Partition Of Property During Owner's Lifetime Impermissible In Mohammedan Law : Supreme Court

The Supreme Court reiterated that the partition of a property via gift deed during an owner's lifetime cannot be validated under Mohammedan Law.

The Court stated that the concept of partition is not recognized under Mohammedan Law, and thus, a 'partition of property' through a gift deed cannot be upheld as valid due to the absence of a clear and unequivocal 'declaration' by the donor of the intention to make a gift.

A bench comprising Justice CT Ravikumar and Justice Sanjay Karol was hearing the appeal filed against the Karnataka High Court's decision that affirmed the trial court's decision to not recognize the partition done by one Sultan Saheb during his lifespan in their favour.

Briefly put, one Sultan Saheb, owner of certain properties, passed away in 1978. The Appellant-Plaintiffs, descendants of one of Sultan Saheb's daughters (Rabiyabi), claimed a 1/6th share in the properties, alleging exclusion in the revenue records. The Respondent-defendants contended that Sultan Saheb had partitioned and orally gifted portions of the property to his sons during his lifetime which is impermissible under the Mohammedan Law.

The trial court dismissed the suit, holding that Mohammedan Law does not permit partition during the owner's lifetime. It also held that the alleged oral gift lacked evidence of the essential requisites (declaration, acceptance, and possession).

The High Court affirmed the Trial Court's decision, reiterating the personal law principles. It noted that "partition" was foreign to Mohammedan Law during the owner's lifetime.

Following this, the plaintiff preferred an appeal before the Supreme Court.

Before the Supreme Court, the Appellant contended that the property partitioned by Sultan Saheb was a gift made by him to his heirs which is permissible under the Mohammedan Law during the life span of the Muslim property owner, therefore, they can't be denied their share in the property as the requisites of the valid gift were fulfilled.

Affirming the High Court's decision, the judgment authored by Justice Karol observed that the partition made by Sultan Saheb amongst his heirs during his lifetime was impermissible, as Mohammedan Law does not recognize the same.

The Court added that although a Muslim could transfer their property during his lifespan via Hiba (gift), it would be valid only if the essential requisites of the gift were fulfilled.

The essential requisites of a valid gift are:

a) The gift has to be necessarily declared by the person giving the gift, i.e., the donor;

b) Such a gift has to be accepted either impliedly or explicitly by or on behalf of the donee; and

c) Apart from declaration and acceptance, there is also a requirement of delivery of possession for a gift to be valid.

The Court rejected the Appellant's argument that Sultan Saheb made a gift in favor of his legal heirs. According to the Court, Sultan Saheb lacked an intention to transfer the property via Gift, because had he intended to transfer the property via Gift then in the mutation entry it should have been recorded as gift in the Mutation Entry.

“A perusal of the Mutation Entry No.8258 (Ex.P1) shows that Sultan Saheb got the 'partition' done in favour of his sons. The words “partition of the property done by Sultan Abdul Khader Shek” clearly indicate his intention to divide the property into three parts without any indication of his intent to gift the property to his sons. Had Sultan Saheb intended to gift the property, it ought to have been recorded as a gift in the Mutation Entry.”

Applying the conditions of the valid gift, the court observed that the requisites of a valid gift remained unfulfilled because of the absence of the first condition i.e., no declaration of the gift was made by the donor, Sultan Saheb because, in the mutation entries, no gift was mentioned.

Even though the other two requisites, i.e. acceptance and possession, may have been proved, the essential requirement of the declaration made with clear and unequivocal intention remains unfulfilled, which is of significance. When neither the words of the Mutation Entry nor the Entry itself support the claim of the original-defendants/appellants in any manner, for neither can it be a gift nor does the Mutation Entry mean that any title rests with them, the case of the original-defendants/appellants necessarily has to fail. The oral gift made by Sultan Saheb in favour of his sons cannot be held to be a valid gift.”, the court said.

Accordingly, the appeal was dismissed.

Appearance:

For Appellant(s) Mr. Basava Prabhu S. Patil, Sr. Adv. Mr. Samarth Kashyap, Adv. Mr. V. N. Raghupathy, AOR Mr. Radhakrishna S Hegde, Adv. Mr. Rajeev Singh, AOR

For Respondent(s) Mr. S N Bhat, Sr. Adv. Mr. Tarun Kumar Thakur, Adv. Ms. Parvati Bhat, Adv. Mr. Abhay Choudhary M, Adv. Mr. Vivek Ram R, Adv. Ms. Anuradha Mutatkar, AOR Mr. Rajeev Singh, AOR

Case Title: MANSOOR SAHEB (DEAD) & ORS. VERSUS SALIMA (D) BY LRS. & ORS.

Citation : 2024 LiveLaw (SC) 1023

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