Hiba or the oral present in Muslim Legal guidelines is legally respectable

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I’ve been requested, for the good thing about the final physique of residents, to provide a written opinion as to the LEGAL VALIDITY of oral present, the requirement if any of registration and stamp accountability, the provisions of the GHMC Act associated, the provisions of Muslim Legal guidelines (Muslim Legal guidelines is often known as Mohammedan Legal guidelines; the expressions will probably be taken as interchangeable) which permit oral transfers, related judgments, and so forth.  The equal is given beneath, as my thought-about LEGAL OPINION.

Numerous statutory provisions and judgments govern the matter in a transparent method.  These are:

Change of Property Act – s.9 : A change of property could also be made with out writing in each case through which a writing shouldn’t be going to be expressly required by legal guidelines.

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Change of property Act – s.129 : Nothing on this chapter… (chapter on “Objects” from secs. 123 to 129 of the T P Act) … shall be deemed to have an effect on any rule of Mohammedan Legal guidelines.

In present present of possession is crucial. Registration wouldn’t remedy defect – AIR 1960 MYSORE 97, AIR 1971 HIMACHAL PRADESH 5

A present by a Mohammedan must alter to the provisions of Mohammedan legal guidelines – AIR 1928 PRIVY COUNCIL 108

Writing shouldn’t be going to be necessary for a sound present inter vivos (i.e., amongst dwelling folks) amongst Muslims, nonetheless there should be present of possession based totally on the character of the property given – AIR 1966 SUPREME COURT 1194

Accepted tips enunciated by the Supreme Court docket docket docket can’t be disregarded on the underside that info are usually not an equal – AIR 1980 KARNATAKA 66,69

Obiter Dicta (i.e., even passing observations) of Supreme Court docket docket docket binding on all courts – AIR 1977 ALLAHABAD 370

Doc of Reward executed by a Mohammedan recording a present made based totally on the three circumstances laid down by Muslim Legal guidelines is merely proof of a accomplished present and as such shouldn’t be going to be compulsorily registerable and is admissible in proof nonetheless secs. 17 and 49 of the Registration Act – AIR 1962 ANDHRA PRADESH 199 (Full Bench)

A mere memorandum of factors already transacted wouldn’t embody the present and subsequently no registration is significant – AIR 1971 CALCUTTA 162

It could be seen that appropriate from 1922 Privy Council (Indian Appeals) to the current, the legal guidelines has held oral objects respectable the place Muslim Legal guidelines tips had been questioned:

The Privy Council in Mohammad Abdul Ghani and Anr. v. Fakhr Jahan Begam and Ors.(1922) 49 Indian Appeals 195 declared the next necessities for a sound hiba or present beneath Muslim legal guidelines – 1) expression on the a part of the donor of must present; 2) acceptance of the donee, every implied or expressly; and three) the taking of possession (every precise/bodily or constructive) of the subject supplies of the present by the donee.

 

All through the matter of Hafeeza Bibi and Ors. v. Farid (Ineffective) by L.Rs. and Ors.AIR 2011 SC 1695, the judgement and order dated thirteenth September 2004 handed by the Excessive Court docket docket docket of Andhra Pradesh holding an unregistered present deed to be invalid, was challenged. The Supreme Court docket docket docket whereas recognising and reiterating the three necessities of a sound present beneath Muhammadan Legal guidelines i.e. (i) declaration of the present by the donor; (2) acceptance of the present by the donee and (3) present of possession acknowledged that the concepts of Muhammadan Legal guidelines don’t make writing very important to the validity of a present. An oral present fulfilling all of the three necessities makes the present full and irrevocable.

The apex courtroom docket noticed: “In our opinion, merely on account of the present is diminished to writing by a Muslim in its place of it having been made orally, such writing wouldn’t develop to be an accurate doc or instrument of present. When a present might very properly be made by Muslim orally, its nature and character shouldn’t be going to be modified ensuing from it having been made by a written doc. What’s necessary for a sound present beneath Muslim Legal guidelines is that three very important requisites should be fulfilled. The shape is immaterial. If all of the three very important requisites are fully completely happy constituting respectable present, the transaction of present wouldn’t be rendered invalid on account of it has been written on a plain piece of paper. The excellence that if a written deed of present recites the factum of prior present then such deed shouldn’t be going to be required to be registered nonetheless when the writing is contemporaneous with the making of the present, it should be registered, is inappropriate and wouldn’t appear to us to be in conformity with the rule of issues in Muslim Legal guidelines.”

Rasheed Khan vs Sheikh Kabir on 24 April, 2017, WP 8777 of 2015 para 12:

As per the foundations laid down in Hafeeza Bibi [Supreme Court, Hafeeza Bibi and others Vs. Shaikh Farid (AIR 2011 SC 1695)] it’s clear like midday day that contained in the Mohammedan Legal guidelines, for the aim of figuring out whether or not or not or not the present was Hiba, three very important substances should be there. These are (i) declaration of present by the donor, (ii) acceptance of the present by the donee and (iii) present of possession.

In para 29 of the judgment in Hafeeza Bibi the Apex Court docket docket docket opined that the excellence that if a written deed of present recites the factum of prior present then such deed shouldn’t be going to be required to be registered nonetheless when the writing is contemporaneous with the making of the present, it should be registered, is inappropriate and wouldn’t appear to us to be in conformity with the rule of issues in Mohammedan Legal guidelines. In para 34 of the judgment of Hafeeza Bibi the Apex Court docket docket docket, inside the knowledge and circumstances of the case, examined and located that the aforesaid three substances of declaration, acceptance and supply might be found.

All through the matter of Mohammed Yusuf s/o Mohammed Ibrahim v. State of Maharashtra and Ors2015 (1) BomCR 740, the stamp accountability demand uncover of Sub-Registrar and Stamp Collector was challenged. The Bombay Excessive Court docket docket docket held that stamp accountability demand as raised by the impugned stamp accountability uncover was unrecoverable since stamp accountability on oral present made by a Muslim in favour of a donee can’t be levied. It was additional acknowledged that there isn’t any such factor as a such issue as a provision for levying stamp accountability on an oral present made by any Muslim.

There are many different judgements, not cited correct proper right here as not necessary.

Para/Sec. 147, PRINCIPLES OF MOHAMMEDAN LAW, Mulla, 18th Mannequin, 2nd Reprint, Web internet web page 154 : WRITING NOT NECESSARY : Writing is NOT very important to the validity of a present every of movable or immovable property.

Para/Sec. 149, PRINCIPLES OF MOHAMMEDAN LAW, Mulla, 18th Mannequin, 2nd Reprint, Web internet web page 157 : THREE ESSENTIALS OF A GIFT: It’s important to the validity of a present that there have to be (1) a declaration of present by the donor; (2) an acceptance of the present, explicit or implied, by or on behalf of the donee; and (3) present of possession of the topic of the present by the donor to the donee as talked about in Sec. 150.  If these circumstances are fully completely happy, the present is full.

Para/Sec. 150, PRINCIPLES OF MOHAMMEDAN LAW, Mulla, 18th Mannequin, 2nd Reprint, Web internet web page 157 : DELIVERY OF POSSESSION : It’s important to the validity of a present that there have to be present of such possession as the topic of the present is inclined.

HYDERABAD MUNICIPAL CORPORATIONS ACT 1956: FORMS:

Variety 1 beneath half 208 of Act, of Uncover of Change when Change Effected by Instrument – remaining column discovering out “If instrument has been registered, the date of registration” exhibiting that the instrument NEED NOT BE NECESSARILY A REGISTERED ONE.

Variety 2 beneath half 208 of Act, of Uncover of Change when Change Effected OTHERWISE THAN BY INSTRUMENT – exhibiting from the very title that there NEED NOT EVEN BE A WRITTEN INSTRUMENT (as contained in the case of Objects by Muslims).

Sec. 207 HMC Act 1956 : Uncover… of change of title : At any time when… title is transfered, the precise explicit particular person whose title is so transfered shall, inside three months from date of execution of instrument of change, or its registration IF or not it’s registered, OR EFFECTING THE TRANSFER IF NO INSTRUMENT BE EXECUTED, give uncover of change to the Commissioner.

Sec. 208 HMC Act 1956 : Uncover to be in Variety 1 or 2 as associated of Schedule F.

The above extracts present that:

A: The HMC Act 1956 does not require that any change be by instrument.

B: The Registration Act does not require a memorandum of a present made orally by a Muslim to be registered.

C: The ORAL present by a Muslim is respectable if there’s (i) an current, (ii) an acceptance, (iii) present of possession.

ALL these circumstances stand fully completely happy contained in the on the spot case.

Attributable to this reality, it’s clear that established place of legal guidelines is that an oral present (hiba) by a Muslim, shouldn’t be going to be required to be in writing and is respectable if its three acknowledged substances are current. If there’s writing made, recording the oral present, such writing wouldn’t require registration.  Furthermore the HMC Act itself, even the place there’s an instrument, permits for circumstances the place the equal is NOT registered, and it permits for transfers with none instrument in the slightest degree.

The title to property thus transferred wouldn’t bear from any vitiating ingredient, and subsequently there isn’t any such factor as a such issue as a bar or impediment contained in the transfers validly effected in accordance with Muslim Legal guidelines together with Change of Property Act being utilized in full, and mutations effected.  The Registration Act, as above, shouldn’t be going to be associated.

The Municipal Agency, itself a creature of the legal guidelines, can not refuse to solely accept these, as that may probably be exhibiting reverse to settled tips enunciated even by the Hon’ble Supreme Court docket docket docket, as furthermore exhibiting in opposition to the statute, together with the very Act and licensed pointers beneath which the Agency itself choices.

All through the context of the precept of estoppel embodied partially 115 Indian Proof Act        (“when one particular explicit particular person has by act omission or declaration deliberately prompted or permitted one totally different particular explicit particular person to consider a component to be true and to behave upon such notion, neither he nor his information in curiosity shall be allowed, in any swimsuit or persevering with between himself and such particular explicit particular person or his representatives in curiosity, from denying the actual fact of that situation”)        subsequently, all folks claiming beneath the donor might be estopped from making any declare in the slightest degree inconsistent with the contents of the aforesaid paperwork.  Thus no particular person can draw back the knowledge set out contained in the mentioned paperwork, and draw back title which can’t be questioned even by the sooner proprietor or any particular explicit particular person claiming beneath him.

Further, half 41, Change of Property Act says      “the place with the consent explicit or implied, of individuals considering immovable property, an individual is the ostensible proprietor of such property and transfers the equal for consideration, the change shall not be voidable on the underside that the transferor was not authorised to make it equipped that the transferee after taking cheap care to search out out that the transferor had energy to make the change, has acted in good religion”.      Thus as a result of the sooner proprietor has expressly indicated transferee to be the proprietor of the property in query, and the mentioned transferee transfers the equal for consideration, in my view such a matter might be one the place the property has marketable title vesting contained in the donee with respectable rights passing to any transferee from him.

Shafeeq R. Mahajir is a Hyderabad-based nationally acknowledged lawyer

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