Mutation in official records on the basis of unregistered written hiba deed
dawood ahmed
(Querist) 31 December 2011
This query is : Resolved
DEAR EXPERTS,
IT IS WELL SETTLED BY THE RECENT APEX COURT JUDGEMENT THAT THE HIBA (GIFT BY A MOHAMMEDAN) NEED NOT BE REGISTERED. ON THE BASIS OF A NOTARISED GIFT DEED OF A MOHAMMEDAN IN RESPECT OF A HOUSE, THE DONEE APPROACHED MUNICIPALITY FOR MUTATION IN THE RECORDS FOR PAYING THE TAX ON HIS NAME. THE MUNICIPALITY SAYS ONLY ON THE BASIS OF REGISTERED DEED THEY CAN EFFECT MUTATION. FILING OF SUIT AND LEGAL PROCEEDING WILL COST DEARLY NOW A DAYS AND IT CONSUMES TIME ALSO. SO WHAT IS THE REMEDY? PLEASE GUIDE.
M.Sheik Mohammed Ali
(Expert) 31 December 2011
as per mohammedan law no need registeration for transfer a property bye way of gift, but as per common law need to mutation in future all you must registered before register office.
dawood ahmed
(Querist) 31 December 2011
Respected sir,
I am not able to follow your answer. What do you mean by common law? is there any statute or authoritative case law which mandates the registration as must for mutation of any immovable property? Please explain sir.
With regards.
Raj Kumar Makkad
(Expert) 01 January 2012
Municipality is not concerned with the change of ownership unless it is a registered document or duly authenticated by the office of registrar. So even though the gift deed is valid but the donee shall have to get it registered with the office of the concerned registrar.
prabhakar singh
(Expert) 01 January 2012
If the notarized deed is in Memorandum (YAADASHT) form you can file a writ against municipal board refusal of mutation.
But in case it is it self a Gift deed it is in bad form as Muslim is permitted to to make an oral gift and subsequently he can record its YAADDASHT in writing but if he chooses to make a gift by written deed he is submitting himself to the provisions of Transfer of Property Act himself,where under there can not be a gift of immovable any way except by registration.
One thing more,if property is in U.P.then although registration would not be required for any YAADDASHT but stamp duty shall be as per law.
Then if it is a case out side U.P.,and notarial deed has not been brought on record of municipal board cure is possible
but it has gone on record and it is not a YAADASHT,you are late here.
dawood ahmed
(Querist) 01 January 2012
Respected sir, Prabhakar Ji,
The recent ruling of Apex court in Hafeeza Bibi & Ors. Versus Shaikh Farid (Dead) by LRs. & Ors ruled that there is no distinction between a Memorandum of gift already made or gift deed made con-temporarily at the time of making gift.
Respected Raj Kumar Ji,
I see the point in your comment that the municipality should not be concerned about the ownership of the property mutation is only for the payment of tax on the property concerned. If the person already on record has no objection for the person seeking mutation paying the tax the Municipality should not create hinderance.
With regards.
With regards.
prabhakar singh
(Expert) 02 January 2012
Dear dawood ahmed!
undoubtedly you say correctly in view of law of gift gifted to Muslims' community even ignoring views of Asaf A. A. Fyzee in his treatise of Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift; such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient.
ANY WAY IN VIEW OF THIS JUDGMENT MY ADVICE TO FILE A WRIT AGAINST MUNICIPAL BOARD TO RECORD THE MUTATION GETS FURTHER STRENGTHENED.FILE A WRIT AFTER ASKING THE MUNICIPAL BOARD TO PASS AN ORDER IN WRITING TO THE EFFECT OF REFUSAL FOR WANT OF REGISTRATION BUT PUT THE JUDGEMENT ON MUNICIPAL BOARD FILE.
dawood ahmed
(Querist) 02 January 2012
Thank you sir Prabhakar Jee,
I am satisfied with your advise .
With Regards.
