Recently, the single judge bench of the Jammu and Kashmir High Court held that even if a gift is reduced in writing or a declaration of an oral gift, made earlier in point of time, is reduced in writing, it is valid even without registration.
Brief facts:
The factual matrix of the case is that the Plaintiff/Appellant filed the suit for declaration and perpetual injunction against the Defendant/Respondent before the trial court stating that Mohammad Ismail Bhat being father of appellant 1 and respondent herein and father-in-law of appellant 2 herein (for short ‘Estate holder’), upon his death was survived by his wife, two sons and daughters and owned suit property as also a residential house with land underneath and appurtenant thereto situated at Barbarshah. Srinagar, besides, a share in business styled as “Appolo Motors” jointly held by him with his wife, appellant 1 and respondent herein.
Pursuant to the family settlement, the respondent herein was given the goodwill and the lease hold rights in the aforesaid business, whereas the daughters, except one were given their share in cash and kind in full and final settlement of their rights in the joint family assets, while as the other daughter had been orally gifted the aforesaid residential house and that the suit property came to be orally gifted by him; the Estate holder to the plaintiffs/appellants herein and were put in exclusive possession thereof to the exclusion of others including the respondent herein and claimed independent of the said oral gift perfection of their title over the suit property on account of being in adverse possession thereof, and that the Estate holder had made an express declaration of the aforesaid oral gift qua the suit property. The trial court decreed the suit in the favour of the Plaintiff. Aggrieved by this, the appellant challenged the impugned judgment.
Contentions of the Respondent:
The learned counsel for the Respondent contended that the entire claim of the Appellant/Plaintiff is based on the family settlement however, neither the said alleged family settlement has been proved nor can the said gift deeds be construed as declarations made prior to oral gift in question as they are contemporaneous with the aforesaid act of the gifting the same to the plaintiff appellant 1 herein and do not anywhere record the factum of delivery of possession of the gifted property. The counsel relied upon the judgment titled Lilian Coelho & Ors. Vs. Myra Philomena Coalho.
Observations of the Court:
The Hon’ble Court observed that under Muslim Law, for a gift to be valid, compliance of the three essentials are necessary in the aforesaid sequence and if one of the said essentials is missing, a gift cannot be said to have been validly made. Essentials are as follows:
a) Declaration of the gift by the donor;
(b) Acceptance of the gift by the donee: and
(c) Delivery of Possession of the gifted property.
It was furthermore observed that a valid gift could be made by oral statements as long as three requirements are met thereby, in that it is because registration is not a requirement which obviates the need for a gift to be reduced in writing.
Based on these considerations, the court set aside the judgment and decree passed by the Appellate court.
The decision of the court:
With the above direction, the court disposed of the appeal.
Case Title: Abdul Majid Bhat V. Gulzar Ahmad Bhat.
Coram: Hon’ble Mr. Justice Javed Iqbal Wani
Case No.: CSA No. 13/2017
Advocate for the Petitioner: Mr. H. U Salathi, Advocate.
Advocate for the Respondent: Mr. Hakim Suhail Ishtiaq, Advocate.
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