Essentials of Oral Gift Under Mohammedan Law

Source: Supreme Court  

Why in News? 

Recently, Justice Ahsanuddin Amanullah and Justice SVN Bhatti reaffirmed that for a valid oral gift (hiba) under Mohammedan Law, three essentials must be met — declaration, acceptance, and delivery of possession — and clarified that such gifts do not require written documentation or registration under Section 129 of the Transfer of Property Act, 1882. 

• The Supreme Court held this in the matter of  Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen (2025).

What was the Background of Dharmrao Sharanappa Shabadi And Others v. Syeda Arifa Parveen (2025) Case ? 

• Khadijabee w/o Syed Abdul Basit obtained a decree on 27th October 1987 declaring her absolute owner of the suit property. The Plaintiff claimed that on 5th December 1988, Khadijabee made an oral gift (Hiba) of 10 acres to her and allegedly executed a Memorandum of Gift Deed (Ex. P-8) on 5th January 1989. However, on 6th June 1989, Khadijabee got the entire 24 acres 28 guntas mutated in her name without mentioning any gift. 
• Khadijabee died on 29th November 1990. Subsequently, on 23rd May 1991, her husband Abdul Basit got the entire property mutated in his name. On 25th February 1995, Abdul Bas (allegedly Abdul Basit) executed five registered sale deeds (Exs. D-3 to D-7) selling the entire property to Defendants 1-5. The Defendants' names were mutated in revenue records. Abdul Basit died on 9th September 2001. 
• After 18 years, on 28th October 2013, the Plaintiff filed suit claiming she was Khadijabee's only daughter, seeking declaration of ownership based on the alleged oral gift and succession rights. She alleged the Defendants attempted forcible dispossession on 14th October 2013. 
• Plaintiff's Case: She claimed validity of oral gift with delivery of possession, status as only daughter and legal heir of Khadijabee and Abdul Basit, and challenged sale deeds as executed by non-existent "Abdul Bas" different from her father "Abdul Basit." 
• Defendants' Case: They denied the Plaintiff was Khadijabee's daughter, stating the couple died issueless. They denied any oral gift or Ex. P-8's authenticity, claimed Abdul Bas and Abdul Basit were the same person, asserted they were bona fide purchasers who verified records, and raised limitation bar as suit was filed 18 years after 1995 sale deeds. 
• The Trial Court disbelieved the oral gift but accepted the Plaintiff as daughter, granting her 3/4th share (18 acres 21 guntas) based on Mohammedan succession law. The High Court reversed the oral gift finding without cross-appeal and enhanced the Plaintiff's entitlement to 10 acres through Hiba plus 3/4th share in remaining 14 acres 28 guntas.

What were the Court’s Observations? 

• The Supreme Court held that the High Court impermissibly enhanced the Plaintiff's entitlement by reversing the Trial Court's rejection of oral gift without any cross-appeal filed by the Plaintiff. Relying on Banarsi v. Ram Phal, the Court observed that no appeal lies against mere findings, only against decrees. Without cross-appeal or cross-objection, the appellate court lacked jurisdiction to substantially modify relief in the Plaintiff's favour. 
• The Court observed that Section 50 of the Evidence Act makes opinion on relationship admissible only as intermediate evidence, not conclusive proof. Both lower courts failed to properly evaluate witnesses PW-2 and PW-3 (close relatives) through the triple test of relevancy, admissibility, and competence. Critical deficiencies included: accepting interested witnesses without testing credibility, ignoring that crucial documents (school records, ration card) were withheld despite witnesses claiming to have seen them, overlooking improvements and inconsistencies in testimony, and engaging in impermissible circular reasoning. The Trial Court also improperly exercised Section 73 powers by comparing signatures on mutually disputed documents. 
• The Court reiterated three essential conditions for valid Hiba: declaration, acceptance, and delivery of possession. Emphasising Mussamut Kamarunnissa Bibi, oral gifts claimed after donor's death require scrutiny with "greatest care, perhaps even with suspicion." Fatal deficiencies existed: Khadijabee mutated the entire property in her name after alleged gift, contradicting claimed transfer; Abdul Basit mutated entire property after Khadijabee's death; the Plaintiff never sought mutation despite opportunities in 1989, 1990, 1995, and 2001; consistent revenue records showed Defendants in possession; and Ex. P-8 used future tense language belying past transfer. Except self-serving oral evidence, no proof of actual or constructive possession existed. Hiba operates with immediate effect and cannot be a surprise instrument. 
• The Court held the suit barred under Articles 58 and 59 of the Limitation Act. The Plaintiff's 23-year inaction despite multiple opportunities constituted negligence attracting constructive notice. The earliest cause of action arose in 1989 and 1995. Lower courts erred in imposing constructive notice on Defendants while ignoring it against Plaintiff regarding public sale deeds and mutations. 
• Conclusion: Finding perversity and grave errors, the Supreme Court dismissed the Plaintiff's suit and allowed the Defendants' appeal. 

What are the Essential Conditions for an Oral Gift (Hiba) Under Mohammedan Law? 

• Essential Conditions: 
  • First Condition - Declaration by Donor: There must be a clear manifestation of the wish to give on the part of the donor. The donor must express a definite intention to make the gift. 
  • Second Condition - Acceptance by Donee: There must be an acceptance of the gift by the donee, which can be either implied or explicit. The donee must accept the gift offered by the donor. 
  • Third Condition - Delivery of Possession: There must be taking of possession of the subject-matter of the gift by the donee, either actually or constructively. This is the most critical and decisive element in validating an oral gift. 
• Nature of Valid Oral Gift: 
  • A gift under Mohammedan Law does not require a written document to be valid. An oral gift that fulfils the three essential requisites is complete and irrevocable. 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. 
• Exemption from Registration: 
  • Section 129 of the Transfer of Property Act, 1882, excludes the rule of Mohammedan Law from the purview of Section 123, which requires registration for gifts of immovable property. Therefore, gifts under Mohammedan Law are exempt from the general requirement of registration applicable to gifts of immovable property. 
  • The distinction that a written deed of gift is not required to be registered if it "recites the factum of a prior gift" but must be registered if the "writing is contemporaneous with the making of the gift" is considered inappropriate and not in conformity with the rule of gifts in Mohammedan Law.