The Myth of Religious and Secular “Hiba”
In a Judgment delivered by Justice V.R. Krishna Iyer (as he then was) in Makku Rawther’s Children: Assan Ravther v Manapahara Charayil, it was held that oral gifts of “secular” as distinguished from gifts of “religious” nature should conform with the requirements of writing, attestation and registration as laid down in Section 123, Transfer of Property Act, 1882 in order to survive the scrutiny of Article 14 of the Constitution. By classifying gifts into religious and secular categories, this judgment imports into the fabric of Islamic Law something which was hitherto unknown. It, therefore, requires a close consideration.
Section 129, Transfer of Property Act provides that “Nothing in this Chapter (which deals with the Gifts)….. Shall be deemed to affect any rule of Mohammedan Law”.
Section 123 lays down the manner in which a gift has to be affected and prescribes the need for a registered instrument signed by the donor and attested by at least two witnesses if the subject-matter is immovable property.
Now, according to Justice Krishna Iyer, the Muslim Jurists, though evolving the three ingredients of declaration, acceptance and vesting of possession, do not give any “hint anywhere of any taboo of a Mussalman reducing a gift to writing, to get it attested or to get it registered by any public authority.” He then goes on to assert that “there is absolutely no conflict between Section 123 and the rules of Muslim Law except, may be where religious or charitable gifts are made.” Seen in this context, it is not justifiable to classify various communities for purposes of documentation, attestation and registration of purely secular gifts.
The position may be basically different in the case of wakfs, trusts and gifts of a religious or ious or charitable nature like sadaqahs. Indian Humanity is not secular enough to obliterate religious sentiment. Article 25 protects the right to religious practice and Article 15 does not proscribe religious grouping altogether. So much so, gifts prompted by piety or possessed of a sacred savor may be classified on a religious differentia; not so, purely secular transfers. A gift by a Muslim Paramour to a heathen mistress cannot claim immunity from Section 123 of the Act by the mere incantation of a particular religion is to make a shambles of Articles 14 and 15(1) and a simulacrum of Article 44. The old laws must be tuned up to the new law of the Constitution and the spirit of the times. Religious and Charitable Transfers stand on a different footing
According to Justice Krishna Iyer, such a reading of the Muslim Law of gift will not go counter to Section 2, Muslim Personal Law (Shariat) Application Act, 1937 because
The application of Muslim Personal Law to gifts precludes the application of other laws which do not run counter to the rules of Muslim Law… Moreover….the expression ‘gifts’ in Section 2 along with trusts and trust properties and wakfs takes color from the society of these words. It is therefore, right as a matter of construction to limit the scope of the expression ‘gift’ in Section 129 of the Act to that category of gifts which has a religious import or charitable motivation…. Purely secular gifts cannot get the protection of Section 129 if that provision is read down to vindicate a reasonable classification.
Whatever might have been the content of the word ‘gift’ in Section 129 when it was originally enacted; its meaning has to be gathered today in the constitutional perspective of Articles 14, 15, 25 and 44. As years go on, meanings of words change and the changing circumstances illuminate the new import of that meaning…. When interpreting the provisions of law susceptible to different meanings, a Judge has to pay due regard, though to a limited extent, ‘to the policies which he believes to represent the sober second thought of the community that framed it and are suited to its inarticulate needs’.
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