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 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.
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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