Case Law Details
A gift of immovable property made by a Muslim is valid even if it is not registered under the Transfer of Property Act or the Stamps and Registration Act, the Supreme Court today ruled. The apex court said though the TP Act mandates registration of a gift, the same would not apply to a Muslim donor as the community has been exempted from the provision.
A bench of justices R M Lodha and S S Nijjar in a judgement quashed a ruling of the Andhra Pradesh High Court that the property gifted by late Shaik Dawood to one of his sons Mohammed Yakub was not valid as it was not registered under the law.
The bench said 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.
IN THE SUPREME COURT OF INDIA
Please become a Premium member. If you are already a Premium member, login here to access the full content.
If a gift namely HIBA made under Muslim Law, on a stamped paper to show the past incident that such property has been given orally by way of a valid HIBA and this written document will act only as a reference to this oral Hiba.
Now, whether this HIBA is liable to fall to under The Stamp Act, 1899 to pay the requisite stamp duty?
this is a very good judgement as far as muslim law is concerned. It saves time and money. One should remember that as per Shariat a muslim can gift his/her property to any one who may not even be his/her relative during the lifetime and the children cannot have claim on such proeprty if the trasfer is made during the donor’s life time.
registration should be must under this guard any person who has to make transfer of property by way of sale if between near relatives permitted under law to transfer by way of gifts will make a gift deed unregistered and not the sale deed which requires to be registered ,and such persons will be exempted to pay the required stamp duty and court fee , which will make losses to revenue of govt.
though it is provided in “shariat” but this decision will create more litigation’s.
Just if under this very judgment a person goes to revenue authorities for alteration in revenue records by way of a mutation by oral gift just showing to authorities only a paper where by A has gifted orally to him.revenue authorities have no option but to record entry .
this will create more litigations only and will frustrate every person be it revenue auth or judges or advocates or every person whose interest in property may be at stake
This is a very good good judgement. But no citiation iis mentioned. If one has to look for it where does he go ? SCR / SCC /AIR / APEX / JT / Journal of CS / ICA /ICWA or any other journal. Without proper citation, the infornation is incomplete as it is not feasible to invoke such judement/orders to render any kind of professional/general advice to anybody.