LAW FOR ALL

Mohammadan law: Hiba (gift) - Essential requisites of - Held: Are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee and (3) delivery of possession -The rules of Mohammadan Law do not make writing essential to the validity of a gift and 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 - In the instant case, as all the three essential requisites are satisfied by the gift deed - The gift in favour of defendant 2 became complete and irrevocable -Judgment of High Court set aside and that of trial court, holding the gift deed genuine and binding between the parties, restored -Transfer of Property Act - ss. 129 and 123. Transfer of Property Act, 1882: ss. 123 and 129 - Deed of gift executed by a Mohammadan - HELD: Is not the instrument effecting, creating or making the gift - Such writing is not a document of title but is a piece of evidence - Section 129 preserves the rule of Mohammadan Law and excludes the applicability of s. 123 to a gift of an immovable property by a Mohammadan - In the instant case, the gift deed is a form of declaration by the donor and not an instrument of gift as contemplated u/s 17 of the Registration Act - Registration Act, 1908 - s.17. In a suit for partition between the parties governed by Sunni Law, defendant no. 2 set up the defence that his father executed a hiba (gift deed) on 5.2.1968 and gifted his properties to him, and put him in possession of the hiba properties. The trial court held the hiba as true, valid and binding between the parties, and dismissed the suit. In the appeal, before the High Court it was contended for the plaintiffs that the gift deed dated 5-2-1968 being in writing was compulsorily required to be registered and stamped and in the absence thereof the gift deed could not be accepted and relied upon. The High Court allowed the appeal and remanded the matter to the trial court for passing a preliminary decree.= Allowing the appeal filed by heirs of defendant no.2, the Court HELD: 1.1. 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: (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. The rules of Mohammadan Law do not make writing essential to the validity of a gift; and 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. [para 27] [1175-h; 1176-a-b] 1.2. 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 a 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 be in conformity with the rule of gifts in Mohammadan Law. [para 29] [1176-H; 1177-A-C] 1.3. 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. [para 32] [1178-A-B] Mahboob Sahab v. Syed Ismail and others 1995 (2) SCR975= (1995) 3 SCC 693 - relied on. Nasib Ali v. Wajed Ali AIR 1927 Cal 197; Md. Hesabuddin and others v. Md. Hesaruddin and others AIR 1984 Gauhati 41; Jubeda Khatoon v. Moksed Ali AIR 1973 Gauhati 105; and Makku Rawther's Children: Assan Ravther and others v. Manahapara Charayil AIR 1972 Kerala 27- approved. Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199; Sankesula Chinna Budde Saheb v. Raja Subbamma 1954 2 MLJ 113; Amirkhan v. Ghouse Khan (1985) 2 MLJ 136; Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others AIR 1974 JammuAND Kashmir 59; and Chota Uddandu Sahib v. Masthan Bi (died) and others AIR 1975 Andhra Pradesh 271 - disapproved. Mohammad Abdul Ghani (since deceased)AND ANOTHERv. Fakhr Jahan BegamAND OTHERS 1922 (49) IA 195- referred to Mohammadan Law by Syed Ameer Ali; Mahomedan Law by Mulla, 19th Edition 5(pp.696-697); Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182; and Mulla, Principles of Mahomedan Law (19th Edition), Page 120 -referred to. 2.1. Section 17(1)(a) of the Registration Act, 1908 leaves no manner of doubt that an instrument of gift of immoveable property requires registration irrespective of the value of the property. Section 123 of the Transfer of Property Act, 1882 lays down the manner in which gift of immoveable property may be effected and prescribes that transfer of immovable property by gift must be effected by a registered instrument. However, an exception is carved out in s. 129 of the T.P. Act with regard to the gifts by a Mohammadan. [para 14,15 and 18] [1164-B-E; 1166-A] 2.2. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of s. 123 of T.P. Act to a gift of an immovable property by a Mohammadan. 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 u/s. 17 of the Registration Act. Each case would depend on its own facts. [para 31] [1177-F-G] 2.3. In the inastant case, the gift was made by the father of defendant no. 2 by a written deed dated 5.2.1968 in his favour 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 defendant no. 2 as after the death of donor's wife, he has been looking after and helping him. Therefore, it cannot be said that because a declaration is reduced to writing, it must have been registered. The acceptance of the gift by defendant no 2 is also evidenced as he signed the deed. He 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 the donor, executed the gift deed dated 5-2-1968 in favour of donee, the donee accepted the gift and the donor handed over the properties covered by the gift deed to the donee, and thus 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. The gift deed dated 5.2.1968 is a form of declaration by the donor and not an instrument of gift as contemplated u/s 17 of the Registration Act. As all the three essential requisites are satisfied by the gift deed dated 5.2.1968, the gift in favour of defendant 2 became complete and irrevocable. [para 34] [1178-G-H; 1179-A] 2.4. The High Court in the impugned judgment relied upon the Full Bench decision in the case of Tayyaba Begum which is not a correct view and does not lay down the correct law. The judgment and order passed by the High Court is set aside. The judgment and decree passed by the Principal Subordinate Judge is restored. [para 35-36] [1179-B-C] Case Law Reference: 1922 (49) IA 195 referred to para 12 1995 (2) SCR 975 relied on para 13 AIR 1927 Cal 197 approved para 19 1954 2 MLJ 113 disapproved para 20 AIR 1962 Andhra Pradesh 199 disapproved para 21 1972 Kerala 27 approved para 22 AIR 1974 JammuAND Kashmir 59 disapproved para 23 AIR 1975 Andhra Pradesh 271 disapproved para 24 (1985) 2 MLJ 136 disapproved para 27 AIR 1984 Gauhati 41 approved para 28 AIR 1973 Gauhati 105 approved para 28 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1714 of 2005. From the JudgmentAND Order dated 13.9.2004 of the High Court of Judicature, Andhra Pradesh at Hyderabad in First Appeal No. 1685 of 1988. A.K. Srivastav, G.R.K. Paramahamsa, Lokesh Kumar (for M.K.Garg) for the Appellants. V. Mohana for the Respondents.