Abdul Rahim v Sk Abdul Zabar
Rule established
Delivery of possession under Muslim law may be actual or constructive, and may be made in such manner as the subject of the gift is susceptible of. Handing over the deed of gift coupled with the declaration in the document can suffice, and where the donor himself applies for mutation of the property in the donee's name, constructive possession must be held to have been handed over. The conditions of a valid hiba are that the donor be sane, major and owner, that the thing gifted exist and if divisible be separated, that it be lawful under the Shariat and free of things not gifted, and that it come into the possession of the donee or of his representative or guardian.
Facts
- Haji Sk Abdullah, owner of a house at Cuttack, executed a registered deed of gift dated 21 February 1973 in favour of his younger son Razak, reciting that Razak and his wife had looked after him in old age, that the donee and his children would enjoy and possess the property, pay rent to the Anchal and obtain rent receipts in his own name, and could transfer it.
- The house was tenanted, and Razak had been collecting rent from the tenants even before the deed. The donor himself applied to the Tahsildar for mutation of the adjoining leasehold strip in Razak's name, and mutation was ordered in 1976.
- The elder son sued in 1980 to have the gift declared invalid for want of delivery of possession. The trial court dismissed the suit as time barred and upheld the gift. The High Court allowed the appeal, holding that there was no material to show the donor had divested himself and that Razak's rent collection did not establish delivery.
Issue
- Whether the gift was incomplete for want of delivery of possession, where the property was tenanted, the donee had been collecting rent, and the donor himself had applied for mutation in the donee's name.
Held
- The appeal was allowed, the High Court's decree set aside, and the gift upheld.
- After setting out the conditions of a valid and complete hiba, the Court held that delivery of possession may be actual or constructive, and may be made in such manner as the subject of the gift is susceptible of. Following Munni Bai v Abdul Gani (All India Reporter 1959 Madhya Pradesh 225), Sadik Hussain Khan v Hashim Ali Khan (1916) 43 Indian Appeals 212, Abu Khan v Moriam Bibi (1974) 40 Cuttack Law Times 1306 and Valia Peedikakkandi Katheessa Umma (All India Reporter 1964 Supreme Court 275), of which it said "We agree with the ratio laid down therein", the Court held that handing over the deed of gift coupled with the declaration in the document can suffice.
- On these facts constructive possession must be held to have been handed over: the donor himself applied for mutation in Razak's name, and any agency to collect rent came to an end on mutation, so Razak's continued collection thereafter was on his own behalf.
- The suit was also barred by limitation, under Art.59 of the Limitation Act read with S.31 of the Specific Relief Act.
Ratio Decidendi
The requirement of delivery serves a purpose: to establish that the donor has genuinely parted with the property and not merely said so. What satisfies that purpose depends on the nature of the property. Where a house is in the occupation of tenants, there is nothing for the donor to hand over physically, and the delivery that such property admits of is a change in the person to whom the tenants answer. Where revenue records exist, the donor's own act in procuring mutation into the donee's name is powerful evidence that he has parted with the property, because it is a public and irrevocable step taken against his own interest. The reasoning about the rent is the sharpest point. Razak had been collecting rent even before the deed, which the High Court treated as neutralising th
How to use it in an exam
- The leading modern authority on constructive delivery. Cite it wherever the facts involve tenanted property, property already occupied by the donee, or mutation of revenue records.
- Learn the two evidential markers the Court relied on: the donor's own application for mutation, and the termination of any agency to collect rent on mutation, which changed the character of the donee's continuing collection.
- Set out the conditions of a valid hiba from this case, which are a fuller list than the usual three essentials: donor sane, major and owner; the thing gifted in existence and, if divisible, separated; lawful under the Shariat and free of things not gifted; and possession passing to the donee or his representative or guardian.
- Do not cite it for a strict delivery requirement. Cite Mahboob Sahab for that. Being able to state which case supports which side of the delivery question is exactly what distinguishes a strong answer here.
- Reconcile the two lines expressly if a problem raises them: Mahboob Sahab states the position where the donor remains in possession and nothing else has changed; Abdul Rahim states what suffices where the subject matter does not admit of physical handing over.
- Note the limitation ground, which was an independent basis for the disposal: Art.59 of the Limitation Act read with S.31 of the Specific Relief Act. Useful in Limitation and Civil Procedure answers.
- Note the report year discrepancy: decided 6 March 2009, but the AIR report is AIR 2010 SC 211.
Source
Source: (2009) 6 SCC 160; AIR 2010 SC 211; 2009 AIR SCW 5861. Civil Appeal No 1573 of 2009, arising out of SLP (Civil) No 24819 of 2008, from the Orissa High Court at Cuttack, First Appeal No 197 of 1982, judgment dated 30 June 2008. Three Judge Bench, judgment delivered by S B Sinha J on 6 March 2009. Note the AIR report is AIR 2010 SC 211, a year later than the decision. Bench, date, facts and holding verified on audit of 12 August 2026. IMPORTANT: this case is frequently cited for the proposition that delivery of possession is strictly essential; it in fact holds the OPPOSITE, that constructive delivery suffices, and it reversed a High Court that had insisted on proof of actual delivery.
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.