Md Hesabuddin v Md Hesaruddin

Facts

• Gende Bibi died leaving three sons who were the plaintiffs and four defendants, all siblings, as heirs to about 7 bighas 3 kathas 19 lechas. The plaintiffs sued for a declaration of title and partition into seven shares.
• The defence was that before her death Gende Bibi had gifted the whole to the third defendant, Serajuddin, who had been maintaining her when no other child would, and who had thereafter got the land mutated in his own name and possessed it in his own right.
• The gift was evidenced by Exhibit A(2), a writing on an unstamped sheet of ordinary paper bearing Gende Bibi's thumb impression and attested by three witnesses. The appellants argued that it was compulsorily registrable under S.17 of the Registration Act and, being unregistered, created nothing.

Issue

1. Whether a Muslim gift of immovable property evidenced by an unregistered writing on plain paper is invalid for want of registration.

Held

• The second appeal was dismissed and the gift upheld.
• S.129 of the Transfer of Property Act takes Muslim gifts out of Chapter VII including S.123, so the registered instrument requirement does not apply. The three essentials of a valid gift are declaration, acceptance and delivery of possession, actual or constructive, and no written document is required.
• It is not a sine qua non that wherever there is a writing about a Muslim gift of immovable property it must be registered. The facts and circumstances of each case decide whether the writing is a formal instrument creating the gift, which is registrable, or a mere record of the declaration, which is not. A writing on plain unstamped paper containing the declaration, made by a mother in favour of a son who maintained her, is a mere declaration and not a formal instrument, so no registration was needed.
• The court followed Jubeda Khatoon v Moksed Ali (All India Reporter 1973 Gauhati 105) for the proposition that even a registered deed of gift cannot validate a gift where delivery of possession is absent. On the concurrent findings, mutation and possession in the donee established acceptance and delivery.

Ratio Decidendi

Muslim law makes the gift by the acts of declaration, acceptance and delivery, not by the execution of a document. A writing is therefore evidence of what was done, and not the doing of it. Since the Transfer of Property Act expressly removes Muslim gifts from the operation of S.123, no statutory requirement of writing intervenes, and the Registration Act cannot supply one indirectly. The distinction the Court draws is the necessary consequence. S.17 of the Registration Act bites on instruments which create, declare, assign, limit or extinguish an interest in immovable property. A writing which does the work of transferring is such an instrument. A writing which merely narrates a transfer already effected by declaration, acceptance and delivery is not, because the interest pas