Gift of Tenanted property – Under Mohammedan law, if the donor and donee being husband and wife are residing in the same property it is not essential that the donor should depart from the premises to deliver possession to the donee and same law will apply even when part of the premises are occupied by the tenants.

A
suit was brought about by the children of first wife of one Md. Bashir,
a Mohammedan, against his widow and the off-springs through his second
marriage for a declaration that the transfer by Md. Bashir of certain
premises to his widow by the alleged registered deed of gift dated 3rd
August, 2003 is voidable.

The alleged deed of gift was
challenged on the ground that under Mohammedan law, a gift of immovable
property is complete and valid only by delivery of possession. 80% of
the property was tenanted and that to make the gift complete and valid
there had to be delivery of possession of the tenanted portion by the
tenants attorning the tenancy in favour of the donee. Further, Md.
Bashir continued to issue rent receipts in his own name. No mutation of
the property with Kolkata Municipal Corporation was made.

The
court held that Chapter VII of the Transfer of Property Act relating to
gifts specifically stipulates in section 129 thereof that the provisions
in the Chapter do not “affect any rule of Mohammedan law.” This simply
meant that the gift would have to be justified in terms of Mohammedan
law.

Under the Mohammedan law, if the donor and donee are
residing in the same property, it is not essential that the donor should
depart from the premises to deliver possession to the donee. The gift
is completed by any overt act on the part of the donor to divest himself
of the control over the property. (paragraph 152 (2) of Mohammedan law
by Mulla). In paragraph 153, Mulla says that the same rule applies in
the case of husband and wife where the property is used for the joint
residence or is let out to tenants or partly used for residence and
partly let out to tenants. The husband is the natural manager of the
wife. Even if after gift of the property the husband collects rents from
the tenants, he is deemed to be doing so as the manager of his wife.
(paragraph 153 of Mulla). Hence, there were sufficient overt acts to
make the gift valid.