A Muslim executes a deed of gift of his property to 'B', but the gift is not accompanied by delivery of possession....Is 'B' entitled to the property....

Question: A Muslim executes a deed of gift of his property to 'B', but the gift is not accompanied by delivery of possession. 'A' subsequently executes a deed of gift of the same property to 'C' and the gift is accompanied by delivery of possession. Both the deeds are registered. Is 'B' entitled to the property? In this regard discuss the relevant provisions of the Registration Act. [HJS 1999]

Find the question and answer of Muslim Law only on Legal Bites. [A Muslim executes a deed of gift of his property to 'B', but the gift is not accompanied by delivery of possession. 'A' subsequently executes a deed of gift of the same property to 'C' and the gift is accompanied by delivery of possession. Both the deeds are registered. Is 'B' entitled to the property? In this regard discuss the relevant provisions of the Registration Act.]

Answer

Under Muslim Law, a valid gift involves the following steps:

(i) A declaration of gift by the donor.

(ii) Acceptance of gift expressly or impliedly by or on behalf of donee.

(iii) Delivery of subject matter of gift from donor to donee.

In Abdul Manan v. Mohd. Murad Ali and Other, 1999 (1) BLJR 23, it was observed that it is necessary for the validity of a gift under Muslim law that (a) There shall be a declaration of gift by donor (b) Acceptance of gift by the donee (c) Delivery of possession of property gifted by the donor to the donee.

So delivery of the subject matter of gift from donor to donee is essential for the validity of a gift under Muslim Law. Section 17(1)(a) of the Indian Registration Act provides that "instrument of gift of immovable property is required to be registered compulsorily and Section 123 of Transfer of Property Act provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses....." But Section 129 of the Transfer of Property Act expressly excludes the application of Section 123 of the Act in the case of Mohammedan gift.

So a gift by a Muslim must at least fulfill all essential conditions as to gift under Muslim law and it is not necessary for a Mohammedan to execute a registered instrument for transferring the immovable property by way of a gift as required under Section 123 of the Transfer of Property Act. In such a case it is sufficient to conform to the Rule of Muslim Law. A gift by a Muslim which is accompanied by delivery of possession is valid nonetheless the gift deed is not executed and registered. Registration of a gift deed will not cure the defect if the gift is invalid under Muslim law by reason of not delivering the possession of the subject matter of the gift to the donee.

Registration of a deed of gift does not cure the want of delivery of possession as held in Mogulsha v. Mahamad Saheb, (1887) 11 Bom. 517. In this case, A executes a deed of gift of a dwelling house belonging to him in favour of B. The deed is duly registered, but possession is not delivered to B. The gift is incomplete, and therefore void.

In the case in hand, A Muslim though executed a registered gift deed to B but the gift is not accompanied by delivery of possession of the subject matter of the gift, therefore gift to B is not valid under Muslim law, whereas a registered gift deed along with delivery of possession of property gifted to `C' is valid and complete. Registered gift deed in favour of B will not in any way help B.

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