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2024 Supreme(Online)(KER) 40110
HIGH COURT OF KERALA
Kauser Edappagath, J
RAZAK H – Appellant
Versus
THE ADDITIONAL TAHSILDAR (LAND RECORDS) – Respondent
WP(C) 36930/2024
JACOB SEBASTIAN, WINSTON K.V, ANU JACOB, BHARATH KRISHNAN G., ARUNDHATHI SURESH BABU
Oral gifts under Muslim law are valid without registration if essential conditions of declaration, acceptance, and possession are met.
Headnote:(A) Transfer of Property Act, 1882 - Sections 122, 123, 129 - Registration Act, 1908 - Sections 17, 49 - Gift under Muslim Personal Law - The petitioner challenged the refusal to mutate property gifted by his father based on an unregistered gift deed. The court held that oral gifts fulfilling essential conditions are valid under Muslim law, and the provisions of the T.P. Act do not apply. (Paras 5-12)
(B) Validity of oral gifts - A gift under Muslim law does not require registration if essential conditions of declaration, acceptance, and delivery of possession are satisfied. (Paras 7-11)
(C) Legal status of written documents - A written document acknowledging a prior oral gift does not necessitate registration under the Registration Act. (Paras 8-10)
Facts of the case:
The petitioner was gifted 14 cents of land by his father, which was challenged by the Village Officer for lack of a registered deed. The petitioner argued the gift was valid under Muslim law.
Findings of Court:
The court found all essential conditions for a valid gift were met, and the refusal to mutate the property was unjustified.
Issues: The main issues included whether the unregistered gift deed was valid under Muslim law and the applicability of the T.P. Act to Muslims.
Ratio Decidendi: The court ruled that Muslim law permits oral gifts without registration, and the provisions of the T.P. Act are not applicable in this context.
Result: The writ petition was disposed of in favor of the petitioner.
JUDGMENT
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 gift under Muslim law will be 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
