GIFTS UNDER MUSLIM LAW

Under Muslim law, the rules of inheritance of property are strict. 1 Therefore, situations can arise wherein a persons property may devolve upon people he does not want by intestate succession. It is to remedy such situations that Muslims use the option of Hiba, or gift inter vivos. It allows a person in his lifetime to take appropriate decisions about his property and secure the futures of people who he thinks deserve larger shares than those allowed by Islam.2 A gift satisfying certain specific legal requirements is, in Muslim Law called hiba. The requirements are the disposition must be gratuitous, it must affect an immediate transfer of the corpus of a property by one person to another, the transfer must be unconditional 3 and finally the property transferred must be in existence and should be specified. 4 It should be noted that any other gratuitous disposition of property, which doesnt satisfy these requirements may be gifts within the meaning of this English term, and may also be a valid transaction at Muslim Law, but it will not be a hiba.5 Besides hiba there are also other kinds of gifts under Muslim Law. An Ariat is a limited right of the use or usufruct of some property or right. It may be conditional and may not involve transfer of ownership; it may be contingent on a future happening. 6 Another kind of gift is called Sadaq wherein the object of the gift is to obtain merit in the eyes of God. It is exactly like a hiba with the only exception being that it cannot be revoked under any circumstance. 7 The present section deals only with the concept of hiba. There are four kinds of Hiba. The first one is Hiba, pure and simple, which is a transfer without consideration. The second kind being, Hiba-bil-ewaz, which is a transaction of mutual gifts. The third kind is false Hiba-bil-ewaz wherein the gift is made for an exchange, such a transaction having the character of a sale, and hence not a Hiba. The fourth kind is
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Muslim law also imposes a restriction on the property that can be willed away. Only one third of the property can be bequeathed. Poonam Pradhan Saxena, Family Law Lectures Family Law II (New Delhi; LexisNexis Butterworths; 2004) at 515. 2 Syed Ameer Ali, Muhammadan Law (Kitab Bhavan; New Delhi; 1986) at 39. 3 Muslim law expects a hiba to be without conditions. In case there are conditions that accompany a hiba, the gift is valid and the conditions invalid. Gifts, which are made contingent on certain future happenings and conditions, for example, gifts of crop that may be produced in the future, are also invalid. 4 Tahir Mahmood, The Muslim Law of India (New Delhi; Universal Book Traders; 1982) at 192. 5 Poonam Pradhan Saxena, Family Law Lectures Family Law II (New Delhi; LexisNexis Butterworths; 2004) at 516. 6 BR Verma, Islamic Law Personal (Law Publishers; Allahabad; 1986) at 530. 7 Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford University Press; New Delhi; 2005) at 268.

Hiba-ba-shart-ul ewaz i.e. a gift with the condition of a return. Such a gift also has the character of a sale as soon as the consideration if fulfilled. It is a gift on inception and a sale on completion8. All mal or forms of property over which control may be exercised are proper subjects of gift. These include all mal, whether ancestral or self acquired, movable or immovable, corporeal or incorporeal. A gift of an actionable claim is also valid under Muslim Law.9 The essential elements of a gift under Muslim Law are clear and well settled. They are declaration of the gift by the donor, acceptance of the gift, expressly or impliedly, by or on behalf of the donee and delivery of possession of the subject matter of the gift to the donee. 10 Declaration here does not simply mean an announcement to make a gift. It means that the donor should have the real intention to make the gift. This is to prevent benami transactions and to prevent people from using the option of gifts to defraud their creditors. 11 The donee must accept the hiba for it to be valid. This acceptance must be express or implied i.e. by conduct. However, the gift of a debt to a debtor or his heir is valid without acceptance and is not invalidated by the debtors refusal to accept the gift. It should be noted that no acceptance is required when a gift is to a child from his/her mother or father or from a guardian to a ward.12 Finally, the delivery of possession in the case of a gift may be express or constructive. In the case of more than one donee, possession by one co-sharer is presumed to be on the behalf of the rest as well. To validly complete a gift of movable property, the donor must deliver the possession and in case of immovable property, he should vacate the possessions along with his belongings and should put the donee in possession. Wherever, the gift is to be made of a part of an undivided property, it is necessary that such part be separated before the gift is made in case it is capable of separation. However, in case the undivided part or the Musha is not capable of division, the gift is valid as such. 13 The delivery of possession may be constructive in cases where the gift is by a husband to the wife or vice versa; where the gift is

8 9

Supra. note 34 at 616. M.Hidayatullah and Arshad Hidayatullah, Mullas Principles of Muslim Law (Bombay: N.M Tripathi Private Limited; 1990) at 113. 10 Syed Khalid Rashid, Muslim Law (Lucknow; Eastern Book Company; 2006) at 216. 11 Supra note 33, at 524-526. 12 Supra note 33, at 528 13 Supra note 35, at 239.

by the father to the minor child or by a guardian to his ward; where the donor and donee reside in the same property, which is the subject matter of the gift.14 The qualifications of a donor, for making a gift, are the same as under the Indian Contract Act. Every Muslim male or female, who is a major, and sane may make a gift, provided he or she is not subject to any force or fraud. It is quite clear that in the absence of these conditions, the gift may be null and void. A married Muslim female can also make a gift. 15 For a donee, competency to contract is not an essential requirement. A donee can be a minor or even a person of unsound mind, of any sex, any age and even of any religion. 16 The only qualification is that the donee must exist. Therefore gift made to an unborn child is void under the scheme of Muslim Law. Muslim Law also allows gifts to juristic persons as mosques, durgahs, and charitable institutions like schools. 17 Sometimes it may so happen that one of the parties is a non-Muslim. According to many scholars including Tahir Mahmood and Poonam Pradhan Saxena, the religion of the donee is immaterial. In Someshwar v. Barkat Ullah and Ors18, the Allahabad High Court held that where A, a Muslim, makes a gift of property, the gift would be subject to the obligations imposed upon the gift under the Mohammedan Law and the mere fact that the donee is a nonmuslim doesnt exempt the transaction from being subject to the limitations imposed upon it under the Mohammedan Law. It should be also noted that once the gift is complete, the further devolution of the property would be governed by the law applicable to the donee.19 Muslim law discourages the revocation of gifts once made because gifts help increase the comity between the donor and donee. However, the gift being a voluntary transaction may be revoked by the consent of the donee or in its absence by the intervention of the court. A mere declaration by the donor to the effect of the revocation is not valid unless consented by the donee. However, there are certain gifts that may not be revoked. For example, in cases where

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Supra note 33, at 528. Supra. note 30 at 42. 16 Supra note 33, at 518. 17 A valid gift can however, be made to a child in the womb of his mother, provided that the child is born within six months of the date of the making of gift. In such cases, the child is treated as a separate entity. Supra note 33, at 518. 18 AIR 1963 All 469. 19 Supra note 35, at 263; Supra note 33, at 519.

donor and donee are related by consanguinity or are husband and wife or the death of the donor or donee or the gifted item being destroyed etc.20 Under Muslim Law, a gift may not necessarily be written i.e. oral gifts are allowed. A written document may be only a statement of the fact of the prior gift or it may be an instrument by which the gift is affected. The former needs no registration while the latter must be registered. Since, section 129 of TPA exempts Muslims from the provisions of Section 123; a gift under Muslim law cannot be invalidated for want of registration. It should also be noted that a Muslim can make an oral gift is a general rule, it may therefore have to give way to any special rule relating to any gift of any particular kind of property. 21 The researcher is however of the opinion that registration is not an anti-religious act and does not interfere with the observance of religious rites. On the other hand, it ensures a proper authentic record of the property transaction, which is ultimately beneficial to the parties. Muslim Jurists have themselves acknowledged in their definitions, that hiba is regarded as a part of the law of contracts and that the concepts of contract underscore the concept of hiba.22 Therefore, there is nothing unusual in bringing these transactions under the ordinary civil law, which governs the other sales and contracts by Muslims.

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Supra. note 35 at 266. Supra note 35, at 258. 22 Supra note 35, at 262.