Gift of property by a Muslim need not be registered: SC

Last Updated: Thursday, May 5, 2011 - 23:05

New Delhi: 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 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," Justice Lodha writing the judgement said.

The apex court passed the judgement while upholding the
appeal filed by Yakub challenging the High Court`s ruling
which had set aside a Visakhapatnam trial court decree that no
such registeration was required.

In the instant case, Shaikh Dawood had gifted (hiba) his
properties to one of his sons Yakub on February 5, 1968, by
way of an unregistered written document.

The validity of the gift was challenged by his other
son Shaikh Farid and family members. Though the trial court
rejected their plea, the High Court took the contrary view
that the gift was invalid as it was not registered.

Aggrieved Yakub appealed in the apex court.
The apex court said 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.

However, the bench said it was not applicable to a Muslim
in the light of Section 129 of the T.P. Act and the rule of
Mohammadan Law relating to gifts.

"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 bench
said.

The apex court said 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.

"The gift was made by Shaikh 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," the bench said while quashing the High
Court ruling and restoring the decree passed by the trial
court in favour of Yakub.

PTI



First Published: Thursday, May 5, 2011 - 23:05

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