Karnataka High Court
G. Mujeer Ahmed And Another vs Mohammed Zafrulla on 10 March, 2000
Equivalent citations: AIR2000KANT318, ILR2000KAR1534, 2000(5)KARLJ94, AIR 2000 KARNATAKA 318, (2000) ILR (KANT) 1534, (2000) 5 KANT LJ 94, (2000) 3 CIVLJ 762
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
ORDER
1. Heard the learned Counsel appearing for the petitioners and the learned Counsel appearing for the respondent.
2. The petitioners claim to be the absolute owners of the property mentioned in the petition. The respondent is the tenant in respect of one shop portion on a monthly rental of Rs. 350/-. The petitioner filed HRC Case No. 10225 of 1998 on the file of Additional Small Causes Judge, Bangalore under Section 21(1)(a) of the K.R.C. Act against the respondent on 23-6-1998, The respondent resisted the claim of the petitioner amongst other grounds that the petitioner is not the owner of the property. The matter stood posted for evidence. At that stage, the petitioner sought to mark HIBA declaration deed dated 27-7-1994. The respondent in the usual course raised an objection that the document is inadmissible on the ground that the same was not registered as contemplated under Section 17 of the Registration Act. Therefore, the petitioner filed IA II under Order 13, Rules 4 and 6 read with 151 of the CPC to admit HIBA declaration as exhibit in the above case. The respondent also filed his objections. After hearing both the parties, the Court below dismissed IA II by its Order dated 29-7-1999. Being aggrieved by that order, the petitioners filed this petition.
3. The learned Counsel for the petitioner at the very outset submitted that the documents sought to be marked by the petitioner is only a declaration confirming the oral gift made by his father and therefore, it does not require any registration. In support of this argument, he also placed reliance on a decision of the Supreme Court in the case of Mahaboob Sahab v Syed Ismail-
"5. Under Section 147 of the Principles of Mohammedan Law by Mulla, 19th Edition, edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential, to the validity of a gift, that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor; (ii) acceptance of the gift, express or implied, by or on behalf of the donee; and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking possession of the gift by the donee, actually or constructively, then only gift is complete. Section 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act, a gift to be complete, there should be a declaration of the gift by the donor, acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of the possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift".
From this decision it is clear that to establish oral gift, 3 important ingredients are to be made out. This further clarifies that oral gift is permissible in Mohammedan Law. The gift need not be in writing and consequently need not be registered. But declaration is necessary. In the case on hand, the petitioner produced the declaration to establish the factum of oral gift which was made on 5-1-1994.
4. A similar question arose before the Kerala High Court in M. Rawther v M, Charayil, wherein the Kerala High Court has held:
"A deed of gift executed by a Muslim recording a gift made according to the three conditions laid down by Muslim Law is merely evidence of a completed gift and as such is not compulsorily registrable and is admissible in evidence notwithstanding Sections 17 and 49".
5. With this principle in mind it is now necessary to find out whether under the said document sought to be produced, the property was gifted under this document or it is only a declaration. From the nomenclature of the document it is clear that it is only a declaration for having gifted the property on 27-7-1994 executed by G. Mohammed Ishaq in favour of G. Mujeer Ahmed and Nageena Begum, w/o G. Mujeer Ahmed, reads as follows:
"Now, therefore, this deed or document witnesseth as follows:
1. That on 5-1-1994 the donor declared his intention to give a gift of schedule property and made such declaration and upon the said declaration of gift being made by the donor, there was an acceptance of the gift by the donees on the same day, and delivery of possession of Schedule property was also made on the same date and consequently under Muslim Law the said gift was validated and completed on 5-1-1994".
The other conditions are not necessary for decision of this petition. Therefore, deleted.
6. From this paragraph, it is abundantly clear that the oral gift was completed on 5-1-1994. It has also satisfied the requirement of Muslim Law as observed by their Lordships of Supreme Court in Mahaboob Sahab's case referred to above. Therefore, the document could be understood as only a declaration of the gift made on 5-1-1994 and it is not a document under which the immovable property worth more than Rs. 100/- was gifted requiring to be registered. However, proof of the document is a different aspect which will have to be considered by the Court at the appropriate stage.
7. Under the circumstances, I am of the view that the finding of the Court below that the Gift Deed cannot be marked in view of Sections 17 and 49 of the Registration Act calls for interference.
8. For the foregoing reasons, this petition is allowed and the impugned order is set aside directing the Court below to mark the document subject to proof.