Supreme Court: For Valid Oral Gift (Hiba) of immovable property under Muslim Law, Public Possession Must Be Proved; Absence Of Mutation Raises Doubt

 The precedents are that to constitute a valid conveyance through an oral gift, the three contemporaneous conditions of declaration by donor, acceptance by donee, possession by donee and to continue to establish possession through contemporaneous evidence to show that Hiba is acted upon. The Hiba is not used as a surprise instrument and cannot sprout into a transfer of property as per the convenience of a party. Moreover, to keep in line with the sanctity of Hiba, it is in the interest of the donor, donee and a third person interested in the subject matter that Hiba is acted upon by completing all three essential requirements in public knowledge rather than in secrecy. The Courts appreciate fulfilment of contemporaneous requirements and possession through evidence while recognising conveyance through an oral gift. Possession is one of the important conditions to constitute a valid oral gift. The courts presume possession of a party from the circumstances pleaded and proved. In the case at hand, there is a consistent revenue record, Ex. P-2, Ex. P-3, Ex. P-4, Ex. P-5 and Exs. D-9 to D-43 showing in the revenue records that the names of Defendants are entered in ROR and their predecessors in interest, both in the title and possession columns. The Plaintiff places oral evidence, and the circumstances summed up above do not inspire confidence for accepting that there has been a valid oral gift in any capacity, i.e., as a daughter or otherwise, in favour of Plaintiff. The impugned judgments presume possession in favour of Plaintiff on ipse dixit statements, and the courts below fell in grave error in not appreciating the long lapse of years and continued silence of Plaintiff vis-à-vis the Suit Property. The next limb is whether Ex. P-8 satisfies as a Memorandum recording the past transaction and would come to the aid of the Plaintiff, at least to the extent of 10 acres said to have been given. Ex. P-8 bears L T I of

Khadijabee. The plaint in OS No. 68 of 1971 is marked as D-44. Khadijabee has signed the plaint in Urdu, and during cross-examination, PW2 specifically stated that Khadijabee was signing, not affixing her L T I. This inconsistency remained unexplained. Further, under Ex. P-8, in clause 5, which reads that the donee shall hereafter peacefully hold and possess and enjoy the land property with all its inclusions without any interference, claim or demand whatsoever from the donor. Ex. P-8 belies the possession and transfer said to have been made on 05.12.1988. From the above, except the self-serving and oral evidence from interested witnesses of Plaintiff, there is no evidence on possession, whether actual or constructive, having been delivered to Plaintiff. On the other hand, the Exhibits relied on by the Plaintiff, coupled with D-8 to D-43, do not enable, presuming that the Plaintiff continued to be in possession of 10 acres of the suit schedule. The High Court was liberal in explaining away the minor variations, if any, in Ex. P-8 do not adversely affect the Plaintiff’s claim. With respect, we are unable to subscribe to the said view. Consequently, the claim of the Plaintiff under Hiba and Ex. P-8, for want of evidence on possession, fails, and the point is answered in favour of the Defendants. {Para 39}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 12512 of 2025 (Arising out of SLP (C) No. 16996 of 2022)

Decided On: 07.10.2025

Dharmrao Sharanappa Shabadi and Ors. Vs. Syeda Arifa Parveen

Hon'ble Judges/Coram:

Ahsanuddin Amanullah and S.V. Bhatti, JJ.

Author: S.V. Bhatti, J.

Citation:  2025 INSC 1187,MANU/SC/1384/2025.

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Allahabad HC: Oral gift deed under Muslim Law reduced in to writing which is not registered document can not be subjected to S. 47-A of Stamp Act

It is nobodies case that the hiba/gift deed was presented for registration. Once this fact is admitted by respondents that gift deed/hiba was not presented for registration, then proceedings under Section 47(A) of Indian Stamp Act cannot be pressed to service. Further, Section 47-A of the Act can only be applicable when any instrument/document is presented for registration and not otherwise. If the auhorities were of the view that hiba/git deed was required for payment of stamp duty, then the proceedings u/S 33 of the Stamp Act should have been initiated and not u/s 47-A of the Act. {Para 12}

13. This Court on various occasions has held that the proceedings under Section 47-A of the Stamp Act cannot be initiated for unregistered documents.

 In the High Court of Allahabad

(Before Piyush Agrawal, J.)

Writ - C No. - 41137 of 2010

Sahas Degree College,Vs State of U.P., 

Decided on August 8, 2024

Citation: 2024 SCC OnLine All 4199.

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Whether HIBA should be registered in India?

  Yes, Hiba can be registered in India. Hiba refers to the act of transferring property or assets as a gift, primarily within Muslim personal law. To ensure the validity and legality of the gift, it is often recommended to register the Hiba deed, which provides a legal record of the gift transaction. Registering the Hiba deed serves as evidence of the transfer of property or assets and can help prevent disputes or challenges to the gift in the future.

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Important Notes on Muslim law

1) Notes on Testamentary Succession under Muslim law

https://www.lawweb.in/2020/04/notes-on-testamentary-succession-under.html

2) Intestate Succession under Muslim law

https://www.lawweb.in/2020/05/intestate-succession-under-muslim-law.html

3) Difference between Marz-ul-Maut and Donatio mortis causa

https://www.lawweb.in/2020/04/difference-between-marz-ul-maut-and.html

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Whether the court should exhibit gift deed (Hiba ) executed by muslim person even if it is not registered?

Under the provisions of Section 149 of the Mullas Principles of Mohammedan Law, there are only three essential conditions of a valid gift and those are 1] declaration of gift by the donor, 2] an acceptance of the gift, express or implied, by or on behalf of the donee and 3] delivery of possession of the subject of the gift by the donor to the donee. . It is stated in Section 150 that if these conditions are complied with, the gift is complete. In fact, Sub-section 3 of the Section 150 provides that if it is proved by oral evidence that gift was complete as required by law, it is immaterial that the donor has also executed the deed of gift, but the deed had not been registered as required by the Registration Act, Section 17(a). Thus in view of the provisions of Section 150(3) of the Mullas Principles of Mohamedan Law, it is clear that a gift made by the Mohamedan donor in writing is not compulsorily registrable. The trial court ought to have exhibited the document dated 11.4.1966 in the facts and circumstances of the case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1843/2009

Decided On: 10.11.2009

 Abdul Rahim Vs. Qayyum and Ors.

Hon'ble Judges/Coram:

V.A. Naik, J.

Citation: 2010(1) ALLMR 328,2010(1) MHLJ 343,

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Notes on Gifts(Hiba) under Muslim law

A Hiba or gift under muslim law is transfer of property,made immediately,and without any exchange by one person to another,and accepted by or on behalf of latter. It is thus conferring of property without consideration.

ESSENTIAL OF VALID GIFT

1) The donor must be competent- The donor must have capacity to make a gift that is he must be a major and of sound mind.The donor's intention must not be dishonest, as where a gift is made with intent to defraud creditors.

2) Declaration and acceptance-Acceptance can be express or implied.

3) Delivery of possession of  property is mandatory.

There are four kinds of gifts under muslim law:

1) Sadaquah:- Where the object of the donor is acquire merit in the eyes of lord and a recompense in the next world,the gift is called sadaquah. It is gift with religious motive.It can not be revoked. Sadaquah need not be expressly accepted.

2) Hiba-bil-iwaz:- It is a gift for consideration. It resembles a sale in that (a) transfer of title is complete without delivery of possession,and (b) all the incidents of sale attach to it .

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Basic principles for determining Whether a person is necessary party to proceeding

 It is a settled principle of law regarding impleadment that though the plaintiff is dominus litis; however, for determining whether a person is a necessary party; two tests are to be satisfied, viz. (i) there must be a right to some relief against such party in respect of manner in the proceeding in question; and (ii) it should be possible to pass an effective decree in the absence of such party [Please see Deputy Commissioner v. Ramkrishna, MANU/SC/0112/1953 : AIR 1953 SC 521].

14. Even the principle of law laid down by the decisions relied on by the petitioner is in consonance with the law laid down in Deputy Commissioner (supra).

15. The impugned order when adjudged on the basis of above analysis cannot be given the stamp of approval, as it takes into consideration only one of the reliefs sought i.e. the declaration that Will in question is null and void and had glossed over the relief of declaration of title on the basis of Memorandum of Oral Hiba.

16. Though a reliance is placed by respondent No. 1 in the decision rendered by the Apex Court in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, MANU/SC/0493/1992 : (1992) 2 SCC 524 wherein it is held-

"14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. 

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

W.P. No. 13246 of 2013

Decided On: 17.08.2016

Sharmila Tagore and Ors.

Vs.

Saidullah Khan and Ors.

Hon'ble Judges/Coram:

Sanjay Yadav, J.

Citation: AIR 2017(NOC) 37 MP

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Basic concept of gift under muslim law

HIBA/GIFT

39. "A hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter. Every Mahomedan of sound mind and not a minor may dispose of his property by gift. Writing is not essential to the validity of a gift either of moveable or of immovable property. 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.

40. The three essentials of a gift under Mohammedan law are as under: There should be:--

"(1) a declaration of gift by the donor
(2) an acceptance of the gift, express or implied, by or on behalf of the donee, and
(3) 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.

41. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible. Registration of a deed of gift does not cure the want of delivery of possession under Mohammedan Law. There would be gift of immovable property by a husband to the wife or by wife to the husband.

HIBA-BIL-IWAZ

42. Under Mahomedan Law a "hiba-bil-iwaz", as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale, and has all the incidents of a contract of sale. Accordingly possession is not required to complete the transfer as it is in the case of a hiba, and an undivided, share (mushaa) in property capable of division may be lawfully transferred by it, though this cannot be done in the case of a hiba. Two conditions, however, must concur to make the transaction valid, namely, (1) actual payment of consideration (iwaz) on the part of the donee, and (2) a bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. The adequacy of consideration is not material; but whatever its amount, it must be actually and bona fide paid. Such a transaction is called the hiba-bil-iwaz of India as distinguished from "true" hiba-bil-iwaz. Therefore, hiba-bil-iwaz means, literally, a gift for an exchange. It is of two kinds, one being the true hiba-bil-iwaz, that is, hiba-bil-iwaz as defined by the older jurists, and the other hiba-bil-iwaz of India. In the former there are two acts, namely, (1) the hiba, which is followed by (2) an independent and uncovenanted iwaz (return-gift, that is, an iwaz not stipulated for at the time of hiba. In the latter there is only one act, the iwaz or exchange being involved in the contract of gift as its direct consideration. In the true hiba-bil-iwaz, the hiba and iwaz, are both governed by the law of gifts. There must be delivery of possession both of the hiba and iwaz, and they are both subject to the doctrine of mushaa. The transaction consists of two distinct acts of donation between two persons each of whom is alternately the donor of one gift and the donee of the other.

43. In one of the judgments relied upon by the learned counsel reported in MANU/BH/0022/1991 : AIR 1991 Patna 183 (Mosst. Saimunissa V. S.K. Mohiuddin and Others) following the judgment in MANU/BH/0162/1947 : AIR 1949 Patna 237:26 Pat 561, it is held as follows:--

"One of the essential ingredients of a gift is voluntary transfer of a property by one person in favour of another without any consideration. A dower debt being a debt payable by husband to his wife, a gift in lieu of dower debt cannot be held to be valid, inasmuch as, repayment of a dower debt being a consideration, no property can be transferred by way of a gift in lieu thereof"

In another decision reported in MANU/TN/0159/1974 : AIR 1974 Madras 54 (V 61 C 19) in the case of Amina Bi and others V. Khamurunnissa, it is held as follows:--

7. The learned counsel for the appellants, however, contends that the oral gift as stated in Ex. A-2 is inadmissible in evidence. Section 129 of the Transfer of Property Act saves Mohammedan gifts from the application of the provisions of Chapter VII of the Transfer of Property Act. The result is that the oral gift made by Mahommed Jaffar in favour of his wife Fathima Bi in lieu of her dower debt is valid."

44. A full Bench of the Allahabad High Court in the case of 'Ghulam Abbas v. MT. Razia Begum and Others' reported in MANU/UP/0295/1950 : AIR 1951 Allahabad 86, dealing with various types of 'gifts' under the Mohammedan Law at paragraphs 10 to 17 has held as under:--

"10. The gifts under the Mahommedan Law may be classified under three heads:

"(1) A hiba, pure and simple;
(2) A hiba-bil-ewaz (a grant or gift for a consideration) which is more in the nature of an exchange than a gift; and
(3) A hiba ba-shart-ul-ewaz, or a grant made on the condition that the donee or transferee should pay to the donor at some future time or periodically some determinate thing in return for the grant." (Syed Ameer Ali's Mahommedan Law, Vol. I, p. 34, 4th Edn., 1912).

11. In Durr-ul-Mukhtar, a hiba, or gift, pure and simple, is defined as "the transfer of the right of property in the substance?-(tamlik-ul-ain) by one person to another without consideration (ewaz) but the absence of consideration is not a condition in it."
12. Syed Ameer Ali, in his commentary on Mahommedan Law, at p. 40, has amplified the definition in these terms:

"In other words a hiba is a voluntary gift without consideration of property or the substance of a thing by one person to another so as constitute the donee, the proprietor of the subject-matter of the gift. It requires for its validity three conditions: (a) a manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly; and (e) the taking possession of the subject matter of the gift by the donee either actually or constructively."

13. Admittedly, the transfer in the presents case was made bil-ewaz-den-mehr (in lieu of dower); consequently, it cannot be regarded as a voluntary gift without consideration, such as has been defined above. It has, however, been argued on behalf of the plaintiff-respondent that the transfer is a combination of gifts, viz., a gift of immoveable property by the husband in favour of his wife and another gift of dower-debt by the wife to the husband, either of which could be made orally.
14. It is, however, not possible to treat the transaction as a combination of gifts. Obviously, it was a single transaction-a transfer of property by the husband in favour of the wife in consideration of the latter relinquishing an ascertained amount-Rs. 2500 to be exact - out of the amount of dower-debt due to her. As owner of the property, the husband was entitled to transfer, and admittedly transferred, the same to his wife. Such a transfer in whole or in part satisfaction of a debt is recognised by law and is not uncommon. The transfer as well as the liquidation of dower debt to the extent of Rs. 2,500 took place simultaneously in one and the same transaction; the two things were so interconnected that one could not stand without the other. Consequently, the argument that the husband made a gift of property and the wife made a gift of a portion of dower-debt is unsound. The transfer in question is, therefore, not a combination of gifts.
15. Under the Mahommedan Law, writing is not essential to the validity of a gift, either of movable property or of immovable property, which is complete and valid on proof of a declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession over the subject of the gift by the donor to the donee; but whether a gift for considerations (hiba-bil-ewaz) can be made orally depends upon the answer to the question whether it does or does not amount to a sale, as defined in Section 54, T P. Act.
16. The transfer in the present case not being a hiba or gift pure and simple or a combination of such gifts, it has to be determined whether it is a hiba-bil-ewaz, a grant or gift for consideration, recognised by the Mahommedan Law, and also whether it amounts to a "sale" within the meaning of the term as defined in Section 54, T P. Act. Syed Ameer Ali has, in his commentary on Mahommedan Law, at p. 158, thus explained ewaz or consideration and the hiba-bil-ewaz or gifts for consideration in the earlier and modern times:

"According to the original conception, which in itself was a development of the earlier rules, 'ewaz' or consideration was of two kinds; one which was subsequent to the contract (of gift), the other which was conditioned in it. (Fatwai Alamgiri, Vol. 4, p. 549). In other words, in the first case the consideration was delivered to the donor after his gift, and the transaction was treated as a case of mutual gift. There was no stipulation regarding the giving of ewaz, but the moment it was received by the donor his right of revocation dropped.
This evidently was the earliest form of a gift for a consideration. The hiba-bil-ewaz of later times is clearly a development of this kind of gift.
In the other kind, the consideration was expressly stipulated in the contract, and when once it was received the transaction acquired the legal character of a sale. The modern hiba-ba-shart-ul-ewaz has unquestionably sprung from the above."

17. At p. 162, the learned author has further observed:

"In all these cases the consideration is not a part of the contract. And the rules stated above do not, therefore, apply to what in modem times is called a hiba-bil-ewaz, which is a transaction of quite a different nature, and partakes to a certain extent of the second kind of ewaz mentioned in the Fatwai Alamgiri, viz., where it is stipulated in the contract. In this kind of hiba-bil-ewaz the consideration directly opposed to the object of the gift both being in essence; there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction. A hiba-bil-ewaz, therefore, is a sale in all its legal incidents. In sale, mutual seisin is not requisite to render the contract valid and the terms in which a contract of this kind is entered into imply, 'that the articles opposed to each other are present,' and that there is no danger of either party suffering from the other's fraud. 'I have given you this for that' implies that the consideration is present, and that the person will take care to receive it before parting with his property, and the law therefore annexes to it the quality of a sale both with regard to the condition and the effect."

The true nature of a Hiba-bil-iwaz is fully described in Chapter VI, Book VIII of Baillie's Digest of Muhammadan Law, which is only an abbreviated reproduction of Fatwa Alamgiri.

45. From the aforesaid statements of law and Judgments, it is very clear, in Mohammedan Law, there is clear distinction between 'gift' with consideration and 'gift' without consideration.

""Hiba-bil-ewaz" means, literraly, gift for an exchange and it is of two kinds, according as the ewaz or exchange, or not, stipulated for at the time of the gift. In both kinds there are two distinct acts; first, the original gift, and second, the ewaz or exchange. But in the Hiba-bil-ewaz of India, there is only one act, i.e., ewaz, or exchange, being involved in the contract of gift as it is a direct consideration. The transaction which goes by the name of Hiba-bil-ewaz in India is, therefore, in reality not a proper Hiba-bil-ewaz of either kind, but a sale; and has all the incidence of a consequence. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and what is of great importance in India, an undivided share in property capable of division may be lawfully transferred by it, thought that cannot be done by either of the forms of the true Hiba-bil-ewaz. Hibas or gift under the Mohammadan Law is transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter."

46. Section 122 of the Transfer of Property Act, defines 'Gift' as under:

"122. "Gift" defined. "Gift" is 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.
Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void."

47. Therefore the essential ingredients of a gift is a transfer of an immovable property made voluntarily and without consideration. Similarly, Hiba or Gift under Mohammadan Law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. Though Section 123 of the Transfer of Property Act, makes it mandatory that a gift must be effected by a registered instrument, by virtue of Section 129 of the Transfer of Property Act, Chapter VII which deals with gifts under the Transfer of Property Act, does not affect any rule of Mohammdan Law. Therefore, Hiba, the subject matter of whatever value need not be registered as required by Section 123. It can be oral, but it should be adequately proved.

48. The Apex Court in the case of Hafeza Bibi & Ors. v. Shaikh Farid (Dead) by L.Rs & Ors. reported in MANU/SC/0557/2011 : AIR 2011 SC 1695, has clarified and has set at rest the ambiguity on application of Chapter VII to the Muslims. It is held that Section 129 of the Transfer of Property Act, preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of the Transfer of Property Act to a gift of an immovable property by a Mohammadan. A gift without consideration of property or substance of a thing could be oral, it does not require registration once three conditions which are necessary to constitute a valid gift, namely, a declaration of 'gift' by Donor and acceptance of the gift, express or implied by or on behalf of the 'Donee' and delivery of possession of the subject of the gift by Donor to Donee completes the gift.

49. However, Hiba-bil-ewaz in India being a gift for a exchange, it is in the nature of a sale and if the subject matter is immovable property, then, it can only be by a registered instrument as provided under Section 54 of the Transfer of Property Act. Oral gift, in discharge of money owned to the donee being one for consideration, amounts to sale. It is not pure and simple Hiba but Hiba-bil-ewaz and if the property of the value of Rs. 100 or more is involved, it can only be by a registered instrument. Similarly, in the case of gift for consideration such as love and affection, it would be a transfer of ownership in exchange for price paid or promised or part paid and part promised, then it has to be by a registered document.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.F.A. No. 960/2003

Decided On: 31.01.2015

Syed Basheer Malik and Ors.vVs. Jameela Begum and Ors.

Hon'ble Judges/Coram:N. Kumar and B. Veerappa, JJ.

Citation:AIR 2016(NOC)395 KAR

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