Introduction

Gift is a Transfer of Property and is defined in Section 122 of the Transfer of Property Act, 1882. It is a unique
transfer of property in the sense that it involves no consideration. The basic essence of a gift is the complete
absence of consideration[1]. The law of gifts in India is governed by Sections 122 to 129 of the Transfer of
Property Act, 1882. However Mohammedan gifts are subject to the rules of Muslim Law and the Transfer of
Property Act, 1882 is not applicable to such gifts.
The differences between the Muslim Law of gifts and the law of gifts under the Transfer of Property Act arent
very great. Apart from a few minor differences owing to religion and custom the basic essence and concept
of a gift is the same under both systems of law.
There cannot be too many differences between gifts under different systems of law as the definition of a gift
is very clear and there is a well-settled consensus as to what the essential elements of a gift are. To have too
many differences between the laws of gifts might interfere with the fundamentals of the concept of a gift and
give the transaction a different colour. For example there is a consensus amongst almost all systems of law
that a gift involves no consideration and involves the elements of voluntary giving and acceptance followed
by possession in the hands of the donee ie. the person who accepts the gift from the donor ie. the person
who gives the gift. This consensus is almost universal and will remain unchanged.
In this project a comprehensive comparative study and analysis of Gifts under the Transfer of property Act,
1882 and Mohammedan gifts has been performed. This project first deals with Gifts under the Transfer of
Property Act. It explains and analyses the various sections dealing with gifts with reference to appropriate
case law. The study of Hiba or a Mohammedan gift with reference to the various rules of Mohammedan law
relating to gifts and judicial interpretation also forms an integral part of the project. This project also deals
with a donatio mortis causa or a gift made in contemplation of death with reference to the Indian Succession
Act, 1925. In order to achieve a greater understanding of the concept of gifts the transaction of gift has been
compared and differentiated from other forms of transfer of property. The project also compares the law of
gifts under the Transfer of Property Act, 1882 and the Muslim Law of gifts. This part of the project is
extremely important as it is here that the conflict between Mohammedan gifts and Gifts under the Transfer of
Property Act, 1882 is discussed. The researcher has endeavoured to study the conflict in great detail from
various viewpoints and has also given some suggestions about the same.
The right to gift away ones property whether movable or immovable is an important right and an important
element of property law. Although a gift involves no consideration in the legal sense it involves the
consideration of love, affection, spiritual and religious benefit etc. whose importance cannot be overlooked.
Thus the law relating to gifts has a humane element in it and as such the law of gifts should be clear and
unambiguous without any scope for misuse and controversy. This objective might be idealist but ultimately
the law relating to gifts should always strive to protect the interests of the donee, donor and the property
involved in the greater interests of justice.

Research Methodology

Aims and Objectives

The aim of this Project is to provide a comprehensive analysis and comparison between Gifts under the
Transfer of Property Act, 1882 and Mohammedan Gifts. The project aims at explaining and analyzing the
relevant provisions of the Transfer of Property Act, 1882 and also understanding the rules of Muslim Law
relating to gifts. The project also aims at differentiating Gifts from other forms of Transfer of Property and
studying gifts under the Succession Act. The controversy regarding the interpretation of section 129 of the
Transfer Of Property Act, 1882 has also been highlighted in the project and suggestions to end the
controversy between Hiba and the Transfer of Property Act, 1882 have also been given.
Nature of project

The project is descriptive as well as analytical in nature. However the majority of the project is analytical in
nature.
Sources Of Data
The sources of data used are mainly secondary in nature. A host of leading textbooks on Property Law as well
as case reporters like All India Reporter (A.I.R), Supreme Court Cases (SCC) etc. and journals like Annual
Survey of Indian Law have been referred to.
Scope and Limitation
The scope of this project is limited to the law of gifts prevailing in India only. Areas of focus and concentration
have been the provisions of the Transfer of Property Act, 1882 relating to gifts and the rules of Muslim Law
relating to gifts in India. Owing to the vastness and complexity of the rules under Muslim Law just the basic
concepts and fundamentals of the law of gifts have been focused upon.
Research questions
The research questions are:

What is a gift under Muslim Law and the Transfer of Property Act?

What are the concepts of property associated with gifts?

What are the various aspects of Property law that muslim Law and the Transfer of Property Act deal
with in relation to gifts and how are these various aspects dealt with?

What are the differences between Mahomedan gifts and Gifts under the Transfer of Property Act,
1882?

What are the main issues in the controversy and conflict between the Transfer of Property Act, 1882
and the Muslim Law of Gifts?

How has this controversy been dealt with ?

How can this conflict be resolved so as to prevent injustice of any sort?

Mode of Citation
A uniform mode of citation has been adopted throughout the project.

Gifts Under The Transfer Of

Property Act, 1882
Section 122 of the Transfer of Property Act, 1882 defines a Gift as
Gift is the transfer of certain existing movable or immovable property made voluntarily and
without consideration, by one person, called the donor, to another, called the donee, and
accepted by or on behalf of the donee.

In ordinary legal effect there cannot be a gift without a giving or taking. The giving or taking are two
contemporaneous, reciprocal acts, which constitute a gift. The essential elements of a gift are:[2]

The Absence of Consideration

The Donor

The Donee

The Subject Matter

The Transfer

The Acceptance

Absence of Consideration
The concept of Gift is diametrically opposed to any presence of consideration or compensation. The essence
of a gift is that it is a gratuitous transfer. Blackstone says Gifts are always gratuitous, grants are upon some
consideration or equivalent.[3] The word voluntarily in Section 122 of the Transfer of Property Act, 1882 is
used in its popular sense denoting the exercise of unfettered will and not in its technical sense of without
consideration. [4]
In Shakuntala v. State of Haryana[5] the Supreme Court stated that it is one of the essential requirements of
a gift that it it should be made by the donor without consideration. The word consideration has not been
defined in the Transfer of Property Act, 1882 but we have no doubt that it has been used in the Act in the
same sense as in the Indian Contract Act, 1872 and excludes natural love and affection. If it were to be
otherwise a transfer would really amount to a sale or an exchange for each party will have the rights and be
subject to the liabilities of a seller as to what he gives and have the rights and be subject to the liabilities of a
buyer as to what he takes. It is the essence of a gift that it should be without consideration. The principles
laid down in the Indian Contract Act,1872 relating to free consent would apply in determining whether a gift
is voluntary. Law as to undue influence is the same in the case of a gift inter vivos as in the case of a
contract. In Shakuntala v. State of Haryana [6] it was held that a gift made under undue influence and not
voluntarily was void. The court stated that while trying a case for undue influence it must consider two
things: (a) Whether the relation between the donor and donee is such that the donee is able to dominate the
will of the donor. (b) Has the donee used that position to obtain an undue advantage over the donor?

Donor
The donor is the person who gives. Any person who is sui juris can make a gift of his property. A minor, being
incompetent to contract is incompetent to transfer and a gift by the minor would therefore be void. Trustees
cannot make a gift out of trust property unless authorized by the terms of the trust.[7]

Donee
The donee is the person who accepts the gift. A gift may be accepted by or on behalf of a person who is not
competent to contract. A minor may therefore be a donee; but if the gift is onerous, the obligation cannot be
enforced against him while he is a minor. The donee may be a person unable to express acceptance. Thus a
gift can be made to a child en ventre sa mere and could be accepted on its behalf[8]. The donee must be an
ascertainable person and so the public cannot be a donee under Section 122 of Transfer of Property Act,
1882. Gift to an unregistered society and a transfer of property to God is also not a valid gift within the
meaning of Section 122. In Shri Ram Krishan Mission v. Dogar Singh[9] dedication of property by a Hindu to
a dharmasala was held not to be a gift as the donee was not a living person.

Subject Matter

The subject matter of the gift must be certain existing movable or immovable property. It may be land, goods
or actionable claims. It must be transferable under Section 6 of the Transfer of Property Act, 1882. However it
cannot be future property. A gift of a right of management is valid but a gift of future revenue of a village is
invalid. The release of a debt is not a gift as it does not involve a transfer of property but is merely a
renunciation of a right of action. However an actionable claim such as an insurance policy may be the
subject of a gift. In a gift deed the meaning of the word money should not be restricted by any hard and fast
rule but should be interpreted having regard to the context properly construed in the light of all relevant
facts[10].

Transfer
This element of a gift is explained later in the context of Section 123 of the Transfer of Property Act,1882 in
this section.

Acceptance
In order to constitute a valid gift the pivotal requirement is acceptance. In N.M Thakker v. P.M Thakker[11] it
was held that the execution of a registered gift deed, acceptance of the gift and delivery of the property
together make the gift complete. No particular mode of acceptance is required. Circumstances of the case
will determine the mode of acceptance. A transaction of gift in order to be complete must be accepted by the
donee during the lifetime of the donor. If the donor dies before acceptance the gift becomes void. Factum of
acceptance can be established by different circumstances such as donee taking possession of the property
or being in possession of the gift deed alone.[12]

Trusts
An interpretation of Section 122 will reveal that a gift may be made by the equitable machinery of a trust;
and the interposition of the trustees enables a gift to be made to a person not yet in existence and therefore
incapable of being the donee of a direct gift.
Section 123 of the Transfer of Property Act, 1882 states how the transfer of a gift is effected. This Section
may be studied under the following heads:

Mode of Transfer- Immovable Property

A gift of immovable property, no matter what the value of the property, can only be made by a registered
instrument. This provision excludes every other mode of transfer and even if the intended donee is put in
possession a gift of immovable property is invalid without a registered instrument.[13]

Signatures

The gift deed must be signed by or on behalf of the donor in order to effect transfer. Merely the signature of
the intended donee on the gift deed will not effect the transfer.[14]

Attestation

A gift deed must be attested by at least two witnesses and a gift deed not attested by witnesses is void. The
essential conditions of a valid attestation under Section 3 of the Transfer of Property Act, 1882 are that, two
or more witnesses must have seen the executant sign the instrument or have received from him personal
knowledge of his signature, and with a view to attest or to bear witness to this fact, each of them has signed
the instrument in the presence of the executant. In Brij Raj singh v. Sewak Ram[15] it was held that no
particular form need be followed fore attestation of a gift deed. In this case a gift deed was executed by the
original owner, presented for registration by a duly authorized power of attorney and attested by two

witnesses. It was held to be valid. Attestation was proved by one of the witnesses by categorically stating
that he had subscribed his signatures on the gift deed in three different capacities ie. Scribe, attesting
witness and identifying witness before the registrar.

Registration

The word Registered in this Section does not mean registered in the lifetime of the donor. If the other
conditions to the validity of the gift are complied with the death of the donor is not a ground for refusing
registration. If a gift of immovable property is made by a registered instrument that is duly registered then
the pre-existing right, title and interest of donor stand divested in the doneee by the operation of Section 17
of the Indian Registration Act, 1908. In Kuppuswami Chettiar v. A. Chettiar [16] it was held that a registered
instrument styled as a release deed releasing right, title and interest of releasor without consideration may
operate as transfer by way of gift when the document clearly shows intention to effect transfer and is signed
by or on behalf of releasor and attested by at least two witnesses. A gift of immovable property, which is not
registered, is bad in law and cannot pass any title to the donee. An oral gift of immovable property cannot be
made under section 123 of the Transfer of Property Act, 1882. In Gomtibai v. Mattula[17] it was held that
mere intention to give away the property is not enough to effect the transfer of gift. There has to be a
registered gift deed in order for the gift to be complete in the eyes of law.
The effect of an insufficiently stamped and unregistered gift deed was considered in Balwant Singh v. Mehar
Singh.[18] It was held that an unregistered gift deed cannot be used to prove title. It was also held that
under Section 36 of the Stamp Act once a gift deed is admitted in evidence it cannot be called into question
later on the grounds of insufficiency of stamp.

Revocation of Gift by Donor

The Privy Council has laid down that after delivery of the deed of gift and before registration the donor
cannot revoke the gift. In Bhagatrai v. Ghanshyamdas[19] it was held that where a gift has been effected by
a registered instrument duly attested and the gift has been acted upon by the donee, the title legally passes
to the donee and cannot be defeated by any intention of the donor to the contrary.

Mode of Transfer Movables

With regard to movable property this Section allows two alternative modes of transfer viz. Registered deed
signed by or on behalf of the donor and Delivery of possession.

Delivery

In order that a gift is valid under this section the donor should have done all that he can to put the subject
matter of the gift within the power of the donee to obtain possession. A valid gift must ordinarily be followed
by possession[20]. In Baby Ammal v. Rajan Asari[21] the court held that there must be proof of delivery and
possession of the gifted property. In the absence of such proof the deed cannot be construed to be a gift
deed. In Taraknath v. Sushil Chandra Dey[22] there was no actual delivery of the possession pursuant to the
gift having been made. It was held that the circumstances did not warrant physical possession and
constructive delivery of the possession was enough to hold the gift valid.

Actionable Claims

Gift deeds transferring actionable claims like shares, insurance policies have been held to be valid.
In Vasudev v. Pranlal[23] a gift deed relating to shares in a company was registered. It was signed by both
the donor and donee. The donor undertook to have the shares transferred in the books of the company to
the name of the donee. The share certificates and the gift deed were delivered to the donee along with the
blank transfer forms duly signed. Before the transfer could be effected in the books of the company the
donor died. The question arose whether there was a complete gift or whether the donors heirs could claim
the shares. It was contended that the gift would not be complete before complying with the formalities
prescribed by the Companies Act, 1956. The Supreme Court held that the requirements of the Transfer of

Property Act, 1882 were fully satisfied and the donee was clothed with a right to get his name entered in the
companys books as the donee. This right would prevail over the claims of the heirs of the donor.

Extent

This Section does not apply to territories excluded from the operation of the Indian Registration Act, 1908.
Section 124 of the Transfer of Property Act, 1882 states that a gift of future property is void. There cannot
be a gift of future property for such a gift can only be a promise and a promise not supported by
consideration is invalid as a contract. There cannot be a gift of future property either under Hindu or
Mohammedan law. In CIT v. R.S Gupta[24] the court laid down that in order to constitute a valid gift there
must be existing property. In this case a gift was given by instructing a non banking company, firm or Hindu
Undivided Family in which the donor had an account to give effect to the gift by debiting his account and
crediting the account in the name of the donee. It was held that mere entries in the books of account would
not constitute a valid gift unless the company, firm or Hindu Undivided Family has sufficient cash in hand or
overdraft facilities with any bank. The court decided that on facts the gift in question was invalid in absence
of cash balance or overdraft facilities in the company.
Section 125 of the Transfer of Property Act,1882 applies only when the gift is to two or more donees as
tenants in common. The refusal of one donee will not prevent the gift taking effect as regards the share of
the others.
Section 126 of the transfer of Property Act, 1882 lays down that conditional gifts are allowed by law. The
requirements as to validity of conditions are:[25]

A condition should not be vague.

A condition should not be inherently impossible of performance.

The condition should not be illegal.

The condition should not be immoral.

The condition should not be opposed to public policy.

If the conditions attached to a gift, whether as conditions precedent or as conditions subsequent, satisfy the
requirements mentioned above, they are valid and can be given effect to. If there is a valid condition
precedent, the gift will not take effect until the condition is fulfilled. If there is a valid condition subsequent,
the gift ceases when the condition is satisfied. In N.M Thakker v. P.M Thakker[26] a conditional gift deed was
executed by which possession and enjoyment of the property were retained during the donors lifetime.
There was no recital of acceptance and no evidence in proof of acceptance. The gift was to become operative
after the death of the donor. A subsequent deed was executed by the donor within a month canceling the gift
deed owing to non-fulfilment of conditions subject to which there was an oral understanding between the
donor and donee. The court held that the gift deed was validly cancelled owing to non fulfillment of the
conditions. A Resumable Gift is one which is revocable at any time at the mere will of the donor. Such a gift is
void abinitio.[27]
Section 127 of the Transfer of Property Act, 1882 deals with Onerous Gifts. The effect of an onerous gift is
that the donee is liable to the extent of the gifted property in his hands to meet the obligation with which the
gift is burdened. This section grants a minor the right to repudiate an onerous gift after attaining majority.
According to Section 128 of the Transfer of Property Act, 1882 a universal donee is a donee who receives
the whole of the donors property by way of gift. On a plain reading of this section it is clear that the liability
of the universal donee is to the extent of the property acquired by him by virtue of the gift deed from the
donor however in reality Section 128 fastens the personal liability upon the universal donee for all debts due
by the donor at the time of the gift.

Section 129 of the Transfer of Property Act, 1882 excludes Mohammedan Law of gifts and gifts made in
contemplation of death from the purview of the law of gifts in the Transfer of Property Act, 1882. This section
is extremely controversial and its constitutionality has been challenged. It has been discussed in greater
detail later in this project.

Mohammedan Gifts Or Hiba

A Hiba or a gift under Muslim law literally means the donation of a thing from which the donee may
derive benefit.
Eminent jurists of Muslim law have defined gift in various ways. Some of the important definitions of Hiba or
gift are:[28]
MULLA : Gift is a transfer of property, made immediately and without any exchange, by one person to
another, and accepted by or on behalf of the latter.
FYZEE : Hiba is the immediate and unqualified transfer of the corpus of the property without any return.
ABDUR RAHIM : A transfer of a determinate property (mal) without an exchange. Juristically it is treated as
consisting of proposal or offer on part of the donor to give a thing and of acceptance of it by the donee. Until
acceptance the gift has no operation.
The importance of Hiba or gift in Muslim law lies in the fact that whereas Muslim law allows testamentary
disposition within the limit of one-third only, a gift inter vivos may be made without any restriction. Muslim
Law allows a person to gift away the whole of his property during his lifetime.[29]
Essentials of a Hiba

The essential elements of a gift under Muslim Law are clear and well settled. They are:[30]

Declaration of the gift by the donor

Acceptance of the gift, expressly or impliedly, by or on behalf of the donee

Delivery of possession of the subject matter of the gift to the donee.

If any of the above elements is missing the gift is not complete and will be invalid in the eyes of Muslim Law.
Declaration

Declaration does not simply mean an announcement of the gift but also entails that the donor should have a
real intention of making the gift. In V.P.K Umma v. P.N Kunhamu[31] a husband made a gift of immovable
property by registered deed to his minor wife who had attained puberty. The gift was accepted by her mother
on her behalf. There was no guardian alive to accept the gift. The gift deed was handed over to the minor
wifes mother in whose house the husband and wife were living. The court stating that there was a complete
intention to divest ownership on the part of the husband, the donor to transfer the property to the donee (his
wife) held the gift complete and valid. In State of U.P v. Sayed Abdul Jain[32] it was held that declaration of
gift by the donor is an essential condition for the validity of a gift. Where there is no real and bona fide
intention to transfer the ownership of the subject of the gift, an alleged gift maybe of no effect. A gift made
with an intention to defraud the creditors of the donor is voidable at the option of the creditors.[33]
Acceptance
The donee must accept the hiba for it to be valid. This acceptance must be express or implied ie. 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 or her mother or father or from a guardian to a ward.[34]
Delivery of Possession
When the donor makes a declaration of a gift and the donee accepts, then the possession of the thing gifted
should also be given to the donee. Such delivery of possession may be actual or constructive. It was held
in M.M Khan v. S.A Khan[35] that it is essential to the validity of a gift under Mohammedan law that there
should be delivery of such possession as the subject of the gift is susceptible of. In other words the taking of
the possession of the subject matter of the gift by the donee either actually or constructively is necessary to
complete a gift. In case there is more than one donee, possession by one donee is presumed to be in the
name and on behalf of the other co-donees.
Registration of a gift deed does not in any way do away with the need for delivery of possession.
There are certain cases when delivery of possession is not necessary and the gift is valid even without
delivery of possession. They are:[36]

When the donor and donee reside in the same house.

A gift made by a husband to his wife.

A gift from a guardian to a ward or from a mother or father to their child.

When the subject of the gift is already in possession of the donee.

Donors under Muslim Law

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. A married Muslim female can also make a gift.[37]
Donees under Muslim Law
A gift may be made in favour of the following:[38]
1.

Any living person who is capable of holding property.

2.

A gift to a child in the womb is valid provided that the child is born within six months from the date
of the gift, because, in that case, it is presumed that the child was actually existing as a distinct
entity in the womb.

3.

A gift of a limited interest in the usufruct of the property may be made to an unborn person provided
that such person is in existence when the interest opens out for him.

4.

Gifts may be made validly to juristic persons such as mosques, dargahs and charitable institutions
like schools.

5.

Gifts may be made to non-muslims. The gift property will be subject to the personal law of the donee
once he gets possession of it.

Subjects of Hiba
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[39]. A Muslim mortgagor can make a valid
gift of his right of equity of redemption even if the mortgagee is in possession. Section 38(7) of the
Insurance Act, 1938 lays down that any person can assign and transfer his insurance policy his personal law
notwithstanding. Thus by virtue of this section a Muslim can make a valid gift of his insurance policy.
Registration of Gifts
Under Muslim Law a gift may be oral or written. As Muslim law recognizes oral gifts thus a gift under Muslim
law need not be registered. As section 129 of the Transfer of Property Act, 1882 exempts Muslims from the
provisions of Section 123 of the same act a gift under Muslim law cannot be invalidated for want of
registration. In Mohammed Hesabuddin v. Mohammed Hesaruddin[40] the court observed that it cannot be
taken as sine qua non in all cases that wherever there is a writing about a Mohammedan gift of immovable
property there must be registration thereof. The facts and circumstances have to be taken into consideration
before determining whether the gift requires registration or not. In Nasib Ali v. Wajed Ali[41] it was held that
a gift deed executed by a muslim who has made a gift in accordance with the provisions of Muslim law is
merely evidence of a complete gift and as such is not compulsorily registrable and is admissible in evidence
notwithstanding the embargo laid down by sections 17 and 49 of the Indian Registration Act, 1908. In Ram
Niwas Todi v. Bibi Jabrunnissa[42] the Supreme Court of India upheld the validity of an unregistered oral gift
and laid down that Muslim personal laws override tenancy laws and other specific legislations unless it is
specifically mentioned to the contrary in the legislation.
Gift of Corpus (Ayn) and Usufruct (Manafi)
What Muslim law does recognize and insist upon is the distinction between the corpus of the property itself
and the usufruct of the property. Over the corpus of the property the law recognizes only absolute dominion,
heritable and unrestricted in point of time, and where a gift of the corpus seeks to impose a condition
inconsistent with such absolute dominion the condition is rejected as repugnant, but interest limited in point
of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject
to any such limited interests.[43]
In Jameela Begum v. Controller of Estate Duty, Madras[44] it was held that a reservation of the rights in
manafi so long as the ayn is transferred does not render the gift bad.
Conditional, Contingent and Future Gifts
Conditional Gifts may be of two types:

Conditional Gifts Conditional Gifts or gifts that are suspended on a condition are invalid, unless
the condition is such that it can be fulfilled immediately, in which case it constitutes the acceptance.
Thus if the donor says when tomorrow comes I will give you a computer the gift is invalid. A
condition which is capable of immediate fulfillment becomes the acceptance if it is performed and
the gift is valid. Thus if a person says to another if you owe me money you are absolved from it
then the gift is valid as existence of the debt would constitute acceptance.

Gifts with conditions If a gift is made subject to a condition which comes in the way of full
ownership of the gifted property, the gift is valid but the condition is void. If a house is gifted on the
condition that it shall not be sold then the restraint on alienation is void and the house belongs
absolutely to the donee. In Mohammed Narizuddin v. Govindarajalu Appah[45] the court considered
the validity of a gift with a condition restraining alienation under Muslim law as well as under the
Transfer of Property Act, 1882 and held that it was not possible to put restraints on alienation.

Contingent Gift
A hiba cannot be made to take effect on the happening of a contingency or a future uncertain event. All
contingent gifts are void.[46] Only a gift of an insurance policy which may be contingent in nature is valid
owing to the operation of Section 38(7) of the Insurance Act, 1937.
Future Gift

A hiba must be of existing property. It cannot be made to take effect at any future time, whether such time is
definite or indefinite. For example if A makes a gift to B of the fruit that will be produced by his palm tree
next year the gift is void as it is a gift of future property.[47]
Gift through the medium of trust
A gift may be made through the medium of trust. The same conditions are necessary for the validity of such
a gift as those for a gift made directly to the donee with the difference that in the case of a gift through the
medium of trust the gift should be accepted by the trustees and possession should also be delivered to the
trustees. A Mohammedan cannot through the medium of trust settle property for the benefit of persons who
are incapable of taking under the law of gift, nor can he through a trust create an estate not recognized by
the law of gifts of the sect to which he belongs.[48]
Revocation of Gift
According to Muslim Law all voluntary transactions are revocable. Thus gifts may also be revoked. A gift may
be revoked by the donor at any time before delivery of possession. The reason is that the gift is not a gift
before delivery of possession and hence the rules relating to gifts do not apply to it. When a gift is complete
and the subject matter of the gift is duly transferred to the donee revocation of the gift is possible only
through intervention of the court of law or by the consent of the donee.
In the following cases a completed gift cannot be revoked even by the court or through the consent of the
donee:[49]

Where it is made by the husband to his wife or vice versa

Where the donor and donee are related to one another within the prohibited degrees by
consanguinity

Where the donor or donee dies

Where the thing given is destroyed or lost

Where the thing given has passed out of the donees possession by gift, sale or otherwise

Where the thing given has increased in value

Where the thing given has so changed that it cannot be identified

Where the donor has received a return (ewaz) for the gift

Where the gift amounts to a sadaqa

Hiba-bil-ewaz
A hiba-bil-ewaz as distinguished from a hiba is a gift for consideration. After the gift has been made the
donee may offer to make a reciprocal gift to the person making the primary gift. Then the reciprocal gift is
called the ewaz or return for the primary gift. If the ewaz is accepted then it becomes a hiba-bil-ewaz.[50]
In India the hiba-bil-ewaz is not recognized as a gift. It is treated as a sale and has all the incidents of a
contract of sale. A hiba-bil-ewaz is thus governed by the law relating to sale in the Transfer of Property Act,
1882.
Sadaqa

A sadaqa is a gift made with the object of acquiring religious or spiritual merit.[51] It is exactly like
a hiba with the only exception being that it cannot be revoked under any circumstance.

Gifts Under The Indian Succession Act, 1925

A donatio mortis causa or gift in contemplation of death is defined by Section 191 of the Indian Succession
Act, 1925 as: A gift is said to be made in contemplation of death where a man, who is ill and
expects to die shortly of his illness, delivers to another possession of any movable property to
keep as gift in case the donor shall die of that illness. Such a gift may be resumed by the giver
and shall not take effect if he recovers from the illness during which it was made; nor if he
survives the person to whom it was made.
The requirements of a Gift in Contemplation of Death as laid down by Section 191 of the Indian Succession
Act, 1925 are:

The gift must be of movable property

It must be made in contemplation of death

The donor must be ill and expects to die shortly of the illness

Possession of the property should be delivered to the donee

The gift does not take effect if the donor recovers from the illness or the donee predeceases the
donor

These requirements of a valid donatio mortis causa were laid down by the Supreme Court of India
in Comissioner of Gift Tax v. Abdul Karim Mohammed.[52] In this case the Supreme Court interpreting Section
191 of the Indian Succession Act, 1925 stated that there was nothing new in the requirements provided
under Section 191 of the Indian Succession Act, 1925.They are similar to the constituent elements of a
valid donatio mortis causa. The Court also laid down that Section 191 provided for meaning or requirements
of a gift in contemplation of death and this section could not be invoked for claiming exemption from gift tax.
A gift made in contemplation of death is called a Marz-ul-maut under Muslim Law. A marz-ul-maut satisfies
the conditions of section 191 of the Indian Succession Act, 1925.
A donatio mortis causa or gift made in contemplation of death is exempt from the provisions of Transfer of
Property Act, 1882. The main differences between a donatio mortis causa and a gift as defined in the
Transfer of Property Act, 1882 are:

A donatio mortis causa is one made by a person expecting that he would die of an illness. An
ordinary gift may be made at any time.

In a gift made in contemplation of death the condition that the gift shall not take effect if the donor
recovers from the illness is implied. In an ordinary gift conditions are not imported by implication.

A donatio mortis causa is resumable at the will of the donor. An ordinary gift resumable at the will of
the donor is void.

A gift made in contemplation of death relates only to movable property whereas a gift under the
Transfer of Property Act, 1882 may relate to movable or immovable property.

An ordinary gift takes effect immediately after the gift deed is completely executed while a donatio
mortis causa takes effect only on the death of the donor.

Gift And Other Transfers

A Gift, though a transfer of property, is a gratuity and an act of generosity and does not contain any element
of consideration in any shape or form. Complete absence of monetary consideration is the main hallmark
which distinguishes a gift from a grant or other transactions like lease, sale, mortgage etc. which may be for
valuable or adequate consideration. Where there is any equivalent or benefit measured in terms of money in
respect of a gift the transaction ceases to be a gift and assumes a different colour. The motive or the purpose
of making a gift should not be confused with the consideration which is the subject matter of the gift. Love,
affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but
these filial considerations cannot be called or held to be legal considerations as understood by law.[53]
Thus in spite of a gift being such a unique form of transfer it is often confused with other forms of transfer of
property. The courts have done their bit in clearing the confusion and differentiating between a gift and other
forms of transfer of property.
Gift and Licence
In The State of U.P v. Sayed Abdul Jalil[54] the plaintiff was allotted a house by His Highness Nawab of
Rampur. After the merger of Rampur with U.P in 1949 this house was given to the Municipal board of Rampur
by the Government of Uttar Pradesh. The Municipal Board thereupon demanded rent from the plaintiff
through notices and on refusal to pay, attached the house. The plaintiff filed a suit for declaration that he
was the owner of the house in possession and in the alternative he was a licencee, entitled to remain in
possession of the house for life without payment of any rent. On a perusal of the document by which this
house was allotted to the plaintiff the court observed that the Nawab meant to do nothing more than to give
to the plaintiff free residential accommodation in a house owned by the government. For a transfer of
ownership, the purpose is stated clearly to be that the property given will be owned and possessed
henceforth by the donee in such a way that he can use it or deal with it as he likes. Mere allotment of
accommodation by the order of the Nawab will not constitute transfer of ownership. Transfer of ownership, in
the ordinary course, is expected to be evidenced by much more clear and unequivocal language. The
transaction was held to be a grant of licence revocable at the grantors option. In the absence of any
declaration of gift by the donor it cannot be taken to be a gift of the property under the Transfer of Property
Act, 1882.
Gift and Will
Whether a document operates as a gift or a will is often a controversial subject. If it is a Will, it will be
revocable even if it contains a clause forbidding alienation. Otherwise the revocation would be invalid in the
face of the condition forbidding revocation. The question was considered in Duraisami v. Saroja Ammal.[55]
The court pointed out that the real test to distinguish between a gift and a Will was whether or not there is a
transfer in praesenti. In this case the executant reserved to himself a right in the property for his life time
and, subject to this, gave the property to A (the plaintiff). A was not to alienate the property during the
executants life time and the patta for the land was to continue in the name of the executant during his
lifetime. It was concluded from these directions that the executant intended to execute a settlement deed
operative in praesenti and so his subsequent revocation was invalid and the subsequent alienee from him
could not acquire any title.

Hiba V. Gifts Under The Transfer Of Property Act, 1882

Analyzing the concept of Gift under the Transfer of Property Act, 1882 and Hiba under Muslim Law brings to
light the fact that there is not much difference between Mohammedan gifts and the law of gifts under the
Transfer of Property Act, 1882. The basic essence of a gift and its main concepts are more or less the same
under both systems of law. However there are a few areas where there are some differences between
a hiba and a gift as understood by the Transfer of Property Act, 1882.
After delivery of the gift is complete and the gift is in possession of the donee it cannot be revoked under any
circumstance under the Transfer of Property Act, 1882. However under Muslim Law a hiba may be revoked
even after delivery through the intervention of the court or through the consent of the donee. There are
however exceptions to this rule when after delivery a hiba cannot be revoked under any circumstance.
The Transfer of Property Act, 1882 does not allow gifts to be made to juristic persons or to non living things;
however under Muslim Law a gift may be made to a juristic person such as a mosque.

Under Muslim Law a hiba-bil-ewaz, a type of gift which has an element of consideration is valid. However
under the Transfer of Property Act, 1882 a gift which has any element of consideration is void. The hiba-bilewaz is not considered as a gift in India but in Classical Mohammedan Law a hiba-bil-ewaz is a valid gift.
A donatio mortis causa or gift made in contemplation of death comes within the purview of Section 191 of
the Indian Succession Act, 1925. A donatio mortis causa under Muslim Law is known as a marz-ul-maut.
A marz-ul-maut satisfies the conditions of Section 191 of the Indian Succession Act, 1925.[56] The only
difference is that through a marz-ul-maut a donor can gift away only one third of his estate and if he wishes
to exceed this limit the prior consent of his heirs is necessary.
Mohammedan Law allows oral gifts whereas the Transfer Of Property Act, 1882 does not. Registration is thus
an essential element to effect transfer of a gift under the Transfer of Property Act, 1882 whereas under
Muslim Law Registration of a gift deed is not necessary. This difference is the main bone of contention
between the law of gifts under the Transfer of Property Act, 1882 and Mohammedan Gifts and has stirred up
a huge controversy which has even led to challenging the constitutionality of certain provisions of the
Transfer of Property Act, 1882.
Section 123 of the Transfer of Property Act, 1882 lays down the manner in which a gift has to be effected and
prescribes the need for a registered instrument signed by or on behalf of the donor and attested by at least
two witnesses if the subject matter is immovable property.
Section 129 of the Transfer of Property Act, 1882 provides that Nothing in this chapter (which deals with
gifts).shall be deemed to affect any rule of Mohammedan Law.
In Ghulam Ahmed Sufi v. Mohammed Sidiq Dareel[57] the Full Bench of the Jammu and Kashmir High Court
was asked to make an authoritative pronouncement on the proposition of law if in view of sections
123 and 129 of the Transfer of Property Act, 1882 the Muslim Law on the question of gifts stands superseded
and whether it is necessary that there should be a registered instrument as required by sections 123 and 129
of the Transfer of Property Act, 1882 in the case of gifts made under Muslim Law. On a review of the case law
and a close examination of the wording of section 129 of the Transfer of Property Act, 1882 the court
answered both the questions in the negative. It pronounced that Sections 123 and 129 of the Transfer of
Property Act, 1882 did not supersede Muslim Law relating to oral gifts and that a registered instrument would
not be necessary for a gift under Muslim Law. According to the court only if an instrument was executed and
its execution was contemporaneous with the making of the gift, the instrument should be registered as
provided in Section 17 of the Indian Registration Act, 1908. This decision of the court, which it called an
authoritative pronouncement, was a mere restatement of what is undoubtedly settled law on the point at
issue. The court itself referred in its judgment to the identical decisions in several earlier cases of other
courts which fortified its pronouncement.
In Bibi Maniran v. Mohammad Ishaque[58] a Division Bench of the Patna High Court rejected the argument
that Section 129 of the Transfer of Property Act, 1882 violated Article 14 of the Constitution; the court held
that the classification between Mohammedans and others was reasonable, having regard to the well known
fundamental differences between the religion and customs of Mohammedans on one hand and the religion
and customs of others.
In Makku Rawther v. Manahapara Charayil[59] it was held that Section 129 of the Transfer of Property Act,
1882 was ultra vires the Constitution if it was held applicable to all Mohammedan gifts and should therefore
be construed as limited to Mohammedan gifts of a charitable or religious nature. Justice Krishna Iyer in his
judgment stated that secular Mohammedan gifts are different from Muslim gifts of a religious nature and
such secular gifts should conform to the requirements of writing, attestation and registration as laid down
in Section 123 of the Transfer of Property Act, 1882 in order to survive the scrutiny of Article 14 of the
Constitution. By classifying Muslim gifts into secular and religious categories this judgment imported into the
fabric of Islamic law something which was hitherto unknown. In his judgment Justice Krishna Iyer said that
Muslim jurists 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 also asserted that there is absolutely no conflict
between Section 123 of the Transfer of Property Act, 1882 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.
Justice Krishna Iyers judgment goes against the settled law in India on the point of the conflict between
Mulim Law and the Transfer of Property Act, 1882 with respect to gifts and has come under severe criticism.
It is impossible to distinguish between religious and secular gifts because Hindu and Mohammedan laws are

so intimately connected that they cannot be readily dissevered from it. Moreover Justice Krishna Iyers
classification of gifts into religious and secular goes against the norms of interpreting Muslim law and if such
classification was adhered to it would shake the fundamentals of Muslim Law.
It is of extreme importance to look at this controversy from another viewpoint. Registration of a gift deed is
not an anti-religious or sacrilegious act. It does not interfere with the observance of religious rites. It ensures
a proper authentic record of the property transaction, which is ultimately beneficial to the parties
themselves. As the Muslim jurists have themselves acknowledged in their definitions, hiba is regarded as a
part of the law of contract; the concept of contract underscores the concept of hiba. Just as other sales and
contracts by Muslims are subject to the civil laws of the country, there is nothing unusual in covering these
transactions also under the ordinary civil laws. The only grudge can be on account of the requirement of
registration fees but no Mohammedan jurist has claimed or justified immunity from secular taxation. An
exemption from some legal formalities should be claimed in such areas where it is essential to keep intact
religious rites, ceremonies or observances of essentially religious character. Too much insistence on
immunities from general laws of the land breeds separatist tendencies. Instead of advancing hair-splitting
arguments to claim immunity, the Muslim society should willingly come forward to claim maximum
integration with the general legal system of the country.

Conclusion

Having studied and compared the Mohammedan law of gifts and gifts under the Transfer of Property Act,
1882 it can be accurately said that the most significant issue in India today regarding the law of gifts is the
interpretation of Section 129 of the Transfer of Property Act, 1882 and the applicability of the provisions of
the Act to the hiba or Mohammedan gifts. The courts in India have upheld the constitutionality of Section 129
of the Transfer of Property Act, 1882 and have interpreted it to mean that the provisions of the Transfer of
Property Act, 1882 shall not apply to Mohammedan gifts and Mohammedan gifts will be solely governed by
the rules of Muslim law. However Justice Krishna Iyers judgment which has gone against the settled law of
the land and held the Transfer of Property Act, 1882 to be applicable to Muslim gifts of a secular nature has
come under severe criticism but has raised questions too regarding the harmony of laws relating to gifts.
Justice Krishna Iyers views on the law relating to gifts are too drastic and if upheld would shake the
fundamentals of Muslim law.
The present situation of extreme uncertainty overshadowing the law of hiba brings no credit to Indian
jurisprudence. It creates great difficulties and hazards for muslims desiring to make dispositions of their
property. It is thus difficult for lawyers to tender good advice to their clients or to take sure step in
conveyancing gifts.
An attitude of callous indifference, compounded with inadequate understanding of a system of law
sometimes decried as outdated, has led some judges, sometimes, to pass ill-considered judgments that have
inflicted needless injustice on parties and created confusion in legal administration.
It is imperative that this field of law be considered in great depth by the Supreme Court either in its appellate
jurisdiction or upon a presidential Reference under Article 143 of the Constitution, in order that clarity,
certainty, and rationality, in the context of the needs of contemporary society, in accord with the innate
genius of Muslim Law and in harmony with the general legal fabric be restored to Indian Jurisprudence in the
matter of gifts.
However till this confusion is cleared it is advisable for conveyancers to be on the safe side and satisfy the
requirements of registration as envisaged by the Transfer of property Act, 1882 and the rules of Muslim Law
in the case of all hibas.
To end this controversy legislative change is necessary. Such legislative change should incorporate in the
Transfer Of Property Act, 1882 the substance of the hiba as understood by the Muslims, provide
discountenace of oral gifts not evidenced by registration and provide a legal facility to everyone. This will
advance an integration of the institutions and laws relating to gifts in India and bring about harmony.

BOOKS

Bibliography

1.

Asaf A.A Fyzee, Outlines of Mohammedan Law (Delhi: Oxford University Press, 1987).

2.

G.C Venkatasubba Rao, Commentary on the Transfer of Property Act (Madras: C. Subbiah Shetty and
Sons, 1990).

3.

M. Hidayatullah and Arshad Hidayatullah, Mullas Principles of Mohammedan Law (Bombay: N.M
Tripathi private Limited, 1990).

4.

Mulla, Transfer of Property Act, 1882 Solil Paul ed. (9th ed.) (New Delhi: Butterworths, 2000).

5.

Nishi Purohit, Principles of Mohammedan Law (New Delhi: Orient Publishing Company, 1998).

6.

Salil K. Roychowdhury and H.K Saharay, The Indian Succession Act, 1925 (Bombay: N.M Tripathi
Private Limited, 1993).

7.

Syed Khalid Rashid, Muslim Law (lucknow: Eastern Book Company, 1996).

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