Muslim Father Who Gifts Property To Son Need Not Hand Over 'Actual & Physical' Possession, Can Reside In Same Property: Bombay High Court

A Muslim father, who transfers his property to his son as a gift known as 'Hiba' under the Islamic Law, can continue to reside in the said property along with his son and need not leave the said residence as the law does not mandate delivery of 'actual and physical' possession of the property other it only provides for 'constructive possession', the Nagpur bench of the Bombay High Court held, recently. Single-judge Justice Rohit Joshi dismissed a second appeal challenging the transfer of property by one Mohammad Sheikh to his son Rehman Sheikh by virtue of Hiba on June 11, 2005. The oral gift deed was reduced to writing on June 12, 2005 and thus, the property was therefore gifted to Rehman by his father. However, his second son Ibrahim, his wife Rashida Begum and his four sons, objected to the Hiba on the ground that Mohammad did not give 'actual and physical' possession of the subject property - residential house to Rehman despite the Hiba and rather the father continued to live in the house, along with his other family members (Ibrahim and his family) in the suit house. Rejected the contention, Justice Joshi opined that the the transfer of possession by doner (Mohammad) in favour of donee (Rehman) under Hiba, it is not necessary that delivery of possession should be actual physical possession and that it can also be constructive possession. "In the facts of the present case, the property which is given by way of Hiba is house property. At the relevant time, the father i.e. the doner was residing in the residential house along with his son - the plaintiff. The actual physical possession was of all the family members who were occupying the property. However, as per Hiba the donor has delivered constructive possession to the donee. This in my considered opinion is sufficient to satisfy the requirement of delivery of possession in order to complete the transaction. When the donor and donee, who are father and son, are residing together in 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," the judge held in the judgment pronounced on April 16. To bring home the point, the judge further relied on the fact that although Mohammad continued to reside with Rehman, it was duly established on record that applications were made for mutation of Rehman's name on the basis of gift in the records of Nagpur Municipal Corporation (NMC) and Maharashtra Housing and Area Development Authority (MHADA). The bench also took into account the fact that Mohammad was a party to the initial suit filed by Rehman and he (Mohammad) too filed a written statement placing on record the Hiba he conferred upon his son - Rehman. "In the light of the Judgments of the Supreme Court and the Privy Council, there cannot 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 judge held.With these observations, the court dismissed the second appeals. Appearance: Advocate MR Joharapurkar appeared for the Defendants.Advocate Nitin Vyawahare represented the Plaintiff. Case Title: Sheikh Ibrahim vs Sheikh Rehman (Second Appeal 394 of 2022)Citation: 2025 LiveLaw (Bom) 161Click Here To Read/Download Judgment

Muslim Father Who Gifts Property To Son Need Not Hand Over 'Actual & Physical' Possession, Can Reside In Same Property: Bombay High Court

Narsi Benwal

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