RESEARCH

ASSIGNMENT
TOPIC: GIFT UNDER
MUSLIM LAW

NAME: FAAREHA SHAHID

BATCH: BA LLB (HONS)
ROLL NUMBER: 22
SUBJECT: FAMILY LAW
SUBMITTED TO: PROF.
KAHKASHAN Y. DANYAL
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GIFT UNDER MUSLIM LAW

INRODUCTION

The concept of Gift or Hiba has existed since the beginning of the religion of Islam and while
Muslim Law has not been shown to recognize the differentiation of land into estates, it does
recognize the difference between the ownership of the land and the right to enjoy it.

Herein, ownership comes only with the full deed of the land and not with the simple possession
or temporary tenancy. Hiba is only one of the aspects covered by the Transfer of Property Act
under the term ‘gift’. It is the transfer of the property and all rights along with it, without
expectation of any compensation.

Gift is a transfer of property where interest is transferred from one living person to another,
without any consideration. It is a gratuitous and inter vivos in nature. This is the general
definition that is accepted by all the religions, including Muslim law. As per the Muslim Law, a
gift is called as Hiba.

Under English laws, right in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. Rights in land described as “estate” under English Law
do not always imply only absolute ownership but it also includes rights which fall short of it and
are limited to the life of the grantee or in respect of time and duration or use of the same.

Under Hindu Law, gift is regarded as the renunciation of the property right by the owner in the
favor of donee. According to Jimutvahana, under Hindu law’s concept of gift, ownership is not
created by acceptance but by renunciation of the donor. But however Mitakshara school of hindu
law considers acceptance as an important ingredient for gift. The donor can divest his interest by
renunciation but cannot impose the same on the donee if he is not ready to accept1.

Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650
AD. It recognizes and insists upon the distinction between the corpus of the property itself
(called as Ayn) and the usufruct in the property (as Manafi). Over the corpus of property the law
recognises only absolute dominion, heritable and unrestricted in point of time. Limited interests
in respect of property are not identical with the incidents of estates under the English law. Under
1
Kesari, U.P.D., ‘Modern Hindu Law’, Central Law Publications, Allahabad, 2007, p431.
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the Mohammedan law they are only usufructuary interest (and not rights of ownership of any
kind). Thus, in English law a person having interest in immoveable property for limited periods
of time is said to be the “owner” of the property during those periods and the usufruct is also
regarded as a part of the corpus. On the other hand, in Muslim law, a person can be said to be an
“owner” only if he has full and absolute ownership. If the use or enjoyment of property is
granted to a person for life or other limited period such person cannot be said to be an “owner”
during that period. The English law thus recognises ownership of the land limited in duration
while Muslim law admits only ownership unlimited in duration but recognises interests of
limited duration in the use of property. This basically differentiates Muslim Law’s concept of
property and gift from that of English Law.

Under Muslim Law, the religion of the person to whom gift is made is not relevant. In India,
there is a separate statute that governs the matters related to transfer of property. The Transfer of
Property Act, 1882 under Chapter VII talks about gifts and the procedure for making the same.
Yet as per section 129 of the Act, the Transfer of Property Act, 1882 does not apply to the
Muslims making gift.

DEFINITIONS

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 done. Until acceptance, the gift has no operation.”2

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.”3

FYZEE: “Hiba is the immediate and unqualified transfer of the corpus of the property without
any return”4

BAILLIE: “The conferring of a right in something specific without an exchange.”

The concept of contract underscores the concept of Hiba also; it is a contact consisting of a
proposal or offer on part of the donor to give a thing and the acceptance of the thing by the done;
2
Abdur Rahim, at p. 297.
3
Mulla, at p. 150.
4
Fyzee, at p. 218.
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the element of consideration only is absent; and that distinguishes it from sale. The laws of gift
being regarded as part of the law of contract, following elements are prescribed for Hiba by the
Muslim law: Ijab- tender, Qabul- acceptance, and Qabza- (delivery of) possession.

CONCEPT OF HIBA UNDER MUSLIM LAW

The conception of the term ‘gift’ as used in the Transfer of Property Act, 1882 is somewhat
different from the practice under the Muslim Law. Under the Muslim Law a gift is a transfer of
property or right by one person to another in accordance with the provisions provided under
Muslim law. Hiba, is an immediate and unconditional transfer of the ownership of some property
or of some right, without any consideration or with some return (ewaz); and The term ‘hiba’ and
‘gift’ are often indiscriminately used but the term hiba is only one of the kinds of transactions
which are covered by the general term ‘gift’. The other types of gifts include Ariya, where only
usufruct is transferred and Sadqah where the gift is made by the muslim with the object of
acquiring religious merit.

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 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.

The Hanafi lawyers define hiba as ‘an act of bounty by which a right of property is conferred in
something specific without an exchange’. The Shias hold that ‘a hiba is an obligation by which
property in a specific object is transferred immediately and unconditionally without any
exchange and free from any pious or religious purpose on the part of the donor’. Muslim law
allows a Muslim to give away his entire property by a gift inter vivos, even with the specific
object of disinheriting his heirs.

ESSENTIALS OF A VALID GIFT

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Writing and registration are not necessary for the validity of a gift. It may be oral or in writing.
In one case5, the validity of the oral gift has been upheld. It was observed that the muslim law
“permits an oral gift, but to make a gift valid following three essentials must co-exist.”

(i) A declaration of the gift by the donor,

(ii) Acceptance of the gift express or implied, by or on behalf of the done, and
(iii) Delivery of possession of the subject of the gift by the donor to the done. Delivery of
possessions need not in all cases be actual. It should be delivery of such possessions
as the subject of the gift is susceptible.

A Hiba is not valid unless these three essential conditions are fulfilled.

DECLARATION OF GIFT

Declaration is a statement which signifies the intention of the transferor that he intends to make a
gift. The person who declares that he is transferring his property through a gift is called donor.
The person in whose favour the gift is made is called donee. Declaration is, therefore, the
manifestation of the intention of the donor to divest his ownership in the property and to vest it in
the donee.

There must be a clear and unambiguous intention of the donor to make a gift. Declaration is a
statement which signifies the intention of transferor that he intends to make a gift. A declaration
can be oral or written. The donor may declare the gift of any kind of property either orally or by
written means. Under Muslim law, writing and registrations are not necessary. In the famous
case of Ilahi Samsuddin v. Jaitunbi Maqbul6 it was held that under Muslim Law, declaration as
well as acceptance of gift may be oral whatever may be nature of property gifted. When the gift
is made in writing, it is known as Hibanama. This gift deed need not be on stamp paper and also
need not be attested or registered7. In the famous case of Md. Hesabuddin v Md. Hesaruddin 8,
where the gift was made by a Muslim Woman and was not written on a stamp paper, Guahati
High Court held that the gift was valid.

5
Syed Mohd, Salim Hashmi v. Syed Abdul Fateh, AIR 1972 Pat 279.
6
(1994) 5 SCC 476.
7
Mahboob Saheb v. Syed Ismail, AIR (1995) SC 1205.
8
AIR (1984) Pat, 203.
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The declaration made by the donor should be clear. A declaration of Gift in ambiguous words is
void. In Maimuna Bibi v. Rasool Mian 9, it was held that while oral gift is permissible under
Muslim law, to constitute a valid gift it is necessary that donor should divest himself completely
of all ownership and dominion over subject of gift. His intention should be in express and clear
words. According to Macnaghten, “A gift cannot be implied. It must be express and unequivocal,
and the intention of donor must be demonstrated by his entire relinquishment of the thing given,
and the gift is null and void when he continues to exercise any act of ownership over it.”

ORAL OR WRITTEN:

A Hiba may be made orally. Writing is not necessary. The donor may declare the gift of any kind
of property, of any valuation, either orally or write a deed. Under Muslim Law, writing is not
necessary for the validity of gift whether property is movable or immovable. Section 123 of the
Transfer of Property Act which provides that gift of immovable property must be in writing and
registered, is not applicable to gift made by Muslims.

In llahi Samsuddin v. Jaitunbi Maqbul, the Supreme Court held that under Muslim Law,
declaration as well as acceptance of gift may be oral whatever may be the nature of property
gifted. Where a gift is made in writing, it is called Hibanama. This gift-deed (Hibanama) need
not be on stamp-paper and also need not be attested or registered.

In Md. Hesabuddin v. Md. Hesaruddin, a Muslim woman made a gift of her immovable
properties to her son. The gift was written on ordinary paper and was not registered. The Guahati
High Court held that the gift was valid because under Muslim Law writing and registration is not
any essential condition for the validity of gifts.

Express Declaration:

The declaration must be made in clear words. A declaration of gift in ambiguous words is void.
That is to say, the declaration must expressly suggest that the donor is relinquishing his
ownership completely. In Maimuna Bibi v. Rasool Mian, the Patna High Court has held that
while oral gift is permissible under Muslim law, to constitute a valid gift it is necessary that

9
AIR 1991 Pat 203.
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donor should divest himself completely of all ownership and dominion over subject (i.e.,
property) of gift.

Free Consent:

The declaration for the gift must be made voluntarily. Consent of the donor in making the gift
must be a free consent. If the donor makes the gift under threat of force, coercion, undue
influence or fraud, the gift is not valid.

By voluntary declaration we also mean that the donor has fully understood the nature of the
transaction and there was no external influence in his taking the decision for making the gift.
Where the donor claims that he or she had declared or signed the gift- deed without
understanding the consequences, the act of donor cannot be said to be a free act and the gift is
void.

But, it must be noted that want of understanding or undue influence in making a gift must be
proved very strictly. Mere fact that the donor is an illiterate person or is a woman in purdah is not
sufficient to establish that the donor could not understand the legal implications of his
declarations or that there was an undue influence.

Bona fide Intention:

Gifts must be made honestly, i.e. with a bona fide intention to give the property to the donee. A
declaration of gift with an intention to defraud the creditors of the donor is voidable at the option
of such creditors. However, the mala fide or fraudulent (dishonest) intention of the donor cannot
be presumed only by the fact that he incurs certain debts. The mala fide intention must be fully
established.

Competency of the Donor:

Declaration of a gift is made by the donor. Donor must be a competent person. Every Muslim is
competent to make a gift if he has capacity as well as the right.

CAPACITY:
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For a valid Hiba, the donor must be (i) adult (ii) of sound mind, and (iii) Muslim.

(i) Adult:

At the time of making the gift the donor must be adult. He must have attained the age of majority
i.e., must be of eighteen years. If a minor is under the supervision of the Court of Wards, the
majority is attained on the completion of twenty-one years. Thus, a Muslim becomes major for
making a gift only upon attaining the age of eighteen or twenty-one years, as the case may be. A
gift by a minor is void.

(ii) Sound Mind:

The donor must also be of sound mind. An insane person has no capacity to understand the legal
implications of his or her activities. However, a declaration of gift by a person of unsound mind
during ‘lucid interval’ is lawful and the gift is valid.

As discussed earlier, ‘lucid interval’ is a temporary period during which a person of unsound
mind acquires capacity to understand the legal consequences of his or her activities, i.e. becomes
a normal human being.

(iii) Muslim:

At the time of making the declaration of gift, the donor must be a Muslim. Where the donor is a
non-Muslim, the gift is not Hiba. A gift made by a non-Muslim is regulated by the Transfer of
Property Act, 1882 and rules of Muslim personal law are not applicable to it. If at the time of
making of gift the donor is Muslim but, after completion of gift he renounces Islam and becomes
non-Muslim, the gift continues to be a valid gift under Muslim law.

RIGHT:

Capacity alone is not sufficient. The donor must also have the right to make the gift. One may
have the capacity, i.e. he may be a Muslim, adult and of sound mind yet, he cannot lawfully gift
away the properties of others because he has no such authority.

A donor has a right to gift only those properties of which he is the owner. In the transaction of
gift nothing less than the absolute interest or, the ownership of property is transferred. Therefore,
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it is necessary that donor himself has the title which he intends to pass on to the donee. A person
who is simply a tenant in a house, cannot gift that house because he is not the owner of that
house.

There are certain properties which are regarded as non-transferable under Section 6 of the
Transfer of Property Act, 1882. Any kind of transfer including gift, of a non- transferable
property is void. A person who owns such properties has no right to alienate them.

Therefore any person including a Muslim has no right to declare a gift of non- transferable
properties. For example, if a property has been acquired by the Government, the owner of that
property has no right to make a gift of that property. It may be noted that a Muslim has a right to
gift away all the properties which are under his ownership at the time when declaration of gift is
made by him.

ACCEPTANCE OF GIFT

A gift is void if the donee has not given his acceptance. Legal guardian may accept on behalf of a
minor. Donee can be a person from any religious background. Hiba in favor of a minor or a
female is also valid. Child in the mother’s womb is a competent done provided it is born alive
within 6 months from the date of declaration. Juristic person are also capable of being a donee
and a gift can be made in their favor too. On behalf of a minor or an insane person, any guardian
as mentioned under the provisions of Muslim law can accept that gift. These include:

 Father
 Father’s Executor
 Paternal Grand-Father
 Paternal Grand Father’s Executor.

Competency of the Donee:

The donee, in whose favour the property is gifted, may be any person in existence. For being a
competent donee, the only essential requirement is that he or she must be in existence at the time
of the declaration. In other words, the donee must be a living person on the date of the transfer.
Donee may be a person of any religion, sex, age or state of mind.
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Thus, a Muslim may make a lawful Hiba in favour of a Hindu or a Christian or any non-Muslim.
Similarly, a Hiba in favour of a female or minor or an insane person is also valid. Specific
mention of the following persons would explain the competency of a donee under Muslim law.

Child in Womb:

A child in mother’s womb is competent donee provided it is born alive within six months from
the date on which gift were made. A child in the mother’s womb i.e., child en ventre sa mere is a
person in existence. Therefore, the child in its mother’s womb is a competent donee. Although
the child in mother’s womb has no wordly existence yet, in the eyes of law it is regarded as a
living person. However, the birth of such child is not certain.

The child may die in the womb or abortion may take place. Therefore a gift may be made in
favour of a child in the womb but the child must be born alive. If after the gift an abortion takes
place or the child dies in the womb, the gift already made becomes void. Accordingly, under
Muslim law, a gift in favour of a child in the womb is valid provided such child is born alive
within six months from the date on which the gift was made.

It may be noted that it is absolutely necessary that the child must be in existence in its nother’s
womb when the declaration of gift is made. If the child is not in mother’s womb on the date
when declaration is being made, the gift is void ab initio and cannot be validated when
conception takes place on a later date and a living child is born subsequently.

For example, A makes a gift of his properties in favour of B’s unborn child. В is a bachelor on
the date of declaration but soon after he gets married. A son is born to B. The gift is void and it
cannot be validated and enforced in favour of B’s son because he was not in existence even in his
mother’s womb when the gift was made. In other words, gift in favour of future donee i.e. a
donee who has no existence at all (not even in mother’s womb) is void.

Juristic Person:
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Juristic persons are also competent donee and a gift may be made to them. In the eyes of law, the
term ‘person’ means not only the human person but it also includes a juristic or legal person.
Juristic or legal persons have no biological existence but for the sake of convenience and to
avoid practical difficulty, law confers rights and duties to such entities.

That is to say, they are legally presumed to be persons. For example, a corporation, registered
firm, company and an University is a juristic person. A jursitic person is legally presumed to be
adult and of sound mind. Thus, a gift in favour of a school or a mosque is valid.

Where a Muslim donates money for the repair or maintenance of mosque or an institution, the
gift is valid. The acceptance of a gift in favour of an institution or any other juristic person is
made by its manager or any other competent authority.

Minor and Insane:

Gift to a minor or a person of unsound mind is valid. Minor and insane person may not have
mature understanding but they are persons in existence. Therefore, a minor or a person of
unsound mind is a competent donee. But such gifts must be accepted by the guardian of that
minor or insane donee.

A gift to a minor or to a person of unsound mind is void without acceptance by the guardian. For
purposes of acceptance of a gift, the guardians of a minor or of insane person are as under:

(i) Father,

(ii) Father’s executor,

(iii) Paternal grand-father,

(iv) Paternal grand-father’s executor.

These guardians are in the order of priority. That is to say, in the presence of father the paternal
grand-father is not entitled to accept the gift and so on. In the absence of the abovementioned
persons, a gift on behalf of minor or insane is accepted by the ‘guardian of the property’.
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It is significant to note that under Muslim law, mother has not been regarded as ‘guardian of
property’ of her minor children. Therefore, she is not entitled to accept the gift on behalf of her
minor child.

A guardian, who accepts the ownership of the gifted property on behalf of minor or the insane,
takes also the possession of the property. When a guardian himself makes a gift to his ward, his
declaration of gift is made as owner of the property, and acceptance by him is in the capacity of
guardian of the minor or insane person.

Two or More Donees:

The donee may be an individual or a class of persons. When the donee is a group of persons, all
the persons constituting that group must be ascertainable. That is to say, they must be known as
to who are the donees. Gift to two or more donees must be accepted by all of them separately.

If the share of each donee is clearly defined, the donor need not separate or divide these shares
and give possession to each of them. However, a gift to two or more donees without specifying
their respective shares and without giving them separate possession has also been held to be
valid. In such cases the donees take the property as tenant-in- common.’

DELIVERY OF POSSESSION

In Muslim law the term possession means only such possession as the nature of the subject is
capable of. Thus, the real test of the delivery of possession is to see who – whether the donor or
the donee – reaps the benefits of the property. If the donor is reaping the benefit then the delivery
is not done and the gift is invalid.

It is an act by which a donor puts the donee in possession of the property. Under Muslim law, a
gift is complete only after the delivery of the possession. Therefore, the gift takes effect from the
date on which the possession of the property is delivered to the donee; not from the date on
which the declaration was made.

The donor must divest himself of not only the ownership, but also of possession in favour of the
donee to complete the gift. Delivery of possession is so important in the Muslim law of gifts
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(Hiba) that without delivery of possession to the donee, the gift is void even if it has been made
through a registered document.

Muslim law does not presume transfer of ownership rights from donor to donee without the
delivery of possession of the property. Importance of delivery of possession has been given in
Hedaya as under:

“The possession of a property is necessary in order to establish a right of property in the gift
because right of property is not established in a thing given merely by means of the contract (i.e.
declaration and acceptance).”

The mode of delivery of possession, i.e., how the property is to be transferred, depends upon the
nature of the property gifted. All that is legally required for a donor to constitute the delivery of
possession is to do something by which a donee gets the physical control over property.

A donee is said to be in possession of a property “when he is so placed with reference to it that

he can exercise exclusive control over it, for the purpose of deriving from it such benefit as it is
capable of rendering or as is usually derived from it.” A delivery of possession may be either (i)
actual or (ii) constructive.

(1) Actual Delivery of Possession:

Where a property is physically handed over to the donee, the delivery of possession is actual. If
the physical possession of a property is possible, its gift is not complete without actual delivery
of possession. But actual delivery of possession is possible in respect of only those properties
which are capable of being physically possessed and given. Generally, only the tangible
properties may be actually delivered to the donee.

A tangible property may be movable as well as immovable. For example jewels, money, vehicle
etc. is tangible movable property and house, land etc. is tangible immovable property. Where the
property is movable, it must be actually transferred and handed over to the donee; a mere entry in
a register or account book is not sufficient and does not constitute a delivery of possession.

Similarly, where the property is immovable, its actual delivery of possession is also necessary to
validate the gift. But the immovable properties cannot be picked up and handed over to the
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donee. Therefore, if the gifted property is a land, house or a garden, the donor may deliver the
possession by giving up all dealings with the property and by placing it at the complete disposal
of the donee so that the donee may use it as he likes.

Thus, where the donor makes a gift of his house in which he is residing, he must vacate it and
ask the donee to live in it. Delivery of possession in case of a garden may be completed by
giving to the donee full control over it, including all rights to enjoy the fruits and the flowers.
Similarly, where the subject matter of a gift is an agricultural land, its delivery may be made by
allowing the donee to plough the field or to reap the crop.

Under Muslim law, actual physical transfer of the property is so very much necessary that even
the mutation of names or entry in official papers and records would not constitute the delivery of
possession. Where the mutation proceedings have started but the physical possession could not
be given and the donor dies, the gift fails for want of delivery of possession.

However, in such cases if it is proved that although the mutation proceedings were not complete
but the donee has already taken possession of the property, the gift was held valid. Similarly,
where a property is held by some other person adversely to the donor, the donor must first of all
take possession from him and thereafter pass it on to the donee.

However, as has been discussed in the following lines, if the donor is unable to get the
possession from a trespasser, a constructive or symbolic delivery of possession is sufficient to
constitute a valid gift.

(2) Constructive Delivery of Possession:

Constructive delivery of possession means a symbolic transfer of property. Delivery of

possession is constructive if property is not actually delivered but the donor has done some act
due to which it is legally presumed that the possession has been given to the donee.

Where the property is of such a nature that its physical possession is not possible and it cannot be
delivered actually, a constructive delivery of possession is sufficient to complete the gift.
Constructive delivery of possession is sufficient to constitute a valid gift in the following two
situations:
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(i) Where the property is intangible property.

(ii) Where the property is tangible property but, under the situations, its actual or physical
delivery of possession is not possible.

EXCEPTIONS TO THIS GENERAL RULE

There are certain cases in which delivery of possession is not necessary at all. These exceptions
are as follows:

a) Donor and done residing in the same house - in such a case the donor can complete the
gift without physical transfer of possession.
b) Husband to wife- where a married couple lives in a house which belongs to the husband,
the husband may make gift of the house to the wife without physical delivery of
possession.
c) Father to child: Mother to son: Guardian to ward - no transfer of possession is necessary
where a father or mother makes a gift of immovable property to their minor child. The
same is the rule between guardian and ward.
d) Gift to donee in possession- where the subject of the gift is already in the possession of
the done, the gift is complete by declaration and acceptance, without formal delivery of
possession.

WHO CAN MAKE GIFTS

Every muslim male or female who is 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.

Where the female is a pardanashin lady she is presumed to be ignorant of the result of her acts.
Thus, where a paradanashin lady signed a gift deed believing it was to take effect only after her
death, it was held that the transaction was not voluntary, addn the deed was void.10

Ordinarily when a person makes a gift but latr calims to have done it under influence, etc, has to
prove that alleged fact. In exceptional cases like those of pardanashin lady, theo nus of proof

10
Fyzee, at pp. 224-25
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may shift to the person claiming the benefit of the gift. There is no hard and fast rule in this
regard.

If the donor is suffering from death-illness, or maraz-ul-maut, such a gift is called donates mortis
causa. Strictly, it is neither exactly a gift, nor exactly a legacy (will), but a mixture of both.

In order to constitute the death-illness, it is essential that-

1. The illness msut cause death of the ill person

2. The illness must cause apprehension of death in the mind of the deceased; and
3. There must be some external symptoms of a serious illness

A gift made during maraz-ul-maut cannot take effect beyond one-third estate of the donot, after
paying funeral expenses and debts, unless the heirs give their consent, after the donor’s death.
Nor such a gift can take effect, if made in favour of an heir, unless the other heirs give their
consent after the donor’s death.11

A gift in death illness can only take place when the donor dies.

An insolvent may also make hiba with bona fide intention; but a gift to defraud the creditors is
voidable at their option.

IN WHOSE FAVOUR (DONEE)

A gift may be made in favour of the following:12

(i) Any living person who is capable of holding property- thus strictly speaking, a gift
to an unborn person is invalid.
(ii) Child in the womb- a gift to an unborn person may be made provided 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.
(iii) Unborn person- a gift oof limited in the usufruct to property (ariat) may be made to
an unborn person provided that the person is in existence when the interest opens out
for him.

11
Mulla, at p. 147
12
Verma, at pp. 535-36
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(iv) Juristic persons- gifts may be made validly to such juristic persons as mosques,
durgahs, and charitable institutions like schools.
(v) Non-muslim- a gift may be made to a non-muslim. The gift property will be subject
to the personal law of the donee, once he gets possession of it.
(vi) Two or more persons- where a gift is made to two or more donees without dividing
the property, its validity is governed by the provisions of the doctrine of mushaa.

WHAT MAY BE GIVEN IN GIFT

All mals or forms of property over which control may be exercised are proper subjects of the
gift. These include all mal whether ancestral or self-acquired, movable or immovable, corporeal
or incorporeal.

(a) Equity of redemption- a muslim mortgagor can make a valid gift of his equity of
redemption even if the mortgagee is at time in possession.
(b) Insurance policy- the insurance act of 1938 makes a statutory provision whereby any
person can, in certain circumstances, assign his policy, his personal law notwithstanding.
(c) Property held adversely to donor- where a donor has a property which is in adverse
possession of another person, then the donor cannot make a gift of this property unless he
obtains and delivers its possessions to the donee. But if the donor cannot regain actual
possession from the adverse possessor, he shall do all that he can to complete the gift so
as to put it in the power of the donee to obtain possession.
(d) Gift of corpus (ayn) and usufruct (manafi)- the corpus may be given as hiba but ehrer
only usufruct is given, it is not hiba but ariya. However it does not mean that muslim law
does not allow gifts that do not transfer full ownership. Life interests are considered
valid; so also the following gifts: (a) the right to collect a specified share of the rent of
undivided property, (b) rights in zamindari lands, etc. In the leading case on the subject 13
the Privy Council made a distinction between the gift of the corpus and usufruct and
observed that over the corpus of the property the muslim law recognizes only absolute
dominion, heritable, and unrestricted in point of time; but where a gift of the corpus seeks
to impose a condition inconsistent with such absolute dominion, the condition is rejected
as repugnant. However interests limited in point of time can be created in the usufruct of
13
Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan, (1948) 75 IA 62.
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the property and the dominion over the corpus takes effect subject to any such limited
interests. The distinction runs all through the Muslim law of gifts of usufruct (ariyat) and
usufructuary bequests.
(e) Gift of mushaa- Mushaa has been defined as an undivided share in an immovable or
movable property.
As delivery of possessions is one of the essentials of a valid gift, thus the possession to be
delivered must be separate and exclusive. Hence gift of an undivided share (mushaa) is a
thing capable of division is void, according to Hanafi law. According to shafii and Shiite
view, however, the gift of mushaa is valid, provided that the donor, after withdrawing his
control from the subject-matter of gifts, delivers it to the donee.
Mushaa (literal meaning: confusion) in law denotes the mixing up of the proprietary
rights of more than one person in a thing (as in joint ownership), where each cp-owner
has a right until partition of the property.

CONDITIONAL, CONTINGENT AND FUTURE GIFTS

(i) 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, then
thou art discharged from mu debt.” The gift is invalid in Hanafi law. If however the
creditor says to his debtor. “if I die, you will be absolved from my debt,” it is valid, as
constituting a legacy.
(ii) Gifts with conditions- if a gift is made subject to a condition which hampers in the
way of full ownership of the gifted property, the gift is valid, but the condition is
void.
(iii) Contingent gift- a gift cannot be made to take effect on the happening of a
contingency, i.e a future uncertain event. a classical example of contingent gift is
ruqba. D says “my mansion is thy ruqba” that is, ‘if you die, it is mine; if I die, it is
yours.’ It is void. Similarly the gifts by A to B for life, and in the vent of death of B
without leaving male issue, to C, is as regards C a contingent gift, and therefore void
(Mulla). Gifts of insurance policy, though of contingent nature may be effectively
made by virtue of section 38(7) of the Insurance Act, 1938. Further section 39(5)
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provides that in the case of the death of the nominee before the maturity of the policy,
the amount of the policy is payable to the holder. To illustrate, S a shia muslim, took
an insurance policy on his life ad assigned it to N, his wife, with the condition that if
N died before the policy matured for payment or if S survived on the day of maturity,
the gift would be revoked and the assignment rendered ineffective. N died before the
policy matured. N’s heir and S both made a claim to the amount of the policy. The
court upheld the claim of S on the basis of section 39(5) of the act in Sadiq Ali v.
Zaheeda Begum14.
(iv) Gift in futuro- A gift cannot be made so as to take effect at any future time, whether
such time is definite or indefinite. The following illustration help in understanding:-
 A makes a gift to B of the “fruit that may be produced by his palm tree this year”. The
gift is void as being a gift of future property.
 A jagirdar executes a deed of gift in favor of his wife purporting to give to the wife and
her heirs in perpetuity Rs. 4000 every year out of the income of certain villages. The gift
is void, as being a gift of the future revenue of the villages.

REVOCATION OF GIFT

Although there is a tradition which indicates that the Prophet was against the revocation of gifts,
it is a well-established rule of Muslim law that all voluntary transactions, including gifts, are
revocable. The Muslim law-givers have approached the subject of revocability of gift from
several angles.

From one aspect, they hold that all gifts except those which are made by one spouse to another,
or to a person related to the donor within the degrees or prohibited relationship, are revocable.

The Hedaya gives the reasons thus: “The object of a gift to a stranger is a return for it is custom
to send presents to a person of high rank that he may protect the donor; to a person of inferior
rank that the donor may obtain his services; and to person of equal rank that the donor may
obtain an equivalent and such being the case it follows that the donor has the power of
annulment, so long as the object of the deed is not answered, since a gift is capable of
annulment”.

14
ILR (1939) 61 all 957.
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The texts of Muslim law lay down a long list of gifts which are irrevocable. The contents of the
list differ from school to school, and the Shias and the Sunnis have the usual differences. The
Muslim law-givers also classify gifts from the point of view of revocability under the following
two heads:

 Revocation of gifts before the delivery of possession

 Revocation of gifts after the delivery of possession.

  

Revocation of gifts before the delivery of possession:

Under Muslim law, all gifts are revocable before the delivery of possession is given to the donee.
Thus, P makes a gift of his motor-car to Q by a gift deed. No delivery of possession has been
made to Q. P revokes the gift.

The revocation is valid. In this case, it will not make any difference that the gift is made to a
spouse, or to a person related to the donor within the degrees of prohibited relationship. The fact
of the matter is that under Muslim law no gift is complete till the delivery of possession is made,
and therefore, in all those cases where possession has not been transferred the gift is incomplete,
and whether or not it is revoked, it will not be valid till the delivery of possession is made to the
donee.

The revocation of such a gift, therefore, merely means that the donor has changed his mind and
does not want to complete it by the delivery of possession. For the revocation of such gifts, no
order of the court is necessary. Fyzee rightly says that this is a case of inchoate gift and it is not
proper to apply the term revocation to such a gift.

 Revocation after the delivery of possession:

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not
sufficient to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is
entitled to use the property in any manner; he can also alienate it.

It seems that:
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 all gifts after the delivery of possession can be revoked with the consent of the donee,

 revocation can be made only by a decree of the court.

The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked
by his heirs after his death. A gift can also not be revoked after the death of the donee.

According to the Hanafi School with the exception of the following cases, a gift can be revoked
even after the death of the donee.

According to the Hanafi School, with the exception of the following cases, a gift can be revoked
even after the delivery of possession. The exceptions to the same are:

 When a gift is made by one spouse to another.

 When the donor and the donee are related within the prohibited degrees.

 When the donee or the donor is dead.

 When the subject-matter of the gift is no longer in the possession of the donee, i.e., when
he had disposed it off by sale, gift or otherwise or, where he had consumed it, or where it
had been lost or destroyed.

 When the value of the subject-matter has increased.

 When the identity of the subject-matter of the gift has been completely lost, just as wheat,
the subject-matter of gift, is converted into flour.

 When the donor has received something in return (iwaz).

 When the object of gift is to receive religious or spiritual benefit or merit, such as sadaqa.

The Shia law of revocation of gifts differs from the Sunni law in the following respects: First,
gift can be revoked by a mere declaration on the part of the donor without any proceedings in a
court of law; secondly, a gift made to a spouse is revocable; and thirdly, a gift to a relation,
whether within the prohibited degrees or not, is revocable.
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CONCLUSION

The conception of the term gift and subject matter of gift has been an age old and traditional
issue which has developed into a distinct facet in property law. In considering the law of gifts, it
is to be remembered that the English word ‘gift’ is generic and must not be confused with the
technical term of Islamic law, hiba. The concept of ‘hiba’ and the term ‘gift’ as used in the
transfer of property act, are different. As we have seen in the project that Under Mohammedan
law, to be a valid gift, three essentials are required to exist:

 Declaration of gift by the donor.

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 An acceptance of the gift, express or implied, by or on behalf of the done.

 Delivery of possession of the subject of gift.

The English law as to rights in property is classified by a division on the basis of immoveable
and moveable (real and personal) property. The essential elements of a gift are:

 The absence of consideration

 The donor

 The done

 The subject-matter

 The transfer; and the acceptance

Thus this striking difference between the two laws relating to gift forms the base of this project
in understanding its underlying implications.

To conclude it can be said that the gift is a contract consisting of a proposal or offer on the part
of the donor to give a thing and acceptance of it by the donee. So it is a transfer of property
immediately and without any exchange. There must be clear intention by the donor to transfer
the possession to the donor for a valid gift. It can be revoked by the donor. And the provisions
for the same have also been mentioned.