SVKM’S

NMIMS SCHOOL OF LAW

A PROJECT SUBMITTED ON;

GIFT UNDER ISLAMIC LAW

IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE MARKING

SCHEME, FOR TRIMESTER XI OF 2017-2018, IN THE SUBJECT OF
FAMILY LAW – II

SUBMITTED TO FACULTY:

MS. SHEELA NATRAJAN

FOR EVALUATION

SUBMITTED BY:

ANUSHKA SACHAN (A050)

RIDDHI TULSHIAN (A056)

B.B.A LL.B (HONS.)

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INTRODUCTION

Gift is a transfer of property where interest is transferred from one living person to another,
without any consideration. It is a gratuitous and inter vivos in nature. This is the general
definition that is accepted by all the religions, including Muslim law. As per the Muslim Law,
a gift is called as Hiba.

Under English laws, right in property is classified by a division on the basis of immoveable
and moveable (real and personal) property. Rights in land described as “estate” under English
Law do not always imply only absolute ownership but it also includes rights which fall short
of it and are limited to the life of the grantee or in respect of time and duration or use of the
same.

Under Hindu Law, gift is regarded as the renunciation of the property right by the owner in
the favor of donee. According to Jimutvahana, under Hindu law’s concept of gift, ownership
is not created by acceptance but by renunciation of the donor. But however Mitakshara school
of hindu law considers acceptance as an important ingredient for gift. The donor can divest
his interest by renunciation but cannot impose the same on the donee if he is not ready to
accept.

Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650
AD. In general, Muslim law draws no distinction between real and personal property, and
there is no authoritative work on Muslim law, which affirms that Muslim law recognises the
splitting up of ownership of land into estates. What Muslim law does recognize and insist
upon, is the distinction between the corpus of the property itself (called as Ayn) and the
usufruct in the property (as Manafi). Over the corpus of property the law recognises only
absolute dominion, heritable and unrestricted in point of time. Limited interests in respect of
property are not identical with the incidents of estates under the English law. Under the
Mohammedan law they are only usufructuary interest (and not rights of ownership of any
kind). Thus, in English law a person having interest in immoveable property for limited
periods of time is said to be the “owner” of the property during those periods and the usufruct
is also regarded as a part of the corpus. On the other hand, in Muslim law, a person can be
said to be an “owner” only if he has full and absolute ownership. If the use or enjoyment of
property is granted to a person for life or other limited period such person cannot be said to be
an “owner” during that period. The English law thus recognises ownership of the land limited

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in duration while Muslim law admits only ownership unlimited in duration but recognises
interests of limited duration in the use of property. This basically differentiates Muslim Law’s
concept of property and gift from that of English Law.

Under Muslim Law, the religion of the person to whom gift is made is not relevant. In India,
there is a separate statute that governs the matters related to transfer of property. The Transfer
of Property Act, 1882 under Chapter VII talks about gifts and the procedure for making the
same. Yet as per section 129 of the Act, the Transfer of Property Act, 1882 does not apply to
the Muslims making gift.

WHAT IS HIBA?

A Hiba or a gift under Muslim law literally means “the donation of a thing from which the
donee may derive benefit”.

Eminent jurists of Muslim law have defined gift in various ways. Mulla describes it as :1

MULLA : Gift is a transfer of property, made immediately and without any exchange, by one
person to another, and accepted by or on behalf of the latter.

The importance of Hiba or gift in Muslim law lies in the fact that whereas Muslim law allows
testamentary disposition within the limit of one-third only, a gift inter vivos (especially of a
gift as opposed to a legacy) between living people) may be made without any restriction.
Muslim Law allows a person to gift away the whole of his property during his lifetime.2

ESSENTIALS OF A HIBA

The essential elements of a gift under Muslim Law are clear and well settled. They are:

 Declaration of the gift by the donor

 Acceptance of the gift, expressly or impliedly, by or on behalf of the donee
 Delivery of possession of the subject matter of the gift to the donee.

If any of the above elements is missing the gift is not complete and will be invalid in the eyes
of Muslim Law.

1
Syed Khalid Rashid, Muslim Law (Lucknow:Eastern Book Company)
2
Ibid.

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Declaration

Declaration does not simply mean an announcement of the gift but also entails that the donor
should have a real intention of making the gift. In V.P.K Umma v. P.N Kunhamu3 a
husband made a gift of immovable property by registered deed to his minor wife who had
attained puberty. The gift was accepted by her mother on her behalf. There was no guardian
alive to accept the gift. The gift deed was handed over to the minor wife’s mother in whose
house the husband and wife were living. The court stating that there was a complete intention
to divest ownership on the part of the husband, the donor to transfer the property to the donee
(his wife) held the gift complete and valid. A gift made with an intention to defraud the
creditors of the donor is voidable at the option of the creditors.4

Acceptance

The donee must accept the hiba for it to be valid. This acceptance must be express or implied
i.e. by conduct. However the gift of a debt to a debtor or his heir is valid without acceptance
and is not invalidated by the debtor’s refusal to accept the gift. When a gift is to a child from
his or her mother or father or from a guardian to a ward.

Delivery of Possession

When the donor makes a declaration of a gift and the donee accepts, then the possession of
the thing gifted should also be given to the donee. Such delivery of possession may be actual
or constructive. It was held in M.M Khan v. S.A Khan5 that it is essential to the validity of a
gift under Mohammedan law that there should be delivery of such possession as the subject of
the gift is susceptible of. In other words the taking of the possession of the subject matter of
the gift by the donee either actually or constructively is necessary to complete a gift. In case
there is more than one donee, possession by one donee is presumed to be in the name and on
behalf of the other co-donees.

3
AIR 1964 SC 275.

4
M.Hidayatullah and Arshad Hidayatullah, Mulla’s Principles of Muslim Law (Bombay: N.M
Tripathi Private Limited,1990)
5
(1971)3 SCC 810.

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Registration of a gift deed does not in any way do away with the need for delivery of
possession.

There are certain cases when delivery of possession is not necessary and the gift is valid even
without delivery of possession. They are:

 When the donor and donee reside in the same house.

 A gift made by a husband to his wife.
 A gift from a guardian to a ward or from a mother or father to their child.
 When the subject of the gift is already in possession of the donee.

Donors under Muslim Law

Every Muslim male or female, who is a major and sane, may make a gift, provided he or she
is not subject to any force or fraud. A married Muslim female can also make a gift.

Donees under Muslim Law

A gift may be made in favour of the following:

1. Any living person who is capable of holding property.

2. A gift to a child in the womb is valid provided that the child is born within six months
from the date of the gift, because, in that case, it is presumed that the child actually
existed as a distinct entity in the womb.
3. A gift of a limited interest in the usufruct of the property may be made to an unborn
person provided that such person is in existence when the interest opens out for him.
4. Gifts may be made validly to juristic persons such as mosques, dargahs and charitable
institutions like schools.
5. Gifts may be made to non-muslims. The gift property will be subject to the personal
law of the donee once he gets possession of it.

Subjects of Hiba

All mal or forms of property over which control may be exercised are proper subjects of gift.
These include all mal, whether ancestral or self acquired, movable or immovable, corporeal or
incorporeal.

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Registration of Gifts

Under Muslim Law a gift may be oral or written. As Muslim law recognizes oral gifts thus a
gift under Muslim law need not be registered. As section 129 of the Transfer of Property Act,
1882 exempts Muslims from the provisions of Section 123 of the same act a gift under
Muslim law cannot be invalidated for want of registration. In Mohammed Hesabuddin v.
Mohammed Hesaruddin6 the court observed that it cannot be taken as sine qua non in all
cases that wherever there is a writing about a Mohammedan gift of immovable property there
must be registration thereof. The facts and circumstances have to be taken into consideration
before determining whether the gift requires registration or not. In Nasib Ali v. Wajed Ali7 it
was held that a gift deed executed by a muslim who has made a gift in accordance with the
provisions of Muslim law is merely evidence of a complete gift and as such is not
compulsorily registrable and is admissible in evidence notwithstanding the bar laid down by
sections 17 and 49 of the Indian Registration Act, 1908.

Gift of Corpus (Ayn) and Usufruct (Manafi)

What Muslim law does recognize and insist upon is the distinction between the corpus of the
property itself and the usufruct of the property. Over the corpus of the property the law
recognizes only absolute dominion, heritable and unrestricted in point of time, and where a
gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the
condition is rejected as repugnant, but interest limited in point of time can be created in the
usufruct of the property and the dominion over the corpus takes effect subject to any such
limited interests.8

Conditional, Contingent and Future Gifts

Conditional Gifts may be of two types:

 Conditional Gifts– Conditional Gifts or gifts that are suspended on a condition are
invalid, unless the condition is such that it can be fulfilled immediately, in which case
it constitutes the acceptance.

6
AIR 1984 Gau 41
7
AIR 1927 Cal 197
8
Mohsin Ali v. State of Madhya Pradesh (1975)2 SCC 122

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  Gifts with conditions– If a gift is made subject to a condition which comes in the way
of full ownership of the gifted property, the gift is valid but the condition is void. If a
house is gifted on the condition that it shall not be sold then the restraint on alienation
is void and the house belongs absolutely to the donee. In Mohammed Narizuddin v.
Govindarajalu Appah9 the court considered the validity of a gift with a condition
restraining alienation under Muslim law as well as under the Transfer of Property Act,
1882 and held that it was not possible to put restraints on alienation.

Contingent Gift

A hiba cannot be made to take effect on the happening of a contingency or a future uncertain
event. All contingent gifts are void. Only a gift of an insurance policy which may be
contingent in nature is valid owing to the operation of Section 38(7) of the Insurance Act,
1937.

Future Gift

A hiba must be of existing property. It cannot be made to take effect at any future time,
whether such time is definite or indefinite.

Gift through the medium of trust

A gift may be made through the medium of trust. The same conditions are necessary for the
validity of such a gift as those for a gift made directly to the donee with the difference that in
the case of a gift through the medium of trust the gift should be accepted by the trustees and
possession should also be delivered to the trustees. A Mohammedan cannot through the
medium of trust settle property for the benefit of persons who are incapable of taking under
the law of gift, nor can he through a trust create an estate not recognized by the law of gifts of
the sect to which he belongs.

Revocation of Gift

According to Muslim Law all voluntary transactions are revocable.  Thus gifts may also be
revoked. A gift may be revoked by the donor at any time before delivery of possession. The
reason is that the gift is not a gift before delivery of possession and hence the rules relating to

9
AIR 1971 Mad 44

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gifts do not apply to it. When a gift is complete and the subject matter of the gift is duly
transferred to the donee revocation of the gift is possible only through intervention of the
court of law or by the consent of the donee.

In the following cases a completed gift cannot be revoked even by the court or through the
consent of the donee:

 Where it is made by the husband to his wife or vice versa

 Where the donor and donee are related to one another within the prohibited degrees by
consanguinity
 Where the donor or donee dies
 Where the thing given is destroyed or lost
 Where the thing given has passed out of the donee’s possession by gift, sale or
otherwise
 Where the thing given has increased in value
 Where the thing given has so changed that it cannot be identified
 Where the donor has received a return (ewaz) for the gift
 Where the gift amounts to a sadaqa

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Conclusion

The conception of the term gift and subject matter of gift has been an age old and traditional
issue which has developed into a distinct facet in property law. Different aspects related to
gift in property act and its distinction with the Mohammedan law and its implications has
been the major subject matter of this article. In considering the law of gifts, it is to be
remembered that the English word ‘gift’ is generic and must not be confused with the
technical term of Islamic law, hiba. The concept of ‘hiba’ and the term ‘gift’ as used in the
transfer of property act, are different.

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