Dear Fazal,
"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
The conception of the term "gift" as used In the Transfer of Property Act is somewhat different from the use in Mohammedan law. In the Mohammedan law a gift is a transfer of property or right by one person to another in accordance with the provisions given in the Mohammedan law and includes-
a) A hiba, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and
b) An ariat, the grant of some limited interest in respect of the use or usufruct of some property or right.
Where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called sadaqah.
The terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the kinds of transactions which are covered by the general term "gift". A hiba is a transfer without consideration. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law. A gift is not a contract (though in Muslim law it is called a contract) but the principle may be applicable even to gift.
In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or taking are two contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates that a gift is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential elements of a gift are
(a) The absence of consideration;
(b) the donor;
(c) The donee;
(d) The subject-matter;
(e) the transfer; and the acceptance.
The concept of gift is diametrically opposed to any presence of consideration or compensation.
In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular mode of acceptance is required and the circumstances throw light on that aspect. A transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. Factum of acceptance can be established by different circumstances such as donee taking a property or being in possession of deed of gift alone. If a document of gift after its execution or registration in favour of donee is handed over to him by the donor whom he accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that possession is given raises a presumption of acceptance.
Conception Of Property
English Law.-In order to appreciate the questions of conditions in gifts (and also in bequests) it is necessary to first note the different conceptions of property in English and Mohammedan laws. The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. Rights in land described as "estate in land" do not always imply only absolute ownership but also rights which fall short of it and are limited to the life of the grantee or otherwise limited in respect of time and duration or use property in all these various forms are described as "estate". Ownership of land is thus split up into estates distinguished in point of quality (e.g., into legal and equitable estates) and in point of duration (e.g., estates in fee simple, in tail, for life or in remainder.'
Mohammedan Law.-In general, Muslim law draws no distinction between real and personal property, and there is no authoritative work on Muslim law, which affirms that Muslim law recognises the splitting up of ownership of land into estates. What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Mohammedan law they are only usufructuary interest (and not rights of ownership of any kind).
Thus, in English law a person having interest in immoveable property for limited periods of time is said to be the "owner" of the property during those periods. The usufruct is also a part of the corpus. On the other hand, in Muslim law, a person can be said to be an "owner" only if he has full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment of property is granted to a person for life or other limited period such person cannot be said to be an "owner" during that period. The English law thus recognises ownership of the land limited in duration while Muslim law admits only ownership unlimited in duration but recognises interests of limited duration in the use of property.
There is no difference between the several schools of Muslim law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools.
The Donor
Doner's Qualification
The donor is the person who gives. Any person who is sui juris can make a gift of his property. A minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would therefore be void trustees cannot make a gift out of trust property unless authorized by the terms of the contract.
On behalf of a minor, a natural guardian can accept a gift containing a condition that the person nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would amount to recognition by the natural guardian of the nominated person as the manager or the agent of minor for the purpose of such property.
In Mohammedan law majority is to be determined according to Sec. 3 of the Majority Act, and not by Mohammedan law.
The age of majority as regards matters other than marriage, dower, divorce and adoption, is now regulated by the Indian Majority Act IX of 1875. Section 3 of the Act declares that a person shall be deemed to have attained majority when he shall have completed the age of eighteen years. In the case, however if a minor of whose person or property a guardian has been appointed, or of whose property the superintendence has been assumed by a Court of Wards, the Act provides that the age of majority shall be deemed to have been attained on the minor completing the age of twenty-one years.
Soundness of mind and majority are the only qualifications required for making a gift. A gift to be valid must be made by a person with his free consent and not under compulsion. The donor must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the donor was able to apprehend the transaction.
Donor's powers are unrestricted in Mohammedan law-
A man may lawfully make a gift of his property to another during his lifetime, or he may give it away to some one after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition. Mohammedan law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the net estate. Mohammedan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will from that of a will a gift may be made to a stranger wholly excluding the heirs. Pardanashin Lady Free consent means, the consent should not have been obtained by fraud, misrepresentation or undue influence. An insolvent donor is not competent to make a gift.
The Donee
The donee is the person who accepts the gift, by or on behalf of a person who is not competent to contract. A minor therefore may be a donee; but if the gift is onerous, the obligation cannot bee enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the gift.
The words 'accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance. A gift can be made to a child en ventre sa mere and could be accepted on its behalf.
The donee must be an ascertainable person and be a donee under this section; nor can a gift be made to an unregistered society.
A gift to two or more persons may be a gift to them as joint tenants or as tenants in common. The presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a Hindu gift the donees are presumed to take as tenants in common It is necessary in Mohammedan law that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid. It is necessary that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid.
Gifts of Usufruct(Ariat) to unborn persons -a hiba stands on a different footing from a gift of a limited interest in usufruct a gift of future usufruct to unborn persons is valid provided that the donee is in being at the time when interest opens out for heirs
Child in the womb - a hiba in favour of a child in the womb is valid if the child is born within six months from the date of the hiba because in that case it is presumed that the child actually existed as a distinct entity in the womb of his mother.
Juristic persons - a gift to juristic persons or any other institution is valid. So a gift to corporate units, e.g. a tauazhi (consisting of a mother and of all her children and not descendants in the female line governed by Marumakkathayam law) are valid. Such a gift will be valid as being one for the whole body.
It has been held that a mosque is recognized by the Mohammedan jurist as a juristic person, and that a valid gift can be made in favour of a mosque.
Gifts to Non-Muslims - a gift may be made to a non-Muslim but in such a case the property will, after the completion of the gift, be subject to the personal law of the donee and not that of donor.
Subject Of Gift
The subject matter of the gift must be certain existing movable or immovable property. It may be land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future property. A gift of a right of management is valid; but a gift of future revenue of a village is invalid. These cases were decided under Hindu and Mohammedan law respectively but they illustrate the principle. In a Calcutta case, it was said that the release of a debt is not a gift, as a gift must be of tangible property. It is submitted that the release of a debt is not a gift as it does not involve a transfer of property but is merely a renunciation of a right of action. It is quite clear that an actionable claim such as a policy of insurance may be the subject of a gift It is submitted that in a deed of gift the meaning of the word 'money' should not be restricted by any hard and fast rule but should be interpreted having regard to the context properly construed in the light of all the relevant facts. Therefore in order to constitute a valid gift, there must be an existing property. In Mohammedan law any property or right which has some legal value may be the subject of a gift.
Conditions For Valid Gift Under Section 122 Of The Transfer Of Property
There was a divergence of view between the two schools of Hindu law as to the necessity of acceptance of the gift by the donee, Dayabhaga holding that it was not necessary but Mistakshara holding the contrary. This section has modified the indigenous Dayabhaga law. A transfer of a stock to the name of the donee vests the property in him subject to his right to repudiate the gift, even though he be unaware of the transfer And this is so even though the gift be onerous. The mutation entries of the property alleged to be gifted does not conveyor extinguish any title and those entries are relevant only for the purpose of collection of land revenue.
Gift defined under the Transfer of Property Act is as given below-
122. "Gift" defined. - "Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
It is required to be a voluntary transfer of property to another made gratuitously and without consideration. This section applies to those gifts that are gifts inter vivos or an absolute gift. Property under the above section can be both moveable or immoveable but however have to be tangible in nature. In order to constitute a valid gift, there must be an existing property as already earlier elaborated.
Voluntarily - In this section the word 'voluntarily' bears its ordinary popular meaning. It denoting the exercise of the unfettered free will, and not its technical meaning of 'without consideration'. When a gift is made, it must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect, and also that undue influence or pressure was not exercised upon clear intention to make an out-and-out gift, but the intention has failed for want of transfer or any other cause, the courts will not convert what was meant to be an out-and-out gift into a trust, and the donor will not be deemed a trustee of the property for the intended donee. The gift will fail. Also where the husband deposited certain ornaments with a bank for safe custody in the joint names of himself and his wife, with direction to be delivered to be either or survivor, it did not amount to a gift, as the husband retained dominion over the property. Where a person keeps money to fixed deposit in the name of his niece, brought up and given in marriage by him, there is an inference of gift in favour of the niece.
Where the motive behind the deed of gift was unequivocal to give the transferee a title which would act as a safeguard against any claim for pre-emption, the transaction for that reason cannot be called a sale. Similarly where a person settles an annuity upon his alleged wife, the settlement cannot be construed to be a contract for consideration of love and affection, but is a gift pure and simple.
Donative intention (motive) and consideration-
A gift is a transfer. But it does not contain any element of consideration. Complete absence of monetary consideration is the main, hallmark, which distinguishes a gift from a grant or any other transactions for valuable or adequate consideration. Where there is any equivalent of benefit measured in terms of money in respect of a gift, the transaction ceases to be a gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these financial considerations cannot be called or held to be legal considerations as understood by law. Legal consideration is one recognised or permitted by law as valid and lawful. The term is also sometimes used as equivalent to a 'good' or 'sufficient' consideration. Love and affection is a sufficient consideration when a gift is contemplated, but it is not considered as a 'valuable' consideration when such is required.
It is one of the essential requirements of a gift that it should be made by the donor 'without consideration'. The word 'consideration' has not been defined in the T.P. Act, but means the same as in the Contract Act excluding natural love and affection. If not, and if the transfer involved consideration, the transaction would amount to a sale within the meaning of sec. 54 or to an exchange within the meaning of sec. 118. The essence of a gift inter vivos must be without 'consideration' of the nature defined in sec. 2(d) of the Contract Act.
Where a very old man, with weak eyesight, sues for cancellation of the deed of gift executed by him in favour of his son alleging that it was not his voluntarily act. The circumstance also indicated that the donee was in a position to dominate the will of the donor. Under such circumstance the onus shifts on to the donee to prove that the gift was made voluntarily.
In another case of the Orissa High court, Gift deed is alleged to have been taken from a pardanashin lady by practicising fraud. When the plaintiff is an illiterate or pardanashin lady, in spite of the fact that she is unable to establish her case of practising fraud, the onus still remains uponi the donee to establish conclusively that the document was executed after it was read over and explained to her and after she understood the contents thereof.
'Without consideration' - A gift is a transfer without consideration and if there is any consideration in any shape, there is no gift. The word 'consideration' means valuable consideration, i.e. consideration either of money or money's worth. A gift in lieu of conferring spiritual benefit to the donor is not a transfer with consideration, but is to be treated as a gift.
Where a mother gifts property to her only daughter, who promises to maintain the former throughout her life, the promise is not enforceable in law because the gift has to be for natural love and affection and not for any consideration . A minor may be a donee and the minor's natural guardian can accept the gift on behalf of the minor. But if the gift is onerous, the obligations cannot be enforced against the minor during his minority. But on his attaining majority, the minor must accept the burden or return the gift. The donee can even be a child en ventre sa mere (in its mother's womb).
When Acceptance to be made. - Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
Acceptance. - The gift must be accepted by the donee or by someone on his behalf. An offer without acceptance by the donee cannot complete the gift. Acceptance may be inferred from acts prior to the execution of the deed of gift. Mere silence may sometimes indicate acceptance provided the donee knows about the gift, slighest evidence of acceptance being sufficient.
Even when a gift is made by a registered instrument, the same has to be accepted by or on behalf of the donee to make it complete, failing which the gift will be bad, because it so provides in sec. 122. What the law requires is acceptance of the gift after its execution, though the deed may not be registered. Anterior negotiations or talks about the gift would not amount to acceptance. Person accepting gift on behalf of the minors appended his thumb-impression on the deed in token of acceptance. It was held that the gift was complete. Acceptance must be essentially made before the death of the donor. There must be something shown to indicate an acceptance. The acceptance may be signified by an overt act such as the actual taking of possession of the property, or such acts by the donee as would in law amount to taking possession of the property where the property is not capable of physical possession. Acceptance may be implied, but the rule of implied acceptance ought not to be extended so far as to hold that the acceptance will be presumed unless dissent is shown. Acceptance will be presumed if there is possession, actual or on the parties where some right, interest, profit or benefit accrues to one party, or some forbearance, detriment, loss, or responsibility is given, suffered or undertaken by the other. There is nothing in section122 of the transfer of property Act to show that the acceptance under this section should be express. The acceptance may be inferred, and it may be proved by the donee's possession of the property, or even by the donee's possession of the deed of gift.
Delivery of possession of the gifted property is not absolute requirement, for the completeness or the validity of the gift as found in Muslim Law of Gifts.
When a gift of immovable property is not onerous, only slight evidence is sufficient for establishing the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift, it is only normal to assume that the donee had accepted the gift, because the acceptance would only promote his own interest. Mere silence may sometimes be indicative of acceptance, provided it is shown that the donee knew about the gift. No express acceptance is necessary for completing a gift.
While mere possession by or on behalf of, a donee may amount to acceptance, mere possession cannot be treated as evidence of acceptance where the subject matter is jointly enjoyed by the donor and the donee.
A gift of immovable property can only be made by a registered instrument. A deed cannot be dispensed with even for a property of small value, as in the case of a sale. And as a further precaution, attestation by two witnesses is required. This provision excludes every other mode of transfer and even if the intended donee is put in possession, a gift of immovable property is invalid without a registered instrument.
Essentials Of Gift Under Mohammedan Law
Under Mohammedan law, to be a valid gift, three essentials are required to exist:
(a) declaration of gift by the donor
(b) an acceptance of the gift, express or implied, by or on behalf of the donee, and
(c) delivery of possession of the subject of gift.
Courts have consistently held that when there is no compliance of any of the above three essential conditions the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift either of movable or immovable property.
In another case the Patna High Court held that under the Mohammedan Law for validity of the deed of gift four elements are necessary
¢ declaration of gift by the donor
¢ relinquishment by donor of-ownership-and dominion
¢ acceptance of the gift by donee, and
¢ delivery of possession of the property by donor.
Under the Mohammedan Law it is essential as regards gift that the donor should divest himself completely of all the ownership and dominion over the subject of the gift. It is essential to the validity of the gift that there should be delivery of such possession as the subject of the gift is susceptible of. According to Muslim law it is not necessary that there should be deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered.
Acceptance- Acceptance may be made expressly or impliedly by conduct, but acceptance would be unnecessary in a case where the gift is made by a guardian to his ward. Mohammedan law does not dispense with the necessity for acceptance of the gift even in cases where the donees are minors. If the donees are minors it may be that the evidence of acceptance will have to be approached with reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary in the case of a gift in favour of minor.' A minor who has attained discretion may accept the gift even after it has been rejected. He may also refuse to accept the gift.
Delivery of possession - Under the Mohammedan law it is not necessary that there must be actual delivery of possession to make a gift valid. It is a fundamental rule of Mohammedan law as regards gifts,that "the donor should divest himself completely of all ownership and dominion over the subject of the gift. It is essential to the validity of a gift that there- should be a delivery of such possession as the subject of the gift is susceptible of what delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case. A gift with a reservation of possession by the donor during his life was held to be void in K.S. Mohammad Aslam Khan v. Khalilul Rahman Khan, One thing is clear, that by reserving undisturbed his right to be in possession and enjoyment, the donor does not divest himself completely of all dominion over the properties, though in sense, he purports to associate the donees with himself, nor can such associating the donees in the matter of possession and enjoyment with him be deemed to be delivery of such possession, if all, as the properties are susceptible of. It is not correct to say that a stipulation that the donor and the donees shall be in joint possession, satisfies the requirement of delivery of possession in a gift under the Mohammedan law.
Even where the donee resides with the donor in the property although no physical departure by the donor or formal entry by the donee, is necessary, the gift has to be completed by the donor indicating a clear intention of his part to transfer possession and to divest himself of all control over the subject of the gift.' Among the conditions required for the validity of a gift under Mohammedan law the most essential is that of delivery of possession, actual or constructive, with the permission of the donor, without which a gift cannot be valid.
Possession, Actual and Constructive - It should, however, is noted that while the delivery of possession is an essential condition for the validity of the gift, it is not necessary that in every case there should be a physical delivery of possession. Possession the delivery of which would complete a gift may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the gift. The relinquishment of control is thus necessary to complete the gift. The real test of the delivery of possession is to see whether the donor or donee reaps the benefit; if the former possession is not transferred and if the latter, it is transferred, and the gift is complete if the donee is permitted directly or indirectly to receive the benefit. Constructive possession of the subject of the gift is therefore sufficient.
Oral Gift of an Immoveable Property-
In view of sec. 123 of Transfer of Property Act, a gift of immovable property, which is not registered, is bad in law and cannot pass any title to the donee. Any oral gift of immovable property cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any title
Under the Muslim law, an oral gift is permissible. However, in order to constitute a valid gift, the donor should divest himself completely of all ownership and dominion over the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of possession of the gifted property had also been effected.
Although the Hindu law requires delivery of possession to complete a gift of immovable property, that law has been abrogated by sec. 123 of this Act. This section clearly seems to have the effect of rendering unnecessary the delivery of possession, substituting, as it does, registration for delivery of possession.
Since delivery of possession is not necessary, it follows that if a Hindu executes a gift in praesenti of three villages by means of a duly registered instrument but reserves possession of the villages in order to enjoy the usufruct during his lifetime, and at the same time provides that he would not alienate the property to anybody else, the gift is perfectly valid.
Under the Mohammedan law, the essentials of a gift are: declaration of gift by the donor, an acceptance of the gift by the donee, and delivery of possession such as is the subject of the gift susceptible of. This rule of Mohammedan law is unaffected by the provisions of sec. 123, Transfer of property Act and, consequently, a registered instrument is not necessary to validate a gift of immovable property.
Possession means not always actual physical possession but possession which the property is capable of being given. So far as declaration is concerned, it must be shown that the donor either in the "presence of witnesses or otherwise made a public statement that he gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering possession to the donee. A Mohammedan can make oral gift of his immovable gift subject to these conditions.
Delivery of possession being essential to the validity of a gift, it follows that if there is no delivery of possession, there is no valid gift.
Under the Mohammedan law, a valid gift can be affected by delivery of possession, and if there is delivery of possession, the mere fact that there is also an unregistered deed of gift does not make the gift invalid.
A Comparitive Of Gift In The Transfer Of Property Act And In Mohammedan Law Property- Gifts as given under the transfer of property Act deals only with gifts of tangible properly; and so a release of a security without consideration does not fall under this section; because, though the release of the security may be said to be a gift, still the gift is not one of tangible property. When the certificate of shares together with a blank transfer form signed by the registered shareholder is handed over to the buyer by the registered holder, the buyer acquires not the full property in the shares but the title to get on the register of the company. This title to get on the register, though a chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the gift of such title to get on the register is complete when a deed of gift duly attested and registered, together with the shares and blank transfer form signed by the donor, is handed over to the donee.
Hiba Of Corporeal And Incorporeal Property - it is not necessary that a hiba must be of some corporeal or tangible property, it may be made not only of corporeal property but also of incorporeal property. Thus, a hiba may be made of actionable claims or chooses-in-action, e.g. debts,negotiable instruments or Government promissory notes.
Gift of a debt -the gift of a debt to the debtor is lawful both by analogy (qiyas) and liberal interpretation (istehsan). A gift takes effect in two ways, by transfer of right of property (tamlik) or by cancellation or discharge (iskat). The gift of a debt to the debtor comes under the latter category. If the creditor releases the principal debtor from debt, both the debtor and surety are released. The release of a debt may also be made in favour of the heirs of the debtor if he dies.
Existence Of Property Necessary- In order to constitute a valid gift, there must be an existing property. In other words, the subject-matter of the gift must be certain existing moveable or immovable property like land, goods or actionable claims. It must be transferable under sec. 6. In case of gift of certain amount by entries in the books of account by credit and debit, the sums should be available on the date of gift in the account of the firm whose accounts are said to be credited or debited. In the case of banking companies or other firms and companies who have overdraft facilities, even if the sums are not in credit of the donor and are not with such companies or firms, gifts might be possible by adjustment of the book entries. But in the case of non-banking companies or firms, if these companies or firms do not have overdraft facilities, it is not possible to make a valid gift if sums or funds are not available. A donation cannot be made of anything to be in future (e.g. future revenues of a property).
Existence Of Property Necessary Also In Case Of Hiba-
A hiba is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary that such thing or right must be in existence and can be transferred immediately. Also in the case of a gift of usufruct(Ariat) produce (Manqfi) refers to rights which accrue from day to day in future. Such produce or use of a thing becomes property particle by particle as it is brought into being. The manqfi may thus be transferred by the donor during his lifetime by gift or by bequest and be the subject of gift even though they are not in existence at the time of the gift.
Equity of Redemption can be subject of a valid gift-where the property gifted is subject to a usurfructory mortgage, what is gifted is merely the equity of redemption and not physical possession of the property itself.
Oral Gift Of Immoveable Property - In view of sec. 123, a gift of immovable property which is not registered is bad in law and cannot pass any title to the donee. Any oral gift of immovable property cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any. Under the Muslim law, an oral gift is permissible. However, in order to constitute a valid gift, the donor should divest himself completely of all ownership and dominion over the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of possession of the gifted property had also been.
When Gift May Be Suspended Or Revoked
Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.the following are those conditions-
(1) That the donor and donee must have agreed that the gift shall be suspended or revoked on the happening of a specified event;
(2) such event must be one which does not depend upon the donor's will;
(3) the donor and donee must have agreed to the condition at the time of accepting the gift; and
(4) the condition should not be illegal, or immoral and should not be repugnant to the estate created under the gift. Section 126 is controlled by sec. 10. As such, a clause in the gift deed totally prohibiting alienation is void in view of the provisions contained in sec. 10. A gift, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by resorting to legal remedy in a competent court of law.
A Mohammedan on the other hand can revoke a gift even after delivery of possession except in the following cases:
(1) When the gift is made by a husband to his wife or by a wife to her husband;
(2) when the donee is related to the donor within the prohibited degrees;
(3) when the gift is Sadaka (i.e. made to a charity or for any religious
purpose).
(4) when the donee is dead;
(5) when the thing given has passed out of the donee's possession
by sale, gift or otherwise;
(6) when the thing given is lost or destroyed;
(7) when the thing given has increased in value, whatever be the cause of the increase;
(8) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and
(9) when the donor has received something in exchange for the gift
Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.
Onerous Gift
'Onerous gift' is a gift made subject to certain charges imposed by the donor on the donee. The principle behind this is that he who accepts the benefit of a transaction must also accept the burden of the same. This section, being an embodiment of a rule of equity, applies equally to Hindus and Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is sufficient; there need not be any separate and express acceptance of the onerous condition also at the same time. The acceptance of the gift will carry with it the acceptance of the onerous condition also, even though at the time of the gift the donee was not aware of such condition, specially where the onerous condition is of a trifling nature (payment of Rs. 5 as monthly maintenance to a certain person for life). A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.
Universal Donee
The essential condition to constitute a universal donee is that the gift must consist of the donor's whole property. If any portion of the donor's property, no matter whether it is moveable or immovable, is excluded from the operation of the gift or the endowment, the donee is not a universal donee. This concept is embodied in section 128 of the Transfer of property Act. Where a Mahomedan made a gift of the whole of his estate to his son and directed him to pay his debts, the son was a universal donee and he was liable to pay all debts of the donor. There is no rule of Mahomedan law which conflicts with the provisions of this section.
The Supreme Court in Hafeeza Bibi Vs. Shaikh Farid (Dead) has examined the concept of Gift under Muslim Law and its interplay with the provisions of the Transfer of Property Act and the Registartion Act. The question posed before the Supreme Court in this case was whether an unregistered Gift Deed is a valid gift and a valid conveyance of title. The relevant portions of the judgment are reproduced hereinbelow;
10. As to whether or not the High Court is right in its view that the unregistered gift deed dated February 5, 1968 is not a valid gift and conveyed no title to the defendant 2 is the question for determination in this appeal.
11. There is divergence of opinion amongst High Courts on the question presented before us.
12. The Privy Council in the case of Mohammad Abdul Ghani (since deceased) & Anr.v. Fakhr Jahan Begam & Ors. 1922 (49) IA 195 referred to `Mohammadan Law'; by Syed Ameer Ali and approved the statement made therein that three conditions are necessary for a valid gift by a Muslim:
(a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly;
(c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively.
13. In Mahboob Sahab v. Syed Ismail and others (1995) 3 SCC 693, this Court referred to the Principles of Mahomedan Law by Mulla, 19th Edition and in paragraph 5 (pp. 696-697) noticed the legal position, in relation to a gift by Muslim incorporated therein, thus :
"5. Under Section 147 of the Principles of Mahomedan Law by Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of moveable or of immovable property. Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only the gift is complete. Section 152 envisages that where the donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift......."
14. Section 123 of the Transfer of Property Act, 1882 (for short, `T.P. Act') lays down the manner in which gift of immoveable property may be effected. It reads thus :
"S.123. Transfer how effected. -- For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered."
15. However, an exception is carved out in Section 129 of the T.P. Act with regard to the gifts by a Mohammadan. It reads as follows:
"S.129. Saving of donations mortis causa and Muhammadan Law. -- Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law."
16. At this stage, we may also refer to Section 17 of the Registration Act, 1908 which makes registration of certain documents compulsory. Section 17 of the Registration Act, to the extent it is necessary, reads as follows :
"S.17. Documents of which registration is compulsory. –
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property; (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . ; (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
17. Section 49 of the Registration Act deals with the effect of non-registration of documents required to be registered. It reads thus:
"S.49. Effect of non- registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall-- (a) affect any immovable property comprised therein or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882 ), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877 ), or as evidence of any collateral transaction not required to be effected by registered instrument."
18. 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. The question is about its applicability to a written gift executed by a Mohammadan in the light of Section 129 of the T.P. Act and the rule of Mohammadan Law relating to gifts.
19. In the case of Nasib Ali v. Wajed Ali AIR 1927 Cal 197, the contention was raised before the Division Bench of the Calcutta High Court that the deed of gift, not being registered under the Registration Act, is not admissible in evidence. The Calcutta High Court held that a deed of gift by a Mohammadan is not an instrument effecting, creating or making the gift but a mere piece of evidence. This is what the High Court said :
".........The position under the Mahomedan Law is this : that a gift in order to be valid must be made in accordance with the forms stated above; and even if it is evidenced by writing, unless all the essential forms are observed, it is not valid according to law. That being so, a deed of gift executed by a Mahomedan is not the instrument effecting, creating or making the gift but a mere piece of evidence. It may so happen after a lapse of time that the evidence of the observance of the above forms might not be forthcoming, so it is sometimes thought prudent; to reduce the fact that a gift has been made into writing. Such writing is not a document of title but is a piece of evidence.
3. The law with regard to the gift being complete by declaration and delivery of possession is so clear that in a case before their Lordships of the Judicial Committee Kamarunnissa Bibi v. Hussaini Bibi [1880] 3 All. 266, where a gift was said to have been made in lieu of dower, their Lordships held that the requisite forms having been observed it was not necessary to enquire whether there was any consideration for the gift or whether there was any dower due. The case of Karam Ilahi v. Sharfuddin [1916] 38 All. 212 is similar in principle to the present case. There also a deed relating to the gift was executed. The learned Judge held that if the gift was valid under the Mahomedan Law it was none the less valid because there was a deed of gift which, owing to some defect, was invalid under Section 123, Transfer of Property Act, and could not be used in evidence.
4. The next, question that calls for consideration is whether a document like the present one executed by a Mahomedan donor after he made a gift to show that he had made it in favour of the donee is compulsorily registrable under the Registration Act. Under Section 17 of the Registration Act an instrument of gift must be registered. By the expression 'instrument of gift of immovable property' I understand an instrument or deed which creates, makes or completes the gift, thereby transferring the ownership of the property from the executant to the person in whose favour it is executed. In order to affect the immovable property, the document must be a document of transfer; and if it is a document of transfer it must be registered under the provisions of the Registration Act.
5. The present document does not affect immovable property. It does not transfer the immovable property from the donor to the donee. It only affords evidence of the fact that the donor has observed the formalities under the Mahomedan Law in making the gift to the donee. I am prepared to go so far as to hold that a document like the present one is not compulsorily registrable under the Registration Act, or the Registration Act does not apply to a so-called deed of gift executed by a Mahomedan. But for purposes of the present case it is not necessary to go so far because I hold that this document is only a piece of evidence, and conceding that it should, have been registered, the effect of its non-registration is to make it inadmissible in evidence under Section 49 of the Registration Act........."
20. In Sankesula Chinna Budde Saheb v. Raja Subbamma 1954 2 MLJ 113, the Andhra Pradesh High Court, after noticing the three essentials of a gift under the Mohammadan Law, held that if a gift was reduced to writing, it required registration under Section 17(1)(a) of the Registration Act. It went on to hold that even if by virtue of Section 129 of the T.P. Act, a deed of gift executed by Mohammadan was not required to comply with the provisions of Section 123 of the T.P. Act, still it had to be registered under Section 17(1)(a) of the Registration Act when the gift related to immoveable property.
21. A Full Bench of the Andhra Pradesh High Court in the case of Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199, was called upon to decide on a reference made by the Board of Revenue under Section 55 of the Hyderabad Stamp Act whether the document under consideration therein was a gift deed or it merely evidenced a past transaction. The High Court applied the test - whether the parties regarded the instrument to be a receptacle and appropriate evidence of the transaction; was it intended to constitute the gift or was it to serve as a record of a past event - and held as under :
"12. We have to examine the document in question in the light of these rules. No doubt, there was recitals therein which relate to past transaction. But that is not decisive of the matter. What is the purpose which it was designed to serve? That the executant did not treat it as a memorandum of a completed hiba is evident from some of the sentences. In the deed, such as "I deemed it necessary to execute a deed also making a declaration in favour of my son...in accordance with the Muslim law", and the last portion of the document. The anxiety of the donor to free the title of the donee to the property from all doubts and to save him from future litigation is clearly exhibited in the last sentence. "I pray that no one may have any kind of doubt regarding the ownership of Syed Ehasan Hussain and that if per chance any doubt at all should arise, this deed of Ekrarnama may prove sufficient." This sentence is expressive of her intention to silence all doubts regarding the ownership of the property with the aid of this document. She did not want anyone to challenge the title of the donee to the house in question. This object could be attained only if it is regarded as a conveyance, a document which effected the transfer by its own force. If, on the other hand, if it is a mere record of a past transaction, that would not have the desired effect. There is one circumstance which gives some indication as to the intention of the executant of the document. The document is attested by two witnesses as required by Section 123 of the Transfer of Property Act. No doubt, this is not conclusive of the matter. But it is indicative of the desire of the executant that it should serve as evidence of the gift and not as a memorandum of a past transaction."
22. In Makku Rawther's Children: Assan Ravther and others v. Manahapara Charayil, V.R. Krishna Iyer, J. (as His Lordship then 6 AIR 1972 Kerala 27 was) did not agree with the test applied by the Full Bench of Andhra Pradesh High Court and the reasoning given in Tayyaba Begum5 . He held in paragraphs 8 and 9 of the report thus :
"8. I regret my inability to agree with the reasoning in these decisions. In the context of Section 17, a document is the same as an instrument and to draw nice distinctions between the two only serves to baffle, not to ill mine. Mulla says:
"The words `document' and `instrument' are used interchangeable in the Act".
An instrument of gift is one whereby a gift is made. Where in law a gift cannot be effected by a registered deed as such, it cannot be an instrument of gift. The legal position is well-settled. A Muslim gift may be valid even without a registered deed and may be invalid even with a registered deed. Registration being irrelevant to its legal force, a deed setting out Muslim gift cannot be regarded as constitutive of the gift and is not compulsorily registerable."
9. Against this argument counsel invoked the authority of the Andhra Pradesh Full Bench. One may respect the ruling but still reiect the reasoning. The Calcutta Bench in AIR 1927 Cal 197 has discussed the issue from the angle I have presented. The logic of the law matters more than the judicial numbers behind a view. The Calcutta Bench argued:
"The essentials of a gift under the Mahomedan law are ..... A simple gift can only be made by going through the above formalities and no written instrument is required. In fact no writing is necessary to validate a gift; and if a gift is made by a written instrument without delivery of possession, it is invalid in law ..... That being so, a deed of gift executed by a Mahomedan is not the instrument effecting, creating or making the gift but a mere piece of evidence ..... Under Section 17 of the Registration Act an instrument of gift must be registered. By the expression 'instrument of gift of immovable property' I understand an instrument or deed which creates, makes or completes the gift thereby transferring the ownership of the property ..... The present document does not affect immovable property. It does not transfer an immovable property from the donor to the donee which only affords evidence of the fact that the donor has observed the formalities under the Mahomedan law in making the gift ..... I am prepared to go so far as to hold that a document like the present one is not compulsorily registrable under the Registration Act, or the Registration Act does not apply to a so-called deed of gift executed by a Mahomedan."
These observations of Suhrawardy, J. have my respectful concurrence. So confining myself to this contention for the nonce, I am inclined to hold that Ext. B1 is admissible notwithstanding Ss. 17 and 49 of the Indian Registration Act. This conclusion, however, is little premature if I may anticipate my opinion on the operation of Section 129 of the Transfer of Property Act expressed later in this judgment. Indeed, in the light of my interpretation of Section 129, Ext. B1 needs to be registered. For the present I indicate my conclusion, if the law of gifts for Muslims were not to be governed by Section 129."
23. The Full Bench of Jammu and Kashmir High Court in Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others AIR 1974 Jammu & Kashmir 59 had an occasion to consider the question whether in view of the provisions of Sections 123 and 129 of the T.P. Act, the rule of gifts in Mohammadan Law stands superseded; and whether it is necessary that there should be a registered instrument as required by Sections 123 and 138 of the T.P. Act in the case of gifts made under that Law. The Full Bench noticed the statutory provisions and also decisions of different High Courts including the decision of Calcutta High Court in the case of Nasib Ali3. The Full Bench held as follows :
"14. The ratio of the above cited authorities is therefore in favour of the proposition that an oral gift made under the Muslim law would not be affected by Section 123 of the Transfer of Property Act and the gift if it has otherwise all the attributes of a valid gift under the Muslim Law would not become invalid because there is no instrument in writing and registered. Therefore the answer to the question formulated would be in the negative i.e. that Sections 123 and 129 of the Transfer of Property Act do not supersede the Muslim law on matters relating to making of oral gifts, that it is not essential that there should be a registered instrument as required by Sections 123 and 138 of the Transfer of Property Act in such cases. But if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered as provided under Section 17 of the Registration Act. If, however, the making of the gift is an antecedent act and a deed is executed afterwards as evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create, make or complete the gift thereby transferring the ownership of the property from the executant to the person in whose favour it is executed."
24. The Single Judge of the Andhra Pradesh High Court in the case of Chota Uddandu Sahib v. Masthan Bi (died) and others AIR 1975 Andhra Pradesh 271, was concerned with the question about the gift by Mohammadan. The Single Judge referred to some of the decisions noticed above and few other decisions and held in paragraph 10 of the report thus :
"10. Under Section 129 of the Transfer of Property Act, nothing in Chapter VII relates to gifts of movable property made in contemplation of death or shall be deemed to affect any rule of Mohammadan Law. According to the Mohammedan Law, there can be a valid gift, if three essentials of the gift are satisfied. (1) a declaration of the gift by the donor, (2) the acceptance of the gift express or implied by or on behalf of the donee and (3) delivery of possession of the subject of gift by the donor to the donee. If these conditions are complied with the gift is complete. According to Muslim law it is not necessary that there should be a deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered. But if the deed is merely a memoranda of an already effected gift, then it stands on a separate footing. In view of this specific provision of Muslim Law, which is saved by Section 129, it cannot be held that the gifts amongst muslims also should satisfy the provisions of Chapter VII. . . . . . . . . . . . Hence if all the formalities, as prescribed by Muslim Law, regarding the making of gifts are satisfied, the gift is valid notwithstanding the fact that it is oral and without any instrument. If there is a contemporaneous document it should be registered. But if the gift is antecedent and the deed is subsequent merely evidencing the past transaction, it does not require registration, because it does not by itself make or complete the gift. . . . . . . . . ."
25. In the case of Amirkhan v. Ghouse Khan (1985) 2 MLJ 136, one of the questions that arose for consideration before the Madras High Court was : whether the gift of the immoveable property by Mohammadan, if reduced to writing, required registration. The Single Judge of the Madras High Court concluded that though a Mohammadan could create a valid gift orally, if he should reduce the same in writing, the gift will not be valid unless it is duly registered.
26. In the case of Md. Hesabuddin and others v. Md. Hesaruddin and others AIR 1984 Gauhati 41, the question with regard to gift of immoveable property written on ordinary unstamped paper arose before the Gauhati High Court. That was a case where a Mohammadan mother made a gift of land in favour of her son by a gift deed written on ordinary unstamped paper. The Single Judge of the High Court relying upon an earlier decision of that Court in Jubeda Khatoon v. Moksed Ali, AIR 1973 Gauhati 105 held as under:
"..... But it cannot be taken as sine qua non in all cases that wherever there is a writing about a Mahomedan gift of immovable property, there must be registration thereof. The facts and circumstances of each case have to be taken into consideration before finding whether the writing requires registration or not. The essential requirements, as said before, to make a Mahomedan gift valid are declaration by the donor, acceptance by the donee and delivery of possession to the donee. It was held in Jubeda Khatoon v. Moksed Ali, AIR 1973 Gau 105 (at p. 106)-
"Under the Mahomedan Law three things are necessary for creation of a gift. They are (i) declaration of gift by the donor, (ii) acceptance of the gift express or implied by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee. The deed of gift is immaterial for creation of gift under the Mahomedan Law. A gift under the Mahomedan Law is not valid if the above mentioned essentials are not fulfilled, even if there be a deed of gift or even a registered deed of gift. In other words even if there be a declaration of acceptance of the gift, there will be no valid gift under the Mahomedan Law if there be no delivery of possession, even though there may be registered deed of gift." In that case there was a deed of gift which was not produced during trial. Still it was found in that case that had the defendants produced the deed of gift, at best it would have proved a declaration of the gift by the donor and acceptance thereof by the donee. It was further held that despite this the defendants would have to lead independent oral evidence to prove delivery of possession in order to prove a valid gift. Therefore it was found in that case that deed of gift under the Mahomedan Law does not create a disposition of property. Relying on this it cannot be said that whenever there is a writing with regard to a gift executed by the donor, it must be proved as a basic instrument of gift before deciding the gift to be valid. In the instant case a mere writing in the plain paper as aforesaid containing the declaration of gift cannot tantamount to a formal instrument of gift. Ext. A (2) has in the circumstances of the present case to be taken as a form of declaration of the donor. In every case the intention of the donor, the background of the alleged gift and the relation of the donor and the donee as well as the purpose or motive of the gift all have to be taken into consideration. In the present case, it is recited in the said writings that the 3rd defendant has been maintaining and looking after the donor and that the other children of the donor were neglecting her. The gift was from a mother to a son and it was based on love and affection for the son in whose favour the gift was made. Therefore, it cannot be held that because a declaration is contained in the paper Ext. A (2) the latter must have been registered in order to render the gift valid. Admittedly, the 3rd defendant has been possessing the land and got his name mutated in the revenue records with respect to the land. It is therefore implied that there was acceptance on behalf of the donee and also that the possession of the property was delivered to the donee by the donor. It should be remembered that unless there was possession on behalf of the 3rd defendant, no mutation would have taken place with regard to the property. It may be repeated that Ext. A (2) has to be taken in the present case as a mere declaration of the donor in presence of the witnesses who are said to have attested the writing."
27. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan 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 Mohammadan 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. Asaf A. A. Fyzee in 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.
28. Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words :
"Under the Mahomedan law the three essential requisites to make a gift valid : (1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."
29. In our opinion, merely because the gift is reduced to writing by a Mohammadan 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 Mohammadan Law is that three essential requisites must be fulfilled. 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 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 does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.
30. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani1 stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.
31. 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. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.
32. We are unable to concur with the view of the Full Bench of Andhra Pradesh High Court in the case of Tayyaba Begum. We approve the view of the Calcutta High Court in Nasib Ali3 that a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence, such writing is not a document of title but is a piece of evidence.
33. We also approve the view of the Gauhati High Court in the case of Md. Hesabuddin. The judgments to the contrary by Andhra Pradesh High Court, Jammu and Kashmir High Court and Madras High Court do not lay down the correct law.
