donee such seisin or possession as the subject of the gift permits, viz. until the donor (a) puts it within the power of the donee to take possession of the subject of gift, if he so chooses, or (b) does everything that, according to the nature of the property forming the subject of the gift, is necessary to be done for transferring ownership of the property, and rendering the gift complete and binding upon himself. (2) Imam Malik holds that the right to the subject of gift relates back to the time of the declaration." Transfer of possession under the Muslim Law is necessary for transferring complete ownership. The learned author states: "Transfer of possession in hiba is not merely a matter of form, nor something merely supplying evidence of the intention to make a gift. The necessity for the transfer of possession is expressly ....
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....d to continue to collect rent which having regard to the declaration made in the deed of gift must be held to be on his own behalf and not on behalf of the donor. 15. Constructive possession of the suit premises must be held to have been handed over by the donor as he had himself prayed for mutation of Razak's name in the revenue record. The High Court, in our opinion, misconstrued the order of the Revenue Authority. It having failed to take into consideration the import and purport of the donor's application before the Tahasildar committed a manifest error in holding that the order of mutation on that basis was not decisive. Respondent No.1 while examining himself as a witness (P.W.2) furthermore categorically admitted: "My father applied in that case for recording the lease hold land in favour of D.1. Despite my objection the D.1 was accepted as lessee in place of my father in 1976. Ext. D-4 is the Vakalatnama I executed in favour of Sri N.C. Mohapatra, Advocate. Ext.D-5 is the petition of adjournment filed in that lease case on my side. I could not follow the proceeding in T.L. 7/76. It is not a fact that I knew about the gift to D.1. from 1976." In....
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....ule appended to the Limitation Act, which reads as under: "Description of Suit Period of Time from which period Limitation begins to run 59 To cancel or set aside Three years When the facts entitling the an instrument or plaintiff to have the decree or for the instrument or decree rescission of a cancelled or set aside or the contract. contract rescinded first become known to him." Respondent No.1 in his suit prayed for cancellation of and setting aside of the deed of gift dated 21.2.1973. He became aware of the deed of gift in the proceedings before the Tahasildar. He had filed objections on the Razak's application for grant of lease in his name in respect of the small patch of lands which was being used for ingress to and egress from the property in question. In that proceeding itself, the donor himself had prayed for mutation of Razak's name in respect of the property in question. 19. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction....