The Idea Of Reward Below Muhammadan Legislation And Its Registration – Actual Property and Building

Real Estate Comparative Guide - Real Estate and Construction


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INTRODUCTION

Not too long ago, the Authorities of Maharashtra made an announcement
which reiterated the place underneath Muhammadan regulation {that a}
Muhammadan could present immovable property with out registration of such
present. The present could also be made in writing or orally. If such present is
oral, then it ought to fulfill the important elements of
Muhammadan regulation. As well as, stamp obligation shall not be payable with
respect to present of immovable property by a Muhammadan.

It’s pertinent to notice that the registration of an instrument
of present of immovable property is obligatory as per the provisions
of the Switch of Property Act, 1882 (“TP
Act
“) and the Registration Act, 1908
(“Registration Act“). Nevertheless, the rule
underneath Muhammadan regulation pertaining to present is an exception to the
normal regulation.

POSITION UNDER THE TRANSFER OF PROPERTY ACT, 1882

The overall regulation governing present of movable and/ or immovable
property is supplied within the TP Act. Part 122 of the TP Act
defines Reward’ as a switch of sure
present movable or immovable property made voluntarily and with out
consideration, by one individual, known as the donor, to a different known as
donee, and accepted by or on behalf of the donee. Additional, Part
123 (Switch how effected) of the TP Act gives that an
instrument of present of immovable property should be registered and
signed by or on behalf of the donor and attested by at the least two
witnesses.

Nevertheless, it’s fascinating to notice that Part 129 (Saving
of donations mortis causa and Muhammada
n regulation) of the
TP Act particularly lays down that the provisions of Chapter VII
(Of Items) of the TP Act should not relevant to items of
movable property made in contemplation of loss of life and that such
provisions of the TP Act haven’t any impact on any rule of Muhammadan
regulation. Accordingly, by advantage of Part 129, Muhammadans are
exempted from the provisions pertaining to present as laid down within the
TP Act.

POSITION UNDER THE REGISTRATION ACT, 1908

Part 17(1)(a) of the Registration Act lays down that an
instrument of present of immovable property should be compulsorily
registered no matter its worth. With a view to impact
registration, the doc should be executed i.e. signed by the
events to the doc.

As a normal rule, each, the TP Act and the Registration Act
mandate that the doc/instrument pertaining to present of
immovable property should be registered. Part 49 (Impact of
non-registration of paperwork required to be registered
) of
the Registration Act lays down the impact of non-registration of
paperwork/devices which can be compulsorily required to be
registered in accordance with Part 17(1) (Paperwork of which
registration is obligatory
) of the Registration Act.

Typically, an unregistered instrument of present of immovable
property doesn’t possess any evidentiary worth of such present.
Nevertheless, the provisions of the Registration Act learn in conjunction
with the ideas of Muhammadan regulation and Part 129 of the TP Act
present an exception to the final rule of registration.

POSITION UNDER THE MUHAMMADAN LAW

The time period ‘Hiba’1 means present underneath Muhammadan
regulation. It’s a switch of property made forthwith, and never for
consideration, by one individual to a different and accepted by or on
behalf of that different individual.

The present of immovable or movable property needn’t be in writing
underneath Muhammadan regulation. A Muhammadan of sound thoughts and never being a
minor is at liberty to make an oral present in respect of immovable or
movable property in favour of a donee, supplied such oral present is
made within the presence of witnesses or by a public declaration so
that it’s indeniable that the donor has certainly gifted the
property to the donee and has put such donee in possession of that
property.

The Privy Council in Mohammad Abdul Ghani and Anr.
v. Fakhr Jahan Begam and Ors.
2, utilized
the next necessities for a sound hiba or present as laid down
underneath Muhammadan regulation –

  1. manifestation of the want to give on
    the a part of the donor;

  2. the acceptance of the donee, both
    implied or expressly; and

  3. the taking of the possession of the
    subject material of the present by the donee, both truly or
    constructively.

Therefore, a present is full, legitimate and irrevocable upon compliance
with all of the aforesaid situations.

If both of the abovementioned situations stays unfulfilled
then such present is incomplete and therefore not legitimate. As an example, an
instrument of present of immovable property could also be registered in
accordance with the relevant regulation though the possession isn’t
obtained by the donee, then, in such case, that present is void as per
Muhammadan regulation. Precise or constructive supply of possession is
important to make the present legitimate. Registration isn’t a
pre-requisite for validity of present underneath the Muhammadan regulation.

SUPREME COURT OF INDIA ON REGISTRATION OF GIFTS UNDER
MUHAMMADAN LAW

Within the matter of Hafeeza Bibi and Ors. v. Farid
(Useless) by L.Rs. and Ors.
3, the judgement
and order dated thirteenth September 2004 handed by the Excessive Courtroom of
Andhra Pradesh holding an unregistered present deed to be invalid, was
challenged. The principle problem earlier than the apex court docket was whether or not the
hiba (present deed) dated fifth February 1968 was true, legitimate and
binding. Within the current case, one Shaikh Dawood, the donor had
executed the mentioned present deed in favour of his son Mohammed Yakub,
the donee. The donee had given his acceptance to the present and the
donor handed over the properties talked about within the present deed to the
donee. The trial court docket held the mentioned present deed to be legitimate and
binding since all of the three requisites of a sound present as supplied
underneath the Muhammadan regulation had been fulfilled. Nevertheless, in enchantment,
the Andhra Pradesh Excessive Courtroom put aside the judgment of the trial
court docket and held that the present was not legitimate as a consequence of lack of
registration.

The apex court docket referred to the related provisions of regulation as
properly as to the judgments of assorted Excessive Courts holding differing
views on the difficulty of registration of a doc/ instrument of
present when such present is made by a Muhammadan.

The apex court docket whereas recognising and restating the three
necessities of a present underneath Muhammadan Legislation i.e. (i) declaration of
the present by the donor; (2) acceptance of the present by the donee and
(3) supply of possession said that the foundations of Muhammadan Legislation
don’t make writing important to the validity of a present. An oral
present fulfilling all of the three necessities makes the present full
and irrevocable.

The apex court docket noticed: “In our opinion, merely
as a result of the present is diminished to writing by a Mohammadan as an alternative of
it having been made orally, such writing doesn’t develop into a proper
doc or instrument of present. When a present could possibly be made by
Mohammadan orally, its nature and character isn’t modified as a result of
of it having been made by a written doc. What’s vital for
a sound present underneath Mohammadan Legislation is that three important
requisites should be fulfilled. The shape is immaterial. If all of the
three important requisites are happy constituting legitimate present,
the transaction of present wouldn’t be rendered invalid as a result 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 isn’t required to be registered however when the writing is
contemporaneous with the making of the present, it should be registered,
is inappropriate and doesn’t appear to us to be in conformity with
the rule of items in Mohammadan Legislation
.”

It has been settled that if all of the three necessities
constituting a sound present underneath Muhammadan Legislation are happy, the
transaction of present wouldn’t be rendered invalid merely as a result of it
is in writing however the identical isn’t registered. Part 129 of the TP
Act preserves the rule of Muhammadan regulation and excludes the
applicability of Part 123 of the TP Act to a present of an
immovable property by a Muhammadan. The court docket additional said:
29. … In different phrases, it’s not the requirement that in
all instances the place the present deed is contemporaneous to the making of
the present then such deed should be registered underneath Part 17 of the
Registration Act. Every case would rely by itself
details
.”

BOMBAY HIGH COURT (NAGPUR BENCH) ON LEVY OF STAMP DUTY AND
REGISTRATION OF GIFTS UNDER MUHAMMADAN LAW

Within the matter of Mohammed Yusuf s/o Mohammed Ibrahim
v. State of Maharashtra and Ors.
4, the
stamp obligation demand discover of Respondent No. 3 i.e., Sub-Registrar
and Stamp Collector, C/o Collectorate, Bhandara was challenged. The
Bombay Excessive Courtroom held that stamp obligation demand as raised by the
impugned stamp obligation discover was unrecoverable because the stamp obligation
on oral present made by a Muhammadan of sound thoughts in favour of the
donee can’t be levied. While reiterating the three requisites of
a sound oral present as per Muhammadan regulation which make the present
full and irrevocable, the Excessive Courtroom said that the present or
instrument of present doesn’t require registration in every case. It
was additional said that Sections 122 to 129 of TP Act should not
relevant to a present by a Muhammadan and there’s no provision for
levying stamp obligation on an oral present made by any Muhammadan of sound
thoughts, in favour of the donee.

CONCLUSION

Upon an evaluation of the varied judgments of the Indian courts,
the statutes and the related ideas of Muhammadan regulation, it could actually
be concluded {that a} Muhammadan is permitted to make a written or
oral present in accordance with the rule of Muhammadan regulation pertaining
to items. An oral present could also be accompanied by a doc recording
such transaction. As well as, the doc or instrument making
the present isn’t required to be registered nevertheless this could rely
on the details and circumstances of every case.

Footnotes

1. For the sake of readability, it’s important to
distinguish between hiba and hib-bil-iwaz. The latter is a present in
return for consideration akin to sale and the worth of the
immovable property is above Rs 100/- then in such case the switch
should be effected by a registered instrument of present of immovable
property.

2. (1922) 49 I.A. 195

3. AIR 2011 SC 1695

4. 2015 (1) BomCR 740

The content material of this text is meant to supply a normal
information to the subject material. Specialist recommendation needs to be sought
about your particular circumstances.

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