New Delhi: The Supreme Court on Tuesday ruled that a gift (hiba) under Mohammedan Law does not require a written deed to be legally valid, stressing that delivery of possession is the most crucial element for its completion.
A bench of Justices Ahsanuddin Amanullah and S V N Bhatti said an oral gift is valid if it meets three conditions: a clear declaration of intent by the donor, acceptance by the donee, and transfer of possession of the property, either actually or constructively.
“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, adding that reducing such a gift into writing does not alter its nature or make it a formal instrument of transfer.
The court explained that possession could be actual or constructive. Constructive possession, it said, may be shown through overt acts by the donor demonstrating intent to hand over control, such as applying for mutation of the donee’s name in revenue records.
It underlined that evidence of possession, such as collecting rent, holding title or mutation in official records, is critical to establish the validity of an oral gift. “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 observed.
The ruling came in a case concerning partition and possession of agricultural land in Kusnoor village of Karnataka’s Gulbarga district, which had been claimed under an oral gift.