File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Comparison between Gift under TPA and Islamic Law

Gift is a transfer of ownership of property without any consideration. Under Islamic law, gift or hiba is governed by personal law and does not require any writing or registration. However, under the Transfer of Property Act (TPA), 1882, the gift of immovable property must be in writing and registered. A gift, or hiba, is a voluntary and unconditional transfer of property from one person, called the donor, to another, called the donee, without any consideration.

Under Muslim law, a gift is governed by its own rules and not by the Transfer of Property Act, 1882. A gift can be made of any movable or immovable property, but it must be existing and not be contingent. A gift must also be accepted by the donee or on his behalf during the lifetime of the donor. The most essential requirement of a gift is the transfer of possession from the donor to the donee, either actual or constructive. The validity and revocability of these gifts depend on various factors and conditions.

This paper aims to compare and contrast the concept of gift under Muslim law and under the Transfer of Property Act, 1882, with reference to various judicial decisions and scholarly opinions. The paper also analyses the advantages and disadvantages of both systems

The Transfer of Property Act (TPA), 1882 was enacted on July 1, 1882, to establish regulations concerning property transfers in India. It encompasses various types of transfers, including sales, leases, mortgages, and gifts. However, it specifically applies to transfers between living individuals, known as inter vivos transfers.

Examples of inter vivos transfers under the TPA include property sales, gifts, and leases. On the other hand, transfers resulting from succession, insolvency, forfeiture, or execution are not considered inter vivos transfers under the TPA. It's important to note that Section 5 of the TPA exclusively addresses inter vivos transfers and does not cover testamentary transfers or transfers by will.

Islamic Law, which applies to individuals governed by Islamic principles, serves as their personal law. It encompasses various matters such as marriage, succession, divorce, and also covers inter vivos gifts.

Research Problem:
  1. What are the conditions and consequences of revoking a gift under Islamic Law and TPA?
  2. How does the concept of gift to minor differ under Islamic Law and TPA?
Research Objectives:
  1. To understand the conditions and consequences of revoking a gift under Islamic Law and TPA.
  2. To understand how does the concept of gift to minor differ under Islamic Law and TPA
  1. It is hypothesized that the conditions and consequences of revoking a gift under Islamic Law and TP are the same.
  2. It is hypothesized that the concept of gift to minor are same under Islamic Law and TPA.
Research Methodology:
The author has adopted the doctrinal method of research for this paper. The authors have studied various material that is available in order to gather information and conduct the research.

Gift under Islamic Law?
Gifts are referred to as 'Hiba' in Islamic law. To be more specific, the term "gift" has a broad connotation and refers to all types of non-monetary transfers of ownership. On the other hand, the term 'Hiba' has a specific meaning. It is essentially conveyed inter vivos, or between living people.

According to Fyzee:
"Hiba is the immediate and unqualified transfer of the corpus of the property without any return."

Thus the following are the features of Hiba, that is gift under Islamic Law:
  1. Act of Parties: Hiba is a property transfer by act of the parties rather than through operation of law. It means that any property transfer made by a court of law or any transfer of ownership made under Muslim law of inheritance would not be considered Hiba.
  2. Inter Vivos: A living Muslim gives ownership of any property to another living person voluntarily.
  3. Absolute Interest: The transferor conveys absolute ownership of the property, and the transferee receives total title to the property handed to him. Conditions, limits, or limited rights in the bestowed property are prohibited by Islamic law.
  4. Immediate Effect: Hiba takes effect immediately and deprives the transferor of control and ownership over the property. Furthermore, because the property is transferred directly to the transferee, it must exist at the time the gift is made. A vacant gift is one made for a property that will exist in the future.
  5. No Consideration: If the transferor accepts something of value in return or exchange, the transfer of property is not a gift.

Capacity to gift
Competency of Donor
To make a gift, a donor must be competent. Every Muslim, male or female, married or single, over the age of majority and of sound mind, is a capable donor. The age of majority for the purpose of making a gift is the attainment of 18 years, or 21 years if he is under the care of a certified guardian.

Competency of Donee
The only criteria for being a competent donee is that the donee be any person who exists at the time of the donation. He could be of any creed, gender, or mental state. As a result, a Muslim may make a legal Hiba in favour of a non-Muslim, female, juvenile, or insane individual.

Subject Matter of Hiba:
The subject matter of Hiba, which is a type of gift, can encompass any form of property that can be controlled and owned. It can involve both tangible and intangible assets. Additionally, it is possible to make a gift of property that is leased, under attachment, or even an actionable claim.

In contrast to the concept of a will or wasiyat in Islamic law, which is limited to bequeathing one-third of the total property, a Hiba or gift allows for the transfer of the entire property.

Essentials of Gift under Islamic Law/ Hiba
The essentials of Hiba are as follows:
  1. Declaration of Gift by the donor:
    A declaration is an explicit statement or announcement. It means to openly and expressly state the intention of the donor to transfer the property as a git to the done.
    1. Oral or Written:
      It may be expressed orally or in writing[1]
    2. Express:
      The declaration must be express and clear[2].
    3. Free Consent:
      The donor must be transferring with his own free consent and not because of any coercion, fraud undue influence etc.
  2. Acceptance of gift by done:
    A gift must be accepted by the donee in order to be valid. Acceptance expresses the donee's intent to take possession of the property and become its new owner. The gift is considered incomplete if it is not accepted. Because Hiba is considered a bilateral transaction under Islamic law, it is critical that the donor's proposal to transfer ownership of the property be accepted by the donee.
  3. Delivery of Possession:
    According to Islamic law, a gift is complete only when the giver delivers possession and the donee takes possession. As a result, the declaration and acceptance must be followed by the conveyance of property possession. The gift becomes effective when possession of the property is handed to the donee, not when the declaration is made by the donor. The delivery of possession is a crucial aspect of Islamic law. The importance is such that a gift is worthless until ownership is delivered to the donee, even if made through a registered deed.
In Noorjahan v. Muftakhar[3], a donor gave a property to the donee, but the donor continued to operate the property and profited from it. There was no mutation in the name of the donee till the donor died. The court ruled that because no conveyance of possession was made, the gift was incomplete and ineffectual.

Gift under Transfer of Property Act?
A gift, as defined in Section 122[4] of the Transfer of Property Act, entails the transfer of an existing movable or immovable property. It is a transfer that must be made voluntarily and without any consideration received in return. The recipient of the gift is known as the donee, while the person making the transfer is referred to as the donor. Acceptance of the gift by the donee is required. As per the provisions of this section, a gift involves the gratuitous transfer of ownership in an existing property. The definition encompasses the transfer of both movable and immovable property.

Parties to a gift transfer
The donor must have the right and capacity to gift. A donor who has the capacity to contract is deemed to have the capacity to gift. Therefore at the time of making a gift, he must be the age of majority, and sound mind. This also implies that gift by minor and person with unsound mind is void. Furthermore, he must also have the right to gift. The right of the donor is determined by his ownership rights in the property at the time of the transfer because gift means the transfer of the ownership.

The mental capacity of the recipient is not a prerequisite for establishing a contractual agreement through a gift. The recipient can be any living individual at the time of the gift, irrespective of their mental capacity. This means that even if the recipient is mentally incompetent, a minor, or an unborn child, the gift remains valid as long as a capable person lawfully accepts it on their behalf. Furthermore, legal entities such as businesses, organizations, or institutions are deemed competent recipients, and gifts made to them are considered legitimate.

However, it is crucial that the recipient is an identifiable and locatable individual. Gifts intended for the general public are deemed invalid. Moreover, it is permissible for the recipient to involve multiple individuals, as long as their identities can be established.

Essentials of a Valid Gift under TPA
Essentials of a valid gift under the Transfer of Property Act:
  1. Transfer of Ownership:
    The property must be transferred from the transferor or donor to the transferee or donee, with the transferor relinquishing all rights to it. When absolute interests are transferred, any associated rights and obligations related to the property are also transferred. It is essential for the donor to have the legal authority to transfer ownership of the specific assets in order to make a donation. Through a gift, only ownership can be transferred, similar to other types of transfers. The donation may be subject to additional conditions or requirements as well.
  2. Existing Property:
    The property involved in a donation can be of any type, including both movable and immovable assets, tangible or intangible. However, it must exist at the time of the gift and be transferable according to the definition provided in Section 5[5] of the Transfer of Property Act. Any gift pertaining to future property is considered invalid. This means that gifts based solely on the likelihood of inheriting property, the mere right to file a lawsuit, or the gift of an expectation of succession are also deemed unlawful.
  3. Transfer without consideration:
    A gift must be given without any form of compensation, indicating that the transfer of ownership must be made without receiving money or other benefits. Even a minimal or insignificant amount of property or cash provided by the recipient in return for the transfer of a substantial asset could be considered as consideration for a sale or exchange. The term "consideration" holds the same definition as in Section 2(d)[6] of the Indian Contract Act within the context of this provision. Consideration refers to a pecuniary or monetary value. In contrast, the expression of mutual love and affection does not hold a monetary value. Therefore, any property transferred in exchange for love and affection is regarded as a gift because it is given without any expectation of receiving something in return.
  4. Voluntary Transfer with Free Consent:
    The donor must make the gift willingly and without any external pressure, coercion, fraud, or undue influence. This refers to the concept of free consent, where the donor has the complete freedom to contribute without any constraints. It is important that the donor's will is independent and not influenced by external factors when executing the gift deed. Additionally, the donor's voluntary action implies that they have a clear understanding of the facts and nature of the transaction at the time of making the gift. The responsibility to demonstrate that the gift was given voluntarily and with the donor's free consent lies with the donee.
  5. Acceptance of Gift:
    The acceptance of a gift by the donee is necessary. Property cannot be transferred to an individual without their agreement, even if it is intended as a gift. The donee has the right to reject the gift, just as they would with unfavorable or burdensome property. A gift becomes burdensome when the obligations or liabilities associated with it outweigh its true market value. Therefore, it is crucial for the donee to explicitly or implicitly accept the gift. Implied acceptance can be inferred from the actions and circumstances of the donee. Acceptance of the gift is typically indicated when the donee takes possession of the assets or receives the title deeds. In the case of property being leased, acceptance can be assumed when the donee accepts the right to collect rent.

Modes of making gift
The requirements required to complete a gift are covered in Section 123 of the Transfer of Property Act. Only if these procedures are followed is the gift legally enforceable. Depending on the type of property, this Section outlines two ways to make a gift. Registration is required for the gift of real estate. If the item of property is mobile, delivery of possession may be used to transfer it. Following is a discussion of various property transfer modes:
  1. Immovable Properties:
    Regardless of the property's worth, immovable property requires that the transfer be registered. Before the registration procedures are formally finished, the registration of a document, including a gift-deed, signifies that the transaction is in writing, signed by the executant (giver), attested by two qualified parties, and duly stamped.

    The Supreme Court ruled that an immovable gift is insufficient if it is not accompanied by a written document that has been signed by the donor, attested by two witnesses, registered, and accepted by the donee.[7]

    In the case of gifts, it is necessary to fulfill all requirements as they are not subject to the principle of partial performance. If a donee, who has acquired ownership of a property through an unregistered gift deed, is later evicted, they are unable to defend their rights to the property.

    According to the interpretation of Section 123[8] of the Transfer of Property Act, the courts have observed that there is no obligation to deliver possession in the context of an immovable gift. Similarly, in another legal case, it was determined that the acceptance of the gift by the donee and the registration of the gift by the donor do not alter the transfer of ownership from the donor to the donee[9].
  2. Movable Properties:
    Delivery of possession in the case of movable property could be the final step. In certain situations, registering is optional. Regardless of the property's value, delivery of possession as a method of gifting movable property is allowed. The method of delivery is determined on the type of item being delivered. The only requirements are that title and possession be transferred in the donee's favour. Anything that the parties agree to count as a delivery of the goods or that has the effect of transferring ownership of the property to the transferee may be regarded as a delivery.
  3. Actionable Claims:
    Section 3[10] of the Transfer of Property Act defines actionable claims. It could be the right to claim movables that the claimant does not own or unsecured financial obligations. Beneficial interests in moveable are actionable claims. They are therefore mobile intangible properties. The Act's Section 130[11] regulates the transfer of actionable claims. A written document that is signed by the transferor or his duly authorised representative may be used to transfer actionable claims as a gift. It is not essential to register or deliver possession.

Now that we have understood the concept of gift under the Transfer of Property Act and Hiba under Muslim law, it can be understood that both the concepts are similar to each other. Both of them have many similarities. However there are some major differences between the two. We shall now look at the two and compare some concepts which exist in both of the kinds of gifts.

Revocation of gifts
The term "revocation" in contract law may refer to the cancellation or withdrawal of an offer. Hence revocation of a gift may be understood as the cancellation of a transfer which is without consideration, that is gift. The donor keeps the property with himself and does not transfer it to the donee.

Revocation of Hiba under Islamic Law:
It is a well-established principle of Islamic law that all voluntary transactions, including Hiba, are revocable, despite the fact that Prophet was opposed to the cancellation of gifts. Regarding revocation, different schools hold varying opinions. According to its revocability, the Muslim law-makers divided the Hiba into the following groups
  1. Before the delivery of possession
    Prior to the conveyance of ownership to the donee, all gifts are revocable. No judicial orders are required for such revocation. According to Muslim law, no Hiba is complete until the delivery of the possession is made to the donee. As a result, in all instances where possession has not been given to the donee, the gift is incomplete and will not be valid until the delivery of possession is made to the donee, whether it is revoked or not.

    It suggests that the giver has changed their mind and is no longer willing to fulfil the gift by giving the item.
  2. After the delivery of possession
    Once the delivery of possession has been completed to the donee, the gift can only be revoked with either the consent of the donee, or the decree of the court.

    A gift cannot be revoked simply by the donor declaring it such, by bringing a lawsuit, or by taking any other action. Until a court order revokes the gift, the donee is free to utilise the property anyway they see fit.

Revocation of gift under Transfer of Property Act:
The legal requirements that must be followed in the case of a conditional gift are laid out in Section 126[12] of the Act. The provisions of Section 126[13] must be followed, and the donor may only make a gift subject to a few restrictions that could result in it being suspended or cancelled. A gift may only be revoked for one of the two reasons that are outlined in this Section.
  1. By mutual agreement
    A gift that is subject to a condition agreed upon by both the donor and the donee is one that will be suspended or cancelled upon the occurrence of an event that is independent of the donor's desire. It must consist of the following essentials:
    • The requirement must be made explicit.
    • The requirement must be a component of the same transaction; it may be stated in the gift-deed itself or in a different document that is also a component of the same transaction.
    • A gift's revocation requirements cannot be determined merely by the donor's will.
    • According to the legal guidelines established for conditional transfers, such a condition must be valid. For instance, Section 10 of the Transfer of Property Act declares that a condition that completely forbids the alienation of a property is invalid.
    • Both the donor and the donee must concur on the condition.
    • Gifts that can be revoked at the donor's discretion are invalid, even if both parties agree to that condition.
  2. By the rescission of the contract
    A contract for a transfer must come before a gift since it is a transfer. This agreement may be expressed or implied. There is no doubt that the future transfer will occur if the prior contract is voided. As a result, gifts can be withdrawn under Section 126[14] for any reason that would allow for the termination of a contract. The donor retains the right to revoke the agreement; it cannot be transferred. However, following the donor's passing, the legal heirs of the donor may file a lawsuit to have the agreement revoked.
The statute of limitations for withdrawing a gift due to fraud, misrepresentation, etc. is three years from the time the plaintiff (donor) first learns of the facts.

When the donor approves the donation, either explicitly or via his actions, the donor forfeits the ability to revoke the gift on the aforementioned grounds.

Comparison of Revocation between the two:
Now that the concept of revocation has been explored and understood under both the Islamic and Transfer of Property Act, it is clear that it is similar in both of them. The meaning and consequences are the same, that is the gift transfer is cancelled and the property remains with the donee.

However there are a few differences:
  1. Under Hiba, the gift can be revoked any time before the delivery of possession, if the donor wishes to do so. He does not need the consent of the donor.
  2. Also, after the delivery of possession, the donor can revoke the gift either with the decree of the court, or with the consent of the donee.
  3. Under TPA however, a gift can only be revoked either with an express mutual agreement between the parties or by recission of contract. The donor under no circumstances can revoke the gift himself.
  4. Thus the donor has been given wider powers to revoke gift under Muslim Law than under TPA.

Gift to Minor
A minor is a person who has not yet achieved the age of majority. A minor is not competent to contract. This also implies that a minor cannot accept gifts. However, there are some provisions which make up the exceptions to this. They are as follows

Gift to Minor under Islamic Law
We have already seen above that under Islamic Law, a gift can be made to anyone who is in existence. Thus it is clear that a gift can be made to a minor as well.

Any gift given to a minor is legitimate. Although they might not be able to comprehend the legal ramifications, they are nevertheless competent donees because they are living, breathing people. However, the guardian of the minor donee must accept such presents for them to be considered genuine. Without the guardian's acceptance, a gift is useless.

The guardians of a minor donee are listed below in priority order for the purpose of accepting the gift:
  1. Father
  2. Father's executor
  3. Paternal grandfather
  4. Paternal grandfather executor
Therefore, the paternal grandfather is not permitted to accept the gift on the child's behalf when the father is present. In the absence of all of the aforementioned guardians, the gift is accepted by the "guardian of the property of minor."

If a guardian gives something to his ward themselves, he must declare it as a gift and be able to receive it since he is the guardian of the minor.

It should be highlighted that the mother is not acknowledged as the guardian of her minor child's property in this situation. The gift cannot be accepted on behalf of her underage child, hence she is not permitted to do so.

When a present is given to a minor, the gift is only considered complete if the guardian has really taken possession of the item on their behalf. The gift is rendered useless and void if it is acquired by anyone else who is not a legal guardian nor a de facto guardian[15].

Gift to Minor under TPA
Acceptance is a very important essential of a gift transfer/gratuitous transfer of property. Only a person who is competent to contract can accept a gift. This, however, does not mean that a gift cannot be made to a minor.

The gift must be received on the donee's behalf by a competent person if the donee cannot enter into a contract because he or she is a minor or insane. A guardian may receive the gift on behalf of his ward or a parent may do so on their child's behalf. When the reaches majority, he or she may refuse the gift in this situation.

If the minor accepts the gift, the property is transferred to him. If the minor, however chooses to reject the gift, the property is transferred back to the donor.

Comparison of Gift to minor between the two
In both the laws, a gift to minor is valid as long as the guardian of the minor, who is a competent to contract accepts the gift on his behalf. Also, the minor, upon attaining the age of majority, can either accept or reject the gift.

Thus the provisions relating to gift to minor are similar in both the laws.

Gifts are a transfer without consideration. Gift under TPA and Muslim/Islamic Law have the same meaning and are also very similar, but they have a few differences. Thus, the author has reached the following conclusions:
  1. The conditions and consequences for revocation of gift under TPA and hiba under Muslim Law are both different from each other.
  2. The concept and provisions relating to gift under TPA and hiba under Muslim Law are the same.
Thus, both hiba and gift are kinds of gratuitous transfer. Both are transfers without consideration. Although their essentials are very similar, and the way gift to minors operate are also similar, the way gifts are revoked are very different in both of them.

  1. Md. Hesabuddin v. Md. Hesaruddin, AIR 1984 Gau. 41
  2. Maimuna Bibi v. Rasool, Mian AIR 1992 Pat. 203
  3. AIR 1970 All. 170
  4. Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882
  5. Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882
  6. Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882
  7. Gomtibai v. Mattulal, Civil Appeal No.1519 (N) of 1980
  8. Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882
  9. Renikuntla Rajamma v. K. Sarwanammaa, Civil Appeal No. 4195 of 2008
  10. Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882
  11. Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882
  12. Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882
  13. Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882
  14. Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882
  15. Valia Peedikakkandi Kutheessa ... vs Pathakkalan Naravanath, 1964 AIR 275

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly