Holding

Under Mohammedan law a living owner cannot partition his property and an oral gift is invalid unless the donor’s clear declaration, acceptance, and delivery of possession are proved; the mutation entry’s term "partition" reflects a partition, not a gift.

Summary

The case concerned a dispute over agricultural and house property owned by Sultan Saheb, who died in 1978. The plaintiffs claimed they were entitled to a one‑sixth share as heirs, while the defendants alleged that Sultan had partitioned the land among his sons during his lifetime and later gifted two portions to them. The Supreme Court examined whether a Muslim owner can partition his property while alive and whether the alleged oral gift satisfied the requisites of declaration, acceptance, and possession under Mohammedan law. It held that under Mohammedan law a partition cannot be effected by a living owner and that the mutation entry’s use of the word “partition” reflects a partition, not a gift. Consequently, the oral gift was deemed invalid as the essential declaration of intent was not proved, and the mutation entry does not confer title. The Court affirmed the trial and High Court orders, dismissing the appeals.

Issues considered

Whether an owner of property can, in his lifetime, transfer said property to his heirs by way of partition under Mohammedan law.
Whether the requisites of a valid oral gift (declaration, acceptance, possession) were satisfied in the present case.
Whether the nomenclature used in the mutation entry indicating "partition" can be interpreted as a gift.

Legislation cited

Registration Act, 1908s. 17
Transfer of Property Act, 1882s. 129

Headnote

Issue for Consideration 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 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

Subjects

Mohammedan lawpartitiongift (hiba)oral giftmutation entryinheritancepersonal lawproperty transferdeclaration of intentionregistration

Judgment

[2024] 12 S.C.R. 923 : 2024 INSC 1006

Mansoor Saheb (Dead) & Ors.
v.
Salima (D) By Lrs. & Ors.
(Civil Appeal No. 4211 of 2009)
19 December 2024
[C.T. Ravikumar and Sanjay Karol,* JJ.]

Issue for Consideration
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.

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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.

Case Law Cited
Hafeeza Bibi v. S.K. Farid [2011] 5 SCR 1155 : (2011) 5 SCC
654; N.Mani v. Sangeetha Theatre & Ors. (2004) 12 SCC 278;
[2024] 12 S.C.R. 925

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

Mathai Samuel v. Eapen Eapen [2012] 10 SCR 1098 : (2012)13
SCC 80; B.V. Nagesh v. H.V. Srinivasamurthy [2010] 11 SCR
784 : (2010) 12 SCC 530; Abdul Rahim & Ors. v. Sk. Abdul
Zabar [2009] 4 SCR 32 : (2009) 6 SCC 160; K. Mahammad
Ghouse Sahib v. Jamila Bi & Ors., 1949 SCC OnLine Mad
433; Shayara Bano v. Union of India [2017] 9 SCR 797 : (2017)
9 SCC 1; Shub Karan Bubna v. Sita Saran Bubna [2009] 14
SCR 40 : (2009) 9 SCC 689; Abdul Wahid Khan v. Mussumat
Noran Bibi & Ors., 1885 SCC OnLine PC 4; Gulam Abbas v.
Haji Kayyum Ali & Ors. [1973] 2 SCR 300 : (1973) 1 SCC 1;
Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed
Mohiuddin Kamisul Quadri [1971] 3 SCR 734 : (1971) 1 SCC
597; Outlines of Mohammadan Law (2009) 6 SCC 160; Mohd.
Abdul Ghani v. Fakhr Jahan Begam, 1922 SCC OnLine PC 18;
Jamila Begum v. Shami Mohd [2018] 13 SCR 1253 : (2019) 2
SCC 727; Rasheeda Khatoon v. Ashiq Ali [2014] 11 SCR 31 :
(2014) 10 SCC 459; Hafeeza Bibi v. Sk. Farid [2011] 5 SCR
1155 : (2011) 5 SCC 654; D.N. Joshi v. D.C. Harris [2017] 7
SCR 326 : (2017) 12 SCC 624; Sawarni v. Inder Kaur [1996]
Supp. 5 SCR 165 : (1996) 6 SCC 223; Jitendra Singh v. State
of M.P. & Ors. 2021 SCC OnLine SC 802; P. Kishore Kumar
v. Vittal K. Patkar [2023] 14 SCR 796 : 2023 SCC OnLine SC
1483 – referred to.

Books and Periodicals Cited
‘The Muslim Law of India’, 2nd Edition, Chapter 12 (Law of
Inheritance) by Tahir Mahmood; Mulla on Mohammedan Law 5th
Edition; Advanced Law Lexicon P Ramanatha Aiyar 3rd Edition
Reprint 2009; Mulla Principles of Mahomedan Law, 22nd Edition;
Mohammedan Law, by Syed Ameer Ali 4th ed., vol.i – referred to.

List of Keywords
Mohammedan law; ‘Partition’; Gift (hiba); Partition while a person is
alive; Oral gift; Valid gift; Mutation Entry; Nomenclature; Transfer of
property during the lifetime of a person; Acceptance; Possession;
Declaration made with clear and unequivocal intention; Requisites
of a valid gift; Registration of gift; Unwritten gift; Unregistered gift;
Donor; Donees; ‘leave’, ‘leaves’; ‘man dies’; Division of property
is only possible upon the death of a person; Inheritance; Nature
of the transaction; Words used in a document; Natural meaning;
Language employed; Common or usual meaning.
926 [2024] 12 S.C.R.

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Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4211 of 2009
From the Judgment and Order dated 13.01.2006 of the High Court
of Karnataka at Bangalore in RFA No. 469 of 1998
With
Civil Appeal No.4213 of 2009
Appearances for Parties
Basava Prabhu S. Patil, S N Bhat, Sr. Advs., Samarth Kashyap, V.
N. Raghupathy, Radhakrishna S Hegde, Rajeev Singh, Tarun Kumar
Thakur, Ms. Parvati Bhat, Abhay Choudhary M, Vivek Ram R, Ms.
Anuradha Mutatkar, Advs. for the appearing parties
Judgment / Order of the Supreme Court
Judgment
Sanjay Karol J.
1. The instant appeals, preferred by the original defendants, arise out
of the judgment and order dated 13.01.2006 passed by the High
Court of Karnataka whereby it dismissed the appeals filed by the
original-defendants, confirming the decree passed by the Court of
the Principal Civil Judge (Sr. Dn.),1 Bijapur in O.S. No.140 of 1988
in favour of the original plaintiffs (Respondents herein).
2. Admittedly, the parties are governed by Mohammedan law. The
following questions arise for our consideration:-
(a) Whether an owner of property can, in his lifetime, transfer said
property to his heirs by way of partition?
(b) 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?

FACTUAL MATRIX
3. The brief facts are stated by referring to the parties as per their
status in the Trial Court.

1 Hereinafter referred to as ‘Trial Court’
[2024] 12 S.C.R. 927

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

4. One Sultan Saheb, the owner of the suit land described in Schedule
B and C being agricultural land and house property respectively, of
the plaint, died on 09.01.1978. Through his first marriage, he had
one daughter namely, Ajamunisa (defendant no.11). With his first
wife passing away, he remarried and, from this second marriage, had
three children- two sons, namely Mansoorsaheb (defendant no.1),
Sikandar (defendant no.9) and daughter namely, Rabiyabi. Plaintiff
nos.1 to 9 are the children of Rabiyabi, who had died on 08.06.1985.
Defendant no.2 is Mansoorsaheb’s wife, defendant nos. 3 to 7 are
his children, defendant no.8 is defendant no.1’s daughter-in-law.
Defendant no.10 is the son of defendant no.9.
For ease of understanding, the position of parties is demonstrated
through a family tree:

5. The case of the plaintiffs is that Sultan Saheb was the owner and
possessor of the suit property. On his death, defendant no.1 got his
name, as also the names of defendant no. 9 & 11 mutated in the
revenue records to the exclusion of the plaintiffs’ mother, Rabiyabi,
also a successor-in-interest. As such, plaintiffs are entitled to 1/6th
share in different scheduled properties and sought partition by way
of O.S. No.140/1988.
6. In their written statements, the defendants contended that Sultan
Saheb himself had divided the property, R.S.No.249/1A/1, into
three parts, gifting one part each to his sons and retaining the third
remaining part. Subsequently, in September 1980, he partitioned the
retained third portion among his four children. Reliance is placed on
the Mutation Entry No. 8258 dated 21.01.1973, which is disputed
by the plaintiffs.
928 [2024] 12 S.C.R.

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7. The Trial Court framed thirteen issues and held that an oral gift was
not made to the sons as the essential requisites were not conclusively
proven. It rejected the plea of partition on the ground that under
Mohammedan Law, property partitioned during the owner’s lifetime
requires a written registered document. After examining witnesses
and evidence placed on its record, it held the plaintiffs jointly entitled
to 1/6th share, defendant nos.1 and 9 each entitled to 1/3rd share
and defendant no.11 to 1/6th share in the suit schedule properties.
8. While dismissing the appeals, the High Court concurred with the
Trial Court’s findings on both issues of gift and partition. It reiterated
the position under Mohammedan Law that as long as the owner is
alive, the partition is unknown to the members governed by Muslim
Law. Regarding the gift, it was held that the witnesses’ testimonies
failed to substantiate the plea for an oral gift.

SUBMISSIONS OF THE PARTIES
9. Mr. V.N. Raghupathy, learned counsel for the Appellants, submitted
that writing is not essential to effectuate the transfer of immovable
property by way of gift. Sultan Saheb made a declaration of gift,
which was accepted by the donees, and possession was delivered
to them, as evidenced by the Mutation Entry No.8258 (Ex. P1). He
placed reliance on Section 129 of Transfer of Property Act,1882
and submits that writing is not essential to effectuate transfer of
immovable property by way of gift. Further reliance is placed on
Hafeeza Bibi v S.K. Farid 2 to describe the three essentials of a
gift under Mohammadan Law. It is submitted that Sultan Saheb
made a declaration of gift, the same was accepted by the donees
and possession was delivered to the donees which is evident from
Mutation Entry (Ex.P1).
10. It is submitted that the erroneous description of the transaction as
watni/partition instead of an oral gift made the plaintiffs contend
that Sultan Saheb and his sons had no right to divide/partition the
property, but if the nomenclature ‘partition’ in Mutation Entry (Ex.
P1) is replaced by ‘oral gift’, the remaining contents clearly shows
that the transaction was an oral gift. Further reliance is placed on

2 [2011] 5 SCR 1155 : (2011) 5 SCC 654
[2024] 12 S.C.R. 929

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

N.Mani v. Sangeetha Theatre & Ors.3 and Mathai Samuel v.
Eapen Eapen.4 It is further submitted that the High Court failed to
exercise its jurisdiction as a First Appellate Court depriving appellant
his valuable right. In furtherance of the said submission, the learned
counsel refers to B.V. Nagesh v. H.V. Srinivasamurthy.5
11. Mr. SN Bhat, learned senior counsel for the Respondents, submitted
that the Mutation Entry No.8258 dated 21.01.1973 refers only to an
alleged partition, and there is no reference to any gift as alleged by
the appellants. It is further submitted that the said Mutation Entry
was purported to have been made on the basis of a report (‘wardi’)
submitted to the revenue officials, but the appellants-defendants never
produced such a report. Further, it is submitted that, unlike Hindu
Law, children governed by Mohammedan Law have no pre-existing
right; thus, there can be no oral partition of properties during the
lifetime of the owner. To buttress his submission the learned senior
counsel relies on Abdul Rahim & Ors. v. Sk. Abdul Zabar 6 and
K. Mahammad Ghouse Sahib v. Jamila Bi & Ors.7

APPRECIATION OF LAW & ANALYSIS
12. At the outset we may remind ourselves of the observations made in
regard to personal laws by J.S. Khehar the then CJI in his dissenting
judgment in Shayara Bano v. Union of India 8:
“240 …Reference was also made to the definition of the
term Personal Law in Conflict of Laws 188 (7th Edn.,
1974) by R.H. Graveson, who defined the term as under:
“The idea of the Personal Law is based on the conception
of man as a social being, so that those transactions of
his daily life which affect him most closely in a personal
sense, such as marriage, divorce, legitimacy, many kinds
of capacity, and succession, may be governed universally

3 (2004) 12 SCC 278
4 [2012] 10 SCR 1098 : (2012)13 SCC 80
5 [2010] 11 SCR 784 : (2010) 12 SCC 530
6 [2009] 4 SCR 32 : (2009) 6 SCC 160
7 1949 SCC OnLine Mad433
8 [2017] 9 SCR 797 : (2017) 9 SCC 1
930 [2024] 12 S.C.R.

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by that system of law deemed most suitable and adequate
for the purpose …”
(emphasis in original)
…
322. “Personal law” has a constitutional protection. This
protection is extended to “Personal Law” through Article
25 of the Constitution. It needs to be kept in mind that the
stature of “Personal Law” is that of a fundamental right.
The elevation of “Personal Law” to this stature came about
when the Constitution came into force. This was because
Article 25 was included in Part III of the Constitution. Stated
differently, “Personal Law” of every religious denomination
is protected from invasion and breach, except as provided
by and under Article 25.”
(Emphasis supplied)
13. Mohammedan Law, being the personal law, possesses its own legal
principles and regulations which govern family relationships in matters
such as marriage, divorce, inheritance, custody and guardianship.
Its distinctive feature sets it apart from other personal laws on
fundamental issues. It is pertinent to examine the legal principles, if
any, governing partition under Mohammedan law.
14. Tahir Mahmood,9 in his book ‘The Muslim Law of India’, 2nd Edition,
Chapter 12 (Law of Inheritance) Para II, has provided for various
concepts related to succession in Muslim Law which distinguish it
from other personal laws:
"1. The Muslim law of succession is basically different
from the parallel indigenous systems of India. The
doctrine of janmswatvavada (right by birth), which
constitutes the foundation of the Mitakshara law of
succession, is wholly unknown to Muslim law. The
law of inheritance in Islam is relatively close to the
classical Dayabhaga law, though it differs also from

9 The author is a recognized expert on Islamic law, having written numerous acclaimed works on the
subject. He was a retired professor of law at Delhi University and the founder of Department of Islamic
Law at the Indian Institute of Islamic Studies, New Delhi.
[2024] 12 S.C.R. 931

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

that on several fundamental points. The modern
Hindu law of succession (as laid down in the Hindu
Succession Act, 1956) is, however, much different
from both the aforesaid classical systems; it has
a remarkable proximity, in certain respects, to the
Muslim law of inheritance.
2. The division of heritage (daya) into sapratibandh
(‘obstructed’) and apratibandh (‘unobstructed’)-self-
acquired and ancestral- is equally foreign to Muslim
law. Whatever property one inherits (whether from
his ancestors or from others) is, at Muslim law, one’s
absolute property- whether that person is a man or
a woman.
3. In Muslim law, so long as a person is alive he or she
is the absolute owner of his or her property; nobody
else (including a son) has any right, whatsoever, in
it. It is only when the owner dies- and never before-
that the legal rights of the heirs accrue. There is,
therefore, no question of a would-be heir dealing in
any way with his future right to inherit.
4. The Indian legal concepts of ‘joint’ or ‘undivided’ family,
‘coparcenary’, karta, ‘survivorship’, and ‘partition’,
etc., have no place in the law of Islam. A father
and his son living together do not constitute a ‘joint
family’; the father is the master of his property; the
son (even if a minor) of his, if he has any. The same
is the position of brothers or others living together.
5. Unlike the classical Indian law, female sex is no
bar to inherit property. No woman is excluded from
inheritance only on the basis of sex. Women have,
like men, right to inherit property independently, not
merely to receive maintenance or hold property ‘in
lieu of maintenance’. Moreover, every woman who
inherits some property is, like a man, its absolute
owner; there is no concept of either stridhan or a
woman’s ‘limited estate’ reverting to others upon
her death.
932 [2024] 12 S.C.R.

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6. The same scheme of succession applies whether the
deceased was male or a female. This is one of those
salient features of Muslim law of succession which
distinguish it from modern Hindu law of inheritance.”
(Emphasis supplied)
15. The position on devolution of property under Mohammedan Law
has been succinctly captured in Chapter 22- Law of Succession
and Inheritance of Mulla on Mohammedan Law 5th Edition in the
following terms: “all properties devolve by succession, so the rights
of heirs come into existence only on the death of the ancestor. The
whole property vests in them.” The Mohammedan Law has well-
defined rules of inheritance that come into effect upon the death
of the ancestor, and its policy has been to restrain the owner from
interfering in such well-defined rules. Transfer of property if required
to be made during the lifetime of a person, they may do so primarily
by way of gift (hiba). Other methods include the writing of a will but
even therein certain restrictions have been postulated.
16. Prior to looking to the above said sources, a general understanding
of partition would also be instructive. Advanced Law Lexicon10 defined
partition as a separation between joint owners or tenants in common
of their respective interests in land, and setting apart such interest,
so that they may enjoy and possess the same in severalty. In Shub
Karan Bubna v. Sita Saran Bubna,11 partition was defined as under:
“5. “Partition” is a redistribution or adjustment of pre-
existing rights, among co-owners/coparceners, resulting
in a division of lands or other properties jointly held by
them into different lots or portions and delivery thereof
to the respective allottees. The effect of such division is
that the joint ownership is terminated and the respective
shares vest in them in severalty.
6. A partition of a property can be only among those having
a share or interest in it. A person who does not have a share
in such property cannot obviously be a party to a partition.
“Separation of share” is a species of “partition”. When all

10 P Ramanatha Aiyar 3rd Edition Reprint 2009
11 [2009] 14 SCR 40 : (2009) 9 SCC 689
[2024] 12 S.C.R. 933

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

co-owners get separated, it is a partition. Separation of
share(s) refers to a division where only one or only a few
among several co-owners/coparceners get separated, and
others continue to be joint or continue to hold the remaining
property jointly without division by metes and bounds. For
example, where four brothers owning a property divide it
among themselves by metes and bounds, it is a partition.
But if only one brother wants to get his share separated
and other three brothers continue to remain joint, there is
only a separation of the share of one brother.”
(Emphasis supplied)
17. Let us now turn to the position as it is under 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 [See: Mulla Principles of Mahomedan Law,
22nd Edition, Chapter 6; Abdul Wahid Khan v. Mussumat Noran
Bibi & Ors.12]. Reference may also be made to the decision of
this case in Gulam Abbas v. Haji Kayyum Ali & Ors.13 wherein a
bench of three learned judges observed albeit in connection with
renunciation of inheritance as under:
“7. Sir Roland Wilson, in his “Anglo Mohamadan Law” (p.
260, para 208) states the position thus:
“For the sake of those readers who are familiar
with the joint ownership of father and son
according to the most widely prevelant school
of Hindu Law, it is perhaps desirable to state
explicitly that in Mohammedan, as in Roman
and English Law, nemo est heres viventis.........a
living person has no heir. An heir apparent or
presumptive has no such reversionary interest
as would enable him to object to any sale or gift
made by the owner in possession; See Abdul
Wdhid, L.P. 12 I.A., 91, and 11 Cal 597 (1885)

12 1885 SCCOnLine PC 4
13 [1973] 2 SCR 300 : (1973) 1 SCC 1
934 [2024] 12 S.C.R.

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which was followed in Hasan Ali, 11 All 456,
(1889). The converse is also true: a renunciation
by an exepectant heir in the lifetime of his
ancestor is not valid, or enforceable against him
after the vesting of the inheritance.””
(Emphasis supplied)
It is also important to note that the doctrine of partial partition does
not apply to Mohammedan Law as the heirs therein are tenants-in-
common. Succession is to a definite fraction of the estate in question.
A.N. Ray, J. as his Lordship then was wrote in Syed Shah Ghulam
Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul
Quadri,14 as follows:
“20. … In Mohammedan law the doctrine of partial
partition is not applicable because the heirs are tenants-
in-common and the heirs of the deceased Muslim succeed
to the definite fraction of every part of his estate. The
shares of heirs under Mohammedan law are definite
and known before actual partition. Therefore on partition
of properties belonging to a deceased Muslim there is
division by metes and bounds in accordance with the
specific share of each heir being already determined by
the law.”
18. It is acknowledged that Islamic Law has four sources— (i) Quran
(ii) Hadith (iii) Ijma and (iv) Qiyas. It is commonly accepted that all
Islamic personal law has to derive from these four sources. There
is a generally acknowledged division among these four sources as
well. The Quran is pre-eminent and deserving of all primacy followed
by the other three in that very order. The question involved in these
appeals also, of inheritance and/or gift must be decided in reference
thereto only. The topic of inheritance has been dealt with primarily
under Chapter 4 of the Quran,15 Al-Nisa. The relevant verses are
as under:
“4:11 Allah commands you regarding your children: the
share of the male will be twice that of the female.1 If you

14 [1971] 3 SCR 734 : (1971) 1 SCC 597
15 https://quran.com/4
[2024] 12 S.C.R. 935

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

leave only two ˹or more˺ females, their share is two-thirds
of the estate. But if there is only one female, her share
will be one-half. Each parent is entitled to one-sixth if you
leave offspring.2 But if you are childless and your parents
are the only heirs, then your mother will receive one-third.3
But if you leave siblings, then your mother will receive one-
sixth4—after the fulfilment of bequests and debts.5 ˹Be fair
to˺ your parents and children, as you do not ˹fully˺ know
who is more beneficial to you.6 ˹This is˺ an obligation from
Allah. Surely Allah is All-Knowing, All-Wise.
4:12 You will inherit half of what your wives leave if they
are childless. But if they have children, then ˹your share
is˺ one-fourth of the estate—after the fulfilment of bequests
and debts. And your wives will inherit one-fourth of what
you leave if you are childless. But if you have children,
then your wives will receive one-eighth of your estate—
after the fulfilment of bequests and debts. And if a man
or a woman leaves neither parents nor children but only
a brother or a sister ˹from their mother’s side˺, they will
each inherit one-sixth, but if they are more than one, they
˹all˺ will share one-third of the estate1—after the fulfilment
of bequests and debts without harm ˹to the heirs˺.2 ˹This
is˺ a commandment from Allah. And Allah is All-Knowing,
Most Forbearing.
4:176 They ask you ˹for a ruling, O Prophet˺. Say, “Allah
gives you a ruling regarding those who die without children
or parents.” If a man dies childless and leaves behind a
sister, she will inherit one-half of his estate, whereas her
brother will inherit all of her estate if she dies childless. If
this person leaves behind two sisters, they together will
inherit two-thirds of the estate. But if the deceased leaves
male and female siblings, a male’s share will be equal to
that of two females. Allah makes ˹this˺ clear to you so
you do not go astray. And Allah has ˹perfect˺ knowledge
of all things.1”
19. Reading of the above verses reveals clearly with the use of the
words ‘leave’, ‘leaves’ or ‘man dies’ that division of property is only
possible upon the death of a person, amongst his heirs. There is
936 [2024] 12 S.C.R.

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no prescription as to how the partition of property may take place
when a person is alive.
20. One may reasonably conclude, having referred to the primary texts
and commentaries on Mohammedan Law, that partition while a person
is alive between him and his heirs is impermissible. The manner in
which partition is to take place after the death of the ancestor is set
out in great detail in the sources of Mohammedan Law however, the
same is beyond the scope of the present lis.
21. Sultan Saheb therefore during his lifetime could not have partitioned
his property, giving two parts thereof to his sons. The same is not in
accordance with law. The possibility of Sultan Saheb’s succeeding
their father in interest of the said property, could only have arisen in
1978 when Sultan Saheb passed away. When the partition of property
would have taken place upon his death in 1978, the appellants as also
the respondents herein would have received shares as prescribed
under Mohammedan Law. As already observed supra, the only way
permissible to Sultan Saheb to have given two parts of his property
to his two sons would have been through hiba, the requirements of
which have been culled out further ahead in this judgment.
22. Let us now turn our attention to the next question arising for
adjudication i.e., the claim of the appellants herein that their father
Sultan Saheb had in fact gifted two parts of his property to them.
23. We now examine the law that deals with oral gifts and their validity
under Mohammedan Law. A hiba literally means “the donation of a
thing from which the donee may derive benefit”. Technically, it is “an
unconditional transfer of property, made immediately and without any
exchange or consideration, by one person to another and accepted
by or on behalf of the latter.”16
24. The position of oral gift is well settled by the Courts of law. In ‘Outlines
of Mohammadan Law’,17 A.A. Faizee described ‘gift’ as:
“A man may lawfully make a gift of his property to another
during his lifetime; or he may give it away to someone
after his death by will. The first is called a disposition

16 Hedaya, 482
17 (2009) 6 SCC 160
[2024] 12 S.C.R. 937

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

inter vivos; the second, a testamentary disposition.
Muhammadan law permits both kinds of transfers; but
while a disposition inter vivos is unfettered as to quantum,
a testamentary disposition is limited to one-third of the net
estate. Muhammadan law allows a man to give away the
whole of his property during his lifetime, but only one-third
of it can be bequeathed by will.”
Ameer Ali defines ‘hiba’ in the following terms:
“A hiba is a voluntary gift without consideration of property
or the substance of thing by one person to another so
as to constitute the donee the proprietor of the subject
matter of the gift.”
While referring to Mohammedan Law, by Syed Ameer Ali,18 the Privy
Council in Mohd. Abdul Ghani v. Fakhr Jahan Begam19 observed:
“For a valid gift inter vivos under the Mahomedan law
applicable in this case, three conditions are necessary,
which their Lordships consider have been correctly stated
thus: “(a) manifestation of the wish to give on the part
of the donor; (b) the acceptance of the donee, either
impliedly or expressly; and (c) the taking of possession of
the subject-matter of the gift by the donee, either actually
or constructively.”
(Emphasis supplied)
This Court, in Jamila Begum v. Shami Mohd.,20 reiterated the
essentials of valid and complete gift as laid down in Abdul Rahim
(supra),21:
“23. Under the Mohammedan law, no doubt, making oral
gift is permissible. …
13. The conditions to make a valid and complete gift under
the Mohammadan law are as under:

18 4th ed., vol. i., p. 41.
19 1922 SCC OnLine PC 18
20 [2018] 13 SCR 1253 : (2019) 2 SCC 727
21 (2009) 6 SCC 160
938 [2024] 12 S.C.R.

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(a) The donor should be sane and major and must be
the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time
of hiba.
(c) If the thing gifted is divisible, it should be separated
and made distinct.
(d) The thing gifted should be such property to benefit
from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things
not gifted i.e. should be free from things which have
not been gifted.
(f) The thing gifted should come in the possession of
the donee himself, or of his representative, guardian
or executor.”
Mulla on Mohammedan Law22 provides for the manner in which a
gift is to be made which are:
“by a clear and unequivocal declaration of intention of
making a gift made orally or in writing by the donor or
his agent, and
i. accepted expressly or impliedly by the donee or his
agent except in the case of a gift,
a. by a guardian to his ward; or
b. of a debt to the debtor; and
ii. Such declaration and acceptance must be followed by
the delivery of possession (actually or, constructively)
of the subject-matter of the gift by the donor or his
agent to;
a. the donee or his agent; or
b. To the guardian, if the donee is a minor or
lunatic; or

22 5th Edition
[2024] 12 S.C.R. 939

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

c. To the husband if the donee is a minor
wife provided that the marriage has been
consummated; or
d. To the trustees, if the gift is made through a trust.
iii. On the delivery of possession, a gift becomes
complete, immediately.”
(Emphasis supplied)
25. The upshot of the above discussion is that there are three essential
elements which are necessary for a valid gift deed. They are:
a) The gift has to be necessarily declared by the person giving
the gift, i.e., the donor;
b) Such a gift has to be accepted either impliedly or explicitly by
or on behalf of the donee; and
c) Apart from declaration and acceptance, there is also a
requirement of delivery of possession for a gift to be valid.
26. It is a fact that the requirements for the validity of a gift deed are
sequential. One must follow the other. The latter can only hold water
if the first one is complied with. In other words, if (a) is not complied
with, (b) and (c) would not be of consequence; similarly, if (a) and
(c) are met without (b), it would still be of no consequence. In the
end, all three conditions must be met.
27. Thus, registration of gift is not required under Mohammedan Law
and, the unwritten and unregistered gift executed by the donor in
favour of donees is valid. This position has been reiterated by this
Court on various occasions. We may refer to a few of them.
In Rasheeda Khatoon v. Ashiq Ali,23 it was observed:
“17. …a gift under the Muhammadan law can be an oral
gift and need not be registered; that a written instrument
does not, under all circumstances require registration;
that to be a valid gift under the Muhammadan law three
essential features, namely, (i) declaration of the gift by the
donor, (ii) acceptance of the gift by the donee expressly or

23 [2014] 11 SCR 31 : (2014) 10 SCC 459
940 [2024] 12 S.C.R.

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impliedly, and (iii) delivery of possession either actually or
constructively to the donee, are to be satisfied; that solely
because the writing is contemporaneous of the making of
the gift deed, it does not warrant registration under Section
17 of the Registration Act.”
(Emphasis supplied)
This position was reiterated by this Court in Hafeeza Bibi v. Sk.
Farid 24 -
“10. In Mahboob Sahab v. Syed Ismail [(1995) 3 SCC 693]
this Court referred to Principles of Mahomedan Law by
Mulla, 19th Edn. and in para 5 noticed the legal position,
in relation to a gift by a Muslim incorporated therein, thus:
(SCC pp. 696-97)
“5….It would, thus, be clear that though gift by
a Mohammadan is not required to be in writing
and consequently need not be registered under
the Registration Act; for a gift to be complete,
there should be a declaration of the gift by
the donor; acceptance of the gift, expressed
or implied, by or on behalf of the donee, and
delivery of possession of the property, the
subject-matter of the gift by the donor to the
donee. The donee should take delivery of the
possession of that property either actually or
constructively. On proof of these essential
conditions, the gift becomes complete and
valid. In case of immovable property in the
possession of the donor, he should completely
divest himself physically of the subject of the
gift.”
(Emphasis supplied)
This Court in D.N. Joshi v. D.C. Harris25 placed reliance on the
following observation of Hafeeza Bibi (supra):

24 [2011] 5 SCR 1155 : (2011) 5 SCC 654
25 [2017] 7 SCR 326 : (2017) 12 SCC 624
[2024] 12 S.C.R. 941

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

“31…
27. In our opinion, merely because the gift is
reduced to writing by a Mohammadan instead
of it having been made orally, such writing does
not become a formal document or instrument
of gift. When a gift could be made by a
Mohammadan orally, its nature and character
is not changed because of it having been made
by a written document. What is important for a
valid gift under Mohammadan Law is that three
essential requisites must be fulfilled. The form is
immaterial. If all the three essential requisites are
satisfied constituting a valid gift, the transaction
of gift would not be rendered invalid because it
has been written on a plain piece of paper. The
distinction that if a written deed of gift recites
the factum of prior gift then such deed is not
required to be registered but when the writing
is contemporaneous with the making of the gift,
it must be registered, is inappropriate and does
not seem to us to be in conformity with the rule
of gifts in Mohammadan Law…”
(Emphasis supplied)
28. Under Mohammedan Law, a gift is to be effected in the manner laid
down under the law. If the conditions prescribed by that law are
fulfilled, the gift is valid, even though it is not effected by a registered
instrument. But if the conditions are not fulfilled, the gift is not valid
even though it may have been effected by a registered instrument.
Therefore, a valid gift could be made by oral statements as well so
long as the three requirements as discussed above are met thereby.
This is because registration is not a requirement which obviates the
need for a gift to be reduced in writing.
29. Another aspect which needs to be considered is the Mutation Entry.
The appellants claim that even though the entry uses the word
‘partition’, it should be read as ‘gift’. Both the Trial Court and High
Court have held that the same is not possible and if the entry reads
‘partition’ it has to necessarily be read as so.
942 [2024] 12 S.C.R.

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30. In order to appreciate this contention, two aspects are important.
One, the importance of nomenclature and two, the purpose of a
mutation entry.
31. Before proceeding further, it should be apposite to reproduce the
Mutation Entry:
“The details of the partition of the property done by Sultan
Abdul Khader Shek in favour of his two sons:

Sy. No. Extent Akara Occupants
249/A1/1A 4 acres 3 guntas 1-79 Shek Sultan Saheb
Abdul Khader Shek
249/A1/1B 4 acres 15 ¼ 1-80 Mansoor Sikandar
S/o Sultansah
249/A1/1C 4-15 1-80
From this two pattas taken effect as per the wardi.”
Indubitably, it is a settled law that 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, as already noted above, 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.
32. What is required to be considered is the intention as shown by the
words written in a document as observed by this Court in Mathai
Samuel (supra):
“19. The primary rule of construction of a document is the
intention of the executants, which must be found in the
words used in the document. The question is not what may
be supposed to have been intended, but what has been
said. We need to carry on the exercise of construction
or interpretation of the document only if the document is
ambiguous, or its meaning is uncertain. If the language
used in the document is unambiguous and the meaning
is clear, evidently, that is what is meant by the executants
[2024] 12 S.C.R. 943

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

of the document. Contemporary events and circumstances
surrounding the execution of the document are not relevant
in such situations.
…
21. Coleridge, J. in Shore v. Wilson [(1842) 9 Cl & Fin
355 : 8 ER 450 (HL)] [Cl & Fin at pp. 525-26] held as
follows : (ER pp. 517-18)
“The intention to be sought is the intention which
is expressed in the instrument, not the intention
which the maker of the instrument may have had
in his mind. It is unquestionable that the object
of all exposition of written instruments must be
to ascertain the expressed meaning or intention
of the writer; the expressed meaning being
equivalent to the intention … it is not allowable
… to adduce any evidence, however strong, to
prove an unexpressed intention varying from that
which the words used import. This may be open
no doubt to the remark, that, although we profess
to be explaining the intention of the writer, we
may be led in many cases to decide contrary
to what can scarcely be doubted to have been
the intention, rejecting evidence which may be
more satisfactory in the particular instance to
prove it. The answer is, that interpreters have to
deal with the written expression of the writer’s
intention, and courts of law to carry into effect
what he has written, not what it may be surmised,
on however probable grounds, that he intended
only to have written.”
…
25. ...In order to ascertain the intention of the testator,
the point for consideration is not what the testator meant
but what that which he has written means. It is often said
that the expressed intentions are assumed to be actual
intentions. This Court in A. Sreenivasa Pai v. Saraswathi
Ammal [(1985) 4 SCC 85] held that: (SCC p. 89, para 4)
944 [2024] 12 S.C.R.

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“4. … In construing a document, whether
in English or in any Indian language, the
fundamental rule to be adopted is to ascertain
the intention adopted from the words employed
in it.”
…”
(Emphasis supplied)
33. 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. Lord Wensleydale, in an oft-quoted
passage, stated the rule of literal construction:
“In construing will and indeed statutes and all written
instruments, the grammatical and ordinary sense of
the word is adhered to, unless that would lead to some
absurdity, or some repugnance or inconsistency with the
rest of the instrument in which case the grammatical and
ordinary sense of the words maybe modified, so as to
avoid that absurdity, and inconsistency, but no further.”
(Emphasis supplied)
34. A perusal of the Mutation Entry No.8258 (Ex.P1) shows that Sultan
Saheb got the ‘partition’ done in favour of his sons. The words
“partition of the property done by Sultan Abdul Khader Shek” 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 Sultan
Saheb intended to gift the property, it ought to have been recorded
as a gift in the Mutation Entry.
35. Additionally, the purpose of mutation entry, as is well settled is only
limited to revenue records. They do not, in any way, translate to
or confer any title in regard to the subject matter property. Some
decisions reflecting this position of law are as follows:
In Sawarni v. Inder Kaur26 -
“7. … Mutation of a property in the revenue record does

26 [1996] Supp. 5 SCR 165 : (1996) 6 SCC 223
[2024] 12 S.C.R. 945

Mansoor Saheb (Dead) & Ors. v. Salima (D) By Lrs. & Ors.

not create or extinguish title nor has it any presumptive
value on title. It only enables the person in whose favour
mutation is ordered to pay the land revenue in question. ...”
In Jitendra Singh v. State of M.P. & Ors.27 –
“7. Right from 1997, the law is very clear. In the case
of Balwant Singh v. Daulat Singh (D) By Lrs., reported
in (1997) 7 SCC 137, this Court had an occasion to
consider the effect of mutation and it is observed and
held that mutation of property in revenue records neither
creates nor extinguishes title to the property nor has it any
presumptive value on title. Such entries are relevant only
for the purpose of collecting land revenue. Similar view
has been expressed in the series of decisions thereafter.”
This position was recently reiterated by this Court in P. Kishore
Kumar v. Vittal K. Patkar.28
36. Proceeding to the factual circumstances of the case, the primary
requirement of ‘declaration of clear and unequivocal intention’ is not
proved. The testimonies of the witnesses, DW2 (Rasoolsab) and DW3
(Gulabsingh), examined by the original defendants/appellants, do
not offer any relevant details which can show that the donor, Sultan
Saheb, possessed the requisite intent and with that intent, he made
a declaration in favour of his sons. Having considered the material
on record, we do not find any reason to take a view differing from the
Trial Court and High Court in disbelieving the testimonies of these
witnesses. A perusal of the Trial Court judgment lends credence to
this conclusion for the testimonies as extracted therein are nothing
but vague, it seems that the witnesses were trying desperately to
make relevant testimony grasping at strands of fading memory.
That apart, there is no mention of these witnesses 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, which is of significance. When neither the words of the
Mutation Entry nor the Entry itself support the claim of the original-

27 2021 SCC OnLine SC 802
28 [2023] 14 SCR 796 : 2023 SCC OnLine SC 1483
946 [2024] 12 S.C.R.

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defendants/appellants in any manner, for neither can it be a gift nor
does the Mutation Entry mean that any title rests with them, the
case of the original-defendants/appellants necessarily has to fail.
The oral gift made by Sultan Saheb in favour of his sons cannot be
held to be a valid gift.
37. The questions of law are answered accordingly.
38. As a result of our discussions in the foregoing paragraphs, we do
not find any fault with the reasoning given by the Trial Court and the
High Court qua the questions of gift and partition. The correct position
of law in so far as registration is concerned has been stated in the
preceding paragraphs as not applying to gifts and wholly inapplicable
to partition as the concept itself is foreign to this branch of personal
law in the lifetime of the ancestor. The order passed by the Trial
Court in O.S. No.140/88 and confirmed by the High Court in RFA
No.469 of 1998, clubbed with RFA No.493 of 1998, is confirmed in
the above terms. Both the appeals stand dismissed.
39. Before parting with this matter, we record our appreciation for
the invaluable assistance provided by Mr. Huzefa Ahmadi, Senior
Counsel.
Pending application(s), if any, shall stand disposed of.

Result of the case: Appeals dismissed.

†
Headnotes prepared by: Divya Pandey