The primary question sought to be dealt with in this article is whether an unregistered gift pertaining to immovable property is a valid gift in the case of Mohammedans. To answer this, relevant provisions of the Transfer of Property Act, 1882, the Registration Act, 1908, Mohammedan Law and judgments of various courts have been examined and set out.
The Transfer of Property Act, 1882 (“T.P. Act”) lays down what constitutes transfer of property, conditions attached to such transfer and the manner in which such transfers are to be effected. One such form of transfer is gift. Section 123 of the T.P. Act lays down the manner in which gifts are to be effected. For making a gift of immovable 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. Section 129 of the T.P. Act carves out an exception with regard to gifts by Mohammedans and reads as follows.
“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.”
The Registration Act mandates compulsory registration of certain documents, one of which is an instrument of gift of immovable property (Section 17). The consequence of non registration of compulsorily registrable documents is laid down in Section 49 of the Registration Act. One such consequence is that an unregistered document does not affect any immovable property comprised therein and cannot be received as evidence of any transaction affecting such property.
In Mahboob Sahab v. Syed Ismail and others[1], the Supreme Court of India referred to the Principles of Mahomedan Law by Mulla, 19th Edition in relation to a gift by a Muslim which reads as under:
“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 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…”
In Nasib Ali v. Wajed Ali[2], the question before the Division Bench of the Calcutta High Court was whether a deed of gift, not being registered under the Registration Act, was admissible in evidence. The Calcutta High Court held that a deed of gift by a Mohammedan is not an instrument effecting, creating or making the gift but a mere piece of evidence.
“…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 a mere piece of evidence.
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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 appl 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…”
While dealing with a similar question, a Full Bench of the Andhra Pradesh High Court[3] and Jammu and Kashmir High Court[4], respectively, drew a distinction between a document that was intended to constitute a gift and a document that was executed afterwards as a memorandum of a past transaction. Both Courts held that in the case of the former, registration of such document would be required under Section 17 of the Registration Act. This is also the view taken by Asaf A. A. Fyzee in Outlines of Muhammadan Law[5].
The Madras High Court[6] took yet another view. It held that though a Mohammedan could create a valid gift of immovable property orally, if such gift was reduced in writing, the gift would not be valid unless duly registered.
After considering all the aforesaid provisions, judgments of various High Courts (including those set out hereinabove) and the writings of jurists on the issue, the Supreme Court[7] held as under.
“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.
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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.
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34. …The Trial Court on consideration of the entire evidence on record has recorded a categorical finding that Shaik Dawood (donor), executed the [unregistered] 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.”
The aforesaid judgment of the Supreme Court has held that an unregistered gift deed pertaining to immovable property is a valid gift in the case of Mohammedans if it fulfills the three conditions of there being a declaration by the donor, acceptance by or on behalf of the donee and delivery of the subject of the gift by the donor to the donee.
Note:-
[1] (1995) 3 SCC 693
[2] AIR 1927 Cal 197
[3] Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum [AIR 1962 Andhra Pradesh 199]
[4] Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others [AIR 1974 Jammu & Kashmir 59]
[5] Outlines of Muhammadan law, Fifth Edition (edited and revised by Tahir Mahmood) at Pg. 182
[6] Amirkhan v. Ghouse Khan [(1985) 2 MLJ 136]
[7] Hafeeza Bibi & Ors. v. Shaikh Farid (Dead) by LRs. & Ors. Judgment dated 5th May, 2011 in Civil Appeal N. 1714 of 2005 : (2011) 5 SCC 654
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