This article is written by Neha Gururani, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the concept of gift under Islamic law, the various formalities of a gift and the differences between the laws relating to gift and will under Islamic law.

Introduction

A Muslim can devolve his property in various ways. Muslim law permits the transfer of property inter vivos (gift) or through testamentary dispositions (will). A disposition inter vivos is unrestricted as to quantum and a Muslim is allowed to give away his entire property during his lifetime by gift, but only one-third of the total property can be bequeathed by will. Conventionally, a gift, being a transfer of property is governed by the Transfer of Property Act, 1882.

But Chapter VII of the Transfer of Property Act, 1882 regulating the gifts does not apply to the ‘Muslim Gifts’ or the ‘Hiba’. Although there is no such difference between a gift made by a non-muslim or a Muslim yet, the formalities of Hiba are different from that of a gift made by a non-muslim. Therefore, Hiba is governed by the Muslim Personal Law.

Meaning and Definition of Gift

A gift is generally a transfer of ownership of a property by a living person to another living person without any consideration. In Islamic law, gifts are known as ‘Hiba’. To be very precise, gift implies to an extensive overtone and appertain to all kind of transfers of ownership not involving any consideration. On the other hand, the term ‘Hiba’ includes a narrow connotation. It is basically transferred inter vivos i.e. between living person.

According to Hedaya– “Hiba is an unconditional transfer of ownership in an existing property, made immediately without any consideration.”

According to Ameer Ali– “A Hiba is a voluntary gift without consideration of property by one person to another so as to constitute the donee the proprietor of the subject-matter of the gift.”

According to Mulla– “A Hiba 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.”

According to Fyzee– “Hiba is the immediate and unqualified transfer of the corpus of the property without any return.”

Salient Features of a Hiba

After anatomizing the definitions and meaning, some prominent features of Hiba emerge as follows:

1. Hiba is a transfer of property by act of the parties and not by operation of law. It means that any transfer of property done by the court of law or any transfer of ownership by the Muslim law of inheritance will not be considered as Hiba.
2. Under Hiba, a living Muslim voluntarily transfers the ownership of any property to another living person. Hence, it is a transfer inter vivos.
3. The transferor transfers ownership of the property in absolute interest and the transferee gets the complete title in respect of the property given to him. Conditions, restrictions or partial rights in the gifted property are averse to the concept of Hiba under Islamic law.
4. Hiba is operative with immediate effect and deprives the transferor of his control and ownership over the property. Moreover, as the property is passed immediately to the transferee, the property must be in existence at the time when the gift is made. A gift made for a property which will exist is future is termed as void.
5. A Hiba is a transfer of property without any consideration. If anything of any value is taken by the transferor in return or exchange, such a transfer of property is not a gift.

Competency of the Donor: Capacity and Right

A person who makes the declaration of a gift is called a donor. A donor must be a competent person to make a gift. Every Muslim, male or female, married or unmarried, who has attained the age of majority and has a sound mind is a competent donor. For the purpose of making a gift, the age of majority is the attainment of 18 years and 21 years if he is under a certificated guardian.

Capacity to make a Hiba

Mental capacity: A person who is of sound mind and has the mental capacity to understand the legal implications of his act is eligible to make a gift. However, a gift made by a person of unsound mind during lucid intervals is a valid gift. Also, the donor must be free from any coercive or fraudulent influence while making a gift.

In the case of Hussaina Bai v. Zohara Bai[1], the validity of a gift made by parda-nasheen ladies was declared by the court. In this case, a parda-nasheen Muslim lady was brought from Nagpur to Burhanpur on an excuse that her brother-in-law was seriously ill. After reaching the place, she had a fit of hysteria, and soon after it, she was made to sign a gift deed without informing her the content of the deed and no opportunity was given to her to take an independent decision. The court held that-

“When a gift is made by a parda-nasheen lady, it is important to establish that the consent of the lady was free and she made the gift on her independent advice. The burden to prove that the gift was made free from compulsion lies on the donee. In this case, the deed was executed from the lady under compulsion, it was not her voluntary act, and hence, the deed was held invalid.”

Financial Capacity: According to the Hanafi view, if a person is under insolvent circumstances, he is allowed to make a gift. However, the Kazi has the power to declare any gift as void if it is made with a view to defraud the donee. The Indian courts have accepted the view of the Hanafi school that from the fact of indebtedness or embarrassing financial circumstances of the donor, it cannot be inferred that the donor has fraudulent intentions.

So, in every gift, there must be a bona fide intention on the part of the donor to transfer property to the donee. Evidently, if a gift is made with a malafide intention to defraud the donee, the gift is invalid.

Right to make a Hiba

Capacity to make a gift is not solely enough. The donor must also have a right to make a Hiba. A Muslim has a right to gift only those properties of which he has the ownership. If he is simply a tenant in a house, he is not allowed to gift that house to someone because he does not have the ownership of that house. Such a gift is considered as invalid.

However, a Muslim has a right to gift away all his properties which are under his ownership at the time of declaration of the gift. The transfer of the property by the donor must be in the absolute interest of the donee. Therefore, it is imperative that the donor himself has the ownership of that property which he intends to pass on to the donee.

Competency of the Donee

The person in whose favour the gift is made is known as the donee. For being a competent donee, the only essential requirement is that a donee must be any person in existence at the time of the making of a gift. He may be a person of any religion, sex, or state of mind. Thus, a Muslim can make a lawful Hiba in favour of a non-muslim, female, minor or an insane person.

Child in Womb: A child in the mother’s womb is a competent donee provided that it is born alive within six months from the date on which the gift was made. If after the declaration of the gift the child dies in the womb or an abortion takes place, the gift becomes void. Also, the child must be in existence in the mother’s womb at the time of the making of the gift. If a child is not in the mother’s womb or the conception takes place after the declaration of the gift, such a gift is void ab initio.

Juristic Person: A juristic person includes a firm, corporation, company, association, union, university or any other organization. A juristic person is presumed to be an adult of sound mind like a human being in the eyes of law and hence, is a competent donee in whose favour a gift can be made. A gift in favour of a mosque, temple or a school is valid.

Two or more Donees: A donee may be an individual or a class of persons. In case the donee is a group of people, all the people in that particular group must be ascertainable.

The Subject matter of Hiba

Islamic law does not make any distinction between ancestral or self-acquired or between movable or immovable property as far as the concept of Hiba is concerned. Any form of the property upon which the dominion can be exercised may constitute the subject-matter of the Hiba. Both incorporeal and corporeal property can be the subject-matter of a Hiba.

Similarly, a gift can be made of property on lease, a property of attachment or any actionable claim. Unlike the concept of the will or wasiyat under Islamic law in which only one-third of the total property can be bequeathed by a will, a Hiba or gift can be made of the entire property.

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Formalities of a Hiba

It is often supposed that the word ‘gift’ connotes the exact identical meaning as the term ‘Hiba’. A gift is a broad and generic concept whereas Hiba is a narrow and well-defined legal concept. Juristically, in Islamic law, a Hiba is treated similar to a contract consisting of an offer to give something on the part of donor and acceptance on the part of the donee. Thus, to make a Hiba three essential formalities have to be fulfilled.

1. A declaration of gift by the donor
2. Acceptance of the gift by the donee
3. Delivery of possession by the donor and taking of possession by the donee

These three formalities are discussed in detail below:-

Declaration of gift by the Donor

Declaration simply signifies the intentions of the donor to make a gift. It is a substantiation of the intention of the donor to transfer the ownership of the property to the donee.

Oral or Written: The donor may declare a gift of any kind of property either orally or through a written deed.

In the case of Md. Hesabuddin v. Md. Hesaruddin[2], a Muslim woman made a gift of her immovable properties in favour of her son. The gift was written on ordinary paper and was not a registered deed. The court held the validity of such gifts in this case as-

“ Under Muslim law, writing is not essential for the validity of a gift whether it is moveable or immovable property. Therefore, the gift, in this case, was held to be valid because writing and registration of a gift are not mandatory requisites to make a valid gift.”

Express Declaration: A declaration of a gift must be expressly made in clear words that the donor is conceding his ownership of the property completely. A gift made in ambiguous words is null and void.

In Maimuna Bibi v. Rasool Mian[3], it was held that-

“ It is necessary that the donor divest himself completely of all the dominion and ownership over the property of gift. The donor must express his explicit intention to transfer the ownership to the donee clearly and unequivocally.”

Free Consent: The consent of the donor in making the gift must be free. A declaration of a gift must be made voluntarily by the donor. Any gift made by a donor under threat, force, coercion, influence or fraud is not a valid gift.

Bona fide Intention: Mere announcement of a gift is not considered as a valid declaration until it entails the intention of the donor. Absence of real and honest intention to transfer the ownership of the property will make a gift ineffective. A gift made with an intention to defraud the donee is void. A gift without an intention may be pretence gift, colourable or Benami transaction etc. however, mere indebtedness does not affect the competency of the donor unless his malafide intention is established.

Acceptance of gift by the Donee

For the validity of a gift, it must be accepted by the donee. Acceptance manifests the intention of the donee to take the property and become its new owner. Without acceptance, the gift is considered to be incomplete. Since under Islamic law, Hiba is treated as a bilateral transaction, therefore, it is important that the proposal made by the donor to transfer the ownership of the property must be accepted by the donee.

Minor: In case the donee is minor, the acceptance on behalf of a minor can be given by the guardian of the property of the minor.

Juristic person: If a gift is made in favour of any institution or any other juristic person, the acceptance of the gift is made by either manager or any other competent authority.

Two or more Donees: Gift made in favour of two or more donees must be accepted by each and every person separately. If the share of each person is explicitly specified by the donor then, they will get the separate possession in the same way as declared by the donor. But if the share under a gift is not specified and no separate possession is given by the donor, then also the gift is valid and the donees will take the property as tenants-in-common.

Delivery of Possession

The formalities laid down for gifts under Section 123, Transfer of Property Act, 1882, are not applicable to Muslim gifts. Under Islamic law, a gift is complete only after the delivery of possession by the donor and taking of possession by the donee. Thus, it is obligatory that the declaration and acceptance must be accompanied by the delivery of possession of the property.

The gift takes effect from the date when the possession of the property is delivered to the donee and not from the date when the declaration was made by the donor. Delivery of possession is an overriding facet in Islamic law. The importance is to such an extent that without the delivery of possession to the donee, the gift is void even if it has been made through a registered deed.

The donor must divest himself of not only the ownership but also the possession in favour of the donee in order to make a gift complete. Muslim law does not presume transfer of ownership rights from donor to a donee without the explicit delivery of possession of the property.

In Noorjahan v. Muftakhar[4], a donor made a gift of certain property to the donee, but the donor continued to manage the properties and takes the profit himself. Till the death of the donor, no mutation was made in the name of the donee. It was held by the court that since no delivery of possession was made, the gift was incomplete and ineffective in nature.

Mode of Delivery of Possession

The mode of delivery of possession totally depends upon the nature of the property gifted. Legally, the donor is required to do something by which the donee gets the physical control over the property in order to constitute the delivery of possession.

A donee is said to be in possession of a property when he is so placed that he can exercise exclusive dominion over it and gain the benefits out of it as is usually derived from it. Therefore, the delivery of possession can be either actual or constructive i.e. symbolic.

Actual Delivery of Possession

Actual delivery means when a property is physically handed over to the donee. This type of delivery is possible only with tangible properties (movable as well as immovable) which are capable of being physically possessed and given.

Where the property is movable, it must be actually transferred and handed over to the donee.

For example, if a donor gifts a car to the donee, he must give the keys of the car and all other documents of the car to the donee so that he can use it. Mere declaring the gift on a document is not enough. The property must be handed over immediately.

Similarly, where the property is immovable, its actual delivery of possession is compulsory. But since it cannot be picked up and handed over, the donor may delivery such property by giving all the documents related to that property and by placing it to the donee so that he can use it as he likes.

For example, if a donor gifts the house in which he is residing, he must vacate it and ask the donee to live in it in order to make his gift valid. In case of a garden, the donor may give full dominion to the donee to use the garden in whichever way he wants including all the rights to enjoy the fruits and flowers.

Constructive Delivery of Possession

Constructive delivery of possession means a symbolic transfer of property. In this mode of delivery, the donor does some act due to which it is legally presumed that the possession has been delivered to the donee. Such type of delivery of possession takes place only when the property is of such a nature that it is not possible to delivery through actual mode. Constructive delivery of possession is sufficient to constitute a valid gift under two circumstances only:

1. Where the property is intangible.
2. Where the property is tangible but, under the situation, its actual delivery of possession is not possible.

When the constructive delivery of possession is completed?

When the possession of the movable property is delivered, the exact time of delivery of possession can be easily determined. The problem arises in the case of immovable or incorporeal properties where it is onerous to prove the exact time of the delivery of possession. However, in India, there are two judicial views regarding the exact time of the completion of delivery of possession.

• Benefit Theory: Under this view, it is believed that a constructive delivery of possession is complete as soon as the donee starts getting the benefits out of the gifted property. Where even after the declaration of the gift, the donor is enjoying the benefits, the gift is not complete. But, if the donor enjoys the benefits, it is deemed that the delivery of possession has taken place.

This approach lays more emphasis on the facts of donee’s benefits from the gifted property instead of the act which symbolises constructive delivery of possession.

For example, if a donor gifts a rented house to the donee, the delivery of possession is considered to take place from the date on which the donee gets the rent from the tenants.

• Intention Theory: This approach supports the view that the delivery of possession is completed on the date on which the donor intent to transfer the possession to the donee. The intention of the donor can be proved on the basis of the facts and circumstances which vary from case to case. In correspondence to the intention of the donor, some potent facts must be established which exhibit that the donor has physically done everything he could in the given circumstances.

In other words, the court accepts that the delivery of possession is deemed to have taken place only when the bona fide intention of the donor to complete the gift is thoroughly established and it is not important to prove that from which date the donee reaps the benefits of the property given.

For example, if the donor and donee are living in the same house which constitutes the subject-matter of the gift, the donor’s intention to transfer the possession to the donee is sufficiently proved if the donee has been authorised to manage the house.

Who may challenge the Delivery of Possession?

It is not at all necessary to prove separately in each and every case that the delivery of possession has been completed until and unless the validity of gift is challenged by the donor, the donee or any person legally authorised to claim on behalf of them.

In the case of Y. S. Chen v. Batulbai[5], a Muslim woman made a gift of a portion of her house to her daughter. The gifted portion of the house was occupied by a tenant who used to pay the rent regularly to the daughter (donee) recognising her as the landlady. After some time, the tenant refused to recognise the daughter as his landlady on the ground that the gift made in her favour was void because there was no delivery of possession. It was held by the court that –

“Any objection as to the validity of gift on the ground of absence of delivery of possession cannot be raised by the tenant who is a stranger to the transaction of a gift.”

Conditional or Contingent Hiba

The contingent or conditional gifts whose operation depends upon the occurrence of a contingency. A contingency is a possibility, a chance, an event which may or may not happen. Under Islamic law, conditional or contingent gifts are void.

For example, if a Muslim made a gift to his wife for life, and after her death to his children who are living at the time of his death, the gift is said to be contingent.

Revocation of Hiba

Although Prophet was against the revocation of gifts, it is a well-established rule of the Islamic law that all voluntary transactions, including Hiba, are revocable. Different schools have different views with regard to revocation. The Muslim law-givers classified the Hiba from the point of view of revocability under the following categories:

• Revocation of Hiba before the delivery of possession

All gifts are revocable before the delivery of possession is given to the donee. For such revocation, no orders of the court are necessary. As discussed above that under Muslim law, no Hiba is complete till the delivery of the possession is made, and therefore, in all those cases where possession has not been given to the donee, the gift is incomplete and whether it is revoked or not, it will not be valid till the delivery of possession is made to the donee.

It implies that the donor has changed its mind and not willing to complete the gift by delivery of possession.

For example, X, a Muslim, makes a gift of his car to Y through a gift deed and no delivery of possession has been made to Y. X revokes the gift. The revocation is valid.

• Revocation after the delivery of possession

In this situation, a Hiba can be revoked in either of the following ways:

1. With the consent of the donee
2. By a decree of the court.

Mere declaration of revocation by the donor or filing a suit in the court or any other action is not enough to revoke a gift. The donee is entitled to use the property in any manner until a decree is passed by the court revoking the gift.

Gift to Minor

Any gift made in favour of a minor or insane person is valid. They may not have the capacity to understand the legal consequences but they are persons in existence and thus, are competent donee. But such gifts are valid only if accepted by the guardian of the minor or insane donee. A gift is void without the acceptance by the guardian.

For the purpose of acceptance of the gift, the guardian of a minor or insane donee are as under in the order of priority:

1. Father
2. Father’s executor
3. Paternal grandfather
4. Paternal grandfather’s executor

Therefore, in the presence of the father, the paternal grandfather is not allowed to accept the gift on behalf of the minor or insane and so on. If all the above-mentioned guardians are not present, then the gift is accepted by the ‘guardian of the property of minor or insane’.

If a guardian himself makes a gift in favour of his ward, he will declare the gift acting as a donor and has the capacity to accept the gift as the guardian of the minor or insane.

It is to be noted here that the mother is not recognized as the guardian of the property of her minor child. Hence, she is not entitled to accept the gift on behalf of her minor child.

Where a gift is made to a minor or lunatic, the gift is complete only if the guardian has taken the actual or constructive delivery of possession of the property on behalf of such persons. If the possession is taken by any other person who is neither a legal guardian nor a de facto guardian, the gift becomes ineffective and void.

Katheessa Ummand v. Naravanath Kumhamuand[9] is a leading case on this point.

Facts: In this case, a Muslim husband made a registered gift to his wife who was a minor. The gift was accepted by the donee’s mother. Unfortunately, after two years, the husband died and soon after it the donee (wife) also died. The validity of the gift was challenged by the elder brother of the donor (husband) on the ground that there was no delivery of possession as a gift to the minor was accepted by her mother who is not a legal guardian according to the Islamic law.

Issue: The question before the court was whether a gift by a Muslim husband to his minor wife and accepted by the mother on behalf of the minor wife, is valid?

Held: The court, in this case, held that it is a well-established rule under Islamic law that mother is not a legal guardian of the minor’s property, therefore, she is incompetent to take the delivery of the possession on behalf of the minor donee. But, in case there is no legal guardian to accept the gift, the completion of the gift for the benefit of the minor has the utmost significance.

If the donee had already attained the age of puberty, the gift is valid even if it is accepted by a person who has no authority to accept the gift on behalf of a minor. In this case, the gift was held to be valid although the delivery of possession was not accepted by any competent guardian on behalf of minor but since the minor had reached the age of discretion (fifteen years) and was competent to accept the gift herself.

When Delivery of Possession is not necessary

Islamic law of gift binds great significance to delivery of possession especially in case of immovable property. The other essentials of Hiba will have no legal effect unless accompanied by delivery of possession. But there are certain exceptions to this general rule. The following are the situations under which a gift is valid without actual or constructive delivery of possession:

• Donor and donee live jointly in the gifted house: Where the subject-matter of a gift is a house in which the donor and donee both resides together, any formal delivery of possession is not necessary to complete the gift. Since the donee is already continuing the possession of the house in some other capacity, there is no need to give the donee the same possession again in a different capacity.

But, there must be some conspicuous act or apparent activity on the part of the donor that indicates the bona fide intention of the donor to transfer the possession.

In Humera Bibi v. Najmunnissa[6], a Muslim lady executed a gift deed of her house in favour of her nephew who was living with her in the same house. The property was transferred in the name of the nephew but she continued to live with him as before. But after the making of the gift, the rents were collected in the name of the donee. It was held that “ the gift was valid although there was neither any physical transfer to the donee nor any physical departure of the donor from the house.”

• Gift by a husband to wife or vice versa: where a gift of immovable property is made by a husband to wife or vice versa, no transfer of possession is mandatory. The reason behind this is that a joint residence is an integral aspect of the relationship of marriage. To perform the matrimonial obligations it is necessary the husband and wife must live together.

In the case of Fatmabibi v. Abdul Rehman[7], the husband made an oral gift of a house to his wife. Later, the deed was also registered. The stepson, who lived with his wife in the gifted house, challenged the validity of the gift on the ground that there was no delivery of possession of the house. It was held that –

“Oral gift in presence of two persons amounts to the declaration, mentioning the name of the wife in the registration deed amounts acceptance and mutation in the name of the wife at the instance of the wife amounts sufficient delivery of possession keeping in view the relationship between the parties.”

In Katheessa Ummand v. Naravanath Kumhamuand[8], the Supreme Court held that “ where a husband made a gift in favour of his minor wife by a registered deed and possession is handed over to the mother of minor wife, the gift was valid. Since the wife had no father and grandfather alive, nor any executor, the delivery of the gift deed to her mother instead of the minor wife herself did not invalidate the gift, as the intention was well established.”

• Gift by Guardian to Ward: In case a guardian makes a gifts in favour of his ward, he declares the gift as donor and accepts the gift on the part of the donee, the delivery of possession is not compulsory provided that there is a bona fide intention on the part of the guardian to divest his ownership and give it to his ward.
• Gift of property already in possession of donee: The basic objective behind the concept of delivery of possession is to give the physical dominion over a property to the donee. But, anyhow if the donee already has possession of the property given by donor under a gift, mere declaration and acceptance are enough to complete the gift. No formal delivery of possession is required to complete the gift.

Doctrine of Mushaa

The word ‘Mushaa’ has an Arabic origination which literally means ‘confusion’. Under Islamic law, Mushaa denotes an undivided share in joint property. It is, therefore, a co-owned or joint property. If one of the several owners of such property makes a gift of his own share, there may arise confusion in regard to what part of the property is to be given to the donee. Practically, it is too difficult to deliver the possession of a joint property if a gift is made by a donor without partition of the joint property.

To circumvent such confusion, the Hanafi Jurists have developed the doctrine of Mushaa. Gift of Mushaa i.e gift of a share in the co-owned property is invalid without the partition and actual delivery of that part of the property to the donee. If the co-owned property is not capable of partition, the doctrine of Mushaa is impertinent. A Mushaa or undivided property is of two kinds:

Mushaa Indivisible

It includes the property in which the partition is not possible. A gift of an undivided share (Mushaa) in a property which is incapable of being divided or where the property can be used for better advantage in an undivided condition, is valid. The doctrine of Mushaa is not applicable where the property constituting the subject-matter of the gift is indivisible. All the schools of Islamic law accept the view that a gift of Mushaa indivisible is valid without partition and the actual delivery of possession.

For example, a staircase, a cinema hall, a bathing ghat etc. comprises indivisible Mushaa properties. If these kinds of properties are divided, then their original identity will be lost.

Mushaa Divisible

Mushaa divisible is the property which is capable of division without affecting its value or character. If the subject-matter of a Hiba is Mushaa divisible, the doctrine of Mushaa is applied and the gift is valid only if the specific share which has been gifted, is separated by the donor and is actually given to the donee. However, a gift without partition and the actual delivery of possession is merely irregular and not void ab initio.

For example, a co-owned piece of land or a garden or a house is a Mushaa divisible property which can be divided by a visible mark of identification without changing its original character.

Shia law does not recognize the principle of Mushaa. According to Shia law, a gift of a share of divisible joint property is valid even if it is made without partition.

Comparison of Gift and Will

Basis of Comparison	Gift	Will
Quantum	A man can give away his whole property during his lifetime.	Only one-third of the net estate can be bequeathed.
Beneficiary	A gift inter vivos can be made in favour of any person without any restriction (except during marz-ul-maut).	For bequeathing more than one-third of the property to any person, consent of heirs is mandatory.
Existence of Property	Property gifted must be in existence at the time of making the gift.	The property may or may not be in existence at the time of execution of the will but it must be existing at the time of the death of the legator.
Transfer of Property	Under gift, the immediate and absolute transfer of property takes place.	A transfer of property comes into effect only after the death of the legator.
Delivery of Possession	Immediate delivery of possession must take place as soon as the donor declares the gift and the donee accept the same.	Since property devolves on the legatee only after the death of the legator so no question of delivery of possession arises.
Revocation	Once a gift is made, a mere declaration to revoke it by the donor is not sufficient. A revocation can only take place either by the consent of the donee or by the intervention of the court.	A bequest may be revoked by the legator any time after executing it and before his death either impliedly or expressly or by a subsequent will.

References

1. AIR 1960 MP 60
2. AIR 1984 Gau. 41
3. AIR 1992 Pat. 203
4. AIR 1970 All. 170
5. AIR 1991 MP 90
6. 1905 28 All. 17
7. AIR 2001 Guj. 175
8. AIR 1964 SC 275
9. AIR 1964 SC 275
10. https://www.lawctopus.com/academike/concept-of-gift-under-muslim-law/
11. http://www.legalserviceindia.com/articles/transfer.htm

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