Gifts Under Muslim Law and the Requirement of Registration: an Analysis of Legal Provisions and the Case Law

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Gifts under Muslim Law and the Requirement of Registration: An analysis of Legal Provisions and the Case Law

Faizan I Nazar*

I. Introduction

Registration of some classes of documents is compulsorily required under the various statutes like Transfer of Property Act, Contract Act etc. The (Jammu and Kashmir) Registration Act, Svt 1970 (1922 A.D) is a specific Legislation which under section 17 enumerates the documents which have been compulsorily registered under the Act. The first class of document which is enumerated under clause (a) sub section (1) of section 17 of the Registration Act (hereinafter referred as ‘the Act’) is an ‘instrument of gift of immovable property’. Thus as a general rule gifts relating to immovable property must be registered under the Act. The Act lays no exceptions to this rule as such; however, a repugnancy arises among the Statutes regarding the compulsory registration of the Gifts of immoveable property made by a Muslim. The (Jammu and Kashmir) Transfer of Property Act, Svt 1977( 1920 A.D.) saves under section 129 any rule of Muslim Law relating to gifts thereby exempting such gifts from the requirement of registration under section 123 of the Transfer of Property Act. However, the registration Act, without any exception for Muslim gifts, mandates compulsory registration for all gifts pertaining to immovable property. Given this context the pertinent question arises-whether the Muslim gift of immovable property is compulsorily registrable under section 17 (1) (a) of the Act? The present paper in light of various High Court judgments and the recent Supreme Court Judgment in Hafeeza Bibi’s Case attempts to explore the law relating to the compulsory registration of the Muslim gifts of immovable property.

II. Instruments of Gifts: Definition and the requirement of registration

The word “gift” is not defined in the registration Act but in common parlance it is understood in much the same sense it is defined in sec.122 of The Transfer of Property Act, which reads:

“Gifts” is the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person called donor, to another called the donee and accepted by or on behalf of the donee.

* Independent Legal Researcher and Author.

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.

Sec.123 of the Transfer of property Act requires that the transfer of immovable property by way of gift must be effected by a registered instrument signed by or on behalf of the donor, and attested by atleast two witnesses. Thus, a document by which rights in immovable property are surrendered without any consideration is in effect a ‘deed of gift’ which under sec.17 (1) (a) requires registration. Section 17(1)(a) is not attracted when the deed of gift relates to moveable property, but all instruments of gift of immovable property must be registered whatever be the value of property. An unregistered gift deed, therefore, cannot be used to create a title to immovable property. An instrument of gift which effect an immediate transfer of ownership falls under this clause though the instrument provides that whenever called upon by the donee, the donor would execute a registered gift deed.

In Hafeeza Bibi v. Sheikh Farid (dead), R M Lodha J, observed:

…the expression ‘instrument of gift of immovable property’ ………. [means] …….. an instrument or deed which creates or completes the gift, thereby transferring the ownership of the property from the executants to the person in whose favour it is executed. In order to affect the immovable property, the document must be a document of transfer; and if it is a document of transfer it must be registered under the provisions of the Registration Act.

III. Gift under Islamic law and the requirement of Registration

The essentials of a valid gift,...
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