New Delhi, May 5: A gift of immovable property made by a Muslim is valid even if it is not registered under the Transfer of Property Act or the Stamps and Registration Act, the Supreme Court Thursday ruled.
The apex court said though the TP Act mandates registration of a gift, the same would not apply to a Muslim donor as the community has been exempted from the provision.
A Bench of Justices R M Lodha and S S Nijjar in a judgement quashed a ruling of the Andhra Pradesh High Court that the property gifted by late Shaik Dawood to one of his sons Muhammad Yakub was not valid as it was not registered under the law.
The Bench said the three essentials of a gift under Muhammadan Law are (i) declaration of the gift by the donor (2) acceptance of the gift by the donee and (3) delivery of possession. "Though the rules of Muhammadan Law do not make writing essential to the validity of a gift, an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.
"In our opinion, merely because the gift is reduced to writing by a Muhammadan 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 Muhammadan Law is that three essential requisites must be fulfilled," Justice Lodha writing the judgement said.
The apex court passed the judgement while upholding the appeal filed by Yakub challenging the High Court's ruling which had set aside a Visakhapatnam trial court decree that no such registration was required.
In the instant case, Shaikh Dawood had gifted (hiba) his properties to one of his sons Yakub on February 5, 1968, by way of an unregistered written document.
The validity of the gift was challenged by his other son Shaikh Farid and family members. Though the trial court rejected their plea, the High Court took the contrary view that the gift was invalid as it was not registered.
Aggrieved Yakub appealed in the apex court.
The apex court said Section 17(1)(a)of the Registration Act leaves no manner of doubt that an instrument of gift of immoveable property requires registration irrespective of the value of the property.
However, the Bench said it was not applicable to a Muslim in the light of Section 129 of the T.P. Act and the rule of Mohammadan Law relating to gifts.
"The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper," the Bench said.
The apex court said 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.
"The gift was made by Shaikh Dawood by a written deed dated February 5, 1968, in favour of his son Muhammad Yakub in respect of the properties ‘A' schedule and ‘B’ schedule appended thereto.
The gift – as is recited in the deed – was based on love and affection for Muhammad Yakub as after the death of donor’s wife, he has been looking after and helping him.
"Can it be said that because a declaration is reduced to writing, it must have been registered? We think not. The acceptance of the gift by Muhammad Yakub is also evidenced as he signed the deed," the Bench said while quashing the High Court ruling and restoring the decree passed by the trial court in favour of Yakub.

Lastupdate on : Thu, 5 May 2011 21:30:00 Makkah time
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