New Delhi: The Supreme Court on Tuesday said a gift (hiba) under Mohammedan Law does not require a written document to be valid.
The court said there are three essential conditions for an oral gift — a clear manifestation of the wish to give on the part of the donor, an acceptance of the gift by the donee and the taking of possession of the subject-matter of the gift by the donee, either actually or constructively.
A bench of Justices Ahsanuddin Amanullah and S V N Bhatti said an oral gift that fulfils the three essential requisites is complete and irrevocable.
“A gift under Mohammedan Law does not require a written document to be valid. The mere fact that a gift is reduced to writing does not change its nature or character. A written document recording the gift does not become a formal instrument of gift,” the bench said.
The court said delivery of possession is a critical and necessary element for a valid gift.
“It can be actual or constructive. Constructive possession can be demonstrated by overt acts by the donor that show a clear intention to transfer control. For example, the donor applies for the mutation of the donee’s name in the revenue records,” it said.
The apex court said the evidence of acting under the gift (collecting rent, holding title, mutation) is essential to substantiate the claim of possession.
“While Mohammedan Law allows for a gift to be made orally without a written document, the validity of such a gift is contingent on the demonstration of all three essential elements, particularly the delivery of possession.
“The courts will scrutinise ‘contemporaneous’ and ‘continuous’ evidence of the donee’s actions and control over the property to determine if possession was indeed transferred. The lack of evidence (failure to collect rent, donor’s continued control, lack of mutation) will lead to proving that a gift was never completed, regardless of any written declaration,” the bench said.
The top court’s judgment came on a plea relating to the partition and possession of agricultural land at Kusnoor village in Karnataka’s Gulbarga district, which was given under an oral gift (hiba).
