CAUSE TITLE:
Mst Haleema & Ors Vs Mst Dilshada & Ors.
DATE OF ORDER:
23 December 2022
JUDGE(S):
HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
PARTIES:
Petitioner: Mst Haleema & Ors
Respondent: Mst Dilshada & Ors.
SUBJECT
The Jammu and Kashmir and Ladakh High Court has stated that there is no requirement for the donor to actually leave the matrimonial house they share or any other property when a husband makes a gift to the wife in order to carry out the gift.
The remarks were made by Justice Sanjay Dhar as he was deliberating a case in which the appellant had contested an oral gift made by the deceased Mohammad Ashraf Dar to his wife (Defendant No. 1) on the grounds that she had not been given sole possession of the property as required by Muslim personal law.
BRIEF FACTS
- The plaintiff, who also happened to be the predecessor-in-interest of the appellants, had filed a lawsuit before the trial court, claiming that the parties to the lawsuit shared two properties: one home in Rajbagh, Srinagar, and another in Zaldagar, Srinagar.
- According to the plaintiff's claim, the parties' ancestors, Mohammad Ismail Dar and Habibullah, bought the land in Zaldagar, Srinagar, in proportions of 2/3 and 1/4, according to a sale deed dated 26th Badoon, 2002. (BK).
- The land of Habibullah was left vacant when the plaintiff and the defendants 1 to 11's ancestor, Shri Mohammad Ismail Dar, built a house in Zaldagar, Srinagar. The parties then began residing in the said house as joint tenants and the deceased Mohammad Ismail Dar's legal heirs until his passing.
- The plaintiff claimed that a house was built on land at Rajbagh, Srinagar, that had been purchased in the name of their brother, Shri Mohammad Ashraf Dar, through a sale deed dated 16.10.1976, while their father, Mohammad Ismail Dar, was still alive.
QUESTIONS RAISED
whether, in order for an oral gift to be considered legal under Muslim law, the donor has to give the recipient physical ownership of the gift object?
ARGUMENTS ADVANCED BY THE APPELLANT
- The plaintiff claimed that a house was built on land at Rajbagh, Srinagar, that had been purchased in the name of their brother, Shri Mohammad Ashraf Dar, through a sale deed dated 16.10.1976, while their father, Mohammad Ismail Dar, was still alive.
- The document EXJW-1, according to which defendant No. 1 claims that her husband has verified the oral gift of Rajbagh property in her favour, has not been proven, according to the learned counsel for the appellants. The learned counsel claims that the evidence presented by defendant No. 1 in this regard is inconsistent and unreliable.
ARGUMENTS ADVANCED BY THE RESPONDENT
- On the other hand, the respondents contend that the disputed document unequivocally demonstrates the intention of its executant to confirm his act of oral gift of the subject property in favour of his wife, defendant No. 1; as a result, the respondents contend that the disputed document is one that records the confirmation of an oral gift made by Mohammad Ashraf Dar in favour of his wife, defendant No.
ANALYSIS BY THE COURT
- In the present case, the court recognised that the late Mohammad Ashraf Dar had built the disputed residence during his lifetime and sometimes resided there. Although the evidence on file showed that he had verbally given this property to his wife (defendant No. 1) during his lifetime, there was no proof that her spouse had ever given her sole possession of the subject property at any point in time.
- In an effort to respond to the above said question, the court noted that in accordance with Mohammedan Law, three conditions must be met for a gift to be considered valid: (1) the donor's declaration of gift; (2) the donee's express or implied acceptance of the gift; and (3) the donee's actual or constructive receipt of the gift's subject.
- The connection between the donee and the donor in this situation is that of a husband and wife, and when a husband gives his wife a gift of either the marital home they both live in or any other property he owns, there is no requirement that the donor leaves his home.
- "The reason for this is that husband and wife relationships are unique from all other relationships. The husband's management and maintenance of the wife's property are supported by an implied presumption that he does so on the wife's behalf, and joint residence is an essential component of this relationship ".
- The court argued that because the evidence on file shows that the late Mohammad Ashraf Dar had the relevant property, it follows that his wife, defendant No. 1, was also in possession of the property and that, following the execution of the oral gift, her husband was respectful for the relevant property on her behalf.
- As a result, it was determined that the appellant's attorney's claim that the oral gift was illegal since defendant No. 1's exclusive ownership could not be proven without basis.
CONCLUSION
The Jammu and Kashmir and Ladakh High Court stated that there is no requirement for a husband to physically leave his wife to carry out a gift of his other property or the matrimonial house in which they both reside.
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