I respectfully disagree with opinions expressed by learned Advocate Saleema Kabeer on the above subject issue that unlike the essential criteria under section 123 of Transfer of property act, 1862, a gift of immovable property must be effected by registered instrument signed by the donor and attested by atleast two witnesses, this provision will not apply to Mohamedan law of gift. Regarding formalities, writing is not necessary to complete a Mohamedan gift and formalities prescribed in the TP Act are not essential. A gift made oral is valid provided all the three essential requirements of a valid gift are satisfied. The three essentials of a valid gift under the Mohamedan Law are: 1) Declaration of gift by Donor; 2) Acceptance of gift by the donee; 3) Delivery of possession of the property by the donor to the donee, either actually or even constructively.
It is open to the Mohamedan sisters to relinquish their rights by way of gift, even oral, which is valid in personal law.
As per the Muslim personal law, gifts including Death bed gift and Hiba-bil-iwaz, the property may be either immovable or movable in nature. Even an actionable claim or incorporeal right over the properties or a mere equity of redemption can be transferred but the property must be in existence. A gift can be of the whole or the properties and even to a heir, it may be mentioned that, under the Mohammedan law, a will cannot be made in excess of one third of the properties left by the testator or in favor of a heir. No such restriction applies in case of a gift (hiba). a gift of a property in the possession of a person claiming adversely to the donor, is, however, invalid.
Now to the queries of the queriest:
1). Whether a muslim mother or father is entitled to perform Oral Hiba in favour of any one child depriving the other children of their basic right to inherit?
The answer is 'Yes', explanation given above.
2). Whether the above claimed Oral Hiba is maintainable in the eyes of the law, whereas "D2" was not present at the time of the said Oral Hiba and she was neither a part of the claimed Oral Hiba nor was she present during the said proceedings?
The oral Hiba is very well maintainable as per the Muslim Personal law, explanations given above may be read once again to all the parts of this query.
Therefore if the property is in possession of the son and two witnesses confirm the Oral Hiba by his mother to him, he has an indisputable title over the property acquired through Hiba.
