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Khursida Begum (D) by LRs & Ors. v. Mohammad Farooq (D) by LRs & Anr.

Civil Appeal · Neutral citation not assigned (Civil Appeal No. 2845 of 2006)Decided 1 Feb 2016
Civil Appeal No. 2845 of 2006
Justice Anil R. Dave · Justice Adarsh Kumar Goel

Background

A father, Hazi Azimuddin, had earlier allowed two of his sons to be recorded as owners of two-thirds of a property, while he retained one-third. In 1976, he executed a registered gift deed giving his one-third share to the plaintiff, his minor son, and informed the tenants of the arrangement so that the plaintiff would receive a share of the rent. When the other sons stopped paying him his share of the rent, the plaintiff sued to recover it, but the trial court and High Court both held the gift invalid under Muslim law because it was a gift of an undivided share of property capable of division ("hiba-bil-musha") without actual transfer of possession.

Decision Breakdown

The Supreme Court held that under Muslim law, a gift of an undivided share is not automatically invalid: it is merely "irregular," and becomes fully valid once possession is effectively transferred, including constructively (such as by directing tenants to pay rent to the donee, or where the property is freehold property located in a large commercial town, which is itself a recognised exception). Since the property was located in Jaipur, a large commercial town, and the gift deed itself assigned the right to collect rent to the donee, the Court found that possession had been validly and constructively transferred. It therefore held the gift to be legally valid and set aside the decisions of the lower courts, decreeing the suit in the plaintiff's favour.

Lesson Learnt

A gift of a share in jointly held property under Muslim law is not necessarily invalid just because the property hasn't been formally divided: if the property is in a large commercial town or possession is transferred constructively (e.g., through rent collection rights), the gift can still be valid.

Official source (sci.gov.in)View Judgment (PDF)

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