Essentials of Valid Oral Gift (Hiba) Under Muslim Personal Law: Analysis of Supreme Court’s Landmark Ruling on Public Possession and Mutation

Introduction

The Supreme Court of India recently delivered a significant judgment clarifying the essential requirements for establishing a valid oral gift under Muslim personal law. In the case of Dharmrao Sharanappa Shabadi & Ors. v. Syeda Arifa Parveen, decided on December 19, 2024, the court emphasized that public possession must be conclusively proved for an oral gift to be valid, and the absence of mutation in revenue records raises substantial doubt about the genuineness of such transactions [1]. This judgment has far-reaching implications for property disputes involving Muslim families and reinforces the fundamental principles governing Hiba (gift) under Mohammedan law.

The bench comprising Justice C.T. Ravikumar and Justice Sanjay Karol meticulously examined the intersection of personal law, evidence law, and property rights to establish clear precedents regarding oral gifts. The court’s observations highlight the importance of objective evidence such as possession, mutation entries, and revenue records in substantiating claims of gifts made without written documentation. This decision serves as a crucial reminder that while Muslim law permits oral gifts, the burden of proof remains stringent, requiring demonstration of all three essential elements with contemporaneous and continuous evidence.

Understanding Hiba Under Muslim Personal Law

Muslim personal law occupies a constitutionally protected position in India’s legal framework. The Supreme Court has repeatedly recognized that personal law enjoys fundamental rights protection under Article 25 of the Constitution. This special status means that the distinctive features and principles of Mohammedan law must be understood and applied in their proper context, without imposing concepts from other legal systems. The law of gifts under Muslim jurisprudence differs fundamentally from the Transfer of Property Act and other secular laws governing property transfers.

Hiba, as defined under Muslim personal law, literally translates to “the donation of a thing from which the donee may derive benefit.” In technical legal terms, it represents an unconditional transfer of property made immediately and without any exchange or consideration by one person to another, accepted by or on behalf of the latter. This definition comes from classical Islamic texts including the Hedaya, which forms the foundation of Hanafi jurisprudence followed by a majority of Indian Muslims. The concept of Hiba is deeply rooted in Islamic principles of charity, generosity, and family welfare, distinguishing it from commercial transactions or conditional transfers.

The fundamental characteristic that sets Hiba apart from other forms of property transfer is its gratuitous nature. Unlike sales or exchanges, a gift under Muslim law cannot involve any consideration or quid pro quo. The moment any consideration enters the transaction, it ceases to be a gift and transforms into a different kind of contract. Furthermore, Hiba operates as a transfer inter vivos, meaning it takes effect during the lifetime of the donor, as opposed to testamentary dispositions that operate after death. This distinction becomes crucial when examining the donor’s capacity and intention at the time of making the gift.

The Three Essential Requirements of a Valid Hiba Under Muslim Personal Law

The Supreme Court in the present case reiterated the well-established three-fold requirements for a valid gift (Hiba) under Muslim law, which have been consistently recognized by Indian courts since colonial times. These requirements are not merely procedural formalities but represent the substantive essence of what constitutes a genuine transfer of property through gift. Each element must be proved independently and conclusively for the gift to attain validity. The sequential nature of these requirements means that the absence of any single element renders the entire transaction void, regardless of how well the other requirements are satisfied.

Declaration by the Donor (Ijab)

The first and foremost requirement is a clear, unequivocal declaration of the wish to give on the part of the donor. This declaration, known as Ijab in Islamic legal terminology, must demonstrate the donor’s definite intention to divest himself or herself of the property immediately and unconditionally. The declaration need not follow any prescribed formula or ritualistic words, but it must be sufficiently clear to indicate that the donor intends to make a present transfer of ownership. Ambiguous statements or expressions of future intention do not satisfy this requirement. The court emphasized that this declaration must be proved through credible evidence, whether through witness testimony, documentary proof, or conduct of the parties that demonstrates the donor’s unambiguous intent.

In the present case, the Supreme Court found that the mutation entry referring to “partition” rather than “gift” created serious doubts about whether Sultan Saheb had made any declaration of gift. The court observed that if the donor had truly intended to make a gift, this fact would have been clearly recorded in the revenue records. The absence of such clear indication, coupled with vague and contradictory witness testimony, led the court to conclude that the essential element of declaration was not established. The judgment reinforces the principle that mere oral statements made years after the alleged transaction, without contemporaneous documentary support, cannot establish the declaration requirement.

Acceptance by the Donee (Qubool)

The second essential requirement is acceptance of the gift by the donee, which can be either express or implied. This acceptance, termed Qubool in Islamic law, represents the donee’s agreement to receive the property as a gift. Unlike Western legal systems where acceptance must often be communicated to the donor, Muslim law recognizes implied acceptance through conduct. If the donee takes possession of the property and treats it as his or her own, this behavior constitutes valid acceptance even without verbal communication. The acceptance must, however, be made during the lifetime of the donor and while the offer remains open.

In cases involving minor donees or persons of unsound mind, acceptance can be made on their behalf by their legal guardians. Similarly, when the gift is made to a minor wife whose marriage has been consummated, her husband can accept the gift on her behalf. The law also recognizes acceptance by trustees when property is gifted through a trust arrangement. These exceptions acknowledge practical realities while maintaining the fundamental requirement that someone with legal capacity must accept the gift for it to be valid. The present Supreme Court judgment did not extensively deal with the acceptance requirement since the case primarily failed on the grounds of insufficient proof of declaration and delivery of possession.

Delivery of Possession (Qabza)

The third and arguably most critical requirement is the delivery of possession of the subject matter of the gift by the donor to the donee. Muslim law attaches paramount importance to possession, particularly of immovable property, and considers it the hallmark of a completed gift. The delivery must be actual or constructive, meaning the donee must obtain real, exclusive control over the property. Mere symbolic acts or paper transfers without effective control do not constitute valid delivery under Muslim law. This principle reflects the Islamic legal maxim that possession is nine-tenths of ownership and serves as the most tangible evidence of a genuine transfer.

The Supreme Court in Dharmrao Sharanappa Shabadi’s case placed particular emphasis on this requirement, noting that the absence of mutation in revenue records, combined with lack of evidence showing the donees exercising exclusive control over the property, raised serious doubts about whether possession was ever delivered [1]. The court observed that courts must scrutinize contemporaneous and continuous evidence of possession, not mere oral claims made during litigation years after the alleged gift. The judgment makes clear that possession cannot be presumed or inferred from weak circumstantial evidence; it must be affirmatively proved through objective indicators such as payment of revenue, cultivation of land, collection of rents, or other acts demonstrating ownership.

Legal Framework Governing Hiba in India

The legal framework applicable to Hiba under Muslim personal law in India derives from multiple sources, creating a unique synthesis of religious principles and statutory provisions. Unlike Hindu law, which has been substantially codified through the Hindu Succession Act, 1956 and other statutes, Muslim personal law largely remains uncodified, deriving its principles from the Shariat. The Muslim Personal Law (Shariat) Application Act, 1937, mandates that in matters of succession, inheritance, marriage, divorce, and gifts, Muslims shall be governed by their personal law notwithstanding any custom to the contrary. This statutory recognition ensures that the classical principles of Hiba continue to apply to Muslims in India.

However, the application of Muslim personal law exists within the broader framework of Indian secular laws. The Transfer of Property Act, 1882, which comprehensively regulates transfers of immovable property, explicitly exempts Muslims in matters governed by Mohammedan law. Section 129 of the Act preserves the operation of Muslim personal law regarding gifts, stating that nothing in the chapter relating to gifts shall affect any rule of Mohammedan law. This exemption means that the requirement of registration for gifts of immovable property exceeding certain values, as stipulated in the Registration Act, 1908, does not apply to gifts made by Muslims in accordance with their personal law [2].

The Indian Evidence Act, 1872, applies to all judicial proceedings including those involving Muslim personal law matters. Therefore, the burden of proof, standards of evidence, and principles of documentary evidence apply equally when establishing a Hiba. The Supreme Court has consistently held that while substantive rights may be governed by personal law, procedural and evidentiary aspects follow the general law of the land. This integration ensures that claims of oral gifts, despite not requiring written documentation under Muslim law, must still be proved to the satisfaction of courts through admissible evidence meeting statutory standards.

Regulatory Provisions and Registration Requirements

One of the most significant aspects of Muslim law relating to gifts concerns the question of registration. The Registration Act, 1908, mandates compulsory registration for transfers of immovable property exceeding certain values. However, the Supreme Court has repeatedly clarified that gifts under Muslim personal law constitute an exception to this general rule. In Hafeeza Bibi v. Sk. Farid [3], the court held that merely because a gift by a Mohammedan is reduced to writing does not change its nature or character, nor does it make registration mandatory. The fundamental principle remains that if all three essential requirements of a valid Hiba are satisfied, the gift is complete and valid regardless of whether it has been reduced to writing or registered.

This principle was reaffirmed in the recent judgment under discussion, where the Supreme Court emphasized that registration is neither necessary nor sufficient to validate gifts of immovable property under Muslim law [1]. An unregistered oral gift that satisfies all three essential conditions is perfectly valid, while a registered document that fails to establish these conditions does not create a valid gift. The court explained that the form of the transaction is immaterial; what matters is the substance. Whether the gift is made orally or through a written document, registered or unregistered, its validity depends solely on whether the three essential requirements are fulfilled.

The Revenue Code and land revenue laws of various states also interact with the concept of Hiba, particularly regarding mutation of revenue records. Mutation refers to the process of recording changes in ownership in the revenue registers maintained by the government. While parties often rely on mutation entries as evidence of gifts, the Supreme Court has consistently held that mutation entries are relevant only for revenue purposes and do not create or extinguish title to property. In Sawarni v. Inder Kaur [4], the court clarified that mutation merely enables the person in whose favor it is ordered to pay land revenue; it has no presumptive value regarding title. This principle was strongly reiterated in the present case, where the court rejected the appellants’ reliance on a mutation entry that described a “partition” rather than a “gift.”

Landmark Case Laws Shaping the Law of Hiba Under Muslim Personal Law

The jurisprudence on Hiba under Muslim law has been shaped by numerous landmark judgments spanning over a century. The foundational principles were established by the Privy Council during the colonial era and have been consistently followed and refined by the Supreme Court of India. These judgments collectively establish the contours of valid gifts under Muslim personal law and provide guidance on evidentiary requirements and interpretation of ambiguous transactions.

Abdul Wahid Khan v. Mussumat Noran Bibi (1885)

This early Privy Council decision established the fundamental principle that no person can be an heir to a living person (nemo est heres viventis) under Muslim law. The case clarified that unlike the Mitakshara school of Hindu law where sons acquire a right by birth in ancestral property, Muslim law does not recognize any such pre-existing rights. Children and other potential heirs obtain rights only upon the death of the ancestor. This principle has profound implications for gifts and partitions, establishing that a living owner has absolute dominion over his or her property with no restrictions based on the rights of potential heirs [5].

Mohd. Abdul Ghani v. Fakhr Jahan Begam (1922)

This Privy Council judgment authoritatively laid down the three essential conditions for a valid gift under Muslim law: manifestation of the wish to give on the part of the donor, acceptance by the donee either impliedly or expressly, and taking possession of the subject matter of the gift by the donee either actually or constructively [6]. The case established the framework that continues to govern the law of Hiba in India and has been cited in virtually every subsequent case dealing with gifts under Muslim personal law. The judgment emphasized that these requirements are not merely technical formalities but represent the substantive essence of what constitutes a genuine transfer.

Gulam Abbas v. Haji Kayyum Ali (1973)

In this case, the Supreme Court addressed the question of renunciation of inheritance rights under Muslim law. The court reiterated that since a living person has no heir, an heir apparent or presumptive has no reversionary interest that would enable objection to any sale or gift made by the owner in possession. The corollary is equally true: a renunciation by an expectant heir during the lifetime of the ancestor is not valid or enforceable after the vesting of inheritance. This judgment reinforced the absolute nature of property rights under Muslim law during the owner’s lifetime [7].

Hafeeza Bibi v. Sk. Farid (2011)

This modern Supreme Court judgment comprehensively addressed the question of registration and documentation of gifts under Muslim law. The court held that merely because a gift is reduced to writing by a Mohammedan does not change its nature or character, nor does it make the document subject to compulsory registration. The judgment emphasized that when a gift can be made orally, its reduction to writing does not transform it into a formal instrument requiring registration. The decision clarified the distinction between a written document that merely records a prior oral gift and a document that itself constitutes the gift deed [3].

Dharmrao Sharanappa Shabadi & Ors. v. Syeda Arifa Parveen (2024)

The present case represents the most recent authoritative statement by the Supreme Court on the law of Hiba. The judgment addresses several critical issues including the concept of partition during lifetime under Muslim law, the evidentiary burden in proving oral gifts, the interpretation of mutation entries, and the importance of public possession. The court categorically held that partition among family members during the lifetime of the owner is not recognized under Muslim law, as children have no pre-existing coparcenary rights. If property is to be transferred during lifetime, it must be through a valid gift satisfying all three essential requirements [1].

The judgment emphasized that courts must carefully scrutinize claims of oral gifts, particularly when made many years after the alleged transaction. Contemporaneous and continuous evidence of possession, such as mutation entries, payment of revenue, cultivation of land, and other acts of ownership, becomes crucial in establishing the validity of the gift. The court observed that the burden of proof lies heavily on the person claiming the gift, and vague or contradictory testimony cannot substitute for tangible evidence of transfer. The absence of mutation, while not absolutely fatal, raises serious doubts about whether possession was ever delivered, which is the most crucial element of a valid Hiba Under Muslim Personal Law.

Evidentiary Standards and Burden of Proof

The question of evidence and burden of proof in cases involving oral gifts under Muslim law presents unique challenges. Since the law does not require written documentation, and many gifts are made informally within family settings, establishing the three essential requirements through admissible evidence becomes critical. The Indian Evidence Act, 1872, governs the proof of all facts in judicial proceedings, including those relating to Muslim personal law. The burden of proving the existence of a valid gift lies squarely on the person claiming its benefit, typically the donee or their successors.

The Supreme Court in the present case emphasized that oral testimony alone, particularly when it is vague, inconsistent, or unsupported by contemporaneous records, is insufficient to establish a valid gift [1]. The court noted that witnesses examined by the appellants could not provide relevant details showing the donor’s clear intention or the circumstances surrounding the alleged declaration of gift. Their testimonies appeared to grasp at strands of fading memory rather than recount specific, verifiable facts. This observation underscores the importance of corroborative evidence in cases involving oral transactions.

Contemporaneous documentary evidence carries significant weight in establishing gifts. Such evidence may include mutation entries made around the time of the alleged gift, correspondence between parties referring to the gift, accounts or records maintained by the family, photographs or other material showing the donee in possession, or third-party documents like sale deeds of adjacent properties that acknowledge the donee as owner. The court emphasized that such evidence must be contemporaneous, meaning it should have been created around the time of the transaction, not manufactured during litigation. Continuous evidence, meaning consistent indicators over time that the donee treated the property as their own, is equally important.

Practical Implications and Common Pitfalls

The Supreme Court’s recent judgment has several important practical implications for Muslims contemplating inter vivos transfers of property. First and foremost, the decision reinforces that while oral gifts are legally valid, they create significant evidentiary challenges, particularly when disputes arise years or decades after the transaction. Family members seeking to make gifts would be well-advised to create contemporaneous written records, even though such documentation is not legally required, to avoid future disputes and litigation.

The judgment highlights common pitfalls that render alleged gifts invalid. One major issue concerns the use of incorrect terminology in revenue records. As the court noted, describing a transaction as “partition” when the intent was allegedly to make a gift creates insurmountable difficulties in later establishing that a gift was actually made. The principle that courts must interpret documents based on the language actually used, not the unexpressed intentions of the parties, means that such errors can be fatal to claims. Property owners should ensure that if mutation entries are made, they accurately reflect the nature of the transaction.

Another significant pitfall involves the failure to transfer actual, exclusive possession to the donee. Many purported gifts involve properties that continue to be managed by the donor or jointly controlled by family members. Such arrangements, while practically convenient, fail to satisfy the critical requirement of delivery of possession under Muslim law. The donee must obtain real, exclusive control over the property, demonstrated through payment of taxes, cultivation of land, collection of rents, or other acts of ownership. Merely allowing the donee to use the property while the donor retains ultimate control is insufficient.

Conclusion

The Supreme Court’s judgment in Dharmrao Sharanappa Shabadi & Ors. v. Syeda Arifa Parveen represents a significant contribution to the jurisprudence on Hiba under Muslim personal law. By emphasizing the necessity of proving public possession and raising doubts about gifts not reflected in mutation records, the court has established clear evidentiary standards that will guide future cases. The judgment reaffirms the fundamental principle that while Muslim law permits informal, unregistered oral gifts, the burden of proving all three essential requirements remains stringent and must be satisfied through credible, contemporaneous evidence.

The decision serves multiple important purposes. It protects legitimate property rights from fraudulent claims of oral gifts made without adequate proof. It preserves the distinctive features of Muslim personal law while ensuring that claims are subjected to rigorous evidentiary scrutiny. It provides clarity to lower courts dealing with property disputes in Muslim families. Most importantly, it balances respect for personal law traditions with the requirement of objective evidence necessary to prevent abuse and ensure justice.

Moving forward, this judgment will likely influence how courts evaluate claims of oral gifts (Hiba) in cases involving Muslim personal law. The emphasis on contemporaneous and continuous evidence of possession will require parties claiming gifts to present tangible proof beyond mere oral testimony. The clarification that partition during lifetime is not recognized under Muslim law will prevent attempts to disguise gifts as partitions or vice versa. The decision ultimately strengthens the integrity of Muslim personal law by insisting that its principles be applied rigorously and consistently, protected from manipulation through weak or fabricated evidence.

References

[1] Supreme Court of India. (2024). Dharmrao Sharanappa Shabadi & Ors. v. Syeda Arifa Parveen, Civil Appeal No. 12512 of 2025 (arising out of SLP(C) No. 12193 of 2006). Available at: https://www.livelaw.in/supreme-court/for-valid-oral-gift-hiba-under-mohammedan-law-public-possession-must-be-proved-absence-of-mutation-raises-doubt-supreme-court-306152 

[2] The Transfer of Property Act, 1882, Section 129. 

[3] Supreme Court of India. (2011). Hafeeza Bibi v. Sk. Farid, (2011) 5 SCC 654.  

[4] Supreme Court of India. (1996). Sawarni v. Inder Kaur, (1996) 6 SCC 223.  

[5] Privy Council. (1885). Abdul Wahid Khan v. Mussumat Noran Bibi, 1885 SCC OnLine PC 4.  

[6] Privy Council. (1922). Mohd. Abdul Ghani v. Fakhr Jahan Begam, 1922 SCC OnLine PC 18.  

[7] Supreme Court of India. (1973). Gulam Abbas v. Haji Kayyum Ali & Ors., (1973) 1 SCC 1.  

[8] Supreme Court of India. (2019). Jamila Begum v. Shami Mohd., (2019) 2 SCC 727.  

[9] Muslim Personal Law (Shariat) Application Act, 1937. Available at: https://legislative.gov.in