A gift of an immovable property by a Muslim will not need registration in Maharashtra. It will be applicable to all gifts executed as per the Mohammedan Law, including cases where the gifting has been carried out orally.
The BJP government in Maharashtra has stated that a gift of an immovable property, whether oral or written, under the Muslim law will be considered as a valid one, even if the deed in this regard has not been registered. Confirming the move, government sources said that the state’s revenue department will now issue directives to tahsildar and district level revenue department officials across Maharashtra, asking them to take even the valid but unregistered gift deed under the Mohammedan Law on record while mutating property records.
Simultaneously, officials from the stamps and registrations cell of the department would be given directives, asking them not to insist on payment of stamp duty and registration fees on such gifts.
Even as the Transfer of Property Act (1882) and the Maharashtra Stamp Act (1958) mandate the registration of a gift, the Maharashtra government has cited a 2015 ruling of the Nagpur bench of the Bombay High Court to rule that the condition was not to be applied in the case of the Muslim donor. Citing provisions of the Mohammedan Law, the court had earlier ruled the condition should not be applied to a Muslim donor gifting his property under provisions of the Mohammedan Law. “There is no provision in the TP Act (1882) for levying stamp duty on oral gift made by any Mohammedan of sound mind, in favour of the donee,” the court had earlier said, while hearing an individual petition where a donor had challenged levying of the stamp duty by government officials.
Citing the same court order, the government has also stated that “a gift under the Mohammedan Law” need not be through a written instrument. It can be oral as long as it is accompanied by a declaration of gift by the donor, acceptance of the gift by the donee, and the delivery of possession of the property.
Gifting of a property under the Mohammedan Law is referred to as ‘Hiba’. While the gifting instrument is called ‘Hibanama’.
On the basis of the court’s ruling, the department had first sought the law department’s opinion in this regard, which consented to the move. “The legal position that emerges is that a gift under the Mohammedan Law can be oral and need not be registered, a written instrument of the gift does not require registration under all circumstances, and a gift to valid under the Mohammedan Law must conform to three essentials. i.e. Declaration, Acceptance, and Delivery of Possession,” the law department had advised. The government has said that the decision will also apply to gifts executed in the past. Minister of State (Revenue) Sanjay Rathod has confirmed the initiative.