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how to legalize oral hibanama

manager

hello everyone,

one property is equally in the name of five brothers through release deed signed by sisters in 1988.

now brother no.1 and brother no.2 are grudgingly transferring their share to brother no.3.

is transferring through a hibanama on a simple plain paper safe enough.

we plan to sale this property soon enough. will the increased share valid on a plain hiba nama or do i have to get it registered somewhere.

we do not want to pay the stamp duty and brother no1 and no2 don't want to go to the registrar's office.

hiba nama seems authentic enough documenton the internet but on ground no one is willing to tell about its legal status.

i'm very confused. what should i do?

 
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Legal Advisor

Two elder brothers can not give their total share in hiba to their 3rd brother  in hiba. If they want to give their share in full, they have to transfer the property through registered  sale deed . As per Islamic shariath only one third of the total property can be given in hiba by a mohammadan in fovor of non heir.

 
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manager

Thanks for the reply. Both no.1 and no.2 own other properties. The share in this building is very less than their total "maal". Can they write hibanama in favour of no3. I've read that under hiba only three conditions are there. 1. giving 2. Acceptance 3. Possession. And there is no limit to whom and what one can perform hiba on to!
 
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advocate

I beg to differ from Brother Khaleel Ahmed. I think, in Mohammedan Law, there is no bar on transfering a property of any extent i.e. in part or in total to any one including the heirs or non heirs of a Mohammedan. Amuslim can transfer even his total property  to any person of his choice or liking. Ofcourse there is a limitation to the extent of 1/3 rd of ones property in case of Will (Waseeyath).  

 in your case you can very well get your brothers execute a gift deed or a memorandum of gift or an affidavit of  a gift (HIBA NAMA) duly notarised by a Notary public. Take care to see that the executors dont resile from the fact of making gift (HIBA) that is get their thumb impressions taken along with their signatures and duly attested by the witnesses.

But in view of spiralling rates of the properties it is always best to have a registered GIFT (HIBA).

With regards. 

 
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manager

Thanks for the reply Mr Dawood. Have you handled such a case? After getting hiba on plain paper, what further steps can we take to satisfy the next owner(buyer)?
 
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Adv P & H High Court Chandigarh

As your two brothers are ready to make hiba of their share but they are not agree to go to the office of registrar for the registration of Hibbanama. This also implies that they shall even not become ready to go to court wherein a family settlment may be shown. The notarized hibbanama is not valid for effecting transfer of ownership as provisions of Transfer of Property Act.

 

The only option is to persuade your brothers to one time go to the office of registrar. You cannot avoid payment of stamp duty as it is now necessary due to the verdict of Hon'ble Supreme Court of India. Hibba on plain papers in the presence of the witnesses shall not work.

 
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manager

Thank you Mr Makkad, someone suggested that we should go for relenquishment deed. Once rd has been done, the property was originally in the name of my grandfather. Can a relenquishment deed be executed now from the two brothers in favour of brother no.3, if they agree to go to the registrar's office? This way we can save the stamp expenses!
 
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manager

Thank you Mr Makkad, someone suggested that we should go for relenquishment deed. Once rd has been done, the property was originally in the name of my grandfather. Can a relenquishment deed be executed now from the two brothers in favour of brother no.3, if they agree to go to the registrar's office? This way we can save the stamp expenses!
 
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advocate

A hibba may be validly made by a muslim of his all properties even to a stranger

or to any of his heirs provided he is not making on death bed.The 1/3rd restriction

is about WILLS or HIBBAS being made while on death bed.[see:Mulla Principles of

Mahomedan Law 17th edition by [EX JUSTICE M.Hidayatullah, chapter xi,page 137,

section 142.]As per section 147 of the text writing is not essential to the validity of a

hibba either of movable or of imovable property.Vide section 149 of the text the three

essentials of a hibba are [1]declaration of the hibba by donor,[2]an acceptence of hibba ,

express or imployed,by or on behalf of the donee,and[3]delevery of possession of the

subject of hibba by the donor to the donee either acctually or constructively.In a recent

caseHafeeza Bibi & Ors. vs Shaikh Farid(Dead) By Lrs. & Ors.

on 5 May, 2011,vide para 27 to 30 of judgement it was laid down as

follows"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.Approving Mulla vide para "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. it was concluded vide para 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.

I hope i have solved your query,

prabhakar singh

 

 

 


 
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manager

Thanks prabhakar ji, Can you please tell me, if rd has been done once in 1988. Can we get a second rd in our favour where two brothers(out of total five) relenquish their total/original share in favour of the third brother?
 
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