HAFEEZA BIBI & ORS. versus SHAIKH FARID (DEAD) BY LRS. & ORS

Citation: [2011] 5 S.C.R. 1155 · Decided: 05-05-2011 · Supreme Court of India · Bench: RAJENDRA MAL LODHA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2011] 5 S.C.R. 1155 
HAFEEZA BIBI & ORS. 
v. 
SHAIKH FARID (DEAD) BY LRS. & ORS .. 
(Civil Appeal No. 1714 of 2005) 
MAY 5, 2011 
[R.M. LODHA AND SURINDER SINGH NIJJAR, JJ.] 
MOHAMMADAN LAW: 
A 
B 
Hiba (gift) - Essential requisites of - Held: Are: (1) c 
declaration of the gift by the donor, (2) acceptance of the gift 
by the donee and (3) delivery of possession -The rules of 
Mohammadan Law do not make writing essential to the 
validity of a gift and an oral gift fulfilling all the three essentials 
make the gift complete and irrevocable - However, the donor 
D 
may record the transaction of gift in writing - In the instant 
case, as all the three essential requisites are satisfied by the 
gift deed - The gift in favour of defendant 2 became complete 
and irrevocable -Judgment of High Court set aside and that 
of trial court, holding the gift deed genuine and binding 
between the parties, restored -Transfer of Property Act - ss. 
E 
129 and 123. 
Transfer of Property Act, 1882: 
ss. 123 and 129 -
Deed of gift executed by a 
F 
Mohammedan - HELD: Is not the instrument effecting, 
creating or making the gift - Such writing is not a document 
of title but is a piece of evidence - Section 129 preserves the 
rule of Mohammedan Law and excludes the applicability of 
s. 123 to a gift of an immovable property by a Mohammadan 
G 
- In the instant case, the gift deed is a form of declaration by 
the donor and not an instrument of gift as contemplated uls 
17 of the Registration Act - Registration Act, 1908 - s.17. 
1155 
H 
1156 
SUPREME COURT REPORTS 
[2011) 5 S.C.R. 
A 
In a suit for partition between the parties governed 
by Sunni Law, defendant no. 2 set up the defence that 
his father executed a hiba (gift deed) on 5.2.1968 and 
gifted his properties to him, and put him in possession 
of the hiba properties. The trial court held the hiba as true, 
B valid and binding between the parties, and dismissed the 
suit. In the appeal, before the High Court it was 
contended for the plaintiffs that the gift deed dated 5-2-
1968 being in writing was compulsorily required to be 
registered and stamped and in the absence thereof the 
c gift deed could not be accepted and relied upon. The 
High Court allowed the appeal and remanded the matter 
to the trial court for passing a preliminary decree. 
D 
Allowing the appeal filed by heirs of defendant no.2, 
the Court 
HELD: 1.1. The position is well settled, which has 
been stated and restated time and again, that the three 
essentials of a gift under Mohammadan Law are: (1) 
declaration of the gift by the donor; (2) acceptance of the 
E gift by the donee and (3) delivery of possession. The 
rules of Mohammadan Law do not make writing essential 
to the validity of a gift; and an oral gift fulfilling all the three 
essentials make the gift complete and irrevocable. 
However, the donor may record the transaction of gift in 
F writing. [para 27] [1175-H; 1176-A-B] 
1.2. 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 
G 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 
H requisites are satisfied constituting a valid gift, the 
;. 
' 
HAFEEZA BIBI & ORS v. SHAIKH FARID (DEAD) BY 1157 
-
· LRS. & ORS 
· tr'ai:ts~ction of gift would n9t be rendered invalid becau_$e __ .A. 
-'ff has been written on a' plain piece of paper. The 
distinction that if a written deed· of gift recites the factum 
of prior gift 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 • s 
inappropriate and does not seem to be in conformity with 
the rule of gifts in Mohammadan Law. [para 29] [1176-Hi' 
1177-A-C] 
' 
1.3. A deed of gift executed by a Mohammadan is not _ ., 
the instrument effecting, creating or making the gift but ' C· 
a mere piece of evidence; such writing is not a document' 
of title but is a piece of evidence. [para 32] [1178-A-B] 
Mahboob.Sahab v. Syed Ismail and others 1995 (2) • 
SCR 975 = (1995) 3 SCC 693 - relied _on. 
D-
Nasib Ali v. Wajed Ali AIR ·1 s27 Cal 197; Md: 
Hesilbuddin and others v. Md. 'Hesaruddin and others AIR
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