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Gifts under Muslim Law: Validity And Types

The scope of this study is limited to Muslim Law only. The concept of Gifts under Muslim Law is known as 'Hiba'. Through this paper, the researcher has tried to understand, & analyze the core concept of Gifts along with the assistance of case laws. The position of Gifts under various governing laws like the Transfer of Property Act, 1872, Indian Succession Act, 1925 has also been touched upon.

This paper also includes the different kinds of Gifts under Muslim Law, the constitutional validity of an Oral Gift, and how the revocation of a Gift takes place. The researcher, by this study, intends to gain more insights & create awareness about Gifts under Muslim Law as it is a very wide & broad topic. In the end, the paper ends with a conclusion & bibliography.

Introduction
A hiba or gift is:
a transfer of the property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter. [1]

Basically, it is a gratuitous transfer of property by the act of parties along with the rights & absolute interest without paying any consideration, if any consideration paid, the transfer would be deemed as void.

The concept of Gift has been there since 600 A.D. The basis of the principle of gift is the Prophet's saying, Exchange gifts among yourselves so that love may increase.[2] A hiba or gift is governed only by Muslim Law because the provision of gift under Transfer of Property Act, 1882 does not apply to it. In Muslim law, there is no concept of wills, i.e., a person is not allowed to make wills.

The only exception to this is a person can only transfer one-third of the property by will & that too a stranger. The reason for this rule is that the shares of every individual under Muslim Law has already been defined in the Quran, so, a Muslim individuals cannot alter with the share of individuals. But there is no limit on a Muslim individual gifting its property but one-third of property can be transferred through a will. The difference between a gift & a will is, a gift is transferred inter vivos, i.e. by one living person to another living person without any compensation whereas in a will the property is divided after the death of the will-maker.

The concept of property and gift in Muslim Law differs from English Law. In Muslim Law, there is no difference between real and personal property rather there is a difference between Corpus of Property and Usufruct of Property which is recognized by Muslim Law. Corpus refers to the absolute right to own the inherited and unlimited property, while Usufructs refers to the right to use and enjoy the property.

Objective of Study
The objective of this study is to address the research questions by understanding & analyzing the core concept of Gift under Muslim Law. The researcher, by this study intends to gain more insights & create awareness about Gifts under Muslim Law as it is a very wide & broad topic.

Research Questions
  1. What is the concept & what are the essentials of a Gift?
  2. What are the different types of Gifts?
  3. What is the Constitutional Validity of an Oral Gift?
  4. How the Revocation of a Gift takes place?

Research Methodology
The researcher has used doctrinal method i.e. reference from available primary sources like Acts, Rules, and Regulations to study the present questions in hand. The researcher has also taken reference from secondary sources like books, e-books, commentaries, articles, notes, comments, and other writings articles and newspaper reports to understand the issue regarding Gifts under Muslim Law with the intention of presenting a holistic view. The researcher has made extensive use of case laws in this paper, to discern a trend in the judicial pronouncements.

Chapter I: Concept & Essentials of a Gift

Gift is the transfer of certain existing movable or immovable property made on a voluntary basis and without consideration by one person named the donor to another named the donee and accepted by or on behalf of the donee, followed by an immediate surrender of the possession of the gift subject. Gift is therefore the transfer of property. The transferor shall be entitled to all the rights of the donor via this transfer.

The donor shall have the title, the right to own and enjoy the property, and the right to sell it at his own pleasure if he is otherwise competent to do so. 'Gift' has a wider meaning than Hiba, but it is usually understood as 'Hiba'. Hiba is defined as 'a gift of something the donor can draw a profit from.' It is also explained as an unconditional transfer of property made without any exchange or consideration by one person to another and accepted by or on behalf of the latter.
  • Essentials
    There are three essentials of a valid gift:
    1. Declaration (Ijab) by the donor.
    2. Acceptance (Qubool) by donee.
    3. Immediate delivery of possession of the property (Qabza).
      Before jumping onto the essentials, it would be apposite to have a look at a couple of requirements which are: Parties to the gift (The Donor and The Donee) and the subject matter of gift.

      The Donor is any Muslim, who is experienced and knowledgeable, and competent to enter a contract, can donate his belongings. Many people in ordinary cases are 18 years of age when gift competencies are determined and 21 years after the court has appointed the guardian.

      The Donee is someone to whom the competence to contract is not an essential requirement. A donee can be a minor or even a person with an unsound mind. The only requirement is that he be a legal person capable of holding property. A mosque is a legal person and is competent to be a donee. The Donee may be of any sex, age, or religion. He might be a relative or even a stranger. Property may be validly donated to a female regardless of her marital status.

      The first essential to the completion of the gift is the offer and the second is acceptance of the gift. The acceptance must be followed by immediate delivery of possessions. If these three conditions are satisfied, the gift shall be valid and complete.
       
  • Declaration
    Without any haziness, the offer to make a gift must be clearly consensual and expressed deliberately. For a gift to be termed as valid, the declaration is one of the pre-requisites.[3] One of the key aspects is that this declaration, from the point of view of donor, must not be ruined with a mala-fide intent to defraud rather it must be real and bonafide.[4]

    The declaration requires some witnesses or statements stating the gifting of the property by the donor to the donee, without which it cannot be made in segregation.[5] In Mohammad Mustafa v. Abu Bakr, it was laid by the court that, any gift made under any sort of force or undue influence or by fraud cannot be termed as a declaration and the gift made was void.[6]
     
  • Acceptance
    Another requisite is to accept the gift by a competent donee or a competent person on his behalf. In Musa Miya v. Kadar Bux, the donor declared the gift to his grandchildren in front of his friends. Nonetheless, as there was no acceptance by the father for the delivery of possession of the property, it was held that if the father is alive and the sole legal guardian, only he can act as a guardian of the property of his minor sons and without his acceptance the gift would be invalid and therefore, the gift was held to be incomplete and invalid.[7] If the gift is accepted by the mother, then also it is considered to be invalid and incomplete.[8]

    If the minor is under the care and protection of a person other than the guardian, he can only validly accept the donation on behalf of the minor because there is no guardian. But in the case of a younger girl married to her husband after having obtained puberty, the husband may, even with his father's presence, validly accept the gift for her.
     
  • Delivery of Possession
    The delivery of possession must complete the other two requisites. It could be either actual or constructive. Here, there is a distinction in the understanding of a gift from The Transfer of Property Act, 1882. In this, there is no talk of urgent delivery of possession and it can be done at a later stage physically depending upon the agreement without altering the authenticity of the gift. However, in Muslim law, the delivery of possession is an important aspect of a gift.

    And the gift becomes valid only after the possession of it.[9] The donor must not leave any stone unturned in divesting himself from the ownership and control of the property to donee. In the case that the gift is written and the gift act is a statement that possession was delivered, the property would be a delivery of possession if it was given and acknowledged by the donor, but mere admission to the deed without further proof that the possession was given would not be definitive in deciding the delivery.[10] Following are the criterias for the validity of a gift which were laid in Abdul Rahim v. Sk Abdul Zabar:
    1. Donor should be sane and major and must be the owner of the property which he is gifting;
    2. The thing gifted should be in existence at the time of Hiba;
    3. If the thing gifted is divisible, it should be separated and made distinct;
    4. The thing gifted should be such property to benefit from which is lawful under the Shariat;
    5. The thing gifted should not be accompanied by things not gifted, i.e., should be free from things
    6. which have not been gifted;
    7. The thing gifted should come in possession of the donee himself or of his representatives, guardian, or executor.[11]

     
  • Chapter II: Types of gifts

    There are several kinds of Hiba:

    1. Hiba-bil-iwaz (with exchange)
      Muslim law also recognizes gifts with an exchange, as it differs from simple gifts. These gifts have two essential elements and are called hiba-bil-iwaz:
    2. the goodwill intention of the donor to give the gift and to divest themselves of their full rights over the property, and to give it to the donee
    3. payment by the donee of the consideration.

      There is a donor and a donee relationship in a regular hiba-bil-iwaz. The donor makes the gift, and the donor takes the donor into account, but the donor is the main subject. A real hiba-bil-iwaz is a gift in which iwaz is indeed another self-supporting gift. This second gift is not mentioned in the first gift but is a return instead of the first gift. These, therefore, are two separate and independent gifts in which the parties are identical, but the donor in one is the donee in another.

      It is worth noting here that the delivery of the property is not an essential requirement. therefore, hiba-bil-iwaz is an important means to make a present of Mushaa in an estate that can be legally split. Mushaa is an undivided share in the property.[12]

      Bona-fide consideration is of utmost importance of Hiba-bil-iwaz, without which, the gift would be simple. It may be in form of money, relinquishment of a claim, etc but not of love, affection, and care. It can also be treated as a sale where the consideration is more than Rs. 100 a hiba-bil-iwaz must be affected with the help of a written, attested, and registered document.[13]
       

Hiba-ba-shart ul-iwaz

Gifts made with a stipulation for a return from the side of the donee become irrevocable once the stipulation is fulfilled. A Hiba-ba-shartul-iwaz is a gift that is supposed to be given with a promise of return. This promise that the donee must perform until the gift is revoked but when performed, the gift is irrevocable. Where the gift is of an undivided share in the property, without delivery of property it is invalid.

Sadaqah

'Sadaqah' is mainly a religious gift. Supply of ownership shall be an obligatory prerequisite for the validity of Sadaqah. A simple gift can be withdrawn, but Sadaqah cannot be withdrawn. In the case of this gift, as it is generally understood, love and affection can prevail towards the donee, or like a return for services provided by the donee in the past, or maybe a simple act of gratuitousness or benevolence, or in the future, it can be expected by favor or reward. In addition to these materialistic or human desires, the purpose may also be religious merits or simply the public benefit. The supply of possession is an obligatory requirement for the validity of the Sadaqah and it admits no exceptions other than a simple gift. Thus, Sadaqah is not valid if the subject of a gift is an indivisible share in the property.

Ariyat

'Ariyat' is a gift of the right to use the product for a certain period on a particular estate and may be revoked to the grantor's delight. Indeed, it is more like a license. It is personal and neither inherited nor transferable. They are revocable and confer no right on the grantor in the corpus, but only on the revenues derived from the property or profit. For a simple gift, all incidents of ownership of the property will be transferred. It shall be a transfer of property itself.

Waqf

Waqf is a continuous consecration of the property to God for the property's usufruct to be used for religious, religious, or charitable purposes. The revenues that may be used for the desired purposes only come from the property. The Waqf estate is inherent in a permanent commitment and therefore irrevocable.

Chapter III: Constitutional Validity of an Oral Gift

A gift may be either oral or written. If the declaration, valid acceptance followed by the immediate delivery of possessions, fulfilled all the essential elements of a valid donation, i.e. there was no reduction of any of the aspects to writing, it shall remain perfectly valid.[14] A gift can be written or registered but it would nevertheless be invalid if it does not comply with the basic requirements. The mere letter or registration would not remedy the defect of an invalid gift otherwise.[15]

A gift can therefore be validly made orally or reduced to writing, and if it is written it would be valid even if it were not attested or registered. Even a name change is not necessary if the gift is otherwise valid. An immovable gift made by a non-Muslim under the Law on the Transfer of Property of 1882 shall be made by at least two competent witnesses and registered in writing.

In Fatmabibi v. Abdul Rehman Abdul Karim, the husband gave his wife an oral house gift. In the event of a dispute concerning the validity of this gift, the Court held that the gift fulfilled only one condition, that is, a statement, and because the other two conditions were not present, i.e. the acceptance and delivery of the possession, the gift was invalid.[16]

In the event of a dispute, an oral gift must be conclusively demonstrated explicitly. The three fundamental ingredients of a valid gift, namely declaration, acceptance and delivery of ownership, and other factors, must be demonstrated here. It must be demonstrated that the donated property is not owned by the donee on the date of the dispute, but that the donee must immediately deliver the possession on the date the gift is made.

If the gift is not shown to have taken possession of the property, it is not significant that the alleged Donee took care of this property during his lifetime, released the owner's debts, executed his last rites and was allowed to take over for a full year following his death. Even a Panchayat notice is inadequate to make him pay house tax and what he must demonstrate is when the gift has been made to him and how.

Chapter IV: Revocation of a Gift

Usually, the overturning of a gift is repealable until the gift is complete. This means that the donor can withdraw its offer until everything essential to the gift is fulfilled. The gift becomes complete when the land is in possession, but it can be withdrawn even after its completion, as a purely voluntary transaction.

With the consent of the donor, or without his consent, by a court decree, the cancellation of a gift may occur. The right to cancel shall be held solely by the donor, and his heirs can never do so.

A gift that has been completed in the manner specified by law would be irrevocable in the following cases:

  1. when either the donor or the donee is dead.
  2. where the donor and the donee are husband and wife or vice versa.
  3. where the donor and donee are within prohibited degrees of relationship.
  4. where the donor has received a return for the gift.
  5. 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.
  6. 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.
  7. where the gift has substantially increased in value.
  8. where the gift was for obtaining religious merit (Sadaqah)
It is therefore an irrevocable gift from one man to his wife, from one brother to his sister, from one father to another. Likewise, the gift may not be revoked if the donator sells the object or dies after the gift.

Under Shia law, a gift to any blood relationship whether it is irrevocable. However, the gift is revocable where the donor and the donee are part of the husband and the wife relationship. So, a Muslim's gift to the daughter of the sister of his father (the first cousin), under Shia law, is irrevocable but can be repealed according to Sunni law. On the contrary, under Sunni law a gift from the man to his woman is irrevocable and under Shia law can be revoked.

A mere statement or cancellation of the gift act shall not cancel the gift unless the donor has given it its consent and a court decree are essential for a valid cancellation of the gift. However, according to Shia law, even a mere assertion of cancellation by the donor would suffice to render a legitimate cancellation and the court would not be required.[17]

Conclusion:
The idea of the gift and the subject of the gift was a traditional issue of age that has evolved into a separate facet of property law. The primary focus of the present study was on the various aspects of gift by law and its distinction with and implications of the Mohammedan law. When it comes to the gift law, it should be recalled that the English word gift is generic and should not be mistaken for the technical term of Islamic law, hiba.

There is a different concept of 'hiba' and the term 'gift' as it was used in the transfer of property law. As we saw in the project, three essential elements need to be found under Muhammadan law.

This noticeable difference between the two gift laws forms the core of this paper is acknowledging its implicit ramifications. To conclude, the researcher can say that the gift is an offer by the donor to give a thing and accept it by the donee. It is therefore an immediate, non-exchange transfer of property. The donor must have a clear will to transfer the property to the donor for a valid donation. The donor may cancel it.

End-Notes:
  1. Mulla: Principles of Mahomedan Law, Updated 20th Edition, Chapter XI: Gifts.
  2. Al-Marghinani, Burhan al-Din; Al-Hiadaya, Quran Mahal, Karachi Vol. III, p. 283.
  3. State of Uttar Pradesh v. Sayed Abdul Jalil, MANU/SC/0402/1972.
  4. Sultan Miya v. Ajibakhatoon Bibi, (1932) 59 Cal 557.
  5. Ratan Lal Bora v. Mohd. Nabiuddin, AIR 1984 AP 344.
  6. MANU/SC/0357/1970.
  7. AIR 1928 PC 108.
  8. Ghulam Hussain Kututubuddin Maner v. Abdul Rashid Abdulrajak Maner, MANU/SC/2742/2000.
  9. Baillie, Digest of Mohammedan Law, 1875, p. 508; Mulla's Principles of Mahomedan Law, 19th edn., (ed. M. Hidayatullah and Arshad Hidayatullah), 1990, p. 118.
  10. Abu Khan v. Moriam Bibi, (1974) 40 CLT 1306 and Atmaram v. Girdhari Lal, 1972 Andh WR 125.
  11. AIR 2010 SC 211.
  12. Aqil Ahmad, Mohammadan Law, 17th edn., (ed. IA Khan) 1995, p. 179; Mulla's Principles of Mahomedan Law, 19th edn. (ed. M. Hidayatullah and A. Hidayatullah), 1990, p. 128.
  13. Gopal Das v. Sakina Bibi, AIR 1936 Lah 307.
  14. Abdul Sattar v. Additional District Judge, 1978 All LJ 543.
  15. Ram Niwas Todi v. Bibi Jabrunnissa, MANU/SC/1274/1996 decided on 6 August, 1996.
  16. AIR 2001 Guj 175.
  17. Karim Bi v. Mariam Bi, 1960 Mad 447.

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