Hiba of tenancy

Querist : Anonymous (Querist) 13 August 2011 This query is : Resolved
can a muslim tenant has right to gift his/her
tenancy right by HIBA or doing so would create a subletting.

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Querist : Anonymous (Querist) 13 August 2011
Mohammedan Law.-In general, Muslim law draws no distinction between real and personal property, and there is no authoritative work on Muslim law, which affirms that Muslim law recognises the splitting up of ownership of land into estates. What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Mohammedan law they are only usufructuary interest (and not rights of ownership of any kind).
Thus, in English law a person having interest in immoveable property for limited periods of time is said to be the "owner" of the property during those periods. The usufruct is also a part of the corpus. On the other hand, in Muslim law, a person can be said to be an "owner" only if he has full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment of property is granted to a person for life or other limited period such person cannot be said to be an "owner" during that period. The English law thus recognises ownership of the land limited in duration while Muslim law admits only ownership unlimited in duration but recognises interests of limited duration in the use of property.
There is no difference between the several schools of Muslim law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools.

Querist : Anonymous (Querist) 13 August 2011
still my query is open and unanswered

M.Sheik Mohammed Ali (Expert) 13 August 2011
not possible as per mohammedan law, can give usufract on a gift but that giver must have corpus rights full rights holder then only its applicable,

Raj Kumar Makkad (Expert) 13 August 2011
Unfortunately the reply to your query is no simple.I put hereunder a judgment passed by Hon'ble Supreme court which shall enable to understand the consequences while dealing with various circumstances in such matters:

The Supreme Court in Hafeeza Bibi Vs. Shaikh Farid (Dead) has examined the concept of Gift under Muslim Law and its interplay with the provisions of the Transfer of Property Act and the Registartion Act. The question posed before the Supreme Court in this case was whether an unregistered Gift Deed is a valid gift and a valid conveyance of title. The relevant portions of the judgment are reproduced hereinbelow;

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.

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 & Ors. 1922 (49) IA 195 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 possession of the subject-matter of the gift by the donee, either actually or constructively.

13. In Mahboob Sahab v. Syed Ismail and others (1995) 3 SCC 693, this Court referred to the Principles of Mahomedan Law by Mulla, 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 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 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......."

14. Section 123 of the Transfer of Property Act, 1882 (for 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 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 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 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, 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 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 which, Act No. XVI of 1864, or the Indian Registration Act, 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . ; (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

17. Section 49 of the Registration Act deals with the effect of non-registration of documents required to be registered. It reads thus:

"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-- (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 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 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 as evidence of any collateral transaction not required to be effected by registered instrument."

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

19. In the case of Nasib Ali v. Wajed Ali AIR 1927 Cal 197, 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 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 : 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, 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.

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, 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 dower due. The case of Karam Ilahi v. Sharfuddin [1916] 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 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 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 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 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 the donor to the donee. 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 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 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 Subbamma 1954 2 MLJ 113, 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 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 case of Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199, 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 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 :

"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 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 in favour of my son...in accordance with the Muslim law", 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. "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 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 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 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 others v. Manahapara Charayil, V.R. Krishna Iyer, J. (as His Lordship then 6 AIR 1972 Kerala 27 was) did not agree with the test applied by the Full Bench of Andhra Pradesh High Court and the reasoning given in Tayyaba Begum5 . He held in paragraphs 8 and 9 of the report thus :

"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 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 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 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 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 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 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 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 immovable property from the donor to the donee 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 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 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 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."

23. The Full Bench of Jammu and Kashmir High Court in Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others AIR 1974 Jammu & Kashmir 59 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 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 Nasib Ali3. 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 Muslim law would not be affected by Section 123 of the Transfer of Property Act and the gift if it has otherwise all 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 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 of the 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 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 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 others AIR 1975 Andhra Pradesh 271, was concerned with the question about the gift by 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 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 gift by the donor, (2) the acceptance of the gift express or 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 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 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 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. . . . . . . . . ."

25. In the case of Amirkhan v. Ghouse Khan (1985) 2 MLJ 136, 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 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. Hesaruddin and others AIR 1984 Gauhati 41, 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 a Mohammadan mother made a gift of land in favour of her 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 Ali, AIR 1973 Gauhati 105 held as under:

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

"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 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 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 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 in order to prove a valid gift. Therefore it was found in that 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 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. In every case the intention of the donor, the 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 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 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 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 are said to have attested the writing."

27. 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; (i) declaration of the gift by the donor; (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. 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 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.

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 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 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 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 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 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 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 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 vivos, the Privy Council in Mohammad 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 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 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 contemporaneous to the making of the gift then 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 of Andhra Pradesh High Court in the case of Tayyaba Begum. 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 writing is not a document of title but is a piece of evidence.

33. We also approve the view of the Gauhati High Court in the case of Md. Hesabuddin. 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.

Querist : Anonymous (Querist) 13 August 2011
sir Raj kumar makkad !

Thanks.have gone with the judgement posted which lays 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 writing is not a document of title but is a piece of evidence."HENCE NO REGISTRATION REQUIRED.

BUT my query is still open and unanswered.A muslim can by HIBA transfer his actionable claim of which no GIFT under TPA would be possible,an assignment of insurance is recognized due to provisions in the INSURANCE ACT itself. Tenancy is a right that devolves upon heirs on death of the tenant but its gift under TPA,i think ,is not possible.MY QUERY is if such an act by HIBA is possible, that too, without the consent of Land lord,or it would amount to subletting.

CAN U HELP Expert skjadvt-sardarsena let the state be any one.

Querist : Anonymous (Querist) 13 August 2011
sir M.Sheik Mohammed Ali !

Have gone through your opinion which seems correct hypothetically ,but
"27. 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; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession."

and if we examine a tenants' right, he seems to be capable to perform (1) &(3)ibid,required as condition of gift.

R.Ramachandran (Expert) 13 August 2011
Dear Mr. Anonymous,
Before answering your query, first one has to examine as to what one can "gift" and whether the "tenancy rights" per se is capable of being gifted (let us for the time being keep away whether it is permitted for a Muslim or not). We have to research on this issue before arriving at a conclusion.

Querist : Anonymous (Querist) 13 August 2011
IN ABSENCE OF MORE VIEWS I CONCLUDE THAT UNLESS THERE IS OWNERSHIP RIGHT VESTED IN DONOR ,NO HIBA IS POSSIBLE,EVEN BY A MUSLIM.

DEFENSE ADVOCATE.-firmaction@g (Expert) 13 August 2011
Yes sir you have come to right conclusion. You have added the words NO REGISTRATION REQUIRED, it is not in the judgment.

Raj Kumar Makkad (Expert) 14 August 2011
THE CONCLUSION IS CLEAR. WITHOUT OWNERSHIP RIGHTS NO HIBA CAN BE MADE BYA MUSLIM.

dev kapoor (Expert) 16 August 2011
Hi friends & dear Anonymous questioner,

Efforts made by members/experts here are truly sincere.Indeed the proposition is complex & of great academic interest.Nevertheless our quest & efforts should continue till we find an apt reply or a reply which is more near to the problem.I have also been able to lay hand on a judgment of High Court of Gujrat,which I take an opportunity to reproduce herein hoping that it will satisfy our interest.Illustrations/examples/citations/references in the judgment are thought provoking & lead us to more appropriate answer.I would appreciate if any member finds a BETTER judgment.It is as under:
Tenancy is a heritable right as after the death of a tenant, it devolves on the heirs of the tenant. Three conditions which are necessary for a valid gift under Mohammedan Law are: (a) manifestation of the wish to give on the part of donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of the possession of the subject-matter of the gift by the donee either actually or constructively.(AIR 1922 PC 281) "Rule of law is that 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 Mohammedan philosophers and jurists is not established in the things given merely by means of contract without seisin.No doubt unless a person is OWNER he cannot make a valid gift/hibba but since Tenancy is 'heritable' a tenant/father may gift this right to any one of his sons,if he has more than one,or to his wife or...
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Gujarat High Court
Halimabibi W/O Abdul Rahim vs Abdul Raheman Abdul Rahim
Decided on 14 August, 1997
Equivalent citations: (1997) 3 GLR 2633
Author: R Balia
Bench: R Balia
JUDGMENT
R. Balia, J.
1. This second appeal is filed against the judgment and decree passed by Extra Assistant Judge, Surat in Regular Civil Appeal No. 194 of 1977 of 22-1-1979 affirming the judgment and decree dated 31-3-1977 passed in Regular Civil Suit No. 368 of 1971 by Joint Civil Judge (J.D.), Surat by which the preliminary decree was passed in suit filed by the one Abdul Rehman for administration of the property left by Abdul Rahim Abdul Razak. The following three substantial questions were framed by this Court while admitting appeal which were required to be considered in this appeal:
(1) Whether the plaintiff's suit was barred under Section 1 read with Section 50 of the Administration of Evacuees Property Act.
(2) Whether the suit was barred by res-judicata on account of decision between the parties in earlier suit No. 326 of 1969.
(3) Whether the gift was made under the Mohammedan Law and was void or whether it was executed under the Transfer of Property Act and was valid.
2. Learned Counsel for the appellants has pressed only Question No. 3 referred to above and therefore, other two questions deemed to have been abandoned.
3. Facts essential for the decision of the aforesaid Question No. 3 may be noticed. Parties are Sunni Muslims. Abdul Rahim Abdul Razak has married thrice in his life time. Plaintiff and respondent Nos. 1 to 4 are the children of Abdul Rahim through his first wife Aminabibi, who died in years 1943. Plaintiff and defendant Nos. 1 and 2 are the sons, defendant Nos. 3 and 4 are the daughters. The second marriage of Abdul Rahim with Jebunnisa resulted in divorce. Through this wedlock, defendant Nos. 5, 6 and 7 were born. Thereafter said Abdul Rahim married present appellant No. 1 and defendant No. 8. Out of this wedlock three sons and four daughters were bom who are defendant Nos. 9 to 15 and appellant Nos. 2 to 8. Said Abdul Rahim died on 19-12-1968 at Surat leaving behind properties which included house property No. 2447 at Ward No. 11 and 2 rented rooms 232 to 238 situated at Limbda Chowk, Surat. He was residing in the house along with his third wife and children through her, all minors. On 18-6-1968 Abdul Rahim had executed registered gift deed making gift of his property bearing Registration Entry No. 2447 in favour of the present appellants. It is this gift which is bone of contention between the parties in this appeal.
4. After Abdul Rahim died, in the first instance an administration suit No. 326 of 1969 was filed by defendant No. 1 in present suit, (a full brother of present plaintiff), to which all heirs of Abdul Rahim including present plaintiff were impleaded as parties. The present appellant resisted the suit on the ground of gift in their favour. Present plaintiff migrated to Pakistan in 1947 and settled there, though was served with notice and appeared in Court on 7-7-1970 and went back to Pakistan. Thereafter, before he could put in appearance again on his next visit, suit was dismissed as withdrawn on compromise. Thereafter, present plaintiff filed present suit for administration of estate of deceased Abdul Rahim. The plaintiff challenged the validity of gift made in favour of appellant Nos. 1 to 4.
5. The plaintiff has contended that there being no delivery of possession of the corpus of the subject-matter of gift to denees, the gift is void and cannot affect his right to his share in the property as heir of Abdul Rahim. On the other hand, it is the contention of appellants- donees that there being unequivocal declaration in the deed that donor has delivered the possession of the property in question to donees and donees having accepted that gift in the circumstances that donees are spouse and children of the donor and were residing together, actual physical delivery of the property was not required to be made and the declaration in the gift deed about the delivery of the possession coupled with handing over of the gift deed to appellant No. 1 satisfied the condition of the delivery of possession as could be made in law, making the gift complete. Any conditions in the gift deed, which are repugnant to absolute ownership of the donees are invalid and such condition cannot affect the validity act of gift.
6. On construction of the deed of gift both Courts found that there was no delivery of possession of the property in question and therefore, no gift in accordance with Muslim Law came into existence. Therefore, the property comprised in House No. 2447 ward No. 11 at Surat is also available for division amongst heirs of deceased Abdul Rahim.
7. Section 129 of the Transfer of Property Act dealing with the gifts provides that nothing in the Chapter relating to gifts shall be deemed to affect any rule of Mohammedan Law. Thus, the validity of gift by a Muslim has to be tested as per the Personal Law applicable to the Muslims concerning gifts.
8. According to Mulla in his Principles of Mohammedan Law, a 'Hiba' or gift is transfer of property made immediately, and without any exchange by one person to another and accepted by or on behalf of the latter. Transfer of ownership in the property in presenti in absolute is necessary ingredient of a valid gift. Three pillars of a valid gift under Mohammedan Law are declaration, acceptance and delivery of possession.
9. Prophet has said 'Gift is not valid without seisin'.
10. The rule of seisin has been explained in Hamilton's Hedaya. "Rule of law is that 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 things given merely by means of contract without seisin."
11. Three conditions which are necessary for a valid gift under Mohammedan Law has been stated by Syed Ameer Ali : (a) manifestation of the wish to give on the part of donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of the possession of the subject-matter of the gift by the donee either actually or constructively.
12. The aforesaid opinion of Syed Ameer Ali was quoted with approval by Privy Council in Mohd. Abdul Ghani v. Fakhr Jahan Begam reported in AIR 1922 PC 281 explaining that :
Object of the Mohammedan Law as to gifts apparently was to prevent disputes as to whether the donor and donee intended at the time that the title to the property should pass from the donor to donee and the hand over by the donor and acceptance by the donee of the property should be good evidence that the property had been given by the donor and has been accepted by the donee as a gift.
13. The requirement of delivery of possession for a valid gift was considered to be so strict originally that property in possession of third parties whether as a usufruct or as a lessee or a mortgagee could not be made subject-matter of gift being incapable of physical delivery. However, as noticed above, the opinion of Ameer Ali that taking of possession by donee may be constructively was approved by the Courts and the view which has come to prevail is that so far as the requirement of delivery of possession as the nature of property admits. The stringent view taken in Mullick Abdool Guffoor, reported in ILR (1884) 10 Cal. 1112 was not adhered to by Privy Council in Mahomed Buksh Khan v. Hosseini Bibi reported in (1888) 15 Ind. App. 81. After noticing the facts of the case, the Privy Council said :
In this case it appears to Their Lordships that the lady did all she could to perfect the contemplated gift and had nothing more was required from her. The gift was attended with utmost publicity, the hibbanama itself authorises the donees to take possession and as it appears that in fact they did take possession. Their Lordships hold under these circumstances, that there can be no objection to the gift on the ground that Shahzadi had not possession, and that she herself did not give possession at that time.
14. The aforesaid declaration of law as to requirement as to the delivery of possession to be essential requirement of valid gift and that delivery of possession can be actual physical as well as contractive found its approval by the Supreme Court in Maqbool Alam Khan v. Mst. Khodija and Ors. . The Court
said :
‘The three pillars of a valid gift under the Mohammedan Law are declaration, acceptance and delivery of possession.
The Court after finding that delivery of possession being an essential ingredient of a valid gift opined as to the nature of delivery contemplated for making a valid gift, in possession of third parties said :
“That there can be valid gift of property in the possession of a lessee or mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession”.
15. Apart from accepting delivery of constructive possession as the property is capable of another exception to Rule as to physical delivery which has been recognised by Mohammedan Law are cases where donor and donee are residing in the same property at the time of gift. In such a case, the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and divest himself of all control over the subject of the gift. Mulla in his book Mohammedan Law has stated the law as to delivery of possession of immovable property in Para 152.15 as under :
“No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift.
In such case the gift may be complete by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. In such cases, it is not considered necessary for the purpose of effecting delivery of possession that the donor must physically depart from the premises with all his goods and chattels and a formal entry be effected by the donee in the premises. In such circumstances, a declaration of the person previously possessed of the property to that effect is sufficient to put the donee into possession without any physical act or departure or formal entry.”
16. This principle was enunciated by West, J. in Bombay case, reported in (1884) 9 Bom. 146 that -
When a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession...without any physical departure or formal entry.
17. A Division Bench of Calcutta High Court in Abdul Sattar Ostagar v. Abu Bakkar Ostagar held that where a father makes a gift of a dwelling house to his sons and both the father and donees are residing in the house there is no need for delivery of possession. The rule is applied to gifts of immovable property from a wife to husband or by a husband to wife where the property is used by them for their joint residence or is let out to tenants.
18. The very important aspect of delivery of possession of the subject- matter of gift has been dealt with by Syed Ameer Ali in his Work Mahommadan Law as under :
An acknowledgment of Hiba implies an acknowledgment that all the necessary formalities were complied with. If a man were to say, "I have made a gift of a certain property to Zaid," such acknowledgment will be effectual also as to possession; in other words, he had delivered possession according to the law. In this view, where a gift is made in writing and the donor acknowledges at the time the deed is registered under the Indian Registration Act, that he had complied with all the requirements of the law, it would simply that possession had been duly parted with.
19. In this connection, however, two matters must be borne in mind; first, the relation of the donee to the donor, and secondly, the ability of the donor to give possession within the meaning of the Mohammedan Law. For example, if the donee is an infant to all intents and purposes under the guardianship of the donor, delivery of seisin will not be required. Again, if the subject-matter of the gift is landed property and the donor is too ill to send for the tenants to make them attorn to the donee, his mere handing over of the title deeds together with the deed of gift ought to amount to a sufficient authorisation to take possession of the property.
20. It can now be taken to be well settled that in the case of a gift by a Mohammedan, delivery of possession of the property - subject of gift-is an essential condition, the delivery may be actual physical delivery of the property if it is capable of being so delivered, in case it is in possession of tenants or in possession of other parties, the constructive delivery of possession resulting in evidence of transfer of ownership right in the donee and doing of such acts by the donor that he could to put within the power of the donee to exercise power of ownership and obtain possession. In the case of property in which donor and donee are residing together and donor continues to reside with the donee actual physical (sic.) by the donor moving out in the first place, putting the donee in exclusive possession and thereafter re-entering the property is not required. In such circumstances, mere declaration on the part of donor to the fact of delivery of possession to donee may be sufficient compliance with the requirement of delivery of possession making it valid gift. However, it will presently be seen in what circumstances, a declaration to that effect by the donor can be considered to be equivalent to delivery of possession of the property subject-matter of gift by the donor to donee depend in each case, upon the facts and circumstances of that case.
21. In the case where the property - subject to gift - is in possession of a trepasser, the Supreme Court said in Maqbool Alam Khan (supra) :
“A gift of a property in the possession of the trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession, or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If apart from making a declaration, the donor does nothing else, the gift is invalid.”
22. In Humera v. Nazimunnisa 1905(28) All. 17 where a Mohammedan lady who was residing with her nephew and who was brought up by her executed a deed of gift to the nephew of the house in which they both were residing. Apart from declaration there was no physical departure and entry by the donor and donee but in view of the circumstances, when the property was later on transferred in the name of nephew and the rents were recovered in his name the gift was held to be complete without there being a formal delivery of possession.
23. In yet another Allahabad case Baldev Prasad Balgovind v. Subratan 164 IC 720 where a Mohammedan gifted half of the house in favour of his daughter-in-law with whom he was residing at the time of making of a gift, and the declaration was made in the deed authorising the daughter-in-law to take possession of that house. This declaration itself was held sufficient delivery notwithstanding that there was no mutation of the names in the Municipal register to that effect.
24. In Abdul Razak v. Zainab Bi reported in AIR 1933 Madras 86 Mohammedan lady living with her son executed a deed of gift in favour of her son of the house. In the deed it was recited that possession was given to the donee. The son and the mother continued to live jointly as before in the house. Declaration coupled with the circumstance that the son had paid Municipal tax after the execution of deed was held sufficient to complete the gift, even in the absence of physical delivery of the property.
25. The principle that no physical departure or formal entry is necessary in the case where there is a gift of immoveable property in which donor and donee reside together at the time of gift, has been applied with greater liberality in the case where there is a gift of immoveable property by wife to the husband or by husband to the wife which is used for their joint residence. The proposition was stated by Sir M. Sausse, C.J. in 1864(1) Bombay H.C. 157 in Amina Bibi v. Khatiji Bibi as cited by Mulla in his Principles of Mahomedan Law in Para 135:
In my opinion, the relation of hushand and wife and his legal right to reside with her and to manage her property rebut the inference which in the case of parties standing in a different relation would arise from a continued residence in the house after the making of the Hiba (gift), and in the husband generally receiving the rents of the chawl annexed to that house.
26. It was a case having facts like the present case wherein the husband had made a gift to the wife of a property, which consisted of a house in which husband and wife lived together and of a chawl adjoining to the house which was let out to the tenant. In the present case also, the gift consists of a house in which donor and donee reside together and part of which is in possession of the tenant.
27. In Ma Mi and Anr. v. Hollander Ammal , the property in question was gifted by husband to the wife and the husband was found to be managing the properties. On the question - whether a valid gift came into existence by noticing the fact about mutation, it was held by Their Lordships of Privy Council that:
It must, therefore, be taken that mutation was effected by Moideen himself, and in the case of a gift of immovable property by a Mohammedan husband to his wife, once mutation of names has been proved the natural presumption arising from the relation of husband and wife existing between them is that the husband's subsequent acts with reference to the property were done on his wife's behalf and not on his own.
28. Going further in the case of Nawab Mirza Mohammad Sadiq Ali Khan v. Nawab F. Jahan Begam AIR 1932 PC 13, wherein the facts were that the husband has gifted a portion of Kherad property for residence when she wishes to live there and the deed declared that, "1 deliver possession of the gifted property to the aforesaid second wife." Wife did not exercise any individual acts of proprietorship over any portion of the property as to be the matter of gift during the life time of her husband. In her and her husband's absence, the property shall be occupied by the servants of the estate and repairs as were necessary were done at husband's expenses and no mutation of names were made in the Government records. However, the deed had been handed over to the donee and had remained in possession of the donee.
29. From these facts, Their Lordships to the question of delivery of possession, approving the statement of law made by West, J. referred to above, opined that :
But in the first place, the deed contained the statement "I delivered possession of the gifted property to him to my said wife, 'and this as a declaration of fact must be regarded as binding on the heirs of the donor'. In the second place, the deed of gift was handed over to the donee as soon as it registered. In the case of a gift by a husband to his wife, Their Lordships do not think that Mohammedan Law requires actual vacation by the husband and actual taking of separate possession by the wife. In their opinion, the declaration made by the husband, followed by the handing over of the deed are amply sufficient to establish a transfer of possession. *** ****** ****** ***
...they think that as between a husband and his wife who are living together, it is undoubtedly a reasonable interpretation of the requirement of the law and they adopted it is applicable to the case before them.
30. The principle that execution of a deed of gift in favour of wife amounts to manifestation of intention of husband divesting himself of his ownership of the property in favour of the donee and the delivery of deed to his wife or someone on her behalf makes the gift complete was approved by Their Lordships of the Supreme Court in Nagraj v. State of Mysore AIR 1964 SC 275.
31. It was a case where the parties belonged to Hanafi Sect. The husband made a gift of property including immovable property, by registered deed, to his minor wife who had attained puberty and discretion, and the gift was accepted on her behalf by her mother in whose house the husband and wife were residing, when the minor's father and father's father are not alive. The deed was handed over to the minor's mother and possession of the property was not given to a guardian specially appointed for the purpose by the Civil Court. A question was raised - whether the gift by husband to his minor wife and accepted on her behalf by her mother valid? After referring to a large number of decisions and the test, the Court opined thus :
The strict rule of Mohammedan Law about giving possession to one of the stated guardian of the minors is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases, the gift through the mother is a valid gift.
32. On the facts as noticed above, the Court said,
The intention to make a gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother-in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Mohammedan Law and it seems impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness and afterwards Mammotty did not complete the gift. In our opinion, both on texts and authorities, such a gift must be accepted as valid and complete.
33. Another exception to the rule of actual physical delivery is - whether a gift is to a minor by father or other guardian, in such cases, no transfer of possession is required to the donee. Where the gift is by father to minor child or by a guardian, not being father to has ward, the transfer of possession is not required inasmuch as the donor himself is in a position to accept gift made to his ward as a guardian of the donee.
34. In such cases, it may also happen that the delivery of possession of a gift to minor will be effected by donee to a person specified by donor. The acceptance of gift by such person specified by the guardian, to which father accepts or acquires arrangement of the gift is valid. Where a gift is made by father specifying another person for the purpose of accepting delivery of possession on behalf of minor, then acceptance of gift by a specified person of the property fulfils the conditions of gift inasmuch as of acceptance of gift by the specified person with the expressed direction of the father, the guardian of the minor.
35. The rule of Mohammedan Law in connection with the gift to minors was expressed by the Madras High Court in case of Azeshabi v. Kathoonbi AIR 1966 Madras 462 as under :
The rule of Mohammedan law that delivery and possession should be effected to the father as the guardian and the latter should accept the gift can have no application to a case in which the donor specifies some other person as the guardian to take possession and accept the gift on behalf of the donee. So long as the father accepts such an arrangement and acquiesces in the same, it must be held that there has been sufficient compliance of the rule of Mohammedan Law.
36. So far as the question of delivery of possession with essential ingredients of completing the valid gift is concerned, the law recognised that there should be delivery of such possession as the subject of gift is acceptable. Thus, making it clear, that taking of possession of the subject-matter of the gift by the donee may either by actual or construction, where donor and donee both resides in the property which is the subject- matter of gift, the continuous residence of donor is not in derogation of the gift and in such cases, where donor and donee are spouses and the property is being used for their joint residence, physical departure of donor and formal entry by the donee is not essential nor actual physical handing over of the possession where the property is let out to tenants is necessary. In such cases, mere declaration where the gift deed is in writing, in the deed that the possession has been handed over to the donee and the deed has been delivered to the donee, the possession becomes complete.
37. As has been noticed above, the Supreme Court has after taking into consideration texts and earlier precedents has approved the practice that declaration of delivery of possession in the registered deed coupled with delivery of such deed to the donee in person who could accept the delivery of deed where donee is minor, on donee's behalf, the delivery is sufficient to constitute a valid gift in the eye of law.
38. In the present case, the facts are that there is a declaration of gift by the donor through a registered deed and also there is the acceptance of that deed by the donee, the wife of the donor for herself and on behalf of minors. In that view of the matter, so far as the ingredients of firstly manifestation of wish of the donor to give, secondly, acceptance of the gift by the donee must be held to be complete. It may further be noticed that the parties to the transaction of gift are that the donor is husband, donees are wife and minor children of the donor through the donee-wife and the delivery of possession of the property is declared to be given to the wife on her own behalf as well as on behalf of the minor sons in the deed itself with a stipulation that the wife is entitled to get the property mutated in the name of donees and further right to demise the property. However, that would be subject to the consent by the donor during his life time. The deed contained other conditions as well, to which we shall advert to presently.
39. It is on the basis of these conditions which has been urged that even if delivery of the subject of gift is held to have given to the donees, the conditions subject to which gift has been made militates against transfer of any property during life time of the donor and it makes the gift of property to take effect in future which is void.
40. The precise contention of the respondents emanates are from the following conditions narrated in the deed of gift, an English translation of which has been supplied by the learned Counsel for the appellant :
Conditions:
1. Till my life my right of living in the said property is reserved permanently. Moreover, I have reserved my right to take (collect) rent from the tenants, and to keep and change the tenants and to take the possession from them, till my life.
2. During my life, you cannot mortgage, sale or gift etc., arrangement of the following mentioned property without my consent.
3. If any of my gentleman progency out of you is minor and if 1 am not alive then, you cannot make any arrangement of mortgage, sale or gift of the property. It means after all being the major after my life, you are the owner attorney to make arrangement for the same.
4. I have to pay all the taxes relating to the said property till my life (till I am alive) and I have to make arrangement of all types like repairing and taking care etc.
5. I have kept a permanent facility of a room in the said property for my four daughters mentioned above and in that way, you have to keep it permanent and whenever any arrangement like sale, gift etc., of the said property is made, at that time, the arrangement should be made keeping permanent right of daughters of residing.
41. According to the learned Counsel for the respondents, these conditions manifest the intention of the donor not to divest himself of the proprietary interest and control of the property as owner during his life time and therefore, notwithstanding that delivery of possession, as the property is capable of, is accepted, no valid gift of corpus has taken place. Divesting of ownership is an absolute necessity and unexceptionable. In order to bring into existence a valid gift under the Mohammedan Law, there must be divesting of the ownership of the donor in presenti. Where the donor continues to exercise rights of ownership over the property inconsistent with the transfer of proprietary interest, the gift has to be held as inoperative. However, in examining this question, it would be pertinent to keep in view the difference between contingent gift and gift with conditions attached to it and the effect of conditions on which gift has been made on the validity of the gift.
42. In Para 164 of Mulla's Principle of Mohammedan Law, it has been stated that :
When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it.
In Para 163, it has been stated that :
A gift cannot be made to take effect on the happening of a contingency.
43. It will be illuminating to refer in same detail how Syed Ameer Ali had dealt with this aspect in his Treatise on Mahommedan Law. It has been stated that there is a great difference between contingent gift and the gifts with conditions attached to them. The former gifts which are made dependent for their operation upon the occurrence of certain contingencies are void according to all the schools. Whilst with regard to gifts with conditions attached to them, there exists a certain divergence between the Shiahs and the Hanafis. According to Hanafi Law, any derogation from the completeness of the gift is null, and if the intention to give to the donee the entire subject-matter of the gift be clear, subsequent conditions derogating from or limiting the extent of the right would be null and void. Accordingly, under the Hanafi Law, whilst the gift is valid, the condition is void. Under the Shiah Law, if the condition is subsidiary to the gift, both the gift and the conditions are valid. In practice, there is no difference whether the gift depends on the condition attached, or whether the condition is only subsidiary. In both cases, both gift and condition are valid.
44. Under the Hanafi Law, when it is clear that the intention is to make to A, a gift of the corpus of a thing, and it is conditioned that he should take a limited interest in it or take it only for his life, the condition would be void, and the gift would take effect absolutely. Similarly, if a man were to give a piece of land to another on the condition that he should give to him in perpetuity the whole produce of the land, the condition would be bad, for, in these cases, the condition defeats the object of the gift, in other words, although it purports to transfer the property to the donee, in one case it cuts down his interest, and in the other burdens him with a perpetual trust.
45. But even under the Hanafi Law, only such conditions are invalid as render the gift nugatory or defeat its very purpose. The illustrations given in the Fatawai Alamgiri, which are in accord with the social conditions of the times, leave no room for doubt as to the meaning of the jurists. All our masters have declared that when a gift is made and an invalid condition is attached, the gift will be valid and the condition will be void.
46. Where the condition imposed on the donee is such as to defeat the whole purpose of the gift, for although the transaction purports to be a complete transfer of the entire thing, the right is so limited that it renders its enjoyment in some cases nugatory, in others only gives the corpus in pArticle And therefore, effect is given to what is supposed to be the primary object, viz., the gift is held to be valid whilst the condition is avoided. This, in substance, is the meaning of the jurists.
47. The instances referred to are that - "If a house is given to another on the condition that a part of it should be given back to the donor or that the donee should give something in return for it, (1) the gift would be valid and the condition void, so it is stated in the Kafi." The rule in all cases is that in contract where (complete) seisin is a condition, nugatory provisions do not avoid the contracts but are themselves rendered void, such as gift or pledge.
48. It has been concluded on analysis of various principles in the following words :
An analytical examination of the principles with due regard to the main purpose of the Mussulman Law, shows that where the intention is clear to transfer the entire right of property in the corpus of the gift, a mere reservation of interest in its rents and issues, or any profit accruing therefrom or a subordinate share in its enjoyment does not affect the validity. And this view is not restricted to the case of a minor donee.
As a general rule, it may be stated that, where the intention to make an absolute transfer in presenti of all proprietary right is clear, any condition which derogates from the immediate completeness of the gift is regarded as void. Where the condition, however, may be given effect to without in any way interfering with or detracting from the immediate completeness of the gift, or rather the immediate transfer of the right in the substance of the gift, the condition as well as the gift are valid. If a man were to give absolutely his property to another and place the donee in possession thereof, so far as its nature admits, to use the language of the Majm'aa-ul-Anhar, with the condition that the whole or a portion of the income should be given to him, the donor, or to anybody else during his life time, such a reservation or condition would not prevent the property vesting immediately in the donee.
A gift does not become void on account of an invalid condition. Accordingly, when an arrangement is entered into between a husband and wife in regard to their respective rights, and property is conveyed thereunder by one to the other, it takes effect as a gift and does not become void for any invalid condition. 'But sale, mortgage, and lease would be void for invalid conditions'.
49. Keeping in view the aforesaid principles, if the deed of gift is to be examined, it is to be noticed that there is no dispute between the parties that the subject-matter of gift, viz., house property was the absolute property in the absolute seisin of the donor Abdul Rahim Abdul Razak (for short 'donor'). That is to say, he was in a position to make a gift of the property. A part of the property was used by the donor for residence and he was residing therein with his third wife Halimabibi and donors progeny through her constituting three minor sons and four minor daughters. The gift was declared in favour of donor's wife Halimabibi and three of his minor sons. The deed was executed in favour of Halimabibi, wife of Abdul Rahim (donor), band master describing it as a gift for herself and as guardian of minor sons of donor. After describing the family circumstances and the purpose of gift, the donor declares that -
I have given you the gift of the following mentioned property including the total building on the land, all the goods in it, windows, doors, door-frames etc., including the rights of concerned from sky to very deep layer of the earth, and my right to rent and possession from the tenants therein, and all the moveable properties in it, and water pipe, light etc., in it for Yavatchandra Diwakaro.
50. Thus, there is declaration of intention to transfer in absolute the dominion of corpus in favour of donor's wife as one of the donees as well as acting as guardian on behalf of three minor children of the donor. Thus, for the purpose of accepting the gift, father has specified the mother as a person to accept the gift on behalf of the minors. It was further declared in the gift deed that :
Today, I have given you the possession of the following mentioned property, as owner, depending upon the aforesaid conditions, and I have made you complete and independent owner, reserving my aforesaid rights. From today, no rights as a owner have been kept except my aforesaid rights. Even then, henceforth if I or any or my heir/representative shows (claims) right, then that will be cancelled by this writing (agreement).
Hence, from today depending upon the aforesaid conditions, you and your heir/ representatives have right to make arrangement like mortgage, sale, gift of the said property as an owner and you may give it on rent also and you may take possession.
51. It was further declared in the body of the gift that :
On the basis of this gift agreement, believing my consent, get the following mentioned property in your name in the office of the Surat City Survey and office of the Mahanagar Palika. I have to give necessary (required) signature and consent etc.
52. Further, there is no dispute that the gift deed was duly registered and was handed over to the donee Halimabibi. Actual mutation in the name of donee has taken place after the death of donor. On this precincts if we are to examine the effect of conditions mentioned above, whether the same results in retracting from the intention of the donor to make an absolute gift of the property during his life time. Keeping in view the fact that the donor was the father and was residing with the donees who are his wife and minor children, the reservation of right to reside in the house alongwith the donees does not detract from intention of making a valid gift during the life time nor detract from delivery of possession in the manner it was capable of delivery of the property where the donor and donees reside in the same premises.
53. Likewise, the portion of the property being in possession of the tenant was incapable of being physically offered and could only be symbolically delivered to the donees. The delivery of possession in such cases is presumed where the deed of gift is registered and is handed over to the donees it manifesting an unequivocal intention to make a gift. The mere reservation of right to collect rent in the circumstances do not detract from the intention to make absolute gift of corpus in favour of the donees, inasmuch as firstly, it has not been stated in the condition that donor reserves right to collect rent and to keep and change tenants and to take possession therefrom in his own right. It cannot be lost sight that, out of the four donees, three were his own minor children and as natural guardian of theirs, he was entitled and obliged to manage the property of his wards and as a husband of his wife, he was also entitled to manage the property on her behalf. Reserving right to collect rent and deal with tenants is compatible with managerial function of husband and guardian of minor children.
54. Moreover, as noticed above, the donor has also made unequivocal declaration in his deed that henceforth, the donees have a right to enjoy the property as an owner which include the rights of the donees to give it on rent and to take possession. Therefore, the condition of reserving right to collect rent and to keep and change the tenants and to take their possession, in the circumstances can only relate to manifestation of the intention of the donor to continue to manage the property on behalf of the donees who were either wards of the donor and/or the wife whose property he was otherwise entitled to manage under personal law. He has not reserved any right to collect the rent and to take possession from the tenants in derogation of the rights of the donees in whose favour, the gift was intended.
55. The condition No. 2, which makes the right of alienation by way of mortgage, sale or gift or any other arrangement by the donees subject to the consent of the donor also does not derogate from the transfer of absolute ownership, inasmuch as the right to transfer the property in any manner has not been reserved by the donor to himself. The right to alienate the property has been manifested to vest in the donees not only in Clause (2) of the condition, but also in latter declaration that the donees have right to make arrangements like mortgage, sale, gift of the said property as owner. In the circumstances, this condition also in my opinion does not militate against the transfer of absolute ownership of corpus.
56. The condition No. 3 too, in my opinion, refers to situation after the donor dies and is not reservation of any right in favour of the donor militating against the transfer of absolute ownership of corpus in favour of the donees in persenti. The condition inhibits the right of wife, one of donees, to alienate property in future during minority of other donees, sons of donor and the donee-wife. That is not a condition concerning reservation of any right of ownership unto donor, but if at all inhibits against exercise of right of absolute ownership after the property vests in donees.
57. Likewise, condition No. 5 does not militate against the transfer of property in favour of the donees by way of gift by reserving ownership right unto the donor in the said property. The right of residence reserved in favour of the four daughters of the donor, militating against the absolute enjoyment of property vesting in the donees. If the condition is to be held against exercise of right of ownership by the donees, for the benefit of third parties, the condition would be invalid and not the gift. But, a condition on exercise of absolute right of transfer during the minority of any one of co-owners in whom the ownership has vested on gift having taken place, cannot be considered a condition on which gift depends. But is a subsidiary conditions as a clog on right of donees, on property being vested in them.
58. These conditions in fact can only operate on property having vested in the donees, that they could exercise their right of transfer or alienate the property in any manner subject to the consent of the donor. Thus, condition is subsidiary or subsegment to gift and does not make the gift dependent upon it. All the conditions are not conditions preceding the gift. Even if such conditions were held to be militating against exercise of such absolute right of ownership by the donees as per Hanifa School, to which both the parties belong, the gift would be valid and the condition would be void.
59. It may be made clear that, since the suit is not for enforcement of conditions or declaration of such conditions to be void, I am not dwelling upon deciding the conditions to be invalid or valid, in this case, as the question does not arise for consideration. The conditions are examined merely from the point of view whether they militate against the gift having come into operation at all.
60. Much emphasis has been laid on donor keeping with himself obligation to pay taxes of property during his life time under condition No. 4. Suffice it to say that the payment of taxes by donor or donees may be one of the factors for the purpose of determining the question whether donor has intended to pass ownership rights to the donees or was in fact keeping ownership rights with himself, but is not the only and conclusive circumstance. Its effect has to be considered in and alongwith all attending circumstances alongwith other conditions of the gift. When the donor has unequivocally declared in favour of rights of the donees to get the property mutated in donee's name in records in presenti and it is also declared that donees have right to alienate the property in any manner, albeit subject to consent of the donor during his life time without reserving any such right to himself, and it is also declared that the donees have right of ownership to give the property, subject-matter of gift, on rent and take possession from the tenants, the fact that the authority to collect the rent and deal with the tenants during his life time, has also been kept with donor himself, keeping in view the factum of the three minor donees being ward of the donor, the declaration of donor's intention to bear the burden of taxes during his life time, does not stand against the unequivocal intention of donor to make an absolute gift of corpus in favour of the donees, and on delivery of possession by making such declaration in the registered deed and delivering the deed to one of the donees on behalf of herself and minor donees, the gift is complete.
61. In the present case, a declaration of the intention of gift by the donor is made through a registered deed, the acceptance of the gift is manifested by acceptance of registered deed by the donee-applicant No. 1 for herself and on behalf of minor donees and the delivery of possession of subject-matter of the gift, the house property was made in the manner it was capable of being delivered. Spouse and minor children, the donees and the donor are residing together and donor continues to reside with them. In such circumstances, actual departure and re-entry by the donor was not required. Though no delivery of possession is required in case of gift from father to minor children, in fact, mother having been specified as a guardian for the purpose of acceptance of possession, with whom the donor is residing, the delivery of registered deed of gift to the mother for herself and on behalf of her minor children completes the delivery of possession of the subject of the gift so far as the residential portion is concerned and the delivery of the possession of the portion occupied by the tenant, is also manifested by declaration of the donor that the donees are entitled to get the property mutated in their names, to give the property on rent and take possession from the tenants. Moreover, the act of delivery of possession of one property cannot be splitted.
61.1. Therefore, I have no hesitation in concluding that, on true construction of the documents of gift, all the essential conditions of a valid gift under the Mohammedan Law have been satisfied and the gift must be held to be complete. It being not a contingent gift or a gift of a life interest or gift of property on happening of certain event, nor of the property in futuro, the possession of corpus being made the gift is complete. Any condition, even if it were in derogation with the absolute enjoyment of rights of ownership by the donees, the conditions must be held to be void and not the gift.
62. As a result of the aforesaid discussion, it must be held that the lower Courts erred in coming to the conclusion that there was no delivery of possession of the property to complete the gift by misconstruing the documents etc., and not appreciating the true input of rules of Mahommedan Law as applicable to present case. The appellants are entitled to succeed.
63. In the result, this appeal succeeds. It is held that the gift of the property in question being complete in favour of the present appellant Nos. 1 to 4 by the deceased Abdul Rahim Abdul Razak during his life time when the declaration of gift was made through a written document which was duly registered and handed over to the wife Halimabibi and the property having vested in the present appellants, the widow of Abdul Rahim Abdul Razak appellant No. 1 and the sons appellant Nos. 2 to 4, the property was not available for being administered on his death for the benefit of his other heirs. Therefore, the plaintiff's suit for administration of the property in question must fail. Accordingly, decree passed for administration of the property for the benefit of heirs of deceased Abdul Rahim Abdul Razak to the extent it relates to property under gift is set aside. In the facts and circumstances of the case, there shall be no orders as to costs of this appeal.

Querist : Anonymous (Querist) 17 August 2011
Tenancies at present may be either with respect to agricultural lands vesting in various states who can admit class of tenants predefined rights,such as tenants with rights to transfer their tenements by sale gift or will and tenants only with possessory right tenements nontransferable.such being the case
a transfer of these properties shall be governed by these special enactment. So be one a hindu or muslim ,if his tenement is non transferable he can not transfer,doing so will cause him to loose the tenement.

THEN there comes a class of land called ABADI-say residential land over which the state looses its command and private individuals own it with their absolute right and they can enter into all kinds of transfers recognized by TPA,one of those is known as LEASE where not the owner ship but only possession is parted for a consideration called premium and rent.
HERE also states have come with different Rent Control Acts to regularize rate of rents and eviction process in cases of defaults.
BUT despite all this RULE THAT A TENANT CAN NOT ADMIT A SUB TENANT WITHOUT WISHES
AND CONSENT OF HIS LAND LORD IS STILL VALID AND NO STATE LEGISLATION HAS CURTAILED IT .

SO IT IS HERE THIS QUERY AROSE BECAUSE OF ANOTHER QUERY THAT CAN A MUSLIM MAKE HIBA OF HIS TENANCY RIGHTS AGAINST THE WISHES OF HIS LAND LORD.DESPITE THE FACT THAT HE IS CAPABLE TO ACT AND PERFORM TWO INGREDIENTS REQUIRED FOR HIBA AS DONOR AND DONEE ACCEPTANCE WILL MAKE IT A PERFECT HIBA CONCEIVED IN MUSLIM LAW,SHALL NOT HIS THIS DECISION AND GOING TO AFFECT A VALUABLE AND ACTION RIGHT RIGHT OF HIS LAND LORD AND CAN OPEN HIS DOOR OF EVICTION AT THE INSTANCE OF THE LORD.
THE POINT I DROVE HOME IN MY CONCLUSION WAS THAT SUCH A HIBA CAN BE MADE BUT IF MADE WITHOUT CONSENT OF LANDLORD EVEN BY A MUSLIM TENANT,THE SAME CAN NOT BE BINDING ON THE LAND LORD AND IT SHALL RATHER BECOME A WEAPON IN HANDS OF THE LAND LORD AS GROUND OF EVICTION,WHILE SUCH WOULD NOT BE CASE WHERE TENANT DIES AND HIS RIGHT OF TENANCY DEVOLVES UPON HIS HEIRS DUE TO THE ACT OF LAW AND NOT DUE TO THE ACT OF TENANT.

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