Hafeeza Bibi &
Ors. Vs. Shaikh Farid (Dead) by LRs. & Ors.
R.M. Lodha, J.
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 1court for the purpose
of passing a preliminary decree after determining the shares to which each
party would be entitled.
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
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').
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 2plaintiffs stated that the defendants 4 to 7 are entitled
to other half share in `B' schedule properties.
Yakub -- defendant -- 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
in his written statement also referred to a previous suit for partition filed by
some of the parties which was dismissed in default.
of the original parties have died during the pendency of the suit. Their legal representatives
have been brought on record.
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.
3Consequently, vide judgment and decree dated April 27, 1988, the trial court
dismissed the plaintiffs' suit.
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 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.
present appellants are legal heirs of the deceased defendant
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 4and conveyed no title to the defendant
is the question for determination in this appeal.
is divergence of opinion amongst High Courts on the question presented before
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.
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 1952 (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
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......."
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."
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."
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) . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . ."
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
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 8the light of Section 129 of the T.P. Act and the rule of
Mohammadan Law relating to gifts.
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  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  3 AIR 1927 Cal 197 938 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
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........."
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.
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 1135
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."
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 12was) 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."
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
14123 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 : "
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."
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 15Single 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. . . . . . . . . ."
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 16Madras 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.
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 4111 AIR 1973 Gauhati 105 17gift 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."
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, 19however, by itself without the
other necessary conditions, is not sufficient.
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."
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 20valid 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.
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
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.
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.
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.
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 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 became complete
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)