Under Mohammedan law, whether an owner of property can, in
his lifetime, transfer said property to his heirs by way of partition;
whether, in the facts of this case, the requisites of a valid gift were
met and also whether nomenclature employed in Mutation Entry
can be said to be indicative of intentions.
Headnotes†
Mohammedan law – Partition under, during the lifetime of the
owner – If permissible:
Held: No – Under Mohammedan Law, partition while a person
is alive between him and his heirs is impermissible – Under the
Mohammedan Law, the right of an heir-apparent comes into
existence for the first time on the death of the ancestor, and he is
not entitled until then to any interest in the property to which he
would succeed as an heir if he survived the ancestor – Thus, in
the present case, ‘SS’ during his lifetime could not have partitioned
his property, giving two parts thereof to his sons (appellants).
[Paras 20, 21]
Mohammedan law – Oral gift made by ‘SS’ in favour of his
sons, if was a valid gift – Plea of the appellants that even
though the Mutation entry used the word ‘partition’, it should
be read as ‘gift’ – Nomenclature employed in Mutation Entry,
if indicative of intentions:
Held: Only the substance, not the form or nomenclature, is
pertinent to determine the nature of the transaction – ‘Partition’
and ‘gift’ are two terms that have different requisites, require
different circumstances, and bear different consequences –
Partition, is the division of property among co-owners, whereas
gift is a voluntary transfer of existing property made voluntarily
*Author
924 [2024] 12 S.C.R.
Supreme Court Reports
without consideration – The legal necessities of both these modes
of conveyance are quite different and, thus, cannot be liberally
interpreted – What is required to be considered is the intention as
shown by the words written in a document – Further, the words
used in a document have to be understood in their natural meaning
with reference to the language employed – While interpreting any
document, common or usual meaning is ascribed to the words
unless that leads to absurdity – A perusal of the Mutation Entry
No.8258 (Ex.P1) shows that ‘SS’ got the ‘partition’ done in favour
of his sons – The words “partition of the property done by SAKS”
clearly indicate his intention to divide the property into three
parts without any indication of his intent to gift the property to
his sons – Had ‘SS’ intended to gift the property, it ought to have
been recorded as a gift in the Mutation Entry – Even though the
other two requisites, i.e. acceptance and possession, may have
been proved, the essential requirement of the declaration made
with clear and unequivocal intention remains unfulfilled – When
neither the words of the Mutation Entry nor the Entry itself support
the claim of the appellants-original defendants in any manner, for
neither can it be a gift nor does the Mutation Entry mean that any
title rests with them, the oral gift made by ‘SS’ in favour of his sons
cannot be held to be a valid gift – No fault with the reasoning of
the Trial Court and the High Court qua the questions of gift and
partition – Order of the Trial Court concurred by the High Court
is confirmed. [Paras 31-34, 36, 38]
Mohammedan Law – Gift deed – Requisites of a valid gift
deed – Enumerated.
Islamic Personal Law – Sources – Discussed.
Mohammedan Law – Gift – Registration:
Held: Registration of gift is not required under Mohammedan
Law – An unwritten and unregistered gift executed by the donor
in favour of donees is valid. [Para 27]
Words and Phrases – ‘Partition’; Gift (Hiba) – Meaning –
Discussed.
