Purchase.
Madhur Singh
(Querist) 24 October 2012
This query is : Resolved
On the basis of oral Hiba-Naama Smt. Rashida has obtained a house in 2005. She has possession and also has House and Water tax receipt form Nagar Palika Parishad, this house has also been declared her name in the solvency certificate issued by D.M.
Can I purchase this house with the help of Bank loan?
ajay sethi
(Expert) 24 October 2012
you can purchase the property . the oral gift is valid / not necessary that hiba should be regsitered
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 1 1922 (49) IA 195
2 (1995) 3 SCC 693
5
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
Shailesh Kumar Shah
(Expert) 25 October 2012
You can purchase after inspections of all documents related to the property and search report at sub-registrar office through lawyer.
