C, a Muslim executed a deed of gift of a house in favour of D. At the time of the gift, the house was in possession of A who claimed it adversely to C. D sues A to recover possession of the house as donee of the property and joins C also as defendant. C in his written statement admits the claim of D. A contends that the gift is void since. C had no possession of the house at the date of gift and no possession was ever given to D.
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Question: C, a Muslim executed a deed of gift of a house in favour of D. At the time of the gift, the house was in possession of A who claimed it adversely to C. D sues A to recover possession of the house as donee of the property and joins C also as defendant. C in his written statement admits the claim of D. A contends that the gift is void since. C had no possession of the house at the date of gift and no possession was ever given to D. [DJS 1990]Find the question and answer of Muslim...
Question: C, a Muslim executed a deed of gift of a house in favour of D. At the time of the gift, the house was in possession of A who claimed it adversely to C. D sues A to recover possession of the house as donee of the property and joins C also as defendant. C in his written statement admits the claim of D. A contends that the gift is void since. C had no possession of the house at the date of gift and no possession was ever given to D. [DJS 1990]
Find the question and answer of Muslim Law only on Legal Bites. [C, a Muslim executed a deed of gift of a house in favour of D. At the time of the gift, the house was in possession of A who claimed it adversely to C. D sues A to recover possession of the house as donee of the property and joins C also as defendant. C in his written statement admits the claim of D. A contends that the gift is void since. C had no possession of the house at the date of gift and no possession was ever given to D.]
Answer
Gift or 'Hiba' under Muslim law means the transfer of property made immediately without any consideration. During his lifetime a Mohammedan can make gifts of all or any part of his property. Word `Hiba' literally means the donation of a thing from which donee may derive benefits. Every Muslim of sound mind and who has attained majority can make the gift. However under Muslim law, for the validity of the Gift following essential conditions must be fulfilled:
(a) There must be a clear, unambiguous and specific declaration of gift by the Donor to Donee.
(b) There must be acceptance of gift expressly or impliedly by or on behalf of the donee.
(c) That there must be the delivery of possession of the subject of the gift by the donor to the donee.
Section 149 of the Mulla's Principles of Mohammedan law also provides:
"It is essential to the validity of a gift that there should be (1) A declaration of gift by the donor (2) Acceptance of the gift express or implied by or on behalf of donee (3) Delivery of possession of the subject of the gift by donor to donee in accordance with the provisions of Section 150.”
If these conditions have complied then the gift is complete and if any of the three conditions mentioned above are not satisfied, there can not be a valid gift.
In Abdul Manan v. Md. Murad Ali and others, 1999 (1) BLJR 23, the court also discussed the essentials of a valid gift and provided the following essentials for the validity of the gift (a) Declaration of Gift by Donor (b) Acceptance of Gift by donee (c) Delivery of possession of property gifted by the donor to the donee.
Thus it is clear that the above-stated conditions must be fulfilled for the validity of a gift. Delivery possession of subject to be gifted must be effected from Donor to Donee. Where the subject matter of the gift is in the possession of a person holding the property adversely to the donor, the gift is not valid unless the donor either recovers possession or does all that he can, which is necessary to put the donee in possession.
In the case of Maqbool Alam v. Mst. Khodaija, AIR 1966 SC 1194, the Supreme Court of India held that when a property is gifted, the gift is not complete until the possession of the property is delivered to the donee or the donor takes some overt act to put the donee in a position to obtain possession.
The case involved a dispute over a property which was gifted by the donor to the donee, but the possession of the property remained with the trespasser. The court held that a mere declaration and acceptance of the gift would not be sufficient to complete the gift, as the donee could not take possession of the property. The court also noted that the delivery of possession or some overt act by the donor to put the donee in a position to obtain possession is essential for the completion of the gift and the donee cannot be said to be in wrongful possession of the property if the trespasser was not evicted.
In the present case at hand, donor C has done all that he can do to complete the gift. He is a party to the suit filed by the donee (D) and admits the claim of donee and fact of gift. Therefore C by admitting the gift to D has made D obtain possession from A and thus C has given constructive possession of property gifted to D and therefore the gift of C to D is valid.