Mohammed Law - Oral Gift - Sec.123 of T.P.Act - Gift - Oral gift is valid if all the ingredients of Gift are proved -later reduced in to writing evidencing oral gift - no registration requires - at the case in hand - possession itslef is not proved - no mutation - no possession of original Title deeds - when gift itself failed to prove , the later question of registration requires or not does not arise - 2015- SC- MSKLAWREPORTS 20



“The position under the Mohammadan Law is this: that  a  gift  in            order to be valid must be  made  in  accordance  with  the  forms            stated above; and even if it is evidenced by writing, unless  all            the essential forms are observed, it is not  valid  according  to            law.  That being so, a deed of gift executed by a  Mohammadan  is            not the instrument effecting, creating or making the gift  but  a            mere piece of evidence.  It may so happen after a lapse  of  time            that the evidence of the observance of the above forms might  not            be forthcoming, so it is sometimes thought prudent to reduce  the            fact that a gift has been made into writing.  Such writing is not            a document of title but is a piece of evidence. ” =

Possession has been defined in Section 394 of the Muslim Law by Tyabji.      It is thus:-            “A person is said to be in possession of a thing, or of immovable            property, when he is so placed with reference to it that  he  can            exercise exclusive control over it, for the purpose  of  deriving            from it such benefit as it is capable  of  rendering,  or  as  is            usually derived from it.”-  In the case at hand  plea     of actual physical possession by  Rasheeda  Khatoon  does  not  deserve     acceptance.  The existence of any overt act to show control requires to     be scrutinised.  A plea was advanced by the plaintiff that she had been     collecting rent from the tenants inducted by the  donor,  but  no  rent     receipts have been filed.  On the contrary certain rent receipts issued     by the donor after the execution of the deed of gift have been  brought     on record.  There is no proof that the land was mutated in  her  favour     by the revenue authorities.  She was also  not  in  possession  of  the     title deeds.  Thus, the evidence on  record,  on  a  studied  scrutiny,     clearly  reveal  that  Rasheeda  Khatoon  was   not   in   constructive     possession.  Therefore, one of the elements of the valid gift  has  not     been satisfied.  That being the  position  there  is  no  necessity  to     advert to the  aspect  whether  the  instrument  in  question  required     registration or not because there can be certain circumstances  a  deed     in  writing  may  require  registration.   In  the  case  at  hand,  we     conclusively hold that as the plaintiff could not prove  either  actual     or constructive possession, the gift was not complete  and  hence,  the     issue of registration does not arise.

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