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]

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.