By Muskan Agarwal

Abstract:

Since 600 A.D., the idea of hiba has been recognised in Islamic jurisprudence. The giving of a gift is the act of transferring property. However, The Transfer of Property Act, 1882 is not relevant under Muslim law; rather, Muslim law itself governs the gift transfer. Muslims have a wide range of property division options under Islamic law. It could happen via a gift  also referred to as Hiba or a will referred to as Wasiyat). The idea of a gift has been around for a while but is now resurfacing from our history. In light of the Transfer of Property Act of 1882, the terms “Hiba” and “gift” now have various meanings. 

Introduction:

The Supreme Court settled the debate of whether a gift under the Muslim law should be registered or not. With the ever-long debate on Universal Civil Code and equal laws for all, the Supreme Court of India gave existing customary and personal laws primacy over the Transfer of Property Act and the Registration Act. One of the necessary ingredients for customary laws to be valid is that they need to be practised for a long time and they should not be disrupted or discontinued by the express understanding of the law or any other factor. Muslim laws are old authoritative laws which were made centuries ago without the presence of the Transfer of Property Act, the Registration Act or the presence of any Revenue Courts which record transactions for any transfer or possession of the land. So, for this same continuation of personal laws, the Supreme Court came to the present judgement. This judgement is highly significant because it validates the law of Hiba, which is defined under the Muslim law and it is also applicable to modern times as the Muslim law of Hiba, is only limited to oral gifts made by Muslims. 

The judgement gave importance to personal law, but since writing and registration are not mandated, it is open to loopholes. The gift need not be registered, which means that the gift may also be reversed at any time by the donee. Taking back gifts in Islamic law is prohibited with the exception given to the father, who has the right to take back the gift he has given to his children. But in some instances, the husband has the right to take back the property gifted to his wife. Immovable properties of those, who are incapable of making decisions for themselves may also be gifted to someone else. The court has given primacy to personal laws, but making the gift deed registration would have mandated, it would benefit those sections of the community, i.e. the women and older people, who cannot help themselves. 

Facts of the Case:

Shaik Dawood had seven children. He had three sons Shaik Farid, Mehboob Subhani and Mohammed Yakub. And five daughters, Khairunnisa Begum, Alima Bibi, Sappoora Bibi, Rabia Bibi and Noorajahan Begum. Shaik Dawood practised Unanj medicine after retiring from his position as Reserve Head Constable. His wife had predeceased him. Khairunnisa Begum, Shaik Farid, Noorajahan Begum, Sappoora Bibi and Mohd. Iqbal (son of Alima Bibi) hereinafter referred to as the plaintiffs filed a partition suit over some immovable properties of Shaik Dawood against Mohammad Yakub, Mehboob Subhani and Rabia Bibi hereinafter referred to as Defendant 1, Defendant 2, and Defendant 3 respectively. The heirs of Syed Ali (Shaik Dawood’s brother) were also referred to as defendants. The plaintiffs contended that Shaik Dawood died without a will. They stated that Schedule A properties belonged to them while Schedule B properties belonged to Defendant. Mohammad Yakub disputed the partition claim stating that a hiba (gift deed) was made by Shaik Dawood under which the properties were gifted to him. He had also taken possession of the said gifts. It was contended by the plaintiffs that the Hiba should have been registered and stamped by the relevant authority. The dispute went to trial. The trial court ruled that plaintiffs were not entitled to a share in the property. The plaintiffs appealed to the High Court. The High Court stated that an unregistered gift deed would not transfer the title of ownership to the defendant. The appellants, the lawful heirs of the defendant, approached the Supreme Court. 

Legal Issues Involved:

1. What are the essential ingredients of a valid gift under Mohammedan Law? 
2. Whether section 17(1)(a) of the Registration Act, 1908 along with Section 129 of the Transfer of Property Act, 1882 will be applicable to the gift rule in Mohammedan Law?

Observations made by the Court and the Final Judgement:

The court, while referring to the Principle of Mohammedan Law by Mulla, stated that writing is not essential to the validity of the gift. Under section 149 of the book, three essentials for a gift to be valid should be (i) declaration of gift (ii)acceptance of gift and (iii) delivery of possession of the subject matter of gift. Completion of all three conditions makes the gift deed a valid one. The Supreme Court also referred to Mohd. Abdul Ghani v. Fakhr Jahan Begam(1922), a judgement of the privy council, wherein the three essential conditions for a valid gift by a Muslim were laid down. The court, while referring to the Principles of Mohammedan law states that gift deeds under Muslim law, need not be registered under the Registration Act. However, in cases of immovable property, for the gift to be complete and valid, the possession should be given to the donee. The Supreme Court referred to Section 123 of the Transfer of Property Act which put forth the manner in which the gift of immovable property is affected. It states that for a gift to be valid under the Transfer of the Property Act, and the transfer to be affected, it must be registered by the donor, the done, along with two witnesses. However, the Supreme Court took into consideration, the exception of section 123 of the Transfer of Property Act, i.e. Section 129 of the Act which states that the rule of gifts as stated in the Transfer of Property Act, would not be applicable to Muslim Laws. The Supreme Court excluded the applicability of Section 123 of the Transfer of Property Act. 

The Supreme Court also looked into Section 17 of the Registration Act. It mandates the registration of certain documents such as gift deeds. While referring to the same, the court also looked into section 19 of the Registration Act, which lays the effect of the non-registration of certain documents. The court held that section is not applicable to written gifts executed by Mohammedans. The Apex Court held that just because gifts are reduced to writing by a Mohammedan instead of it being made orally, the written document does not become a formal document. An oral gift executed by a Muslim is not altered because it is being made into a written document. Hence, registration of gift deeds is not mandatory. 

Legal History:

The essential conditions of a valid gift have already been stated by the Privy Council in the case of Mohd. Abdul Ghani v. Fakhr Jahan Begam(1922). The same was referred to in the case of Mahboob Sahab v. Syed Ismail and Ors(1995). However, whether a registered gift was valid under the eyes of the law has always been the contention. In the case of Nasib Ali v. Wajed Ali(1927) the same question was contested wherein the High Court of Calcutta laid down that it is not a valid gift. The written document is not a valid gift deed but only a piece of evidence. The court also referred to the case of Sankesula Chinna Budde Saheb v. Raja Subbamma(1954) wherein, the Andhra Pradesh High Court held that even if a gift was reduced to writing, it should be registered under Section 17(1)(a) of the Registration Act. However, it was held that a gift need not comply with Section 123 of the Transfer Act but it should be registered under Section 17(1)(a) of the Registration Act when the gift in question is an immovable property. The same was also held in the case of Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and Ors(1974). 

Landmark precedents:

The court relied on various judgements before coming to a conclusion. As the precedent had already been set in the case of Abdul Ghani, the essentials as to the validity of a gift were already laid down. The same was not up for contention because all the essentials were fulfilled. The supreme court relied on the case of Md. Hesabuddin and Ors. v. Md. Hesaruddin and Ors(1983) wherein, the Gauhati High Court held that a gift written on a plain piece of paper does not amount to a formal instrument of gift. The court gave the example of how a gift from a mother to a son is based on love and affection. And therefore, it cannot be held that the oral gift must be registered, in order to render the gift valid. 

Socio-Legal implications:

The Muslim community is a minority community in India. Their overall presence and their customs are dying. This judgement is a positive step towards stating that not all personal laws are being struck down such as the Ahmad Khan v. Shah Bano Begum(1985) which talks about maintenance and the Shayara Bano vs Union Of India And Ors(2017) which talks about the Triple Talaq. Both these judgements were violative of the fundamental rights of women and hence had to be struck down. Personal laws are central to the rights of minority religion and communities as it is an important aspect of their lives and culture. Preserving cultural laws is integral to one’s sense of identity and helps in the overall development of the community. 

About the Author

Muskan Agarwal is a third-year student pursuing BA-LLB (five years integrated course) at the Jindal Global Law School. Her areas of interest include public policy, corporate laws, and arbitration laws.