G MUJEER AHMED Vs. MOHAMMAD ZAFRULLA

JUDGEMENT

(1.) HEARD the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

(2.) ). The petitioners claim to be the absolute owners of the property mentioned in the petition. The respondent is the tenant in respect of one shop portion on a monthly rental of Rs. 350/ -. The petitioner filed HRC Case No. 10225/98 on the file of Addl. Small Causes Judge, Bangalore u/s 12 (1) (a) of K. R. C. Act against the respondent on 23-6-1998. The respondent resisted the claim of the petitioner amongst other grounds that the petitioner is not the owner of the property. The matter stood posted for evidence. At that stage, the petitioner sought to mark HIBA declaration deed dt. 27-7-1994. The respondent in the usual course raised an objection that the document is inadmissible on the ground that the same was not registered as contemplated u/s. 17 of the Registration Act. Therefore, the petitioner filed IA-II u/o 13 Rule 4 and 6 r/w 151 CPC to admit HIBA declaration as exhibit in the above case. The respondent also filed his objections. After hearing both the parties, the Court below dismissed IA-II by its Order dated 29-7-1999. Being aggrieved by that order, the petitioners filed this petition.

(3.) THE learned counsel for the petitioner at the very outset submitted that the documents sought to be marked by the petitioner is only a declaration confirming the oral gift made by his father and therefore, it does not require any registration. In support of this argument, he also placed reliance on a decision of the Supreme Court in 1996 (6) KLJ194 (SC) : (AIR 1995 SC 1205) (Mahaboob Sahab v. Syed Ismail) (at page 1207; of AIR)"5. Under Sec. 147 of the Principles of Mohammedan Law by Mulla, 19th Edition, Edited by Chief Justice M. Hidayatulla, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Sec. 148 requires that it is essential, to the validity of a gift, that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Sec. 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor; (ii) acceptance of the gift, express or implied, by or on behalf of the donee; and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Sec. 150. If these conditions are complied with, the gift is complete. Sec. 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking possession of the gift by the donee, actually or constructively. Then only gift is complete. Sec. 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act, a gift to be complete, there should be a declaration of the gift by the donor, acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of the possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. "from this decision it is clear that to establish oral gift, 3 important ingredients are to be made out. This further clarifies that oral gift is permissible in Mohammedan Law. The gift need not be in writing and consequently need not be registered. But declaration is necessary. In the case on hand, the petitioner produced the declaration to establish the factum of oral gift which was made on 5-1-1994.