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
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.
A hiba or gift is:
a transfer of the property, made immediately, and without
, by one person to another, and accepted by or on behalf of the
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. 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
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.
- What is the concept & what are the essentials of a Gift?
- What are the different types of Gifts?
- What is the Constitutional Validity of an Oral Gift?
- How the Revocation of a Gift takes place?
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
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.
There are three essentials of a valid gift:
- Declaration (Ijab) by the donor.
- Acceptance (Qubool) by donee.
- 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
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
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. 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.
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. 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.
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. If the gift is accepted by the mother, then also it is considered to
be invalid and incomplete.
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. 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. Following are the criterias for
the validity of a gift which were laid in Abdul Rahim v. Sk Abdul Zabar:
- Donor should be sane and major and must be the owner of the property
which he is gifting;
- The thing gifted should be in existence at the time of Hiba;
- If the thing gifted is divisible, it should be separated and made
- The thing gifted should be such property to benefit from which is lawful
under the Shariat;
- The thing gifted should not be accompanied by things not gifted, i.e.,
should be free from things
- which have not been gifted;
- The thing gifted should come in possession of the donee himself or of his representatives, guardian, or
Chapter II: Types of gifts
There are several kinds of Hiba:
- 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:
- 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
- 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.
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.
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' 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' 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.
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. 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.
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.
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
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:
- when either the donor or the donee is dead.
- where the donor and the donee are husband and wife or vice versa.
- where the donor and donee are within prohibited degrees of
- where the donor has received a return for the gift.
- 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.
- 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.
- where the gift has substantially increased in value.
- 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.
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.
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.
- Mulla: Principles of Mahomedan Law, Updated 20th Edition, Chapter XI:
- Al-Marghinani, Burhan al-Din; Al-Hiadaya, Quran Mahal, Karachi Vol. III,
- State of Uttar Pradesh v. Sayed Abdul Jalil, MANU/SC/0402/1972.
- Sultan Miya v. Ajibakhatoon Bibi, (1932) 59 Cal 557.
- Ratan Lal Bora v. Mohd. Nabiuddin, AIR 1984 AP 344.
- AIR 1928 PC 108.
- Ghulam Hussain Kututubuddin Maner v. Abdul Rashid Abdulrajak Maner,
- 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.
- Abu Khan v. Moriam Bibi, (1974) 40 CLT 1306 and Atmaram v. Girdhari Lal,
1972 Andh WR 125.
- AIR 2010 SC 211.
- 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.
- Gopal Das v. Sakina Bibi, AIR 1936 Lah 307.
- Abdul Sattar v. Additional District Judge, 1978 All LJ 543.
- Ram Niwas Todi v. Bibi Jabrunnissa, MANU/SC/1274/1996 decided on 6
- AIR 2001 Guj 175.
- Karim Bi v. Mariam Bi, 1960 Mad 447.