Gift Under Muslim Law Doesn’t Require Written Document To Be Valid: Supreme Court Summarizes Points On Oral Gift & Its Effect

The Supreme Court has reiterated the aspect of the oral gift and the effect of a valid oral gift under the Mohammedan or Muslim Law.

The Court was deciding a Civil Appeal filed against the Judgment of the Karnataka High Court, Kalaburagi Bench by the Defendants in a suit before the Civil Judge.

The two-Judge Bench comprising Justice Ahsanuddin Amanullah and Justice S.V.N. Bhatti summarized the following points –

• There are three essential conditions for an oral gift under Mohammedan Law. First, a clear manifestation of the wish to give on the part of the donor. Second, an acceptance of the gift by the donee, which can be either implied or explicit. Third, taking of possession of the subject-matter of the gift by the donee, either actually or constructively.

• A gift under Mohammedan Law does not require a written document to be valid. An oral gift that fulfils the three essential requisites is complete and irrevocable. The mere fact that a gift is reduced to writing does not change its nature or character. A written document recording the gift does not become a formal instrument of gift.

• The distinction that a written deed of gift is not required to be registered if it “recites the factum of a prior gift” but must be registered if the “writing is contemporaneous with the making of the gift” is considered “inappropriate and is not in conformity with the rule of gifts in Mohammedan Law”. Section 129 of the Transfer of Property Act, 1882 (TOPA) excludes the rule of Mohammedan Law from the purview of Section 123, which requires registration for the gift of immovable property.

• Delivery of possession is a critical and necessary element for a valid gift. It can be actual or constructive. Constructive possession can be demonstrated by overt acts by the donor that show a clear intention to transfer control. For example, the donor applies for the mutation of the donee’s name in the revenue records.

• Continuous evidence of acting under the oral gift is crucial to prove the delivery of possession. The donee must be able to demonstrate “exclusive control” over the property to derive benefit under it, such as by collecting rent, or by the donor performing acts like mutation on behalf of the donee. Conversely, the donor’s continued collection of rent and the donee’s lack of control over title documents or mutation records can be evidence that possession was not transferred.

Senior Advocate Rauf Rahim appeared for the Appellants/Defendants, while Senior Advocate Amit Kr Deshpande appeared for the Respondent/Plaintiff.

Case Background

Khadijabee, the wife of Syed Abdul Basit filed a suit against her brother for partition and separate possession of an agricultural land. In 1987, the said suit was decreed, declaring that the suit property belongs to Khadijabee. In 1988, Khadijabee under an oral gift/Hiba conveyed to the Respondent-Plaintiff 10 acres. In 1989, the Memorandum of Gift was executed by her in favour of the Plaintiff. Thereafter, registration of a change of rights in the Record of Rights (ROR) in her favour was carried out covering the entire extent of 24 acres and 28 guntas. She died in 1990 and in 1991, her husband Abdul again got the mutation. In 1995, he sold the same in favour of the Appellants-Defendants.

In 2001, he also died and in 2013, Syeda Arifa Parveen, w/o Mushtaq Ahmed, filed a suit seeking declaration that the Plaintiff is the owner of the property and perpetual injunction. The Trial Court decreed the suit in part, granting a decree of title and permanent injunction to an extent of 18 acres and 21 guntas of the property. It disbelieved the case of the Plaintiff on Oral Gift. The Defendants approached the High Court, which dismissed their Appeal, modified the decree by holding that the Plaintiff is the absolute owner of 10 acres derived through oral gift and of 3/4th share in the balance of extent in the suit property. Being aggrieved, the Defendants were before the Apex Court.

Court’s Observations

The Supreme Court in the above context of the case, observed, “Re-appreciation of evidence is normally not undertaken by this Court under Article 136 of the Constitution of India. The learned senior counsel appearing for the parties, in support of their respective arguments, have invited our attention to both the oral and documentary evidence. We have taken note of the incorrect appreciation of evidence and a few inconsistent findings in the impugned judgments. The re-appreciation is undertaken primarily to examine whether the Trial Court and the High Court have accurately recorded the available findings. In a given case, the reappreciation of evidence is not barred under Article 136 of the Constitution of India.”

The Court noted that the party to a lis is not under a legal obligation to file an Appeal against mere findings recorded by the Court.

“By applying the ratio in Banarsi (supra), we notice that the impugned judgment has not considered whether a ground is made out for modifying a decree or not. The High Court has disturbed a finding of fact, leading to modifying the decree of the Trial Court in OS No. 212 of 2013 without there being an appeal/cross-appeal. To this extent, the findings of the High Court are not tenable in the facts and circumstances of this case”, it said.

The Court added that the proof of status or relationship need not always necessarily be through documentary evidence, but, when oral evidence is the basis on which the opinion is required to be formed by a Court, the Courts are allowed to treat an opinion on conduct about a relationship as only a relevant fact.

“This should not be confused with ‘as factum probandum’. We observe that the impugned judgments are liberal in their approach to accepting the status claimed by the Plaintiff as the daughter of Khadijabee. The point is answered accordingly”, it clarified.

The Court remarked that Hiba is a disposition between living persons and is fundamentally an act of benevolence. It further took note of the theological underpinnings tracing back to the Prophet Mohammed (PBUH), who is reported to have said, “Exchange gifts among yourselves so that love may increase.” [Al-Marghinani, Burhan al-Din, Al-Hiadaya, Quran Mahal, Karachi Vol. III, p. 283; Mulla, Principles of Mahomedan Law, 20th Edition, Chapter XI (Gifts).]

“The precedents are that to constitute a valid conveyance through an oral gift, the three contemporaneous conditions of declaration by donor, acceptance by donee, possession by donee and to continue to establish possession through contemporaneous evidence to show that Hiba is acted upon. The Hiba is not used as a surprise instrument and cannot sprout into a transfer of property as per the convenience of a party. Moreover, to keep in line with the sanctity of Hiba, it is in the interest of the donor, donee and a third person interested in the subject matter that Hiba is acted upon by completing all three essential requirements in public knowledge rather than in secrecy”, it reiterated.

The Court further said that the Courts appreciate fulfilment of contemporaneous requirements and possession through evidence while recognising conveyance through an oral gift and possession is one of the important conditions to constitute a valid oral gift.

“The courts presume possession of a party from the circumstances pleaded and proved. … The High Court was liberal in explaining away the minor variations, if any, in Ex. P-8 do not adversely affect the Plaintiff’s claim. With respect, we are unable to subscribe to the said view. Consequently, the claim of the Plaintiff under Hiba and Ex. P-8, for want of evidence on possession, fails, and the point is answered in favour of the Defendants”, it observed.

Conclusion

The Court elucidated that to set aside instruments of sale, the muster under Article 59 of the Limitation Act must be met and it is axiomatic that there is a presumption that a registered document is validly executed.

“A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, the Respondent has not been able to rebut the said presumption. Interestingly, in the impugned judgment, constructive notice is put against the Defendants despite there being no public record of the Oral Gift or the claim to the Suit Property”, it added.

The Court, therefore, concluded that the impugned Judgments failed to appreciate the effect of constructive notice in answering whether the suit is within the period of limitation or not and the suit filed in 2013 is barred by limitation, particularly for the reliefs sought for.

Accordingly, the Apex Court allowed the Appeal and set aside the impugned Judgment.

Cause Title- Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen (Neutral Citation: 2025 INSC 1187)

Appearance:

Appellants: Senior Advocate Rauf Rahim, AOR Ravindra Keshavrao Adsure, Advocates Yash Prashant Sonavane, Gopal Bhosale, Sangita Bhosle-Patil, Ali Rauf Rahim, and Mohsin Rauf Rahim.

Respondent: Senior Advocate Amit Kr Deshpande, AOR Akshat Shrivastava, Advocates Pooja Shrivastava, and Palash Pareek.

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