Constructive Delivery Is Sufficient for Valid Hiba: Andhra Pradesh High Court Clarifies Essentials of Gift Under Mohammedan Law

“Registered Gift Carrying Clear Declaration and Delivery Recitals Raises Presumption of Valid Execution” Andhra Pradesh High Court delivered an important ruling on the concept of delivery of possession in a gift (Hiba) under Mohammedan Law. Justice V. Gopala Krishna Rao held that constructive or symbolic delivery of possession is sufficient to complete a valid gift, particularly where the donor continues in occupation at the request of the donee.

Rejecting the defendants’ contention that absence of physical departure by the donor invalidated the gift, the Court upheld concurrent findings of declaration of title and recovery of possession in favour of the donee’s legal heirs.

The suit property originally belonged to Md. Shareef, who executed a registered gift deed dated 23.10.2004 in favour of his daughter, late Haseena. The plaintiffs, being her husband and children, sought declaration of title and recovery of possession after disputes arose with the other heirs of the donor.

The defendants contended that possession was never delivered and that the donor continued to reside in the property until his death, thereby rendering the gift incomplete under Mohammedan Law.

Both the trial Court and first appellate Court rejected this contention, holding the gift valid. The matter reached the High Court in second appeal under Section 100 CPC.

Essentials of Hiba Under Mohammedan Law

The High Court examined the settled principles governing gifts under Mohammedan Law, particularly Sections 147 to 152 of Mulla’s Principles of Mohammedan Law, as explained by the Supreme Court in Rasheeda Khatoon v. Ashiq Ali.

A valid gift requires: a declaration by the donor, acceptance by the donee, and delivery of possession—actual or constructive.

The Court observed that Ex.A-1, the registered gift deed, contained a clear declaration that the property was gifted out of love and affection and without consideration. Acceptance was undisputed. The recitals further stated that possession was delivered to the donee on the date of execution.

Constructive Delivery Recognised

Addressing the argument that physical departure by the donor was absent, the Court held that delivery of possession need not always be physical. Constructive or symbolic delivery is sufficient compliance with the law where circumstances justify it.

The evidence showed that after execution of the gift deed, the donor requested his daughter to permit him and other family members to remain in the house as tenants, agreeing to pay rent. The Court accepted this arrangement as consistent with constructive delivery.

The trial Court’s observation, affirmed by the High Court, was that “the delivery may be constructive delivery and in cases a symbolic delivery has been held to be a good and sufficient compliance with the requirements of law.”

The Court further relied on precedent that postponement of enjoyment or retention of residence by the donor does not invalidate a gift where absolute rights have been transferred.

Presumption Attached to Registered Gift

The High Court emphasised that the gift deed was a registered instrument and had never been challenged during the donor’s lifetime. Citing Abdul Rahim v. Sk. Abdul Zabar, the Court reiterated that “a registered document carries with it a presumption that it was validly executed.”

The burden lay squarely on the defendants to establish that the gift was invalid or incomplete. The Court found that the defendants failed to discharge this burden.

The donor himself never questioned the gift, nor did the defendants institute proceedings for cancellation. In the absence of a decree setting aside the gift deed, it continued to confer valid title.

Continued Possession by Donor Not Fatal

The Court clarified that continued residence of the donor does not automatically negate delivery, particularly in close familial relationships. The father’s occupation of the property at the request of the daughter, after transferring title, was consistent with a landlord-tenant arrangement rather than retention of ownership.

Such factual circumstances supported the inference of constructive possession having passed to the donee.

No Substantial Question of Law

Reaffirming the limited jurisdiction under Section 100 CPC, the Court held that concurrent findings of fact regarding execution, delivery, and validity of the gift could not be disturbed. No perversity or legal infirmity was shown.

The second appeal was accordingly dismissed, and two months’ time was granted to the appellants to deliver vacant possession.

The judgment serves as an important reaffirmation that under Mohammedan Law, delivery of possession for a valid Hiba may be actual or constructive. A registered gift deed containing clear recitals of declaration and delivery, coupled with acceptance and absence of challenge, is sufficient to confer title—even if the donor continues to reside in the property under a permissive arrangement.

The ruling reinforces both the sanctity of registered instruments and the settled principles governing gifts in personal law.

Date of Decision: 25/02/2026