O R D E R

The petitioner seeks issuance of writ of declaration to declare the unilateral cancellation deed dated 22.10.2002 registered in Doc.No.1720 of 2002 on the file of the fourth respondent by one Seeni Syedammal with respect to the property situated in S.No.67/3A1 of Periyapattinam Village, Keelakkarai Taluk, Ramanathapuram District, as null and void.

2. The case of the petitioner is that the aforesaid property belonged to her mother viz., Seeni Syedammal. She pleads that a settlement deed was executed by her mother in her favour on 25.11.1997 in Doc.No.1327 of 1999. She claims that pursuant to this document, patta was mutated in her favour and she had also taken possession and was in enjoyment of the same.

3. The petitioner's mother passed away in the year 2005. At that time, she came to know that the property, which had been gifted to her, had been sub-divided and registered in the name of certain private persons. Immediately, she filed an application for mutation of the computerised records. It was on 24.05.2024 that she came to know that the private persons had occupied only the premises over S.No.67/3A3 and not 67/3A1. At about the same time, the petitioner came to know that her mother had unilaterally cancelled the settlement deed executed in her favour by way of a cancellation of settlement deed in Doc.No.1720 of 2002, dated 22.10.2002. Pleading that the registration of unilateral cancellation is contrary to the judgment of a Full Bench of this Court in the case of Sasikala Vs., The Revenue Divisional Officer, AIR 2022 Mad 323, she had come forth with this writ petition.

4. I heard Ms.H.Jasima Yasmin for the petitioner and Mr.R.Sureshkumar, learned Additional Government Pleader, who takes notice for the respondents.

5. At the outset, I should point out that the parties are muslims, who are governed by Principles of Islamic Law. The Chapter relating to gifts under Chapter VII of the Transfer of property Act is made in- applicable to muslims by virtue of the Section 129 of that Act. Muslims are permitted to transfer the properties, without a registered document, which is impermissible for non-muslims. On account of the aforesaid exemption, muslims are empowered to follow the principle settled by the holy prophet as regards oral gifts-hiba.

6. The three essentials of hiba are there should be, (i) a declaration of the gift by the donor;

(ii) Proof of acceptance of the gift by the donee expressly or impliedly;

(iii) Delivery of possession either actually or constructively.

(see, Rasheeda Khatoon Vs., Ashiq Ali, (2014) 10 SCC 459).

7. For the mere fact that the document records the property has been handed over and received would not be sufficient. This is because unless and until the essentials of gift are proved, the gift itself has not come into force. If the gift has not come into force, then there is no transfer of title. consequently, the donor is entitled to cancel the document at any stage.

8. Whether Seeni Syedammal had not only gifted the property, but had also transferred the possession of the same to the petitioner and whether the petitioner had accepted the gift and taken over the possession of the property are all matters, which require oral and documentary evidence.

9. Further more, the judgment in the case of Sasikala Vs., The Revenue Divisional Officer cited supra does not lay down any proposition with respect to muslims. The Full Bench had applied Section 126 of the Transfer of the Property Act, which falls under chapter VII. When Section 129 exempts muslims from the entire operation of chapter VII, the issue of applying Section 126 would not arise.

10. A careful reading of the Sasikala's case shows that no where has the Full Bench declared the principle, which applies to Hindu and other communities, will apply to muslim also.

11. As the petitioner has to prove the essentials of gift contemplated under Muslim Law, had been complied with by the donor and donee, when the document was executed on 25.11.1997, the same