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Default Hiba — Capacity for Making a Gift

Hiba — Capacity for Making a Gift

Dubai Raj / 23 November 2009

A s in all religions, Islam too attaches great value to the performance of charity and to the act of giving. In the Holy Quran, it is laid down that the act of spending out of love for God, your kin, for orphans, for the poor, for the wayfarers, for those who ask, and to be steadfast in prayer and to practice regular charity, are all held to be acts of righteousness.

Gift is a generic term that includes all transfers of property without consideration. In India, Gift is considered equivalent to Hiba but technically, Gift has a much wider scope than Hiba. The word Hiba literally means, the donation of a thing from which the donee may derive a benefit. It must be immediate and complete. The most essential element of Hiba is the declaration, “I have given”.

As per Hedaya, Hiba is defined technically as, “unconditional transfer of property, made immediately and without any exchange or consideration, by one person to another and accepted by or on behalf of the latter”.

Under Muslim Law, where one Muslim signifies his willingness to make to another an immediate and unconditional transfer without consideration of the ownership of an existing and definite piece of property, and if the other accepts that transfer of ownership and if possession of the property is transferred thereupon, then a valid gift (or “Hiba” as it is called) takes place in respect of such property.

Since Muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance (qabul), and transfer (qabza). The transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void

The donor (the person who gives). Any person who is sui juris can make a gift of his property. Like any other contract, the requisite conditions are [the age of] majority, understanding, freedom and ownership of the subject matter of the disposition. A person must be major, able to understand the nature of the act, be subject to no undue influence, coercion or duress and must be the owner of the property to be gifted. A declaration by the donor therefore must be clear and unambiguous intention of the donor to make a gift. Further Conditions for donor would be that he must be free of any fraudulent or coercive advice as well as undue influence & of course he must have ownership over the property to be transferred by way of gift.

A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin woman is also valid but in case of a dispute the burden of proof that the transaction was not conducted by coercion or undue influence is on the donee. A person in insolvent circumstances is also valid provided that it is bona fide and not merely intended to defraud the creditors.

Acceptance – The one who can receive is known as the donee. Acceptance may be made expressly or implied by conduct. Any person can receive a gift if he or she is in existence at the time of the gift. An absolute gift to an unborn child is invalid, but if the child is born within six months of the date of gift, it will be valid on the presumption that the child was actually existing in the womb of the mother. A muslim may also make a lawful gift to a non-muslim. The Donee must be in existence at the time of giving the gift, & In case of a minor or lunatic, the possession must be given to the legal guardian otherwise the gift is void.

A Gift to an unborn person is void. However, gift of future usufructs to an unborn person is valid provided that the donee is in being when the interest opens out for heirs.

A gift is void is the donee has not given his acceptance. The real test of the delivery of possession is to see who (the donor or the donee) reaps the benefits of the property. If the donor is reaping the benefit then the delivery is not done and the gift is invalid.

Muslim law recognises the difference between the corpus and the usufructs of a property. Corpus, or Ayn, means the absolute right of ownership of the property which is heritable and is unlimited in point of time, while, usufructs, or Manafi, means the right to use and enjoy the property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.

A Hiba, once validly created cannot be revoked. No receiver of a gift under a Hiba can also be compelled to give anything in exchange. Of course, it is quite common that the donor and receiver agree that something will be done or given in exchange for the gift, and such gifts fall under a different category altogether, known as Hiba bil Iwaz or gifts for return.

A Hiba which does not take effect immediately is of no effect whatsoever. Finally, a Hiba which is purported to be made by a person who is on his death-bed, cannot operate on a greater piece of property than his will (or Wasiyat) would, if he had left behind a will. Such gifts in contemplation of death are known as donatio mortis causa and can operate to the extent of one-third of the donor’s estate only. As distinguished from a Will, a gift may be made of the whole property of the donor, even to an heir. It can be made in favour of a stranger to the exclusion of his heir. The only restriction is the rule which invalidates death-bed gifts.

Having regard to all of the above, it is clear that a Muslim gentleman who wants to provide for his son or daughter like his Hindu or Christian brethren, would, instead of executing a Settlement Deed, make a Hiba of his property in such manner and form as he thought fit, and thereby, ensure that the son or daughter in question had a piece of property which they could then utilise for their maintenance and upkeep. 




(published in Khaleej Times
http://www.khaleejtimes.com/darticle...ction=business )
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Default Gift under Muslim Law : The Concept

Gift under Muslim Law : The Concept
Justice R.M. Lodha - Monday, May 9, 2011


The Supreme Court in Hafeeza Bibi Vs. Shaikh Farid (Dead) has examined the concept of Gift under Muslim Law and its interplay with the provisions of the Transfer of Property Act and the Registartion Act. The question posed before the Supreme Court in this case was whether an unregistered Gift Deed is a valid gift and a valid conveyance of title. The relevant portions of the judgment are reproduced hereinbelow;

10. As to whether or not the High Court is right in its view that the unregistered gift deed dated February 5, 1968 is not a valid gift and conveyed no title to the defendant 2 is the question for determination in this appeal.

11. There is divergence of opinion amongst High Courts on the question presented before us.

12. The Privy Council in the case of Mohammad Abdul Ghani (since deceased) & Anr.v. Fakhr Jahan Begam & Ors. 1922 (49) IA 195 referred to `Mohammadan Law'; by Syed Ameer Ali and approved the statement made therein that three conditions are necessary for a valid gift by a Muslim:

(a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly;

(c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively.

13. In Mahboob Sahab v. Syed Ismail and others (1995) 3 SCC 693, this Court referred to the Principles of Mahomedan Law by Mulla, 19th Edition and in paragraph 5 (pp. 696-697) noticed the legal position, in relation to a gift by Muslim incorporated therein, thus :

"5. Under Section 147 of the Principles of Mahomedan Law by Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of moveable or of immovable property. Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only the gift is complete. Section 152 envisages that where the donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift......."

14. Section 123 of the Transfer of Property Act, 1882 (for short, `T.P. Act') lays down the manner in which gift of immoveable property may be effected. It reads thus :

"S.123. Transfer how effected. -- For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered."

15. However, an exception is carved out in Section 129 of the T.P. Act with regard to the gifts by a Mohammadan. It reads as follows:

"S.129. Saving of donations mortis causa and Muhammadan Law. -- Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law."

16. At this stage, we may also refer to Section 17 of the Registration Act, 1908 which makes registration of certain documents compulsory. Section 17 of the Registration Act, to the extent it is necessary, reads as follows :

"S.17. Documents of which registration is compulsory. –

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--

(a) instruments of gift of immovable property; (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . ; (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

17. Section 49 of the Registration Act deals with the effect of non-registration of documents required to be registered. It reads thus:

"S.49. Effect of non- registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall-- (a) affect any immovable property comprised therein or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882 ), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877 ), or as evidence of any collateral transaction not required to be effected by registered instrument."

18. Section 17(1)(a) of the Registration Act leaves no manner of doubt that an instrument of gift of immoveable property requires registration irrespective of the value of the property. The question is about its applicability to a written gift executed by a Mohammadan in the light of Section 129 of the T.P. Act and the rule of Mohammadan Law relating to gifts.

19. In the case of Nasib Ali v. Wajed Ali AIR 1927 Cal 197, the contention was raised before the Division Bench of the Calcutta High Court that the deed of gift, not being registered under the Registration Act, is not admissible in evidence. The Calcutta High Court held that a deed of gift by a Mohammadan is not an instrument effecting, creating or making the gift but a mere piece of evidence. This is what the High Court said :

".........The position under the Mahomedan Law is this : that a gift in order to be valid must be made in accordance with the forms stated above; and even if it is evidenced by writing, unless all the essential forms are observed, it is not valid according to law. That being so, a deed of gift executed by a Mahomedan is not the instrument effecting, creating or making the gift but a mere piece of evidence. It may so happen after a lapse of time that the evidence of the observance of the above forms might not be forthcoming, so it is sometimes thought prudent; to reduce the fact that a gift has been made into writing. Such writing is not a document of title but is a piece of evidence.

3. The law with regard to the gift being complete by declaration and delivery of possession is so clear that in a case before their Lordships of the Judicial Committee Kamarunnissa Bibi v. Hussaini Bibi [1880] 3 All. 266, where a gift was said to have been made in lieu of dower, their Lordships held that the requisite forms having been observed it was not necessary to enquire whether there was any consideration for the gift or whether there was any dower due. The case of Karam Ilahi v. Sharfuddin [1916] 38 All. 212 is similar in principle to the present case. There also a deed relating to the gift was executed. The learned Judge held that if the gift was valid under the Mahomedan Law it was none the less valid because there was a deed of gift which, owing to some defect, was invalid under Section 123, Transfer of Property Act, and could not be used in evidence.

4. The next, question that calls for consideration is whether a document like the present one executed by a Mahomedan donor after he made a gift to show that he had made it in favour of the donee is compulsorily registrable under the Registration Act. Under Section 17 of the Registration Act an instrument of gift must be registered. By the expression 'instrument of gift of immovable property' I understand an instrument or deed which creates, makes or completes the gift, thereby transferring the ownership of the property from the executant to the person in whose favour it is executed. In order to affect the immovable property, the document must be a document of transfer; and if it is a document of transfer it must be registered under the provisions of the Registration Act.

5. The present document does not affect immovable property. It does not transfer the immovable property from the donor to the donee. It only affords evidence of the fact that the donor has observed the formalities under the Mahomedan Law in making the gift to the donee. I am prepared to go so far as to hold that a document like the present one is not compulsorily registrable under the Registration Act, or the Registration Act does not apply to a so-called deed of gift executed by a Mahomedan. But for purposes of the present case it is not necessary to go so far because I hold that this document is only a piece of evidence, and conceding that it should, have been registered, the effect of its non-registration is to make it inadmissible in evidence under Section 49 of the Registration Act........."

20. In Sankesula Chinna Budde Saheb v. Raja Subbamma 1954 2 MLJ 113, the Andhra Pradesh High Court, after noticing the three essentials of a gift under the Mohammadan Law, held that if a gift was reduced to writing, it required registration under Section 17(1)(a) of the Registration Act. It went on to hold that even if by virtue of Section 129 of the T.P. Act, a deed of gift executed by Mohammadan was not required to comply with the provisions of Section 123 of the T.P. Act, still it had to be registered under Section 17(1)(a) of the Registration Act when the gift related to immoveable property.

21. A Full Bench of the Andhra Pradesh High Court in the case of Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199, was called upon to decide on a reference made by the Board of Revenue under Section 55 of the Hyderabad Stamp Act whether the document under consideration therein was a gift deed or it merely evidenced a past transaction. The High Court applied the test - whether the parties regarded the instrument to be a receptacle and appropriate evidence of the transaction; was it intended to constitute the gift or was it to serve as a record of a past event - and held as under :

"12. We have to examine the document in question in the light of these rules. No doubt, there was recitals therein which relate to past transaction. But that is not decisive of the matter. What is the purpose which it was designed to serve? That the executant did not treat it as a memorandum of a completed hiba is evident from some of the sentences. In the deed, such as "I deemed it necessary to execute a deed also making a declaration in favour of my son...in accordance with the Muslim law", and the last portion of the document. The anxiety of the donor to free the title of the donee to the property from all doubts and to save him from future litigation is clearly exhibited in the last sentence. "I pray that no one may have any kind of doubt regarding the ownership of Syed Ehasan Hussain and that if per chance any doubt at all should arise, this deed of Ekrarnama may prove sufficient." This sentence is expressive of her intention to silence all doubts regarding the ownership of the property with the aid of this document. She did not want anyone to challenge the title of the donee to the house in question. This object could be attained only if it is regarded as a conveyance, a document which effected the transfer by its own force. If, on the other hand, if it is a mere record of a past transaction, that would not have the desired effect. There is one circumstance which gives some indication as to the intention of the executant of the document. The document is attested by two witnesses as required by Section 123 of the Transfer of Property Act. No doubt, this is not conclusive of the matter. But it is indicative of the desire of the executant that it should serve as evidence of the gift and not as a memorandum of a past transaction."

22. In Makku Rawther's Children: Assan Ravther and others v. Manahapara Charayil, V.R. Krishna Iyer, J. (as His Lordship then 6 AIR 1972 Kerala 27 was) did not agree with the test applied by the Full Bench of Andhra Pradesh High Court and the reasoning given in Tayyaba Begum5 . He held in paragraphs 8 and 9 of the report thus :

"8. I regret my inability to agree with the reasoning in these decisions. In the context of Section 17, a document is the same as an instrument and to draw nice distinctions between the two only serves to baffle, not to ill mine. Mulla says:

"The words `document' and `instrument' are used interchangeable in the Act".

An instrument of gift is one whereby a gift is made. Where in law a gift cannot be effected by a registered deed as such, it cannot be an instrument of gift. The legal position is well-settled. A Muslim gift may be valid even without a registered deed and may be invalid even with a registered deed. Registration being irrelevant to its legal force, a deed setting out Muslim gift cannot be regarded as constitutive of the gift and is not compulsorily registerable."

9. Against this argument counsel invoked the authority of the Andhra Pradesh Full Bench. One may respect the ruling but still reiect the reasoning. The Calcutta Bench in AIR 1927 Cal 197 has discussed the issue from the angle I have presented. The logic of the law matters more than the judicial numbers behind a view. The Calcutta Bench argued:

"The essentials of a gift under the Mahomedan law are ..... A simple gift can only be made by going through the above formalities and no written instrument is required. In fact no writing is necessary to validate a gift; and if a gift is made by a written instrument without delivery of possession, it is invalid in law ..... That being so, a deed of gift executed by a Mahomedan is not the instrument effecting, creating or making the gift but a mere piece of evidence ..... Under Section 17 of the Registration Act an instrument of gift must be registered. By the expression 'instrument of gift of immovable property' I understand an instrument or deed which creates, makes or completes the gift thereby transferring the ownership of the property ..... The present document does not affect immovable property. It does not transfer an immovable property from the donor to the donee which only affords evidence of the fact that the donor has observed the formalities under the Mahomedan law in making the gift ..... I am prepared to go so far as to hold that a document like the present one is not compulsorily registrable under the Registration Act, or the Registration Act does not apply to a so-called deed of gift executed by a Mahomedan."

These observations of Suhrawardy, J. have my respectful concurrence. So confining myself to this contention for the nonce, I am inclined to hold that Ext. B1 is admissible notwithstanding Ss. 17 and 49 of the Indian Registration Act. This conclusion, however, is little premature if I may anticipate my opinion on the operation of Section 129 of the Transfer of Property Act expressed later in this judgment. Indeed, in the light of my interpretation of Section 129, Ext. B1 needs to be registered. For the present I indicate my conclusion, if the law of gifts for Muslims were not to be governed by Section 129."

23. The Full Bench of Jammu and Kashmir High Court in Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others AIR 1974 Jammu & Kashmir 59 had an occasion to consider the question whether in view of the provisions of Sections 123 and 129 of the T.P. Act, the rule of gifts in Mohammadan Law stands superseded; and whether it is necessary that there should be a registered instrument as required by Sections 123 and 138 of the T.P. Act in the case of gifts made under that Law. The Full Bench noticed the statutory provisions and also decisions of different High Courts including the decision of Calcutta High Court in the case of Nasib Ali3. The Full Bench held as follows :

"14. The ratio of the above cited authorities is therefore in favour of the proposition that an oral gift made under the Muslim law would not be affected by Section 123 of the Transfer of Property Act and the gift if it has otherwise all the attributes of a valid gift under the Muslim Law would not become invalid because there is no instrument in writing and registered. Therefore the answer to the question formulated would be in the negative i.e. that Sections 123 and 129 of the Transfer of Property Act do not supersede the Muslim law on matters relating to making of oral gifts, that it is not essential that there should be a registered instrument as required by Sections 123 and 138 of the Transfer of Property Act in such cases. But if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered as provided under Section 17 of the Registration Act. If, however, the making of the gift is an antecedent act and a deed is executed afterwards as evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create, make or complete the gift thereby transferring the ownership of the property from the executant to the person in whose favour it is executed."

24. The Single Judge of the Andhra Pradesh High Court in the case of Chota Uddandu Sahib v. Masthan Bi (died) and others AIR 1975 Andhra Pradesh 271, was concerned with the question about the gift by Mohammadan. The Single Judge referred to some of the decisions noticed above and few other decisions and held in paragraph 10 of the report thus :

"10. Under Section 129 of the Transfer of Property Act, nothing in Chapter VII relates to gifts of movable property made in contemplation of death or shall be deemed to affect any rule of Mohammadan Law. According to the Mohammedan Law, there can be a valid gift, if three essentials of the gift are satisfied. (1) a declaration of the gift by the donor, (2) the acceptance of the gift express or implied by or on behalf of the donee and (3) delivery of possession of the subject of gift by the donor to the donee. If these conditions are complied with the gift is complete. According to Muslim law it is not necessary that there should be a deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered. But if the deed is merely a memoranda of an already effected gift, then it stands on a separate footing. In view of this specific provision of Muslim Law, which is saved by Section 129, it cannot be held that the gifts amongst muslims also should satisfy the provisions of Chapter VII. . . . . . . . . . . . Hence if all the formalities, as prescribed by Muslim Law, regarding the making of gifts are satisfied, the gift is valid notwithstanding the fact that it is oral and without any instrument. If there is a contemporaneous document it should be registered. But if the gift is antecedent and the deed is subsequent merely evidencing the past transaction, it does not require registration, because it does not by itself make or complete the gift. . . . . . . . . ."

25. In the case of Amirkhan v. Ghouse Khan (1985) 2 MLJ 136, one of the questions that arose for consideration before the Madras High Court was : whether the gift of the immoveable property by Mohammadan, if reduced to writing, required registration. The Single Judge of the Madras High Court concluded that though a Mohammadan could create a valid gift orally, if he should reduce the same in writing, the gift will not be valid unless it is duly registered.

26. In the case of Md. Hesabuddin and others v. Md. Hesaruddin and others AIR 1984 Gauhati 41, the question with regard to gift of immoveable property written on ordinary unstamped paper arose before the Gauhati High Court. That was a case where a Mohammadan mother made a gift of land in favour of her son by a gift deed written on ordinary unstamped paper. The Single Judge of the High Court relying upon an earlier decision of that Court in Jubeda Khatoon v. Moksed Ali, AIR 1973 Gauhati 105 held as under:

"..... But it cannot be taken as sine qua non in all cases that wherever there is a writing about a Mahomedan gift of immovable property, there must be registration thereof. The facts and circumstances of each case have to be taken into consideration before finding whether the writing requires registration or not. The essential requirements, as said before, to make a Mahomedan gift valid are declaration by the donor, acceptance by the donee and delivery of possession to the donee. It was held in Jubeda Khatoon v. Moksed Ali, AIR 1973 Gau 105 (at p. 106)-

"Under the Mahomedan Law three things are necessary for creation of a gift. They are (i) declaration of gift by the donor, (ii) acceptance of the gift express or implied by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee. The deed of gift is immaterial for creation of gift under the Mahomedan Law. A gift under the Mahomedan Law is not valid if the above mentioned essentials are not fulfilled, even if there be a deed of gift or even a registered deed of gift. In other words even if there be a declaration of acceptance of the gift, there will be no valid gift under the Mahomedan Law if there be no delivery of possession, even though there may be registered deed of gift." In that case there was a deed of gift which was not produced during trial. Still it was found in that case that had the defendants produced the deed of gift, at best it would have proved a declaration of the gift by the donor and acceptance thereof by the donee. It was further held that despite this the defendants would have to lead independent oral evidence to prove delivery of possession in order to prove a valid gift. Therefore it was found in that case that deed of gift under the Mahomedan Law does not create a disposition of property. Relying on this it cannot be said that whenever there is a writing with regard to a gift executed by the donor, it must be proved as a basic instrument of gift before deciding the gift to be valid. In the instant case a mere writing in the plain paper as aforesaid containing the declaration of gift cannot tantamount to a formal instrument of gift. Ext. A (2) has in the circumstances of the present case to be taken as a form of declaration of the donor. In every case the intention of the donor, the background of the alleged gift and the relation of the donor and the donee as well as the purpose or motive of the gift all have to be taken into consideration. In the present case, it is recited in the said writings that the 3rd defendant has been maintaining and looking after the donor and that the other children of the donor were neglecting her. The gift was from a mother to a son and it was based on love and affection for the son in whose favour the gift was made. Therefore, it cannot be held that because a declaration is contained in the paper Ext. A (2) the latter must have been registered in order to render the gift valid. Admittedly, the 3rd defendant has been possessing the land and got his name mutated in the revenue records with respect to the land. It is therefore implied that there was acceptance on behalf of the donee and also that the possession of the property was delivered to the donee by the donor. It should be remembered that unless there was possession on behalf of the 3rd defendant, no mutation would have taken place with regard to the property. It may be repeated that Ext. A (2) has to be taken in the present case as a mere declaration of the donor in presence of the witnesses who are said to have attested the writing."

27. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift; such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient.

28. Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words :

"Under the Mahomedan law the three essential requisites to make a gift valid : (1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."

29. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.

30. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani1 stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.

31. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.

32. We are unable to concur with the view of the Full Bench of Andhra Pradesh High Court in the case of Tayyaba Begum. We approve the view of the Calcutta High Court in Nasib Ali3 that a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence, such writing is not a document of title but is a piece of evidence.

33. We also approve the view of the Gauhati High Court in the case of Md. Hesabuddin. The judgments to the contrary by Andhra Pradesh High Court, Jammu and Kashmir High Court and Madras High Court do not lay down the correct law.


(reproduced from
http://www.legalblog.in/2011/05/gift...w-concept.html)
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