8 (Jou.) Andhra LawTimes [2012

GIFTS UNDER MUSLIM LAWAND THE REQUIREMENT OFREGISTRATION: A STUDY IN

THE LIGHT OF SUPREME COURT'SDECISION IN HAFEEZ BIBI

AND OTHERS·By

Prof.(Dr) Mukund Sarda

1. The triple requirement! of a valid giftunder Mohammadan Law can be statedthus:-

(i) Manifestation of the wish to giveon the part of the donor;

(ii) The acceptance of the done, eitherexpressly or impliedly; and

(iii) The taking of possession of thesubject-matter of the gift by thedonee either actually orconstructi vely.

2.The Supreme Court in Mahaboob Saheb'sCase- summarized the rules ofMohammadan relating to gifts as stated byMulla" as follows:-

Sec 147 ... "that writing is not essentialto the validity of gift either ofmoveable or immoveableproperty"

Sec148 ... "essential to the validity of a giftthat the donor should divesthimself completely of allownership and dominion overthe subject-matter of gift"

See149... The triple requirement as statedearlier"

* Am 2011 June sc P.1695** Principal & Dean of the Bharati Vidya Peet

University, New Law college, Pune1. View of Syed Ameer Ali in his book on

'Mohammedan Law' quoted by Privy Councilin Mohd. Abdul Ghani & others Vs. Fakhr[ahan Begum & others, AIR 1922 PC.P.281

2. Am 1995 SC p.12053. Mulla 'Principles of Mohammadan Law, 19'h

Edition Para 5 (PP 696-697) Edited by ChiefJustice M.Hidayatullah.

4. See Para (1) for details.

Sec150 ... For a valid gift there should bedelivery of possession of thesubject-matter of the gift andtaking of possession of the giftby the donee either actually orconstructively; and

See152... Where the donor is in possessiona gift of immoveable propertyof which the donor is in actualpossession is not complete,unless the donor physicallydeparts from the premiseswith all his good and chattels,and the done formally entersinto possession.

It is thus clear that the gift need not be. in writing and consequently noregistration is required.Mulla has added to the requirementstated by Syed Ameer Ali, whichrequires that the donor shouldcompletely divest himself physically

. of the subject-matter of gift.

3. The Transfer of Property Act relatingto gifts is stated in Sec 123and See 129.5

Relevant extract Sec123states as follows:-

For the purpose of making a gift ofimmovable property, the transfer must beeffected by a registered instrument, signedby or on behalf of donor and attested bytwo witnesses "

Sec 129 which makes an exception toSec 123as follows:-"Nothing in this chapter relates to gift of

moveable property made incontemplation of death or shall bedeemed to affect any rule ofMohammadan Law".

4. Sec 17(1)(a)6Registration Act requiresthe instrument of gift of immoveable

5. See for details Sec 123 and Sec 129 of theTransfer of Property Act, 1882.

6. See for details Registration Act, 1908Section 17 and Sec 49.

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property irrespective of value shall beregistered compulsorily. This can be statedthus:-

"An instrument or deed which creates,makes or completes the gift, therebytransferring the ownership ofproperty from the executants to theperson in whose favour it is executed,and in order to affect the immoveableproperty, the document must be adocument of transfer. If it is adocument of transfer, it must beregistered under the Provisions ofRegistration Act".

5. In Nasib Ali v. Wajid Ali/ the CalcuttaHigh Court ruled: " ... deed of gift by aMohammadan is not a document of title butis a piece of evidence". It was consideredwise and prudent to reduce the transactionto writing to preserve evidence, when allforms may not be forthcoming due to lapseof time. The Judicial Committee inKamarunnisa Bibi v. Hussaini Bibi,8 whileupholding the gift made in lieu of dowerruled: " ... the requisite forms having beenobserved, it was not necessary to enquirewhether there was any consideration forthe gift or whether any dower due. In KaramIllahi v. Sharfuddinf it was ruled, 'if the giftwas valid under Mohammadan Law, it wasnone the less valid' the validity of the giftwill not be affected by reason of any defectin See 129 ofTPAct or being used in evidence.

6. In Mukku Rawather's Children Associationand others v. Manahapara Charayll,lOthe opinionof Mulla was quoted with approval, whichis in these terms: "...An instrument of gift isone whereby a gift is made. When in law agift cannot be effected by a registered deedas such, it cannot be an instrument of gift.The legal position is well-settled. A Muslimgift may be valid even without a registereddeed. Registration being irrelevant to its

7. AIR 1927 Cal. P.197 8. (1880) 3 All 266.9. (1916) 38 All 212

10. AIR 1972 Kerala P.72

Journal 9

legal force, a deed setting out Muslim giftcannot be regarded as construction of thegift and is not compulsorily registrable".

7.In CulamAhmed Safi v. Mohd Sidiq Dareeland others'? it was held ... "oral gift madeunder Muslim Law would not be affectedby Sec 123 of TP Act and the gift, if it hasotherwise all the attributes of a valid giftunder Muslim Law, would not becomeinvalid because there is no instrument inwriting and registered".

8. The Andhra Pradesh High Court inUddandu Sahib's Case" ruled ... 'Hence, if allthe formalities as prescribed by MuslimLaw regarding the making of gifts aresatisfied, the gift is valid notwithstandingthe fact it is oral and without anyinstrument'. However, it was also observedthat in case of contemporaneous document,it should be registered. It was also observedthat the gift is antecedent and the deed issubsequent merely evidencing the pasttransaction, it does not require registration,as it does not by itself make or complete thegift" .13

The Madras High Court in Amir Khan v.Chouse Khan" ruled: "Though a Muslimcould create a valid gift orally, if he shouldreduce the same in writing, the gift is not bevalid unless it is duly registered". In thiscontext, a referenced is made to thestatement of A.A.Fyzee, an authority onMuslim Law which is in these words: "It(document) may itself be the instrument ofgift, such a writing in certain circumstancesrequire registration... if there is adeclaration, acceptance and delivery ofpossession coupled with the formalinstrument of gift it must be registered" )2

11. AIR 1974 J&K P.59 (FB)12. Uddandu Sahib v. Masthan Bi, AIR 1975 A.P.

271. .13. Ibid. 14. (1985)2 MLJ P.13615. A.A.Fyzee, "outlines of Mohammadan Law",

5th Edition (edited and revised by TahirMohamood) at P.182 and quoted in AmirKhan's case, Supra at Para 27.

10(Jou.) Andhra LawTimes [2012

Mulla's observation was also referred to,which is in these terms:- " ...But it cannotbe taken as a Sine Qua non in all cases thatwhenever there is writing about aMohammadan gift of immovable property,there must be registration thereof. Whetherthe writing requires registration or notdepends on the fact and circumstances ofeach case".16

Thus, registration is required dependingon the facts and circumstances of each case,even according to Mulla.

9. The Privy Council in Mohd. AbdulGhani's Case," gave a possible reason for theconspicuous omission of registration ofMuslim gifts in these words: "when the oldand authoritative texts of MohammadanLaw were promulgated, there was not incontemplation of anyone, any TP Acts,Registration Acts, Revenue Courts to recordtransfers of possession of land and thatcould not have been intended to lay downfor all times what should alone be theevidence that title to lands had passed".

10.The provision relating to registrationis a procedural requirement whicheffectively protects the title of the holder ofthe property. It affords protection againstfuture litigations and against fraudulenttransfers. In the recent times, we comeacross cases of an owner transferring hislanded property several times creatingendless litigation for those, who are thelegitimate acquires of property. The needfor registration has been emphasized by theApex Court in T.C.Ashok Kumar's case" thus:-

"We may also refer to another relatedarea, where registration should bemade compulsory to reduce property

16. Mulla, "Principles of Mohammadan Law" 19th

Edition P.120.17. AIR 1922 PC P.281.18. T.C.Ashok Kumar v. Govindammal and another

Civil Appeal No. 10325 of 2010 decided on8.12.2010 and reported in Supreme Journal(2011) SCJ. Vol. 1 Pages 1 to 10 at Para 15.

litigation Unscrupulous propertyowners enter into agreements of saleand take huge earnest money deposits/advances and sell the property toothers thereby plunging the originalagreement holder and subsequentpurchaser into litigation... It will alsoassist in putting an end to the prevalentpractice of entering into agreements ofsale showing the real considerationand then registering the sale deed foronly a part of the real consideration. Ifall agreements of sale are compulsorilyregistered, then it will go a long wayto discourage generation andcirculation of black money in realestate matters, as also under valuationof documents for purposes of stampduty... It will also discourage thegrowth of land mafia and musclemanwho dominate the real estate scene invarious parts of the Country.Prevention of malaise is always betterthan allowing a malaise to develop andthem tying to cure it".

11. There can be no better weightyreason than the reasoning of Apex Court forcompulsory registration. What is said withregard to sale, apply with equal force todonations as well. The cases of a donationbeing made and its subsequent sale toanother do occur, thereby the done and thesubsequent purchaser litigating endlessly.If registration is not insisted, there are manycases of innocent parties sufferingirreparably and the loss sustained is beyondany quantum of compensation. Injusticeresults.

12.Apart from the triple requirement ofa valid Hiba, there appears to be no reasonto disregard registration. It is only aprocedural requirement for a validconferment of title to holders of property.There are many benefits of registration,which authoritative texts of Muslim Lawnever contemplated. Muslim Law has to

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fall in line with recent periods ofdevelopment in society. Protection ofinnocent legitimate holders of property shallbe the paramount concern of every personallaw whether Hindu or Muslim. There is aneed to amend Sec 129 of the Transfer ofProperty Act to incorporate thus:-

Proviso I to be added to Sec 129 asfollows-

"The provision of Indian RegistrationAct shall apply to all cases of gifts ofimmovable property underMohammadan Law".

If so needed, gifts of immovable propertyunder Muslim Law may be given eitherpartial or total exemption from levy ofstamp duty and registration fees.

In conclusion, the following suggestionsare made.-

(1) Sec 129 of the Transfer of PropertyAct be amended to provide forregistration of gifts of immovableproperty under MohammadanLaw;

(2) Such gifts as aforesaid may be giveneither partial or total exemptionfrom stamp duty and registrationfees; and

(3) Oral gifts under Muslim Law canbe only for moveable property andthe triple requirement as laid downin Mohd. Ghani's case may besufficient for a valid gift."

19. Supra P.281

Journal 11

DIFFERENT TYPES OFAMENDMENTS TO A COMMON

WRITTEN STATEMENTBy

Rayasam Siva Kumar", B.Com., B.L.,"What we aspire from other's behaviorin our matters, our behaviour shouldalso be the same in the same matters ofothers and it is called DHARMA" byVIDHURAinMAHABHARATHA

Filing of a Common Written Statementby several defendants itself, would suggestthat they have common interest in thematter. But, filing of separate petitions bysuch defendants seeking different types ofamendments to their common writtenstatement would also suggest that thedefendants have no such common interestand that their contentions are different. Doesthe law permit such different types ofamendments to a common writtenstatement is the scope of this article.

A defendant seeking for such amendmentto a common written statement already filedby him along with other defendants maymove the court by an InterlocutoryApplication under Order 6 Rule 5 or underOrder 6 Rule 17 or under Order 8 Rule 9 ofthe Code of Civil Procedure, 1908(for short"the Code"). But, prior to the omission,Order 6Rule5 ofthe Code reads as "A furtherand better statement of the nature of theclaim or defence, or further and betterparticulars of any matter stated in anypleading, may in all cases be ordered, upon,such terms, as to costs and otherwise, asmay be just:. As well all know, Order 6Rule 5 of the Code is no longer available tosuch defendants since it was omitted by theAmendment Act 1999 w.e.£. 1-7-2002.

In the case of Future Builders Co-operativeHousing Society, Secunderabad v. S. MaZZaReddyand others (2008(2) ALT 520), the defendant

* Senior Civil Judge, Narsipatnam,Visakhapatnam District.