Hafeeza Bibi & Ors vs Shaikh Farid(Dead) By Lrs. & Ors

Hafeeza Bibi & Ors. .... Appellants

Versus

Shaikh Farid (Dead) by LRs. & Ors. ....Respondents

JUDGMENT

R.M. Lodha, J.

This 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

1

court for the purpose of passing a preliminary decree after

determining the shares to which each party would be entitled.

2. Shaik 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 Medical Practitioner.

3. Shaik 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').

4. The 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

2

plaintiffs stated that the defendants 4 to 7 are entitled to other half

share in `B' schedule properties.

5. Mohammed Yakub -- defendant 2 -- 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 2 in his written statement also

referred to a previous suit for partition filed by some of the parties

which was dismissed in default.

6. Some of the original parties have died during the

pendency of the suit. Their legal representatives have been brought

on record.

7. The 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.

3

Consequently, vide judgment and decree dated April 27, 1988, the trial

court dismissed the plaintiffs' suit.

8. The 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 2 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.

9. The present appellants are legal heirs of the deceased

defendant 2.

10. As 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

4

and conveyed no title to the defendant 2 is the question for

determination in this appeal.

11. There is divergence of opinion amongst High Courts on the

question presented before us.

12. The 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.

13. In 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 195

2 (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

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......."

14. Section 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."

15. However, 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."

16. At 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

17. Section 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 instrument."

18. 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. The question is

about its applicability to a written gift executed by a Mohammadan in

8

the light of Section 129 of the T.P. Act and the rule of Mohammadan

Law relating to gifts.

19. In 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 [1880] 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 [1916]

3 AIR 1927 Cal 197

9

38 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 immovable property' 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........."

10

20. In 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.

21. A 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 113

5 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."

22. In 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

12

was) 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."

23. The 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

14

123 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 :

"14. 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."

24. The 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

15

Single 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. . . . . . . . . ."

25. In 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

16

Madras 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.

26. In 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 41

11 AIR 1973 Gauhati 105

17

gift 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."

27. 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; (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,

19

however, by itself without the other necessary conditions, is not

sufficient.

28. Mulla, 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."

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

20

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.

30. In 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 had passed.

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

21

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.

32. We 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.

33. We also approve the view of the Gauhati High Court in the

case of Md. Hesabuddin10 . 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.

34. Now, 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

22

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 2 became

complete and irrevocable.

23

35. The 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)

NEW DELHI.

MAY 5, 2011.

24