ISLAMIC LAW

GIFTS UNDER MUSLIM LAW:

Concept: gift is a transfer of property. It is the:

 transfer of certain existing movable or immovable property

 made voluntarily and
 without consideration
 by one person called the donor to another called the donee and
 accepted by or on behalf of the donee,
 followed by immediate delivery of possession of the subject matter of the gift.
is a transfer of property

All the rights of the donor vest in the transferee.

The donor has the title, a right to possess and enjoy the property and a right to sell it at
his pleasure if he is otherwise competent to do it.

UNDER MUSLIM LAW:

Hiba:

defined as: ‘the donation of a thing from which the donee may derive a benefit’.

Definitions:

1.
 an unconditional transfer of property
 made immediately without any exchange or consideration
 by one person to another and accepted by or on behalf of the later.

2.
 an immediate and unqualified transfer
 of the corpus of the property
 without a return.

3.
 the conferring of a right
  of something specific
 without an exchange
-The gift can be to the extent of a part of the property or even the total property.

-Parties to the gift- donor and done

DONOR:

 Any Muslim,
 who is major and
 of sound mind (competent to contract can make a gift of his property ).
-The age of majority for determining the competency of gift is eighteen years in
ordinary cases, and is twenty-one years where a guardian has been appointed by the
court.

- no discrimination on grounds of sex (female also competent, irrespective of marital

status- married, unmarried, widow or a divorced)

She may be very active socially, an outgoing person or a Pardanashin woman. In case
a gift is alleged to have been made by a Pardanashin woman and it is disputed, the
burden of proving that she understood the full implication of the nature of her
actions is on the donee.

The rule is in tune with the equitable principle that persons who have less or
practically negligible interaction with strangers due to social customs, need special
protection for their own benefit.

Ownership for gift:

Donor must be the owner of the property- trespasser cannot make a valid gift of the
property in his possession

Financial obligations of donor:

If donor has a bona fide, genuine intention to make a gift of his property, his financial
obligations- a valid gift.

Exception- objective to defraud his creditors- voidable at the option of such creditors.

DONEE:
-competency to contract -not an essential requirement

-can be minor or unsound mind

-can be of any sex, any age, any religion

-can be a relative or a stranger

-mosque is jurisitic person- competent done

Gift to Unborn Person:

can be a minor or a major but he must be in existence

gift to an unborn person- void

Exception- gift to a person by way of a maintenance allowance for life and to his male
heirs not in existence on the date of making the gift will be valid provided they are born
by the time the interest in favour of the living person comes to an end.

Gift to a Child in Womb:

can be made to a child in the womb of his mother, provided it is born within six months
of the date of the making of gift.

In such cases the child is treated as a separate entity.

Gift to a Non-Muslim:

religion of the done- immaterial

SUBJECT-MATTER OF GIFT

 can be property that is capable of being owned.

 can be movable as well as immovable property, ancestral or self-acquired,
corporeal or even incorporeal property.
Corporeal property is one that has actual physical existence. (land, a house
etc.)

Incorporeal property has no physical existence but it can be owned- Its

actual physical possession cannot be delivered but it can be assigned
(copyright or a goodwill, Zamindari rights, right to receive a specific or a
 specified share in the offerings made by pilgrims at a specific shrine,
negotiable instruments, debts, promissory notes, etc)

 can also be made of a property on lease or property that is subject to a mortgage

or is under an attachment or other actionable claims.
 In cases where actual physical possession cannot be delivered, the gift can be
completed by an overt act, that shows clearly an intention of the donor to divest
himself completely of the ownership and vest it in the donee. Any property that
can be described as ‘mal’ can be the subject matter of gift.
Property must be in Existence

subject-matter of a gift must be in existence.

Gift of Future Property:

 subject-matter must be in existence on the date of making the gift

 If will come into existence at a future date, the gift- void
 the reason being that the benefit conferred should be certain and immediate, of
what is existing and is available
 a gift of spes successionis would be void.
 a gift of a specific share in rents that would arise in future is valid as they are
ascertainable in specific property
 a gift of specified share in offerings made by pilgrims at a specific shrine is valid
Gift to take Effect on a Future Date:

-a gift of existing property but operative on a future date- void.

-reason: immediate delivery of possession of the property- essential condition for

validity

-Where donor makes a gift to the donee that is to be operative only after his death or
on the death of another person- void as it is contradictory to the immediate delivery of
possession

Corpus and Usufruct:

Muslim law - the distinction between the gift of a corpus and that of a usufruct.

CORPUS USUFRUCT
-is the thing/ property itself -the produce of the thing, or the income
 or profits of the thing/corpus
-the easements attached to the property
denotes transfer of absolute ownership, not absolute, but limited in point of time
confers rights in favor of the donee that and enjoyment. It is personal in character
are both transferable and heritable and is neither transferable nor heritable.
Called hiba It is called Ariyat
cannot be subject to a condition that
deviates from the absolute nature of the
grant- if condi put- will be ignored and
grant be valid
a life interest cannot be created in the Life interest can be created in the ‘Manafi’
corpus i.e. the usufruct

Example- land is the corpus and the crops would constitute the usufruct.

A gift of the corpus where the donor reserves the usufruct for himself for life, and with
the authority to collect the rents and profits as the agent of the donee is valid

Both can be gifted separately

Bcos Owner may want to continue to earn benefit from the usufruct or corpus

DIFF COMBINATIONS-

 Donor gifts corpus and retains the usufruct

 Donor gifts the usufruct but retains the corpus
 Donor gifts corpus and usufruct to two separate ppl
IPR is an example of usufruct

Eg- pond is corpus, fishing rights etc on is its usufruct

Gift of a Life Interest:

 A gift of a life interest is valid.

 Here, donee does not get an absolute title.
 right is neither heritable nor transferable, but personal in character and lasts
during the life of the donee.
 On his death it devolves in accordance with the terms of the grant and does not
pass to his heirs.
 A life interest does not automatically mature into an absolute estate.
Gift of Property Held Adversely to Donor:

Where the donor does not have the actual physical possession of the property as the
same is held by another person adversely to the donor, the donor cannot make a valid
gift of it unless:

i. he actually obtains and delivers possession to the donee; a mere declaration

is not sufficient, or
ii. does all that can be done by him to complete the gift thereby enabling the
donee to be in a position, from where he can obtain possession.
Illustration: A gifts his land to B, that was held by C adversely against A, after filing a suit
against C. He obtains possession and delivers the possession to B. The gift is valid.

Illustration: if the donor files a suit against a trespasser after executing a gift in favour of
the donee and the donee joins in the suit, it is not open to the trespasser to challenge
the validity of the gift on the ground that since no possession was delivered the gift was
void. This is because the moment the donor admits the claim of the donee before the
court and pursues the suit to enable the donee to take possession; the gift is valid and
complete.

Rule: is that if the donor has done what all he/she could do to put the donee in
possession, by filing a suit, and for executing a ‘hibanama’ authorising the donee to take
possession and there was nothing more that she could do, the gift would be valid as
constructive possession would be deemed to be delivered.

Gift of an Equity of Redemption:

The right of a mortgagor to repay the loan and redeem or reclaim the mortgaged
property is called his equity of redemption.

This equity of redemption is an interest in the immovable property and is transferable.

A gift of equity of redemption by the donor is valid if the possession of the mortgaged
property is with him and he completes the gift by delivery of possession of the
mortgaged property.

In some kinds of mortgages such as usufructory or even an anomalous mortgage, the

possession is with the mortgagee and in such cases it may not be possible for the
mortgagor to deliver the possession of the property to the donee. With respect to the
validity of such gifts where the possession is with the mortgagee, there is conflict of
judicial opinion. The predominant view is that in such cases even delivery of constructive
possession is sufficient or it must be shown that some appropriate action was taken by
the donor to complete the gift. In an earlier decision of the Bombay High Court it was
held that delivery of possession is essential for the valid completion of a gift and since
the possession of the property was with the mortgagee under a valid contract, the gift
of equity of redemption would not be valid for want of delivery of possession. It is
submitted that the view, upholding the validity of the gifts after delivery of constructive
possession in these cases appears to be correct

REQUIREMENTS OF A VALID GIFT:

 Declaration by donor (Ijab)- offer

 Acceptance by the done (Qubool)- offer be accepted
 Immediate delivery of possession (Qabza)

I. DECLARATION:
 must be ‘declared’ voluntarily and with free consent
 must be clearly manifested without any ambiguity
 permission is not the same as a declaration
 according to the SC- declaration is a pre-condition for the validity of a gift.
 should not be tainted with a fraudulent motive on the part of a donor,
such as to defraud the just claims of creditors- would be voidable at the
option of the creditors,
 but- mere indebtedness would not stand in the way of the competency of
a donor to make a gift.
 intention should be real and bona fide.
 declaration cannot be made in isolation and has to be made in the presence of
some witnesses or by way of a public statement,
 (that the donor was gifting the property to the donee and thereby divesting himself of
the complete control over it, and has either delivered or was completing the gift by such
delivery of possession as the property was capable of )
 A declaration cannot be made unilaterally without making a public statement to
that effect.
 In a SC case the owner of three pharmacies entrusted the management of one
pharmacy each to his three sons. That continued even after his death. As each
 brother was looking after a separate pharmacy, the profits were not distributed
under this arrangement till a suit for partition was filed by one brother. On the
point of gift, the court said that a convenient arrangement of management of an
establishment was not a gift under Muslim law in absence of a declaration to that
effect.
 declaration should not be induced by fraud or undue influence or by the use of
force or even under compulsion
 Eg: Where a woman was brought to another city on a false pretext and was made
to sign the gift deed, before she could consult anyone, the court held that her
consent was not free and the gift was void.

II. ACCEPTANCE:
 must be accepted by the donee, if he is competent to accept it himself or by a
competent person on his behalf if he lacks capacity to accept it himself
 Under Muslim law, acceptance on behalf of a minor or a person of unsound
mind can be given by the guardian of his property.
guardians of the property of a minor are (in same order) viz.,

1) father, (if alive, sole guardian of the property of the minor)

2) his executor appointed under his Will,
3) paternal grandfather, his executor appointed under his Will.
Father can appoint an appropriate person, either a relative or even a friend to act as a
guardian of the property of a minor as an executor in his Will. Next to him is the
paternal grandfather, who also has a similar power to appoint a guardian of the minor
as an executor under his Will. No other relative of the minor including the mother,
brother, maternal grandfather etc are stipulated as legal guardians. However, they can
be so appointed under a Will by the father or the paternal grandfather.

Where the father is alive, he alone is the legal guardian and no one else can even act as
a guardian of the property of his minor sons.

If through a declaration, the offer of a gift is made to the minor sons, the acceptance
must come from the father failing which the gift would be incomplete and therefore
void.

In case of minor wife- husband accepts on her behalf

III. DELIVERY OF POSSESION

 gift is not valid unless it is accompanied by delivery of possession of the gifted

property
 No legal effect, till possession is given
 absolutely essential that the owner must completely divest himself of the
ownership and the complete control over the property and vest it in the donee
 complete relinquishment of control, ownership and possession, in favour of the
donee
 possession means, ‘only such possession as the nature of subject is capable of’,
and therefore- can be actual, constructive or even symbolic.
 If immovable prop, donor should:
 vacate the possession along with all his belongings that would
signify his relinquishment of total control; and
 put the donor in possession
in case of a gift of property in possession of lessee/ mortagager- delivery of constructive
possession (showing bonafide intention and appropriate action)

SC- six criteria for the validity of a gift under Muslim law:

(i) The donor should be sane and major and must be the owner of the property
which he is gifting
(ii) The thing gifted should be in existence at the time of Hiba;
(iii) If the thing gifted is divisible, it should be separated and made distinct;
(iv) The thing gifted should be such property to benefit from which is lawful
under the Shariat;
(v) The thing gifted should not be accompanied by things not gifted, i.e., should
be free from things which have not been gifted;
(vi) The thing gifted should come in possession of the donee himself or of his
representatives, guardian, or executor.
Exceptions to the rule of delivery of possession:

 where the gift is by the husband to the wife or vice versa;

 where the gift is by the father to the minor child or by the guardian to the ward;
or
  where the donor and donee reside in the same property which is the subject
matter of gift
FORMALITIES FOR EFFECTING A VALID GIFT;

 A gift can be oral or in writing (must fulfill the 3 essentials)

 oral gift by the father-in-law to the daughter-in-law when possession is handed
over to the latter is perfectly valid.
 Mere writing or even registration would not cure the defect of an otherwise
invalid gift.
 If the gift is otherwise valid, even a mutation of names is not necessary
MUSHAA;

 arabic word signifies confusion

 refers to undivided share in the prop
 property may be in the nature of independent unit, that can be ascertained,
specified and identified independently or it may be part of an independent unit,
which is yet to be specified.
 term ‘property’ includes an undivided share in a property which can be the
subject matter of a valid gift.
 wrt Mushaa or undivided share, two situations are possible:
(i) undivided share can be in a property, which is capable of division without
effecting its value or character substantially; and
(ii) undivided share is in a property that is incapable of being divided.
(In trying to divide it, either the property will be destroyed or its intrinsic value will be lost
or it will be rendered useless, e.g. two brothers inherit a house that has a common entrance,
staircase or a right of way, a utensil, a carriage, tapestries, artefacts, well, clothes,
ornaments etc.)
Gift of Mushaa:

In order to effect a valid gift of Mushaa, the compliance of all the three conditions is
necessary, but problem may arise in some cases in complying with the delivery of
possession.

Rules for it are:

 Where the Undivided Share is Incapable of Division:

Where the property (the undivided share) is not capable of division and admits only
common enjoyment the property can be validly gifted without effecting a division of the
property.

such as a staircase, well, the banks of a tank, a right of way, a share in business in Turkish
bath, etc

In such cases the donor should by some act clearly demonstrate his intention to put the
donee in possession of the property as the nature of the property admits.

 Where the Property is Capable of Division

Where the property is capable of division, it should be divided and its possession
handed over to the donee.

However, even if it is not partitioned and delivered to the donee it is merely irregular
and not void and can be validated subsequently, by effecting its division and delivery of
possession.

Under Shia law, the gift of an undivided share in a property capable of division is valid.

Under Sunni law, the gift of Mushaa in a property capable of division is valid from the
date of its inception, despite the fact that no division is effected in certain specific
situations. These are as follows:

a. where the gift is made by one co-heir to another co-heir;

b. where the gift is of a share in a Zamindari or Taluka;
c. where the gift is of a share in freehold property in a large commercial
town;
d. where the gift is of shares in a land company
Gift of Mushaa and its Subsequent Validity:

-When prop capable of division- not divided- gifted- gift valid under Shia law

-gift irregular under sunni law

(can be validated by effecting division subsequent to making the gift)

Gift to two or more donees:

donor makes a gift- property capable of division- to two or more donees together-does
not specifies their shares and without dividing the property: gift irregular u/ Sunni law
and can be validated by a subsequent partition and occupation of their separate shares.

Under Shia law, a gift of property to two or more donees, without specification of their
shares or effecting a division of the property is valid.

Gift to Two or More Donees with Specification of Shares but as Joint Tenants:

so that if one of them dies,

Shia law: gift valid- his share would not go to his legal heirs but will be
taken by the other
 Sunni law: this condition would be void, and the gift valid- Each donee
will take his specific share absolutely- on the death one, the share would
go to their legal heirs and not to the surviving donee

Contingent gifts- dependent on happening or non happening- Invalid

(premise: gift must be certain and shud take effect immediately)

Conditional gifts- Where the donor makes the gift subject to a condition or limitation,
which restricts or limits the enjoyment of any of these three rights by the owner (donee),
the gift is called a conditional gift. If the condition is inconsistent with the incidence of
absolute ownership, the condition is void but the gift is valid.

(donee to ignore as if never existed bcos gift is absolute transfer of prop, divesting all
rights in the subject matter)

TYPES OF GIFT:

3 kinds:

1. simple hiba
2. hiba-bil-iwaz
3. hiba-ba-shartul-iwaz
SIMPLE HIBA:

HIBA-BIL-IWAZ:

two basic essentials:

(i) a bona fide and voluntary intention on part of the donor to make the gift and
to divest himself of the complete rights over the property and vest it in the
donee and
(ii) payment of consideration by the donee
-delivery of possession of the prop not an essential requirement

Consideration:

 must be actually and bonafide paid

  may be in the form of money or performance of an obligation, in the form of
return of a favour, or relinquishment of the claim to an estate or even a promise
to marry, or in lieu of payment of dower
 considerations of love and affection, or consideration of donee being a relative is
not a valid consideration.
Example: A makes a gift to B of his house or a portion of it in return of Rs. 10,000 or a
gift of his land to W, in return of her promise to marry him, or A makes a gift of his
house to W, in return of or in lieu of her unpaid dower. In these cases even if the
possession is not delivered the gift is valid.

where the donee in consideration of proper arrangement made for her maintenance,
relinquishes her claim of estate in favour of the donor, it is a valid hiba-bil-iwaz.

Adequacy of consideration:

 can be in cash or kind,

 no requirement that it should be equivalent to the market value of the object of
the gift
If intention- bona fide: Consideration- grossly inadequate=yet gift perfectly valid

Though considerations of love and affection or nearness of relationship by itself is not a

valid consideration yet these factors may influence the adequacy of consideration.

A copy of the Quran or a prayer carpet is also a valid consideration.

A gift of land at one-third its market value is valid.

where property of considerable value is gifted in consideration of the donee agreeing to

maintain the donor for the rest of his life, it would be a valid hiba-bil-iwaz

As contract of sale:

Hiba-bil-iwaz has all the elements of a contract of sale (judiciary treats it so)

 the parties must be competent to contract,

 there should be an offer and an acceptance and
 presence of consideration is a must.
Where the consideration is more than Rs. 100 a hiba-bil-iwaz has to be effected with the
help of a written, attested and registered document.
HIBA-BA-SHARTUL-IWAZ:

-gift is made with a stipulation for a return from the side of the donee,

-essentials for this;

 3 essentials of a gift
 Stipulation for a return
(in this delivery of possession essential)

-This stipulation or promise that the donee is supposed to perform, till its performance
makes the gift revocable, but once it is performed, the gift becomes irrevocable

-Where the gift is of an undivided share in the property it would be invalid without
delivery of possession

REVOCATION OF GIFTS:

 Till all the essentials of gift are complied with, it is open to the donor to withdraw
his offer.
 Where possession has been delivered, the gift becomes complete, but because it
is purely a voluntary transaction it can be revoked even after its completion.
 Revocation can be with the consent of the donee or in the absence of his
consent, by a decree of the court.
 The right of revocation is only with the donor and can never be exercised by his
heirs
A gift –completed- absolutely irrevocable in the following cases:

(i) when either the donor or the donee is dead;

(ii) where the donor and the donee are husband and wife or vice versa;
(iii) where the donor and donee are within prohibited degrees of relationship.
(iv) where the donor has received a return for the gift;
(v) where the subject-matter of the gift has been lost, destroyed or has been
converted in such a manner that it has lost its identity;
(vi) where the subject-matter has passed out of the hands of the donee by a
transfer such as by way of a sale, gift etc.;
(vii) where the gift has substantially increased in value;
(viii) where the gift was for obtaining religious merit (Sadaqah).
Shia law:
  a gift to any blood relation whether they stand in the prohibited degrees
of relationship or not is IRREVOCABLE.
 Exception- where the donor and the donee - husband and wife, gift is
revocable.
Mode of Revocation:

mere declaration or cancellation of gift deed will not effect a revocation unless it is so
consented to by the donee, and a decree by the court is essential for a valid revocation

Shia law- mere declaration of revocation by the donor -sufficient to revoke

Challenge to the gift: only the person whose rights are affected by the gift (like legal
heirs of donor)- but no right to trespasser or any stranger

Cases:

1. The *Afsar Sheikh and Anr. vs. Soleman Bibi and Ors.* case, decided by the
Supreme Court of India on *November 6, 1975, dealt with issues related to
**undue influence* and the validity of a *Hiba-bil-Ewaz* (a gift with
consideration) executed by the predecessor-in-interest of the respondents.

Here are the key points from the case:

1. *Background: The plaintiff (predecessor-in-interest of the respondents) filed a

suit seeking a declaration that the Hiba-bil-Ewaz executed by him was void due
to **fraud and misrepresentation* by the appellant (donee). The plaintiff alleged
that the appellant misrepresented the document as a deed of cancellation of a
will.

2. *Trial and First Appellate Court*: The trial court and the first appellate court
dismissed the suit, finding that the plaintiff had executed the document with
knowledge of its contents.

3. *High Court Remand*: In a second appeal, the High Court remanded the case
to the first appellate court. The High Court held that the mere knowledge of the
document's contents was insufficient to dismiss the plaintiff's case. Given the
allegations that the appellant assisted the plaintiff in property management and
abused the plaintiff's confidence, the court needed to determine whether the
appellant was in a position to dominate the donor's will.

4. *Final Disposition*: After remand, the first appellate court again dismissed the
suit. However, in a further second appeal, the High Court allowed the appeal,
considering the appellant's written statement, which contained a clear admission
of an intimate relationship between the parties.
In summary, the case highlights the importance of assessing undue influence
when setting aside a transaction. The court emphasized the need to examine
whether the donee was in a position to dominate the donor's will¹²³.
[Afsar Sheikh And Anr vs Soleman Bibi And Ors]