Exceptions to Delivery of Possession Rule – Gifts under Muslim Law 4

There are certain cases in which of possession is not necessary at all. These exceptions are as follows:-

Donor and Donee reside in the same house- In such a case, the donor can complete the gift without the physical transfer of possession.

A Muslim lady, who had brought up her nephew as her son, executed a deed of gift in favor of the nephew of a house in which they were both residing at the time of the gift. The lady never departed from the house physically, nor was the house formally given to the nephew, but the property was transferred and the rents were recovered in his name. It was held that the gift was valid, although there was no physical delivery of possession

The Madras High Court in Ibrahim Bivi v K.M.M Pakkir Mohideen Rowther held “that where the property gifted is a house and the settler and the settlee reside in that house, it is not necessary for the settlor formally to depart from the house in order to indicate that the settlee has been given possession of the property gifted.” This view has been taken because of the clear pronouncement of the Privy Council to the same effect in Musa Miya Wlad Mahamad Shaffi v Kadar Bux and that of The Supreme Court in Valia Peedikakkandi Katheesa Umma v Pathakkalan Narayansth Kunhamu

Husband to WifeWhere a married couple lives in a house which belongs to the husband, the husband may make a gift of the house to the wife without physical delivery of possession. In Amina Bibi v Khatija Bibi a husband had made a gift of his house to his wife. He had given the keys of the house to the wife, left the house for a few days, but had returned afterwards and lived with her till his death. It was held that the gift was valid.

When the donor and donee are husband and wife and reside in the same property, the gift can be completed by some overt act by the donor and donee. When the deed recites that possession has been handed over, the burden to prove to the contrary is on the person who disputes that claim. The husband executed a gift deed in favor of his wife, it was stated therein that the possession [1]was transferred to the wife. The donor and the donee were residing in the same property. Held, it was not necessary for the husband to physically depart from the house, nor was a formal entry in the name of the done essential. The reason being they were husband and wife. Moreover, the gift deed mentions the transfer of possession. The gift deed executed in the wife’s favor was held to be a valid gift under Muslim Law.

Father to Child: Mother To Son: Guardian To Ward:- No transfer of possession is necessary where a father or mother makes a gift of immovable property to their minor child. The same is rule between guardian and ward. The rationale of this principle is that it would be absurd if the owner of the property (i.e. the parent) hands over possession to himself as guardian of the child.

But if a gift is made to a minor by a person other than the father of guardian, delivery of possession to the father or guardian is necessary. Fyzee says that since the real basis of the exception is that delivery of possession is excused only when legal guardianship of the minor vests in the donor, thus, a gift by a person other than the father or guardian is complete only by the seisin of the father or guardian. Thus, a mother who is not a legal guardian cannot accept a gift on behalf of her minor child if a legal guardian exists.

However, the following observations of the court in Ibrahim Bivi v K.M.M Pakkir Mohideen Rowther have also to be kept in mind:

It is not necessary that in all cases, the donor should hand over possession to the natural guardian of the minor donee. In proper circumstances, the donor can either constitute himself as the guardian or indicate some person, other than the natural guardian of the minor, as the guardian of the minor’s property and hand over possession to such guardian if circumstances are such as to justify such a course of action.

Gift to Donee already in Possession- Where the subject of the gift is already in possession of the donee, the gift is complete by declaration and acceptance, without formal delivery of possession. A piece of cloth is deposited with R, who says to the owner, “Give it to me”. The owner says, “I have been given it to thee”. The gift is complete as the donee is already in possession of the thing gifted. A makes a gift, without delivery of possession, of a house to a servant in his employ for the collection of rents. The gift is void, for a servant who only collects rents cannot be said to be in possession of the house of which he collects the rents.


Aishwarya Says:

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