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2011 (3) Supreme 608
SUPREME COURT OF INDIA
R.M. Lodha and Surinder Singh Nijjar, JJ.
Hafeeza Bibi & Ors. — Appellants
versus
Shaikh Farid (Dead) by LRs. & Ors. — Respondents
Civil Appeal No. 1714 of 2005
Decided on : 5-5-2011
1922 (49) IA 195; (1995) 3 SCC 693 – Relied upon
AIR 1927 Cal 197; AIR 1984 Gauhati 41 – Approved
AIR 1962 Andhra Pradesh 199 – Overruled
1954 2 MLJ 113; AIR 1972 Kerala 27; AIR 1974 Jammu & Kashmir 59; AIR 1975 Andhra Pradesh 271; (1985) 2 MLJ 136 – Not correct law
AIR 1973 Gauhati 105 – Referred
(b) Mohammedan Law – Gift – A deed of gift executed by a Mohammedan 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. (Para 32)
AIR 1927 Cal 197 – Approved
(c) Mohammedan Law – Gift – All the three essential requisites of gift under Mohammedan being satisfied, the gift became complete and irrevocable – The gift deed being in a form of declaration by the donor and not an instrument of gift, its registration was not required. (Para 34)
Facts of the case:
1. This case pertains to inheritance and partition of joint family property.
2. Validity of unregistered gift deed is also the question in this case.
Finding of the Court:
High Court’s view cannot be endorsed.
Result : Appeal allowed.
Key Points: - The ruling discusses whether a gift deed by a Mohammedan is the instrument of gift or merely evidence, and its registration under Registration Act is not always required. (!) (!) - It holds that under Mohammadan Law, three essentials for a valid inter vivos gift are declaration by donor, acceptance by donee, and delivery of possession; writing is not strictly required, and Section 129 preserves Mohammadan Law excluding its requirements from Section 123, though registration may still be required if the gift is contemporaneous with the gift. (!) (!) (!) - The judgment overrules the Andhra Pradesh Full Bench Tayyaba Begum decision and restores the trial court decree, holding the February 5, 1968 gift deed in favor of Mohammed Yakub to be complete and irrevocable given all three essentials were satisfied; the document was a declaration, not necessarily a transfer instrument, and thus not automatically required to be registered. (!) (!) (!)
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 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 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. 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 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.
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