Hiba: Gift Under Muslim Law- Questions & Answers By Justice V Ramkumar [Part-II]

Q.6 Who is a “minor” in the context of a Muslim gift ?

Ans. Under the pristine Mahomedan Law a Muslim who had attained the age of 15 years was competent to make a valid disposition of his property. (Vide Volume 1 – Pages 42 and 43 of the 4^th Edition (1912) of Mohammedan Law by Ameer Ali). But this rule of Mahomedan Law has been superseded by the provisions of the (Indian) Majority Act (Act IX of 1875) except in respect of –

marriage,

dower,

divorce, and

adoption.

Hence, minority in the case of Mahomedan for the purpose of “Wills”, “gifts”, “wakfs” etc does not terminate on completion of the 15^th year but only on completion of the 18^th year. (Vide Para 115 of “Principles of Mahomedan Law” by Mulla – 22^nd Edition; Para 6 of Mahboob Sahab v. Syed Ismail (1995) 3 SCC 693 = AIR 1995 SC 1205 – K. Ramaswamy, B. L. Ansaria - JJ)

Q.7 Is it not necessary that in order to be valid, a Muslim gift of immovable property, being a transfer of property, should be in writing and effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses as provided under Section 123 of the Transfer of Property Act, 1882 ?

Ans. No. Chapter VII including Section 123 of the Transfer of Property Act, 1882 has no application to any rule of Mohamedan Law regarding gifts. (Vide Section 129 of the Transfer of Property Act, 1882; (See –

Musa Miya Muhamad Shaffi v. Kadar Bax Khaj Bax AIR 1928 PC 108 = 55 Indian Appeals 171 (PC) - Shaw, Carson, L. Sandeson - JJ;

Para 5 of Mahboob Sahab v. Syed Ismail (1995) 3 SCC 693 = AIR 1995 SC 1205 - K. Ramaswamy, B. L. Ansaria - JJ ;

Para 23 of Laila Beevi @ Laila Buhali v. N. Sumina @ Summayya 2009 (3) KHC 661 – V. Ramkumar - J;

Para 29 of Hafeeza Bibi v. Shaikh Farid (2011) 5 SCC 654 = AIR 2011 SC 1695 – R. M. Lodha, Surinder Singh Nijjar - JJ).

Justice V. R. Krishna Iyer (as he then was of the Kerala High Court) in paras 7 and 8 of Assan Rawther v. Ammu Umma 1971 KLT 684 = AIR 1972 Ker. 27 – Justice V. R. Krishna Iyer - JJ, had held that a Muslim gift need not be in writing and even if it is in writing, it is not compulsorily registrable. In para 8 it is noted “a Muslim gift may be valid even without a registered deed and may be invalid even with a registered deed”. The learned Judge had not agreed with the view that there could be a distinction in which a deed of gift could effect an immediate transfer of ownership and another deed of gift which could merely record a past gift made orally.

But, a Division Bench of the Kerala High Court, without reference to Assan Rawther, held that oral Muslim gifts are valid and do not require registration, but if the gift is reduced to writing, and if it relates to immovable property worth Rs. 100 or above, then Section 17 of the Registration Act, 1908 is attracted and the document is compulsorily registrable. (Vide para 9 of Imbichimoideenkutty v. Pathumunni Umma 1988 (1) KLT 409 = AIR 1989 Ker. 148 – U. L. Bhatt, K. G. Balakrishnan – JJ).

The view of Justice V. R. Krishna Iyer was, however, subsequently accepted and approved by the Supreme Court in para 29 of Hafeeza Bibi v. Shaikh Farid (2011) 5 SCC 654 = AIR 2011 SC 1695 – R. M. Lodha, Surinder Singh Nijjar - JJ. In the light of this binding precedent, the decision in Imbichimoideenkutty is no more good law.

Now, after the verdict of the Apex Court in Hafeeza Bibi, the distinction that if a written deed of gift recites the factum of a 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 be in conformity with the rule of gifts in Mohammedan Law.

Q.8 What are the essentials of a valid Muslim gift ?

Ans. In order to be a valid Muslim gift, there should be –

• a declaration of gift (manifesting the intention to give property on gift) by the donor.
• an acceptance of the gift, express or implied, by or on behalf of the donee, and
• delivery of possession of the subject-matter of the gift, actual or constructive, by the donor to the donee

OR

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

(Vide –

Mohammad Abdul Khani Khan v. Mt. Fakhr Jahan Begam AIR 1922 PC 281 - V Cave, Shaw, J Edge, A Ali - JJ;

Amjad Khan v. Ashraf Khan AIR 1929 PC 149 - Shaw, Atkin, Sanderson – JJ;

Para 10 of Abdul Rahim v. Abdul Zabar (2009) 6 SCC 160 = AIR 2010 SC 211 – 3 Judges - S. B. Sinha, Asok Kumar Ganguly, R. M. Lodha - JJ;

Para 23 of Laila Beevi @ Laila Buhali v. N. Sumina @ Summayya 2009 (3) KHC 661 – V. Ramkumar - J;

Para 27 of Hafeeza Bibi v. Shaikh Farid (2011) 5 SCC 654 = AIR 2011 SC 1695 – R. M. Lodha, Surinder Singh Nijjar - JJ).

In para 6 of Maqbool Alam Khan v. Khodaija AIR 1966 SC 1194 = 1966 KHC 581 – 3 Judges – K. Sreedharan – Ag. CJ, C. S. Rajan - JJ, the Apex Court observed as follows:-

“6. The Prophet has said: "A gift is not valid without seisin." The rule of law is:

"Gifts are rendered valid by tender, acceptance and seisin. Tender and acceptance are necessary "because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin." [See Hamilton's Hedaya (Grady's Edn.), p. 482].”

(See also Para 12 of Abdul Rahim v. Abdul Zabar (2009) 6 SCC 160 = AIR 2010 SC 211 – 3 Judges - S. B. Sinha, Asok Kumar Ganguly, R. M. Lodha - JJ).

Justice V.R. Krishna Iyer, has in Assan Rawther v. Ammu Umma 1971 KLT 684 – V. R. Krishna Iyer – J, held that the declaration of the gift need not be a formal statement but can be made out by conduct as it is not a ritual but a reality.

Q.9 Why is it that the Mohammedan Law insists on strict adherence to the essentials of a valid Muslim gift ?

Ans. A Mohammedan cannot by a testamentary instrument dispose of among his heirs more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequest in excess of the above one third cannot take effect unless the heirs consent to the bequest after the death of the testator. If the bequest exceeds the legal third and the heirs of the testator refuse their consent the bequest will abate and if there are more bequests they will abate rateably. (Vide paras 118 and 119 of Mulla's Principles of Mahomedan Law). Thus, under the Muslim personal Law a Muslim cannot give away more than one-third of his property by way of testamentary disposition. (See also paragraph 39 at page 217 of Outlines of Mohammedan Law by AAA Fyzee (4th Edition). Therefore, if he were to dispose of his property by means of a gift by violating the limit on his testamentary power and thereby indirectly defeating the policy of Mohammedan Law, the law insists upon strict proof of the formalities of a valid Muslim gift. The Privy Council in Khujooroonissa v. Roushun Jehan, (1876) ILR 2 Calcutta 184 = 3 Indian Appeals 291 (PC) - observed as follows:-

“The policy of the Mohammedan law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger. But it also appears that a holder of property may, to a certain extent, defeat the policy of the law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms. It is incumbent, however, upon those who seek to set up a proceeding of this sort, to show very clearly that the forms of the Mohammedan Law, whereby its policy is defeated, have been complied with.”

This is the reason why strict adherence to the essentials of a valid Muslim gift is insisted upon by Courts when a party sets up a gift in his favour. The burden of proof is, therefore, on the person who sets up a gift to show that the rigid forms stipulated by the Muslim Law have been complied with. (Vide para 24 of Laila Beevi @ Laila Buhali v. N. Sumina @ Summayya 2009 (3) KHC 661) – V. Ramkumar - J).

But even here, if it is a “marz-ul-maut” (death-bed gift), the gift cannot take effect beyond a third of his estate, after payment of funeral expenses and debts, unless the heirs give their consent after the death of the donor to the excess taking effect. Likewise, a “marz-ul-maut” cannot take effect if the gift was made in favour of an heir unless the other heirs consent to it after the death of the donor. (vide Veerankutty v. Jainuddin ILR 1955 TC 863 (DB) – Koshi - CJ, Kumara Pillai-JJ).

THE RULES OF MUSLIM LAW ALONE APPLICABLE IF THE SUBJECT-MATTER OF GIFT IS “IMMOVABLE PROPERTY”.

Q.10.1 If the subject-matter of gift is immovable property, should there be a transfer of the “corpus” of the property and is there any distinction between the “corpus” and its “income” or “usufructs” ?

Ans. Yes. The donor should effect an immediate transfer of the corpus (“ayn”) of the property given in gift without reserving any dominion over the corpus.

• Muhammadan Law of gifts attaches great importance to possession or seisin of the property gifted (Kabz-ul-Kamil) especially of immovable property.

The Hedaya says that seisin in the case of gifts is expressly ordained and Baillie (Dig. p. 508) quoting from the Inayah refers to a Hadis of the Prophet -- " a gift is not valid unless possessed." In the Hedaya it is stated -- "Gifts are rendered valid by tender, acceptance and seisin" (p. 482) and in the Vikayah "gifts are perfected by complete seisin" Macnaghten (202). (Vide para 9 of Katheesa Umma v. Kunhamu AIR 1964 SC 275 – A. K. Sarkar, M. Hidayatullah, J. C. Shah – JJ.)

• Where the donor gives a gift of the corpus and does not reserve any dominion over the corpus but merely retains his right to take the produce or the income or the usufructs (“manafi”) from the property, the gift is valid. (Vide Nawab Umjad Ally Khan v. Mohumdee Begum (1867) 11 MIA (Mores Indian Appeals) 517 (PC) – Sir Lawrence Peel - J; Mohammad Abdul Khani Khan v. Mt. Fakhr Jahan AIR 1922 PC 281 - V Cave, Shaw, J Edge, A Ali - JJ; Hajee Kunju Mamathu v. Asikutty 1959 KLT 624 – S.Velu Pillai - J).