Hiba: Gift Under Muslim Law- Questions & Answers By Justice V Ramkumar [Part-II]

Q.6 Who is a “minor” in the context of a Muslim gift ? Ans. Under the pristine Mahomedan Law a Muslim who had attained the age of 15 years was competent to make a valid disposition of his property. (Vide Volume 1 – Pages 42 and 43 of the 4th Edition (1912) of Mohammedan Law by Ameer Ali). But this rule of Mahomedan Law has been superseded by the provisions of the (Indian) Majority Act (Act IX of 1875) except in respect of – marriage, dower, divorce, and adoption. Hence, minority in the case of Mahomedan for the purpose of “Wills”, “gifts”, “wakfs” etc does not terminate on completion of the 15th year but only on completion of the 18th year. (Vide Para 115 of “Principles of Mahomedan Law” by Mulla – 22nd Edition; Para 6 of Mahboob Sahab v. Syed Ismail (1995) 3 SCC 693 = AIR 1995 SC 1205 – K. Ramaswamy, B. L. Ansaria - JJ) Q.7 Is it not necessary that in order to be valid, a Muslim gift of immovable property, being a transfer of property, should be in writing and effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses as provided under Section 123 of the Transfer of Property Act, 1882 ? Ans. No. Chapter VII including Section 123 of the Transfer of Property Act, 1882 has no application to any rule of Mohamedan Law regarding gifts. (Vide Section 129 of the Transfer of Property Act, 1882; (See – Musa Miya Muhamad Shaffi v. Kadar Bax Khaj Bax AIR 1928 PC 108 = 55 Indian Appeals 171 (PC) - Shaw, Carson, L. Sandeson - JJ; Para 5 of Mahboob Sahab v. Syed Ismail (1995) 3 SCC 693 = AIR 1995 SC 1205 - K. Ramaswamy, B. L. Ansaria - JJ ; Para 23 of Laila Beevi @ Laila Buhali v. N. Sumina @ Summayya 2009 (3) KHC 661 – V. Ramkumar - J; Para 29 of Hafeeza Bibi v. Shaikh Farid (2011) 5 SCC 654 = AIR 2011 SC 1695 – R. M. Lodha, Surinder Singh Nijjar - JJ). Justice V. R. Krishna Iyer (as he then was of the Kerala High Court) in paras 7 and 8 of Assan Rawther v. Ammu Umma 1971 KLT 684 = AIR 1972 Ker. 27 – Justice V. R. Krishna Iyer - JJ, had held that a Muslim gift need not be in writing and even if it is in writing, it is not compulsorily registrable. In para 8 it is noted “a Muslim gift may be valid even without a registered deed and may be invalid even with a registered deed”. The learned Judge had not agreed with the view that there could be a distinction in which a deed of gift could effect an immediate transfer of ownership and another deed of gift which could merely record a past gift made orally. But, a Division Bench of the Kerala High Court, without reference to Assan Rawther, held that oral Muslim gifts are valid and do not require registration, but if the gift is reduced to writing, and if it relates to immovable property worth Rs. 100 or above, then Section 17 of the Registration Act, 1908 is attracted and the document is compulsorily registrable. (Vide para 9 of Imbichimoideenkutty v. Pathumunni Umma 1988 (1) KLT 409 = AIR 1989 Ker. 148 – U. L. Bhatt, K. G. Balakrishnan – JJ). The view of Justice V. R. Krishna Iyer was, however, subsequently accepted and approved by the Supreme Court in para 29 of Hafeeza Bibi v. Shaikh Farid (2011) 5 SCC 654 = AIR 2011 SC 1695 – R. M. Lodha, Surinder Singh Nijjar - JJ. In the light of this binding precedent, the decision in Imbichimoideenkutty is no more good law. Now, after the verdict of the Apex Court in Hafeeza Bibi, the distinction that if a written deed of gift recites the factum of a prior gift, then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to be in conformity with the rule of gifts in Mohammedan Law. Q.8 What are the essentials of a valid Muslim gift ? Ans. In order to be a valid Muslim gift, there should be – a declaration of gift (manifesting the intention to give property on gift) by the donor.an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession of the subject-matter of the gift, actual or constructive, by the donor to the donee OR taking possession of the subject-matter of the gift by the donee either actually or constructively. (Vide – Mohammad Abdul Khani Khan v. Mt. Fakhr Jahan Begam AIR 1922 PC 281 - V Cave, Shaw, J Edge, A Ali - JJ; Amjad Khan v. Ashraf Khan AIR 1929 PC 149 - Shaw, Atkin, Sanderson – JJ; Para 10 of Abdul Rahim v. Abdul Zabar (2009) 6 SCC 160 = AIR 2010 SC 211 – 3 Judges - S. B. Sinha, Asok Kumar Ganguly, R. M. Lodha - JJ; Para 23 of Laila Beevi @ Laila Buhali v. N. Sumina @ Summayya 2009 (3) KHC 661 – V. Ramkumar - J; Para 27 of Hafeeza...

Hiba: Gift Under Muslim Law- Questions & Answers By Justice V Ramkumar [Part-II]

Justice V Ramkumar

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Hiba: Gift Under Muslim Law- Questions & Answers By Justice V Ramkumar [Part-II]

Justice V Ramkumar

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