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Judgment
T.R. Ravi, J
Petitioner owns 3.24 ares of land in Old Sy.No.105/5 of Ottapalam-II Village. She is residing in the house situated in the said property. The property originally belonged to the petitioner’s maternal aunt Smt.Khadeeja, who got jenmam right over the property as per sale deed No.3191/1992 of SRO, Ottappalam. Smt.Khadeeja orally gifted the property to the petitioner on 17.1.2020 and entrusted the original sale deed in her favour to the petitioner. The petitioner thereby accepted the gift and took exclusive possession. Smt.Khadeeja thereafter executed Ext.P2 gift deed on 6.2.2020 in favour of the petitioner. On 9.2.2021, Khadeeja was murdered by the petitioner’s sister and her son. On 12.9.2021, the petitioner submitted Ext.P3 application for transfer of registry and for remitting the basic tax. The application was rejected as per Ext.P4 by the 2nd respondent, stating that the gift deed was unregistered. Hence this writ petition.
The Counsel for the petitioner contends that Mohammedan Law recognises an oral gift, if the three essential characteristics (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee and (3) delivery of possession, are satisfied. The Mohammedan law does not require a gift to be in writing. Reliance is placed on the decision of the Hon’ble Supreme Court in Hafeeza Bibi & Ors. v. Shaikh Farid (Dead) by LRs. & Ors. [(2011)5 SCC 654].
Heard both sides.
Rule 3 of The Transfer of Registry Rules provides for mutation in cases of voluntary transfer of title. Section 122 of the Transfer of Property Act (hereinafter referred to as the Act) defines the word “gift” and Section 123 of the Act requires that an instrument of gift of immovable property must be signed by or on behalf of the donor and attested by at least two witnesses and registered. However, as far as Mohammedan gifts are contained, Section 129 of the Act specifically provides that the provisions relating to gifts shall not affect any rule of Mohammedan law. At the same time Section 17(1)(a) of the Registration Act, requires that an instrument of gift of immovable property must be compulsorily registered, regardless of its value.
In Hafeeza Bibi (supra), the Hon’ble Supreme Court considered Sections 123 and 129 of the Act and Section 17 of the Registration Act and the case law on the subject and held that a Mohammedan gift of immovable property could be oral, and that even if it is reduced to writing, the said document does not become the formal document or instrument of gift, which requires registration. It was held that the form is immaterial as long as the three essential requirements are satisfied. It is also held that the transaction of gift would not be rendered invalid merely because it has been written on a plain piece of paper.
In the case on hand, the three essential requirements have been satisfied. Ext.P2 which is an unregistered document executed by deceased Khadeeja clearly states about the oral gift of 17.1.2020 in the presence of witnesses. Along with the fact that the original title deed of deceased Khadeeja is also handed over to the petitioner, there can be no dispute regarding possession of the gifted property. Thus by declaration of the gift by the donor, the acceptance of the gift by the donee, and by the delivery of possession, the gift is complete and irrevocable.
In the result, the writ petition is allowed. Ext.P4 order is set aside. There will be a direction to the respondent to consider Ext.P3 application and effect the transfer of registry in favor of the petitioner and allot thandaper account number to the property covered by Ext.P1, at the earliest, at any rate within one month from the date of receipt of a certified copy of this judgment. The 2nd respondent is directed to accept the basic tax for the property, after the mutation is effected, as and when the amount is tendered by the petitioner.