A. Gift And Its Essentials

The term Gift is defined under the Transfer of Property Act, 1882 (TOPA) as the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.[1]
The following are the essentials of a valid gift under TOPA:

1. The Donor shall own the property
2. The ownership must relate to the property that is in existence
3. The transfer shall be made voluntarily
4. The transfer must be without consideration
5. The Donee must be a competent person
6. The Donee must accept the property gifted

B. Provisions For Registration Of Gifts

For a gift to be valid it is mandatory to get the same registered. In case of immoveable property registration is mandatory and in case of moveable property, the transfer can be effected either by registration or by delivery of the property.

The following are the provisions which make gift of immoveable property mandatory-
a. Section 123 of TOPA – Transfer how effected for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.[2]

b. Section 17 of Registration Act, 1908 - Documents of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely (a) instruments of gift of immovable property[3]

C. Hibba - Exception To The Provisions Above

The above concept of gift and the registration under TOPA and The Registration Act, 1908 is not applicable to Mahomedans.[4] Under the Mohammadan Law, a gift (hibba) can be made orally and having a written document of a gift (hibbanama) is not mandatory and this concept is commonly known as ‘Oral Gift’. Essentials of a valid oral gift under the Mohammadan Law are as under:

1. Declaration of the gift by the Donor
2. Acceptance of the gift by the Donee
3. The Donee must accept the gift expressly or impliedly
4. Delivery of the possession

The above mentioned essentials are reiterated by Courts in India. In the Rasheeda Khatoon case, the Court pronounced three essentials to the valid gift under Mohamedan Law as - 1) Declaration of the gift by Donor; 2) Acceptance of gift, expressed or implied, by Donee; 3) delivery of possession by Donor and taking actual or constructive possession of the gifted property[5].

D. Oral Gift Under Mohamedan Law And The Consitution Of India

Only Mahomedans are exempted from the provisions of gift established under TOPA. The said scenario would raise a doubt whether such an exemption violates Article 14 of the Indian Constitution. Article 14 provides for equality before law. The only exemption to this general rules is reasonable differentiation/classification. In order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.

The said exemption to Mahomedans under Section 129 of TOPA is not hit by Article 14. There are fundamental differences between the religion and customs of the Mahomedans as compared to others, and, therefore the rules of Mahomedan law regarding gift are based on reasonable classification.[6]

E. Registration Of Gift Under Mohamedan Law

As the Mahomedan Law recognised Oral Gifts, registration of gifts under Mahomedan Law is not mandatory. There arises a situation where a Mahomedan has made an oral gift and also executed a declaration to that effect to record to the oral gift. A document recording an oral gift would not require registration and would be considered valid provided the essential of oral gift and complied with.[7]

End-Notes:

1. Sec 122 of Transfer of Property Act, 1882
2. Sec 123 of Transfer of Property Act, 1882
3. Sec 17 (1) (a) of The Registration Act, 1908
4. Sec 129 of Transfer of Property Act, 1882
5. Rasheeda Khatoon versus Ashiq Ali (2014) 10 Supreme Court Cases 459
6. Bibi Maniran versus Mohammad Ishaque AIR 1963 Pat 229
7. Rasheeda Khatoon versus Ashiq Ali (2014) 10 Supreme Court Cases 459 Hafeeza bibi & Ors versus Shaikh Farid & Ors.