The Bombay High Court has held that in transfer of possession by Donor in favour of Donee under Hiba, it is not necessary that delivery of possession should be actual physical possession, constructive possession is suffice.

The Court was considering an Appeal preferred by the Original Defendants who had suffered a Decree of Possession in the Suit filed by the Respondent-sole.

The single bench of Justice Rohit Joshi observed, "While dealing with aspect of delivery of possession, it is held that for the purpose of a valid gift / Hiba, although delivery of possession of the property is necessary, possession need not be delivered actually or physically and even delivery of possession constructively will be sufficient to complete the transaction of gift. In that view of the matter, it was held that although the donor enjoyed the proceeds of the demised property, during her lifetime, the document under which the property was given by her to the donee was indeed a gift and the gift was valid in view of delivery of constructive possession."

The Appellants were represented by Advocate M. R. Joharapurkar while the Respondent was represented by Advocate Nitin Vyawahare.

Facts of the Case

The Plaintiff had claimed his ownership over the Suit Property on the basis of Hiba in his favour by his father in 2005. Thereafter, oral gift was reduced into writing and the father was arrayed as Defendant in the Suit. The father had supported the case of the Plaintiff in his written statement. It was not the contention of Defendants that the Written Statement was filed by his father under the influence of Plaintiff. The Trial Court accepted the case of oral gift i.e. Hiba by father Defendant No.7 in favour of the Plaintiff and accordingly passed a Decree for possession in favour of the Plaintiff. The Defendants challenged the said Decree by filing First Appeal which was also dismissed. The present Second Appeal was preferred against these concurrent Judgments and Decrees.

Counsel for the Appellants contended that the evidence on record is insufficient to establish the case for transfer of property by the father/ Defendant No.7 in favour of the Plaintiff and the same is liable to be rejected in view of the fact that the father is Party to the Suit and has supported the case of the Plaintiff by filing his Written Statement. It was contended that it is not even the case of Appellants i.e. Defendants that the father had filed Written Statement not on his own accord or free will, but under the influence of the Plaintiff.

He further contended that in order to constitute transfer of property by way of Hiba, the possession of property should be essentially transferred. He contended that the evidence on record would suggest that the father did not transfer possession of the suit property to his son i.e. the Plaintiff and therefore, the transaction cannot be said to be Hiba.

Reasoning By Court

The Court held that for the transfer of possession by doner in favour of donee under Hiba, it is not necessary that delivery of possession should be actual physical possession.

"It can also be constructive possession. 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 doner 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. 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 Court observed.

It referred to Supreme Court's decision in Abdul Raim and others Vrs. Sk. Abdul Zabar and others, wherein it was held that for completion of Hiba/ gift, it is not necessary that actual physical possession should be delivered by the donor to the donee and that delivery of constructive possession will also satisfy the requirement.

"In the present case, although the father – donor continued to reside with the defendant - donee who is his son, it is duly established on record that applications were made for mutation of the name of plaintiff on the basis of gift in the records of Nagpur Municipal Corporation (NMC) and Maharashtra Housing and Area Development Authority (MHADA)," the Court stated.

The Court concluded 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 Appeal was accordingly dismissed.

Cause Title: Sheikh Ibrahim vs. Sheikh Rehman (2025:BHC-NAG:4239)

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Bombay High CourtJustice Rohit W. Joshi

Sheetal Joon