Ghulam Ahmad Sofi vs Mohd.Sidiq Darool & Ors.

M. JalalUdDin, J.

(1) The following proposition of law has been referred to the Full Bench for an authoritative pronouncement.

(1) Whether in view of the provisions of Sections 123 and 129 of the Transfer of Property Act the Moharoamden Law on the question of gifts

stands superseded; and whether it is necessary that there should' be a registered instrument as required by Section 123 and 138 of the Transfer of

Property Act in the case of gifts made under that law.

(2) The facts leading to this reference are as follows :

A suit for partition was brought by Moh'd Sidiq Dareel in the court of SubJudge (Judge Small Causes Court) Srinagar on the ground that he had

purchased 7 shares from Mst Zooni out of the joint property left by Moh'd Sofi her ancestor. It was pleaded on behalf of the first defendant that

Mst Zooni had already relinquished her entire title in favour of her brother Ghulam Ahmad Sofi the defendant therefore she had no title left to

transfer it to the vendee plaintiff. The trial court held that the plea raised by the defendant as regards the oral gift made by Mst Zooni in favour of

her brother was established. It therefore dismissed the suit of the plaintiff. On appeal before the District Judge the legal character of the transaction

of the oral gift was challenged oh behalf of the plaintiff. The learned District Judge discountenanced the proposition of the oral gift. He found that in

order to constitute a valid gift there must be a registered instrument for this purpose. Transfer of property without such an instrument was invalid

He therefore decreed the suit of the plaintiff. A further appeal was taken by Ghulam Ahmad Sofi the defendant before this court. An argument was

advanced that the oral gift was valid in the instant case and that Sections 123 and 129 of the Transfer of Property Act did not supersede the

Mohammaden Law on the subject. As Mst Zooni had already gifted away the suit property in favour of her brother, therefore, there was no title or

interest left in her to transfer it by sale to the petitioner. It was also argued that even Mst Zooni had gifted the property in consideration of some

services that would not make the transaction as Hiba Bil Iwaz or clothe it with sale, but it would nevertheless be a pure and simple gift. This

proposition of law was, however, controverted at the bar. It was argued on be half of the plaintiff respondent that in view of the mandatory

provisions of Sections 123 and 128 and 138 of the Transfer of Property Act no oral gift of property could be validly made. It was a sham

transaction Chapter VII of the Transfer of Property Act superseded the rule of Muslim Law relating to making of gifts. The learned single Judge

who heard the appeal fund the question involved if Considerable importance. He, therefore, referred it to the Full Bench. This its how the case has

come before us.

(3) We have heard the elaborate arguments of the learned counsel fir the parties. Appearing for the appellants Mr. S T. Hussain has submitted that

the position under the Muslim Law in regard to making of gifts is that a gift in order to be valid must be made in accordance with the forms

prescribed by that law. There is necessity that there should be an instrument in writing for this purpose. Gilt under the Muslim Law is complete as

soon as a declaration to this effect, is made by the donor and it is accepted by the donee and its possession is given by the donor to the donee.

When these essential conditions are satisfied the gift becomes complete and valid. Sections 123 and 13S of the Transfer of Property Act have no

application to the gifts made under the Muslim Law. Our attention has also been invited to Section 129 of the Transfer of Property Act which

saves the gifts made under the Muslim Law from the operation of Chapter VII of Transfer of Property Act. He has further canvassed the

proposition that in matters relating to gifts the parties are to be guided by their personal law and this is in accordance with Section 4 of the Sri

Pratap Consolidation of Laws of 1974. In the instant case it is submitted that there was an oral gift made by Mst Zooni in favour of her brother. All

the conditions required by Muslim law relating to making of gift are satisfied, therefore, the gift was valid. The first appellate court, it is submitted

has proceeded on an erroneous assumption of law and has committed legal error in construing the law on the subject. The gift in the present case

was valid notwithstanding the tact that there was no instrument in writing. The transaction partook of a pure and simple gift although it was made in

consideration of some services rendered. The transaction could neither be termed as HibjBilIwaz nor sale.

(4) Mr. J. N. Bhan learned counsel for the respondents has on the other hand seriously disputed the correctness of this proposition of law. He has

argued that section 129 of the Transfer of Property Act clearly made Section 123 applicable to all gifts made by Hindus, Budhists or Muslims

alike. According to section 1.3 a gift could only be made by effecting a registered instrument signed by the donor and attested by atleast two

witnesses. Attention is also invited to Section 1:8 of the Transfer of Property Act according to which no transfer of immovable property is valid

unless and until it is in writing and registered according to the law relating to registration of deeds. Reliance is also placed on Section 17 of the

Jammu and Kashmir Registration Act. It is also submitted that the allegation of transaction of gift was not established on facts and that assuming

that there was any such transaction the same was only relinquishment and not gift. Even it the story of the defendants were accepted the act of Mst

Zoom would not constitute a pure and simple gift but the transaction would be in exchange for something which therefore detracted it from the

attributes of gifts.

(5) In order to appreciate the legal position it is necessary to refer Section 129 of the Transfer of Property Act which reads as under :

Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect, save as provided by

Section 123, any rule of Hindu or Buddhist law or to affect any rule of Mohammaden law.

(6) According to this section nothing in Chapter VII i. e. from Section 123to 128 (inclusive) relating to gifts is to affect any rule of Mohammaden

Law. This section, therefore, clearly saves all gifts made under the Mohammedan Law from the operation of this Chapter. The scheme of the

aforesaid section is that whereas gifts made under Hindu or Budhist law roust be made in accordance with Section 123 of the Transfer of Property

Act, this is not in so far as gifts made under the Mohammaden law are concerned The words ''or to affect any rule of Mohammaden law'' occurring

last of all in section 129 are independent of the proceeding line of the Section. The words ""save as provided by Section 12 any rule of Hindu or

Budhist law"" do not control the last words of the Section. It will be useful to draw a comparison between section 129 as it stood before

amendment of 2003 Bikrami and the words engrafted in the present section. Before Samvat 2003Bikrami the Section was as under

Nothing in this chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect save as provided by

section 123 any rule of Hindu, Mohammedan or Buddhist law.

(7) According to the preamended law sec. 123 affected the mode of making of the gifts under the Hindu; Buddhists and Muslim law alike. In other

words Section 123 abrogated the rule relating to gifts made under Hindu, Muslim and Buddhists laws. That this section was interpreted so appears

from the decision of a Division B neb of this court reported as J&K Law Reporter volume II 2000 Bikrami After 2003 section 129 was

substituted by the present section as reproduced above. It seems that the words ''or to effect any rule of Mohammadan Law"" have been

deliberately substituted in order to exclude the operation of chapter VII in regard to gifts made by persons professing Muslim faith and made under

that law. This has indeed made all the difference in the case of gifts made, under any rule of Mohammedan law and under any other law. Thus if all

the formalities as prescribed by the Mohammadan law relating to making of gifts are satisfied i e. there is a declaration by the donor of his intention

to make a gift, there is acceptance of the gift by the donee and delivery of possession of the property is complete, the gift is valid notwithstanding

the fact that it is made orally without any instrument In this view of mine I am fortified by the observations made in AIR 1934 Oudh 163 at page

165, AIR 1927 Calcutta page 192 AIR 1937 Allahabad page 25, i5 Indian cases page 14, AIR 1936 Allahabad page 600.

(8) A Division Bench of the Oudh Chief Court in 1934 Oudh (Supra) observed as follows :

One of the rules of Mohammadan law is that an oral gift is valid S. 129, T P. Act provides that nothing in Ch. 7 of that Act which relates to gifts

shall be deemed to effect any rule of Mohammadan Law. The gift in question (oral) must therefore be held to be valid unless it can be Created as a

sale under section 54 of the T. P. Act

(9) Again in AIR 1936 Allahabad page 60J (Supra) a Division Bench consisting of Nismat Ullah. and Rachhpal Singh JJ laid down that the courts

in deciding as to whether or not a particular transaction is a gift according to Mohammadan law would look not to the provisions of section 122 of

the Transfer of Property Act but to the rule of Mohammadan law on the point i. e. to say they will consider whether the transaction is a valid gift

according to Mohammadan law, and if it is then it will be treated as a gift section 122 of the Transfer of Property Act notwithstanding.

(10) Suhrawardy J. in AIR 1927 Calcutta (Supra) while dealing with the question relating to an oral gift observed that the essentials of a gift under

the Mohammadan law are a declaration of hiba by the donor, an acceptance, express or implied of the gift by the donee and delivery of possession

of the property according to its nature. A simple gift could only be made by going through the above formalities and no written instrument is

required. A gift under the Mohammadan law in order to be valid must be made in accordance with the forms stated above and if it is evidenced by

writing unless all the essentials forms are observed, it is not valid according to law. That being so a deed of gift executed by a Mohammadan is not

the instrument, effecting, creating or making the gift but a mere piece of evidence and does not require registration under Section 17 of the

Registration Act.

(11) In 35 Indian cases (Supra) Sir Henry Richards Chief Justice Allahabad High Court speaking for the Division Bench ruled that the provisions

of section 123 of the Transfer of Property Act are inapplicable to gifts made by Mohammadans. They are valid according to Mohammadan law.

(12) Again in AIR 1929 Patna (Supra) a Division Bench of the court had an occasion to interpret section 123 of the T. P Act with reference to

gifts made under the Mohammadan law. That was a case where a gift was made by a Muslim to a Hindu Wott J. speaking for the Bench observed

that Rule of Mohammandan law would apply to such a gift. Under that law a person governed by that law could make a valid gift by an oral

transaction perfected by delivery of possession To apply the provisions of Section 123 of the Transfer of Property Act would render invalid a gift

made under Muslim law and have the effect of making the section abrogate a rule of Mohammadan law, inspite of the express provisions of

Section 129 of the Transfer of Property Ace.

(13) In this context it is appropriate to mention here that before the Amending Act XX of 1929 Section 129 of the Indian Transfer of Property Act

had the following clause :

Or shall be deemed to affect any rule of Mohammadan Law or save as provided by Section 123, and rule of Hindu or Budhists law.

(14) After the amendment Section 129 of the Indian Transfer of Property Act stands as under :

Nothing in this chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Mohammadan

Law

(15) From this Section as reproduced above it is clear that nothing in this Chapter applies to gifts made under Mohammadan Law. This is

reinforced by the summary of the decisions given above.

(16) The ratio of the above cited authorities is therefore in favour of the proposition that an oral gift under the Muslim law would not be affected by

Section 123 of the Transfer of Property Act and the gift if it has otherwise all the attributes of a valid gift under the Muslim Law would not become

invalid because there is no instrument in writing and registered: Therefore the answer to the question formulated would be in the negative i. e. that

sections 123 and 129 of the Transfer of Property Act do not supersede the Muslim law on matters relating to making of oral gifts, that it is not

essential that there should be a registered instrument as required by Sections 123 and 138 of the Transfer of Property Act in such cases. But if

there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered

as provided under sec. 17 of the Registration Act. If, however, the making of the gift is an antecedent act and a deed is executed afterwards as

evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create,

make or complete the g f t thereby transferring the ownership of the property from the executant to the person in whose favour it is executed.

(17) The next argument of the plaintiff is with regard to the nature of the transaction, that it was not a gift but only relinquishment and that even if

such a transaction be construed as a gift it would nevertheless be Hiba Bil Fwaz which was tantamount to a sale Our attention has been invited to

the pleadings of the second defendant where he has used the word family arrangement. But this contention in our opinion is devoid of any merit in

as much as such an intention cannot be gathered from the averments used in the written statement. The word family arrangement has been used as

an idiomatic expression. The substance of the defendants' case is that the entire property had been gifted by his sister to him. The issue raised in the

case is also quite clear. The evidence led also speaks of gift. It is the case of the defendant that his sister had gifted the suit property to him in token

of love and affection and also for the fact that he had brought about her marriage. This would not make it a relinquishment nor could this

transaction in my opinion be termed as sale or even HibaBilIwaz but only a pure and simple gift. It is true that the Chief characterise of gift is that it

is a transfer of a right and interest in the property by the donor without consideration But as pointed out by Tyabji in his treatise on Mohammadan

law (40th Edition) that HibaBilIwaz consists of two separate distinct acts i. e of mutual or reciprocal gift of the properties between the two persons

each of whom is deliberately a donor and donee. That indeed is not the case before us. There was no reciprocal or mutual distinct act of donation

on either side. It may be that a person who receives a present in most ii stances feels under social obligation to give gift in, return at a suitable

occasion. That donation may be said to HibaBilIwaz But gift made out of affection or out of regard for services rendered would not make it a

HibaBilIwaz. Justice Mohmud in 881. 11 Allahabad at page' 1 has elaborately explained the implications of HibaBilIwaz distinguishing it from that

of Hiba which is by one of the parties in consideration of illusory return such as love and affection and service rendered and thus a pure and simple

Hiba These observations of Mohmud J were quoted with approval in AIR 1937 Allahabad page 25. These were taken as an authority for the

proposition that a gift in lieu of natural love and affection or services cannot by their nature be the subject of gift. Therefore in view of what has

been stated above transaction in the instant case cannot be termed as HibaBilIwaz but only a pure and simple gift.

(18) There are the legal aspects of the case that we have been called .upon to consider and decide. Having answered the propositions as above

the case will now go to the learned Single Judge for deciding the other questions of facts raised in the appeal.