October 2, 2022

Is it compulsory to register Hibanama (gift deed)?

Under s. 147 of the Principles of Mahomedan Law by Mulla, 19th Ed[1]., Edited by Chief Justice M. Hidayatullah, visages that writing is not essential to the validity of a gift either of movable or of immovable property.

Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.

Under s. 149, three essentials to the validity of the gift should be,

(i) a declaration of gift by the donor,

(ii) acceptance of the gift, express or implied, by or on behalf of the donee, and

(iii) delivery of possession of the subject of the gift by the donor to the donee.

If these conditions are complied with, the gift is complete.

Delivery of Possession

Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only gift is complete.

Section 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession.

Is it compulsory to register gift deed?

It would, thus, be clear that though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act; a gift to be complete,

  • there should be a declaration of the gift by the donor,
  • acceptance of the gift,
  • expressed or implied, by or on behalf of the donee, and
  • delivery of possession of the property, the subject-matter of the gift by the donor to the donee.
  • The donee should take delivery of the possession of that property either actually or constructively.

On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift.

Hiba to a Minor

Section 348 of Mulla’s Muhammadan law, defines “minor” to mean ” a person who has not completed the age of eighteen years”.

Section 349 provides that “all application for the appointment of a guardian of the person or property or both of a minor are to be made under the Guardians and Wards Act, 1890”.

Section 359 enumerates the persons entitled, in the order mentioned therein, to be guardian of the property of a minor, namely,

(1) the father;

(2) the executor appointed by the father’s will;

(3) the paternal grandfather, and

(4) the executor appointed by the will of the paternal grandfather.

In Mohammadan Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian.

Section 362 limits the power of the legal guardian to alienate immovable property except in the circumstances enumerated therein. Similarly, the court guardian has no power to mortgage or charge or transfer by sale, gift exchange or otherwise and part with possession of immovable property of the ward or to lease that property except with the previous permission of the court and subject to the conditions mentioned in s.363.

Reference

Mahboob Sahab vs Syed Ismail & Ors: 1995 AIR 1205, 1995 SCC (3) 693


[1] Disnsha Fardunji Mulla’s book on Muhammadan law is considered a weighty authority on Muhammdan law. Indian courts widely refer the book while deciding a case related to muslim law. It is divided in sections but readers have no need to learn it by sections as it is not a statute. However, for the sake of reference, it can be used for convenience.