NATIONAL LAW UNIVERSITY, ODISHA

SUBJECT: - PERSONAL LAW II

TOPIC:- REGISTRATION OF HIBA

Submitted to: Submitted by:

Mr. Owais Hasan Khan Ishwar (16BA044)

(Professor of Law)

Ms. Kanishka

(Research Associate Cum

Teaching )
 ACKNOWLEDGEMENT

Here, I would like to acknowledge the contribution of everyone without whom the successful
completion of this project would not have been possible.

Then I would like to thank Mr. Owais Hasan Khan and Kanishka, for their able guidance and
clearing of doubts arising during the course of execution of the project.

I am also grateful to my parents for each and everything they have done for me. They have been
a constant source of inspiration and motivation for me which enabled me to study in a reputed
institution.

I would also appreciate the aid and assistance of the librarian and other staff members of NLUO
for their support.

I also acknowledge the help and encouragement provided by my seniors, who guided me to
apply my efforts in right direction.

Lastly, I am grateful to my friends and colleagues for their support and for being a constant
source of enthusiasm.

2|Page
 Contents

ACKNOWLEDGEMENT...............................................................................................................2

RESEARCH METHODOLOGY....................................................................................................4

HYPOTHESIS.................................................................................................................................4

RESEARCH QUESTIONS.............................................................................................................4

SCOPE.............................................................................................................................................4

CHAPTER I : WHAT DO YOU MEAN BY HIBA ?....................................................................5

1. A declaration by the donor:...............................................................................................5

2. Acceptance by the donee...................................................................................................6

3. Delivery of possession by the donor and taking of the possession by the done...............7

CHAPTER II : WHETHER REGISTRATION OF HIBA IS MANDATORY ?...........................9

1. Position under the transfer of property act, 1882..............................................................9

2. Position under the registration act, 1908.........................................................................10

3. Position under the muhammadan law.............................................................................11

4. Supreme court of india on registration of gifts under muhammadan law.......................12

CHAPTER III : WHETHER HIBA IS CONSTITUTIONALLY VALID ?.................................15

CONCLUSION..............................................................................................................................17
 RESEARCH METHODOLOGY

In order to complete this project, the methodology of doctrinal research has been put to use. The
sources referred in this project are both primary as well as secondary. The cases cited are
primary sources, while the books and other resources are secondary ones. The mode of citation
used is OSCOLA.

HYPOTHESIS

Registration of Gift (Hiba) is not mandatory..

RESEARCH QUESTIONS

1. What do you mean by Hiba under Muslim law ?

2. Whether registration of Hiba is mandatory ?
3. Whether Hiba is constitutionally valid ?

SCOPE

The scope of the project is limited to finding out whether it is mandatory to register Hiba and
whether it is constitutionally valid.
 CHAPTER I : WHAT DO YOU MEAN BY HIBA ?

A hiba (or gift) is a transfer of property, made quickly, and with no trade, by one individual to
another, and acknowledged by or for the benefit of the last mentioned. It is in this manner the
giving of property without consideration..

As the Muslim law views the law of Gift as a part of the law of contract, there must be an offer
(izab), an acceptance (qabul), and transfer (qabza) .

In Smt Hussenabi v Husensab Hasan, “a grandfather made an offer of a gift to his

grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express
of implied acceptance was made by a major grandson. Karnataka HC held that since the three
elements of the gift were not present in the case of the major grandchild, the gift was not valid. It
was valid in regards to the minor grandchildren1”.

Thus, the following are the essentials of a valid gift2 -

1. A declaration by the donor:

There must be a clear and unambiguous intention of the donor to make a gift. A
declaration is a statement which signifies the intention of the transferor that he intends to
make a gift. A declaration can be oral or written. The donor may declare the gift of any
kind of property either orally or by written means. Under Muslim law, writing and
registrations are not necessary .

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul3 it was held that under
Muslim Law, declaration, as well as acceptance of the gift, may be oral whatever may
be nature of property gifted. When the gift is made in writing, it is known as Hibanama4.

1
AIR 1989 Kant 218.
2
Sinha, R.K., ‘Muslim Law’, Central Law Agency, Allahabad, 2006, p172.
3
(1994) 5 SCC 476.
4
Lawyersclubindia. (2019). Hiba Nama - sale of property. [online] Available at:
http://www.lawyersclubindia.com/experts/Hiba-Nama-sale-of-property-418301.asp#.U1ObtlWSzz4 [Accessed 3
Aug. 2019].
 This gift deed need not be on stamp paper and also need not be attested or registered. 5 In
the famous case of Md. Hesabuddin v Md. Hesaruddin, where the gift was made by a
Muslim Woman and was not written on a stamp paper , Gauhati High Court held that the
gift was valid.

The declaration made by the donor should be clear. A declaration of Gift in ambiguous
words is void. In Maimuna Bibi v. Rasool Mian 6, it was held that while the oral gift is
permissible under Muslim law, to constitute a valid gift it is necessary that donor should
divest himself completely of all ownership and dominion over the subject of the gift. His
intention should be in express and clear words . According to Macnaghten, “A gift
cannot be implied. It must be express and unequivocal, and the intention of the donor
must be demonstrated by his entire relinquishment of the thing given, and the gift is null
and void when he continues to exercise any act of ownership over it.”7

The declaration should be free from all the impediments such as inducement, threat,
coercion, duress or promise and should be made with a bona fide intention.

2. Acceptance by the donee8

A gift is void if the donee has not given his acknowledgment or acceptance. The lawful
guardian may acknowledge in the interest of a minor. Donee can be an individual from
any religious foundation. Hiba for a minor or a female is additionally valid. A youngster
in the mother's belly is an equipped done gave it is brought into the world alive inside a
half year from the date of assertion. A juristic individual is additionally fit for being a
donee and a gift can be made to support them as well. For the benefit of a minor or a
insane individual, any guardian as provided under the arrangements of Muslim law can
acknowledge that gift. The persons authorized are9:

5
Mahboob Saheb v. Syed Ismail, AIR (1995) SC 1205.
6
AIR (1984) Pat, 203.
7
AIR 1991 Pat 203
8
Archive.org. (2019). Full text of "Cases decided on the British North America Act, 1867, in the Privy Council, the
Supreme Court of Canada, and the provincial courts [microform]". [online] Available at:
https://archive.org/stream/cihm_12245/cihm_12245_djvu.txt [Accessed 3 Aug. 2019].
9
Sinha, R.K. ‘Muslim Law’, Central Law Agency, Allahabad, 2006, p176.
  Father,
 Father’s Executor,
 Paternal Grand-Father, and
 Paternal Grand Father’s Executor.

3. Delivery of possession by the donor and taking of the possession by the done10:

In Muslim law, the term possession means only such possession as the nature of the
subject is capable of. Thus, the real test of the delivery of possession is to see who –
whether the donor or the donee – reap the benefits of the property . If the donor is
reaping the benefit then the delivery is not done and the gift is invalid

The mode of delivery of possession depends completely upon the nature of the property.
Delivery of possession may either be: Actual, or Constructive.

 Actual Delivery of Possession: Where the property is physically handed over to the
donee, the delivery of possession is actual. Generally, only tangible properties can be
delivered to the done. Tangible property may be movable or immovable. Under Muslim
law, where the mutation proceedings have started but the physical possession cannot be
given and the donor dies, the gift fails for the want of delivery of possession 11. However,
in such cases, if it is proved that although the mutation was not complete and the done
has already taken the possession of the property, the gift was held to be valid12.
 Constructive Delivery of Possession: Constructive delivery of possession is sufficient
to constitute a valid gift in the following two situations:

 Where the Property is intangible, i.e. it cannot be perceived through senses.

 Where the property is tangible, but its actual or physical delivery is not possible.

Under Muslim law, Registration is neither necessary nor sufficient to validate the gifts of
immovable property. A hiba of movable or immovable property is valid whether it is oral or in

10
India, l. (2019). Gift As Under the Transfer of Property Act and Mohemmedan Law. [online]
Legalserviceindia.com. Available at: http://www.legalserviceindia.com/articles/transfer.htm [Accessed 3 Aug.
2019].
11
Noor Jahan v. Muftkhan, AIR (1970) All 170
12
Alimonassa v. Sudhir Chandra De, AIR (1991), Gauhati 13.
writing; whether it is attested or registered or not, provided that the delivery of possession has
taken place according to the rules of Muslim Law .
CHAPTER II : WHETHER REGISTRATION OF HIBA IS MANDATORY ?

1. Position under the transfer of property act, 188213

The general law governing gift of movable and/ or immovable property is provided in the TP
Act. The concerned sections are Section 122, Section 123 and Section 129 .

“ Section 122 in The Transfer of Property Act, 1882

Gift defined. - Gift is the transfer of certain existing moveable or immoveable property made
voluntarily and without consideration, by one person, called the donor, to another, called the
donee, and accepted by or on behalf of the donee. Acceptance when to be made.—Such
acceptance must be made during the lifetime of the donor and while he is still capable of
giving. If the donee dies before acceptance, the gift is void14”.

Section 122 of the TP Act defines 'Gift' as a transfer of certain existing movable or immovable
property made voluntarily and without consideration, by one person, called the donor, to another
called donee, and accepted by or on behalf of the donee15.

Further, Section 123 (Transfer how effected) of the TP Act provides that an instrument of gift of
immovable property must be registered and signed by or on behalf of the donor and attested by at
least two witnesses .16

“Section 123 of Transfer of Property Act 1882 : Transfer how effected

13
Mondaq.com. (2019). The Concept Of Gift Under Muhammadan Law And Its Registration - Real Estate and
ConstructionIndia.[online]Availableat:
http://www.mondaq.com/india/x/765726/real+estate/The+Concept+Of+Gift+Under+Muhammadan+Law+And+Its+
Registration [Accessed 3 Aug. 2019].
14
Indiankanoon.org. (2019). Section 122 in The Transfer of Property Act, 1882. [online] Available at:
https://indiankanoon.org/doc/881325/ [Accessed 3 Aug. 2019]
15
Legalcrystal.com. (2019). Transfer of Property Act 1882 Section 122 - Court Supreme Court of India - Judgments
| LegalCrystal. [online] Available at: https://www.legalcrystal.com/cases/search/name:transfer-of-property-act-1882-
section-122/court:supreme-court-of-india [Accessed 3 Aug. 2019].
16
Aaptaxlaw.com. (2019). 126 TP Act 1882 | When gift may be suspended or revoked | Section 126 of Transfer of
Property Act. [online] Available at: http://www.aaptaxlaw.com/transfer-of-property-act/section-126-transfer-of-
property-act-when-gift-may-be-suspended-or-revoked-section-126-of-transfer-of-property-act-1882.html [Accessed
3 Aug. 2019].
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.
For the purpose of making a gift of movable 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 delivered17.”

However, it is interesting to note that Section 129 (Saving of donations mortis causa and
Muhammadan law) of the TP Act specifically lays down that the provisions of Chapter VII (Of
Gifts) of the TP Act are not applicable to gifts of movable property made in contemplation of
death and that such provisions of the TP Act have no effect on any rule of Muhammadan law.
Accordingly, by virtue of Section 129, Muhammadans are exempted from the provisions
pertaining to gift as laid down in the TP Act18.

“Section 129 in The Transfer of Property Act, 1882

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 law19”

2. Position under the registration act, 1908

Section 17(1)(a) of the Registration Act lays down that an instrument of gift of immovable
property must be compulsorily registered regardless of its value. In order to effect registration,
the document must be executed i.e. signed by the parties to the document.

Section 17 in The Registration Act, 1908

“Documents of which registration is compulsory.—(l) 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,

17
Aaptaxlaw.com. (2019). 123 TP Act 1882 | Transfer how effected | Section 123 of Transfer of Property Act.
[online] Available at: http://www.aaptaxlaw.com/transfer-of-property-act/section-123-transfer-of-property-act-
transfer-how-effected-section-123-of-transfer-of-property-act-1882.html [Accessed 3 Aug. 2019].
18
Legalcrystal.com. (2019). Transfer of Property Act Section 129 - Judgments | LegalCrystal. [online] Available at:
https://www.legalcrystal.com/cases/search/name:transfer-of-property-act-section-129 [Accessed 3 Aug. 2019].
19
Indiankanoon.org. (2019). Section 129 in The Transfer of Property Act, 1882. [online] Available at:
https://indiankanoon.org/doc/1295659/ [Accessed 3 Aug. 2019].
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”20

As a general rule, both, the TP Act and the Registration Act mandate that the
document/instrument pertaining to gift of immovable property must be registered. Section 49
(Effect of non-registration of documents required to be registered) of the Registration Act lays
down the effect of non-registration of documents/instruments that are compulsorily required to
be registered in accordance with Section 17(1) (Documents of which registration is compulsory)
of the Registration Act.21

Generally, an unregistered instrument of gift of immovable property does not possess any
evidentiary value of such gift. However, the provisions of the Registration Act read in
conjunction with the principles of Muhammadan law and Section 129 of the TP Act provide an
exception to the general rule of” registration.22

3. Position under the muhammadan law

The term 'Hiba'1 means gift under Muhammadan law. It is a transfer of property made forthwith,
and not for thought, by one individual to another and acknowledged by or in the interest of that
other individual.23

The gift of immovable or movable property need not be in writing under Muhammadan law. A
Muhammadan of sound personality and not being a minor is at freedom to make an oral gift in
regard of undaunted or portable property for a donee, given such oral gift is made within the in

20
Indiankanoon.org. (2019). Section 17 in The Registration Act, 1908. [online] Available at:
https://indiankanoon.org/doc/561156/ [Accessed 3 Aug. 2019].
21
India, l. (2019). Sec 17 of Indian Registration Act, 1908. [online] Legalserviceindia.com. Available at:
http://www.legalserviceindia.com/article/l408-Sec-17-of-Indian-Registration-Act,-1908.html [Accessed 3 Aug.
2019].
22
Dequen, J. (2019). Muslim immovable gifts: to register or not to register… that was the question. Recent
developments following ‘Hafeeza Bibi v. Shaikh Farid’. [online] Women's Rights in Muslim Contexts. Available at:
https://womenproperty.hypotheses.org/346 [Accessed 3 Aug. 2019].
23
Id.
front of witnesses by an open presentation so it is unquestionable that the giver has for sure
gifted the property to the donee and has put that donee in possession of the said property24.

The Privy Council in Mohammad Abdul Ghani and Anr. v. Fakhr Jahan Begam and
25
Ors. ,applied the following requirements for a valid hiba or gift as laid down under
Muhammadan law –

i. manifestation of the wish to give on the part of the donor;

ii. the acceptance of the donee, either implied or expressly; and
iii. the taking of the possession of the subject matter of the gift by the donee, either actually
or constructively .

Hence, a gift is complete, valid and irrevocable upon compliance with all the aforesaid
conditions.

If either of the abovementioned conditions remains unfulfilled then such gift is incomplete and
hence not valid26. For instance, an instrument of gift of immovable property may be registered in
accordance with the applicable law although the possession is not received by the donee, then, in
such case, that gift is void as per Muhammadan law .Actual or.constructive delivery of
possession is essential to make the gift valid. Registration is not a pre-requisite for validity of gift
under the Muhammadan law27.

4. Supreme court of india on registration of gifts under muhammadan law28

In the matter of Hafeeza Bibi and Ors. v. Farid (Dead) by L.Rs. and Ors. 29, the judgement
and order dated 13th September 2004 passed by the High Court of Andhra Pradesh holding an

24
Wahabohidlegalaid.blogspot.com. (2019). Hiba (Gift). [online] Available at:
http://wahabohidlegalaid.blogspot.com/2013/03/hiba-gift.html [Accessed 3 Aug. 2019].
25
AIR 1922 PC 281
26
Makashfa.wordpress.com. (2019). history | Makashfa | Page 110. [online] Available at:
https://makashfa.wordpress.com/tag/history/page/110/ [Accessed 3 Aug. 2019].
27
India, l. (2019). Gift As Under the Transfer of Property Act and Mohemmedan Law. [online]
Legalserviceindia.com. Available at: http://www.legalserviceindia.com/articles/transfer.htm [Accessed 3 Aug.
2019].
28
World’s Largest Collection of Essays! Published by Experts. (2019). What is the Process of Revocation of Gifts
under Muslim Law?. [online] Available at: http://www.shareyouressays.com/knowledge/what-is-the-process-of-
revocation-of-gifts-under-muslim-law/117603 [Accessed 3 Aug. 2019].
29
AIR 2011 SC 1695
unregistered gift deed to be invalid, was challenged. The main issue before the apex court was
whether the hiba (gift deed) dated 5th February 1968 was true, valid and binding. In the present
case, one Shaikh Dawood, the donor had executed the said gift deed in favour of his son
Mohammed Yakub, the donee. The donee had given his acknowledgment to the gift and the
benefactor gave over the properties referenced in the gift deed to the donee. The preliminary
court held the said gift deed to be valid and authoritative since all the three imperatives of a valid
gift as gave under the Muhammadan law had been satisfied. However, in appeal, the Andhra
Pradesh High Court set aside the judgment of the trial court and held that the gift was not valid
due to lack of registration.30

The apex court referred to the relevant provisions of law as well as to the judgments of various
High Courts holding differing views on the issue of registration of a document/ instrument of gift
when such gift is made by a Muhammadan.31

The apex court while recognising and restating the three essentials of a gift under Muhammadan
Law i.e. (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3)
delivery of possession stated that the rules of Muhammadan Law do not make writing essential
to the validity of a gift. An oral gift fulfilling all the three essentials makes the gift complete and
irrevocable .32

The apex court observed: “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
30
Available at: https://advocatemmmohan.wordpress.com/2011/08/31/revocation-of-the-gift-deed-whether-the-gift-
in-question-had-become-completeunder-section-123-of-the-tpact-it-is-seen-from-the-recitals-of-the-gift-deed-that-
motilal-gopalji-gifted-the-prop/ [Accessed 3 Aug. 2019].
31
Legal News / Law News & Articles - Free Legal Helpline - Legal Tips : Legal India. (2019). Laws article relating
to ’GIFT’. [online] Available at: https://www.legalindia.com/laws-article-relating-to-gift/ [Accessed 3 Aug. 2019].
32
Laws, B., Law, C. and Law, C. (2019). Concept of Gift Under Muslim Law - Academike. [online] Academike.
Available at: https://www.lawctopus.com/academike/concept-of-gift-under-muslim-law/ [Accessed 3 Aug. 2019].
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.”

It has been settled that if all the three essentials constituting a valid gift under Muhammadan
Law are satisfied, the transaction of gift would not be rendered invalid merely because it is in
writing but the same is not registered. Section 129 of the TP Act preserves the rule of
Muhammadan law and excludes the applicability of Section 123 of the TP Act to a gift of an
immovable property by a Muhammadan .

The court further stated:

“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.”
 CHAPTER III : WHETHER HIBA IS CONSTITUTIONALLY VALID ?

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 classification33.

It is sufficient to state that it is currently all around settled by a progression of choices of this
Court while Article 14 restricts class legislation, it doesn't prohibit sensible classification for the
main purpose behind legislation, and so as to finish the assessment of admissible classification,
two conditions must be satisfied, to be specific:

(1) That the classification must be established on an intelligible differentia which recognizes
people or things that are assembled from others let well enough alone for the group; and,

(2) That differentia must have a discerning connection to the object looked to be accomplished
by the rule being referred to.34

The classification may be founded on different bases such as geographical, or according to

objects or occupations and the like. The decisions of this Court further establish that there is a
presumption in favor of the constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the constitutional guarantee; that it
must be presumed that the legislature understands and correctly appreciates the needs of its own
people and that its laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds; and further that the legislature is free to
recognize degrees of harm and may confine its restrictions to those cases where the need is
deemed to be the clearest35.

It is well known that there are fundamental differences between the religion and customs of the
Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding gift are

33
Id.
34
Fyzee, Asaf Ali Asghar. Outlines of Muhammadan Law. 5th ed. New Delhi: Oxford University Press, 2008.
35
Hussain, Hakim Imtiyaz. “Oral Gift under Muslim Law” Srinagar Law Journal. 2012 (I). pp. 11-18.
based on reasonable classification and the provision of Section 129 of the Transfer of Property
Act exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the
Constitution.36

36
Legalblog.in. (2019). Gift under Muslim Law : The Concept. [online] Available at:
http://www.legalblog.in/2011/05/gift-under-muslim-law-concept.html [Accessed 3 Aug. 2019].
 CONCLUSION

It can be concluded that registration of Hiba is not mandatory for the muslims as Section 129 of
The Transfer of Property Act very clearly carves out an exception in regards of the same. Also
the question of whether it is constitutionally valid to give special privilege under section 129 has
been put to rest as the court held that the same was based on the concept of reasonable
classification and hence valid.

From the point of view of the author it can be said that as there are differences in regards to
culture and practices of the Muhammadans and other religions , Section 129 stand true to Article
14 as it is based on reasonable classification.

A Muhammadan is permitted to make a written or oral gift in accordance with the rule of
Muhammadan law pertaining to gifts. An oral gift may be accompanied by a document recording
such transaction. In addition, the document or instrument making the gift is not required to be
registered however this would depend on the facts and circumstances of each case.