IMPORTANT POINT
An unregistered gift deed is valid under Muslim law if the essential conditions of declaration, acceptance, and delivery of possession are satisfied, making registration unnecessary.

JUDGMENT :

Kauser Edappagath, J.

The concept and principles governing the disposition of property by Hiba – gift under Muslim Personal Law -arises for consideration in this writ petition.

2. The petitioner is a Muslim following Muslim Personal Law. He is aggrieved by the Village Officer's decision refusing to mutate the property gifted by his father in his favour as per Ext. P3 gift deed on the ground that it is an unregistered document.

3. The immovable property having an extent of 14 cents of land in Old Sy.Nos.665/12 and 666/1 of Puthusseri Central Village, Palakkad Taluk, Palakkad District, covered by Exts.P1 and P2 title deeds originally belonged to the father of the petitioner named Haneefa. On 15.1.2016, the father of the petitioner gifted the said property in favour of the petitioner orally and he was put in exclusive physical possession of the property. Three days thereafter, on 18.1.2016, the father of the petitioner executed Ext.P3 unregistered gift deed in favour of the petitioner. The petitioner accepted the gift and took delivery of the property. Thereafter, the petitioner submitted Ext.P4 application before the 2nd respondent to mutate the property in his name, to accept land tax from him and to provide a Thandaper Account. The 2nd respondent rejected Ext.P4 application as per Ext.P5 communication for the reason that Ext.P3 gift deed is not a registered document. It is challenging Ext.P5, the petitioner has approached this Court.

4. I have heard Sri. Jacob Sebastian, the learned counsel for the petitioner and Sri. B.S. Syamanthak, the learned Government Pleader.

5. The learned counsel for the petitioner submits that Section 123 of the Transfer of Property Act (for short 'the T.P. Act') which mandates that a gift can be made only through a registered document, is not applicable to Muslims and hence, oral gift made by the father of the petitioner to the petitioner and later on endorsed as per Ext.P3 unregistered gift deed is legally valid and hence the 2nd respondent is not justified in not mutating the property in the name of the petitioner on the ground that the gift deed in question is an unregistered one.

6. Chapter VII (Sections 122 to 129) of the T.P. Act deals with the gift of movable or immovable property. Section 122 defines 'gift' as a transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Section 123 provides how the transfer of a gift is effected. It says that for the purpose of 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. However, Section 129 specifically lays down that the provisions of Chapter VII of the T.P. Act are not applicable to gifts of movable property made in contemplation of death or shall be deemed to affect any rule of Muhammadan law. Whenever the provisions of Chapter VII of the T.P. Act and Muslim law conflict, the latter shall prevail.

7. A gift under Muslim law is called hiba. Any Muslim, to whatever school of law he or she may belong, can make a hiba, of the whole of his or her property. A hiba is a bilateral transaction which takes effect when the donor declares that he has made a gift and the donee signifies his or her acceptance of the same. Over and above these, there is the requirement that ordinarily such possession of the gifted property as it may be possible to transfer must be handed over by the donor to the donee. Without these three essential conditions – declaration (ijab), acceptance (qubul) and delivery of possession (qabza) respectively -a gibe legally incomplete. A gift of immovable property need not be reduced to writing nor necessarily registered under Muslim law. An oral gift fulfilling all three essential conditions is perfectly valid under Muslim law. Declaration as well as acceptance of the gift