(IN) Mulla : The Transfer of Property Act, 12e

Mulla : The Transfer of Property Act, 12e

Mulla

Mulla : The Transfer of Property Act, 12e > Mulla : The Transfer of Property Act, 12e > CHAPTER 7 Of
Gifts

The Transfer of Property Act 1882 (4 of 1882)

CHAPTER 7 Of Gifts

129. Saving of donations mortis causa and Muhammadan Law.

Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect
any rule of Mohammadan Law.

(1) Constitutionality of the Section

In Bibi Maniran v Mohammad Ishaque, 36 a Division Bench of the Patna High Court rejected the argument that s 129
violated art 14 of the Constitution; the court held that the classification between Mohammadans and others was reasonable,
having regard to the well-known fundamental differences between the religion and customs of Muhammadans on one
hand, and the religion and customs of others. The court relied on a decision of the Supreme Court in Moti Das v SP Sahi. 37
In 38 a single judge of the Kerala High Court has held that s 129 was ultra vires art 14 of the Constitution, if it was held
applicable to all Mahomedan gifts and should, therefore, be construed as limited to Mahomedan gifts of a charitable or a
religious nature. This decision, if correct, would mean that this chapter would apply to non-religious or non-charitable
Mahomedan gifts. It is submitted that the Patna decision is correct.

In a Kerala case decided after the above ruling, the donor (a Muslim lady) recited in the gift deed that the donor had, along
with the title deeds, completely and absolutely surrendered possession of all her rights and interests in properties without
receiving any consideration and by way of gift, to be enjoyed by the donees. It was not shown that the admission made in
the deed was erroneous. It was held that the donor had parted with possession of the property. The gift must be held to be
completed by the donors act, as nothing remained to be done thereafter by the donor.39

(2) Mahomedan Gifts

Nothing in this chapter applies to Mahomedan gifts.40 Thus, the assignment of land by a Mahomedan bridegroom in favour
of his bride at the time of the marriage in lieu of meher does not require writing.41

Hiba or gift under Mahomedan law is a transfer of property made immediately and without any exchange by one person to
another, and accepted by or on behalf of the latter. By virtue of s 129 of TP Act, the chapter does not affect any rule of
Mahomedan law and, therefore, hiba of subject matter of whatever value need not be registered as required by s 123. It can
be oral but it should be adequately proved.42 On the other hand, hiba-bil-iwaz in India, being a gift for an exchange, is in
the nature of a sale and if the subject matter is immovable property, then, it can only be by a registered instrument as
 (IN) Mulla : The Transfer of Property Act, 12e

provided under s 54 of TP Act. Oral gift in discharge of money owed to the donee, being one for consideration, amounts to
a sale. It is not pure and simple hiba, but a hiba-bil-iwaz; and if property of value of Z100 or more is involved, it can only
be by a registered document.43

The Supreme Court in Hafeeza Bi v Sheikh Farid, 44 clarified and set at rest the ambiguity on application of chapter VII, to
Muslims. It said that s 129 preserves the rule of Muslim law and excludes the applicability of s 123 of the TPACT to a gift
of an immovable property by a Muslim. It is not the requirement that in all cases where the gift is contemporaneous to the
making of the gift then such gift deed must be registered under s 17 of the Registration Act. Each case would depend on its
own facts.

The three essentials of gifts under Muslim law are: declaration of the gift by the donor; acceptance of the gift by the donee,
and delivery of possession. The rules of Muslim law do not make writing essential to the validity of gift; and oral gift
fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of
gift in writing. The apex court further clarified that merely because the gift is reduced to writing by a Muslim 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 a Muslim 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 Muslim law is that three essential requisites must be fulfilled. The form is
immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be
rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites
the factum of 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 not in conformity with the rules of gift in Mohammedan law.
In the instant case, the gift was made by a donor by a written deed in favour of his son in respect of his properties. The gift
as recited in the deed was based on love and affection for the son as after the death of the donors wife, he has been looking
after and helping him. The acceptance of the gift by son was evidenced as he signed the deed. The son was in physical
possession of residential house with the donor. All the three essentials of a valid gift under the Mohammedan law were
satisfied. The gift deed was a form of declaration by the donor and not an instrument of gift as contemplated under s. 17 of
the Registration Act and therefore it was complete and irrevocable. The apex court overruled the Andhra Pradesh High
Court ruling that held against the validity of the gift for want of registration.

Where the dower was not fixed in cash so as to bring into existence a dower debt, but was to be by giving of land, the
transfer of the land was held to be pure and simple oral gift (hiba) under the Mahomedan law.45

In Maqbool Alam v Khodaija, 46 the appellant examined himself as witness, and said that the gift was made on 10 February
1943, in the presence of his parents. His mother was alive, but she was not examined as a witness. The date of the gift was
not mentioned in the plaint or any other document, and was disclosed for the first time in the witness box without it being
made clear as to how the appellant remembered it in absence of any record. The Supreme Court held that the appellant
failed to prove the alleged oral gift. The Andhra Pradesh High Court holding that it was unknown to law, that a
Mahomedan can make an oral gift within the confines of his house and without the presence of anybody else, negated the
plea of oral gift where the donor admitted that no one was present when he made the alleged oral gift.47 In the case of a gift
of immovable property amongst Muslims, delivery of possession following the execution of a gift deed amounts to a valid
gift.48

The provisions of s 128 (universal donee) are, according to the Andhra Pradesh High Court, applicable to Muslims also, in
the absence of any rule of Muslim law regarding the liability of a universal donee. A gift can be attacked on the ground of
fraud on creditors under the general law (s 53), but, in the case of a universal donee, the liability is governed by the section
itself. That the donor earns salary does not mean the donee is not a universal donee. Salary cannot be transferred in law.49

A dower debt being a debt payable by a husband to his wife, a gift in lieu of dower debt cannot be held to be valid, in as
much as repayment of dower debt being consideration, no property can be transferred by way of a gift in lieu thereof.50

36 AIR 1963 Pat 229.

37 [1959] 2 SCR 563 (Supp), AIR 1959 SC 942 [LNIND 1959 SC 51].

Page 2 of 3
 (IN) Mulla : The Transfer of Property Act, 12e

38 AIR 1972 Ker 27.

39 KP Abdulrahiman v Kunhi Mohammed AIR 1975 Ker 150 [LNIND 1974 KER 173].
40 Musa Miya v Kadar Bux (1928) ILR 52 Bom 316, p 321, 55 IA 171, 109 IC 31, AIR 1928 PC 108.
41 Jaitunbi Fatrubhai v Fatrubhai Kasambhai (1947) ILR Bom 372, 49 Bom LR 669, AIR 1948 Bom 114. See, however, Kerala
cases under the note Constitutionality of the Section.
42 A MK Mariam Bibi v M A Abdul Rahim AIR 2000 (NOC) 21 (Mad).
43 Imbichimodden Kutty v Pathumunni Umma AIR 1989 Ker 148 [LNIND 1988 KER 60].
44 AIR 2011 SC 1695 [LNIND 2011 SC 486], (2011) 5 SCC 654 [LNIND 2011 SC 486].
45 Imambi v Khaja Hussain AIR 1988 Kant 51 [LNIND 1987 KANT 202], p 56, following Jaitunbi AIR 1949 Bom 114.
46 Shaik Pathimma Bi v Sri Venkata Chalapathy Finance Corporation AIR 1978 AP 401 [LNIND 1977 AP 352], (1978) Andh WR
63, AIR 1966 SC 1194 [LNIND 1966 SC 37].
47 Ratan Lal Bora v Mohd Nabiud Din AIR 1984 AP 344 [LNIND 1984 AP 103], p 347.
48 Kunheema Umma v P Ayissi Umina AIR 1981 Ker 176.
49 Shaik Pathhnama Bi v Sri Venkata Chalapathy Finance Corporation AIR 1978 AP 401 [LNIND 1977 AP 352], (1978) Andh WR
63.
50 Saimunissa v SK Mohiuddin AIR 1991 Pat 183, p 186; Usman Khan v Amir Mian AIR 1949 Pat 237.

End of Document

Page 3 of 3