MIDTERM EXAM (SUMMER-2020)

COURSE TITLE: MUSLIM LAW (II)

COURSE CODE: LAW 200

SUBMITTED BY

NAME:NUR-E-JANNAT MEEM

ID:192100031

SECTION:02

PHONE NUMBER: 01623196081

EASTERN UNUVERSITY

DEPARTMENT OF LAW

Answer to the question no:1(a)

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 general definition that is
accepted by all the religions, including Muslim law. As per the Muslim Law, a gift is called as Hiba.

Gift according to Muslim Hanafi laws

In Hanafi laws and as well as in other schools of Islamic Laws gift is known as 'hiba'. A gift or
hiba is a transfer of property, made immediately and without any exchange, by one person to
another, and accepted by or on behalf of the latter.
The term gift denotes a voluntary transfer of real or personal property to another made without
any particular cause and without consideration. The person who gives the gift is called donor
and the one who receives the gift is called donee. A gift is generally made out of affection,
respect, charity, or like impulses, and not from any moral or legal duty. Gifts enjoy tax
exemption and a payment made without conditions and out of respect or charity or in
anticipation of economic benefits is generally characterized as gift under tax law. A charity will
normally issue a tax receipt for the gift amount and it can provide a tax receipt for gift- in -kind
also.

Essential elements of a gift include: capacity of the donor; intention of the donor to make the
gift; completed delivery to or for the benefit of the donee; and acceptance of the gift by the
donee. A gift can be made either in the form of cash or a gift-in-kind. A gift-in-kind means a gift
of property other than cash and includes inventory, capital property, donations of real estate,
stocks and bonds, and personal items. A donor can make a gift to a registered charity or other
qualified donee. Services are not property and hence will not constitute the subject matter of
gifts. Gift should be given voluntarily, of one’s free will and the donor who makes the gift
should transfer the full ownership and possession to the donee. Generally a donor transfers
property as a gift without expecting anything in return and donor cannot part with the gifted
property in the name of a contract or court order.

The three elements which are essential to the making of a valid gift are delivery, donative
intent, and acceptance by the donee. The delivery of a gift is complete when it is made directly
to the donee. Delivery can also be made to a third party on behalf of the donee. The third person
can be the donor’s agent, bailee, or trustee. In the case of delivery to a third party, delivery is
deemed to be complete only when such person actually hands over the property to the donee.

The three essentials of a gift:

It is essential to the validity of a gift that there should be;

(i) a declaration of gift by the donor,

(ii) an acceptance of the gift express or implied by or on behalf of the donee, and
(iii) delivery of possession of subject matter of the gift by the donor to the donee. If these
conditions are completed, than the gift is complete.

A delivery may be actual, implied, or symbolic, and requires some affirmative act to take place.
For instance, A wishes to gift a cow to his daughter B. The actual delivery takes place when A
hires a person to bring the cow to B’s farm.

The second ingredient of a valid gift is donative intent, which is inferred from the “donor’s
words, the surrounding circumstances, the relationship of the parties, the size of the gift in
relation to the amount of the donor’s property as a whole, and the behavior of the donor towards
the property subsequent to the purported gift.”

The intent must be present at the time the gift is made and is different from a mere expectation.
For example, if one person promises to give a house to an artist “someday,” the promise is
unenforceable because there is no intent to make an effective gift at the time of the promise.

The third element for a valid gift is acceptance. Acceptance means that the donee
unconditionally agrees to take the gift. It is necessary for the donee to agree at the same time the
delivery is made. The gift can, however, be revoked at any time prior to acceptance.A court
ordinarily makes the assumption that a gift has been accepted if the gift is beneficial, or unless
some event has occurred to indicate that it is not.

Revocation of gift:

A gift may be revoked by the donor at any time before the delivery of possession. The reason is
that before delivery of possession, the gift is not complete. Once possession is delivered, a gift
can be revoked only by a decree of a court. However a gift cannot be revoked in the following
cases,
(a) when the gift is made by a husband to his wife or by a wife to her husband,

(b) when the donee is related to the donor within the prohibited degrees,

(c) when the donee is dead,

(d) when the thing given is lost or destroyed,

(e) when the thing given has passed out of the donee's possession by sale, gift or otherwise,

(f) when the thing given has increased in value, whatever be the cause of the increase,

(g) when the thing given has undergone so much change that it cannot be identified, as for
example when wheat is converted to flour by grinding,

A gift may be revoked by the donor only and not by the heirs of the donor after his death.

Answer to the question no :1(b)

Gifts made by Muslims during ‘death-illness’ (Marz-ul-maut) are regarded as wills. Where a
Muslim makes any gift of his properties while on his death-bed, the legal effects of the
transaction are not of a Hiba but of will.

The doctrine of death-bed gifts is based on the donor’s state of mind at the time of the transfer.
When a person makes a gift during death- illness, he intends to distribute his properties
according to his own scheme giving up all the hopes for his life.

A person suffering from mortal-disease believes, beyond reasonable doubt that he would die
very soon. With these apprehensions in mind, he attempts to give away his properties. The result
is that although the transfer is inter-vivos but the idea behind such transfer is that it is likely to
take place only after the donor’s death.
The Shariat law is inviolable, except with the consent of the heirs. Thus on his own no Muslim
can disown any heir while making a will during Marz-ul-Maut.Some reasonable restrictions are
imposed by the Shariat on Marz-ul- Maut. These are

a) There should be genuine apprehension of death due to an illness. In case a person does not die,
the will made will be null and void.

b) Mere apprehension of death due to old age is not a ground for Marz-ul Maut. Thus a man
dying from natural causes due to old age does not come under the purview of this law.

Answer to the question no :(3)

This Arabic term ‘wasiyyat’ means moral exhortation or moral duty. According to Hedaya,
‘wasiyyat’ means an endowment with the property of anything after death, as if one person
should say to another: ‘Give this article of mine, after my death, to a particular person’.

The difference between Wasiyyat and GIFT :

WILL comes into effect ONLY after the death of the testator (person making the WILL).

Will is an Anglo-mohammedan word for Wasiyat (Al-wasiyya) which signifies a moral

exhortation, specific legacy of the executor i.e Al-musi. Unlike Hindus, will is a divine
institution as it is believed that they are regulated by Quran shareef and not sharia. In Muslim
law, it is not necessary that a will should be in writing and registered thereby rendering
nuncupative wills at par with testamentary disposition in writing. Technicalities have been done
away with and it’s validity lies solely on the intent of testator (Al-musi). Wills are written also to
help those persons who rendered him much assistance in his last days and to provide him a share
in his goods to the person i.e Al-musa lahu.
GIFT DEED comes into effect the very day it is made.

Gifts or Hiba in Muslim law (also Tamlik-al-ain) is immediate and unconditional transfer of an
interest (say ownership) in a property from one living person to another without any
consideration or with some return (Ewaz) and that it should be gratuitous and inter-vivos in
nature. Overall there must be a definite offer (Izab) it’s acceptance (qabul) and a transfer to be
involved to make it effective known as qabza. However gifts under Muslim law are governed by
Shariat Act, 1937 precisely section 2 and not under Transfer of property Act,1882. Gifts are
recognised in two ways and are separated in their contents such as the corpus of the gift also
known as Ayn and its usuruct known as Manafi.

However a gift becomes effective only when there is delivery of possession and accepted by
donee. A person who doesn’t accept a gift how so ever advantageous or onerous it may be, such
gift would be void. Similar clause is attached to the working of wills where bequeathing is
completed with legatees acceptance. If a legatee accepts bequests after the death of testator it is
valid even if he may have rejected it during his life time. On the other hand if a legatee happens
to survive the testator and dies without assenting to the will his assent is then presumed and he is
entitled for such share mentioned in wasiyat.

A will is always without consideration.

In some case there is consideration in gift.

The gift is the transfer of property which is made immediately and without any exchange by one
person to another will is dependent upon a condition lies the death of the testator. the gift and
will are two different things under Islamic law

Revocation:

WILL once made can be changed or revoked any number of times and till the testator (person
making the WILL) is alive.

GIFT DEED once executed cannot be revoked. The person to whom the gift is bestowed by the
gift deed becomes the absolute owner.

Registration:

WILL is not compulsorily registrable and an unregistered WILL is very much legal in the eyes of
law.

GIFT of movable property (for eg., car, machine, gadget, goodwill etc) is not required to be
registered but GIFT of immovable property (for eg., land, flat, house etc) is compulsorily
required to be registered.

conclution

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

A Will is a device which confers right to property to legatee in a gratuity manner, postponed till
the death of the legator. It provides an opportunity for a legator to correct the law of succession
to some extent. This is because it empowers some of the relatives to obtain a share in the
property who are legally from excluded from inheritance under Islamic law. The Islamic law of
Will allows a person to devolve his property upon a person of his own choice. But
simultaneously, it maintains a rational balance between the law of inheritance and devolution of
property under a Will.