Merely Because Gift Is Reduced To Writing By Muslim Instead Of It Having Been Made Orally, It Does Not Become Formal Document Or Instrument Of Gift: Kerala HC
|The Kerala High Court observed 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.
The Court said that when a gift could be made by a Muslim orally, its nature and characters are not changed because of it having been made by a written document.
The Court was hearing a Writ Petition where the concept and principles governing the disposition of property by Hiba – gift under Muslim Personal Law - arises for consideration of the Court.
The bench of Justice Kauser Edappagath observed, “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.”
Advocate Jacob Sebastian appeared for the Appellant and GP BS Syamanthak appeared for the Respondent.
Brief Facts-
The Petitioner, a Muslim following Muslim Personal Law challenged the Village Officer’s refusal to mutate property gifted to him by his father, under an unregistered gift deed for 14 cents of land. The Petitioner asserted that he received the property through an oral gift followed by an unregistered gift deed three days later, and took possession. However, the Village Officer rejected his mutation application because of the gift deed’s lack of registration. Hence, the Petitioner’s Appeal.
The Court observed, “A gift under Muslim law is called hiba. Any Muslim, to whatever school of law he or she may belong, can make a hiba, of the whole of his or her property. A hiba is a bilateral transaction which takes effect when the donor declares that he has made a gift and the donee signifies his or her acceptance of the same.”
The Court mentioned the decision in Hafeeza Bibi v. Shaikh Farid where according to the Court it was observed, “What is important for a valid gift under Muslim Law is that three essential requisites must be fulfilled. The form is immaterial. If all three essential requisites - declaration, acceptance and delivery of possession - are satisfied, constituting a valid gift under Muslim Law, the transaction of the gift would not be rendered invalid because it has been written on a plain piece of paper.”
“As rightly observed by Justice V.R. Krishna Iyer, a Muslim gift may be valid even without a registered deed and may be invalid even with a registered deed.”, the Court noted further.
The Court noted that all the conditions of Muslim gift are satisfied in the present case.
Accordingly, the Court set aside the order of the Village officer and disposed of the Writ Petition.
Cause Title: Razak H v. Additional Tahsildar (Neutral Citation: 2024:KER:78277)
Appearance:
Appellant: Advocates Jacob Sebastian, Winston KV, Anu Jacob, Bharath Krishnan G and Arundhathi Suresh Babu
Respondent: GP BS Syamanthak