Home case law Mulani vs. Maula Bakhsh (1924)

Mulani vs. Maula Bakhsh (1924)

August 5, 2024

This article is written by Arya Senapati. It attempts to analyse the case of Mulani vs. Maula Bakhsh (1924) through its factual matrix, legal issues, ratio, and opinion given by the court in the judgement. It covers important aspects of Muslim law, specifically the concept of Hiba and other important personal law principles.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

Every contractual transaction, as per Indian law, must be effected through a valid consideration. This general rule has certain exceptions, one of which is a gift. A gift can be made without any consideration due to the natural love and affection between parties or for any acts of service done by one party for another voluntarily. Usually, in Indian society, land or immovable property is considered as a worthy gift for expressing closeness in relation and gratitude for service. While the Transfer of Property Act, 1882, deals with the transfer of all forms of immovable property, including gifts, as a mode of transfer, it doesn’t apply to gifts made by Muslim individuals, which are called “Hiba.” A Hiba, or gift, made by a Muslim individual is governed by Muslim law. Even though the general formalities of the gift are similar to those of Hiba, they differ in specific requirements. Delivery of possession of the gift to the donee by the donor is construed strictly in Hiba. This principle has been highlighted in many cases dealing with Hiba under Muslim law. Various other distinctions, like the characteristics of Hiba, the competency of the donor and donee, and what constitutes a valid Hiba, have all been discussed in various decisions given by the court.

The case of Mulani vs. Maula Baksh (1924) is a landmark because it deals with an important principle that applies to gifts made by Muslim individuals. It states that a gift deed is not valid unless and until the possession of the subject matter of the gift is delivered to the donee by the donor. It also deals with various other matters, like the validity of a gift that has been executed under fraud, coercion, and misrepresentation. Owing to this landmark decision, many other important points of law related to Hiba arise in subsequent cases and therefore it is important to analyse the case and its decisions carefully.

Details of the case

Petitioner: Mulani
Respondent: Maula Baksh
Court: Allahabad High Court
Bench: J. Kanhaiya Lal, J. Mukerji
Date: 20.12.1923
Citation: (1924) ILR 46ALL260

Facts of the case

This case is an appeal from the decision of the Trial Court regarding a gift deed executed by the plaintiff in favour of the defendant on 11th February 1914. The plaintiff wanted to set aside the deed of the gift, which she executed in favour of the defendant. The ground for setting aside the gift deed was that the defendant allegedly practised fraud and undue influence on the plaintiff to persuade her into executing the gift deed in his favour. The exact nature or act purported as fraud had not been specified. The plaintiff simply alleged that the defendant had misrepresented certain facts with the intention of obtaining the consent of the defendant. It is also worth noting that despite the deed of gift, the plaintiff continued her possession of the house, which was a part of the gift.

Legal concepts and provisions involved

There are various legal concepts and provisions involved in the case and notable ones include:

Hiba under Muslim Law

A Muslim individual’s property devolves in many ways but significantly, through the application of Muslim law. It’s either through the transfer of property inter vivos (between living persons) or through testamentary disposition, which is via a will. Gifts are included in the transfer of property inter vivos. A disposition made inter vivos is unrestricted in terms of the quantity and therefore, a Muslim person is allowed to gift his entire property during his lifetime to another. When it comes to testamentary disposition by way of will, a Muslim person is allowed to bequeath only 1/3rd of his property. As per the general law, gifts are governed by the provisions of the Transfer of Property Act, 1882 but Chapter 5 of the Act, which deals with regulations regarding gifts, specifies that it does not apply to Muslim gifts, which are referred to as “Hiba”. Even though there is not much difference between gifts made by Muslims and non-Muslims, the formalities governing Hiba are somewhat different. Due to this, Hiba is governed by the personal laws followed by people practicing Islam.

In terms of definition, a gift is typically a transfer of ownership of a property done between two living persons without the want of any consideration. As per Islamic law, these gifts are called “Hiba.” Gifts, in a broader sense, include all kinds of transfers of property between two living persons where consideration is not necessary and is not involved. Hiba can therefore be defined as a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter.

Characteristics of Hiba

Hiba is a transfer of property effected through the acts of the parties and not based on the operation of law. It basically entails that any form of transfer that is mandated by the court or is governed by the Muslim law of inheritance will not be Hiba.
Voluntary transfer of property is a main precondition of Hiba. It must be effected by the free will of the donor, and there must not be any existence of fraud, coercion, undue influence, or misrepresentation in the transaction.
It is transferred from one living person to another and is therefore referred to as transfer inter vivos.
Absolute interest in the property is transferred by the transferor/ donor. Therefore, the donee/ transferee comes as the absolute owner and receives complete title over the property. If any conditions or restrictions are imposed or partial rights are transferred, it won’t be considered a valid gift/ Hiba.
Hiba has an immediate effect in terms of operation. It basically means that the moment it is executed, the donor/ transferor loses all control and ownership rights over the property and it is immediately passed on to the donee. This is the reason why for a gift to be a valid Hiba, it must be in existence during the time it is transferred. A gift for a property that will come to exist in the future is void.
Hiba does not involve any consideration. Therefore, if anything of certain value is taken by the donor in return for the gift, such a transfer would not be considered a gift.

Capacity of the donor to execute Hiba

The transferor is usually referred to as the donor. The donor’s competency to execute a Hiba depends on the fact that he must be a Muslim, have attained the age of majority, and have a sound mind. The age of majority is 18 years normally and 21 years if the donor has a court appointed guardian.

Mental capacity: It basically means that the person must be able to understand the consequences of his actions in transferring the property as a gift while he is making it. In the case of Hussaina Bai vs. Zohara Bai (1959), the validity of a gift that was made by a woman of an unsound mind was brought to question. The donor was a parda nashin woman who was bought from one city to another by informing her that her brother-in-law was suffering from a serious ailment. Upon reaching the place, she encountered a fit of hysteria and after the attack, she was made to sign a gift deed without letting her know the content of the deed. She was not given an opportunity to make a calculated decision. The Court stated that whenever a gift is executed by a parda nashin woman, free consent must be established at any cost to make the gift valid. It must also be established that the woman took the decision on her own accord and without being prompted by anyone else. The burden of proof that the consent was obtained freely, without any coercion, fraud, or undue influence, lies on the donee. In this case, the deed was executed without free consent and therefore it was declared to be invalid.

Hanafi law on financial competency: The Hanafi school of law, which is an important source of Muslim law, states that a person who is insolvent is competent to make a gift but the Kazi holds the power to declare such a gift void in case he believes that the gift was made to defraud the donee. The bona fide intention of the insolvent donor makes it important to term the gift as a valid gift.

Competency of the donee

The person who receives the gift is referred to as the transferee/ donee. A competent donee must be a person in existence while the gift is being executed. The donee can be of any religion, sex, or state of mind. A lawful Hiba can be made by a Muslim, a major of sound mind, or a non-Muslim, a minor, or a person of unsound mind.

Gift to a child in the womb

A child in a womb born alive within six months of the date on which the gift deed was made will be considered a competent donee. Once the gift deed is made, if an abortion/ miscarriage takes place, the gift deed becomes void. The child must be in existence in the mother’s womb while the gift is made. If conception has not taken place, the gift would be void ab initio.

Gift to juristic persons

Juristic persons are usually non-human legal persons like companies, associations, and universities who have a right to sue, can also be sued, and are therefore considered to have legal “personality” by law or courts. In the case of Hiba, a juristic person is considered a competent donee, and any gift made in favour of such a juristic person is considered to be valid. Rather, it is a common practice to execute Hiba in favour of mosques, madrassas, etc.

Gift to more than one donee

A valid Hiba can be executed in favour of a single donee or a class of people but in the case of Hiba being executed in favour of a class, every individual who forms a part of that class must be ascertainable as a donee receiving the gift.

Subject matter of Hiba

Unlike Hindu law, Muslim law doesn’t make any typical distinction between ancestral and self acquired property or between movable and immovable property, especially when it comes to Hiba. Any kind of property that the donor has ownership over can form the subject matter of a Hiba and it can also be corporeal or incorporeal. Unlike the limitation on will or wasiyat, wherein the testator can only include one-third of his property, a donor can gift his entire property through a gift deed or Hiba.

Formal conditions for a valid Hiba

There are certain formalities that must be met to make a Hiba valid in the eyes of the law. They are:

Declaration of gift by the donor

Declaration basically means the intentions of the donor to make a gift. It is the ascertainment of the legal intention behind making a valid Hiba through the transfer of ownership from donor to a donee, absolutely and without any restraint. The gift can be declared to be made either orally or through a written deed. In the case of Md. Hesabuddin vs. Md. Hesaruddin (1983), a Muslim woman had executed a gift of her immovable properties in favour of her child. The declaration of the gift was written on plain paper and was not registered. The Court stated that, as per Muslim law, writing is not a mandatory requirement for the validity of a gift, regardless of whether it is movable or immovable property. Therefore, the gift is valid, as writing and registration are not mandatory prerequisites for the validity of a Hiba.

Even though registration is not essential, there must be an express declaration of intention to execute a Hiba. It must be done in clear and unambiguous words, declaring the intention to transfer his ownership in the subject matter absolutely to the donee. In the case of Maimuna Bibi vs. Rasool Mian (1990), it was held that it is necessary that the donor completely transfer his absolute ownership of the property that forms the subject matter of the gift. It is absolutely necessary that the donor express his intentions clearly to the donee.

The content of the donor’s gift must be obtained freely. Any expression of interest to transfer a property as a gift while under undue influence, misrepresentation, fraud, or coercion will not be considered valid. The bona fide intention of the donor is also important. The execution of a gift with the intention of defrauding the donee is considered void.

Acceptance of gift by the donee

The acceptance of the donee to receive the gift is an essential requirement of a valid gift. Acceptance shows the intention of the donee to take away the property from the ownership of the donor and be the absolute new owner of the property. A gift without the acceptance of the donee is an incomplete gift. Under Muslim law, a gift is treated as a bilateral transaction and hence, a proposal by the donor and acceptance by the donee are treated as essential preconditions for the validity of the gift.

In the case of a minor donee, the gift can be accepted by the guardian of the minor’s property on his behalf. If a gift is made to a juristic person, the gift can be accepted by any competent authority or manager of the entity. If a gift is made of two or more donees, it must be accepted by each and every one of them separately.

Delivery of possession

The formalities of a gift mentioned under the Transfer of Property Act, 1882, do not apply to Muslim gifts or Hiba. Under Muslim law, a gift is considered complete only after the delivery of possession is effected by the donor to the donee. Which basically entails that the donor is deprived of possession and ownership of the property that is transferred to the donee. As per law, the date on which possession of the gift property is delivered to the donee is the date on which the gift is taken to the affected. The date on which a declaration is made is immaterial. The delivery of possession is an absolutely important part of the Muslim law on gifts and has a great overriding effect. Even if the gift is made through a registered deed, if it isn’t delivered to the donee, it will be considered void. It is an essential requirement that the owner not only divest himself of ownership but also of possession of the property to make the gift complete. Therefore, it is fair to say that Muslim law doesn’t presume the transfer of ownership rights without the transfer of possession. In the case of Noorjahan vs. Muftakhar (1969), a donor executed a gift of a property in favour of a particular donee but the donor continued to maintain and handle the property and took all the profits for himself. Even after the death of the donor, no mutation was made in the name of the donee. Considering all these facts, the court held that the lack of delivery of possession renders the gift incomplete and ineffective in nature.

Modes of delivery of possession

There are various modes of transferring a property’s possession but it does depend on the nature of the subject matter of the gift. The donor is legally required to do something to effectuate the transfer of physical control and ensure that the donee receives dominion over the property so as to constitute a valid delivery of possession. A donee is said to have been possessing a property if he is placed in a position where he can enjoy absolute ownership over the property and get all the benefits arising from it. Muslim law presumes two primary forms of delivery of possession and they are actual delivery or constructive/ symbolic delivery.

Actual delivery of possession

Actual delivery of possession basically means the physical handing over of a property. Wherever a property is tagine and is capable of being physically possessed, actual delivery is done to transfer the possession. In the case of a movable property, it must actually be delivered by handing over the property to the donee. In the case of immovable property, actual delivery of possession is also essential but considering that it cannot be picked up and handed over to another person, the donor can deliver the property by handing over the title deeds and documents related to the property to the donee so as to allow him to use them however he pleases.

Constructive delivery of possession

Constructive delivery of possession entails a symbolic transfer of possession by some act that legally presumes the transfer of possession to the donee. Such delivery of possession is effected where there is a type of property that, by nature, does not allow actual delivery of possession. Certain circumstances include wherever the property is intangible or when the property is tangible but due to certain circumstances, actual delivery is not possible. Whenever the possession of a movable property is delivered, the exact time can be easily ascertained but whenever it comes to the transfer of possession of an immovable or incorporeal property, the exact time can be tough to ascertain. As per the benefit theory, constructive delivery of possession is complete as soon as the donee starts receiving some benefits out of the gifted property, and in a case where the donor is enjoying the benefits, the gift is not said to be complete. In the instant case that we are dealing with, the facts state that the donor used to receive the rent released from the house. Therefore, in such a situation, the transfer of possession would not be treated as valid. Contrary to the benefit theory, the intention theory states that the delivery of possession is effected on the day on which the donor shows the intention of transferring the possession to the donee. This intention can be proved through the facts and circumstances of the case. For instance, if the subject matter of a gift is a house and both the donor and the donee stay in the house, the intention to transfer possession reflects when the donor hands over the rights to manage the house to the donee.

Revocation of Hiba

Even though the core principles of the Islamic faith stand against the revocation of gifts, it is a well established practice in Islamic law to allow the revocation of any voluntary transactions made by a Muslim individual, and considering a Hiba is a voluntary transaction, it is revocable. All gifts are revocable before their possession is delivered to the donee. In such a situation, court orders are not necessary. As it has been established that under Muslim law, no gift is complete till the delivery of possession, a Hiba that has not been delivered can be revoked easily. It is a simple implication of the change of mind of the donor, who is unwilling to complete the transaction anymore.

Once possession is delivered, a gift can be revoked either with the consent of the donee or with the decree of a court. A mere declaration of revocation or mere suing in a court of law for revocation is not enough to cancel a gift. The donee has the right to possess the property and utilise it till the time the court decrees to any effect regarding the revocation of a gift.

When delivery of possession is not a necessity

The general rule under Muslim law is that a gift cannot take effect unless the possession is delivered but there are certain exceptions to this general rule. The first exception is when the donor and donee live together in a house, which forms the subject matter of the gift. In such a case, a formal delivery of possession is not necessary. As the donee is in continued possession of the house in another capacity, there is no necessity to give the donee the same possession in a different capacity. There must, however, be some conspicuous act on the part of the donor to indicate his bona fide intention to transfer possession.

The second exception is when a gift is made by a husband to his wife or vice versa. In such a situation too, joint residence is considered an integral part of a marital relationship and therefore there is no necessity for an actual transfer of possession. In the case of Fatmabibi vs. Abdul Rehman (2000), the husband had made an oral gift of a house to the wife and later the gift deed was registered. Their 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. The court held that whenever an oral gift is made in the presence of two witnesses, it amounts to declaration and the mentioning of the wife’s name in the gift deed amounts to acceptance and mutation and therefore is a sufficient delivery of possession due to the relationship between the parties.

Important legal definitions and terminologies involved in the case

The case outlines various important legal terminologies, which affect the understanding of the case in a large way. Some of the important ones are:

Misrepresentation

The Indian Contract Act, 1872, in its Section 18, defines the term misrepresentation as a falsified statement made by one party to obtain the consent of another party to a contractual transaction. Gift deeds also fall under contracts but are contracts without any consideration, which is an exception to the general rule that contracts must have consideration. Misrepresentation includes the expression of deceptive details, keeping silent on important information, etc. It is a rather innocent assertion, as the person stating the fact believes it to be true when the fact is not actually true. It can also be defined as a breach of duty that, without any intention to deceive, gains an advantage to the person making such breach at the cost of the other party’s rights. In misrepresentation, the person making the statement is innocent but the contract is voidable at the option of the party so misrepresented.

Undue influence

Section 16 of the Indian Contract Act, 1872 defines the term “undue influence” as: a contract is said to be made through undue influence if the consent of the party is obtained through domination, as one party has more authority over the other and exercises such authority to influence the decision of the consenting party. It can be proved if a person has any real or apparent authority arising out of a relationship based on trust between them or if a contract is formed with a person whose mental capacity is affected due to illness and age. Undue influence makes a contract voidable at the option of the weaker party.

Fraud

As per Section 17 of the Indian Contract Act, 1872, fraud means an act of deception to obtain the consent of one party for the contract. It includes presenting a false statement as true while knowing that the statement is false. Actively concealing a fact while being aware of its existence amounts to fraud. Making promises without any intention of fulfilling them is also termed a fraudulent act. Therefore, fraud makes a contract voidable at the option of the party so defrauded by the other’s act. While misrepresentation is innocent, fraud is deliberate.

Issues involved

Whether the gift deed is obtained by fraud, misrepresentation, and undue influence, and therefore is it void?
Was there delivery of possession of the house, which was a part of the gift deed?
Whether the suit was barred by limitation and therefore not admissible?

Contentions of the plaintiff

The plaintiff contended that the gift deed was obtained by fraud and that the defendant had an undue influence over her. She also stated that the defendant misrepresented the material facts to obtain consent from the plaintiff for the gift deed. Owing to all these facts, the plaintiff contends that the gift deed must be set aside as it is unlawful to obtain a gift deed through misrepresentation, undue influence, and fraud. The plaintiff also contended that the fact that the plaintiff continued possession of the house, which was part of the gift, is a valid reason to set aside the gift deed as the possession was not absolute.

Contentions of the defendant

The defendant denied any allegations of fraud, undue influence or misrepresentation. The defendant contended that he has remained in possession of the house since the date of the execution of the gift deed. He claimed that he had also spent over Rs. 150 for making improvements to the house in question. He stated that he had also paid Rs. 150 to purchase the rights of Bulaqi Das, who had purchased the rights of the plaintiff’s daughter, Musammat Aliman. He had to make the purchase as the daughter was the joint owner of the said house along with the plaintiff. The primary argument of the defendant was that the gift deed was in reality a sale deed and it was done in such a way to prevent a claim for pre-emption.

Trial Court’s decision

During the proceedings, the Trial Court observed that the gift deed in challenge was actually a gift without consideration and nothing more than that. It found that the gift deed was certainly executed under specific misapprehensions that arose from the false and deceptive promises made by the defendant so as to gently persuade the plaintiff into executing the gift deed in his favour. The Trial Court noted that the plaintiff was duped and misled by the defendant into executing the gift deed but it cannot be said that she was put under any undue influence. Thus, the contention regarding undue influence was negated but misrepresentation fraud was established. The plaintiff had given more preference to the defendant, who was related to her through a very distant relationship (her husband’s brother). The plaintiff gave him more preference over her own brother’s claim to the property. She gave more preference to the defendant because the defendant was taking care of her needs and attending to her carefully, while her own brother was completely ignoring and neglecting her needs and well being. Due to her old age, she wanted care and attention, which she received from the defendant but not from her own brother. Thus, undue influence cannot be ascertained.

Coming to the question of possession, the Trial Court observed that the rent of the house in question was paid to the plaintiff for a long time, and even after the gift deed, the defendant had paid rent realised from the house to the plaintiff and therefore she was quite satisfied with the arrangement. The conflict arose when the defendant stopped paying the rent realised from the house to her, started neglecting her, and stopped giving any attention to her. Due to these reasons, her eyes were opened to the truth of the matter and the reality, owing to which she sought the help of her brother to set aside the gift deed and get rid of the transaction.

As per other claims of the defendant, the Trial Court held that Rs. 150 was actually paid towards the improvements in the house, and another similar amount was paid for purchasing the rights of Bulaqi Das, who had purchased the rights of the joint owner of the house and the daughter of the plaintiff, Musammat Aliman. Therefore, a decree was passed by the Trial Court to cancel the gift deed and it also stated that the plaintiff could recover possession of her share of the house after paying Rs. 150 for the improvements made by the defendant and Rs. 150 for the price paid by the defendant to purchase the rights of Bulaqi Das.

Based on this decree, an appeal was preferred by the defendant to the appellate authority and the plaintiff filed certain cross objections to the same. The lower appellate court confined itself to the question of limitation and did not determine other aspects and claims made in the car. By restricting itself to the question of limitation, the lower appellate court held that Article 91 of the Indian Limitation Act, 1908, barred the suit from being admissible and barred the claim.

An appeal was preferred to the High Court.

High Court’s decision

The Allahabad High Court considered the previous decisions and the facts of the case and came to the conclusion that it was not possible for the court to determine the question on limitation barring the claim without divulging the issues involving the facts of the case. It is important to pay heed to the fact that the plaintiff remained in possession of the house even after the execution of the gift deed but this contention was traversed by the defendant. The High Court observed that the Trial Court had recorded the previous fact but the lower appellate court did not pay any heed to it and left it undetermined. The High Court observed that wherever a gift deed is executed by a person under the Mohammedan Law and the possession of the property that is a part of the gift deed is not delivered, the gift becomes void ab initio. This statement was made in reference to the previously established precedents in the cases of Sarajul Haq vs. Khadim Husain (1884) and Meda Bibi vs. Imaman Bibi (1884). It was also noted that in such cases, no question of limitation barring the claim would arise.

The High Court also observed that the rights of the plaintiff to impeach such a gift only accrues from the moment when, upon receipt of possession, the gift becomes valid or operative in law. As per Article 91 of the Indian Limitation Act, 1908, a period of three years is provided from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. As per the High Court, the lower appellate court had not determined the date on which the facts entitling the plaintiff to set aside the instrument became known to her. The High Court referred to the decision in the case of Singarappa vs. Talari Sanjeevappa (1904), wherein the plaintiff had executed a sham sale deed in favour of the defendant and neither party intended to act upon it but four years later, the defendant began to set up a claim of ownership based on the deed and the plaintiff argued that limitation will bar the claim but it was decided that Article 91 would not apply in this situation. Therefore, the claim was not barred as it was brought within three years from the date when the plaintiff apprehended that the defendant had set up title under the instrument. Similarly, the High Court referred to the case of Petherpermal Chetty vs. Muniandy Servai (1908), in which the lordships of the Privy Council had held that wherever a deed was inoperative, it was not necessary for the plaintiff to have it set aside as a preliminary to him obtaining possession of the property in the gift deed.

In the instant case, the plaintiff stated that the payment for the rent realised from the house was stopped around the time when the suit was filed and therefore, this fact should have been determined by the lower appellate court while dealing with the case

It was also stated that the deed of gift in its very nature is revocable under the Mohammedan Law and this point cannot be determined unless and until other questions raised in appeal before the lower appellate court are finally decided. Considering that the parties are Sunni Muslims, the question in relation to the gift deed is to be ascertained through Hanafi Law and as per Hanafi Law, a gift cannot be revoked after the subject of the gift has increased in value due to certain accession made by the donee, which is inseparable from the property.

Considering all these points, the High Court allowed the appeal, the decree of the lower appellate court was set aside and the suit was remanded to the lower appellate court to reinstate the case under the original number and get it disposed of after determining other important points involved in the appeal and the cross objections made thereto.

Critical analysis of the judgement

It is important to acknowledge the fact that a gift is made with the intention of allowing the donee to enjoy the benefits of the property. A Hiba, under Muslim law, presumes the absolute transfer of ownership from the donor to the donee. Any restrictions on such a transfer are considered to make the gift invalid. Therefore, possession becomes an important aspect. A gift or Hiba becomes valid only when possession is established or delivered to the donee by the donor. In this case, the plaintiff kept receiving the rent realised from the house and once it was stopped, the plaintiff was irked by the decision and filed a case. This shows that the plaintiff was trying to alienate the defendant from the benefits arising from the house which would have naturally made the gift invalid. On the other hand, the court believes that the gift was made under misrepresentation and therefore it is possible to revoke the gift. While the finality of the conflict doesn’t find its place in the judgement, it still gives very important principles regarding Hiba. The first is the importance of delivery of possession to make a gift valid and the second is revocation of the gift if it is made through misrepresentation, fraud, or undue influence. Another important principle given by this case states that the limitation of three years to file a suit on such a gift arises only when the title to the subject matter of the gift is apprehended. It basically means that the date of the gift commences not on the day on which it was declared but on the day on which the possession of the subject matter was delivered.

Conclusion

The decision given by the High Court in the case of Mulani vs. Maula Baksh (1924) is highly significant as it contributes to creating a standardised set of formalities to govern Hiba or a Muslim gift. Personal laws present a lot of ambiguities in their application and through such decisions, it becomes easier for courts to ascertain the legality of any matter that is governed by a religious personal law. Therefore, the fine points of law with regards to the delivery of possession, limitation, and revocation of a gift are what make the decision in the instant case truly material in its points.

Frequently Asked Questions(FAQs)

Which date is considered the date of execution of a Hiba?

Considering delivery of possession is an important aspect of Hiba, the date on which the possession of the subject matter of a gift is delivered by the donor to the donee is considered the date on which a Hiba is executed. It is immaterial if the gift was declared on a previous date.

When is the delivery of possession not essential?

Delivery of possession is not essential when the donor and the donee reside in the same household and the house is the subject matter of the gift. For example: gifts between parents and wards, husband and wife, etc. mere symbolic transfer of house management is enough to deliver possession.

When can a gift be revoked?

A gift made by a Muslim or a Hiba can be revoked before the delivery of possession. Once the possession is delivered, it can only be revoked with the consent of the donee or through a decree of the court.