DR.

RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY

FAMILY LAW
IV SEMESTER

GIFTS UNDER MUSLIM LAW

SUBMITTED TO - SUBMITTED BY-

Ms SAMREEN AHMED SHAURYA DEV SINGH

ASSISTANT PROFESSOR (LAW) ROLL NO: 180101122

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 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Ms Samreen Ahmed for her guidance and constant supervision as
well as for providing necessary information regarding the project & for his support in
completing the project.

I would like to express my gratitude towards my parents and members of Madhu Limaye
Library for their kind co-operation and encouragement, which helped me in completion of
this project.

My thanks and appreciations go to my colleague in developing the project and people who
have willingly helped me out with their abilities.

I welcome any criticism and suggestions by the people who go through it, for the
improvement of my future projects.

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 TABLE OF CONTENTS

INTRODUCTION 4

ESSENTILAS OF VALID GIFT 5

CONTITUTIONAL VALIDITY OF ORAL GIFTS 9

WHO CAN MAKE A GIFT 11

IN WHOSE FAVOR? 11

TYPES OF GIFTS 12

REVOCATION OF GIFTS 15

CONCLUSION 16

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 INTRODUCTION

Gift is the transfer of movable or immovable property with immediate effect and without
consideration by one person called the donor to another person called the donee and the
acceptance of the same by himself or by someone authorised on his behalf, provided that
making the gift must totally renounce all his title and rights in the property gifted away of his
independent free will [1].

Definitions of Hiba by various authors:

Mulla: Gift is transfer of property, made immediately, and without any exchange, by one
person to another, and accepted by or on behalf of the latter [2].

Fyzee: Hiba is the immediate and unqualified transfer of the corpus of the property without
any return [3].

Baillie: The conferring of a right in something specific without an exchange.

The basis of the principle of gift is the Prophet’s saying, “exchange gifts among yourself so
that love can increase” [4].

In Ranee Khujooroonissa v. Roushun Jehan, the Privy Council observed that, “ The policy
of Muhammadan Law appears to be to prevent a testator interfering by will with the course of
the devolution of property according to law among his heirs, although he may give a
specified portion, as much as a third, to a stranger. But it appears that a holder ofproperty
may, to a certain extent, defeat the policy of law by giving in his lifetime the whole or any
part of his property to one of his sons, provided he complies with certain forms” [5] .

1. Dr. Tanzir-ur-Rahman, A Code of Muslim Personal Law Vol II at p. 1.

2. Mulla, at p. 150.
3. Fyzee, at p. 218.
4. Al- Maghhinani, Burhan al-Din; Al-Hiadaaya, Quran Mahal, Karachi Vol III, at p. 283.
5. Ranee Khujooroonissa v. Roushun Jehan, (1876) 3 IA 291 : (1876) 2 Cal 184 at 307.

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 ESSENTIALS OF A VALID GIFT
Writing and registration are not necessary for the validity of a gift. It may be oral or in
writing. In Syed Mohd. Salim Hashmi v. Syed Abdul Fateh [6], the validity of oral judgements
has been upheld. It was observed that the Muslim Law “permits an oral gift, but to make a
gift valid the following three essentials must co-exist:”

i. A declaration of gift by the donor,

ii. Acceptance of the gift express or implied, by or on behalf of the donee, and
iii. Delivery of possession of the subject of the gift by the donor to the donee. Delivery of
possession need not in all cases be actual. It should be delivery of such possession as
the subject of the gift is susceptible.

However, this case has been distinguished by the same Patna High Court later in Madhurani
Singh v. Subhash Chandra Ghosh[7]. In this case the case of the opposite party was not
whether any oral Hiba was made in favour of petitioner or not. In case of oral Hiba
registration may not be required, but if there is a deed executed for giving any immovable
property in gift to someone, then it can only be registered document inasmuch as, an oral
Hiba has to be followed by delivery of possession, which alone can constitute valid transfer
under Muhammadan Law, as such, where the claim of gift is based on execution of a deed,
then in the absence of anything on record to show that it was followed by delivery of
possession, the same cannot effect transfer of any immovable property. Because, Section 49
of the Registration Act says that s document required by Section 17 of the Transfer of
Property Act is ineffective unless it is registered. That is, an oral Hiba is alright if it can be
proved independently, but if its existence is claimed in the basis of executed deed if
immovable property is involved. Because, said the court, what the section 129 of the Transfer
of Property Act saves is an oral Hiba, and not a Hibanama(Deed) executed.

The Kerala High Court, in M. Rawther v. Charayil[8] held, “A deed of gift by a Muslim
recording a gift made according to the three conditions laid down by Muslim Law is merely
evidence of a completed gift and as such is not compulsorily registerable and is admissible in
evidence notwithstanding Section 17 and 49”.

6. Syed Mohd. Salim Hashmi v. Syed Abdul Fateh, AIR 1972 Par 279.
7. Madhurani Singh v. Subhash Chandra Ghosh (1998) 1 BLJR 552.
8. M. Rawther v. Charayil AIR 1972 Ker 27.

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Following are the essentials of a valid gift[viii]-

1. A declaration by the donor:

There must be a clear and unambiguous intention of the donor to make a gift. A
declaration is a statement which signifies the intention of the transferor that he intends to
make a gift. A declaration can be oral or written. The donor may declare the gift of any
kind of property either orally or by written means. Under Muslim law, writing and
registrations are not necessary.

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul[9], it was held that under
Muslim Law, declaration, as well as acceptance of the gift, may be oral whatever may be
nature of property gifted. When the gift is made in writing, it is known as Hibanama. This
gift deed need not be on stamp paper and also need not be attested or registered.[xi] In the
famous case of Md. Hesabuddin v Md. Hesaruddin[10], where the gift was made by a
Muslim Woman and was not written on a stamp paper, Gauhati High Court held that the
gift was valid.

The declaration made by the donor should be clear. A declaration of Gift in ambiguous
words is void. In Maimuna Bibi v. Rasool Mian[12], it was held that while the oral gift is
permissible under Muslim law, to constitute a valid gift it is necessary that donor should
divest himself completely of all ownership and dominion over the subject of the gift. His
intention should be in express and clear words. According to Macnaghten, “A gift cannot
be implied. It must be express and unequivocal, and the intention of the donor must be
demonstrated by his entire relinquishment of the thing given, and the gift is null and void
when he continues to exercise any act of ownership over it.”.

The declaration should be free from all the impediments such as inducement, threat,
coercion, duress or promise and should be made with a bona fide intention.

9. (1994) 5 SCC 476.

10. AIR (1995) SC 1205
11. AIR (1984) Pat, 203

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2. Acceptance by the donee

A gift is void if the donee has not given his acceptance. The legal guardian may accept on
behalf of a minor. Donee can be a person from any religious background. Hiba in favor of
a minor or a female is also valid. A child in the mother’s womb is a competent done
provided it is born alive within 6 months from the date of declaration. A juristic person is
also capable of being a donee and a gift can be made in their favor too. On behalf of a
minor or an insane person, any guardian as mentioned under the provisions of Muslim
law can accept that gift. These authorized people include

 Father,

 Father’s Executor,

 Paternal Grand-Father, and

 Paternal Grand Father’s Executor.

3. Delivery of possession by the donor and taking of the possession by the done

In Muslim law, the term possession means only such possession as the nature of the
subject is capable of. Thus, the real test of the delivery of possession is to see who –
whether the donor or the donee – reap the benefits of the property. If the donor is reaping
the benefit then the delivery is not done and the gift is invalid.

The mode of delivery of possession depends completely upon the nature of the property.
Delivery of possession may either be: Actual, or Constructive.

1. Actual Delivery of Possession: Where the property is physically handed over to the
donee, the delivery of possession is actual. Generally, only tangible properties can be
delivered to the done. Tangible property may be movable or immovable. Under
Muslim law, where the mutation proceedings have started but the physical possession
cannot be given and the donor dies, the gift fails for the want of delivery of
possession. However, in such cases, if it is proved that although the mutation was not
complete and the done has already taken the possession of the property, the gift was
held to be valid.

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2. Constructive Delivery of Possession: Constructive delivery of possession is
sufficient to constitute a valid gift in the following two situations:

 Where the Property is intangible, i.e. it cannot be perceived through senses.

 Where the property is tangible, but it’s actual or physical delivery is not possible.

Under Muslim law, Registration is neither necessary nor sufficient to validate the gifts of
immovable property.  A Hiba of movable or immovable property is valid whether it is
oral or in writing; whether it is attested or registered or not, provided that the delivery of
possession has taken place according to the rules of Muslim Law.

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 CONSTITUTIONAL VALIDITY OF ORAL GIFTS
In Makku Rawther v. Manahapara Charayil[12], Justice V.R. Krishna Iyer held that oral gifts
of “secular” gifts as distinguished from gifts of “religious” nature should conform with the
requirements of writing, attestation, and registration as laid down in section 123 of the
Transfer of Property Act, 1882, in order to survive the scrutiny of Article 14 of Constitution.
By classifying gifts into religious and secular categories, this judgement imports into the
fabric of Islamic law something which was hitherto unknown. It therefore requires a close
consideration.

The question of whether the first exemption was constitutionally valid in regards to the right
to equality (article 14 of the Indian Constitution) was rather rapidly solved by the Courts,
validating the disposition on the grounds of ‘reasonable classification.

It is enough to say that it is now well settled by a series of decisions of this Court that while
Article 14 forbids class legislation, it does not forbid reasonable classification for the
purposes of legislation, and in order to pass the test of permissible classification, two
conditions must be fulfilled, namely[xxi]:

(1) That the classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group; and,

(2) That differentia must have a rational relation to the object sought to be achieved by the
statute in question.

The classification may be founded on different bases such as geographical, or according to

objects or occupations and the like. The decisions of this Court further establish that there is a
presumption in favour of the constitutionality of an enactment and the burden is upon him
who attacks it to show that there has been a clear transgression of the constitutional
guarantee; that it must be presumed that the legislature understands and correctly appreciates
the needs of its own people and that its laws are directed to problems made manifest by
experience and that its discriminations are based on adequate grounds; and further that the

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legislature is free to recognize degrees of harm and may confine its restrictions to those cases
where the need is deemed to be the clearest.

12. AIR 1972 Ker 27.

It is well known that there are fundamental differences between the religion and customs of
the Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding
gift are based on reasonable classification and the provision of Section 129 of the Transfer of
Property Act exempting Mahomedans from certain provisions of that Act is not hit by Article
14 of the Constitution.

The most essential element of Hiba is the declaration, “I have given”.  As per Hedaya, Hiba is
defined technically as[xxii]:

“Unconditional transfer of existing property made immediately and without any exchange or
consideration, by one person to another and accepted by or on behalf of the latter“.

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 WHO CAN MAKE A GIFT?

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

Where the female is a pardanashin lady, she is presumed to be ignorant of the result of her
acts. Thus where a pardanashin lady signed a gift deed believing it to take effect after death,
it was held that transaction was not voluntary, and deed was void.

IN WHOSE FAVOUR?

a) Any person incapable of holding property: a gift to unborn person is invalid.

b) Child in the womb: If born within six months from the date of date of the gift.
c) Unborn Person: A gift of limited interest in the usufruct to property (ariat) may be given
to an unborn person provided that the person is in existence when the interest opens for
him.
d) Juristic persons: Gifts made to modques, durgahs etc. are valid.
e) Non- Muslim: A gift may be made to non-Muslim. The gift property will be subject to the
personal law of the donee, once he gets possession of it.
f) Two or more persons: Where gift made to two or more persons without partition, the
validity is governed by doctrine of mushaa.

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 TYPES OF GIFTS
Gifts (hiba), in Muslim law, are of the following four kinds:

1. Sadaquah

2. Hiba-bil iwaz

3. Hiba-ba-shart-ul-iwaz

4. Ariyat

1. Sadaquah:

Where the object of the donor is to acquire merit in the eyes of the Lord and a recompense in
the next world, the gift is called Sadaquah. It is a gift with a religious motive. Like hiba, it is
not valid unless accompanied by delivery of possession. Unlike hiba, it cannot be revoked,
the reason being that the object of such a gift is acquisition of religious merit and that has
already been acquired.

Sadaquah is a transfer of property or rights in all respects like a hiba, except that —

1. In the case of Hiba, the object is to manifest affection towards the donee, or win his regard
or esteem. In the case of sadaquah, the object is to acquire merit in the sight of the Lord and
recompense in the next world.

2. Unlike hiba, a sadaquah, once completed by delivery of possession, cannot be revoked,

whether made to a rich or poor man.

3. Unlike hiba, sadaquah need not be expressly accepted.

Like hiba, sadaquah is not valid unless accompanied by delivery of possession; nor is it valid
if it consists of an undivided share (mushaa) in property capable of division. It is not invalid
if made to two or more persons, all of whom are poor.

2. Hiba-Bil-Iwaz:

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Hiba-bil-iwaz is a gift for a consideration. It resembles a sale in that (a) transfer of title is
complete without delivery of possession, and (b) all the incidents of sale attach to it,
including —(i) the liability of being pre-empted, where the law of pre-emption is in force,
and (ii) the right to return a thing for a defect.

To constitute a valid Hiba-bil-iwaz, the following two conditions must be present:

(a) Actual and bona fide payment of consideration (iwaz) on the part of the donee; and

(b) A bona fide intention on the part of the donor to divest himself in praesenti of the
property, and to confer it upon the donee.

A hiba-bil-iwaz literally means a gift for an exchange. It is of two kinds, namely

(i) the hibS-bil-IWa2 followed in India, and

(ii) the true hiba-bil-iwaz, as defined by older jurists. The true hiba-bil-iwaz of older jurists
consisted of two independent acts, namely, (a) hiba, or gift, and (b) iwaz or return gift, not
stipulated at the time of the gift.

Thus, if A, without having stipulated for a return, makes a gift of his book to B, and В in
consideration of the book, without having promised it, subsequently makes a gift of a rupee
to A, saying that it is iwaz or return for the gift of the book, and delivers the rupee to A, the
transaction is a true hiba-bil-iwaz, and neither A nor В can revoke it.

But in the hiba-bil-iwaz as practised in India, there is only one act, the iwaz or exchange
being involved in the contract of gift as its direct consideration. Thus, in the illustration given
above, if A says to В “I have given this book to you in consideration of your paying me a
rupee,” it is a hiba-bil-iwaz of India.

Thus, it is in reality a sale, while the true hiba-bil-iwaz is not a sale either in its inception or
completion. In fact, the Calcutta and the Lahore High Courts have held that a transaction of
this character is nothing but a sale, and that where it affects immovable property of the value
of a hundred rupees and above, it must be affected by a registered instrument, as required by
S. 54 of the Transfer of Property Act.

The hiba-bil-iwaz of India was introduced here by Muslim lawyers as a device for effecting a
gift of mushaa in property capable of division.

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3. Hiba-ba-Shart-ul-Iwaz:

Where a gift is made with a stipulation (shart) for a return it is called hiba-ba-shart-ul-iwaz.
As in the case of hiba, in the case of hiba- ba-shart-ul-iwaz also, delivery of possession is
necessary, and the gift is revocable until the iwaz is paid. On payment of iwaz (consideration)
by the donee, the gift becomes irrevocable. The transaction, when completed by payment of
iwaz is, however, not very common in India.

4. Ariyat:

An Ariyat is the grant of a licence, revocable at the grantor’s option, to take and enjoy the
usufruct of a thing.

The four essentials of an Ariyat are that (i) can be revoked; (ii) it must be a transfer of
ownership in the property; (iii) it must be for a definite period, and (iv) it does not devolve
upon the heirs of the donee on his death.

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 REVOCATION OF GIFT
Although there is a tradition which indicates that the Prophet was against the revocation of
gifts, it is a well-established rule of Muslim law that all voluntary transactions, including
gifts, are revocable.

Modes of Revocation

1. Revocation of gifts before the delivery of possession

2. Revocation of gifts after the delivery of possession

Revocation of gifts before the delivery of possession

Under Muslim law, all gifts are revocable before the delivery of possession is given to the
done. The fact of the matter is that under Muslim law no gift is complete till the delivery of
possession is made, and therefore, in all those cases where possession has not been
transferred, the gift is incomplete. The revocation of such a gift, therefore, merely means that
the donor has changed his mind and does not want to complete it by the delivery of
possession.

Revocation of gifts after the delivery of possession

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not
sufficient to revoke a gift. Until a decree of the court is passed revoking the gift, the donee is
entitled to use the property in any manner, he can also alienate it. [Mahboob vs. Abdul, 1964
Raj 250]

The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be
revoked by his heirs after his death. A gift can also not be revoked after the death of the
donee. (There are some exceptions in Hanafi School)

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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. As we have seen in the
project that Under Mohammedan law, to be a valid gift, three essentials are required to exist:

 Declaration of gift by the donor.

 Acceptance of the gift, express or implied, by or on behalf of the done.

 Delivery of possession of the subject of the gift.

The English law as to rights in property is classified by a division on the basis of immoveable
and moveable (real and personal) property. The essential elements of a gift are:

 The absence of consideration.

 The donor.

 The done.

 The subject-matter.

 The transfer; and the acceptance.

Thus this striking difference between the two laws relating to gift forms the base of this
project in understanding its underlying implications.

To conclude the researcher can say that, the gift is a contract consisting of a proposal or offer
on the part of the donor to give a thing and acceptance of it by the donee. So it is a transfer of

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property immediately and without any exchange. There must be a clear intention by the donor
to transfer the possession to the donor for a valid gift. It can be revoked by the donor. And the
provisions for the same have also been mentioned.

BIBLIOGRAPHY
Mulla: Principles of Mahomedan Law by Sir DInshaw Fardunji Mulla.

Syed Khalid Rashid: Muslim Law by V. P. Bhartiya

Tahir Mehmood: Muslim Law of India.

Poonam Pradhan Saxena: Family Law II.

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