This article is written by Titas Biswas. It deals with a detailed analysis of the judgement derived in the case of Abdur Rahman vs. Athifa Begum (1998), which revolves around the concept of Hiba in Muslim Law. This article is exhaustively drafted concerning the case’s facts, background, issues raised, arguments made by the parties, concerned provisions of law, relevant precedents applied, obiter dicta, ratio decidendi, as well as analysis of the judgement.

Introduction 

This article provides an in-depth analysis of the case Abdur Rahman vs. Athifa Begum (1998), the judgement of which is considered to be landmark regarding hiba, i.e., gift under Muslim law. The ratio given under this case has solidified the essential elements and validity of hiba under Muslim law. The case is regarding a property among grandchildren of the common ancestor, namely Mohammed Isahaq Saheb, where the appellants contended that the alleged gift deed is not valid prima facie, whereas the respondents stood up to their positions, denying the contentions of the appellants and stating that such a gift deed is invalid in the eyes of law. The case also concerns inheritance, which was promptly amplified by the High Court.

The Karnataka High Court has reasoned its judgement by examining Muhammadan Law,  evidence procured by the parties, and other factual representations as to what amounts to a valid hiba under Muslim law. The Honourable Justice, Mr. Chidananda Ullal, also referred to certain precedents presented by both parties in support of their contentions while advancing their respective arguments.

Details of the case

• Case Name – Abdur Rahman vs. Athifa Begum, AIR 1998 Kant 39
• Equivalent Citations – AIR 1998 KARNATAKA 39; 1997 (3) KARLJ 570; (1998) ILR (KANT) 1284; ILR 1998) KAR 1284; (1997) 3 KANT LJ 570; (1997) 4 CURCC 453
• Case number – 476/1992
• Appellants – Abdur Rahman, Amathul Samad and ors.
• Represented by – Sri Ilyas Hussain
• Respondents – Athifa Begum, Abdul Aleem and ors.
• Represented by – Sri Anand Ramdas
• Type of the Case – Regular First Appeal
• Arising out of Original Suit No. – 3879/84
• Name of the Court – Karnataka High Court
• Date of the judgement – 26.03.1995
• Bench – Honourable Justice, Mr. Chidananda Ullal

Background of the case

Trial Court

The case goes back to the year 1984, when the original suit for partition and separate possession was filed by the plaintiff, Abdur Rahman. They prayed for their heritable share of the suit property and claimed the invalidity of the alleged gift deed, which the defendants denied and contested. The Civil Court of Bangalore, after analysing the evidence and factual presentation, held that the gift was valid as claimed by the defendants and that the plaintiff’s contentions did not hold good. Hence, the suit was dismissed.

High Court

This case was further elevated to the High Court of Karnataka as a Regular First Appeal (R.F.A.) from the dismissal order dated June 30, 1992, passed by the Additional City Civil Judge, Bangalore. This instant appeal was preferred by the plaintiffs, who are now the appellants of the appeal, whereas the Defendants are the respondents.

This article focuses on the judgement given by the Karnataka High Court. Hence, the issues framed by the court are discussed later in the article under a broad title.

Supreme Court 

This case has also been committed to the Supreme Court, where the Hon’ble Court held that the Karnataka High Court has exceeded its authority in examining the merits of the case in the absence of the appellant’s counsel. Reversing the ruling given by the Karnataka High Court on August 30, 1996, the Supreme Court in Abdur Rahman’s case held that: 

• The Karnataka High Court, while exceeding its powers, violated the provision under Order 41 Rule 17, which allows the dismissal of the case on the prima facie absence of the appellant and not on merits.
• The case must be directed back to the Karnataka High Court for reconsideration, maintaining balance with the procedural restrictions.

Facts of Abdur Rahman vs. Athifa Begum (1998)

The facts of the case are presented below-

Suit for partition and permanent possession in the Court of Additional Civil Judge, Bangalore

• The name of plaintiff No. 1 is Abdur Rahman, who is the husband of Amathul Samad, one of the legal heirs of Amathul Hadi. Respondent no. 1,  Athifa Begum, is the daughter of Mariam B1, who is also one of the legal heirs of Amathul Hadi. 
• Mohammed Isahaq Saheb had two wives. With his first wife, he had M.A. Wasi. With his second wife, he had five children: Amathul Hadi, Amathul Musawir, Mariam B1, Amatus Samad, and Abdul Aleem.

• Mohammed Isahaq Saheb (who died in 1935) transferred the disputed property, Schedule ‘B’, to his son from his first wife, namely, M.A. Wasi. Subsequently, M.A. Wasi  further bequeathed the disputed property to Amathul Hadi (who is M.A. Wasi’s half-sister) by way of a settlement deed alleged to be a gift deed, executed on March 24th, 1954.
• Athifa Begum (respondent No. 1) is the niece of Amathul Hadi, being Mariam B1’s daughter, who is one of the sisters of Amathul Hadi. After Athifa Begum’s mother passed away in 1940, Amathul Hadi raised her as her own daughter. In gratitude for her niece’s devoted care, Amathul Hadi transferred the property listed in Schedule-’B’ through a settlement deed on November 7th, 1975, as a gesture of gift.

Issues raised by the Karnataka High Court

The Karnataka High Court, having reviewed the facts and evidence presented by both parties and analysed the precedents cited in support of their arguments, proceeded to evaluate the following points –

• Is the settlement deed dated November 7, 1975, which Amathul Hadi executed in favour of respondent No. 1 (Athifa Begum), regarded as a gift? Furthermore, does it satisfy the requirements for a valid gift as outlined under Sections 149, 150, and 151 of Mohammadan Law?
• Do the appellants have the right to seek partition of the disputed property, as claimed in their original suit?
• Should the judgement rendered by the Additional Civil Judge Court in Bangalore, be reconsidered and overturned by this Court?

Arguments of the parties

Appellants

1. The appellants argued that the settlement deed dated November 7th, 1975, executed by Amathul Hadi in favour of Athifa Begum, was deemed invalid and unenforceable under Mohammedan law. 
2. The appellant argued that the deed of gift did not fulfil the requirements of a valid hiba under Principles of Mulla-Mohammaden Law, Edition 20th, which provide that:

1. There must be a declaration of the gift by the donor.
2. The gift must be accepted, either expressly or impliedly, by or on behalf of the donee.
3. There must be delivery of possession of the gift’s subject matter from the donor to the donee, as outlined in Section 150 of the ‘Principles of Mohammedan law’ by Mulla. The provision provides for delivery of possession, either actual or constructive.

3. The appellants contended that, besides the settlement deed, there was neither acceptance of the gift nor constructive or actual possession of the property. They further argued that the donor/settler herself remained in possession of the disputed property until her death on December 23rd, 1980.
4. The appellants also contended that the alleged settlement deed did not explicitly demonstrate the transfer of possession to respondent No. 1, nor did it lead to any change in land revenue records in the respondent’s name.
5. The appellants also contended that they were entitled to acquire half of the ‘B’ schedule property as it belonged to Amathul Hadi, who died childless. As a result, both the appellants and respondents are legally the heirs to the property, which must be equitably distributed.

Respondent

1. The respondents denied all the claims by appellants that the deed of settlement was invalid and contended that all the essentials were fulfilled, and based on the execution of the deed dated November 7th, 1975, the disputed property was transferred to respondent No. 1, i.e., Athifa Begum from Amathul Hadi and that she was in possession of the suit-property and fulfilled all the tax obligations.
2. The respondents, by contesting the allegation of the said gift deed being invalid, contended that according to Faizee, in his book ‘Outlines of Muhammadan Law-Faizee’, he mentioned that a gift of the usufruct (the right to enjoy the property) is also considered a valid hiba, commonly known as ‘Ariya’, which is a well-established form of hiba.
3. The respondents denied the contention by the appellants of non-acceptance of the suit property by claiming respondent No. 1’s presence in the suit-property while Amathul Hadi was alive, indicating a valid acceptance and delivery of possession.

Laws involved in Abdur Rahman vs. Athifa Begum (1998)

Hiba under Mohhamaden law 

Section 149 of Mulla-Principles of Mahomedan Law

Section 149 of Mahomedan Law, as found in the predominant and contemporary Muslim codified law, sets forth the following principles concerning the requirements for a valid Gift:

1. There must be a declaration of such gift by the donor
2. There must be an acceptance of such gift by the donee, either expressly or impliedly, by the donee or on his behalf by someone else.
3. There must be the delivery of possession of such property in accordance with the immediate next provision, Section 150.

Section 150 of Mulla-Principles of Mahomedan Law

Section 150 of Mahomedan Law revolves around the delivery of possession, which categorises such delivery into two manners:

1. Actual Possession – There must be actual possession, i.e., the physical transfer of such property by the donor.
2. Constructive Possession – This indicates the transfer of the property not physically but in some other manner. To exemplify; delivery of the original deed and other documents to the donee.

Section 152 of Mulla-Principles of Mahomedan Law

Section 152 of the principles of Mahomedan law focuses on the delivery of possession of an immovable property. It states that to validate a gift of an immovable property of which the donor is in actual possession, the donor must vacate the premises with all personal belongings, and the donee must then formally assume possession.

Order 41, Rule 17 of the Civil Procedure Code;

Order 41, Rule 17 of The Code of Civil Procedure, 1908 provides for ‘dismissal of appeal for appellant’s default’ which states that if the appellant fails to appear on the scheduled date or any date kept for adjournment when the appeal is next called for hearing, the Court may order the dismissal of the appeal.

Relevant judgements referred in the case

Mahboob Sahab vs. Syed Ismail & Ors AIR (1995)

The Karnataka High Court relied on this case while affirming the appellant’s arguments. The Supreme Court, in its judgement of this case, held that even though a gift under Mohammedan law does not necessitate it to be in a written format, it therefore does not need to be registered under the Registration Act. However, for a gift to be valid and complete, certain requirements must be adhered to in the transaction:

• The donor must declare the gift,
• The gift must be accepted either explicitly or implicitly by or on behalf of the donee, and
• The donor must deliver possession of the property intended as a gift to the donee. 
• The donee must receive possession of the property, physically or constructively.

Meeting these essential conditions renders the gift comprehensive and legally valid, particularly in cases involving immovable property, where the donor must entirely relinquish physical control over the subject of the gift.

Judgement of the case

Issue No. 1

The Karnataka High Court, while examining through the evidence and factual presentation regarding issue no. 1, pointed out the following observations –

• The court after perusing the settlement deed, discovered that the aim of making a suitable provision for the beneficiary who depends on the settlor is to transfer such property to the beneficiary, where the beneficiary shall hold the property absolutely and free of all encumbrances, charges, and liens. However, during the settlor’s lifetime, she shall retain the right to usufruct from the property and shall also have the right to reside there if she is willing to do so.

It was also observed by the court based on the details listed in Ex.D.2 (perused as documentary evidence of the settlement deed), it is clear that Amathul Hadi did not actually transfer possession of the property to respondent No. 1 as the physical transfer was lacking in the transaction.

Analysing the evidence given by PW1, the Court also held that Amathul Hadi retained usufruct and residency rights during her lifetime but did not transfer actual possession or the document of title at the time or after the settlement’s execution.

• The court’s findings included that respondent No. 1 (Athifa Begum) did not contend in her written statement that subsequent to the execution of the settlement deed, she was made an actual possession in its regard. According to her own written statement and disposition of testimony, respondent No. 1 had the land revenue records for the suit property updated with the Corporation of the City of Bangalore only after the death of Amathul Hadi. Similarly, she paid taxes for the subject property only after the donor, Amathul Hadi, had passed away and not immediately after the execution of the settlement deed.
• The court after its findings, highlighted that even though the settlement deed was executed in favour of respondent No. 1, physical or constructive/symbolic possession of such property was not made over to her until the demise of the settlor (Amathul Hadi) on December 23rd, 1980. The Court further held that apart from the declaration of the gift, there must be acceptance on the part of the donee (respondent No. 1), which was found to be missing in the settlement deed.

Examining all these, the court found that there was yet another non-compliance with the essential elements of a valid deed – firstly; non-compliance of delivery of possession of the property and secondly; non-compliance of acceptance of such gift. 

Therefore, the issue no. 1 framed by the court stood out in favour of the appellants and against the respondents as they failed to validate the settlement deed as a valid gift.

Issue Nos. 2 and 3

The Karnataka High Court, while examining the evidence and factual presentation regarding issues no. 2 & 3, has pointed out the following observations –

• The respondents argued in their appeal that the appellants did not challenge the settlement deed, hence, the gift deed cannot be held invalid. The High Court, upon reviewing the facts, noted that while the appellants did not dispute the settlement deed’s validity as a gift deed in their complaint, they rightly sought a share in the disputed property based on inheritance. In the suit for partition and permanent possession, the respondents defended their sole ownership, asserting that the property was transferred to respondent No. 1 via a gift deed.

The court noted that plaintiff No. 1 was Amathul Samad’s husband, with the remaining plaintiffs being their children, who were the appellants in this case. Amathul Samad, one of Amathul Hadi’s four sisters entitled to a share in Schedule-B property, passed her inheritance to her children after her demise in 1982. The Court affirmed that even after plaintiff’s death, the appellants (children of Abdur Rahman and Amathul Samad) validly represented their parents and asserted their inheritance rights under Muslim law while claiming a share in the suit property.

• Stating these findings, the Karnataka High Court substantiated the issues . Nos. 2 & 3 in affirmative and in the favour of the appellants, while ordering for the suit to be remitted back to city civil court, Bangalore in order to evaluate issues regarding partition and separate possession. The court also ordered a speedy disposal of the suit, being almost a decade old.

Obiter Dicta

Family law cases frequently pose significant challenges, particularly in areas lacking comprehensive procedural guidelines. In Mohammedan law, such cases mostly rely on precedents, interpretations and commentaries by eminent jurists and scholars. 

While deciding the case, The Karnataka High Court has observed the following guidelines that can be referred to as obiter dicta-

• The court after assessing the case and procuring key judgements, held that until and unless all the requirements of a valid gift are fulfilled, any settlement deed declaring such gift shall not amount to a valid gift.

• The court also considered the argument presented by the appellants, citing the case Mahboob Sahab vs. Syed Ismail (1995), which asserts that under Mohammedan law, an oral and unregistered gift deed may be considered valid. It was observed that under Mahomedan law, hiba is a declaration of affection expressed materialistically, and thus, the non-compliance with registration of such deeds would not invalidate such a gift. However, it also emphasised that failure to fulfil all essential elements, such as actual or constructive possession of the property by the donee, renders such a deed invalid.
• The court affirmed the relationship as asserted by the plaintiffs/appellants and concluded that there was no dispute regarding the relationship.
• The court prioritised addressing the issues regarding partition and separate possession, which emphasises the importance of inheritance under Muslim law. The plaintiffs and the appellants, who are legal heirs of Amathul Samad, sought partition of the property on the grounds that Amathul Hadi, being childless, could only pass her property to her siblings and further to their legal heirs. The court emphasised the importance of addressing inheritance issues in this case. Therefore, the court held that the claim was right in law and remitted the case back to the City Civil Court of Bangalore to decide on the issues untouched.

Ratio Decidendi

The case provides for the pointers that satisfy as a valid gift-

Essential Conditions of a valid gift

The Karnataka High Court, after analysing various judgements and prevailing Mahomedan law in Mulla’s 20th Edition, derived the following as the essentials of a valid gift.

• There must be a “declaration of gift from the donor in favour of the donee (Section 149 of Mahomedan Law).”
• There must be “acceptance of such a gift deed by the donee executed by the donor (Section 149 of Mahomedan Law).”
• There must be “delivery of possession either physically or constructively (Section 150 & 152).”

Exceptions as to Immediate Delivery of Possession

After assessing various judgements, the Karnataka High Court held that-

• If the donor retains the right to enjoy the income from the property or requires the donee to pay the income to a specified person, this does not invalidate the gift as long as the principal property (corpus) is transferred absolutely.
• When actual possession is impractical (e.g., when such property is occupied by tenants), symbolic acts of possession, such as transferring title documents or instructing tenants to acknowledge the donee’s ownership, are sufficient.

Absence of any of the essential elements tends to invalidate the gift

The Karnataka High Court substantiated the mandatory presence of all the essential elements constructively, and the absence of any one or more of the essential elements shall amount to invalidating the gift deed. In the concerned case, the Court invalidated the gift deed in confirmation with the absence of ‘acceptance of gift by the donee’ and, ‘delivery of possession by the donee’.

Analysis of Abdur Rahman vs. Athifa Begum (1998)

In the matter of Abdur Rahman vs. Athifa Begum (1998), the Karnataka High Court addressed significant facets of Muslim law concerning hiba. The contention arose regarding a property gifted by Amathul Hadi to Athifa Begum (respondent No. 1) via a settlement deed, which the appellants (Abdur Rahman and others) challenged as void under Muslim law.

The central issue in the case revolved around whether the settlement deed constituted a lawful gift under Sections 149, 150, and 151 of Muslim law (Principles of Mahomedan Law-Mulla). The appellants contended that the deed was deficient in crucial aspects, such as the failure to deliver possession of the property to the donee.

While highlighting the key issues regarding the settlement deed and whether the manner of transfer under such a deed suffices for a valid gift, the Court observed a spectrum of judgments on the matter. There has not been any uniform legislation or pre-dominant provision. The Court, while examining the present case, observed that this might be the main source of conflict among cases. The lack of a uniform judicial precedent may be the prime cause of such conflicts. Most judicial precedents contain observations that align with the ratio decidendi of this case, preserving the required elements for a settlement deed to be a valid gift deed. Justice S.B. Sinha in Abdul Rahim and ors. vs. S.K. Abdul Zabar and ors. (2009) has observed several judgements that prescribed the essential elements of a valid gift and concluded that delivery of possession of the gifted property is one of the mandatory requisites for such a gift to be legal in the eyes of law. 

The Karnataka High Court also considered the concept of the gift of ‘Ariya’ under Mohammedan law. The Court discussed this concept when the respondents referred to excerpts from ‘Outlines of Mohdn. Law’ by Faize, which states that one can transfer the usufruct (munafi) for a specified time but not the corpus. In Islamic jurisprudence, transferring the corpus signifies the absolute transfer of ownership, hence, it is indefinite. A life interest is seen as the transfer of usufruct for a specific duration, and in Mohammedan law, a gift of usufruct, known as ‘’ariya’, is deemed valid.

The High Court intricately examined these aspects of Mohammedan law and referred to the legal precedents presented by the appellants to support their stance. It prescribed that for a gift deed to be valid, three elements must be in existence, which are ‘declaration of gift by the donor’, ‘acceptance by the donee’, and ‘delivery of possession of the gift’. Although the hiba of Munafi is deemed valid under various practices of Islamic schools, this case concerns the hiba of corpus. The respondent’s contention focuses on the ownership of the disputed property, while the appellant’s claims address the property as a whole, contradicting the concept of hiba of ‘Munafi’. Hiba of ‘Munafi’ is associated with rights over a part of the property, not the whole. Therefore, the Karnataka High Court, concluding the case on the basis of the facts and claims presented in this case, held that the gift of ‘Munafi’ does not stand, and the respondents’ claim of sole ownership of the suit property by gift deed is not valid. In addition to the above-mentioned statements, the Court recognised the validity of the appellants’ claim for partition and separate possession of the contested property (Schedule ‘B’), affirming their right based on principles of inheritance, governed by Muslim law. 

Another broad aspect in this case covers a provision of the Civil Procedure Code, 1908, as the case was further appealed in the Apex Court by the respondents, aggrieved by the High Court’s judgement. The matter here was dealt with by two judges, namely M.M. Punchhi and K.T. Thomas, JJ., where it was determined that the Karnataka High Court had overstepped its authority by adjudicating on the merits of the case in the absence of the appellant’s counsel. The Supreme Court held The Karnataka High Court exceeded its jurisdiction and contravened Order 41 Rule 17 of the Civil Procedure Code (1908), which mandates the dismissal of appeals based on the non-appearance of the respondents on the date of hearing. The Supreme Court observed that it was beyond the powers of the Karnataka High Court to evaluate the merits of the case where the appellants were not present during the hearing.  

Conclusion

India is framed in a wide range of customary laws arising out of family laws, which possess dependency on a bunch of precedential analysis as well as on commentaries and research by eminent jurists and scholars. This dependency sometimes leads to discrepancies in the application of law in certain areas of family law, therefore indicating an urge for uniformity in the application of laws. Islamic Jurisprudence navigates its sources through the Holy Book of Quran and, furthermore, from its sub-source, Hadith, which guides a believer in different aspects of his life. The Sharia law encapsulates hiba as “Give each other gifts and you will love each other,”  according to Prophet Muhammad, but, the formulation of its essentials has been derived through judicial precedents and legal commentaries. The concept of hiba of Corpus is much more prevalent as compared to hiba of Munafi (gift of the usufruct) and hiba of Mushaa (gift of an undivided share of a property).

The case of Abdur Rahman vs. Athifa Begum (1998) revolves around the essential elements of a valid gift deed, which are ‘Declaration of gift by the donor to the donee’, ‘Acceptance of such gift by the donee’, and ‘Delivery of Possession of the gift to the donee from the donor’. This stance is established by the Court by referencing Mulla’s ‘Principles of Mahomedan Law’ while solidifying its judgement with the case law Mahboob Sahab vs. Syed Ismail & Ors (1995) and the obiter dicta of other such key precedents.

Frequently Asked Questions (FAQs)

Does Transfer of Property recognise the concept of gift or Hiba under Mohammedan Law?

Section 122 of the Transfer of Property Act, 1882 pertains to ‘Gifts’, but it does not encompass provisions for Mohammedan law, which regulates transactions involving gifts or hiba based on customary laws. This is explicitly stated in Section 129 of the Transfer of Property Act and elaborated in legal texts by renowned jurists and scholars such as Mulla and Faizee.

Can a settlement deed be a gift deed?

Yes, a settlement deed can be a gift deed, provided that there have to be certain elements and prerequisites in order to validate such a deed as a gift deed. 

• The crucial aspect lies in the intentions of the parties who execute the settlement deed. If the language and terms of the settlement deed clearly indicate that the transferor (settlor) intends to transfer certain property to the transferee (beneficiary) as a gift without seeking anything in return or imposing obligations, then it may effectively operate as a gift.
• Previously, Courts in their judgements interpreted this stance and reinforced that the significant factor in assessing such parity is based upon the intention of the settlor, whether he intends to transfer the property while retaining other rights. The Court also held that if, after analysing such settlement deed, it proves to manifest the intention of the settlor unambiguously, it validates as a gift.

Is it mandatory for a gift deed to be registered under Mohammedan law?

No, it is not mandatory, as such, to register a deed of gift for it to be valid. However, it is believed to be in alignment with the law if such a document is duly registered. This stance is upheld and solidified in many judicial precedents.

References

• https://ghconline.gov.in/VernacularJudgments/English/CA-11460-1996_Eng.pdf.
• https://www.scribd.com/document/485145595/Mulla-Principles-of-Mahomedan-Law-20th-ed-pdf.
• https://blog.ipleaders.in/hiba-gift-muslim-law/#Essentials_of_Hiba.

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