This article has been written by Soumyadutta Shyam. This article deals with the case of Musa Miya Muhamad Shaffi vs. Kadar Bax Khaj Bax (1928). This case deals with the subject of Gift or Hiba under Muslim law. This article discusses the facts of the case, the issues raised before the court, the arguments presented by both parties, the legal aspects involved in the case, the judgement of the case, and the analysis of the case. 

Introduction

The gift is the transfer of certain existing property either movable or immovable, made voluntarily and without consideration by the transferor i.e., the donor to the transferee i.e., donee. Such transactions are usually made out of love and affection. Gifts of immovable property in India are governed by Sections 122–129 of the Transfer of Property Act,1882. Although, Section 129 of the Act sets out that the sections of the Act regarding gifts, shall not apply to gifts of property made under Muslim law. This means gifts made under Muslim law are excluded from the operation of provisions of Chapter VIII of the Transfer of Property Act,1882 which deals with gifts of property. The essential requisites of a valid gift, also called “Hiba” under Muslim law are – declaration, acceptance, and delivery of possession. An adult Muslim of sound mind is at liberty to make a gift of their movable or immovable property in favour of the donee, provided that such gift is made in the presence of witnesses by a public declaration.  

A gift of property under Muslim law is called “Hiba” or “Hadiya”. The gift is made through a declaration expressing the donor’s intention to make the gift. This case deals with the legality of a gift made by the grandfather to his grandchildren under Muslim law.

Details of the case

Appellant – Musa Miya Muhamad Shaffi & Anr

Respondent – Kadar Bax Khaj Bax (deceased)

Date of Judgement – 21.02.1928

Citation – (1928) 30 BOMLR 766

Judge – Justice Sir Lancelot Sanderson

Facts of the case

The suit in this case was originally filed on January 6th, 1919, by Kadar Bax Khaj Bax, claiming a share of the properties left by Abdul Rasul, his deceased brother. The plaintiff (a Sunni Muslim) was an heir of Abdul Rasul, he asserted that he was entitled to a 3/8th share of the properties of his deceased brother Abdul Rasul. He alleged that Abdul Rasul died, leaving behind him, as his heirs, a widow Sahebjan (1st defendant, now deceased), a daughter named Rahimatbi (2nd defendant), and his brother (plaintiff). Under Muslim law, the widow was supposed to get 1/8th share, the daughter 1/2 share, and the plaintiff 3/8th share. The plaintiff claimed that the widow, the daughter, and their tenants were in possession of the property in issue. 

Mahamad Shaffi usually lived with Abdul Rasul, though he had properties at another place. He was father of the defendants no.18 and 19 i.e., grandsons of Abdul Rasul. Mahamad Shaffi, Rahimatbi, and their two children resided at the house of Abdul Rasul and were supported by him.

Abdul Rasul went on a pilgrimage to Mecca. The appellants claimed that on 1.10.1910, Abdul invited many people to dinner and declared that he was going to Mecca and that he gifted his property to his grandsons as also they were the owners. In a letter addressed to Mahamad Shaffi, Abdul Rasul stated, “Now both the children, Essen Mian and Moosa Mian, are the owners of my property”. Abdul was in Mecca for three months. After he returned, Abdul Rasul continued with the management of the estate.

The Subordinate Court came to the conclusion that there was no lawful gift made for the defendants. Although, it was observed that the letter sent by Abdul Rasul to Mahamad Shaffi indicated the desire of Abdul Rasul for his grandsons should inherit his property after he passed away. It was ruled that the will was void under Muslim law since more than 1/3rd of the property of Abdul Rasul was bestowed to the grandsons.

Subsequently, both the defendants no.18 and 19 and the plaintiff preferred an appeal to the High Court against the Subordinate Judge’s decision. The High Court dismissed the appeal filed by the defendants no.18 and 19 and partly allowed the plaintiff’s appeal. The High Court declared that the plaintiff was entitled to partition of 3/8th of the share in Abdul Rasul’s property.

Afterwards, Musa Miya and Isa Miya, who were defendants no.18 and 19 made an appeal to the Privy Council against the judgement of the High Court of Bombay. 

Issues before the Court

The main issues for consideration in this case are mentioned below:-

1. Whether a lawful gift was made for the defendants or not?
2. Whether the requisites for the application of the norm relating to a mother giving a gift to her minor son were present in this instance or not?

Arguments by the parties

Appellants

The appellants by their joint written statement refused that Abdul Rasul’s heirs had any authority to reclaim any portion of the estate. They also agreed with the pleas raised by their mother and grandmother. They asserted that even after the gift was made they kept on living with their grandfather, who took care of the properties bestowed upon them. They said that their grandfather assumed that the possession was for the minor grandsons and that the gift was lawful in accordance to Muslim law. They said that the letter sent by Abdul Rasul to their father was a valid will.

It was further contended on behalf of the appellants that owing to the circumstances in this case and the relation between Abdul Rasul and his grandsons, the gift was accomplished without any transfer of possession, in conformance with Muslim law.

Respondents

The wife along with the daughter submitted a joint written statement mentioning that in 1910, Abdul Rasul bestowed all his possessions to his grandsons through an oral gift. This was intimated to their father, Mahamad Shaffi through a letter. It was also mentioned that the grandsons lived with their grandfather, Abdul Rasul since infancy. It was further mentioned that in 1911, Abdul Rasul addressed a second letter to Mahamad Shaffi in which it was stated that the grandsons should be the owners of the property after Abdul Rasul’s death. On account of the oral gift and the will, the grandsons became the owners of Abdul Rasul’s estate. The grandsons through their father were in control of the estate.

Legal aspects involved in Musa Miya Muhamad Shaffi vs. Kadar Bax Khaj Bax (1928)

Section 129 of the Transfer of Property Act, 1882: Saving of donations mortis causa and Mohammedan law

Section 129 excludes gifts of property made by Muslims from the operation of the provisions of the Act, insofar as they are inconsistent with the principles of Muslim law. Under Muslim law, a gift of an immovable property may be made orally by just delivery and possession. Similarly, the rules relating to the revocation of a gift in Muslim law are totally distinct from those under Section 126. In such cases, none of the provisions of this Act will be applicable. But as long as the rules under this Act are based on equity and reason and do not contradict Muslim law, they will be applicable. 

Gift under Muslim law: Hiba

In Muslim law, the concept of gift or “Hiba” is based on the values of compassion and economic redistribution. Gift under Muslim law, is a voluntary transfer of property from the donor to the donee without consideration. A property can be gifted while the donor is still living or can be executed through a will (known as “Hiba bil Wasaya ”) to be carried out after the donor’s death.

The concept of gift or “Hiba” is legal and recognised under Muslim law. It is, however, subject to certain restrictions. The donor must be of sound mind and have ownership rights over the property that is being gifted. The donee must accept the property voluntarily, without coercion. Gift once made irrevocably transfers ownership of the property to the donee.

Declaration of gift by the donor signifies the intention to make a gift. The declaration should be made in clear terms. Both declaration and acceptance can be made verbally. It can also be done in written form. When it is done through a written instrument, however, it is called “Hibanama.” It is not mandatory to register the “Hibanama.”

As a gift or “Hiba” is regarded as a bilateral transfer under Muslim law, the donor must make the transfer and the donee must accept the gift. If the donee is a minor or a person of unsound mind the gift can be accepted on their behalf by their guardian such as father, paternal grandfather, etc.

In Md. Hesabuddin & Ors vs. Md. Hesaruddin & Ors (1983), it was observed that the correct stance of law under Muslim law has three requirements for a lawful gift:-

• declaration of the gift by the donor i.e “Ijab” 
• acceptance of the gift by the donee i.e, “Qabul” 
• delivery of possession i.e, “Qabda”. 

It is, thus, held that the indication of the desire of the donor to make the gift, the acceptance of the gift either impliedly or expressly, and taking possession of the property transferred by the gift are the important requirements for making a lawful gift under Muslim law.

In Mst. Noorjahan vs. Muftkhar Dad Khan (1969), the court said that, under Muslim law, a recital in the gift deed that possession has been delivered to the donee leads to a supposition only of such delivery and this supposition may be refuted by those contending the gift. One of the three requisites of a gift under Muslim law is the delivery of possession of the subject-matter of the gift by the donor to the donee. Registering the gift deed will not remedy the lack of delivery of possession nor the mutation of names is a viable replacement for delivery of possession. However, the delivery required is not in all cases physical delivery. A symbolic delivery may be valid. In this case, the donor had desired to make the gift and the donee also wanted to accept the gift. The gift was made through a registered instrument and it was delivered to the donee. Thus, it was a valid gift.

The delivery of possession is conditional on the character of the property. The manner of delivery can be either actual or constructive.

When the subject-matter of the gift is materially transferred to the donee, it is actual delivery. Actual delivery of possession is made when the gift is tangible in nature. Actual delivery is generally made where the gift is movable.

Immovable and intangible property is delivered through constructive or symbolic delivery.

Judgement in Musa Miya Muhamad Shaffi vs. Kadar Bax Khaj Bax (1928)

The High Court rejected the appeal made by the defendants no. 18 and 19 and granted the plaintiffs appeal to the effect that in replacement for the decree made by the Trial Court, the High Court proclaimed that the plaintiff was authorised to avail partition of 3/8th share in the property of the deceased, Abdul Rasul. However, certain properties were exempted.

The Privy Council was of the view, that it can be presumed for the object of this appeal that the donor did declare to his friends on 1st October 1910 that he had gifted his property to his grandsons.

The Privy Council opined that there was no lawful gift made to defendants no.18 and 19. The letters which were relied on by the Subordinate Judge did not comprise the will of the donor. It was also observed that the prerequisites for the application of the rule relating to a mother making a gift to her minor sons were absent in this instance since the father of the minors was still alive and was in a situation to exert his authority as a parent. The Council affirmed the share decided by the High Court to the plaintiff. Hence, the appeal was dismissed.

Rationale behind the Judgement

The Privy Council said that the matter must be determined in conformance with Muslim law and the Transfer of Property Act, 1882 shall not apply.

The Judges depended on the interpretation of Macnaghten’s “Principles and Precedents of Mohammedan Law” to decide the questions of law in this case. The rules relating to gifts stated therein are as follows:-

1. Gift denotes the bestowing of property devoid of consideration.
2. Acceptance and possession, by the donee as well as relinquishment by the donor.
3. It is essential that the gift should be followed by delivery of possession and the occupancy should take place forthwith or at a later time at the preference of the owner.
4. A gift must not be implied. It must be express and unambiguous.
5. In the event an immovable property is gifted by a wife to a husband and a property bestowed by a father to a child, are the departures from the abovementioned rule.
6. Formal delivery is not essential for a gift to a trustee who has the guardianship of the property conveyed.

The grandsons of Abdul Rasul, were minors when the supposed gift was made. The pertinent issue in this appeal was if the details of the case brought it into the aforementioned exception. The appeal must be determined on the fact that there was no delivery of possession of the estate by the donor to his grandsons and that there was no relinquishment of possession by the donor in respect of the estate before his demise.

No evidence was adduced that could indicate that Abdul Rasul regarded himself as the trustee of the property at this point. The High Court ruled that there was no actual delivery, though the desire to gift the property was expressed. The gift was not complete, since there was no delivery of possession. 

Additionally, there was no mutation of the names or execution of a deed.

The Council was unable to find merit in the argument Abdul Rasul was a guardian with the exception, that a gift could be made without delivery of possession or relinquishment of control over the property. 

The conditions for making a valid gift could not be noticed in this instance. The father of the children was alive and was residing with his wife and children in the home of Abdul Rasul, and was in a situation to exercise his rights and authority as a guardian, and to take possession of the estate on behalf of his children.

Analysis of the case

In this case, the Privy Council examined the validity of the gift of immovable property made by a grandfather to his grandchildren under Muslim law. Here, the Council discussed the requirements of a valid gift or “Hiba” under Muslim law.

Here, Abdul Rasul declared that he gifted his properties to his grandchildren, Essen Mian and Moosa Mian. In a letter addressed to Mahamad Shaffi (father of Essen Mian and Moosa Mian), Abdul Rasul stated that his grandsons should have his property after his death.

The Subordinate Court ruled that there was no lawful gift in this case. However, the court observed that the letters indicated that there was a desire on the part of the donor to bestow his property to his grandsons. It was further ruled that the grandsons were entitled to a 3/4th share in the property of Abdul Rasul.

The High Court rejected the claim of the grandsons. The grandsons were allowed to avail partition of 3/8th share in the property of Abdul Rasul.

The Privy Council laid down that no lawful gift was made to the grandsons by Abdul Rasul to Mahamad Shaffi did not comprise the will of Abdul Rasul. There was no actual delivery by Abdul Rasul of the gift of the estate to his grandsons. Therefore, the gift of property was complete.

In this case, the Privy Council relied on the decision of Abidunnisa Khatoon vs. Amirunnisa Khatoon (15 B.L.R 67) to come to the conclusion regarding the validity of the gift in this case. In this case, the validity of the gift was argued before the Court for the reason that the gift of “Musha ” or an undivided partition was unlawful according to Muslim law. The norms are explained by Hedaya in the following way:- First, complete possession is an essential condition in case of a gift, and secondly, since it would be a burden on the donor, i.e., to make a division. It was observed in this case that when there is a real intention to make a gift, the requirement would be fulfilled, and will presume the subsequent holding of the property to be on behalf of the minor.

In the present case, the father of the donees, i.e, Mahamad Shaffi was alive and was in a position to take possession of the property on behalf of the minor donees, however, he did not accept the possession, thus, defeating one of the requirements of a lawful gift under Muslim law.

The appellants relied on Hedaya and quoted the following paragraph:-

“If a father makes a gift of something to his infant son, the infant by virtue of the gift becomes proprietor of the same provider, etc. The same rule holds when a mother gives something to her infant son whom she maintains and of whom the father is dead and no guardian is provided, and so also with respect to the gift of any other person maintaining a child under these circumstances.”

The Privy Council, however, rejected the argument of the appellants. It was ruled that the requirements for the application of the rule relating to a mother making a gift to her minor sons were absent in this case since the father of the minor was still present and was in a situation to exert his authority as a guardian.

The Council relied on Macnaghten’s “Principles and Precedents of Mohammedan Law” to decide what are essential requirements of gift under Muslim law. One of the requirements is – “It is necessary that a gift should be accompanied by delivery of possession and that seisin should take effect immediately or at a subsequent period at the desire of the donor.”

The issue before the Council in this case was, without any delivery of possession, was the gift made by Abdul Rasul lawful under Muslim law. The requirement of delivery of possession for a lawful gift was absent in this case. Therefore, the gift made in this case was void.

Cases that relied upon the judgement given in Musa Miya Muhamad Shaffi vs. Kadar Bax Khaj Bax (1928) 

This case dealt with the important concept of gift or “Hiba” under Muslim law. This decision was subsequently cited and discussed in a number of important cases.

In Ibrahim Bivi & Ors vs. K.M.M Pakkir Mohideen Rowther (1968), it was contended by the appellants that according to Muslim law, just the father and the grandfather were the guardians of a minor. But, it should be kept in mind that under Muslim law, there was no objection to a minor himself getting possession of the property and as the minor, in this case, resided with the settlor and the settlee had expressed a clear intention to part with the possession of the property, the settlee should be deemed to have obtained possession. Regarding the judgement of Musa Miya Muhamad Shaffi vs. Kadar Bax Khaj Bax, the court said that the decision was not against this position. In the situation of a gift of a house, it is not important that the donor should vacate the premises to make the gift valid. If the donor and donee reside in the same house, that is adequate to show that possession has been transferred. In the case of a minor, the donor can either constitute himself as the guardian or appoint someone else as the guardian of the minor’s property.

In Gulamhussain Kutubuddin Maner vs. Abdulrashid Abdulrajak Maner (2000), the court said that it was not contended that the father of a minor was alive during the making of the gift. The issue that emerged is if the father is still alive, can a mother be designated as guardian of her minor son and accept the gift for him? In Musa Miya Muhamad Shaffi vs. Kadar Bax Khaj Bax (1928), it was ruled that the gift by the grandfather to his grandsons, while the father was alive, without delivery of possession was invalid.

In Valia Peedikakkandi Ummaand & Ors vs. Pathakkalan Naravanath Kumhamuand & Ors (1963), the Supreme Court defined gift or “Hiba” as bestowing of a right of property in a particular property without an exchange or “ewaz”. The respondent cited the judgement of Musa Miya Muhamad Shaffi vs. Kadar Bax Khaj Bax (1928), where a gift by a grandfather to his grandsons when the father was alive, without delivery of possession, it was held to be void. The case involved a gift to minors whose father was alive. This is different from those cases where there is no guardian of the property to accept the gift and the minor is under custody either of the mother or any other relative. In these cases, the welfare of the minor and the fulfilment of the gift for the welfare is the only concern. The Apex Court noted that there was good basis for these postulations both in the old and contemporary books of Muslim law and in many cases. The Court opined that the gift in this instance was a valid gift. The donor was alive at the time of the gift in the house of his mother-in-law and was quite ill, but not “marz-ul-maut”. His minor wife who reached the age of competence and was capable under Muslim law to receive the gift, was residing at her mother’s house with her husband. The desire to make the gift was obvious and evident since it was made through a deed that was registered and given by the donor to his mother-in-law and received for the minor. There can be no issue that there was a desire to give ownership on the part of the donor and to convey the property to the donee. If the donor had given the deed to his wife, the gift would have been executed under Muslim law and it is not possible to hold that by giving the deed to his mother-in-law, under whose care his wife and he stayed did not complete the gift. Therefore, based on both texts and authorities such a gift must be valid. Thus, the Supreme Court allowed the appeal.

Conclusion

This case was appealed by Musa Miya and Isa Miya against the decision of the High Court. Originally, the suit was presented by Kadar Bax, asserting a share in the property of Abdul Rasul. Abdul Rasul died leaving his widow, a daughter, and a brother, all were supposed to get a share in his property. Before his death, Abdul Rasul made a declaration that he wanted to give his property as a gift to his grandsons. Subsequently, he addressed letters to the donee’s father, where he confirmed his desire to bestow his property to his grandsons. 

The Subordinate court decided that there was no lawful gift in favour of the defendants (i.e., the grandsons). It was observed that the letter sent by Abdul Rasul to Mahamad Shaffi indicated the desire of Abdul Rasul that his grandsons should get his property after he passed away. It was decided that the will was void under Muslim law since more than 1/3rd of the property of Abdul Rasul was bestowed to the grandsons.

The Privy Council concluded that there was no lawful gift made to the grandsons. The letters sent by Abdul Rasul to Mahamad Shaffi were not the will of Abdul Rasul. It further said that the essentials for the application of the rule relating to a mother making a gift to her minor sons were absent here since the father of the minors was still living.

Thus, this case is immensely important to understand the concept of gift or “Hiba” under Muslim law. Bona fide intention on the part of the donor and delivery of possession is of extreme importance as evident from this case.

Frequently Asked Questions (FAQ)

What is “Hiba-il-iwaz”?

“Hiba-il-iwaz” denotes a gift in return for an exchange or consideration. In such a case the donor transfers the property in return for a consideration. The sufficiency of consideration is not significant in such a case.

What is “Hiba-bil-Wasaya”?

“Hiba-bil-Wasaya” denotes a gift of property made through a will. 

References

• https://www.lawyersclubindia.com/articles/all-about-hiba-under-muslim-law-15872.asp
• https://blog.ipleaders.in/hiba-gift-muslim-law/