REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1714 OF 2005
Hafeeza Bibi & Ors. .... Appellants
Versus
Shaikh Farid (Dead) by LRs. & Ors. ....Respondents
JUDGMENT
R.M. Lodha, J.
This appeal, by special leave, arises from the judgment
of the High Court of Andhra Pradesh dated September 13, 2004
whereby the Single Judge of that Court set aside the judgment and
decree dated April 27, 1988 passed by the Principal, Subordinate
Judge, Vishakhapatnam and remitted the matter back to the trial
1
court for the purpose of passing a preliminary decree after
determining the shares to which each party would be entitled.
2. Shaik Dawood had three sons; Shaik Farid, Mehboob
Subhani and Mohammed Yakub. He also had five daughters;
Sappoora Bibi, Khairunnisa Begum, Noorajahan Begum, Rabia Bibi
and Alima Bibi. All the five daughters were married. His wife
predeceased him. Shaik Dawood retired as Reserve Head Constable.
He was also a Unani Medical Practitioner.
3. Shaik Farid, Sappoora Bibi, Khairunnisa Begum,
Noorajahan Begum and Mohd. Iqbal (son of Alima Bibi) - hereinafter
referred to as `plaintiffs' - filed a suit for partition against Mehboob
Subhani, Mohammed Yakub and Rabia Bibi (hereinafter referred to
as `defendant 1', `defendant 2' and `defendant 3' respectively). The
son and daughters of Syed Ali, who was brother of Shaik Dawood,
were impleaded as other defendants (hereinafter referred to as
`defendants 4 to 7').
4. The parties are governed by Sunni Law. The plaintiffs
averred in the plaint that Shaik Dawood died intestate on December
19, 1968 and the plaintiffs and defendants 1 to 3 became entitled to
`A' schedule properties and half share in `B' schedule properties. The
2
plaintiffs stated that the defendants 4 to 7 are entitled to other half
share in `B' schedule properties.
5. Mohammed Yakub -- defendant 2 -- contested the suit
for partition. He set up the defence that Shaik Dawood executed hiba
(gift deed) on February 5, 1968 and gifted his properties to him.
Shaik Dawood put him in possession of the hiba properties on that
day itself. The hiba became complete and the plaintiffs were fully
aware of that fact. The defendant 2 in his written statement also
referred to a previous suit for partition filed by some of the parties
which was dismissed in default.
6. Some of the original parties have died during the
pendency of the suit. Their legal representatives have been brought
on record.
7. The trial court framed four issues. The issue relevant for
the purpose of the present appeal is issue no.2 which is to the effect
whether hiba dated February 5, 1968 is true, valid and binding on the
plaintiffs. The trial court, after recording the evidence and on hearing
the parties, answered issue no. 2 in the affirmative and, held that
plaintiffs were not entitled to the shares claimed in the plaint.
3
Consequently, vide judgment and decree dated April 27, 1988, the trial
court dismissed the plaintiffs' suit.
8. The plaintiffs challenged the judgment and decree of the
trial court before the High Court. Inter alia, one of the arguments
raised before the High Court on behalf of the appellants was that the
gift dated February 5, 1968 being in writing was compulsorily required
to be registered and stamped and in absence thereof, the gift deed
could not be accepted or relied upon for any purpose and such
unregistered gift deed would not confer any title upon the defendant 2.
The High Court was persuaded by the argument and held that the
unregistered gift deed would not pass any title to the defendant 2 as
pleaded by him. The High Court, as indicated above, allowed the
appeal; set aside the judgment and decree of the trial court and sent
the matter back to that court for the purposes of passing a preliminary
decree.
9. The present appellants are legal heirs of the deceased
defendant 2.
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
4
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.1 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 others2, 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
1 1922 (49) IA 195
2 (1995) 3 SCC 693
5
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.
6
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ;
7
(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
8
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 Ali3, 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]
3 AIR 1927 Cal 197
9
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........."
10
20. In Sankesula Chinna Budde Saheb v. Raja Subbamma4,
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 Begum5, 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 :
4 1954 2 MLJ 113
5 AIR 1962 Andhra Pradesh 199
11
"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 Charayil6, V.R. Krishna Iyer, J. (as His Lordship then
6 AIR 1972 Kerala 27
12
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
13
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 others7 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
7 AIR 1974 Jammu & Kashmir 59
14
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 others8, was
concerned with the question about the gift by Mohammadan. The
8 AIR 1975 Andhra Pradesh 271
15
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 Khan9, 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
9 (1985) 2 MLJ 136
16
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 others10, 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 Ali11 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
10 AIR 1984 Gauhati 41
11 AIR 1973 Gauhati 105
17
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
18
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,
19
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
20
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
21
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 Begum5. 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. Hesabuddin10 . 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.
34. Now, as regards the facts of the present case, the gift was
made by Shaik Dawood by a written deed dated February 5, 1968 in
favour of his son Mohammed Yakub in respect of the properties `A'
schedule and `B' schedule appended thereto. The gift - as is recited
in the deed - was based on love and affection for Mohammed Yakub
22
as after the death of donor's wife, he has been looking after and
helping him. Can it be said that because a declaration is reduced to
writing, it must have been registered? We think not. The acceptance
of the gift by Mohammed Yakub is also evidenced as he signed the
deed. Mohammed Yakub was residing in the `B' schedule property
consisting of a house and a kitchen room appurtenant thereto and,
thus, was in physical possession of residential house with the donor.
The trial court on consideration of the entire evidence on record has
recorded a categorical finding that Shaik Dawood (donor), executed
the gift deed dated February 5, 1968 in favour of donee (Mohammed
Yakub), the donee accepted the gift and the donor handed over the
properties covered by the gift deed to the donee. The trial court
further held that all the three essentials of a valid gift under the
Mohammadan Law were satisfied. The view of the trial court is in
accord with the legal position stated by us above. The gift deed dated
February 5, 1968 is a form of declaration by the donor and not an
instrument of gift as contemplated under Section 17 of the Registration
Act. As all the three essential requisites are satisfied by the gift deed
dated February 5, 1968, the gift in favour of defendant 2 became
complete and irrevocable.
23
35. The High Court in the impugned judgment relied upon the
Full Bench decision in the case of Tayyaba Begum5 but we have
already held that the view of the Full Bench in Tayyaba Begum5 is not
a correct view and does not lay down the correct law.
36. Consequently, the appeal is allowed and the judgment and
order dated September 13, 2004 passed by the High Court of Andhra
Pradesh is set aside. The judgment and decree dated April 27, 1988
passed by the Principal, Subordinate Judge, Vishakhapatnam is
restored. The parties shall bear their own costs.
........................ J.
(R.M. Lodha)
.......................... J.
(Surinder Singh Nijjar)
NEW DELHI.
MAY 5, 2011.
24
