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Whether there has been an oral gift and subsequent writing evidencing this gift in favour of the plaintiff by Abdul Haq on 9.10.1970 as alleged in the plaint and whether the oral gift reduced in to writing requires stamp duty and registration ? = The possession can be shown not only by enjoyment of the land or premises in question but also by asserting who has the actual control over the property. Someone may be in apparent occupation of the premises, but the other would have control and gaining advantage of possession. In the case at hand plea of actual physical possession by Rasheeda Khatoon does not deserve acceptance. The existence of any overt act to show control requires to be scrutinised. A plea was advanced by the plaintiff that she had been collecting rent from the tenants inducted by the donor, but no rent receipts have been filed. On the contrary certain rent receipts issued by the donor after the execution of the deed of gift have been brought on record. There is no proof that the land was mutated in her favour by the revenue authorities. She was also not in possession of the title deeds. Thus, the evidence on record, on a studied scrutiny, clearly reveal that Rasheeda Khatoon was not in constructive possession. Therefore, one of the elements of the valid gift has not been satisfied. That being the position there is no necessity to advert to the aspect whether the instrument in question required registration or not because there can be certain circumstances a deed in writing may require registration. In the case at hand, we conclusively hold that as the plaintiff could not prove either actual or constructive possession, the gift was not complete and hence, the issue of registration does not arise. 25. In view of the aforesaid premises, we, though for different reasons, affirm the judgment and decree of the High Court and dismiss the appeal as a consequence of which the suit of the plaintiff stands dismissed.=2014-Oct.Part- CIVIL APPEAL NO. 603 OF 2009 Rasheeda Khatoon (D) Through LRs. …Appellants Versus Ashiq Ali s/o of Lt. Abu Mohd (D) Through LRs. ..Respondents

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 603 OF 2009
Rasheeda Khatoon (D)
Through LRs. …Appellants
Versus
Ashiq Ali s/o of Lt. Abu Mohd (D)
Through LRs. ..Respondents

WITH

Civil Appeal No. 564 of 2009

J U D G M E N T
Dipak Misra, J.
Rasheeda Khatoon, the predecessor-in-interest of present
appellants, instituted regular suit No. 31 of 1975 in the Court of
Civil Judge, Faizabad, seeking recovery of possession from the original
defendants. The case of original plaintiff before the trial Court was
that one Abdul Haq was the owner of the house No. 2868 situated in
Mohalla Hayat Ganj in Tanda, District Faizabad. The only son of Abdul
Haq had shifted to Pakistan at the time of Partition and there was no
one to look after him. The father of Rasheeda Khatoon, Hazi Madari,
was a close friend of Abdul Haq, and being a neighbour, she was looking
after him for last 20 years till 24.01.1972 when he breathed his last
at the ripe age of ninety. Regard being had to various aspects and
fruther being pleased with her services, 7 years prior to the
institution of the suit he made an oral gift of the suit house in her
favour which was accepted by her and possession of the house was also
handed over. Pursuant to the oral gift she lived in the premises in
question and looked after him. The tenants who had been staying in the
southern portion of the house, accepted her status and started paying
rent to her. Prior to a year of his death being apprehensive that some
others might disturb in her possession, he executed a deed of gift in
writing evidencing the oral gift made earlier in favour of the
plaintiff. As pleaded, within one month from the death of Abdul Haq,
the defendants dishonestly moved an application under Section 145 CrPC
before the SDM, Tanda with an intention to evict the plaintiff and in
the said proceeding the property in question was attached, and all
these circumstances constrained the plaintiff to file the civil suit
for declaration that she was the owner in possession of the house in
question. During the pendency of the suit, as alleged, the defendants
took over possession in pursuance of the release order passed by the
SDM on 12.4.1975 and thereafter the plaintiff amended the plaint and
sought the relief of recovery of possession.
2. The defendants entered contest and took various pleas to the effect
that the suit was under-valued and the court fee that was paid was not
sufficient; that Abdul Haq was in possession of the house till his
death and never parted possession; that there was no oral gift as
asserted by the plaintiff; that Khairulnisha, Kamrulnisha alias Kumul
and Janharulnisha were the daughters of Abdul Haq; that Khairulnisha
died during the life time of Abdul Haq and her sons Mohd. Ayub,
Moyuddin, Mohd. Yasin, Sagir Ahmad and Bashir Ahmad were alive; that
the defendant No.1 is the son of Jauharulnisha; that Abdul Haq died
leaving behind Kamarulnisha, Jauharulnisha and sons of Khairulnisha as
his legal heirs and they had become the owners; that during life time
Abdul Haq had given certain properties to the son of the defendant
No.2; and that after the death of Abdul Haq defendant No.2 had
constructed a shop with the permission of the defendant No.1 on the
condition that the shop shall be let-out to him. It was also
asseverated that Jauhirulnissa had executed a sale deed on 8.3.1972 and
Usman and Rauf executed a sale deed on 31.3.1972 in respect of the suit
house in favour of the defendant Nos. 2 and 3 and since then the
defendants no.2 and 3 had become the owners in possession; that the
proceeding initiated under Section 145, CrPC was eventually decided in
favour of the defendants; and that the plaintiff had no right, title
and interest over the suit house; and that the defendants are the
owners in possession of the suit property.
3. On the basis of the aforesaid pleadings, the learned trial Judge framed
the following issues:-

“1. Whether plaintiff is owner of the disputed house as claimed
in plaint?
2. Whether defendant Nos. 1 to 3 are the owners of the disputed
house as claimed in their written statement?
3. Whether there has been an oral gift and subsequent writing
evidencing this gift in favour of the plaintiff by Abdul Haq on
9.10.1970 as alleged in the plaint?
4. Whether suit is under-valued and deficient in suit fees?
5. Whether suit is not maintainable, as alleged in para no. 29
of the W.S.?
6. Whether suit is barred by Section 34 of Specific Relief Act?
7. To what relief, if any, is the plaintiff entitled in the
case?”
4. The learned trial Judge on appreciation of the evidence brought on
record came to hold that the plaintiff had proved the oral gift
executed by Abdul Haq in her favour; that the gift deed did not require
registration; that the deed of gift could not be ignored solely because
it was not registered when it had demonstrably been established by the
oral and documentary evidence that Abdul Haq had made a gift in favour
of the plaintiff and had put her in possession; and that she was the
owner of the suit premises and entitled to get back possession. Being
of the said view, the trial court decreed the suit.
5. Being dissatisfied with the said judgment and decree, the defendants
preferred Civil Appeal No. 435 of 1978 and the first appellate court
concurring with the view of the trial court as regards the character
and the nature of instrument, that it is an oral gift, based its
conclusions on the premises that the contents of the document showed
that the ‘Hiba’ had already been accepted by Rashida Kahtoon before the
deed was executed; that the document was only an evidence of the oral
gift which had been made earlier by Abdul Haq in favour of the
plaintiff; that the stand of the defendants-appellants that the
document could not be read in evidence because it was not registered
was bereft of any substance in view of the language employed in
Section 129 of the Transfer of Property Act (for brevity ‘the Act’)
which lays down that Section 123 of the Act which mandates registration
in case of a gift of an immovable property does not apply to any gift
made under the Muhammadan Law and a Muhammadan could make an oral gift
of immovable property and if a Muhammadan prepares a document relating
to gift such deed of gift continues to be an evidence of gift. To
arrive at the aforesaid conclusions the first appellate court placed
reliance upon the authorities in Karam Ilahi v. Sharfuddin[1], Nasib
Ali v. Wajid Ali[2], Bishwanath Gosain v. Dulhin Lalmani[3] and Boya
Ganganna v. State of Andhra Pradesh[4].
6. The aforesaid Judgment and decree passed by the first appellate court
was assailed in second appeal and the learned Single Judge taking note
of the substantial question of law opined that the core issue was
whether the document in question is a deed of gift or it evidences the
oral gift. The learned Single Judge was of the view that if it was
accepted as an evidence of the oral gift it did not require
registration and if it is interpreted otherwise, it required
registration. He referred to certain provisions of the Act and Section
17 of the Registration Act and, thereafter, scrutinized the contents of
the instrument in question and came to hold that the document in
question makes it clear that up to the date of execution of gift deed
no gift was made; that the executant of the deed was in possession of
the house; that the deed transferred the property in favour of Rasheeda
Khatoon in praesenti; and that it is clear from the language employed
in the gift deed that the executant had not delivered possession to the
donee. Being of this view, he came to hold that both the courts below
had misread the deed dated 9.10.1970 executed by Abdul Haq and treated
it to be an oral gift though it was a document under which transfer was
made and, therefore, it was compulsorily registrable and accordingly,
allowed the appeal. Hence, the present appeal by special leave.
7. We have heard Mr. Fakhruddin, learned senior counsel for the appellant
and Mr. A. G. Chaudhary, learned senior counsel for the respondents.
8. The gravamen of the controversy as is demonstrable pertains to is the
nature and character of the document executed by Abdul Haq in favour of
Rasheeda Khatoon, the predecessor-in-interest of the appellants.
Before we keenly scrutinize the document, we think it necessary to
refer to certain authorities in the field that have dealt with the
concept of oral gift in Muhammadan Law. In this context Sections 123
and 129 of the Transfer of Property Act have to be taken note of.
Section 123 of the Act stipulates that for the purpose of making a gift
of immovable property, the transfer must be effected by a registered
instrument signed by or on behalf of the donor, and attested by at
least two witnesses. Section 129 provides for savings of donations
mortis causa and the gifts made under the Muhammadan Law. It is clear
from the said provision that the Chapter relating to gifts including
registration would not effect any rule of Muhammadan Law.
9. In Karam Ilahi (supra) it has been held as follows:-
“It is admitted that a Muhammadan may make an oral gift provided
that possession follows. It seems to us quite clear that the
provisions of Section 123 are inapplicable to gifts made by
Muhammadans and valid according to their law. It is quite clear
that the Legislature had in its mind the provisions of Section
123 when enacting Section 129. Section 123 is specifically
referred to in Section 129. The deed of gift is admissible to
prove that a gift was made.”
10. In Nasib Ali (supra) Suhrawardy, J. referred to Kamarunnissa Bibi v.
Hussaini Bibi[5] and Karam Ilahi (supra) and came to hold that the
essentials of a gift under the Muhammadan Law are a declaration of
‘hiba’ by the donor, an acceptance, express or implied, of the gift by
the donee, and delivery of possession of the property, the subject-
matter of the gift, according to its nature. A simple gift can only be
made by going through the above formalities and no written instrument
is required. In fact no writing is necessary to validate a gift and if
a gift is made by a written instrument without delivery of possession,
it is invalid, in law. Thereafter, the learned judge stated thus:-
“The position under the Mohammadan Law is this: that a gift in
order to be valid must be made in accordance with the forms
stated above; and even if it is evidenced by writing, unless all
the essential forms are observed, it is not valid according to
law. That being so, a deed of gift executed by a Mohammadan is
not the instrument effecting, creating or making the gift but a
mere piece of evidence. It may so happen after a lapse of time
that the evidence of the observance of the above forms might not
be forthcoming, so it is sometimes thought prudent to reduce the
fact that a gift has been made into writing. Such writing is not
a document of title but is a piece of evidence. ”
11. In Mahboob Sahab v. Syed Ismail and Others[6] a two-Judge Bench
referred to Section 147 of the Principles of Mahomedan Law by Mulla
wherein the essentials of valid gift under the Muhammadan Law have been
elucidated and proceeded to explicate the principle. We think the
reproduction of the relevant passage would be seemly:-
“Under Section 147 of the Principles of Mahomedan Law, by
Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah,
envisages that writing is not essential to the [pic]validity of a
gift either of moveable or of immovable property. Section 148
requires that it is essential to the validity of a gift that the
donor should divest himself completely of all ownership and
dominion over the subject of the gift. Under Section 149, three
essentials to the validity of the gift should be, (i) a
declaration of gift by the donor, (ii) acceptance of the gift,
express or implied, by or on behalf of the donee, and (iii)
delivery of possession of the subject of the gift by the donor to
the donee as mentioned in Section 150. If these conditions are
complied with, the gift is complete. Section 150 specifically
mentions that for a valid gift there should be delivery of
possession of the subject of the gift and taking of possession of
the gift by the donee, actually or constructively. Then only the
gift is complete. Section 152 envisages that where the donor is
in possession, a gift of immovable property of which the donor is
in actual possession is not complete unless the donor physically
departs from the premises with all his goods and chattels, and
the donee formally enters into possession. It would, thus, be
clear that though gift by a Mohammedan is not required to be in
writing and consequently need not be registered under the
Registration Act; for a gift to be complete, there should be a
declaration of the gift by the donor; acceptance of the gift,
expressed or implied, by or on behalf of the donee, and delivery
of possession of the property, the subject-matter of the gift by
the donor to the donee. The donee should take delivery of the
possession of that property either actually or constructively. On
proof of these essential conditions, the gift becomes complete
and valid. In case of immovable property in the possession of the
donor, he should completely divest himself physically of the
subject of the gift.”
[Emphasis supplied]
12. Recently in Hafeeza Bibi and Others v. Shaikh Farid (Dead) by LRS. and
Others[7] a two-Judge Bench referred to the authority in Mohd. Abdul
Ghani v. Fakhr Jahan Begam[8] wherein the Privy Council had made a
reference to Muhammedan Law by Syed Ameer Ali and approved the
statement as regards the essential three conditions for a valid gift.
Thereafter, the learned Judges referred to Nasib Ali (supra), Assan
Ravther v. Manahapara Charayil[9] and Javeda Khatun v. Moksed Ali[10]
and stated the position of law thus:-
“The position is well settled, which has been stated and
restated time and again, that the three essentials of a gift
under Mohammadan Law are: (1) declaration of the gift by the
donor; (2) acceptance of the gift by the donee; and (3) delivery
of possession. Though, the rules of Mohammadan Law do not make
writing essential to the validity of a gift; an oral gift
fulfilling all the three essentials makes the gift complete and
irrevocable. However, the donor may record the transaction of
gift in writing.”
13. After so stating the court referred to Asaf A.A.Fyzee in Outlines of
Muhammadan Law[11] and Mulla, Principles of Mahomedan Law[12] and
eventually ruled thus:-
“In our opinion, merely because the gift is reduced to writing by
a Mohammadan instead of it having been made orally, such writing
does not become a formal document or instrument of gift. When a
gift could be made by a Mohammadan orally, its nature and
character is not changed because of it having been made by a
written document. What is important for a valid gift under
Mohammadan Law is that three essential requisites must be
fulfilled. The form is immaterial. If all the three essential
requisites are satisfied constituting a valid gift, the
transaction of gift would not be rendered invalid because it has
been written on a plain piece of paper. The distinction that if a
written deed of gift recites the factum of prior gift then such
deed is not required to be registered but when the writing is
contemporaneous with the making of the gift, it must be
registered, is inappropriate and does not seem to us to be in
conformity with the rule of gifts in Mohammadan Law.”
[Emphasis added]
14. For a clear understanding of the conception of the valid gift under the
Muhammadan Law we think it apposite to reproduce the passage from
Mulla, Principles of Mahomedan Law that has been quoted and approved in
Hafeeza Bibi (supra):-

“Under the Mahomedan law the three essential requisites to
make a gift valid are: (1) declaration of the gift by the donor,
(2) acceptance of the gift by the donee expressly or impliedly,
and (3) delivery of possession to and taking possession thereof
by the donee actually or constructively. No written document is
required in such a case. Section 129 of the Transfer of Property
Act excludes the rule of Mahomedan Law from the purview of
Section 123 which mandates that the gift of immovable property
must be effected by a registered instrument as stated therein.
But it cannot be taken as a sine qua non in all cases that
whenever there is a writing about a Mahomedan gift of immovable
property there must be registration thereof. Whether the writing
requires registration or not depends on the facts and
circumstances of each case.”
15. At this stage, it is condign to state that the two-Judge Bench
ultimately has ruled that it is not the requirement in all cases where
the gift deed is contemporaneous to the making of the gift then such
deed must be registered under Section 17 of the Registration Act, and
each case would depend on its own facts. Be it stated, the Court did
not approve the view expressed in Govt. of Hyderbad (Deptt. of Revenue)
v. Tayyaba Begum[13], Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel[14],
Chota Uddandu Sahib v. Masthan Bi[15], Amirkhan v. Ghouse Khan[16] and
Sunkesula Chinna Budde Saheb v. Raja Subbamma[17].
16. From the aforesaid discussion of the propositions of law it is
discernible that a gift under the Muhammadan Law can be an oral gift
and need not be registered; that a written instrument does not, under
all circumstances require registration; that to be a valid gift under
the Muhammadan Law three essential features namely, (i) declaration of
the gift by the donor, (ii) acceptance of the gift by the donee
expressly or impliedly, and (iii) delivery of possession either
actually or constructively to the donee, are to be satisfied; that
solely because the writing is contemporaneous of the making of the gift
deed, it does not warrant registration under Section 17 of the
Registration Act.
17. At this juncture, it is pertinent to refer to a three-Judge Bench
decision in Valia Peedikakkandi Katheessa Umma and others v.
Pathakkalan Narayanath Kunhamu (deceased) and after him his legal
representatives and others[18] where the question arose whether a gift
by a husband to his minor wife and accepted on her behalf by her mother
is valid. Dealing with the concept of gift under Muhammadan Law the
Court observed that:-
“… Muhammadan Law of gifts attaches great importance to
possession or seisin of the property gifted (Kabz-ul-Kami)
especially of immovable property. The Hedaya says that seisin in
the case of gifts is expressly ordained and Baillie (Dig P.508)
quoting from the Inayah refers to a Hadis of the Prophet-“a gift
is not valid unless possessed.” In the Hedaya it is stated –
“Gifts are rendered valid by tender, acceptance and seisin”
(p.482) and in the Vikayah “gifts are perfected by complete
seisin” Macnaghten (202).”
After so stating the Court proceeded to lay down that it is only
actual or constructive possession that completes the gift and
registration does not cure the defect nor is a bare declaration in the
deed that possession was given to a minor of any avail without the
intervention of the guardian of the property unless the minor has
reached the years of discretion. It has been further opined therein
that if the property is with the donor he must divest from it and the
donee must enter upon possession. However, to that rule there are
certain exceptions which the Court took note of, stating thus:-
“Exceptions to these strict rules which are well recognized are
gifts by the wife to the husband and by the father to his minor
child (Macnaghten, page 51 principles 8 to 9). Later it was held
that where the donor and donee reside together an overt act only
is necessary and this rule applies between husband and wife. In
Mahomed Sadiq Ali Khan v. Fakhr Jahan Begum, 59 Ind App 2 : (AIR
1932 PC 13) it was held that even mutation of names is not
necessary if the deed declares that possession is delivered and
the deed is handed to the wife.”

We have referred to this decision only to highlight the
principle that either there has to be actual delivery of possession
from the donor or the donee must be in constructive possession to make
a gift valid under the Muhammadan Law.
18. Presently, we shall deal with the factual score. Mr. Fakhruddin,
learned senior counsel would submit that when concurrent findings were
returned that the plaintiff was in possession on the date of execution
of the gift deed as the donee had started residing with the donor the
High Court should not have dislodged the finding of possession solely
on the ground that the gift deed was a contemporaneous document which
required registration. Per contra, Mr. Chaudhary, learned senior
counsel would submit that both the courts below had committed serious
illegality by coming to hold that an oral gift was made in favour of
the plaintiff seven years prior the date of execution of gift deed and
factum of the said document only evidenced the oral gift, though there
is no mention of it in the deed itself. It is urged by him that by no
stretch of examination such a finding could have been recorded. As we
notice, the trial court as well as the appellate court has returned a
finding that there was an earlier oral gift by Abdul Haq in favour of
the original plaintiff. The same is not reflectible from the document
itself. That apart, there is nothing else on record to support the
same. The finding of the learned trial Judge as well as the appellate
Judge is based on unwarranted inferences which are not supported by the
evidence brought on record. While not accepting the said finding of
the courts below we are also unable to accept the conclusion of the
High Court that the document being a contemporaneous document or
document in praesenti required registration.
19. The real thrust of the matter, as we perceive, is whether the essential
ingredients of the gift as is understood in the Muhammadan Law have
been satisfied. To elaborate, a deed of gift solely because it is a
written instrument does not require registration. It can always be
treated as a piece of evidence evidencing the gift itself, but, a
significant one, that gift must fulfill the three essential conditions
so that it may be termed as a valid gift under the Muhammadan Law.
20. The aforesaid being the position, we are obliged to scrutinize the deed
of gift and the material brought on record. It has become necessitous
in the instant case as the original and the first appellate court have
recorded findings which are contrary to material brought on record and
the High Court has proceeded exclusively on the concept of a deed in
praesenti. Be it stated, this Court in exercise of power under Article
136 of the Constitution can interfere with the concurrent findings of
fact, if the conclusions recorded on certain factual aspects are
manifestly perverse or unsupported by the evidence on record. It has
been so held in Alamelu & Another v. State[19], Heinz India (P) Ltd.
and Another v. State of U.P. and Others[20] and Vishwanath Agrawal s/o
Sitaram Agrawal v. Sarla Vishwanath Agrawal.[21]
21. In this backdrop we proceed to scan the gift deed. On a perusal of the
gift deed it is manifest that Abdul Haq had declared therein that he
had always been the owner in possession and the entire house was in his
exclusive ownership and possession and free from all encumbrances.
Thus, the said recital belies the case of the plaintiff that there was
an oral gift seven years prior to filing of the suit, that is, sometime
in the year 1968. The learned trial Jude as well as the appellate
court has brushed aside the said aspect by stating that it has not
affected the stand of the plaintiff inasmuch as some witnesses have
deposed about the gift having been made in 1968. As the deed would
show the executant had stated that he had executed a Will earlier in
favour of Rasheeda. That apart, such a fact, had it been true would
have definitely formed a part of the written instrument. Omission of
such a fact, in our view, defies common sense. The conclusion that the
gift deed dated 9.10.1970 evidences such a gift, is absolutely
unacceptable. Be that as it may, the issue is whether the document and
the concomitant factors establish factum of gift made by the donor. As
stated earlier, if the essential features are met with no registration
is necessary. On a perusal of the deed of gift and the evidence
brought on record it is demonstrable that Abdul Haq remained in the
premises in question. He did not part with physical possession. The
case of the plaintiff is that she resided with Abdul Haq and,
therefore, the principle of donor getting fully divested or handing
over of physical possession is not attracted. Though, such a finding
has been recorded, we find it wholly contrary to the evidence on
record. The plaintiff was staying with her husband. The family
register and voters list, Exhibit 122 to 124 C indicate that Rasheeda
Khatoon was residing in her house with her husband. Though the gift
deed mentions that she was entitled to get her name mutated in respect
of the premises, yet it was not done. On the analysis of evidence in
the backdrop of the deed, it is extremely difficult to hold that she
was residing with Abdul Haq in the premises in question. The first two
courts have based their conclusions on conjecture and inferences. The
High Court, as we notice, has not dwelled upon this aspect and has only
negatived the finding of the courts below that the document did not
evidence an oral gift. Thus scrutinized there remains no shadow of
doubt that she was not in actual physical possession.
22. We have already stated, actual physical possession may not be always
necessary if there is constructive possession of the donee. In this
context we may reproduce Section 152, sub-Section(3) of Mulla’s
Muhammadan Law:-
“No physical departure or formal entry is necessary in the case
of a gift of immovable property in which the donor and the donee
are both residing at the time of the gift. In such a case the
gift may be completed by some overt act by the donor indicating a
clear intention on his part to transfer possession and to divert
himself of all control over the subject of the gift.”
23. Possession has been defined in Section 394 of the Muslim Law by Tyabji.
It is thus:-
“A person is said to be in possession of a thing, or of immovable
property, when he is so placed with reference to it that he can
exercise exclusive control over it, for the purpose of deriving
from it such benefit as it is capable of rendering, or as is
usually derived from it.”
24. From the aforesaid it is vivid that the possession can be shown not
only by enjoyment of the land or premises in question but also by
asserting who has the actual control over the property. Someone may be
in apparent occupation of the premises, but the other would have
control and gaining advantage of possession. In the case at hand plea
of actual physical possession by Rasheeda Khatoon does not deserve
acceptance. The existence of any overt act to show control requires to
be scrutinised. A plea was advanced by the plaintiff that she had been
collecting rent from the tenants inducted by the donor, but no rent
receipts have been filed. On the contrary certain rent receipts issued
by the donor after the execution of the deed of gift have been brought
on record. There is no proof that the land was mutated in her favour
by the revenue authorities. She was also not in possession of the
title deeds. Thus, the evidence on record, on a studied scrutiny,
clearly reveal that Rasheeda Khatoon was not in constructive
possession. Therefore, one of the elements of the valid gift has not
been satisfied. That being the position there is no necessity to
advert to the aspect whether the instrument in question required
registration or not because there can be certain circumstances a deed
in writing may require registration. In the case at hand, we
conclusively hold that as the plaintiff could not prove either actual
or constructive possession, the gift was not complete and hence, the
issue of registration does not arise.
25. In view of the aforesaid premises, we, though for different reasons,
affirm the judgment and decree of the High Court and dismiss the appeal
as a consequence of which the suit of the plaintiff stands dismissed.
There shall be no order as to costs.
Civil Appeal No. 564 of 2009
26. In view of the dismissal of Civil Appeal No. 603 of 2009 the present
appeal stands dismissed. There shall be no order as to costs.
………………………..J.
[Dipak Misra]

………………………..J.

[Vikramajit Sen]
New Delhi;
October 10, 2014

———————–
[1] AIR 1916 All 351
[2] AIR 1927 Cal 197
[3] AIR 1968 Pat 481
[4] AIR 1976 SC 1541
[5] (1880) 3 All 266
[6] (1995) 3 SCC 693
[7] (2011) 5 SCC 654
[8] (1921-22) 49 IA 195 : AIR 1932 PC 13
[9] AIR 1972 Ker 27
[10] AIR 1973 Gauhati 105
[11] 5th Edn. (edited and revised by Tahit Mahmood) at P. 182
[12] (19th Edn.) P.120
[13] AIR 1962 AP 199
[14] AIR 1974 J&K 59
[15] AIR 1975 AP 271
[16] (1985) 2 MLJ 136
[17] (1954) 2 MLJ 113 (AP)
[18] AIR 1964 SC 275
[19] (2011) 2 SCC 385
[20] (2012) 5 SCC 443
[21] (2012) 7 SCC 288

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