A hiba is the immediate and unconditional transfer of ownership of property from one living person to another, without consideration. Two features distinguish it from the general law of gifts under the Transfer of Property Act. No writing or registration is required, because S.129 of that Act takes Muslim gifts out of Chapter VII. But delivery of possession is essential, which the general law does not require. So Muslim law is less formal and more demanding at the same time: it does not care how the gift is recorded, and it cares a great deal whether the donor has actually parted with the property.
Legal Framework
| Element | Requirement | Arabic |
|---|---|---|
| Declaration by the donor | A clear and unequivocal intention to make an immediate gift | Ijab |
| Acceptance by or on behalf of the donee | Express or implied | Qabul |
| Delivery of possession | Actual or constructive, as the subject matter admits of | Qabza |
| Writing | Not required | |
| Registration | Not required, S.129 of the Transfer of Property Act excluding Ss.122 to 129 Chapter VII including S.123 | |
| Consideration | None; a gift for consideration is hiba bil iwaz, treated separately |
The Three Essentials
Facts: Maqdoom allegedly gifted land jointly to his two minor sons and his wife by a registered gift deed, and the wife allegedly made an oral gift of her share to her son. Neither the original nor a certified copy of the registered deed was ever produced. Maqdoom then sold the land to the appellant to discharge antecedent debts, and the sons sued for possession.
Held, at paragraph 5, working through Mulla: although a gift by a Muslim need not be in writing and need not be registered, to be complete there must be (i) declaration of gift by the donor, (ii) acceptance express or implied by or on behalf of the donee, and (iii) delivery of possession, actual or constructive; and where the donor is in possession of immovable property he must completely divest himself physically of the subject of the gift. On the evidence none of these was proved. The Court also held that a mother can neither act as nor be appointed property guardian of her minor child.
Note: the operative ground of the decision was res judicata between co defendants and fraud under S.44 of the Evidence Act, so do not describe the case as being about the essentials of hiba. Cite paragraph 5 for the essentials, and the guardianship holding as the substantive personal law point.
Why all three are necessary and none is sufficient: The three essentials correspond to three distinct risks the law is guarding against. Declaration guards against a gift being inferred from generosity or from loose talk, so the intention must be clear, unequivocal and immediate. Acceptance guards against property being forced on an unwilling donee and, where the donee is a minor, ensures someone accountable receives it. Delivery guards against the donor saying one thing and doing another, which is why it is the requirement that decides most litigation.
Capacity and the subject matter
| Requirement | Detail |
|---|---|
| Donor | Must be sane, have attained majority, be the owner of the property, and act of his own free will. A gift by a person of unsound mind or a minor is void |
| Donee | Any person capable of holding property, including a minor, a person of unsound mind, and a child in the womb provided it is born within six months of the gift. A gift to a non Muslim is valid |
| Subject matter | Must be in existence at the time of the gift, and must be capable of being transferred. A gift of future property, or of something not in existence, is void |
| Ownership transferred | The corpus (ayn), not merely the usufruct. A grant of the usufruct only is ariyat, a licence, and not a hiba |
| Separation | If divisible, the subject matter should be separated, on which see the musha doctrine |
The conditions of a valid and complete hiba, as set out in this case, are a fuller list than the usual three essentials: the donor must be sane, major and the owner; the thing gifted must exist at the time and, if divisible, be separated; it must be lawful under the Shariat and free of things not gifted; and it must come into the possession of the donee himself or of his representative or guardian.
Formalities: Writing and Registration
Facts: Gende Bibi's heirs sued for partition. The defence was that she had gifted the whole property to one son, Serajuddin, who had maintained her when no other child would, and who had had the land mutated in his own name and possessed it in his own right. The gift was evidenced by a writing on an unstamped sheet of ordinary paper bearing her thumb impression and attested by three witnesses. The plaintiffs argued it was compulsorily registrable under S.17 of the Registration Act and, being unregistered, created nothing.
Held: The gift was 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 are declaration, acceptance and delivery of possession, 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 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. Following Jubeda Khatoon v Moksed Ali (All India Reporter 1973 Gauhati 105), even a registered deed cannot validate a gift where delivery of possession is absent.
Why the "creating" and "recording" distinction follows from first principles: 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. S.17 of the Registration Act bites on instruments which create, declare, assign, limit or extinguish an interest in immovable property. A writing that does the transferring is such an instrument; a writing that merely narrates a transfer already effected by the three acts is not, because the interest passed by the acts and not by the paper.
State both halves of the substance over form principle. Writing and registration are not required to make a gift, and registration does not save a gift that lacks delivery. The second half is the one students omit, and it is the more useful of the two in a problem question.
Delivery of Possession
This is where the case law is concentrated, and where the two lines of authority must be reconciled.
The strict statement
Mahboob Sahab states the position at its strictest: where the donor is in possession of immovable property, he must completely divest himself physically of the subject of the gift, the donee formally entering into possession.
Constructive delivery
Facts: Haji Sk Abdullah executed a registered deed of gift of his Cuttack house in favour of his younger son Razak, reciting that Razak had looked after him in old age and could possess and transfer the property. The house was tenanted, and Razak had been collecting rent even before the deed. The donor himself applied to the Tahsildar for mutation in Razak's name, and mutation was ordered in 1976. The elder son sued in 1980 to have the gift declared invalid for want of delivery. The trial court dismissed the suit as time barred and upheld the gift; the High Court allowed the appeal, holding there was no material to show the donor had divested himself and that rent collection did not establish delivery.
Held: appeal allowed, the High Court set aside, and the gift upheld. Delivery of possession may be actual or constructive, and may be made in such manner as the subject of the gift is susceptible of. Handing over the deed of gift coupled with the declaration in the document can suffice. On these facts constructive possession must be held to have been handed over: the donor himself applied for mutation in Razak's name, and any agency to collect rent came to an end on mutation, so Razak's continued collection thereafter was on his own behalf. The suit was also barred by limitation under Art.59 of the Limitation Act read with S.31 of the Specific Relief Act. The Court expressly agreed with the ratio in Katheessa Umma.
This case is frequently cited for the proposition that delivery of possession is strictly essential and must be proved. It holds the opposite. It upheld a gift where no physical handing over occurred, and it reversed a High Court that had insisted on proof of actual delivery.
For the bare proposition that delivery is essential and that a donor in possession must physically depart, cite Mahboob Sahab at paragraph 5, or Jubeda Khatoon v Moksed Ali as approved in Md Hesabuddin. Cite Abdul Rahim for the more modern and more useful proposition that delivery may be constructive, judged by what the subject matter admits of.
Reconciling the two lines. They are not in conflict once the facts are attended to. Mahboob Sahab states the position where the donor remains in possession and nothing else has changed, so that his continued occupation is itself evidence that he has not parted with the property. Abdul Rahim states what suffices where the subject matter does not admit of physical handing over, as with tenanted property, or where the donee is already on the premises. The underlying principle is single: delivery must be such as the property permits, and must evidence a genuine divesting.
How delivery is effected in particular cases
Held, on delivery: it may be effected according to the nature of the property. For tenanted property, by the donor requesting the tenants to attorn to the donee. Where donor and donee both reside on the property, by some overt act showing a clear intention to transfer possession. On the facts the recital in the deed, oral intimation to the tenants, three lawyers' notices, and the donors' conduct in joining the donee as co plaintiff to have their share separated and delivered showed that the donors "had done everything that was possible in the circumstances".
| Subject matter | How delivery is effected |
|---|---|
| Property in the donor's own occupation | Actual departure by the donor and entry by the donee: Mahboob Sahab |
| Tenanted property | Requesting the tenants to attorn to the donee, or directing them to pay him: Hayatuddin, Abdul Rahim |
| Property already occupied by the donee | An overt act evidencing the intention to transfer: Hayatuddin |
| Property recorded in revenue records | Mutation in the donee's name, especially where procured by the donor himself: Abdul Rahim, Md Hesabuddin |
| Where donor and donee live together | Delivery may be presumed from the circumstances, no physical removal being possible |
| Zamindari or incorporeal property | By such acts as the nature of the property permits, for example handing over title deeds |
Gifts to Particular Donees
Gift to a minor
Acceptance must be by or on behalf of the minor, and who may accept is governed by the closed list of guardians of property: the father, his executor, the paternal grandfather, his executor; failing all four, the court.
Facts: A husband gifted his properties, including immovables, to his wife by registered deed when she was fifteen years and nine months old. Her father and paternal grandfather were both dead, neither leaving an executor, so no guardian of the property existed. The deed was handed to her mother, who accepted and took possession. All three courts below held the gift void.
Held: The gift was upheld. Reasoning by qiyas and on istihsan and istislah from the classical texts, the strict rule requiring delivery to one of the four recognised guardians is not a condition of validity in two situations: a gift by a husband to his wife, and a gift to a minor having no guardian of the property in existence. In those cases acceptance by the mother, or by another near relative or even a stranger having charge of the minor, is good, provided there is a clear and manifest intention to give and the donor divests himself of ownership and possession.
The critical qualification, at paragraph 10: "It is only actual or constructive possession that completes the gift and registration does not cure the defect, nor is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property unless the minor has reached the years of discretion." The gift succeeded because handing the registered deed to the person in charge of a minor who had attained discretion amounted to constructive delivery, not because the deed was registered.
Held: Where the minor's father is alive, the mother cannot act as or be appointed guardian of the minor's property to accept a gift, and a gift so accepted is invalid. Katheessa Umma applies only where the father and paternal grandfather are not alive. An agency by the husband in the wife's favour cannot be found where it was neither pleaded nor supported by evidence.
Citation caution: frequently cited as AIR 1976 SC 1214, which does not exist for it. The correct citation is (2000) 8 Supreme Court Cases 507.
The three case sequence, which should be reproduced whenever a gift to a minor arises:
| Case | Function |
|---|---|
| Imambandi v Mutsaddi (1918) | The rule: the mother has no greater power over a minor's property than a stranger, and "de facto guardian" is a misleading label |
| Katheessa Umma (1963) | The exception: where no guardian of the property exists, acceptance by the mother or another person in charge is good |
| Gulamhussain Kutubuddin Maner (2000) | The limit: the exception does not apply where the father is alive; and the escape route is a pleaded and proved agency from the father |
Gift by a husband to his wife
Recognised in Katheessa Umma as one of the two situations in which the strict rule is relaxed. Where the spouses live together, the donor's continued presence on the property is not evidence that he has not parted with it, and the classical texts accept that a declaration coupled with handing over the deed suffices. The Privy Council authority is Mohamad Sadiq Ali Khan v Fakhr Jahan Begum (1932) Law Reports 59 Indian Appeals 1, on which Katheessa Umma relies.
Gift to a child in the womb
Valid provided the child is born within six months of the date of the gift, so that it was in existence in the mother's womb at that date.
Gift of a life interest, and gifts with conditions
A hiba must be an immediate and unconditional transfer of ownership. A gift subject to a condition derogating from ownership is generally valid as to the gift, the condition being void. A gift of a life interest was long treated as a gift of the usufruct only, and therefore as ariyat rather than hiba, though the modern Indian position recognises life interests more readily; the safer statement in an examination is that a purported gift of the corpus with a condition restricting the donee's power of disposition takes effect as a gift, the restriction being void.
Illustrations
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Oral gift upheld. A father declares before witnesses that he gifts his house to his son, the son accepts, and the father moves out while the son moves in. The gift is complete. No writing and no registration are required: S.129 of the Transfer of Property Act, Md Hesabuddin.
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Writing that merely records. The same gift is afterwards recorded on plain paper signed by the father. That writing is a record of the declaration, not an instrument creating the gift, so S.17 of the Registration Act does not require it to be registered: Md Hesabuddin.
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Registered deed but no delivery. A father executes and registers a deed of gift of his house to his son but continues to live there alone, paying the taxes and letting part of it as his own. The gift fails for want of delivery. Registration does not cure the defect: Katheessa Umma, Jubeda Khatoon as approved in Md Hesabuddin.
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Tenanted property. A donor gifts a tenanted house and asks the tenants to pay rent to the donee, who thereafter collects it. Delivery is complete by attornment, that being the delivery such property admits of: Hayatuddin, Abdul Rahim.
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Mutation procured by the donor. A donor gifts land and himself applies for mutation in the donee's name. Constructive possession must be held to have passed, and any agency the donee had to collect rent ended on mutation: Abdul Rahim.
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Gift to a minor, no guardian existing. A gift is made to a minor whose father and paternal grandfather are both dead, leaving no executor. Acceptance by the mother is good: Katheessa Umma.
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Gift to a minor, father alive. The same gift, but the father is alive. Acceptance by the mother is invalid and the gift fails: Gulamhussain Maner. It could be saved by proof that the father authorised her, agency being acceptance by him.
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Gift of future property. A donor purports to gift the crops that his land will produce next season. The subject matter is not in existence at the date of the gift, so the hiba is void.
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Gift of usufruct only. A donor permits his brother to occupy a house rent free for life, retaining ownership. This is ariyat, a licence to use, and not a hiba, no ownership having been transferred.
Recall Check
- State the three essentials of a valid hiba, and explain what risk each guards against.
- Explain why no writing or registration is required, naming the provision, and state the two halves of the substance over form principle.
- Reconcile Mahboob Sahab and Abdul Rahim on delivery of possession.
Key Cases
Mahboob Sahab v Syed Ismail (1995) Mahboob Sahab v Syed Ismail 1995
Issue: Whether the alleged gifts were complete, and whether a mother could hold a gift as guardian of a minor's property.
Rule: A gift need not be written or registered, but requires declaration, acceptance and delivery of possession; a donor in possession must completely divest himself physically. A mother can neither act as nor be appointed property guardian.
Held: The suit was dismissed, the operative ground being res judicata between co defendants and fraud under S.44 of the Evidence Act.
Abdul Rahim v Sk Abdul Zabar (2009) Abdul Rahim v Sk Abdul Zabar 2009
Issue: Whether a gift of tenanted property failed for want of delivery of possession.
Rule: Delivery may be actual or constructive, and may be made in such manner as the subject matter is susceptible of. Handing over the deed with the declaration can suffice, and mutation procured by the donor establishes constructive delivery.
Held: Appeal allowed and the gift upheld, reversing a High Court that had insisted on actual delivery. The suit was also time barred.
Valia Peedikakkandi Katheessa Umma v Pathakkalan Narayanath Kunhamu (1963) Katheessa Umma v Narayanath Kunhamu 1964
Issue: Whether a gift to a minor accepted by her mother is valid where no guardian of the property exists.
Rule: The strict rule is relaxed for a gift by a husband to his wife and for a gift to a minor having no guardian of property. Registration does not cure absence of delivery.
Held: The gift upheld on constructive delivery, the minor having attained discretion.
Md Hesabuddin v Md Hesaruddin (1983) Md Hesabuddin v Md Hesaruddin 1984
Issue: Whether a Muslim gift evidenced by an unregistered writing on plain paper is invalid.
Rule: S.129 of the Transfer of Property Act excludes Muslim gifts from Chapter VII including S.123, so no writing or registration is required. A writing that merely records the declaration is not registrable under S.17 of the Registration Act; one that creates the gift is. A registered deed cannot save a gift lacking delivery.
Held: The gift upheld; mutation and possession established acceptance and delivery.
Gulamhussain Kutubuddin Maner v Abdulrashid Abdulrajak Maner (2000) Gulamhussain Kutubuddin Maner v Abdulrashid 2000
Issue: Whether a gift to a minor accepted by his mother is valid where the father is alive.
Rule: It is not. Katheessa Umma applies only where no guardian of property exists. An unpleaded agency cannot be inferred.
Held: The gift held invalid.
Imambandi v Sheikh Haji Mutsaddi (1918) Imambandi v Mutsaddi 1918
Issue: Whether a mother not appointed guardian can convey her minor children's shares in immovable property.
Rule: She cannot; she has no greater power than a stranger, and "de facto guardian" is misleading. Such a transferee acquires nothing enforceable against the infant.
Held: The decree discharged so far as it awarded the minors' shares.
Hayatuddin v Abdul Gani (1974) Hayatuddin v Abdul Gani 1976
Issue: Whether a gift of an undivided share is void, and how delivery is effected.
Rule: A musha gift of divisible property is irregular and not void, and is cured by subsequent partition. Delivery is effected according to the nature of the property: attornment for tenanted property, an overt act where both parties reside there.
Held: The gift upheld.
Distinctions
| Basis | Hiba under Muslim law | Gift under the Transfer of Property Act |
|---|---|---|
| Writing | Not required | Required for immovable property, S.123 |
| Registration | Not required, S.129 excluding Chapter VII | Required for immovable property |
| Attestation | Not required | Two witnesses required |
| Delivery of possession | Essential | Not essential |
| Consideration | None | None |
| Governing provision | Personal law, attracted by S.2 of the 1937 Act | Ss.122 to 129 of the 1882 Act |
| Basis | Hiba | Ariyat |
|---|---|---|
| What passes | The corpus (ayn), that is, ownership | The usufruct only, a licence to use |
| Revocable | Only within limits, and generally by decree after delivery | Revocable at will |
| Delivery of possession | Essential | Possession given for use |
| Heritable | Yes, the donee owning the property | No, the licence ending with the grantee |
| Basis | Mahboob Sahab on delivery | Abdul Rahim on delivery |
|---|---|---|
| Proposition | A donor in possession must completely divest himself physically | Delivery may be constructive, as the subject matter admits of |
| Factual setting | Donor remained in possession and later sold the property as his own | Tenanted property; donor himself procured mutation in the donee's name |
| Outcome | Gift not proved | Gift upheld |
| How to cite | For the strict requirement of divesting | For the sufficiency of constructive delivery |
| Basis | Writing that creates the gift | Writing that records the gift |
|---|---|---|
| Function | Operates to transfer the interest | Narrates a transfer already effected |
| Registrable under S.17 of the Registration Act | Yes | No |
| Consequence if unregistered | Ineffective as an instrument | Immaterial, the gift resting on the three acts |
| Authority | Md Hesabuddin (1983) | Md Hesabuddin (1983) |
Flashcards
Define hiba.
The immediate and unconditional transfer of ownership of property from one living person to another, without consideration.
Name the three essentials of a valid hiba with their Arabic terms.
Declaration by the donor (ijab), acceptance by or on behalf of the donee (qabul), and delivery of possession, actual or constructive (qabza).
Which provision exempts Muslim gifts from the writing and registration requirements?
S.129 of the Transfer of Property Act 1882, which takes Muslim gifts out of Chapter VII including S.123.
Is a hiba of immovable property required to be registered?
No. But a writing which itself creates the gift is registrable under S.17 of the Registration Act; a writing which merely records a gift already made is not: Md Hesabuddin.
Does registration cure absence of delivery of possession?
No. Katheessa Umma holds this expressly at paragraph 10, and Jubeda Khatoon v Moksed Ali is to the same effect.
What must a donor in possession of immovable property do?
Completely divest himself physically of the subject of the gift, the donee formally entering into possession: Mahboob Sahab at paragraph 5.
May delivery be constructive?
Yes. Delivery may be actual or constructive and may be made in such manner as the subject of the gift is susceptible of: Abdul Rahim v Sk Abdul Zabar (2009).
How is delivery of tenanted property effected?
By the donor requesting the tenants to attorn to the donee, or directing them to pay rent to him: Hayatuddin, Abdul Rahim.
What evidential weight does mutation carry?
It is good evidence of delivery, particularly where the donor himself procured it, since any agency of the donee to collect rent ends on mutation: Abdul Rahim.
Who may accept a gift on behalf of a minor?
The father, his executor, the paternal grandfather, or his executor; failing all four, the court. The mother is not on the list.
When may the mother accept a gift for a minor?
Only where no guardian of the property is in existence: Katheessa Umma. Where the father is alive she cannot, and the gift fails: Gulamhussain Maner.
Is a gift to a child in the womb valid?
Yes, provided the child is born within six months of the date of the gift.
Is a gift to a non Muslim valid?
Yes. Any person capable of holding property may be a donee.
What is the effect of a condition derogating from ownership attached to a hiba?
The gift is generally valid and the condition void.
Distinguish hiba from ariyat.
Hiba transfers the corpus, that is ownership; ariyat grants only the usufruct, a licence to use, which is revocable at will and does not pass ownership.
Exam Scenario
Problem: Ghulam, a Hanafi Sunni, owned a house in Lucknow, part of which he occupied himself and part of which was let to two tenants. In 2020 he executed a registered deed of gift of the whole house in favour of his daughter Farida, reciting that possession had been handed over. He continued to live in his portion until his death in 2026, and continued to collect rent from the tenants, though he told them in 2021 that Farida was now the owner. In 2022 he also purported to gift his agricultural land, by an oral declaration before witnesses, to his infant grandson Imran, whose father, Ghulam's son Rashid, is alive; the declaration was accepted by Imran's mother and the land was mutated in Imran's name. Ghulam's other children now challenge both gifts. Advise.
Step 1: Classify the two gifts and clear the form objections
Treat the two gifts separately: they fail or succeed for different reasons. Each is a simple hiba, so declaration (ijab), acceptance (qabul) and delivery of possession (qabza) govern both.
Neither gift can be attacked for form. S.129 of the Transfer of Property Act takes Muslim gifts out of Chapter VII, so the oral gift of the land is not defective merely for being oral, and the registered deed for the house confers no advantage merely by being registered.
Step 2: The house: declaration and acceptance
The registered deed is a clear and unequivocal declaration of an immediate gift, so ijab is satisfied. Farida is a competent donee and nothing suggests she did not accept, so qabul is satisfied.
The whole question is delivery.
Step 3: The house: delivery, portion by portion
The two portions are differently placed and must be taken separately.
| Portion | Acts relied on | Authority | Effect |
|---|---|---|---|
| Tenanted portion | Ghulam told the tenants in 2021 that Farida was the owner, which is attornment, the delivery such property admits of; the recital of delivery in the deed is itself evidence | Hayatuddin, Abdul Rahim | Arguable, and reasonably strong for Farida |
| Tenanted portion, contrary argument | Ghulam continued to collect the rent for five years, said to show he never parted with the property | Distinguish Abdul Rahim: there the donee's collection was on his own account because mutation had ended any agency; here the donor collected | Weakens the case without defeating it |
| Self occupied portion | Ghulam remained in occupation until death and did nothing capable of amounting to delivery | Mahboob Sahab at paragraph 5: a donor in possession must completely divest himself physically | Gift fails |
The gift may therefore be good as to the tenanted portion and bad as to the self occupied portion. Whether a gift of "the whole house" can be severed in that way is a further question, and the better view is that the gift fails to the extent delivery was not made.
Step 4: The musha argument, raised and dismissed
The challengers may argue musha, that a gift of part of a house is a gift of an undivided share. It does not assist them.
A musha gift of divisible property is irregular (fasid) and not void (batil), and is cured by subsequent partition or by possession once taken: Hayatuddin. In any event this gift was of the whole house, so the doctrine is not engaged.
Step 5: The agricultural land: the defect in acceptance
The declaration and the mutation are unobjectionable, and the oral form is immaterial. The gift fails on acceptance.
Imran is an infant, so acceptance must be by or on behalf of him, and who may accept is governed by the closed list of guardians of property: the father, his executor, the paternal grandfather, his executor. The mother is not on that list.
Imambandi holds that she has no greater power over a minor's property than a stranger, and Mahboob Sahab holds that she can neither act as nor be appointed guardian of property.
Katheessa Umma created an exception where no guardian of the property exists. Here Rashid, Imran's father, is alive, and Gulamhussain Kutubuddin Maner (2000) holds that the exception applies only where the father and paternal grandfather are not alive. Acceptance by the mother was invalid and the gift fails.
Step 6: The two arguments open to Imran's side
- Mutation. Mutation in Imran's name is good evidence of delivery: Abdul Rahim, Md Hesabuddin. But delivery to whom is the question, and delivery to a person with no capacity to receive on the minor's behalf does not complete the gift, so mutation does not cure the defect in acceptance.
- Agency. This is the real escape route. If Imran's side can plead and prove that Rashid authorised the mother to accept on Imran's behalf, acceptance by his agent is acceptance by him and the gift is good.
- Fresh acceptance by Rashid. This would perfect the gift, but only if Ghulam were alive. He is not, so the route is closed on these facts.
Registration does not save a gift. The registered deed cannot cure the want of delivery of the self occupied portion: Katheessa Umma at paragraph 10, and Jubeda Khatoon as approved in Md Hesabuddin.
Cite Abdul Rahim the right way round. It holds that constructive delivery suffices, judged by what the subject matter admits of, and it reversed a High Court that had insisted on actual delivery. For the strict requirement that a donor in possession divest himself physically, cite Mahboob Sahab at paragraph 5.
Agency must be pleaded and proved. Gulamhussain Maner failed on precisely that point, the agency being neither pleaded nor supported by evidence, so the pleading is critical.
Musha is a raise and dismiss point, not a route to invalidity: such a gift would be irregular and curable, and this gift was of the whole house.
Conclusion. The self occupied portion fails for want of delivery and registration does not save it. The tenanted portion is arguable and reasonably strong on attornment. The agricultural land fails for want of valid acceptance, the father being alive, unless an agency from Rashid to the mother is pleaded and proved; property that fails devolves on Ghulam's heirs by inheritance.
See Also
- Kinds of Gift, Musha and Revocation : hiba bil iwaz, sadaqah, the musha doctrine and revocation.
- Guardianship under Muslim Law : the closed list of guardians of property against which acceptance is tested.
- Wills (Wasiyat) under Muslim Law : the contrast between an inter vivos gift and a testamentary disposition.
- Kinds of Marriage: Valid, Void and Irregular : the irregular category, applied to musha gifts by analogy.