Supreme Court Explains Essentials Of Oral Gift Under Mohammedan Law

The Supreme Court has reiterated the three essential conditions required for a valid oral gift (hiba) under Mohammedan Law : (i) a clear declaration of the donor's intention to give, (ii) acceptance of the gift by the donee, and (iii) delivery of possession of the subject matter, either actually or constructively.

The Court clarified that no written instrument is necessary for a valid oral gift and that the mere act of reducing such a gift to writing does not alter its character or make registration mandatory. Referring to Section 129 of the Transfer of Property Act, 1882, the Bench underscored that gifts under Mohammedan Law are exempt from the general requirement of registration applicable to gifts of immovable property under Section 123.

The judgment emphasized that delivery of possession, actual or constructive,is the decisive element in validating an oral gift. Constructive possession may be established through overt acts showing intent to transfer control, such as mutation of the donee's name in revenue records. Continuous exercise of ownership, like collecting rent or managing the property, strengthens the claim of a valid gift, while the donor's continued control over rent collection or title documents may negate it.

Citing the Privy Council decision in Mussamut Kamarunnissa Bibi v. Mussamut Husaini Bibi (1880 UKPC 36), the Court noted that proof of possession transfer is vital, especially in the absence of consideration, and that claims of oral gifts made after a donor's death must be scrutinized with “greatest care, perhaps even with suspicion.”

A bench comprising Justice Ahsanuddin Amanullah and Justice SVN Bhatti summarised the features as follows :

1. There are three essential conditions for an oral gift under Mohammedan Law.

First, a clear manifestation of the wish to give on the part of the donor.

Second, an acceptance of the gift by the donee, which can be either implied or explicit.

Third, taking of possession of the subject-matter of the gift by the donee, either actually or constructively.

2. A gift under Mohammedan Law does not require a written document to be valid. An oral gift that fulfils the three essential requisites is complete and irrevocable. The mere fact that a gift is reduced to writing does not change its nature or character. A written document recording the gift does not become a formal instrument of gift.

3. The distinction that a written deed of gift is not required to be registered if it “recites the factum of a prior gift” but must be registered if the “writing is contemporaneous with the making of the gift” is considered “inappropriate and is not in conformity with the rule of gifts in Mohammedan Law". Section 129 of the Transfer of Property Act, 1882 ('Transfer of Property Act') excludes the rule of Mohammedan Law from the purview of Section 123, which requires registration for the gift of immovable property.  

4. Delivery of possession is a critical and necessary element for a valid gift. It can be actual or constructive. Constructive possession can be demonstrated by overt acts by the donor that show a clear intention to transfer control. For example, the donor applies for the mutation of the donee's name in the revenue records.

5. Continuous evidence of acting under the oral gift is crucial to prove the delivery of possession. The donee must be able to demonstrate “exclusive control” over the property to derive benefit under it, such as by collecting rent, or by the donor performing acts like mutation on behalf of the donee. Conversely, the donor's continued collection of rent and the donee's lack of control over title documents or mutation records can be evidence that possession was not transferred.

Also from the judgment -  For Valid Oral Gift (Hiba) Under Mohammedan Law, Public Possession Must Be Proved; Absence Of Mutation Raises Doubt: Supreme Court

Cause Title: DHARMRAO SHARANAPPA SHABADI AND OTHERS VERSUS SYEDA ARIFA PARVEEN