The Supreme Court restates the three essentials of a valid oral gift (hiba) under Mohammedan Law, exempting it from registration requirements.

In a recent ruling, the Supreme Court reaffirmed that under Mohammedan (Muslim) Law, a valid oral gift (hiba) requires intention, acceptance, and delivery of possession — and need not be reduced to a written deed.

The Supreme Court has reiterated the three essential conditions required for a valid oral gift (hiba) under Mohammedan Law:

1. A clear declaration by the donor of the intention to gift,
2. Acceptance by the donee (express or implied), and
3. Delivery of possession of the subject matter, either actually or constructively. Live Law+1

Importantly, the Court clarified that no written instrument is necessary for a valid oral gift, and that merely reducing the gift to writing does not alter its character or invoke registration obligations. Verdictum+2Mondaq+2

Referring to Section 129 of the Transfer of Property Act, 1882 (TPA), the Bench reinforced that the general registration requirement for deeds of immovable property under Section 123 does not apply to gifts under Mohammedan Law. The Week+3Mondaq+3Live Law+3

What the Judgment Says

No Mandatory Writing or Registration

Under the Transfer of Property Act, a gift of immovable property ordinarily must be effected by a registered instrument (Section 123). However, Section 129 saves Mohammedan Law from this requirement, excluding gifts under Muslim law from the purview of Section 123. Verdictum+4Indian Kanoon+4Mondaq+4

Thus, even if a Mohammedan (Muslim) donor reduces the gift into writing, that does not convert it into a formal instrument requiring registration. The writing may act merely as evidence of the gift but does not alter its character under Muslim law. Mondaq+2Verdictum+2

The Court rejected the distinction that a deed “reciting a prior gift” is non‑registerable, whereas a contemporaneous gift writing must be registered, labeling such a rule as inconsistent with Muslim gift law. Verdictum+1

The Three Essentials in Detail

1. Declaration by Donor
   The donor must explicitly manifest the intention to gift the subject matter to the donee. This declaration must be clear, though it need not be in writing. Live Law+2Verdictum+2
2. Acceptance by Donee
   The donee must accept the gift during the lifetime of the donor and while the donor is capable of making the gift. Acceptance can be explicit or implied. Indian Kanoon+2Live Law+2
3. Delivery of Possession
   This is a decisive element. The donee must obtain possession of the gift — either actual possession (physical custody) or constructive possession (by acts showing control). Live Law+3Verdictum+3Live Law+3
   • Constructive possession may be shown by overt acts such as applying for mutation in revenue records, accepting rents, or demonstrating exclusive control. Live Law+3Live Law+3Verdictum+3
   • The Court emphasised that lack of mutation or continued control by donor over rent or title documents may undermine the claim of valid gift. Live Law+2Verdictum+2

The Court warned that an oral gift cannot be used secretly or as a “surprise instrument.” All three essential requisites must be satisfied contemporaneously and publicly, not retrofitted to suit convenience. Live Law+2Verdictum+2

Significant Takeaways & Implications

• Public and continuous evidence matters: Courts will closely scrutinise whether the donee has acted openly under the gift (e.g., collecting rent, demanding mutation, exclusive control). Failure to demonstrate continuous acts supporting possession could doom the claim. Live Law+2Verdictum+2
• Gift by Muslims enjoys an exception: Thanks to Section 129, gifts under Mohammedan Law enjoy a carve‑out from the standard registration regime. This preserves classical gift law within personal law. Mondaq+2Live Law+2
• Writing is optional and evidentiary: A written document may aid in proving the gift, but it doesn’t upgrade the nature of the transaction. It remains subject to the same essential conditions.
• Heightened scrutiny in post‑death claims: In cases of oral gifts claimed after donor’s death, courts remain cautious, especially when mutation and possession evidence are lacking. Live Law+2Live Law+2

This ruling reinforces the delicate balance between formal requirements and personal law traditions — acknowledging that while civil statute law demands registration, personal law may validly depart from those norms in certain contexts.

We will publish a full annotated version of the judgment soon on The Legal Observer.