Muslim Law | No Need For Husband To Physically Depart From Gifted Property To Validate His Gift For Wife: JKL High Court

The observations came from Justice Sanjay Dhar while hearing a plea wherein the appellant had challenged the oral gift made by Deceased Mohammad Ashraf Dar to his Wife (Defendant No.1) on the premise that she had not been placed in the exclusive possession of the gifted property as mandated under Muslim personal law.

In the instant matter the court noted that the deceased Mohammad Ashraf Dar had constructed the house in question during his lifetime and used to reside in the said house off and on. While record revealed that he had orally gifted this property to his wife (defendant no 1) during his lifetime, there was no evidence on record to show that the defendant No.1 was at any point in time put in exclusive possession of the property in question by her husband.

The moot question seeking an answer from the bench was as to whether while making a valid oral gift under the Muslim law, it was necessary for the donor to place the donnee in the actual possession of the property being Gifted.

In its bid to answer the said question the court observed that under the Mohammedan Law for a gift to be valid there exist three essential features namely, (1) declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift, either actually or constructively, to the donee, that are to be satisfied.

Justice Dhar observed that in this case the relationship between the donee and the donor is of husband and wife and where a husband makes a gift to the wife either of the matrimonial home occupied by both of them or any other property belonging to him, there is no need for any actual physical departure by the donor.

"The reason is that the relationship of husband and wife is different from any other relationship. Joint residence is an integral aspect of this relationship and the fact that the husband manages and looks after the property of the wife is backed by an implied presumption that he does it on behalf of his wife".

The court maintained that since the evidence on record does prove that deceased Mohammad Ashraf Dar was in possession of the property in question, it impliedly means that his wife, defendant No.1, was in possession of the property and that after the execution of oral gift, her husband was looking after the said property on her behalf.

Accordingly the argument of counsel for the appellant that the exclusive possession of defendant No.1 having not been proved makes the oral gift invalid was found to be without any merit.

Case Title: Mst Haleema & Ors Vs Mst Dilshada & Ors.

Citation: 2023 LiveLaw (JKL) 10

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