Muslim immovable gifts: to register or not to register… that was the question. Recent developments following ‘Hafeeza Bibi v. Shaikh Farid’

As it was previously mentioned in an earlier post, Muslim gifts (hiba or ariya – the latter only concerning the usufruct of a property) do not have to be registered in order to be valid. The reason behind this exemption was mainly that Muslim gifts can be made orally, hence not requiring any written instrument to complete the transaction.
I am using the word ‘transaction’ specifically because Muslim law considers gifts as part of contract law. Muslim authors (which are in this instance scrupulously followed by Indian Courts) only require three conditions:

1. a declaration by the donor (offer)
2. an acceptance by the donee (acceptance)
3. the delivery of the property (transfer)

A contentious issue however arose relating to immovable property, and what to make of a Muslim gift deed. The problem revolved around the compatibility of two statutes.

Section 123 of the Transfer of Property Act, 1882 (TPA) disposes that:

“For the purpose of making a gift of immovable 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.”

As aforementioned, Muslims are exempted from this obligation by Section 129 of the same act:

“Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Mohammedan law.”

…hence paving the way for Muslim oral gifts to be valid whether they relate to moveable or immovable property…

IF it wasn’t for section 17 of the Registration Act, 1908 (RA) disposing that:

“(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; (…)”

This time, no exemption has been made for Muslim law, Section 49 dealing with the consequences of non-registration:

“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.”

The question of whether the first exemption was constitutionally valid in regards to the right to equality (article 14 of the Indian Constitution) was rather rapidly solved by the Courts, validating the disposition on the grounds of ‘reasonable classification’ [1] .

However, the compatibility between Section 129 of the TPA and Section 17 of the RA has led to diverging rulings between High Courts and most importantly to a paradoxical situation where an unregistered written deed could potentially invalidate the gift, while on the other hand a sole oral transaction would stand. Bearing in mind that Muslims increasingly tend to write down gift deeds in the prospect of legal security… little did they know that this could in fact prove to be a disservice.

Several key points need to be examined in order to understand the Supreme Court’s final decision. Jurists love definitions and taxonomy; in this case… judges had quite a lot of fun.

1. Muslim gift deed: document or instrument?

The question was how to legally qualify a Muslim gift reduced in writing: is it a mere document only confirming what has taken place and is already effective, or is it the instrument by which the gift becomes complete and legally binding?

In Nasib Ali v. Wajed Ali (1926) [2] the Calcutta High Court observed that Section 17 of the RA mentions “instruments” and considered that a Muslim gift deed was not one of those. The validity of the gift lies in the fulfillment of the 3 aforementioned conditions, none of them requiring writing. If these conditions are not present, the deed (even registered) would not validate the gift for it “doesn’t create, makes or completes the gift” by itself. Therefore, a written document is just a mere piece of evidence and not an instrument requiring registration. This position was followed by the Gauhati High Court in Md. Hesab ud din & Ors v. Md. Hesaruddin & Ors. (1983) [3] , the single judge reiterating that a Muslim gift transaction is essentially immaterial.

In Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt Tayyaba Begum (1961) [4] , the full bench of the Andhra Pradesh High Court begged to differ, and actually concluded that a written Muslim gift could be both an instrument and a document. In order to differentiate between the two, they applied a rather subjective test. It consisted in determining whether the parties intended for the written document to be a “receptacle and appropriate evidence of the transaction” that would constitute the gift or simply “a record of a past event”. In the latter case, registration was not compulsory, but the former would have to comply with Section 17 of the RA.
The Madras High Court in Amirkhan v. Ghouse Khan (1983) [5] was even blunter. If it recognized that Muslim gifts could be made orally, it went on to consider that any reduction in writing of such a gift would become a legal instrument conferring de jure a title of property, and could only become complete once registered under Section 17 of the RA.
In Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others [6] the Jammu and Kashmir High Court was more subtle, and although applying the Tayyaba Begum dichotomy, tried to render it more objective. Hence, they replaced the subjective intention of the parties with the contemporaneity of the written deed:

“… 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 under Section 17 of the Registration Act.”

This issue of registration was indeed causing some mayhem, and even traditional references relating to Muslim Law within the Sub-Continent seemed to disagree. If Mulla’s Principles of Mohammedan Law [7] considers that registration is a non-requirement for a Muslim gift, for only the three conditions suffice to validate it; Fyzee [8] on the other hand does operate a difference between a written document that merely records a prior transaction (no registration) and the one that is actually its instrument (registration).

It is but only recently that the Supreme Court was able to tackle the issue in Hafeeza Bibi and Ors. vs. Shaikh Farid (dead) by L.Rs. and Ors. (2011) [9].

2. Muslim gift deed: a simple document which doesn’t require registration.

As it is usually the case, the issue arose out of an inheritance dispute. Shaikh Dawood died intestate (in 1968) leaving a certain number of children and relatives behind. As the partition of the estate was organized, one of his son claimed that an immovable property should not be part of the succession, for it had already been gifted to him by his late father (with whom he stayed and cared for until the end), and that this gift had even been reduced into writing… but had neither been stamped [10] nor registered.
The Trial Court (in 1988) concurred with the view that Muslim gifts were oral in nature and that even reduced in writing were exempt from registration, hence validating Shaikh Dawood’s gift to his son [11] . On appeal however, the Andhra Pradesh High Court (in 2004) followed its own precedent. Applying the Tayyaba Begum test, it considered that in this instance the parties intended for the deed to be the instrument of the transaction, and having failed to register it, could not convey any property title.
The matter finally made its way up to the Supreme Court (in 2011) which sided with the High Courts of Calcutta and Gauhati on this issue. Oral gifts being permissible under Muslim Law, no writing is required to either create or complete them; hence even reduced in writing, a Muslim gift deed could not be defined as the instrument by which the gift becomes effective, it is but a mere evidence that the gift has taken place, but does not confer any title to the donee, for the creation and completion of a gift lie elsewhere.
Indeed, the two judge bench cited the High Court of Kerala, which in Makku Rawther’s children: Assan Ravther and Ors. vs. Manahapara Charayil (1971) [12] was quite critical of the Andhra Pradesh High Court distinction between instrument and document, considering it irrelevant:

“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.”

It took more than a century for this issue to be finally settled by the Supreme Court, which in this instance considered that the exemption of Section 129 of the TPA superseded the dispositions of the Registration Act.
The spirit and letter of Muslim personal law were upheld and indeed this decision, while homogenizing the law throughout India, might also discourage certain frivolous law suits based on a technicality and challenging otherwise accepted situations (as the facts of this particular case demonstrates).

The State appears however to be losing from this decision, as the latter hampers its current efforts to promote registration (especially for marriages) [13] . It might also reveal to be problematic for the collection of Estate Duty, due to incomplete records and the possibility to falsely “create” a gift in order for its object to be left out of succession.
The Legislator could however abrogate Section 129, at least as immovable property is concerned. There is no reason to believe that Muslim law would be particularly affected, if the three requirements are upheld. The fact that a Muslim gift can be oral does not mean that it has to be defined as such, as long as the deed clearly states that the necessary conditions under Muslim law have been met.

For a more complete analysis of this case, and particularly the genealogy of the judgments revolving around this issue, I can only suggest Justice (ret.) Hakim Imtiyaz Hussain’s [14] article on Muslim oral gifts, which can be found in the Srinagar Law Journal [15] .

[1] Mt Bibi Maniran vs. Mohammad Ishaque (1962), AIR 1963 Pat 229

[2] AIR 1927 Cal 197.

[3] AIR 1984 Gauhati 41.

[4] AIR 1962 A.P. 199.

[5] (1985) 2 MLJ 136.

[6] AIR 1974 J&K 59.

[7] Mulla, Dinsha Farunji. Principles of Mahomedan Law. 19th ed. Bombay: Tripathi, 1990.

[8] Fyzee, Asaf Ali Asghar. Outlines of Muhammadan Law. 5th ed. New Delhi: Oxford University Press, 2008.

[9] (2011) 5 SCC 654.

[10] I am leaving out of this post the debate about stamping, required by several States’ legislature, for it is fairly similar in nature and follows the broader issue of registration. In fact, the Tayyaba Begum case started out because of this lack of stamping.

[11] The parties did not contest that the three conditions of a valid gift under Muslim Law had been fulfilled.

[12] AIR 1972 Ker 27

[13] In April, the Cabinet approved a bill for compulsory registration of marriages:

[14] Former High Court Judge of the High Court of Jammu & Kashmir.

[15] Hussain, Hakim Imtiyaz. “Oral Gift under Muslim Law” Srinagar Law Journal. 2012 (I). pp. 11-18.

Cite this blog post
Jean-Philippe Dequen (2012, September 13). Muslim immovable gifts: to register or not to register… that was the question. Recent developments following ‘Hafeeza Bibi v. Shaikh Farid’ Women's Rights in Muslim Contexts. Retrieved June 24, 2024, from

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