Holding

A gift by a Mohammadan is valid and irrevocable if the three essentials of declaration, acceptance and delivery of possession are satisfied, and Section 129 exempts such gifts from the registration requirement.

Summary

In a partition suit governed by Sunni law, the defendant claimed that his father had gifted him immovable property by a written hiba deed dated 5‑2‑1968 and that the deed, though unregistered, was valid. The trial court held the gift valid, but the High Court set it aside on the ground that an instrument of gift of immovable property must be registered under the Registration Act. The Supreme Court examined the interplay of the Transfer of Property Act, the Registration Act and Section 129 of the Transfer of Property Act, which saves gifts made under Mohammedan law from the provisions of Section 123. It reiterated that a valid gift under Mohammedan law requires only (i) declaration by the donor, (ii) acceptance by the donee, and (iii) delivery of possession, and that writing or registration is not essential. Applying these principles, the Court found that the donor had declared the gift, the donee had accepted it and taken possession, so the gift was complete and irrevocable despite the lack of registration. Consequently, the High Court judgment was set aside and the trial court decree restored.

Issues considered

Whether a gift deed executed by a Mohammadan, though unregistered, is valid and conveys title under the Transfer of Property Act and the Registration Act.
Whether Section 129 of the Transfer of Property Act saves a Mohammadan gift from the registration requirement of Section 123 and Section 17 of the Registration Act.

Legislation cited

Registration Act, 1908s. 17, s. 49
Transfer of Property Act, 1882s. 123, s. 129

Subjects

GiftHibaMohammadan lawRegistration ActTransfer of Property ActSection 129Unregistered deedPartition suitValidity of gift

Judgment

[2011] 5 S.C.R. 1155

HAFEEZA BIBI & ORS. A
v.
SHAIKH FARID (DEAD) BY LRS. & ORS ..
(Civil Appeal No. 1714 of 2005)
MAY 5, 2011
B
[R.M. LODHA AND SURINDER SINGH NIJJAR, JJ.]

MOHAMMADAN LAW:

Hiba (gift) - Essential requisites of - Held: Are: (1) c
declaration of the gift by the donor, (2) acceptance of the gift
by the donee and (3) delivery of possession -The rules of
Mohammadan Law do not make writing essential to the
validity of a gift and an oral gift fulfilling all the three essentials
make the gift complete and irrevocable - However, the donor D
may record the transaction of gift in writing - In the instant
case, as all the three essential requisites are satisfied by the
gift deed - The gift in favour of defendant 2 became complete
and irrevocable -Judgment of High Court set aside and that
of trial court, holding the gift deed genuine and binding
between the parties, restored -Transfer of Property Act - ss. E
129 and 123.

Transfer of Property Act, 1882:

ss. 123 and 129 - Deed of gift executed by a F
Mohammedan - HELD: Is not the instrument effecting,
creating or making the gift - Such writing is not a document
of title but is a piece of evidence - Section 129 preserves the
rule of Mohammedan Law and excludes the applicability of
s. 123 to a gift of an immovable property by a Mohammadan G
- In the instant case, the gift deed is a form of declaration by
the donor and not an instrument of gift as contemplated uls
17 of the Registration Act - Registration Act, 1908 - s.17.

1155 H
1156 SUPREME COURT REPORTS [2011) 5 S.C.R.

A In a suit for partition between the parties governed
by Sunni Law, defendant no. 2 set up the defence that
his father executed a hiba (gift deed) on 5.2.1968 and
gifted his properties to him, and put him in possession
of the hiba properties. The trial court held the hiba as true,
B valid and binding between the parties, and dismissed the
suit. In the appeal, before the High Court it was
contended for the plaintiffs that the gift deed dated 5-2-
1968 being in writing was compulsorily required to be
registered and stamped and in the absence thereof the
c gift deed could not be accepted and relied upon. The
High Court allowed the appeal and remanded the matter
to the trial court for passing a preliminary decree.

Allowing the appeal filed by heirs of defendant no.2,
the Court
D
HELD: 1.1. 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: (1)
declaration of the gift by the donor; (2) acceptance of the
E gift by the donee and (3) delivery of possession. The
rules of Mohammadan Law do not make writing essential
to the validity of a gift; and an oral gift fulfilling all the three
essentials make the gift complete and irrevocable.
However, the donor may record the transaction of gift in
F writing. [para 27] [1175-H; 1176-A-B]
1.2. 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
G 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
H requisites are satisfied constituting a valid gift, the
;.
'

HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1157
- · LRS. & ORS

· tr'ai:ts~ction of gift would n9t be rendered invalid becau_$e__ .A.
-'ff 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 • s
inappropriate and does not seem to be in conformity with
the rule of gifts in Mohammadan Law. [para 29] [1176-Hi'
1177-A-C]
'
1.3. A deed of gift executed by a Mohammadan is not _ .,
the instrument effecting, creating or making the gift but ' C·
a mere piece of evidence; such writing is not a document'
of title but is a piece of evidence. [para 32] [1178-A-B]

Mahboob.Sahab v. Syed Ismail and others 1995 (2) •
SCR 975 =
(1995) 3 SCC 693 - relied _on. D-
·1
Nasib Ali v. Wajed Ali AIR s27 Cal 197; Md:
Hesilbuddin and others v. Md. 'Hesaruddin and others AIR
1984 Gauhati 41; Jubeda Khatoon v. Moksed Ali AIR 1973
Gauhati 105; and Makku Rawther's Children: Assan Ravther E
and others v. Manahapara Charayil AIR 1972 Kerala 27-
approved.

Inspector General of Registration and Stamps, Govt. of
Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra
f>radesh 199; Sankesula Chinna Budde Saheb v. Raja. F
Subbamma 1954 2 MLJ 113; Amirkhan v. Ghouse Khan
(1985) 2 MLJ 136; Ghulam Ahmad Sofi v. Mohd. Sidiq
Dareel and others AIR 1974 Jammu & Kashmir 59; and
Chota Uddandu Sahib v. Masthan Bi (died) and others AIR
1975 Andhra Pradesh 271 - disapproved. G
.I' ,,

Mohammad Abdul Ghani (since deceased) & Anr.v..
Fakhr Jahan Begam & Ors. 1922 (49) IA 195- referred
.- .. to,'.
.... .,,._. ,- '

- • '. .,. • • < .- ('- •.f
Mohammadan Law by Syed Ameer Ali; MahoinedanEaw ·
by Mui/a, 19th Edition S(pp.696-697); Asaf A ""A.;- Fyt'ee' it? H
1158 SUPREME COURT REPORTS [2011) 5 S.C.R.

A Outlines of Muhammadan Law, Fifth Edition (edited and
revised by Tahir Mahmood) at page 182; and Mui/a,
Principles of Mahomedan Law (19th Edition), Page 120 -
referred to.

2.1. Section 17(1 )(a) of the Registration Act, 1908
8
leaves no manner of doubt that an instrument of gift of
immoveable property requires registration irrespective of
the value of the property. Section 123 of the Transfer of
Property Act, 1882 lays down the manner in which gift of
C immoveable property may be effected and prescribes that
transfer of immovable property by gift must be effected
by a registered instrument. However, an exception is
carved out ins. 129 of the T.P. Act with regard to the gifts
by a Mohammadan. [para 14,15 and 18] (1164-B-E; 1166-
A]
D
2.2. Section 129 of T.P. Act preserves the rule of
Mohammadan Law and excludes the applicability of s.
123 of T.P. Act to a gift of an immovable property by a
Mohammadan. It is not the requirement that in all cases
E where the gift deed is contemporaneous to the making
of the gift then such deed must be registered uls. 17 of
the Registration Act. Each case would depend on its own
facts. [para 31] (1177-F-G]

2.3. In the inastant case, the gift was made by the
F father of defendant no. 2 by a written deed dated 5.2.1968
in his favour in respect of the properties 'A' schedule and
'B' schedule appended thereto. The gift - as is recited in
the deed - was based on love and affection for defendant
no. 2 as after the death of donor's wife, he has been
G looking after and helping him. Therefore, it cannot be said
that because a declaration is reduced to writing, it must
have been registered. The acceptance of the gift by
defendant no 2 is also evidenced as he signed the deed.
He was residing in the 'B' schedule property consisting
H of a house and a kitchen room appurtenant thereto and,
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1159
LRS. & ORS

thus, was in physical possession of residential house A
with the donor. The trial court on consideration of the
entire evidence on record has recorded a categorical
finding that the donor, executed the gift deed dated 5-2-
1968 in favour of donee, the donee accepted the gift and
the donor handed over the properties covered by the gift B
deed to the donee, and thu.s all the three essentials of a
valid gift under the Mohammadan Law were satisfied. The
view of the trial court is in accord with the legal position.
The gift deed dated 5.2.1968 is a form of declaration by
the donor and not an instrument of gift as contemplated c
u/s 17 of the Registration Act. As all the three essential
requisites are satisfied by the gift deed dated 5.2.1968,
the gift in favour of defendant 2 became complete and
irrevocable. [para 34] (1178-G-H; 1179-A]

2.4. The High Court in the impugned judgment relied D
upon the Full Bench decision in the case of Tayyaba
Begum which is not a correct view and does not lay down
the correct law. The judgment and order passed by the
High Court is set aside. The judgment and decree passed
by the Principal Subordinate Judge is restored. [para 35- E
36] (1179-8-C]
Case Law Reference:
1922 (49) IA 195 referred to para 12
F
1995 (2) SCR 975 relied on para 13
AIR 1927 Cal 197 approved para 19
1954 2 MLJ 113 disapproved para 20
AIR 1962 Andhra Pradesh 199 disapproved para 21 G
1972 Kerala 27 approved para 22
AIR 1974 Jammu & Kashmir 59 disapproved para 23

H
1160 SUPREME COURT REPORTS [2011) 5 S.C.R.

A AIR 1975 Andhra Pradesh 271 disapproved para 24
(1985) 2 MLJ 136 disapproved para 27
AIR 1984 Gauhati 41 approved para 28
AIR 1973 Gauhati 105 approved para 28
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1714 of2005.
1
From the Judgment & Order dated 13.9.2004 of the High
·

c Court of Judicature, Andhra Pradesh at Hyderabad in First
Appeal No. 1685 of 1988.

A.K. Srivastav, G.R.K. Paramahamsa, Lokesh Kumar (for
M.K.Garg) for the Appellants.

D V. Mohana for the Respondents.

The Judgment of the Court was delivered by

R.M. LODHA, J. 1. This appeal, by special leave, arises
from the judgment of the High Court of Andhra Pradesh dated
E September 13, 2004 whereby the Single Judge of that Court
set aside the judgment and decree dated April 27, 1988
passed by the Principal, Subordinate Judge, Vishakhapatnam
and remitted the matter back to the trial court for the purpose
of passing a preliminary decree after determining the shares
F to which each party would be entitled.

2. Shaik Dawood had three sons; Shaik Farid, Mehboob
Subhani and Mohammed Yakub. He also had five daughters;
Sappoora Bibi, Khairunnisa Begum, Noorajahan Begum, Rabia
G Bibi and Alima Bibi. All the five daughters were married. His
wife predeceased him. Shaik Dawood retired as Reserve
Head Constable. He was also a Unani Medical Practitioner.

3. Shaik Farid, Sappoora Bibi, Khairunnisa Begum,
Noorajahan Begum and Mohd. Iqbal (son of Alima Bibi) -
H hereinafter referred to as 'plaintiffs' - filed a suit for partition
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1161
LRS. & ORS [R.M. LODHA, J.]

against Mehboob Subhani, Mohammed Yakub and Rabia Bibi A
(hereinafter referred to as 'defendant 1', 'defendant 2' and
'defendant 3' respectively). The son and daughters of Syed Ali,
who was brother of Shaik Dawood, were impleaded as other
defendants (hereinafter referred to as 'defendants 4 to 7').
B
4. The parties are governed by Sunni Law. The plaintiffs
averred in the plaint that Shaik Dawood died intestate on
December 19, 1968 and the plaintiffs and defendants 1 to 3
became entitled to 'A' schedule properties and half share in
'B' schedule properties. The plaintiffs stated that the defendants C
4 to 7 are entitled to other half share in 'B' schedule properties.

5. Mohammed Yakub - defendant 2 - contested the suit
for partition. He set up the defence that Shaik Dawood
executed hiba (gift deed) on February 5, 1968 and gifted his
properties to him. Shaik Dawood put him in possession of the D
hiba properties on that day itself. The h,iba became complete
and the plaintiffs were fully aware of that fact. The defendant 2
in his written statement also referred to a previous suit for
partition filed by some of the parties which was dismissed in
default. E

6. Some of the original parties have died during the
pendency of the suit. Their legal representatives have been
brought on record.

7. The trial court framed four issues. The issue relevant for F
the purpose of the present appeal is issue no.2 which is to the
effect whether hiba dated February 5, 1968 is true, valid and
binding on the plaintiffs. The trial court, after recording the
evidence and on hearing the parties, answered issue no. 2 in
the affirmative and, held that plaintiffs were not entitled to the G
shares claimed. in the plaint. Consequently, vide judgment and
decree dated April 27, 1988, the trial court dismissed the
plaintiffs' suit.

8. The plaintiffs challenged the judgment and decree_ of the H
1162 SUPRE.ME COURT REPORTS [2011) 5 S.C.R.

A trial court before the High Court. Inter alia, one of the arguments
raised before the High Court on behalf of the appellants was
that the gift dated February 5, 1968 being in writing was
compulsorily required to be registered and stamped and in
absence thereof, the gift deed could not be accepted or relied
B upon for any purpose and such unregistered gift deed would
not confer any title upon the defendant 2. The High Court was
persuaded by the argument and held that the unregistered gift
deed would not pass any title to the defendant 2 as pleaded
by him. The High Court, as indicated above, allowed the
c appeal; set aside the judgment and decree of the trial court and
sent the matter back to that court for the purposes of passing
a preliminary decree.

9. The present appellants are legal heirs of the deceased
defendant 2.
D
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.
E
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 & Ors1•
F 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
G possession of the subject-matter of the gift by the donee, either
actually or constructively.

13. In Mahboob Sahab v. Syed Ismail and others2, this
1. 1992(49) IA 195.
H 2. (1995) 3 sec 693.
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1163
LRS. & ORS [R.M. LODHA, J.]

Court referred to the Principles of Mahomedan Law by Mulla, A
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 B
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 essentialJo the
validity of a gift that the donor should divest himself
completely of all ownership and dominion over the subject C
of the gift. Under Section 149, three essentials to the
validity of the gift should be, (1) a declaration of gift by the
donor, (i1) 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 D
mentioned in Section 150. If these conditions are eomplied
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 E
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 F
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 G
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 H
1164 SUPREME COURT REPORTS [2011) 5 S.C.R.

A 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
8
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
C 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
D 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
E 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,
F
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
G 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
H
HAFEEZA 8181 & ORS v. SHAIKH FARID (DEAD) BY 1165
LRS. & ORS [R.M. LODHA, J.]

which, Act No. XVI of 1864, or the Indian Registration Act, A
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
(b) ................................. ;

(c) ................................. ;

(d) ........ '. ........................ ;
c
(e) ................................."

17. Section 49 of the Registration Act deals with the effect
of non-registration of documents required to be registered. It
reads thus: D
"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-
E
(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 F
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 G
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 ?S evidence of any collateral
transaction not required to be effected by registered
instrument." H
1166 SUPREME COURT REPORTS [2011] 5 S.C.R.

A 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
8 T.P. Act and the rule of Mohammadan Law relating to gifts.

19. In the case of Nasib Ali v. Wajed Ali3, 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
C 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 :
D 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,
E 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.
F
-.
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,
G 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

H 3. AIR 1927 Cal 197.
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1167
LRS. & ORS [R.M. LODHA, J.]

dower due. The case of Karam llahi v. Sharfuddin [1916] A
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 B
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 C
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 D
· 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 E
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 F
the donor to the do nee. 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 G
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 ·
H
1168 SUPREME COURT REPORTS [2011] 5 S.C.R.

A 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
B Subbamma4 , 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
C 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
D case of Inspector General of Registration and Stamps, Govt.
of Hyderabad v. Smt. Tayyaba Begum 5 , 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
E 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 :
F "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
G 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

4. 19522MLJ113.
H 5. AIR 1962 Andhra Pradesh 1999.
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1169
LRS. & ORS [R.M. LODHA, J.]

in favour of my son ... in accordance with the Muslim law", A
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.
B
"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 C
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 D
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 E
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 F
others v. Manahapara Charayi/6, V.R. Krishna Iyer, J. (as His
Lordship then was) did not agree with the test applied by the
Full Bench of Andhra Pradesh High Court and the reasoning
given in Tayyaba Begums . He held in paragraphs 8 and 9 of
the report thus : G

"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
6. AIR 1972 Kerala 27. H
1170 SUPREME COURT REPORTS [2011] 5 S.C.R.

A 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
B 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
c 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
D 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
E 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
F
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
G 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
H
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY1171
LRS. & ORS [R.M. LODHA, J.]

immovable property from the donor to the qonee A
· 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 B
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 C
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 D
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."
E
23. The Full Bench of Jammu and Kashmir High Court in
Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others7 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 F
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 G
Nasib A/P. 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

7. AIR 1974 Jammu & Kashmir 59. H
1172 SUPREME COURT REPORTS [2011) 5 S.C.R.

A Muslim law would not be affected by Section 123 of the
.., · Tr'ansfe'r of Property Act and the· giftif it has· otherwise ali •· ·
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
B 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
1
c of th e 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
D
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
E 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
others8, was concerned with the question about the gift by
F 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
G
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

H s. AIR 1975 Andhra Pradesh 27-1.
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1173
LRS. & ORS [R.M. LODHA, J.]

gift by the donor, (2) the acceptance of the gift express or A
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 B
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 c
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
0
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...
"
E
9
25. In the case of Amirkhan v. Ghouse Khan , 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 F
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. G
Hesaruddin and others 10 , 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

9. (1985) 2 MLJ 136.
10. AIR 1984 Gauhati 41. H
1174 SUPREME COURT REPORTS [2011) 5 S.C.R.

A a Mohammadan mother made a gift of land in favour of tier 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 A/,i 1 held as under:

" ..... But it cannot be taken as sine qua non in all cases
B
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
c 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)-

D "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
E 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
F
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
G
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
H 11. AIR 1973 Gauhati 105
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1175
LRS. & ORS [R.M. LODHA, J.]

in order to prove a valid gift. Therefore it was found in that A
· 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 B
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.· 1n every case the intention of the donor, the. c
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· D
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 E
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 F
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 G
are said to have attested the writing."

27. The position is well settled, which hasbeen 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; .H
1176 SUPREME COURT REPORTS [2011] 5 S.C.R.

A (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.
s 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
c 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.
0
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
E 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
F 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
G
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
H writing by a Mohammadan instead of it having been made
- HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1177
LRS. & ORS [R.M. LODHA, J.]

orally, such writing does not become a formal document or A
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 Moharrimadan Law is that three essential
requisites must be fulfilled. The form is immaterial. If all the three B
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 c
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 vivas, the Privy Council in Mohammad D
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 E
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 F
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 G
contemporaneous to the making of the gift th~n 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
H
1178 SUPREME COURT REPORTS (2011] 5 S.C.R.

A of Andhra Pradesh High Court in the case of Tayyaba
Begum5. 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 writ'°9 is not a document of title
B but is a piece of evidence.

33. We also approve the view of the Gauhati High Court
in the case of Md. Hesabuddin 10 • 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.
c
34. Now, as regards the facts of the present case, the gift
was made by Shaik Dawood by a written deed dated February
5, 1968 in favour of his son Mohammed Yakub in respect of
the properties 'A' schedule and 'B' schedule appended thereto.
D The gift - as is recited in the deed - was based on love and
affection for Mohammed Yakub as after the. death of donor's
wife, he has been looking after and helping him. Can it be said
that because a declaration is reduced to writing, it must have
been registered? We think not. The acceptance of the gift by
E Mohammed Yakub is also evidenced as he signed the deed.
Mohammed Yakub was residing in the 'B' schedule property
consisting of a house and a kitchen room appurtenant thereto
and, thus, was in physical possession of residential house with
the donor. The trial court on consideration of the entire evidence
F on record has recorded a categorical finding that Shaik
Dawood (donor), executed the gift deed dated February 5, 1968
in favour of donee (Mohammed Yakub), the donee accepted
the gift and the donor handed over the properties covered by
the gift deed to the donee. The trial court further held that all
the three essentials of a valid gift under the Mohammadan Law
G were satisfied. The view of the trial court is in accord with the
legal position stated by us above. The gift deed dated February
5, 1968 is a form of declaration by the donor and not an
instrument of gift as contemplated under Section 17 of the
Registration Act. As all the three essential requisites are
H
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY1179
LRS. & ORS [R.M. LODHA, J.]
'
satisfied by the gift deed dated February 5, 1968, the gift in A
favour of defendant 2 became complete and irrevocable.

35. The High Court in the impugned judgment relied upon
the Full Bench decision. in the case of Tayyaba Begums but
we have already held that the view of the Full Bench in Tayyaba B
Begums is not a correct view and does not lay down the correct
law.

36. Consequently, the appeal is allowed and the judgment
and order dated September 13, 2004 passed by the High Court
of Andhra Pradesh is set aside. The judgment and decree C
dated April 27, 1988 passed by the Principal, Subordinate
Judge, Vishakhapatnam is restored. The parties shall bear their
own costs.

R.P. Appeal allowed.