Law of Gifts (HIBA)

FAMILY LAW

FACULTY OF LAW

JAMIA MILLIA ISLAMIASUBMITTED BY:

Farhan Ahmed GhaziB. A. LL.B. (Hons.)

Class: 2nd yr

SUBMITTED TO:

Mrs. Kehkasha Danyal

ACKNOWLEDEMENT

I have taken efforts in this project however it would

not have been possible without the kind support

and help of many individuals, websites and books. I

would like to extend my sincere thanks to all of

them.

I am highly indebted to Mrs. Danyal for guidance

and constant supervision as well as for providing

necessary information regarding the project and

also for his support in completing the project.

Farhan Ghazi

B. A. LL.B. (Hons.)

Class: 2nd yr

Batch: 2012-17

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Table of Contents

1. Introduction 4

2. Conception Of Property 7

3. Constitutionality of Hiba 9

4. Requisites of Hiba 14

5. Subject matter of Hiba 21

6. Doctrine of Mushaa 24

7. Formalities & modes of Gift 27

8. Case Laws

9. Revocation of Gifts 38

10. Kinds of Hiba 41

11. Registration 44

12. Sadaqah & Hiba 47

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13. Ariyat 48

14. Conclusion 49

Gift is a transfer of property in which ownership is

transferred by a living person to another living

person and, the transfer is made without any

consideration. Gift is, therefore, a transfer inter vivos

i.e between living persons. Where a transfer of

property takes place after death of a transferor, it is

called a will. Moreover, gift is a gratuitous transfer

i.e. a, transfer without any consideration. Where

ownership in a property is transferred in return of

some consideration, the transfer is not a gift; it is

either sale or exchange. In brief, the essential feature

of a gift is that it is a gratuitous and inter vivos

transfer of ownership in an existing property. This

accepted meaning of the term gift is recognised in all

legal systems, including the muslim law.

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Under muslim law, a gift is called Hiba. When a

muslim transfers his property through a gift, the

transfer is called a Hiba or a muslim gift. The

religion of the person to whom the gift is made, is not

relevant.if the transferor is muslim the gift is Hiba.

Thus, where a muslim makes a gift of his properties

in favour of a Hindu, the gift is nonetheless, a Hiba. It

may be noted that gift being a transfer of property, is

governed by the Transfer of Property Act, 1882.

chapter VII of this act is applicable to gifts made by

any person in India, irrespective of religion, caste or

creed. But, chapter VII of the Transfer of Property Act

does not apply to Muslim gifts or Hiba.1 The reason is

that although there is no difference in the gifts made

by non muslims and a Hiba in so far as its basic

nature is concerned, yet the formalities of Hiba are

different from that of a gift made by any non-muslim.

As the rules of Muslim Personal Law were found to be

in conflict with the general rules framed for the

general people in India, it was deemed fit to exclude

Hiba, or the gift made by a muslim, from the

operation of Chapter VII of the Transfer of Property

Act. Moreover, the Shariat Act, 1937, includes gift as

one of the matters in which rule of decision should be

1 Transfer of Property Act, 1882, Section 129; “Nothing in this chapter i.e. (chapter VII on Gifts) shall be deemed to affect any rule of mohammadan law.”

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Muslim Personal Law if the parties are Muslims. The

result is that gifts made by non-muslims in India are

governed by the provisions of Transfer of Property

Act, 1882, whereas the gifts made by muslims are

governed by the muslim personal law. However, other

kinds of transfers, inter vivos by muslims, such as

sale, exchange, mortgage or lease, are regulated by

the Transfer of Property act and not by Muslim Law.

"Gift" is the transfer of certain existing moveable or

immoveable 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. Such acceptance must be made

during the lifetime of the donor and while he is still

capable of giving. If the donee dies before

acceptance, the gift is void.

The conception of the term "gift" as used In the

Transfer of Property Act is somewhat different from

the use in Mohammedan law. In the Mohammedan

law a gift is a transfer of property or right by one

person to another in accordance with the provisions

given in the Mohammedan law and includes-

a) A hiba, an immediate and unconditional transfer

of the ownership of some property or of some

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right, without any consideration or with some

return (ewaz); and

b) An ariat, the grant of some limited interest in

respect of the use or usufruct of some property or

right.

Where a gift of any property or right is made

without consideration with the object of acquiring

religious merit, it is called sadaqah.

The terms "hiba" and "gift" are often

indiscriminately used but the terms "hiba" is only

one of the kinds of transactions which are covered

by the general term "gift". A hiba is a transfer

without consideration. A gift by a Muslim in favour

of his co-religionist must be under the

Mohammedan Law. A gift is not a contract (though

in Muslim law it is called a contract) but the

principle may be applicable even to gift.

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. Section 122 of the Act postulates

that a gift is a transfer of certain existing movable

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or immovable property made voluntary and without

consideration by one person called the donor, to

another, called a donee and accepted by or on

behalf of the donee. The essential elements of a gift

are 

(a) The absence of consideration;

(b) the donor;

(c) The donee;

(d) The subject-matter; 

(e) the transfer; and the acceptance.

The concept of gift is diametrically opposed to any

presence of consideration or compensation.

In order to constitute a valid gift, the pivotal

requirement is acceptance thereof. No particular

mode of acceptance is required and the

circumstances throw light on that aspect. A

transaction of gift in order to be complete must be

accepted by the donee during the lifetime of the

donor. Factum of acceptance can be established by

different circumstances such as donee taking a

property or being in possession of deed of gift

alone. If a document of gift after its execution or

registration in favour of donee is handed over to

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him by the donor whom he accepts, it amounts to a

valid acceptance of gift in law. The specific recital

in the deed that possession is given raises a

presumption of acceptance.

Conception Of Property

English Law.-In order to appreciate the questions

of conditions in gifts (and also in bequests) it is

necessary to first note the different conceptions of

property in English and Mohammedan laws. The

English law as to rights in property is classified by

a division on the basis of immoveable and moveable

(real and personal) property. Rights in land

described as "estate in land" do not always imply

only absolute ownership but also rights which fall

short of it and are limited to the life of the grantee

or otherwise limited in respect of time and duration

or use property in all these various forms are

described as "estate". Ownership of land is thus

split up into estates distinguished in point of

quality (e.g., into legal and equitable estates) and

in point of duration (e.g., estates in fee simple, in

tail, for life or in remainder.'

Mohammedan Law.-In general, Muslim law draws

no distinction between real and personal property,

and there is no authoritative work on Muslim law,

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which affirms that Muslim law recognises the

splitting up of ownership of land into estates. What

Muslim law does recognize and insist upon, is the

distinction between the corpus of the property

itself (ayn) and the usufruct in the property

(manqft). Over the corpus of property the law

recognises 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 interests 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. Limited

interests in respect of property are not identical

with the incidents of estates under the English law.

Under 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. The usufruct is also 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. Ownership for a limited period

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is not contemplated at all. 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.

There is no difference between the several schools

of Muslim law in their fundamental conception of

property and ownership. A limited interest takes

effect out of the usufruct under any of the schools.

Constitutionality of Hiba:

The Transfer of Property Act exempts only those gifts

which are made by Muslims. This exemption may

appear to be discrimination on the ground of religion

which is against the constitutional mandate. But, it is

now well established law that this exemption is

constitutional and lawful.

‘Muslim gift’ or the Hiba has been associated with

religion and has also been included in the Shariat Act,

1937, to be regulated only by Muslim personal law;

therefore, the exemption under Section 129 of the

Transfer of Property Act does not violate Article 14 of

the Constitution of India.

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The courts have held that the rules of Muslim law

regarding gifts are based on reasonable classification

and there is no discrimination in allowing a separate

law for gifts made by Muslims.2

A significant point in respect of Hiba is that Muslim

Law recognises certain peculiar kinds of gifts which

are not known to other systems of law. For example,

Muslim Law recognises, Hiba-bil-Ewaz or a gift with

an exchange, and Hiba-ba-Shart- ul-Ewaz or a gift

with a condition precedent. Under Muslim Law, these

two transfers are regarded as distinct kinds of Hiba.

But, as a matter of fact, these kinds of gifts are gifts

only for the name’s sake. As is discussed in the

following pages, the courts in India have never

regarded them as species of gift. Hiba-bil-Ewaz has

been treated by the courts as a sale or exchange.

Similarly, Hiba-ba-Shart-ul-Ewaz has been interpreted

as a Hiba subject to some prior condition.

The transfer by way of gift has been recognised as

lawful since the early years of Islam. The Prophet

directed the people of Arabia to make gifts to each

other in order to encourage mutual love and affection

2 However in M Rowther v. M Chary, AIR 1972 Ker. 27. The Kerala High Court has held that section 129 of the transfer of Property Act, read with article 14 of the Constitution of India, exempts only religious gifts. It does not protect a non-religious i.e. a secular gift made by a muslim.

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between them. He has said “Send Ye presents to each

other for the increase of your love.”3

Gift is a generic term that includes all transfers of

property without consideration. In India, Gift is

considered equivalent to Hiba but technically. Gift

has a much wider scope than Hiba. The word Hiba

literally means, the donation of a thing from which

the donee may derive a benefit. It must be immediate

and complete. The most essential element of Hiba is

the declaration, “I have given”.

Concept of Hiba :- The Muhammadan Law defines

the Hiba or gift as a transfer of a determinate

(amount of) property without any exchange from one

person to another, and accepted by or on behalf of

the latter.1 Until acceptance, the gift has no

operation. A further condition relating to it is that the

donor should complete his intention by delivering

possession of the property to the donee. Until then,

property remains entirely at the disposal of the donor

and upon his death, it will descend to his heirs. If

possession is given afterwards in pursuance of the

gift, they need not be i renewal of the gift. From the

above, it is clear that under Muslim law, a gift is

called Hiba. When Muslim transfers his property

through gift, the transfer is called Hiba. The religion

3 Hedaya (Hamiltons Transalation), Ed. II, p. 482

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of the person to whom the gift is made, is not

relevant. If the transferor Muslim, the gift is Hiba.

Thus, where a Muslim makes a gift of his properties

in favour of a Hindu, the gift is nonetheless a Hiba. In

India, the subject of gifts is governed by the Transfer

of Property Act, 1872. But, chapter VII of the

Transfer of Property Act does not apply to Muslim

gifts or the Hiba. The reason is that although there is

no difference in the gifts made by non muslim and a

Hiba in so far as its basic nature is concerned yet, the

formalities

of Hiba are different from that of a gift made by any

non-Muslim. As the rules of Muslim personal law

were to be in conflict with the general rules framed

for all persons in India, it was deemed fit to exclude

Hiba, or the gift made by a Muslim, from the

operation of Chapter VII of the Transfer of Property

Act. Moreover, the Shariat Act, 1937, includes gift as

one of the matters in which rule of decision should be

Muslim personal law if the parties are Muslims. The

result is that gifts made by a non-Muslim in India are

governed by the provisions of the Transfer of

Property Act, 1872, whereas the gifts made by

Muslims are governed by the Muslim personal law.

Constitutionality of Hiba :- The Transfer of

Property Act, 1882 contains besides general

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principles relating to transfer of property-the laws

relating to sale, mortgage, charge, lease, and

exchange, transfer of actionable claims and gifts of

property. All the Chapters of this Act except that on

gifts are applicable to the Muslim. As regards the

general principles relating to disposition of property

contained in Chapter 2 of the Transfer of Property

Act, the Act declares that ‘nothing in the second

Chapter of this Act shall be deemed to affect any rule

of Mohammedan Law.This exemption may appear to

be discrimination on the ground of religion which is

against the Article 14 (i.e., right to equality) of the

Indian Constitution. But in Bibi Maniran v. Mohd.

Ishaque4, court now made it clear that this exemption

is constitutional and lawful. Muslim gift or the Hiba

has been associated and has also been included in the

Shariat Act, 1937, to be regulated only by Muslim

personal law. Therefore, the exemption under section

129 of the Transfer of Property Act does not violate

Article 14 of the Constitution of India. The courts

have held that the rules of Muslim law regarding gifts

are based on reasonable classification and there is no

discrimination in allowing a separate law for gifts

made by Muslims. The Kerala High Court has also

held that section 129 of the TPA, read with Article 14

of the Constitution of India, exempts only religious

4 AIR 1963 Pat 229

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gifts. It does not protect a non-religious, i.e., secular

gift made by a Muslim.

Definition of Gift.—Under Muslim law, a person is

allowed to lawfully make a gift of his property to

another during his life time or he may transfer it by

way of will which will take effect after his death. The

first is called a disposition inter vivos and the latter a

testamentary disposition. A disposition inter vivos is

unfettered as to quantum. a testamentary disposition

is limited to 1/3 of the net estate. Muslim Law permits

a man to give away the whole of his property during

his life time, whereas only 1/3 of it can be bequeathed

by will. A hiba or simple gift inter vivos (between

living person) literally means “the donation of a thing

from which the donee may derive benefit.1 In its

technical sense, it is defined as “unconditional

transfer of property. made immediately and without

any exchange or consideration, by one person to

another and accepted by or on behalf of the latter”. It

is the conferring of the property without

consideration. According to Mulla “Gift is a transfer

of property, made immediately and without any

exchange, by one person to the other and accepted by

or on behalf of the latter.

Since Muslim Law views the law of the gift as a part

of the law of contract, there must be an offer (Ijab)

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and an acceptance (qabtil) and delivery of possession

(qabza).

In P. Kunheema tlmma v. Aayssa Urnma, Kerala High

Court held that the requirements of a gift of

immovable property under the Muslim Law are : (1)

declaration by the donor (2) acceptance by the donee

and (3) delivery of possession by the donor to the

donee. There is, however, no consideration and this

fact coupled with the necessity to transfer possession

immediately distinguishes gifts from sale. It may be

noted that gift of the corpus of a thing is called hiba

while gift of only the usufuructs of a property is called

ariya.

In Smt. Hussenabi v. Husensab Hasan 5 offer of gift

was made. The offer was made by grandfather to his

grand children. The grand children were living with

him. On behalf of the minor children the acceptance

was made by the donor. But no express or implied

acceptance of gift was made by major grand son. The

Karnataka High Court held that when the three

essentials are not complete it cannot be a complete

gift. The gift-deed was valid in so far as the three

minor children are concerned. As regards the gift in

favour of the major sons was set aside.

5 AIR 1989 Kar

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Requisites of gift.— The requisites or essentials of a

valid gift are four in number, as follows:

1. Parties.

2. Subject.

3. Extent, and

4. Formalities or mode of gift.

Parties to a gift.—The parties to a gift transaction

are two:

(i) the donor, i.e., the person who makes the gift.

(ii) The donee, i.e., the person who takes something

as gift.

The donor.—The capacity of making a gift, like

any other contract, depends on the following

conditions. The donor must have a donor, who

has the following qualifications, has capacity

to make a Hiba’:

Mohammedan: A donor must be a

Mohammedan.

Sex: A donor may be a male or female.

Status: A donor may be married or unmarried.

Age of Majority: A donor must have attained

the age of majority. The age of majority is the

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age prescribed under section 3 of the Indian

Majority Act, 1875 as amended in 1999, which

now means eighteen years.

Ownership of Property: The person making a

Hiba must be the owner of the property which

is the subject matter of the Hiba. In other

words, the ownership of the property must be

with the donor, at the time of making a gift.’ A

gift by a widow who is in possession of the

property of her husband in lieu of dower

cannot make a gift of such property.

Free Consent: A gift made under compulsion

is not valid but voidable. Free consent of the

donor must be associated with the gift when a

gift is made by a pardanasheen lady, the proof

of independent outside advice is the usual

mode of discharging the burden by the donee

that the gift was free from compulsion.’ The

gift will be valid, if the pardanasheen lady had

the advantage of independent advice, and the

contents of the deed were fully explained to

and understood by her.

In Kaireern Biwi v. Mariarn Biwi Their

Lordships of Madras High Court followed the

view laid down by the Privy Council in

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Faridimnissa v. Mukhtar Ahmed,6 and

observed: “A gift deed executed by

pardanashin lady stands in a peculiar position.

The deposition made must be substantially

understood and must really be the mental act,

as its execution is the physical act of the

person who makes, it if however, the settlor’s

freedom and comprehension can be otherwise

established, or if, the scheme and substance of

the deed were themselves originally and

clearly conceived and desired by the settlor,

and were then substantially embodied in the

deed. There would be nothing further to be

gained by independent advice. They must

satisfy the Court that the deed has been

explained to and understood by the party thus

under disability, either before execution, or

after it under circumstances which establish

adoption of it with full knowledge and

comprehension.”

It may be noted that the protection given by

the rule relating to the pardanashin woman

cannot plainly be the exclusive privilege of the

class commonly known as pardanashin. The

rule regarding transactions by pardanashin

6 1925 PC 204, at pp. 350-352

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ladies applies equally to illiterate and ignorant

woman though not pardanashin. A

pardanashin lady is fully competent to dispose

of her property by way of executing a

document. In the case of a document executed

by a pardanashin lady, intelligent execution

must be proved. The extent and character of

the explanation required must depend in the

circumstances, The parda with its inhibitions

may be an additional feature or element in the

case but the real reason behind the rule is lack

of understanding and appreciation of what an

illiterate woman without independent advice

has done.A person in insolvent circumstances

can make a gift provided he has a bona fide

intention to give and the act is not merely

intended to defraud the creditors.

The Donee.—Any person capable of holding

property, which includes a juristic person, may

be the donee of a gift. Thus sex, age, creed or

religion are no bar to the taking of a gift. A

Muslim may make a lawful gift in favour of any

non-Muslim, for example, Christian or Hindu.

However, the donee must be in existence at

the time of making the gift. in the case of a

minor or a lunatic, possession must be handed

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over to the legal guardian. A donor D desires

to make a gift of an immovable property to M,

a minor. D must handover the possession of

the property of M’s father, the legal guardian.

If possession is handed over to M’s

brother, of M’s mother, the gift would be void.

A donee, who has the following qualifications,

has capacity to take a Hiba:

Mohammedan: A donee may be a

Mohammedan or non- Mohammedan. After the

completion of the gift, to a non-Mohammedan,

the property will be subject to the personal

law of the donee.

Sex: A donee may be a male or female.

Status:A donee may be married or unmarried.

Age of Majority: A donee may be a major or

minor.

Soundness or unsoundness of mind: A donee

may be an insane. But when a gift is made to a

minor or a person of unsound mind, the gift

will be complete by the delivery of possession

to the guardian of the minor or of the person

of the unsound mind.

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Existence of a donee or Child in Womb: A

Hiba cannot be lawfully made in favour of an

unborn person. Such a Hiba to unborn person

is invalid, with one exception. For example, if

the donor makes a gift of some property to a

donee and after his death to donee’s son who

is not in existence, such gift will be void. But a

gift to an unborn donee, who is in womb and is

born within 6 months of making of the gift, is

valid. Therefore, the child in its mother’s

womb is a competent donee. Although the

child in mother’s womb has no worldly

existence yet, in the eyes of law it is regarded

as a living person. Under the 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. Gujarat High Court in Ibrahim Shah

Mohantinad v. Noor Ahnzad Noor

Mohammad.7 In this case the Court held that a

father can lawfully make a gift to his minor

son. In the present case the boy’s grandfather,

next entitled after the father to be the legal

guardian of the minor’s property was still

alive. The Court held that even though under

the Muslim law, the mother is not the natural

7 on 14 February, 1983.

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guardian of the property of her minor son.

When the father and grandfather are both

alive, she had the capacity, with the consent of

the legal guardian to take symbolic possession

of the property on behalf of the minor

A Hiba cannot be made in favour of a dead

person: When a widow makes a Hiba of her

Mehr to her deceased husband, though such a

transaction if called Hiba-a-Mehr. it is in fact a

unilateral foregoing of the right to Mehr by the

widow to which the principle of ‘Hiba’ does not

apply.

And a gift of future usufruct to unborn person

is valid provided the donee is in being at the

time when interest opens out of heirs.

Joint donees: A Hiba jointly in favour of two or

more persons is not ipso facto invalid. In other

words, a gift may be made jointly to two or

more persons but the shares of each should be

clearly specified. For example, if a gift of a

property capable of being divided is made to

two or more persons without specifying their

shares or without dividing them, then the gift

is not valid kut if such donees themselves

make any mutual arrangement and tale

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possession of their individual shares, then the

gift is valid.

Gift of usufruct to unborn person.—

Formerly it was said that a gift of future

usufruct to unborn person shall not be valid.

Later on, this opinion, was not adopted.

In Ghulanz Husein’s8 case it was held that a

gift of future usufruct to unborn persons is

valid provided that the donee is in being at the

time when interest opens out for heirs. In this

connection, the provisions of the Transfer of

Property Act may be noted.—

(i) if the gift to an unborn person is proceeded

by a proper disposition, the gift shall be of the

whole residue.;

(ii) the gift will not offend the rule against

perpetuities;

(iii) if a gift is made to a class of persons with

regard to some of whom it is void under (i) or

(ii), the gift fails in regard to those persons

only and not in regard to the whole class;

(iv) if a gift to an unborn person is void under

(i) or (ii) any gift intended to take effect after

such gift is also void.

8 (1932) 34 BOMLR 510

25

Fiduciary relationship.—When the donee

stands in a fiduciary relationship to the donor

or the relation between the parties is such that

the donee is in a position to dominate the will

of the donor, in case of dispute, the

presumption of undue influence arises and on

that account such a gift can be held to be void

and in such circumstances it is incumbent on

the donee to satisfy the Court that the donor

had competent and independent advice in

making the gift.

In Musa Miya v. Kadar Bux9, the Privy Council was

required to consider a case where it was alleged

that a grandfather had made a gift of property to

his grandsons, but had done nothing further to

complete the gift, not only was there no deed

executed and no mutation effected, but it was

proved that the grandfather had not relinquished

but continued to manage the property till his death,

without in any manner having indicated that he

regarded himself as a trustee for his grandsons or

that he was in possession of the property on their

behalf. The only question before the Privy Council

was whether the case fell within the exception

9 (1928) 30 BOMLR 766

26

which provided that a gift by a father or other

guardian of a minor does not require a change of

possession and their decision was that it did not. It

was held that it is a well established principle of

law that a gift in favour of a minor by any person

other than the father or guardian of such minor

must be accompanied with delivery of possession to

the father or guardian of the minor.

2: Subject-matter of a Hiba (Mouhub) :- A

Muslim can make a Hiba of the whole of his/her

property. Every form of property or right which has

some legal value may be the subject-matter of a

Hiba.1 However, the property must be transferable

under section 6 of the Transfer of Property Act,

1882. As a matter of fact, any property (mal) over

which ownership may be exercised, may be

transferred through a gift. Tangible as well as

intangible property may be the subject matter of a

gift. Whatever is made according to Muslim

jurisprudence can be lawfully subjects of gifts at

Muslim law.

Following mentioned are some types of property or

right which may constitute the subject-matter of a

gift.

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1. Gift or corporeal or incorporeal property: A Hiba

or gift may be made of corporeal as well as

incorporeal property. All actionable claims or any

other incorporeal property may be the subject-matter

of gift. The following subjects may constitute the

subject matter of gift:

(i) Negotiable instrument,

(ii) Government promissory notes,

(iv). Property under attachment,

(v) Right to receive an annuity charged on land,

In all above cases, the donor should clearly show his

intention to divest himself in praesenti of the property

and confer it on the donee.

2. Gift of equity of redemption: Gift of an ‘equity of

redemption’ is valid. When a person (mortgagor)

takes some loan from the other (mortgagee) by

securing his immovable property, he has an equitable

right to redeem his property after paying the loan.

Mortgagor’s this right is called his ‘equity of

redemption’. Equity of [redemption is mortgagor’s

beneficial interest and is owned by him. A mortgagor

can make a gift of his right of redemption. Where a

gift of the equity of redemption is made, the donee

28

becomes entitled to redeem the mortgage from the

mortgagee satisfying the debt.

3. Gift of Insurance Policy: Gift of insurance policy is

valid. The policy holder, whether he is Muslim or non-

Muslim, has an interest in the sum insured. The olicy-

ho1dér owns this interest. However, this interest is

his contingent interest. s gift of contingent interest is

void under Muslim law, the gift of insurance policy

cannot be made by a Muslim policy holder under

Muslim law. But, under section 38(7) of the Insurance

Act, 1938, gift (assignment) of insurance policy is

lawful. In Sadiq Au v. Zahida Begum,10 the court held

that the expression, ‘any law or custom having the

force of law to the contrary’, in section 38(7) of the

Insurance Act, 1938 are wide enough to exclude the

contrary rules of Muslim law on gifts. The result is

that where a Muslim makes a gift of his insurance

policy the gift is valid because the Insurance Act,

1938, would be applicable and not the contrary rules

of the Muslim law.

4. Gift of Debt: A release of a debt by the creditor to

the debtor may be made. Such release amounts to a

gift.

10 AIR 1939 All 744

29

5. Gift of existence property only: Only the existent

property may be the subject of a gift. The property or

a right, which is not in existence, cannot be the

subject of a gift. For example, a gift of the fruit that

may be produced by the donor’s palm tree is not

valid.

6. Gift of Dower: Gift of dower by a Muslim wife in

favour of her husband is valid. This is called as Hiba-

e-Mahr, i.e., gift of dower. Dower is a debt which is

due to the wife against her husband. Right to claim a

debt is an actionable claim, therefore, wife’s right to

dower is her actionable claim and as such it may be a

subject matter of Hiba. But it should be made only to

the husband. Gift of dower to any person other than

husband is void.

7. Gift of Service: The subject matter of gift must be

some property whether tangible or intangible.

Services or the natural love and affection are not

properties. Therefore, they cannot be all subject-

matter of a Hiba.

8. Gift of Mortgage property: A property which is

under a mortgage may also be lawfully gifted. In this

respect, the courts have held as following thing, (a)

when a mortgaged property is in mortgagee’s

possession the equity of redemption may be lawfully

30

gifted. (b) where a mortgaged property is gifted with

a condition that the mortgage be paid of from the

income of the property the gift will be void. (c) when

the property is subject to usufructuary mortgage, it

can form the subject of a valid gift.

Doctrine of Mushaa (Hiba-bil-Mushaa). :- There is no

unanimity of opinion amongst different schools of

Muslim Law on the question of the validity of the

doctrine of mushaa. Shafei and Ithna Ashari Shia

schools have recognized this principle. According to

these schools a gift of undivided property can be

validly made. In such cases it is necessary that the

donor must give to the donee the possession of the

undivided property. On the other hand, Hanafi school

does not recognize the doctrine of musha. According

to Hedaya a gift of a part of a thing which is capable

of division is not valid unless the said part is divided

off and separated from the property of the donor; but

the gift of the property which cannot be divided is

valid.

Meaning.—’Musha’ is an Arbic word derived from

‘saayu’ meaning “undivided share in a property.” The

cule as to Musha, as laid down in Hedaya., is “a gift of

a part of a thing which is capable of division is not

valid unless the said part is divided off and separated

from the property of the donor where as a gift of an

31

indivisible thing is valid”.

In Aftab Hussain v. Smt. Tayebba Begum., it was

ruled that “where some of the Mohammedan co-

sharers are in actual joint possession of a house, their

possession must be deemed to be, in the eye of law,

on behalf of all the co-shares including the one who is

not in actual possession and the possession of the

latter must be deemed to be constructive possession.

If there has been a gift of his undivided share in

house by a co-sharer who is in construetive

possession and the donor has also divested himself of

the proprietary right at the time of making the gift

and delivered constructing possession to the donee,

then the gift is not hit by the doctrine of Mushaa and

is valid in law”. In a later case it was said that

doctrine of Mushaa was not opposed to justice, equity

and good conscience.The validity of a gift of Mushaa

must be tested in the same way as of any other gift.

Kinds of Mushaa.—A ‘Mushaa’ may be either—

(i) in a property incapable of division, or

(ii) in a property capable of division.

(i) Musha in a property incapable of division.—A gift

of an undivided share in a property (mushaa) which is

not capable of division is valid. A, who owns a house,

32

makes a gift to B of the house and of the right to use

a stair-case by him jointly with the owner of an

adjoining house. The gift of A’s undivided share in the

stair-case, though it is a gift of a mushaa, is valid, for

a stair-case is not capable of division.A gift of a share

in the business of a Turkish bath is valid, for the

hammam, is not capable of division and would be

ruined, if it were divided by metes and bounds.

(ii) Mushaa in a property capable of division. —If the

property is capable of division, the gift of mushaa will

be irregular though not void under Hanafi Law. It

means that it can be rendered valid by subsequent

partition and delivery.

However, in certain cases a gift of mushaa even in a

property capable of division is valid. Such cases are

as follows

1. Gift by one heir to another.—Gift of mushaa by a

heir to his co-heir is valid. Where a Muslim woman

dies leaving a mother, a son and a daughter, the

mother can make a valid gift of her share to both or

any of them.

2. Gift of a share by a co-sharer in a Zarnindari or

Talauqa.—This is valid because in such a case, what is

gifted is the right to receive and to collect separately

a definite share of produce or rent of the share. Thus,

33

if A and B are co-sharers in a Zamindari, each having

a well defined share in the rents of undivided land,

and A makes a gift of his share to B, there being no

regular partition of the Zamindari, the gift is valid.

However, after the abolition of the Zamindari system

in India, this exception has no practical significance.

3. Gift of share in a company is valid.

4. Gift of a share in the freehold property in a large

commercial town is also valid.

5. Gift of an undivided but divisible property to two

or more persons jointly is valid. X makes a gift of a

house to A and B in equal shares as tenants in

common. The property is not divided off and,

although their shares are clearly defined, possession

of their specific shares is not given to A and B. The

tenants are given notice that the properties have

been given away to A and B, to whom rent is to be

paid. Such a gift is valid.

6. Gift of a Mushaa with stipulation that the donee

shall pay certain periodical sums to someone is not

subject to impediments by the law of mushaa.

Formalities and modes of Gift.—The most

important requisite of hiba is that it must satisfy the

rules laid down by Muslim Law for making a gift.

34

Mere presence of a donor and a donee; their ability to

make and accept the gift and the existence of a valid

subject of gift will not have the effect of completing

the transaction. It will have to satisfy certain

formalities, which in facts, are the real tests of the

validity of a gift transaction.

Three Conditions.—The act of making a gift should

fulfil the following three conditions These are also

known as ‘Essentials of a Gift,

(i) declaration by the donor;

(ii) Acceptance by the donee; and

(iii) Delivery of possession by the donor and

taking of possession by the donee.

“Even when the declaration and acceptance are not

expressed in words, so long as the intention is

evidenced by conduct, it would be sufficient”.

(i )Declaration of gift.—There must be a clear and

unambiguous intention of the donor to make the gift.

When there is no real or bona fide intention on the

part of the person making of the gift, the alleged gift

will be void. It is on this basis that it has been held

that a gift with intent to defraud creditors is voidable

35

at the option of the creditors. There must be the bona

fide intention of divesting himself in praesenti of his

proprietary title in the property gifted by the donor.

The intention must be real and bona fide and the

manifestation or the declaration of such intention

must be clear and unambiguous. The declaration of

the gift must be made voluntarily. It is necessary that

the donor must be a free agent in making the gift. If

the declaration of gift has been made under coercion,

fraud, misrepresentation or undue influence such a

gift is not valid.

The Supreme Court of India in Mahboob Sahab V.

Syed Ismail,11 held that though gift by a

Mohammedan is not required to be in writing and

consequently need not be registered under the

Registration Act; a gift to be complete, there should

be a declaration of the gift by the donor; acceptance

of the gift, expressed or implied, by or on behalf of

the donee, and delivery of possession of the property

or the subject-matter of the gift by the donor to the

donee. The donee should take delivery of the

possession of that property either actually or

constructively. On proof of these essential conditions,

the gift becomes complete and valid. In case of

immovable property in the possession of the donor,

11 AIR 1995 SC 1205

36

he should completely divest himself physically of the

subject of the gift.

Mohammed Farook vs Gulsum Bibi 12

JUDGMENT :- The defendants are the appellants

herein. The suit has been filed by the respondents

being the plaintiffs in O.S.No.317 of 1990 for

declaration and for permanent injunction. The said

suit filed was decreed by the learned District Munsif,

Paramakudi. The appeal filed by the defendants in

A.S.No.14 of 1994, on the file of the Subordinate

Judge, Ramanathapuram was also dismissed.

Challenging the judgments and decrees rendered by

the Courts below against the defendants, the present

appeal has been filed.

2. At the time of admitting the Second Appeal, the

following Substantial Questions of law have been

framed:

(i) Whether the Courts below were right in decreeing

the suit in the absence of Sultan not being made a

defendant in the suit, more particularly when the

issue was whether which of his two documents are

valid and binding on the parties to the suit?

(ii) Whether the Courts below were not in error in

holding that the plaintiffs are in possession inspite of 12 on 18 August, 2011

37

the fact that the Patta for the suit lands stand in the

name of the original title holder even after the

alleged settlement dated 26.08.1969?

(iii) Whether the lower appellate court was not in

error in not at all giving any finding with regard to

the evidence of PW I, PW II, DW I and DW II much

less even making in the reference to their evidence?

3. It is the case of the plaintiff that a registered gift

deed - Hiba was executed by the husband of the first

plaintiff being the father of the second defendant on

26.08.1969, covering the suit property. In pursuant to

the said gift deed, which also specifies that it is

irrevocable, possession has been given in favour of

the plaintiffs and they have been enjoying the suit

property as joint owners. Since an attempt has been

made by the defendants to interfere with the peaceful

possession and enjoyment of the suit property, the

plaintiffs have come forward to file the present Suit.

4. A written statement has been filed by the

defendants by stating that the gift deed executed by

the father of the second plaintiff Sulthan has been

cancelled by the Settlement Cancellation Deed dated

12.10.1982. Thereafter, by a registered sale deed

dated 16.07.1990, the suit property has been sold in

favour of the second defendant. In pursuant to the

sale, patta has been changed in favour of the second

38

defendant on 30.07.1990. It has been further stated

the gift has not come into effect as the declaration,

acceptance and possession have not been proved.

Therefore, the appellants being the defendants before

the trial Court prayed for dismissal of the suit.

6. The learned counsel for the appellants has

submitted that the declaration of the gift followed by

acceptance and delivery of possession has not been

proved by the plaintiffs. It is his case that a mere

factum of a written gift with due registration cannot

be a ground to prove its validity and under the

Mohammedan Law, a Hiba does not require

registration. Therefore, the donees being the

plaintiffs will have to prove with substantial evidence

that settlement deed has been given effect. The

learned counsel further submitted that the documents

relied upon by the appellants do not show the factum

of possession and on the contrary the appellants have

produced Exs.B.1 to B.3 in support of their

contentions to substantiate their case.

7. In support of his contention, the learned counsel

has made reliance upon the following judgments:

(i) Hafeeza Bibi & Others Versus Shaikh Farid

(Dead) by LRs. & Others - CDJ 2011 SC 497.

(ii) D.R.Rathna Murthy v. Ramappa - (2011) 1

Supreme Court Cases 158.

39

(iii) Mahboob Sahah v. Syed Ismail - AIR 1995

SUPREME COURT 1205.

(iv) Noor Jahan v. Muftkhar Dad Khan - AIR 1970

ALLAHABAD 170.

(v) Bibi Riajan Khatoon v. Sadrul Alam - AIR 1996

PATNA 156.

8. The document itself would make it clear the suit

property is given out of love and affection and it is

irrevocable. It also speaks about the fact the

possession having been handed over. Therefore, it is

submitted, the Second Appeal will have to be

dismissed.

11. In Hafeeza Bibi &; Others Versus Shaikh Farid

(Dead) by LRs & Others,13 , the Hon'ble Apex

Court was pleased to hold that acceptance of the gift

by a donee either be expressed or implied and the

delivery and taking of possession thereof can either

be actual or constructive. In Mulla, Principles of

Mohamedan Law (19th Edition), Page 120, it has

been stated as follows: Under the Mahomedan law

the three essential requisite to make a gift valid :

(1) declaration of the gift by the donor

(2) acceptance of the gift by the donee expressly or

impliedly and

(3) delivery of possession to and taking possession

13 CDJ 2011 SC 497

40

thereof by the donee actually or constructively. No

written document is required in such as case. In the

present case on hand, the donor is the husband and

father of the plaintiffs. Therefore, considering the

said relationship coupled with documentary and oral

evidence, this Court is of the view that the findings of

the Courts below that the declaration, acceptance

and delivery of possession are duly established do not

warrant any interference. It is no doubt true that a

gift would become valid not withstanding the form

but on satisfying the three criteria of declaration,

acceptance and delivery. A deed of gift under

Mohammedan law is nothing but a piece of evidence.

Therefore, by taking into consideration of Ex.A.1 as a

piece of evidence, this Court is of the view that it has

come into effect.

12. In the judgments relied on by the learned counsel

for the appellants in D.R.Rathina Murthy v.

Ramappa,14 the issue was as to whether a registration

is required for a valid gift deed under Mohammedan

law. While considering the said issue, the Hon'ble

Apex Court has also considered the ingredients for

valid gift. As discussed above, the plaintiffs have

satisfactorily proved the ingredients of a valid gift.

14 (2011) 1 Supreme Court Cases 158

41

13. The reliance made by the learned counsel for the

appellants in Mahboob Sahab v. Syed Ismail, 15 AIR is

of no assistance. The issue in the said case was as to

whether the mother of a minor belonging to Muslim

religion can act as a legal guardian or not.

14. In Bibi Riajan Khatoon v. Sadrul Alam,16

considering the scope of Section 167 of the

Mohammedan Law, it has been held as follows: As

regards the question whether the donor could cancel

the deed of gift by the subsequent deed. Suffice it to

say that in the Mohammodan Law by Mulla, 19th

Edition by M.Hidayatullah Article (Section) 167

indicates circumstances under which a deed of gift

could be revoked. In case the donor has not

relinquished his control and domination over the

property, and before the donee enters into possession

the donor is justified in cancelling the gift. The reason

is that before delivery of possession there is no gift

under Mohammedan Law. In view of discussions

made hereinbefore, the decree of the lower appellate

Court could not be sustained;

15. In Noor Jahan v. Muftkhar Dad Khan,17 the

question for consideration was the presumption in

favour of the gift deed which contains the recital

regarding possession. The following passage is 15 1995 Supreme Court Cases 120516 AIR 1996 PATNA 156,17 AIR 1970 ALLAHABAD 170,

42

apposite: It seems to me that under Mohamedan Law

a recital in the gift deed that possession has been

delivered to the donee of the property gifted gives

rise to a presumption only of such delivery and the

presumption may be rebutted by those challenging

the gift. The presumption may be rebutted by

establishing that the subsequent conduct of the donor

is inconsistent with the making of the gift or by

demonstrating the patent improbability of what is

stated by the recital; Applying the said ratio laid

down in the said judgment to the present case on

hand, this court is of the view that in view of the clear

recital under Ex.A.1, a presumption has been created

in favour of the plaintiffs regarding acceptance and

possession. Such a presumption can only be rebutted

only those who are challenging it. Therefore, it is for

the appellants to rebut the said presumption.

(ii)Acceptance of gift.—There must be an acceptance

of gift, by or on behalf of the donee. It may be either

actual or constructive according to the circumstances

of the case. However, in a case before the Allahabad

High Court, it has been held that where a father or

other guardian make the donation in favour of his

minor son or other ward, acceptance is not necessary.

In Gulam Husain Kutbuddin Manner v. Abdul Rashid

43

Abdul Rajak Manner,18 the gift deed executed by the

donor was challenged on the ground that under

Muslim law the mother is not competent to act as

guardian of her minor son during the life time of the

minor’s father or grandfather and therefore not

entitled to accept the gift. The trial court accepted

the case and decreed the suit. The decree of the trial

court was affirmed by the First Appellate Court.

However, in Second Appeal High Court held that

since mother has accepted the gift as an agent of her

husband the gift deed is valid.

But the Supreme Court has held that under Muslim

law gift is a donation conferring right of property

without exchange. The gift is in the nature of contract

where there must be tender of the property and

acceptance of the property. It is only when these

three requirements are satisfied gift is completed

where the father of a minor is alive the mother of the

minor cannot be appointed as a guardian of minor to

accept the gift on his behalf.

If has been further observed by the Court that it is

not necessary to go into the wider question as to

whether the husband can appoint his wife as his

agent to act as a guardian of his minor son. The fact

that there was neither any pleading nor any evidence

18 AIR 2000(8)SCC 507

44

to that effect and in absence of such requirement of

law the High Court could not have held that the wife

acted as an agent of her husband in accepting the gift

on behalf of the minor.

(iv) Delivery of Possession :- A gift is complete

only after the delivery of the possession. So

the third and most essential condition

required for the validity of a gift is delivery

of possession of the property whether

movable or immovable as gift. A gift not

accompanied by possession is void ab initio.

Under the Muslim law, a gift is complete

only after the delivery of the possession.

Therefore, the gift takes effect from the date

on which possession of the property is

delivered to the donee, not from the date on

which the declaration was made. 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 rely by means of

45

the contract (i.e., declaration and

acceptance).

(v) The delivery of possession may be either

actual or constructive or symbolic.’

requirement is that the donor should divest

himself completely of all ownership and

domination over the subject-matter of the

gift and should deliver be possession of

property to the donee.

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 the property is possible,

gift will not complete without actual delivery of

possession. Generally where the property is

movable, it must be actually transferred and

handed over to the donee.

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

46

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:

(a) Where the property is tangible property but,

under the situation, its actual or physical delivery

of possession is not possible.

(b) Where the property is intangible property.

There are certain properties which have no

physical existence i.e., they cannot be perceived

through senses. Such properties are called

intangible or incorporeal . Although an incorporeal

property cannot be possessed, but it can be owned

and its owner may make a lawful gift of it.

Therefore, in the gifts of incorporeal properties,

only constructive delivery of possession is possible

which

fulfills the requirement of a valid gift. Any such act

of donor which indicates a intention that he has

relinquished all the benefits of the property gifted,

may be regarded as constructive delivery of

possession.

47

Exception to actual delivery of Possession: In every

case of property, whether mwable or immovable,

actual or physical delivery of possession must be

made except in few cases. In such cases symbolic or

constructive delivery of possession is sufficient. The

exception are:

(a) Joint residence of the donor and the donee: When

the donor and the donee are both residing in the

house, which is subject-matter of gift, the actual or

physical delivery of possession is not necessary, in

such a case the gift will be completed by some

overact by the donor indicating a clear intention on

his part to transfer possession and to divest himself of

all control over the property.’

(b) Property in possession of other persons: The

property of gift may not be in the possession of the

donor himself but in the possession of some other

person like as a mortgagee, tenant or licensee. This

property of the gift may be held adversely by other

persons or under attachment of arrears of revenue. A

valid gift may be made of the possession of a

mortgagee, even if the donor makes a constructive

delivery of possession. Such a possession may be

made by the donor by handing over the gift-deed and

divesting himself of his title, right and interest in the

property. When the property is in the occupation of

48

tenants, a valid gift may be made without giving

physical delivery of possession but by delivering title-

deeds or by mutation in the revenue records.

(c) Gift between spouses: When a husband or a wife

makes gifts to each other of some property in their

joint possession, then the physical delivery of

possession is not required. Where the donor handed

over the keys of the house to his wife, the subject-

matter of the gift, the gift would be valid even though

the husband continued to live in that house.

(d) Gift by a guardian to his ward: In the case of a gift

made by a guardian to his ward, actual delivery of

possession is not necessary, only an indication of a

bona fide intention to stand in loco parentis to the

donee or is in lawful custody of donee.

(e) Gift to Baillie: No physical delivery of possession is

required, if a gift is made to one in whose possession

the subject-matter of the gift is already. The gift is

complete by mere declaration and acceptance.

(f) The property not capable of being delivered: In

cases where the property is not capable of being

delivered, physical delivery of possession is not

essential:

Revocation of Gift

49

Under Islamic law all voluntary transactions are

revocable, therefore this revocability should also be

attributed to Gift.1 Gift is a voluntary and gratuitous

transfer of property. The donor makes a gift of the

properties of his own free Will and the transfer

without any consideration or exchange. In the

transfer of property by way of gift, there are three

stages: Declaration, Acceptance and the delivery of

possession. As we have discussed earlier that without

the delivery of possession there is no gift at all.

Revocation before delivery of possession:

Delivery of possession makes a gift complete, so

before the delivery of possession all gifts are

revocable. A gift may be revoked by the donor at any

time before the delivery of possession. A mere

declaration by the donor that he has revoked the gift

is sufficient.

Revocation after delivery of possession: When

delivery of possession is made by the donor, the gift

becomes complete. After the delivery of possession,

the gift cannot be revoked by donor through mere

declaration. For the revocation of such a gift, there

are two ways:

(i) With the mutual consent of the parties, and

(ii) By a decree of the court.

50

A donor can revoke the gift after the delivery of

possession in the abovementioned ways, but after his

death, his heirs cannot revoke it or a gift can also not

be revoked after the death of the donee.

Shia Law: Under the Shia law, even after the

delivery of possession, a gift may be revoked by the

donor merely by declaration. There is no need of

getting a decree from the court. But, under the Shia

law too, if the gift is irrevocable, it cannot be revoked

after the delivery of possession even by the court.

Exception or irrevocable Gift: There are certain

exceptions, when even after the delivery of

possession, a gift cannot be revoked. Such exceptions

are according to the Hanafi law, exceptions are as

follows:

(i) Gift between the spouses: A gift between the

spouses is irrevocable, if made only during the

subsistence of their marriage, even though the

marriage is irregular and is dissolved afterwards.

(ii) Relationship by prohibited degrees: When the

donor and the donee are related within prohibited

degrees, by consanguinity, the gifts are irrevocable.

Gift in favour of persons other than related by blood,

is not irrevocable. For example, a gift in favour of a

brother is irrevocable and in favour of a son-in-law is

51

revocable because son-in-law’ is not a blood relation.

Shia Law: Under the Shia law, a gift to a relation

whether within the prohibited degrees or not, is not

revocable, but irrevocable.

(iii) Death of either party: The right of gift is personal

right and so if either the donor or the donee dies, the

gift is irrevocable, their heirs have no right of

revocation.

(iv) Where the donee has transferred the property to

another person: After completion of the gift the donee

becomes an absolute owner of the gifted property. As

such, the donee may transfer that property to another

person. In such cases, interest of that third person

would be affected and he would be put to loss without

any fault of his own.

(v) Where the property is lost or has been destroyed:

After revocation of a gift, the property should revert

back to the donor but if it is lost or destroyed there

would remain nothing to be given back to the donor.

(vi) Increase in value of the gift: When the value of

the subject-matter of the gift has increased, it is

natural that the donor would be interested in the

revocation of gift. Muslim law negatives the

possibility of revocation of gift by donor due to such

situation.

52

(vii) Where the property given is changed beyond

identification: Where the shape, size and identity of

the property has been changed and it is not possible

to recognise that it is the same property which was

the subject-matter of gift, the gift becomes

irrevocable.

(viii) Consideration received for gift: When the donor

has received some consideration in exchange of the

gift by way of return or Iwaz, then also the gift is

irrevocable. Hiba-bil-Izvaz and Hiba-ba-Shart-ul-Iwaz

come under this category.

(ix) Gift in Sadaqa form: When the purpose of gift is

to receive religious or spiritual benefit or merit, such

as sadaqa, then also the gift becomes irrevocable.

Revival of revocation—Under the following

circumstances a revoked gift can be received:

(i) where the alienation consisted in the donee

making a fresh gift of it to a third person, and that

fresh gift is revoked by him;

(ii) where an increase in value was caused by an

accession, and that accession has perished or is

destroyed.

Kinds of gift (Hiba).—So far we were dealing with

hiba or simple gift inter vivos. It is absolute gift of the

53

corpus of the property without any return. It is gift

properly so called and satisfies all the essentials of a

gift laid down by Mohammedan Law. There are

certain other kinds of gift too, which are in fact,

variations of hiba but yet differ from it (hiba) in

certain respects. These kinds of gifts do not strictly

fulfil the essential requisites of gift laid down in its

definition.

Gift for consideration (Hiba-bil-iwaz).—Hiba

means gift and hvaz means consideration. Hiba-bil-

iwaz means gift for consideration already received. As

it has been already mentioned in the beginning that

gift is a “a transfer of property without

consideration”. This hibi-bli-iwaz departs from the

original definition. Hiba-bil-iwaz is a transaction,

made up for two mutual or reciprocal gifts between

two persons. One gift was from the donor to the

donee and the other from donee to the donor. The gift

and the return gift are separate nd independent

transactions which together make up hiba-bil-iwaz.

Requisites of a valid hiba-bil-iwaz.—(1) Actual

payment of consideration on the part of the donee is

necessary.

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In Khajuooroonissa v. Raushan Jehan19 Their

Lordships of the Privy Council said “undoubtedly the

adequacy of consideration is not the question. A

consideration may be perfectly valid which is wholly

inadequate in amount when compared with the thing

given. Some of the case have gone so far as to say

that even a gift of a ring may be a sufficient

consideration, but whatever is amount, it must be

actually and bonafide paid.,” It would seem to follow

from this that however small the consideration for a

hiba-bil-iwaz may be the transaction would be valid if

the consideration was actual, and bona fide paid. A

mere promise to pay, however is not sufficient.

(2) A bona fide intention on the part of the donor to

divest himself in possession of the property and to

confer it upon the donee. A and B, two Muslim

brothers are tenants-in-common. A died leaving B and

his widow W. After A’s death B executed a deed

whereby he granted two of the villages to W, and W

executed a writing whereby in consideration of the

grant to her she gave up her claim to her husband’s

estate in favour of B. The transaction was hiba-bil-

iwaz and was valid though possession was not

delivered.

In Ismail Beevi‘s case the gift deed was executed for

19 3 Ind App 291 (PC) (M)

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consideration that donee should discharge the debt

charged on the property gifted and would be entitled

to property after marriage with the son of donor. It

was held that the gift was hiba-bil-iwaz the

consideration thereof being the agreement to marry

the donor’s son. In such a case even if there is no

delivery of possession, the gift would be valid and the

donee would be entitled to the property.

High Courts of Calcutta, Madras, Lahore and

Allahabad hold such transaction as sale. Therefore

where property is immovable and worth Rs. 100 or

more it must be effected by a registered instrument

under Section 54 of the Transfer of Property Act.

Hiba-ba-shartul-iwaz.—’Shart’ means stipulation,

Hiba-ba-shartul iwaz means a gift made with

stipulation (Sliart), for a return. Unlike Hiba-biliwaz,

in a Hiba-ba-shartul-iwaz, the payment of

consideration postponed. As the consideration is not

immediate, the delivery of possession is essential. The

transaction becomes final immediately on the delivery

of possession.2 When the consideration is paid, it

assumes the character of sale and is subject to

preemption (shufa) Further as in case of a sale, either

party can return the subject of sale for a defect.

Thus it contains the following features:

(i) As in the case of hiba, so in this case, delivery of

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possession is necessary.

(ii) It is revocable until the iwaz (Return) is paid.

(iii) It becomes irrevocable on the payment of izi’az.

(iv) The transaction when completed by payment of

iwaz, partakes of the character of sale.

The kinds of property that can be given away by way

of hiba can also be given by way of return gift (iwaz)

and the return must be made with all formalities

necessary for a hiba.

REGISTRATION

No need to register property gifted by

Muslims: SC

‘Such Assets Exempted From Transfer Of Property

Act’

PRESS TRUST OF INDIA

New Delhi, May 5: A gift of immovable property made

by a Muslim is valid even if it is not registered under

the Transfer of Property Act or the Stamps and

Registration Act, the Supreme Court Thursday ruled.

The apex court said though the TP Act mandates

registration of a gift, the same would not apply to a

Muslim donor as the community has been exempted

from the provision.

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A Bench of Justices R M Lodha and S S Nijjar in a

judgement quashed a ruling of the Andhra Pradesh

High Court that the property gifted by late Shaik

Dawood to one of his sons Muhammad Yakub was not

valid as it was not registered under the law.

The Bench said the three essentials of a gift under

Muhammadan Law are (i) declaration of the gift by

the donor (2) acceptance of the gift by the donee and

(3) delivery of possession. "Though the rules of

Muhammadan Law do not make writing essential to

the validity of a gift, an oral gift fulfilling all the three

essentials make the gift complete and irrevocable.

However, the donor may record the transaction of gift

in writing.

"In our opinion, merely because the gift is reduced to

writing by a Muhammadan instead of it having been

made orally, such writing does not become a formal

document or instrument of gift.

"When a gift could be made by Mohammadan orally,

its nature and character is not changed because of it

having been made by a written document. What is

important for a valid gift under Muhammadan Law is

that three essential requisites must be fulfilled,"

Justice Lodha writing the judgement said.

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The apex court passed the judgement while upholding

the appeal filed by Yakub challenging the High

Court's ruling which had set aside a Visakhapatnam

trial court decree that no such registration was

required.

In the instant case, Shaikh Dawood had gifted (hiba)

his properties to one of his sons Yakub on February 5,

1968, by way of an unregistered written document.

The validity of the gift was challenged by his other

son Shaikh Farid and family members. Though the

trial court rejected their plea, the High Court took the

contrary view that the gift was invalid as it was not

registered.

Aggrieved Yakub appealed in the apex court.

The apex court said Section 17(1)(a)of the

Registration Act leaves no manner of doubt that an

instrument of gift of immoveable property requires

registration irrespective of the value of the property.

However, the Bench said it was not applicable to a

Muslim in the light of Section 129 of the T.P. Act and

the rule of Mohammadan Law relating to gifts.

"The form is immaterial. If all the three essential

requisites are satisfied constituting valid gift, the

transaction of gift would not be rendered invalid

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because it has been written on a plain piece of

paper," the Bench said.

The apex court said Section 129 of T.P. Act preserves

the rule of Mohammadan Law and excludes the

applicability of Section 123 of T.P. Act to a gift of an

immovable property by a Mohammadan.

"The gift was made by Shaikh Dawood by a written

deed dated February 5, 1968, in favour of his son

Muhammad Yakub in respect of the properties ‘A'

schedule and ‘B’ schedule appended thereto.

The gift – as is recited in the deed – was based on love

and affection for Muhammad Yakub as after the death

of donor’s wife, he has been looking after and helping

him.

"Can it be said that because a declaration is reduced

to writing, it must have been registered? We think

not. The acceptance of the gift by Muhammad Yakub

is also evidenced as he signed the deed," the Bench

said while quashing the High Court ruling and

restoring the decree passed by the trial court in

favour of Yakub.

Sadaqah.—It is a gift with religious motive. It

differs from hiba in that (i) the motive of hiba is

secular while the motive of sadaqah is religious, (ii) a

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hiba is revocable in certain circumstances. A Sadaqah

is irrevocable when possession is once delivered.

Sadaqah and Hiba compared.—l. Like hiba,

saclaqah, is not valid unless the delivery of possession

is made.

2. Like hiba, it is not valid if it consists of an

undivided share in property capable of division.

3. There is a desire to get religious merit in

Sadaqah; there is no such motive in a gift except

affection.

4. Sadaqah is not revocable if once completed by

delivery; gift is revocable in certain cases.

5. Express acceptance is not necessary which is

necessary in a gift.

6. Unlike hiba, Sadaqah is valid even though made

to two or more persons jointly, provided the donees

are poor persons.

Ariyat .— The grant of a licence, resumable at the

grantor’s option to take and enjoy the usufruct of a

thing is called Ariyat” (Mulla). It is to transfer the

right to enjoy the use of profits without any return.

According to Durral Mukhtar ‘to make a person the

owner of the substance of a thing without

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consideration is a hiba, while to make him the owner

of the profits only without consideration is an ariyat.6

In hiba the donee gets the ownership in the gifted

property, but in ariyat, he only obtains the use or

beneficial enjoyment for a limited period, and the

ownership in the property does not pass to him.

Essentials of Ariyat:

1. It can be revoked.

2. Ownership of property is not transferred.

3. It must be for a definite period.

4. It does not devolve upon the heir of the

donee on his death.

Hiba –bil-iwaz Hiba-ba-shartul-iwaz

1. Return (iwaz) is involved in the contract of gift as its direct and immediate consideration.

1. Iwaz is stipulated and is contracted for with the original gift.

2. Delivery of possession is not essential for its validity

2. Delivery of possession is essential, for its validity.

3. It becomes irrevocable from the moment of its making.

. It becomes irrevocable only after the payment of iwaz by the donee.

4. It is like a contract of sale. 4. In the begirming it is a gift but it partakes of a character of sale when the iwaz has been paid

Hiba Hiba –bil –iwaz Hiba-ba-shartul-iwaz

1. Ownership in property is transferred without consideration.

Ownership in property is transferred for consideration called iwaz. But there is no

Ownership in property is transferred for consideration called iwaz.

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express agreement for a return or iwaz, that is to say, the return is voluntary.

There is an express condition with the gift for return.

2. Delivery of. possession is a condition precedent for the validity of the gift

Delivery of possession is not essential.

Delivery of possession is essential.

3. Gift of mushaa where a property is divisible is invalid.

Gift of a mushaa is lawful even where the property is divisible.

3. Gift of a mushaa where property is divisible is invalid.

4. Barring a few exceptions,it is revocable.

4. Irrevocable from the moment of its making.

Irrevocable after the performance of the promised condition but not before.

5. It is a gift pure and simple It is like a contract of sale 5. In its inception it is like a gift, but operates as a sale when the promised condition is performed.

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.

Different aspects related to gift in property act and its

distinction with the Mohammedan law and its

implications has been the major subject matter of this

article. In considering the law of gifts, it is to be

remembered that the English word 'gift' is generic

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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: (a) declaration of gift by the

donor (b) an acceptance of the gift, express or

implied, by or on behalf of the donee, and (c) 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 (a) The absence of consideration; (b) the donor;

(c) the donee ;(d) the subject-matter; (e) 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.

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