The Nagpur bench of the Bombay High Court has held that a Muslim father who gifts his property to his son under Islamic law through a 'Hiba' does not need to vacate the property or hand over its physical possession. The Court clarified that such a gift is legally valid even if the father continues to live in the same house with his son, as Islamic law permits "constructive possession" instead of actual physical possession.
This observation was made by Justice Rohit Joshi while dismissing a second appeal in the case of Sheikh Ibrahim vs Sheikh Rehman (Second Appeal 394 of 2022). The case revolved around a property dispute within a family where the father, Mohammad Sheikh, had gifted his residential house to his son, Rehman Sheikh, through a Hiba.
The oral Hiba was given on June 11, 2005, and was reduced to writing the following day on June 12, 2005. Mohammad’s second son, Ibrahim, along with his wife Rashida Begum and their four sons, challenged this gift. They argued that the gift was invalid as Mohammad did not give "actual and physical" possession of the house to Rehman and continued living in the same house with other family members.
"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 donor 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," Justice Joshi stated in the judgment dated April 16.
The Court emphasized that under Islamic law, delivery of possession does not always mean physical removal from the property. If the donor and donee are already living together in the same house, then constructive possession is acceptable.
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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 further clarified.
To support its decision, the Court also considered the fact that the municipal records had been updated based on the Hiba. Applications had been made for mutation of Rehman's name in the records of the Nagpur Municipal Corporation (NMC) and the Maharashtra Housing and Area Development Authority (MHADA), indicating that the gift was acknowledged by the authorities.
The Court also noted that Mohammad Sheikh had himself supported the Hiba. He was a party to the initial civil suit filed by Rehman and had filed a written statement affirming the gift to his son.
"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 Court concluded.
With these findings, Justice Joshi dismissed the second appeal and upheld the validity of the gift made by Mohammad Sheikh to Rehman Sheikh.
In this matter, Advocate MR Joharapurkar appeared for the defendants, while Advocate Nitin Vyawahare represented the plaintiff.
