Validity of ‘Gift’ Under Mohammedan Law Contingent on Delivery of Possession to Donee, Kerala High Court Judgment

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

Bench : P.G. AJITHKUMAR, JUDGE 

Date : THE 5TH DAY OF JULY 2023

Facts:

1. The judgement and decree of the Additional Munsiff-II in O.S.No.516 of 2003 were reversed by the Sub Judge in appeal (A.S.No.99 of 2004) on September 18, 2010.
2. The appellant filed an appeal under Section 100 of the Code of Civil Procedure, challenging the reversal of the decree.
3. The substantial question of law formulated by the court for consideration was whether the finding that the donor did not part with possession, despite the provision in the gift deed (Ext.A1) for taking usufructs during the donor’s lifetime, is sustainable, and if so, whether the gift deed is valid.

Analysis:

1. The appellant, as the donee, claimed that he had accepted the gift and taken possession of the property mentioned in Ext.A1.
2. The respondents argued that the gift was not valid as there was no delivery of possession by the donor as required under Muhammadan Law.
3. The trial court found the gift to be valid based on the documents and testimonies, but the First Appellate Court held that possession was not delivered, making the gift invalid.

Judgement:

1. The court referred to the requirements for a valid gift under Muhammadan Law, including a declaration of the gift, acceptance by the donee, and delivery of possession.
2. The court noted that while there was a declaration and acceptance, there was no evidence of delivery of possession of 2½ cents of property to the appellant as specified in Ext.A1.
3. The court held that the reservation of the right to take usufructs during the donor’s lifetime does not invalidate the gift, but the absence of possession delivery renders the gift invalid.
4. As the appellant failed to provide evidence of possession, the court concluded that Ext.A1 did not create a valid gift, resulting in the dismissal of the appeal.

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WRITTEN BY – ANVITHA RAO