Hafeeza Bibi v. Shaikh Farid
Supreme Court of India, 5 May 2011, 2 judges
A Muslim gift (hiba) satisfying declaration, acceptance and delivery of possession is valid even if recorded on unregistered paper. The writing is not an instrument of gift needing registration under Section 17 of the Registration Act.
Facts
Shaik Dawood, governed by Sunni law, executed a written gift deed on 5 February 1968 giving his properties to his son Mohammed Yakub, who signed it and was living with him in the house gifted. After his death, some of his children and a grandson sued for partition. The trial court upheld the hiba and dismissed the suit. The Andhra Pradesh High Court, following a Full Bench decision of that Court, held that a gift reduced to writing had to be registered and stamped, so the unregistered deed passed no title, and remitted the matter for a preliminary decree. The legal heirs of Mohammed Yakub appealed.
Questions before the Court
- Whether a gift by a Muslim that is reduced to writing must be registered under Section 17 of the Registration Act to be valid.
- Whether the unregistered gift deed of 5 February 1968 created a valid and complete gift.
What the Court held
- The three essentials of a gift under Mohammadan law are declaration by the donor, acceptance by the donee and delivery of possession. Writing is not essential, and an oral gift fulfilling these is complete and irrevocable.
- Section 129 of the Transfer of Property Act preserves the rule of Mohammadan law and excludes Section 123 for gifts of immovable property by a Muslim.
- Reducing the gift to writing does not change its character or make it an instrument of gift. The distinction between a writing reciting a prior gift and a contemporaneous writing, which some courts said needed registration, is inappropriate. Whether writing needs registration depends on the facts of each case.
- The Andhra Pradesh Full Bench view in Tayyaba Begum and contrary High Court decisions do not lay down the correct law; the Calcutta and Gauhati views are approved.
- Here all three essentials were met, so the gift was complete. The High Court's judgment was set aside and the trial court decree restored.
Why it matters
The judgment settles a conflict among High Courts by holding that a written record of a Muslim gift is evidence of the gift and not an instrument requiring registration, so long as declaration, acceptance and delivery of possession are proved. It disapproves the contrary views of the Andhra Pradesh, Jammu and Kashmir and Madras High Courts.
In the Court's words
Copied from the official judgment; each passage links to its page.
“In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial.”
“Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.”
“The gift deed dated February 5, 1968 is a form of declaration by the donor and not an instrument of gift as contemplated under Section 17 of the Registration Act. As all the three essential requisites are satisfied by the gift deed dated February 5, 1968, the gift in favour of defendant 2 became complete and irrevocable.”
Provisions interpreted
Case and bench
- Parties
- Hafeeza Bibi & Ors. v. Shaikh Farid (Dead) by LRs. & Ors.
- Case
- Civil Appeal No. 1714 of 2005
- Decided
- 5 May 2011
- Bench
- R.M. Lodha, Surinder Singh Nijjar
- Opinions
- Unanimous. Judgment written by R.M. Lodha J.
Questions on this case
2 questions in live Law Maker papers mention this case. Practise them with the landmark judgments questions.