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TMI Blog2009 (3) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... on that basis was not decisive. Period of limitation in filing a suit – gift deed dated 21.2.1973 - Article 59 of the Limitation Act - The suit should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation. - CIVIL APPEAL NO. 1573 OF 2009 - - - Dated:- 6-3-2009 - S.B. Sinha, Asok Kumar Ganguly, R.M. Lodha, JJ. JUDGMENT S.B. Sinha, J. 1. Leave granted 2. Interpretation and/or application of the Islamic Law on Gift vis-`-vis handing over of possession of the property gifted is the question involved in this appeal. It arises out of a judgment and order dated 30.6.2008 passed by the High Court of Orissa at Cuttack in First Appeal No. 197 of 1982 whereby and whereunder the First Appeal filed by the respondent No.1 - plaintiff's has been allowed decreeing the suit. 3. Indisputably, the properties in question belonged to one Haji Sk. Abdullah. He had two sons and four daughters. Respondent No.1 - plaintiff was his elder son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands to him by a registered gift deed No. 1647 dated 21.2.73 and so, I have no claim over the said properties. Therefore, name of my son Abdul Razak may be entered in the tenancy ledger in place of my name and rent may be collected from him." 5. Indisputably, Razak also filed T.L. Case No. 7 of 1976 for grant of temporary lease in respect of the said small patch of Govt. land which along with the suit land formed a compact area. The deed of gift was also produced in the said proceedings. Respondent No.1 objected to the prayers made by the appellant. By an order dated 6.4.1977, Tahasildar, Bhadrak while holding that the objection raised by the respondent No.1 was without any merit, recommended renewal of the licence in favour of Razak. 6. Respondent No. 1 filed a suit being O.S. No. 112 of 1980 on or about 2.9.1980 in the court of Subordinate Judge, Bhadrakh inter alia praying for a declaration that the said deed of gift dated 21.2.1973 was illegal, void and inoperative. Two issues arose therein for consideration of the learned trial judge: (1) Whether the suit was barred by limitation; and (2) Whether Haji Sk. Abdullah had handed over the possession of the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the execution of the deed of gift only in the year 1980, the suit must be held to have been filed within the prescribed period of limitation. 10. A gift indisputably becomes complete when a person transfers with immediate effect the ownership of his movable or immovable property to another person, and that other person himself or someone else with his consent takes possession of the property gifted. Under Mohammadan Law it is a contract which takes effect through offer and acceptance. The conditions to make a valid and complete gift under the Mohammadan Law are as under: (a) The donor should be sane and major and must be the owner of the property which he is gifting. (b) The thing gifted should be in existence at the time of hiba. (c) If the thing gifted is divisible, it should be separated and made distinct. (d) The thing gifted should be such property to benefit from which is lawful under the Shariat. (e) The thing gifted should not be accompanied by things not gifted; i.e. should be free from things which have not been gifted. (f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor. It is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin." [See Hamilton's Hedaya (Grady's Edn.), p. 482] Previously, the Rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdoer) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullic Abdool Guffoor v. Muleka. But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gift, but whether he had actually transferred away the property--and even where the transfer is for consideration, possession has, in most systems of law, an important bearing on the rights of the parties and others claiming through them: since (under Muslim law) the owner's right ceases on his death, and devolves upon his heirs, it follows that where the owner dies without transferring the property to another, the person to whom a voluntary transfer was intended to be made, has no claim against the heirs." 14. Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid. We have noticed hereinbefore that Razak had been receiving rent from the tenants. In fact, the respondent No. 1 in his suit claimed a decree for apportionment of rent. We would presume that Razak had been collecting rent from the tenants during the life time of his father. The agency to collect rent, however, came to end as soon as an order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing, 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." Thus, possession can be shown not only by acts of enjoyment of the land itself but also by ascertaining as to in whom the actual control of the thing is to be attributed or the advantages of possession is to be credited, even though some other person is in apparent occupation of the land. In one case, it would be actual possession and in the other case, it would be constructive possession." In that case, handing over of the deed of gift coupled with the declaration made in the document was held to be sufficient for constituting a valid gift. (See also Valia Peedikakkandi Katheessa Umma ors. vs. Pathakkalan Narayanath Kunhamu [AIR 1964 SC 275] We agree with the ratio laid down therein. 17. We, therefore, are of the opinion that the High Court committed a serious error in opining that the possession had not been handed over to Razak by the donor. 18. Limitation for filing a suit in a case of this nature is governed by Article 59 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word `person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him." {See also Sneh Gupta vs. Devi Sarup Ors. [2009 (2) SCALE 765]} 20. For the reasons aforementioned, the impugned judgment is set aside. The appeal is allowed with costs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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