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Point IV

34. The Plaintiff, for the relief of declaration, sets up two narratives; namely,

(a) that on 05.12.1988, Khadijabee, through an oral gift/Hiba, gifted to Plaintiff 10 acres in the Suit Property. On 05.01.1989, Ex.-P8, a memorandum of gift deed, recording a past oral gift, was executed, and (b) on 09.09.2001, Abdul Basit died, and she remained the only heir and successor to the estate of Khadijabee. As PW1, the Plaintiff deposes that the three elements of a valid Hiba/oral gift were complied with, and the property with an extent of 10 acres stood transferred. The Plaintiff, being the donee, her evidence is appreciated after appreciating other oral and documentary evidence available on record. The Defendants have denied the oral gift and also Ex. P-8, a memorandum of gift deed. As discussed supra, the Trial Court disbelieved the oral gift and also Ex. P-8. The High Court, by introducing a case not stated by the Plaintiff, accepted Hiba.

35. In Abdul Rahim v. Sk. Abdul Zabar,8 Rasheeda Khatoon v. Ashiq Ali,9 Hafeeza Bibi v. Sk. Farid,10 and Mansoor Saheb v. Salima,11 this Court had considered the various aspects underlying the transfer of property through Hiba. Hiba is a disposition between living persons and is fundamentally an act of benevolence. The theological underpinnings trace back to the Prophet Mohammed (PBUH), who is reported to have said, “Exchange gifts among yourselves so that love may increase.” 12

36. The oral gift and the effect of a valid oral gift are reiterated as follows:

36.1 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.

36.2 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.

15 Rasheeda Khatoon (supra).

39. 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. The Courts appreciate fulfilment of contemporaneous requirements and possession through evidence while recognising conveyance through an oral gift. 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. In the case at hand, there is a consistent revenue record, Ex. P-2, Ex. P-3, Ex. P-4, Ex. P-5 and Exs. D-9 to D-43 showing in the revenue records that the names of Defendants are entered in ROR and their predecessors in interest, both in the title and possession columns. The Plaintiff places oral evidence, and the circumstances summed up above do not inspire confidence for accepting that there has been a valid oral gift in any capacity, i.e., as a daughter or otherwise, in favour of Plaintiff. The impugned judgments presume possession in favour of Plaintiff on ipse dixit statements, and the courts below fell in grave error in not appreciating the long lapse of years and continued silence of Plaintiff vis-à-vis the Suit Property. The next limb is whether Ex. P-8 satisfies as a Memorandum recording the past transaction and would come to the aid of the Plaintiff, at least to the extent of 10 acres said to have been given. Ex. P-8 bears L T I of Khadijabee. The plaint in OS No. 68 of 1971 is marked as D-44. Khadijabee has signed the plaint in Urdu, and during cross-examination, PW2 specifically stated that Khadijabee was signing, not affixing her L T I. This inconsistency remained unexplained. Further, under Ex. P-8, in clause 5, which reads that the donee shall hereafter peacefully hold and possess and enjoy the land property with all its inclusions without any interference, claim or demand whatsoever from the donor. Ex. P-8 belies the possession and transfer said to have been made on 05.12.1988. From the above, except the self-serving and oral evidence from interested witnesses of Plaintiff, there is no evidence on possession, whether actual or constructive, having been delivered to Plaintiff. On the other hand, the Exhibits relied on by the Plaintiff, coupled with D-8 to D-43, do not enable, presuming that the Plaintiff continued to be in possession of 10 acres of the suit schedule. 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.