1. S ‘O’ A NATIONAL INSTITUTE OF LAW
ASSIGNMENT
Of
Meaning of Gift and its Essentials
Submitted By- Aditya Narayan Biswal
Branch-BBA/LLB (H)
4th
semester
REGD no.-1941801001
Submitted To- Akash Tirkha
2. Acknowledgment
I would like to express Gratitude to everyone who has helped me in
completing this assignment, speciallyMy Professorof Family law -II
(Mohammedan law) Mr. Akash Tirkha and respectedDeanDr. S.A.K.
Azad sir for their guidance and support in completing my assignment.
I would also like to Thank my parents, friends and well wishers for their
kind and supportive gesture as wellas for their co-operationwith me that
encouragedme to move forward towards the completionof this project.
Aditya NarayanBiswal
BBA/LLB(H)
RegistrationNo.-1941801001
3. Declaration
I Hereby Declare thatThis assignmentbased on the topic “Meaning and
essentials ofgift” is basedon my own researchwork and references has
been takenfrom books as well as notes from various authors and then
combined into this assignmentby my own understanding as well as typed in
my ownlanguage for assessmentof4th
semester,BBA/LLB and is
submitted to SOA NationalInstitute of Law Under the guidance of Mr.
Akash Tirkha.
Dr.S.A.K.AZAD Mr. AKASH TIRKHA
(Dean,SNIL) (Professor, SNIL)
(signature)
(signature)
Place-BHUBANESWAR
Date-14th
August,2021.
4. Introduction
Muslim is a person whose religious beliefis based on Islam or he follows the
path of Islam . Muslim law is a personallaw and a branch of civil law that is
applied by courts in regardto the family matter where the parties are
Muslim.
According to the court of law , minimum requirement for being recognisedas
Muslim law is that he must believe in one godand have faith on prophethood
of Mohammad.
A Muslim can devolve his property in various ways. Muslim law permits the
transfer of property inter vivos (gift) or through testamentarydispositions
(will).
A disposition inter vivos is unrestricted as to quantum and a Muslim is
allowedto give awayhis entire property during his lifetime by gift, but only
one-third of the total property can be bequeathed by will. A gift, being a
transfer of property is governedby the Transferof Property Act, 1882.
The conceptof Gift, or Hiba in Muslim law has existed from the very
inception of the religion, circa. 600 A.D.
A 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 generaldefinition that is acceptedby all the religions,
including Muslim law.
In Islamic law, gifts are knownas ‘Hiba’. Gift implies to an extensive
overtone and appertain to all kind of transfers of ownershipnot involving any
consideration. On the other hand, the term ‘Hiba’ includes a narrow
connotation. It is basicallytransferred inter vivos i.e. betweenliving person.
According to Hedaya– “Hiba is an unconditional transfer of ownership in an
existing property, made immediately without any consideration.”
According to Ameer Ali– “A Hiba is a voluntary gift without considerationof
property by one person to another so as to constitute the donee the proprietor
of the subject-matter of the gift.”
5. According to Mulla– “A Hiba is a transfer of property, made immediately
and without any exchange by one personto another and acceptedby or on
behalf of the latter.”
After anatomizing the definitions and meaning, some prominent features of
Hiba emerge as follows:
a. Hiba is a transfer of property by act of the parties and not by operation
of law. It means that any transfer of property done by the court of law or
any transfer of ownership by the Muslim law of inheritance will not be
consideredas Hiba.
b. Under Hiba, a living Muslim voluntarily transfers the ownership of any
property to another living person. Hence, it is a transfer inter vivos.
c. The transferortransfers ownershipof the property in absolute interest
and the transferee gets the complete title in respectof the property given
to him. Conditions, restrictions or partial rights in the gifted property
are averse to the conceptof Hiba under Islamic law.
d. Hiba is operative with immediate effectand deprives the transferorof his
control and ownership over the property. Moreover, as the property is
passedimmediately to the transferee, the property must be in existence
at the time when the gift is made. A gift made for a property which will
exist is future is termed as void.
e. A Hiba is a transfer of property without any consideration. If anything of
any value is takenby the transferor in return or exchange, sucha
transfer of property is not a gift.
A person who makes the declarationof a gift is calleda donor. A donor must
be a competent person to make a gift. Every Muslim, male or female, married
or unmarried, who has attained the age of majority and has a sound mind is a
competent donor. Forthe purpose of making a gift, the age of majority is the
attainment of 18 years and 21 years if he is under a certificatedguardian.
Competencyof the Donee
The personin whose favour the gift is made is known as the donee. For being a
competent donee, the only essentialrequirement is that a donee must be any
person in existence atthe time of the making of a gift. He may be a personof
any religion, sex, or state of mind. Thus, a Muslim canmake a lawful Hiba in
favour of a non-muslim, female, minor or an insane person.
1) Child in Womb: A child in the mother’s womb is a competent donee provided
that it is born alive within six months from the date on which the gift was
made. If after the declarationof the gift the child dies in the womb or an
6. abortion takes place, the gift becomes void. Also, the child must be in existence
in the mother’s womb at the time of the making of the gift. If a child is not in
the mother’s womb or the conceptiontakes place afterthe declarationof the
gift, such a gift is void ab initio.
2) Juristic Person:A juristic personincludes a firm, corporation, company,
association, union, university or any other organization. A juristic person is
presumed to be an adult of sound mind like a human being in the eyes of law
and hence, is a competent donee in whose favour a gift canbe made. A gift in
favour of a mosque, temple or a schoolis valid.
3) Two or more Donees:A donee may be an individual or a class of persons. In
case the donee is a group of people, all the people in that particular group must
be ascertainable.
KINDS OF GIFT
There are four kinds of gifts under muslim law and they are as follows-
1) Sadaquah
Where the object of the donor is to acquire merit in the eyes of the Lord and
a recompense in the next world, the gift is calledSadaquah. It is a gift with a
religious motive. Like hiba, it is not valid unless accompaniedby delivery of
possession. Unlike hiba, it cannotbe revoked, the reasonbeing that the
objectof such a gift is acquisition of religious merit and that has already
been acquired.
Sadaquah is a transfer of property or rights in all respects like a hiba, except
that —
a. In the case ofhiba, the object is to manifest affectiontowards the donee,
or win his regardor esteem. In the case ofsadaquah, the object is to
acquire merit in the sight of the Lord and a recompense in the next world.
b. Unlike hiba, a sadaquah, once completed by delivery of posse-ssion,
cannot be revoked, whether made to a rich or poor man.
c. Unlike hiba, sadaquah need not be expresslyaccepted.
2) Hiba-Bil-Iwaz:
Hiba-bil-iwaz is a gift for a consideration. It resembles a sale in that (a)
transfer of title is complete without delivery of possession, and (b) all the
incidents of sale attach to it, including —(i) the liability of being pre-empted,
7. where the law of pre-emption is in force, and (ii) the right to return a thing for
a defect.
To constitute a valid Hiba-bil-iwaz, the following two conditions must be
present:
(a) Actual and bona fide payment of consideration(iwaz) on the part of the
donee.
(b) A bona fide intention on the part of the donor to divest himself in praesenti
of the property, and to conferit upon the donee.
The hiba-bil-iwaz as practisedin India, there is only one act, the iwaz or
exchange being involved in the contractof gift as its direct consideration. Thus,
in the illustration given above, if A says to В “I have given this book to you in
considerationof your paying me a rupee,” it is a hiba-bil-iwaz of India.
3) Hiba-ba-Shart-ul-Iwaz:
Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made
with a stipulation for return’. Unlike in Hiba bil Iwaz, the payment of
considerationis postponed. Since the payment of considerationis not
immediate the delivery of possessionis essential. The transactionbecomes
final immediately upon delivery. When the considerationis paid, it assumes
the characterofa sale and is subject to preemption (Shufa). As in sale, either
party can return the subject of the sale in case ofa defect.
Where a gift is made with a stipulation (shart) for a return it is called hiba-
ba-shart-ul-iwaz. As in the case ofhiba, in the case ofhiba- ba-shart-ul-iwaz
also, delivery of possessionis necessary, andthe gift is revocable until the iwaz
is paid. On payment of iwaz (consideration)by the donee, the gift becomes
irrevocable. The transaction, when completed by payment of iwaz is,
however, not very common in India.
It has the following requisites –
a. Delivery of possessionis necessary.
b. It is revocable until the Iwaz is paid.
c. It becomes irrevocable afterthe payment of Iwaz.
d. Transactionwhencompleted by payment of Iwaz, assumes the
characterof a sale.
4) Areeat:
An areeatis the grant of a licence, revocable atthe grantor’s option, to take
and enjoy the usufruct of a thing.
8. The four essentialsofan areeatare that (i) can be revoked(ii) it must be a
transfer of ownership in the property (iii) it must be for a definite period (iv)
it does not devolve upon the heirs of the donee on his death.
Capacityto make a Hiba or gift
1) Mental capacity:A person who is of sound mind and has the mental capacityto
understand the legalimplications of his actis eligible to make a gift. However,
a gift made by a person of unsound mind during lucid intervals is a valid gift.
Also, the donor must be free from any coercive orfraudulent influence while
making a gift.
2) FinancialCapacity: According to the Hanafi view, if a personis under
insolvent circumstances, he is allowedto make a gift. However, the Kazi has
the powerto declare any gift as void if it is made with a view to defraud the
donee. The Indian courts have acceptedthe view of the Hanafi schoolthat from
the factof indebtedness or embarrassing financial circumstances ofthe donor,
it cannot be inferred that the donor has fraudulent intentions.
Right to make a Hiba or gift
Capacityto make a gift is not solelyenough. The donor must also have a right
to make a Hiba. A Muslim has a right to gift only those properties of which he
has the ownership. If he is simply a tenant in a house, he is not allowedto gift
that house to someone because he does not have the ownership of that house.
Such a gift is consideredas invalid.
However, a Muslim has a right to gift away all his properties which are under
his ownershipat the time of declarationof the gift. The transfer of the property
by the donor must be in the absolute interest of the donee. Therefore, it is
imperative that the donor himself has the ownershipof that property which he
intends to pass on to the donee.
SUBJECT MATTER OF GIFT UNDER MUSLIM LAW
As per the provisions of Transferof Property Act, 1882, the subjectmatter of
the gift must be certainexisting movable or immovable property. It may be
land, goods, oractionable claims. It must be transferable under Section6. But
it cannot be future property. A gift of a right of managementis valid, but a gift
of future revenue of a village is invalid.
9. It is quite clearthat an actionable claim such as a policy of insurance may be
the subjectof a gift . Therefore in order to constitute a valid gift, there must
be an existing property. In Mohammedan law, any property or right which
has some legalvalue may be the subject of a gift.
Islamic law does not make any distinction betweenancestralorself-acquired
or betweenmovable or immovable property as far as the conceptof Hiba is
concerned. Any form of the property upon which the dominion canbe
exercisedmay constitute the subject-matter of the Hiba. Both incorporealand
corporealproperty canbe the subject-matter of a Hiba.
Similarly, a gift canbe made of property on lease, a property of attachment or
any actionable claim. Unlike the conceptof the will or wasiyatunder Islamic
law in which only one-third of the total property canbe bequeathed by a will,
a Hiba or gift can be made of the entire property.
Essentials OF GIFT
It is often supposed that the word ‘gift’ connotes the exactidentical
meaning as the term ‘Hiba’. A gift is a broad and generic conceptwhereas
Hiba is a narrow and well-defined legalconcept. Juristically, in Islamic
law, a Hiba is treatedsimilar to a contractconsisting of an offer to give
something on the part of donor and acceptanceonthe part of the donee.
Thus, to make a Hiba three essentialformalities have to be fulfilled. They
are-
1. A declarationby the donor:
There must be a clearand unambiguous intention of the donor to make a
gift. A declarationis a statementwhich signifies the intention of the
transferor that he intends to make a gift. A declarationcan 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.
Declarationsimply signifies the intentions of the donor to make a gift. It is
a substantiation of the intention of the donor to transfer the ownership of
the property to the donee.
a. Oral or Written: The donor may declare a gift of any kind of property either
orally or through a written deed.In the case ofMd. Hesabuddin v. Md.
Hesaruddin[2], a Muslim woman made a gift of her immovable properties in
favour of her son. The gift was written on ordinary paper and was not a
registereddeed. The court held the validity of such gifts in this case as-“
10. Under Muslim law, writing is not essentialfor the validity of a gift whether it
is moveable or immovable property. Therefore, the gift, in this case,was
held to be valid because writing and registrationof a gift are not mandatory
requisites to make a valid gift.”
b. Express Declaration:A declarationof a gift must be expresslymade in clear
words that the donor is conceding his ownership of the property completely.
A gift made in ambiguous words is null and void.In Maimuna Bibi v. Rasool
Mian[3], it was held that-“ It is necessarythat the donor divest himself
completely of all the dominion and ownership over the property of gift. The
donor must express his explicit intention to transfer the ownershipto the
donee clearly and unequivocally.”
c. Free Consent: The consentof the donor in making the gift must be free. A
declarationof a gift must be made voluntarily by the donor. Any gift made
by a donor under threat, force, coercion, influence or fraud is not a valid
gift.
d. Bona fide Intention: Mere announcement of a gift is not consideredas a
valid declarationuntil it entails the intention of the donor. Absence of real
and honestintention to transfer the ownership of the property will make a
gift ineffective. A gift made with an intention to defraud the donee is void. A
gift without an intention may be pretence gift, colourable or Benami
transactionetc. however, mere indebtedness does not affectthe competency
of the donor unless his malafide intention is established.
2. Acceptance by the donee
A gift is void if the donee has not given his acceptance. The legalguardian
may accepton behalf of a minor. Donee canbe a person from any
religious background.
For the validity of a gift, it must be acceptedby the donee. Acceptance
manifests the intention of the donee to take the property and become its
new owner. Without acceptance, the gift is consideredto be incomplete.
Since under Islamic law, Hiba is treated as a bilateral transaction,
therefore, it is important that the proposalmade by the donor to transfer
the ownershipof the property must be acceptedby the donee.
a. Minor: In case the donee is minor, the acceptance onbehalf of a minor can be
given by the guardian of the property of the minor.
11. b. Juristic person: If a gift is made in favour of any institution or any other
juristic person, the acceptance ofthe gift is made by either manageror any
other competent authority.
c. Two or more Donees:Gift made in favour of two or more donees must be
acceptedby eachand every personseparately. If the share of eachpersonis
explicitly specifiedby the donor then, they will get the separate possessionin
the same way as declaredby the donor. But if the share under a gift is not
specifiedand no separate possessionis given by the donor, then also the gift is
valid and the donees will take the property as tenants-in-common.
3. Delivery of possessionby the donor and taking of the possessionby the done
In Muslim law, the term possessionmeans only such possessionas the nature
of the subject is capable of. Thus, the real testof the delivery of possessionis
to see who – whether the donor or the donee – reap the benefits of the
property. If the donor is reaping the benefit then the delivery is not done and
the gift is invalid.
The mode of delivery of possessiondepends completely upon the nature of
the property. Delivery of possessionmay either be: Actual, or Constructive.
a. Actual Delivery of Possession:Where the property is physically handed
over to the donee, the delivery of possessionis actual. Generally, only
tangible properties canbe delivered to the done. Tangible property may
be movable or immovable. Under Muslim law, where the mutation
proceedings have started but the physical possessioncannotbe given and
the donor dies, the gift fails for the want of delivery of possession[xviii].
However, in such cases,if it is proved that although the mutation was not
complete and the done has already takenthe possessionofthe property,
the gift was held to be valid.
b. Constructive Delivery of Possession:Constructive delivery of possessionis
sufficient to constitute a valid gift in the following two situations:
i. Where the Property is intangible, i.e. it cannot be perceived through
senses.
ii. Where the property is tangible, but its actual or physical delivery is
not possible.
Under Muslim law, Registrationis neither necessarynor sufficient to
validate the gifts of immovable property. A hiba of movable or immovable
property is valid whether it is oralor in writing; whether it is attestedor
registeredor not, provided that the delivery of possessionhas takenplace
according to the rules of Muslim Law.
12. RevocationofHiba
Although Prophet was againstthe revocationof gifts, it is a well-established
rule of the Islamic law that all voluntary transactions, including Hiba, are
revocable. Differentschools have different views with regard to revocation.
The Muslim law-givers classifiedthe Hiba from the point of view of
revocability under the following categories:
i. RevocationofHiba before the delivery of possession
All gifts are revocable before the delivery of possessionis given to the
donee. For such revocation, no orders of the court are necessary. As
discussedabove that under Muslim law, no Hiba is complete till the
delivery of the possessionis made, and therefore, in all those cases
where possessionhas not been given to the donee, the gift is
incomplete and whether it is revokedor not, it will not be valid till
the delivery of possessionis made to the donee.
It implies that the donor has changedits mind and not willing to
complete the gift by delivery of possession.
For example, X, a Muslim, makes a gift of his carto Y through a gift
deed and no delivery of possessionhas been made to Y. X revokes the
gift. The revocationis valid.
ii. Revocationafterthe delivery of possession
In this situation, a Hiba can be revokedin either of the following
ways:
With the consentof the donee
By a decree of the court.
Mere declarationof revocationby the donor or filing a suit in the
court or any other action is not enoughto revoke a gift.
The donee is entitled to use the property in any manner until a decree
is passedby the court revoking the gift.
13. Conclusion
The conceptionof the term gift and subject matter of gift has been an age-
old and traditional issue which has developed into a distinct facetin
property law. Different aspects relatedto gift in property actand its
distinction with the Mohammedan law and its implications has been the
major subject matter of this assignment.
In considering the law of gifts, it is to be remembered that the English word
‘gift’ is generic and must not be confusedwith the technicalterm of Islamic
law, hiba. The conceptof ‘hiba’ and the term ‘gift’ as used in the transfer
of property act, are different. As we have discussedearlier that Under
Mohammedan law, to be a valid gift, three essentials are required to exist:
i. Declarationofgift by the donor.
ii. Acceptance of the gift, express or implied, by or on behalf of
the done.
iii. Delivery of possessionofthe subjectof the gift.
To conclude we can saythat, the gift is a contractconsisting of a proposal
or offer on the part of the doner to give a thing and acceptanceof it by the
donee. So it is a transfer of property immediately and without any
exchange. There must be a clearintention by the donor to transfer the
possessionto the doner for a valid gift. It can be revokedby the doner.
