CONCEPT OF GIFT UNDER HINDU

AND MUSLIM PERSONAL LAW

Under Hindu Law

Continued.
In modern Hindu law, a Hindu has full power of
alienation over his separate property. He may
make a gift intervivos or bequeath it.
Karta also has a power to make gift of small
portions of joint family property, as gifts made for
love and affection.
A Hindu female holder of Stridhan had power to
dispose of Stridhan by way of gift. Because of
section 14 of H. S. Act, 1956, now a female has
absolute power to making gift of all her properties.

Genesis of gift.
From the very beginning, (gifts) have been an important
aspect of Hindu Law. More of sanctity was attached from the
historical days to the relevance of gift.
The Hindu sages gave very wide powers to make gifts of
property.
Narada has put and categorize certain properties as not a
subject of gift in the following words: An anvahita (a type
of deposit), yachita (property borrowed for use), a
pledge, joint property, a deposit, a son, a wife, the
entire property of one who has offspring and what has
been promised to another man: these have been
declared by the spiritual guides to be inalienable by
one even in the worst plight. What is left (of the
property) after the expenses of maintaining the family
have been defrayed may be given. But by giving away
anything besides, a house holder will incur a censure.

definitions..
The modern Hindu law of gifts largely consists of chapter
II and chapter VII of transfer of property Act, 1882 and
partly of the case laws under the title of Hindu law of gifts.
Section 122, TPA Act, defines a gift as: gift is the
transfer of certain existing movable and immovable
property, made voluntarily and without consideration, by
one person called the donor, to another, called the donee,
and accepted by or on behalf of the donee.
According to Mitakshara, a gift is defined as : Gifts
consist in the relinquishment (without consideration) of
ones own right (property) and the creation of anothers
man right, and is completed on the acceptance of the gift,
but not otherwise.

Under old Hindu law

Under old Hindu law, no writing was
necessary for the validity of gift, rather
Hindu law insisted on delivery of
possession.
Mere registration was not enough.
If from the nature of the subject- matter of
delivery of possession could not be made,
it is enough to validate the gift, if the
donor did all that he could do to complete
it.

Current position
Under present law, delivery of possession is not compulsory, but a
strict adherence to the provisions of TPA, 1882 must be there to
complete the gift.
Section 123 of TPA, lays down the following formalities.
for the purpose of making a gift of immovable property, the transfer of
immovable property must be effected by a registered instrument
signed by or on behalf of the donor, and attested by at least two
witnesses. For the purpose of making a gift of movable property, the
transfer must be effected either by a registered instrument signed as
aforesaid, or by delivery.
Also, it is important to note that TPA, 1882 does not dispense with
the requirement that gift must be accepted by the donee.
It means, mere execution of gift deed without the acceptance
of the gift by the donee is not enough, same way,
requirement of delivery of possession is not an indispensable
condition.

Interpretations..
Gift to an unborn person:
gift to an unborn person was earlier not valid, but now it is
recognized and valid.
Now, the Hindu transfers and bequests act, 1960, a union
law, applicable to whole India except J& K, lays down the
rule that a gift can also be made to an unborn person.

Revocation of gift:
A gift, once made and completed in all respects cannot be
revoked by the donor unless it was obtained by fraud or
undue influence.
A gift made with the intention to defraud or delay, the
creditors, is voidable at the instance of the creditors.

Donatio mortis causa (Death bed gifts):

Under Hindu law, death bed gifts are valid, only requirement is that it should
conform to the essentials of law.
Their is no difference with respect to gifts made in contemplation of death
or other gifts.
Section 129 of TPA, excludes from its purview, gift of movable property
made in contemplation of death.
Section 191 of Indian succession Act, 1925 deals with donatia mortis causa
& runs as:
a man may dispose off by gift made in contemplation of death of any
movable property which he could dispose of by will. A gift is said to
be made in contemplation of death where a man who is ill, and expects to
die shortly of his illness, delivers to another the possession of any movable
property to keep it as a gift in case the donor shall die of that illness.
Such a gift may be rescinded by the giver. It does not take effect if he
recovers from the illness during which it was made, nor be made orally
or in writing, but the intention to pass the property in the thing given
must be clear and the property must be actually delivered and
accepted by the donee in the donors life time.

Gift under Muslim Law

HIBA

Introduction
In general terms, Gift can be defined
as conferment of property or transfer
of property to someone without
consideration.
Hiba in literal terms can be defined
as: donation of a thing from which
the donee may derieve a benefit.

Interpretation of definition
According to 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.
From this defintion following ingredients of gift are
carved out:
It is a transfer of determinate property.
It is a transfer made immediately.
A gift is always without consideration.
A gift must be accepted by the donee. In case if donee is
a minor, gift can be accepted by either donees natural or
legal guardian. In case if a wife is minor, below 15, her
husband wil be her guardian.
In case of a donor making the gift of a property or a
house, he must completely divest himself of all
ownership and dominion over the subject-matter of the
gift. And deliver the possession to the donee.

Requirements of a valid gift

1. Two parties to the gift. ( who can be a donor?)
. The donee. (who can be a donee?)
2. Subject-matter of gift: existence, any movable immovabe or
Incorporeal property.
3. Essential ingredients of making a gift.
. Declaration by the owner. (Ijab)
. Acceptance by the donee. (qabool)
. Immediate delievery of possession.(Qabza)
. The gift be regulated by the rules laid down in TPA, with
respect to movable or immovable property as the case may be.
. gift of future property void.
. Gift of existing property which is to take effect on a future date
void.

Interpretation
1. donor & donee.

Any body whos a major+ sound mind.

Donor must have ownership in property.
Position of a gift made by a woman(discuss)
In case of competency of donee, it is not an essential requirement. Donee
can also be minor or an insane person, the only requirement is that, he
should be a juristic person capable of holding property. In case if a donee
is minor or insane his father or LG musgt accept the gift on his behalf.
Donee can be of any faith, religion age , or can be a relative or a
stranger.
Property can validly be gifted to a female irrespective of her marital
status.
A valid gift can be made to a child in womb of his mother provided, it
is born withi person of various religion. n six months of the date of the
making of a suit.
A gift can be made to any one, even a non-muslim as well. religion of
donee is immaterial.

In Hussaina Bai v. Zohra Bai AIR 1960 MP

60: The Madhya Paradesh high court helod
that where the gift is made by a pardannashin
woman the donee must establish that she
understood the full nature and implications of
the transaction.
This rule is in tune with the equitable principle
that persons who have less or practically
negligible interaction with strangers due to
social customs need special protection for
their own benefit.

 In Ghulam Hussain Kutubuddin Maner v. Abdul

Rashid Abdulrajak Maner, AIR 2000 SC2742: It was
held that if through a declaration, the offer of gift is made
to minor sons, the acceptance must come from the father
failing which the gift would be incomplete and therefore
void.
What if the acceptance is made by a person other
than the guardian?
If a minor is under the care and protection of a person
other than his guardian, then only because he has no
guardian, such person can validly accept the gift on
behalf of the minor. (Headya, Hamiltons translation,
Gracy London, 1870, p. 484.)

2. Subject matter of gift

The subject matter of gift must be in existence on the date of making
of gift. Also, gifts cannot be made with respect to future property.
Gift can also be made with respect to incorporeal property such as
zamindari rights ( now inoperative), right to receive a specific share
in the offerings made by pilgrims at a specified shrine, negotiable
instrument, IPR etc.
Under Muslim Law, a gift of existing property but operative on a
future would be void. The reason is that immediate delivery of
possession of property is one of the essential condition for its validity.
Gift of an Insurance policy is also valid. For ex, a husband may assign
his insurance policy to his wife by a valid endorsement that on a
condition that in the event wife predeceased him, this assignment
shall become null and void.
Can arms and ammunitions be also gifted?

3. Essential ingredients of a valid

gift
Declaration: mere declaration is not enough, bonafide
intention to gift is very essential. Also, a gift with the
intention to defraud the creditors of the donor is
voidable at the option of the creditors.
Acceptance: acceptance is necessary, also, it can be
express and implied.
Delivery of possession: it can be actual or
constructive. where there are more donee than one,
possession by one co-sharer is presumed to be in the
name and on behalf of other co-sharers.
Registration of gift deed could not in any way do
away with the need of the delivery of possession.

Rules as to registration &

constitutional validity of oral gifts
The Indian registration Act, 1908 does not prescribe a
registered instrument for a valid gift, it only requires
that if the gift is effected by a written instrument, then
it must also be registered.
Constitutional validity of oral gifts, was decided by
justice v.krishna Iyer, in Makku Rawther v. manahapara
chariyal AIR 1972 Ker 27: held that gifts of secular 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 propertry Act, 1882, in order to survive the
scrutiny of article 14 of the constitution.

Exceptions to the rule of delivery of

physical possession
1. Where the gift is by husband to the wife or vice
versa : The logic behind this exception is that joint
residence is an integral aspect of such relationship.
In Fatma bibi v. abdul rehman abdul karim AIR 2001 Guj.
271: the husband made an oral gift of a house to his wife.
On a challenge to the validity of this gift, the trial court
held that the gift fulfilled only one condition of declaration,
and the rest of two conditions acceptance and delivery of
possession were missing, making gift invalid. The matter
went in appeal to gujarat high court which reiterated with
old law and laid down the principle that in cases of gift by
husband to wife or vice versa, there is a constructive
acceptance and delivery of possession of property.

Continued
2. Gift by father to minor children or by
guardian to the ward: Only a bonafide
intention on the part of donor here is required.
Here, guardian includes the father, paternal grand
father, his executors etc in this order. If the father
is alive he alone is the guardian of property and
the gift made by mother or maternal grandfather
would require delivery of possession of goods.
When minor attains the age of majority, he
himself becomes capable of accepting the
delivery of possession.

Continued
3. Where donor and donee live together in the same
property that is subject matter of gift:
In such cases the donor need not depart from the property,
and there is no requirement of formal entry by donee.
Here law does not presume that donor and donee has to
be necessarily in a family relationship, they can also be
friends. Main three conditions of this clause are:
Both the donor and donee should reside together.
The place of residence should be the subject matter of
gift.
Besides declaration, there must be some overt act done
by the donor that shows the relinquishment of control by
him and vesting of ownership in donee.

GIFT OF MUSHAA
Mushaa is an arabic word, which signifies
cofusion. It refers to an undivided share
in movable or immovable property.
In order to effect a valid gift of mushaa,
the compliance of all three condition is
necessary. As delivery of possession is
an essential attribute of a valid gift, the
possession to be delivered must be
separate and exclusive.

The problem of handing over the

possession of a gift of Mushaa to the
donee can face two situations:
1. where undivided share is incapable of division:
in case of property for which one can only have a
common right of enjoyment such as, staircase, tank,
right of way, parking, etc, the property can be validly
gifted without effecting a division of property.
2. Where the property is capable of division: if the
property is capable of division, it should be divided
and the possession be handed over to the donee.
However, even if it is not partitioned and delivered to
the donee it is merely irregular and not void and can
be validated subsequently, by effecting its division
and delivery of possession.

KINDS OF GIFT
1. Contingent Gift: contingency refers to
a future uncertain event. Thus, if a gift is
to take effect on the happening of a
contingency, which may or may not
happen it would be void or invalid.
For example. A makes a gift to B, that is to
take effect only if A dies issueless, or if As
wife dies before B. such a gift is invalid, as
it is contingent upon happening or nonhappening of a unspecified event.

Continued.
2. Conditional gifts: where the donor makes the gift
subject to a condition or limitation, which restricts or
limits the enjoyment of any three rights of the donee,
the gift is called a conditional gift.
If the condition is inconsistent with the incidence of
absolute ownership, the condition will be void, but the
gift would be valid. the donee will have a right to
ignore the condition as if does not exist on paper,
without affecting the validity of the gift.no conditions
attached to a gift that restricts or prevents the donee
from alienating the property, or restricting its manner
of enjoyment of property would be void.

3. Future gifts: A gift cannot be made so as to

take effect at any future time, whether such time
is definite or not.
4. Gift in the form of trust: the basic concept of
principle of Islam is that the donor should transfer
the whole bundle of rights which he possesses
over the corpus to the donee; delivery of
possession is therfore essential. But if the donor
transfers the corpus with a simple condition to
receive the recurring income of the corpus during
his life, the gift and condition both are valid.

Hiba bil iwaz

(gift with exchange)
5. Hiba bil Iwaz : this kind of gift has two essential
attributes:
. A bonafide and voluntary intention on part of the donor
to make the gift and to divest himself of the complete
rights over the property and vest it in the donee.
. Payment of consideration by the donee.
This consideration may be money, or performance of an
obligation.
Hiba bil iwaz is treated as a sale, even by courts of Law.
Adequacy & form of considertation is immaterial.Copies of
Quran or prayer carpet is also a valid consideration.

Revocation of gifts
According to law, all voluntary transactions are
revocable, hence gifts can also be revoked. But the
difference lies in case of completed or incomplete
gifts.
1. Before delivery: a gift may be revoked easily any
time orally itself, before delivery of possession, as it
is an incomplete gift.
2. After delivery: either by intervention of court, or
by the consent of donee.
A mere declaration on part of donor is not enough.
Also, only the donor has a right to revoke the gift, and
not his legal heirs after his death.

Exceptions to the revocation

right
Where the motive of the gift is religious or spiritual.
Where the thing given is so changed that it cannot be
identified.
Where the donor has received a return for the gift.
Where the thing given has increased substantially in
value.
Where the thing given is destroyed or lost.
Where the thing given has passed ot of donees hand
as sale, gift etc.
Where it is made by husband to wife or vice-versa.
Where a gift is made to a relative in prohibited
relationship or related by consangunity.