Bombay High Court: In a second appeal filed by a brother and his family against the ownership of his brother over the family house gifted to him by their father, a Single Judge Bench of Rohit W. Joshi, J., rejected the appeal, holding that the father had undoubtedly gifted the property to the respondent-son and constructively transferred the possession. Thus, the transaction of gift/Hiba was completed validly and legally.
Background
In 2005, the respondent received the suit property based on an oral gift deed, or ‘Hiba’ by his father. Thereafter, the deed was reduced to writing. The appellants, brother of the respondent and his family, challenged the respondent’s ownership.
The Trial Court accepted the case of Hiba being given by the respondent’s father to the respondent and accordingly passed a decree for possession in favour of the respondent. The appellants challenged the decree by filing the first appeal, but it was dismissed. Aggrieved, they filed the present second appeal against the impugned decrees.
Analysis
At the outset, the Court rejected the contention that there was insufficient evidence to establish the case for transfer of property by noting that the respondent’s father supported the case of the respondent in his written statement, and the appellants did not contend that the written statement was filed by his father under the influence of the respondent. The Court held undoubtedly, the respondent’s father gave him the gift.
The Court noted that Trial and First Appeal Courts correctly appreciated the evidence on record, including the evidence of the sister of the parties who supported the respondent’s case. Therefore, the Court stated that the contention regarding the father transferring the property to the respondent by Hiba was liable to be rejected.
The Court rejected the contention that the transfer was invalid since possession of the suit property was not transferred. The Court reiterated that regarding the transfer of possession by the donor in favour of donee under Hiba, delivery of possession did not need to be actual physical possession. It could also be constructive possession. The Court stated that, in the present case, the property given by way of Hiba was a house property. At the relevant time, the father-donor was residing in the residential house along with his son-donee, the respondent. The actual physical possession was of all the family members occupying the property. Thus, as per Hiba, the donor has delivered constructive possession to the donee. The Court opined that this was sufficient to satisfy the requirement of delivery of possession to complete the transaction. When the donor and donee, who are father and son, are residing together in a residential house owned by the father, it is not expected that after gifting the property by way of Hiba, the father would leave the residence.
In this regard, the Court relied on Abdul Rahim v. Sk. Abdul Zabar (2009) 6 SCC 160 and Mohammad Abdul Ghani v. Fakhr Jahan Begam 1922 SCC OnLine PC 18 wherein it was held that for completion of Hiba/gift, it was not necessary that the actual physical possession should be delivered by the donor to the donee and that delivery of constructive possession will also satisfy the requirement. The Court held that in the present case, although the father—donor continued to reside with the donee-his son, it was duly established on record that applications were made for mutation of the respondent’s name were based on the gift in the records of the Nagpur Municipal Corporation and Maharashtra Housing and Area Development Authority.
Thus, the Court held that there could not be a shred of doubt that constructive possession was delivered by the donor to the donee, and as such, the transaction of gift/Hiba was completed validly and legally. The Court also held that there was no substantial question for consideration in the present second appeal.
Accordingly, the appeal was dismissed.
[Sheikh Ibrahim v. Sheikh Rehman, 2025 SCC OnLine Bom 1368, decided on 16-04-2025]
Advocates who appeared in this case :
For the appellant: M. R. Joharapurkar
For the respondent: Nitin Vyawahare