What Are Essential Requisites Of A Gift Under Mohammedan Law? Supreme Court Discusses

The Bench of Justice C.T. Ravikumar and Justice Sanjay Karol observed, “The words “partition of the property done by Sultan Abdul Khader Shek” clearly indicate his intention to divide the property into three parts without any indication of his intent to gift the property to his sons. Had Sultan Saheb intended to gift the property, it ought to have been recorded as a gift in the Mutation Entry.”

Senior Advocate Basava Prabhu S. Patil represented the Appellants, while Senior Advocate S N Bhat appeared for the Respondents.

The Trial Court had held that under Mohammedan Law, partition during the lifetime of the owner requires a written registered document, which was absent in this case. It was also noted that the Mutation Entry described the transaction as a partition rather than a gift, and the evidence failed to establish the intention to gift the property.

The Supreme Court explained that a valid gift can be made by oral statements under the Mohammedan law because registration is not a requirement which obviates the need for a gift to be reduced in writing.

However, the Bench clarified that when the essential requisites of a gift are not satisfied under the Mohammedan Law, then the said gift is not valid even if it is effected by a registered instrument.

The Court referred to its decision in D.N. Joshi v. D.C. Harris (2017), wherein it was held, "What is important for a valid gift under Mohammadan 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."

“Under Mohammedan Law, a gift is to be effected in the manner laid down under the law. If the conditions prescribed by that law are fulfilled, the gift is valid, even though it is not effected by a registered instrument. But if the conditions are not fulfilled, the gift is not valid even though it may have been effected by a registered instrument. Therefore, a valid gift could be made by oral statements as well so long as the three requirements as discussed above are met thereby. This is because registration is not a requirement which obviates the need for a gift to be reduced in writing,” it explained.

The Bench also stated that “the correct position of law in so far as registration is concerned has been stated in the preceding paragraphs as not applying to gifts and wholly inapplicable to partition as the concept itself is foreign to this branch of personal law in the lifetime of the ancestor.”

The Court pointed out that the intention to gift a property in this case must have been recorded as a gift in the mutation entry by the parties.

Consequently, the Court held, “As a result of our discussions in the foregoing paragraphs, we do not find any fault with the reasoning given by the Trial Court and the High Court qua the questions of gift and partition. The correct position of law in so far as registration is concerned has been stated in the preceding paragraphs as not applying to gifts and wholly inapplicable to partition as the concept itself is foreign to this branch of personal law in the lifetime of the ancestor. The order passed by the Trial Court in O.S. No.140/88 and confirmed by the High Court in RFA No.469 of 1998, clubbed with RFA No.493 of 1998, is confirmed in the above terms.”

Accordingly, the Supreme Court dismissed the Appeal.

Cause Title: Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors. (Neutral Citation: 2024 INSC 1006)

Appearance:

Appellants: Senior Advocate Basava Prabhu S. Patil; Advocates Samarth Kashyap and Radhakrishna S Hegde; AOR B. V. N. Raghupathy and Rajeev Singh

Respondents: Senior Advocate S N Bhat; Advocates Tarun Kumar Thakur, Parvati Bhat, Abhay Choudhary M and Vivek Ram R; AOR Anuradha Mutatkar and Rajeev Singh

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