When Delivery of Possession is not Necessary under Muslim Law?

(1) Where Donor and Donee Live Jointly in the Gifted House:

Where the gift is of a house in which donor and the donee both reside, any formal delivery of possession is not necessary to complete the gift. The donor, who is owner of the house, may complete the gift without asking the donee first to vacate the house and just after that, to take the possession as a donee. In other words, if the donee is already continuing the possession of the house in some other capacity, there is no need of giving him the same possession afresh in a different capacity of donee.

But, there must be some ‘overt act’ or apparent activity on the part of the donor from which his intention to transfer the possession may be inferred. In Humera Bibi v. Najmunnissa, a Muslim lady executed a gift-deed of her house in favour of her nephew who was living with her in the same house. The property was transferred in the name of the nephew but she continued to live with him as before. But after the gift, the rents were collected in the name of the donee.

The Allahabad High Court held that the gift was valid although there was neither any physical transfer to the donee nor any physical departure of the donor from the house. In another case, where the donor and the donee both were residing in the house which was the subject-matter of gift, merely the papers were delivered to the donee and the donor consented that he would get the name of the donee entered in the municipal records, it was held that the gift was complete without any physical delivery of possession.

In T.N. Sherufuddin v. Mehrunnissa there was a gift of a house by mother (owner) to her daughter. Both were living together. The Madras High Court held that gift was valid and there was no need of any formal delivery of possession to complete the gift.

It is therefore clear that when donor and donee live jointly in the house gifted, actual transfer of possession is not necessary; all that is required to validate the gift is the change in the status of the donor and donee.

(2) Gift by Husband to Wife or by Wife to Husband:

Where a gift of an immovable property is made by husband to wife or by wife to husband, no transfer of possession is necessary. The reason behind this rule is simple. The husband and wife are so related to each other that one has to perform the matrimonial obligations against the other which is possible only if they live together. Moreover, in the Indian societies the properties of a wife are usually looked after and managed on her behalf by the husband.

If the condition of delivery of possession is strictly followed then the husband and wife would first vacate the house, then wife alone would take the possession and after that the husband would join the wife as he is entitled to live with his wife wherever she lives.

Or, if the property is not in their joint use, the husband would hand over the possession to wife then again accept the same possession on behalf of the wife as her agent for looking after that property. All this may appear to be a drama and ‘such a tamasha is not required by law’.

In Amina Bibi v. Khatija Bibi, the husband made a gift of his house and certain other properties (small outhouses) to his wife. The husband after delivering the keys of the houses to the wife left the house. But, he came back after sometime to live with his wife and also collected the rents from the tenants of the outhouses.

The gift was held to be valid. Similarly, in Ma Mi v. Kallandar Animal, a gift of certain immovable property was made by the husband in favour of his wife. Wife’s name was duly entered in the records as proprietor of the properties, but the husband continued to collect the rents as before.

The Privy Council held the gift valid on the ground that once it is proved that wife’s name was duly entered in the records as proprietor, the presumption was that each and every dealing of the husband in respect of the gifted property was on behalf of his wife; the husband acted simply as an agent of his wife.

It is significant to note that because of the proximate relationship of husband and wife, even the mutation of name or a formal entry of wife’s name in the public records is not necessary. The gift of an immovable property by a husband to his wife, or vice-versa, is valid if the gift-deed merely declares that possession has been given, and this deed is handed over to the wife.

In C.T.D.A. Pathumma v. Pokku, the Kerala High Court has held that where donee is the wife, no mutation of names is necessary if the deed of gift declares that husband delivered possession to the wife the deed is handed over to her and retained by her.

In Noohu Pathuammal v. Ummathu Amina, the Madras High Court, held that the fact that husband continues to live in house or receives rent after the date of the gift, will not invalidate the gift; the presumption in such a case being that joint residence was on account of matrimonial obligation and that the rents are collected on behalf of the wife and not on his own account. The court further observed that no mutation of names is necessary if the deed of gift declares that possession has been transferred and the deed is handed over to her.

(3) Gift by Guardian to Ward:

In a gift to a minor or insane person the possession of the property is taken by the guardian. But, where the guardian himself makes any gift to his ward, the delivery of possession is not necessary. Where a father makes a gift to his minor son, the father would have to transfer the possession in the capacity of a donor and would have to accept the same possession as a guardian of his minor son.

Therefore, the rule in such cases is that the gift is valid without any formal change in possession, provided there is a real and bona fide intention on the part of the father, or other guardian, to give up the ownership in favour of his ward. But, where a gift has been made by a person to two or more donees of which some are minor or insane and the rest are adult and sane, the gift is not complete without any formal delivery of possession.

In T. N. Sharufuddin v. Mehrunissa, a father made a joint gift of his properties for the benefit of his minor daughter and her adult husband through the medium of a trust. There was no formal delivery of possession and it could not be proved as to who accepted the gift on behalf of the minor daughter. Madras High Court held that the gift was void.

It is to be noted that guardian here means the ‘guardian of property’. Mother is not a guardian of property under Muslim personal law. Therefore, if a mother makes a gift to her son, the gift is not valid unless the delivery of possession is taken by father or his executor or the paternal grandfather or his executor.

Similarly, paternal grandfather is a ‘guardian of property’ only in the absence of father. Therefore, if a paternal grandfather makes a gift to his grandson, the delivery of possession can be exempted only where the father is dead or is otherwise not available.

Even if it could be proved that the minor or the insane has been brought up and was always living with the grandfather, the acceptance of the possession by the father is necessary to complete the gift made by a grandfather. Thus, the delivery of possession is exempted only in those cases where the ‘guardianship of property’ of the minor or the insane person vests in the donor himself.

(4) Gift of Property Already in Possession of Donee:

The object of delivery of possession is to give to the donee the physical control over the gifted property. But, where the subject-matter of the gift is already in possession of the donee, there remains nothing with the donor which may be transferred to such donee.

Accordingly, the rule is that where a donee is in possession of the property in some other capacity, the gift is complete merely by declaration and acceptance; no formal delivery of possession is required to complete the gift.

For example, if A, who is owner of a house which is on rent, makes gift of that house in favour of the tenant, the gift is valid by A’s declaration and its subsequent acceptance by that tenant. It is not necessary that the tenant first of all vacates the house and thereafter resumes the same possession as a donee. Similarly, where the gift is made to a bailee, there is no need of any delivery of possession because the property is already in his custody (possession).

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