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FAMILY LAW II- B.A. LL.B (Hons.

)
IV Semester

TOPIC:

GIFT UNDER MAHOMEDAN LAW

SUBMITTED ON: APRIL 9, 2016

SUBMITTED TO: SUBMITTED BY:

PROF. DEEPIKA S. AKSHAY


KHARTE

-BA0140005

PRADYUMNA SINGH RATHORE

-BA0140040
Introduction

Gift is a transfer of property where interest is transferred from one living person to another,
without any consideration. It is a gratuitous and inter vivos in nature. This is the general
definition that is accepted by all the religions, including Muslim law. As per the Muslim Law, a
gift is called as Hiba.

Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650 AD.
In general, Muslim law draws no distinction between real and personal property, and there is no
authoritative work on Muslim law, which affirms that Muslim law recognises the splitting up of
ownership of land into estates. What Muslim law does recognize and insist upon, is the
distinction between the corpus of the property itself (called as Ayn) and the usufruct in the
property (as Manafi). Over the corpus of property the law recognises only absolute dominion,
heritable and unrestricted in point of time. Limited interests in respect of property are not
identical with the incidents of estates under the English law. Under the Mohammedan law they
are only usufructuary interest (and not rights of ownership of any kind). A person can be said to
be an owner only if he has full and absolute ownership. If the use or enjoyment of property is
granted to a person for life or other limited period such person cannot be said to be an owner
during that period.

According to the mahomedan law a hiba or 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. The
gift is further defined as the transfer of movable or immovable property with immediate effect
and without consideration by one person called the donor to another person called the donee and
the acceptance of the same by one himself or by someone authorized on his behalf, provided that
making the gift must totally renounce all his title and rights in the property gifted away of his
independent free will. A hiba literally signifies a donation in which the donee may derive profit.

We can discover whether a document is a gift deed or a will by referring the terms, conditions
and recitals, where the ownership has been transferred in praesenti [i.e. at the present time or
opposite to future] absolute is a gift and any condition imposed on the enjoyment of the property
is invalid. The gift must be accepted and there should be delivery of possession then only the gift
deed will be considered as valid. A person can be said to be an owner only if he has full and
absolute ownership. If the use or enjoyment of property is granted to a person for life or other
limited period such person cannot be said to be an owner during that period. According to
Muslim Law the religion of the person to whom the gift is transferred is not relevant.

The Hanafi lawyers defined hiba as an act of bounty by which a right of property is conferred in
something specific without an exchange similarly the shias told that a hiba is an obligation by
which property in a specific object is transferred immediately and unconditionally without any
exchange and free from any pious or religious purpose on the part of the doner.

Essentials of hiba Since under Muslim law gift is a part of law of contract there has to be an
offer [Izab] i.e. a declaration of gift by the donor, and acceptance [qabul] i.e. acceptance of gift
by or on behalf of the done, express or implied, and transfer [qabza] i.e. delivery of possession of
the gift by the donor to the donee if these conditions are fulfilled the gift is valid and complete.

Declaration - There must be a clear and unambiguous intention of the donor to make a gift in
favor of the donee. Declaration itself is a statement of intention by the donor. This declaration
can be oral or written. The declaration should be free from all the impediments such as
inducement, threat, coercion, duress or promise and should be made with a bonafide intention.

Acceptance A gift is void if it is not being accepted by the donee. Under Muslim Law
guardians can accept a gift deed on the behalf of a minor. The donee can be of any religion. Hiba
in favour of a child or women is also valid; in fact if a child is in the womb of the mother and
will be born alive in six months from the date of declaration, then the child can also be a
competent donee. A gift can be made in favour of Juristic persons as they are competent donee
too.

In case of minor or any insane person, any of the guardians given below can accept the gift these
are;

i. Father
ii. Fathers Executor
iii. Paternal Grand-Father
iv. Paternal Grand-Fathers Executor

Acceptance by a person other than the Guardian In case the mother of a minor child, son or
daughter is not his/her legal guardian but can be testamentary guardian if she was so appointed
by either the father or the paternal grand-father under their Wills. In case of a minor women who
after the marriage is being living with his husband then such husband is competent to accept the
gift on behalf of his minor wife even though her father may be alive. In Katheessa Ummas case,
court quoted that, If a fatherless child be under charge of his mother and she takes possession of
a gift made to him it is valid The same rule holds with respect to a stranger who has charge of
the Orphan. The court also quoted that it is lawful for the husband to take possession of anything
given to the wife provided that she has been sent from her fathers house to her husbands house
as by this act she has resigned her concerns to her husband. Thus if a minor is under the care and
protection of someone who is not his legal guardian only because the child has no guardian then
the person can accept the gift on behalf of the minor and the gift will be considered valid.

Delivery of Possession In Muslim Law the gift has no legal effect till possession is not given. It
is said that the donor must vacate the premises completely and should not leave even a single
straw in the property to signify total relinquishment of control and ownership over the property.
The test in delivery of possession is to see who reaps the benefit of the property the donor or the
donee. If the donor still reaps the benefits of the property then the property will not be considered
as being transferred to the donee and the gift will be invalid.

The mode of delivery of possession totally depends upon the nature of the property. A delivery of
possession may be:

Actual or Constructive

Actual delivery of possession: when a property is physically handed over to the donee then this
delivery of possession will be actual, usually only tangible properties can be delivered to the
done and these tangible properties can be movable or immovable. Under the muslim law the gift
fails for the want of delivery of possession when the mutation proceedings though started but the
physical possession is not possible and the donor dies but however if it is proved that the
mutation was not complete but the property was in possession of the donor then the gift will be
valid.

Constructive delivery of possession: in this type of delivery of possession there are following
two situations
Where the property is intangible, i.e. it cant be perceived through senses[eg: Touch]
Where the property is tangible but its actual and physical delivery is not possible.

Kinds of gifts:

MUSHAA- mushaa is an undivided share in property either movable or immovable. It refers to


collective segments of property and in specific to such property which forms the subject matter
of a gift. Mushaa is originated from shuyuni which means: the disorder contemplated appears
to the possible disorder regarding the enjoyment of the property by other cosharers as a result of
the gift of a part by one or more cosharers. If, by the very nature of the property or by the
relationship of the contracting parties; the gift of a definite share cannot lead to a confusion of
enjoyment in future, the mushaa rule shall not be applied with all its rigidity. The exceptions
laid down by judicial precedents indicate that if the gift of the undivided share cannot affect the
normal enjoyment of the property or if a physical partition may determentally affect the
enjoyment of the property, a gift shall not fall because it is the transfer of an undivided share in
the property. A part from pressing in to service the mushaa rule, the defendants have not
specifically pleaded that by the transaction confusion will be caused in the matter of undivided
property. In the absence of the necessary facts constituting the basis upon which the mushaa
rule can be applied to the suit property, it cannot be held that the gifts should be avoided by the
application of the mushaa rule. The appellants have no case that the gift of mushaa property is
void ab initio because it is well settled that the gift can be perfected by a subsequent partition and
delivery of possession of the share dealt with by the gift deed. There are exceptions to the above
principle of subsequent division. Where the donor has made a gift of his entire interest to the
donee which was a share in a property, it is not possible for the donor to voluntarily effect a
division and then deliver his share to the donee. In such cases the donee has a right to sue for
partition.1

In Muhammad Mumtuz v. Zubaida Jan,2 the Privy Council said the doctrine relating to the
invalidity of gifts of mushaa is wholly unadapted to a progressive state of society, and ought to
be confined within the strict rules.
1 Kunhimoideekutty v. abdulkhader(1997) K.L.T. 193

2 (1889) 11 ALL. 460, 16 I.A. 205, 215.


In Ala Baksh v. Mahabat Ali3 it was considered that the gift of an undivided share is valid in
anything which can be used to better advantage in an undivided condition.

In a Madras case,4 Benson, J., observed that the doctrine of mushaa did not apply in the Madras
Presidency, but it was held in a later case that that view was erroneous.5

It has been held by the High Court of Allahabad that though a valid gift cannot be made to an
undivided share (mushaa) in property which is capable of division, the difficulty may be
overcome by the donor selling the undivided share at a fixed price to the person to whom the gift
is intended to be made, and then releasing that person from payment of the dept representing the
price.6 If this decision were correct, delivery of possession in the case of a gift could be
dispensed with in every case by the donor making a pretense of a sale to the donee and
afterwards releasing the donee from the obligationto pay the price.

HIBA-BIL-IWAZ (gift with exchange):

A Hiba-bil-iwaz, is different from hiba or simple gift as it is a gift for a consideration. It is in


reality of a sale, and has all the incidents of a contract of sale. Accordingly, possession is not
required to complete the transfer as it is in the case of a hiba, an undivided share (mushaa) in
property capable of division may be lawfully transferred by it, tough it cannot be done in the case
of a hiba.7 Two conditions, however, must concur to make the transaction valid, namely,

Actual payment of consideration (iwaz) on the part of the donee, and


A bonafide intention on the part of the donor to divest himself in praesenti of the property
an to confer it upon the donee.8

3 (1935) 61 CAL. L.J. 209.

4 Alabi Koya v. Mussa Koya(1901) 24 MAD. 519.

5 Vahazullah v. bayapati(1907) 30 MAD. 519.

6 Ahmadi Begum v. Abdul Aziz (1927) 49 ALL. 503 100 I.C. 644.

7 Hitendra singh v. Maharaja of Darbhanga (1928)


The adequacy of consideration is not material; but whatever its amount, it must be actually and
bonafide paid.9 Such a transaction is called the Hiba- bil-iwaz. It was introduced by the muslim
lawyers of india as a device for effecting a gift of mushaa in property capable of division.

The High Court of Culcutta, Madras, Lahore, Allahabad, Patna and Nagpur have held that a
transaction of this character is nothing but a sale; therefore; where the property is immovable and
is of the value of Rs. 100 and upwards, it must be effected by a registered instrument as a
required by s. 54 of the Transfer of Property Act, 1882, which relates to sales.10

HIBA-BA-SHART-UL-IWAZ:

Where a gift is made with a stipulation (shart) for a return, it is called Hiba-ba-shart-ul-iwaz. As
in the case of hiba (simple gift), so in the case of hiba-ba-shart-ul-iwaz, delivery of possession is
necessary to make the gift valid, and the gift is also revocable. But the gift becomes irrevocable
on delivery by the donee of the iwaz (return) to the donor.11 The main difference between the
hiba-bil-iwaz, of India, and hiba-ba-shart-ul-iwaz, is that delivery of possession is not necessary
in the former case, while it is necessary in the latter case.

AREEAT:

The grant of the license, resumable at the grantors option, to take and enjoy the usufruct of a
thing, is called areeat.12

A hiba is a transfer of ownership without consideration. A hiba-bil-iwaz is a transfer of


ownership for a consideration. An areeat is not a transfer of ownership, but a temporary license

8 Mt. khairunnissa v. Karamtulla (1933) 142 I.C. 42.

9 Khajooroonissa v. Roshan Jehan (1876) 2 CAL. 184,3 I.A. 291.

10 Abbas Ali v. Karim Bakksh (1909) 13 C.W.N. 160, 4 I.C. 466.

11 Mogulsha v. Mohammad sahib (1887) 11 BAM. 517

12 Muhammad Faiz v. Ghulam Ahmad(1881) 3 All. 490, 8 I.A. 25, 38.


to enjoy the profit so long as the grantor pleases. A hiba is revocable except in certain cases. A
hiba-ul-iwaz is not revocable in any case. An areeat is revocable in every case.

In areeat it is not necessary for the donor to be of age, nor that the thing given should not be
undivided (mushaa). The prohibitions governing gifts do not extend to areeats, for ownership is
not conveyed by the latter transaction.13

SADAQAH:

A sadaqah is a gift made with the object of acquiring religious merit. Like hiba, it is not valid
unless accompanied by delivery of possession; nor it is valid if it consists of an undivided share
in property capable of division. But unlike hiba, a sadaqah, once completed by delivery, is not
revocable; nor is it invalid if made two or more persons all of whom are poor.

The difference between hiba and sadaqah lies in the object with which it is made. In the case of
hiba, the object is to manifest affection towards the donee, or to win his regard or esteem; in the
case of sadaqah, the object is to acquire merit in the sight of the Lord. A gift of property even to
the rich would be a sadaqah if made with the object of acquiring religious merit.

SUBJECT MATTER OF GIFT UNDER MUSLIM LAW

Now the question which we have in mind is what can be subject matter of Hiba, under Muslim
law. As per the provisions of Transfer of Property Act, 1882, the subject matter of the gift must
be certain existing movable or immovable property. It may be land, goods, or actionable claims.
It must be transferable under s 6. But it cannot be future property. A gift of a right of
management is valid; but a gift of future revenue of a village is invalid. These cases were
decided under Hindu and Mohammedan law respectively but they illustrate the principle. In a
Calcutta case, it was said that the release of a debt is not a gift, as a gift must be of tangible
property. It is submitted that the release of a debt is not a gift as it does not involve a transfer of
property but is merely a renunciation of a right of action. It is quite clear that an actionable claim
such as a policy of insurance may be the subject of a gift It is submitted that in a deed of gift the
meaning of the word money should not be restricted by any hard and fast rule but should be
interpreted having regard to the context properly construed in the light of all the relevant facts.

13 Shaikh Mastan Bi v. Shaikh Bikari Saheb (1958)


Therefore in order to constitute a valid gift, there must be an existing property. In Mohammedan
law any property or right which has some legal value may be the subject of a gift.

Under the Muslim law, following constitute the subject matter of Hiba:

It must be anything (moveable or immovable, corporeal or incorporeal) over which the right of
property may be exercised or anything which exists either as a specific entity or an enforceable
right, or anything designable under the term mal (property).

It must be in existence at the time when the gift is made. Thus, gift of anything that is to be made
in future is void. For example, a donor makes a gift the fruits of his mango garden that may be
produced this year. This gift is invalid since the mangoes were not in existence at the time of
making the gift.

The donor must possess the gift.

A gift of a part of a thing which is capable of division is not valid unless the said part is divided
off and separated from the property of the donor; but a gift of an indivisible thing is valid. For
example, A, who owns a house, makes a gift to B of the house and of the right to use a staircase
used by him jointly with the owner of an adjoining house. The gift of As undivided share in the
use of the staircase is not capable of division; therefore it is valid.

According to Hanafi law, the gift of an undivided share in any property capable of division is,
with certain exceptions, incomplete and irregular (fasid), although it can be rendered valid by
subsequent separation and delivery of possession. For instance, A makes a gift of her undivided
share in certain lands to B, and the share is not divided off at the time of the gift but is
subsequently separated and possession thereof is delivered to B, the gift although irregular
(fasid) in its inception, is deemed valid by subsequent delivery of possession.

Exceptions: Gift of such undivided share is valid which is incapable of division:

a) Hiba by one co-heir to the other; For instance, A muslim woman died leaving a mother, a son,
and a daughter. The mother made a gift of her unrealized one-sixth share jointly to the deceaseds
son and daughter. The gift was upheld by Privy Council.
b) Hiba of a share in free hold property in a large commercial town; For instance, A wons a
house in Dhaka. He make a gift of one third of his house to B. The Property being situated in a
large commercial town, the gift is valid.

c) Hiba of a share in a zimindari or taluka; According to Ameer Ali the doctrain of Musha was
applicable only to small plots of land, and not to specific shares in large landed properties, like
zamindaris. Thus, if A and B are co-sharers in a zamindari, each having a well defined share in
the rents of undevided land, and A makes a gift of his share to B, there being no regular partition
of the zamindari, the gift is valid.

d) Hiba of a share in a land company

Muslim law recognizes the difference between the corpus and the usufructs of a property.
Corpus, or Ayn, means the absolute right of ownership of the property which is heritable and is
unlimited in point of time, while, usufructs, or Manafi, means the right to use and enjoy the
property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and the
gift of only the usufructs of a property is called Ariya.

In Nawazish Ali Khan vs Ali Raza Khan, it was held that gift of usufructs is valid in Muslim law
and that the gift of corpus is subject to any such limitations imposed due to usufructs being gifted
to someone else. It further held that gift of life interest is valid and it doesnt automatically
enlarge into gift of corpus. This ruling is applicable to both Shia and Sunni.

Hence a critical scrutiny of concept of Gift under Muslim law, gives us the following instances
regarding what can be subject matter of Hiba:

1. anything over which right of property may be exercised.


2. anything which may be reduced to possession.
3. anything which exists either as a specific entity or as an enforceable right.
4. anything which comes within the meaning of the word mal.

In Rahim Bux vs Mohd. Hasen, it was held that gift of services is not valid because it does not
exist at the time of making the gift

Gift by a Mohamedan governed by Marumakkathayam law to a tawazhi:


A tawazhi consists of a mother and all her children and descendants in the family line. It is a
corporate unit, and capable of holding property as such. Therefore, where a mohamedan who
follows the Marumakkathayam law, makes a gift of property to his wife and all her children
constituting a tawazhi, without any expression of intention as to how they are to hold and enjoy
it, the gift will be deemed to be a gift to the tawazhi, and the donees will take the property
subject to the incidents of an ordinary tarwad or tarwazhi property, one of which is impartiality.
But children by a former husband, the gift cannot be deemed to be one to a tawazhi, and the
donee will take the property as tenants-in-common in equal shares with power to alienate their
respective interests.14

Gift of immovable property by husband to wife

The rule applies to gifts of immovable property by a wife to the husband, and by a husband to the
wife, whether the property is used by them or their joint residence, or is let out to tenants. The
fact that the husband continues to live in the house or to receive the rents after the date of the gift
will not invalidate the gift, the presumption in such a case being that the rents are collected by
husband on behalf of the wife and not on his own account.15

Gift to a minor by father or other guardian

In the case of gift by the father or guardian to a minor transfer of possession is not required, the
only necessary condition is bonafide intention to give the gift.

Where there is a real bonafide intention to make a gift on the part of father or guardian the law
will be satisfied without the change of possession and will believe subsequent holding of the
property on behalf of the minor.16

14 Moithiyan Kutty v. Ayissa (1928) 51 Mad. 574,

15 Ma Mi v. Kallander Ammal (1927) 51 I.A. 23.

16 See also Abdul Sattar v Abu Bakkar, AIR 1977 Cal.132.


If there are other donees other than the minor child this section will not be applicable and
transfer of property is necessary. For Example: for the benefit of minor daughter and her adult
husband.

The mother is not in law the guardian of the property of her infant child; therefore in case of gift
by the mother to her infant child transfer of property to the father of the infant and if the father is
dead to the executor, and if the executor is dead, the childs fathers father and if he is dead to his
executor. But if none of these persons are there then there is no need of transfer of possession.

Gift to a minor by a person other than his father or guardian

In case of gift to minor or a lunatic person by a person other than his father or guardian is
completed by the transfer of possession to the father or guardian, the gift can also be completed
if the minor to whom the gift is made has attained discretion, himself takes possession.

In Gulam Hussain v Abdul Rashid the Supreme Court of India has concurred that where the
father of a minor is alive the mother of the minor cannot act as a guardian of her minor son to
accept the gift on his behalf.17

Gift through the Medium of Trust

A gift may be made through the medium of trust and the conditions for such gifts are same the
only difference is that these gifts should be accepted by the trustees and the delivery of the
possession should be to the trustees. Even through this medium of trust a muslim cannot settle
property for the benefit of persons who are incapable of taking under gift nor can he create an
estate not recognized by the law of gifts. For example a Muslim cannot make a gift in favour of
an unborn person then he cannot do so under the medium of trust.

Delivery of possession of immovable property

A gift of immovable property of which the donor is in actual possession is not complete, unless
the donor physically departs from the premises with all his goods, and the donee formally enters

17 Mulla Principles of Mohamedan Law 20th edition Pg173-175


in to possession. A gift of immovable property which is in the occupation of tenants may be
completed by a request by the donor to the tenants to attorn to the donee, or by the delivery of
the title deed or by mutation in the revenue register or the landlords sherista. But if the husband
reserves to himself the right to receive rents during his lifetime and also undertakes to pay
municipal dues, a mere recital in the deed that delivery of possession has been given to the donee
will not make the gift complete.18

No physical departure or formal entry is necessary in the case of a gift of immovable property in
which the donor and the donee are both residing at the time of the gift. In such a case the gift
may be completed by some overt act by the donor indicating a clear intention on his part to
transfer possession and to divest himself of all control over the subject of the gift.19

Who can challenge the validity of the gift?

The question of the delivery of possession is relevant only when it has been raised between
donee or those claiming under him on one side, and donee and those who claiming under him on
the other. A stranger to the gift cannot question the delivery of possession and if the donee has
accepted the gift and stood by it a stranger cannot question the possession its validity on the
ground of want of delivery of possession.20

Burden of proof

Under muslim law a property holder may his life time give away whole or part of his property
under certain forms; but is incumbent to those who seek to set up such a transaction show very
clearly that those forms have been complied with. When the property is in the possession to be
delivered and yet it has not been delivered then the gift is invalid if in a case the delivery of
possession is not necessary actual payment of the consideration and the bonafide intention of the
donor to divest himself in praesenti and to confer it upon the donee must be proved.

18 Jayanabibi v. Jayarabi (1950) 1 M.L.J. 209, (50) A.M. 761.

19 Sheikh Ibrahim v. sheikh suleman (1884) 9 bom. 146.

20 Mulla Principles of Mohamedan Law 20th edition Pg166


Where in a suit for declaration that the plaintiff, a muslim was entitled to a certain share in
property as decided by the ancestors of both the parties in the settlement it was held that the
plaintiff was entitled to a degree prayed for, when the settlement deed of the plaintiff was proved
to be true and valid and was acted upon and accepted by the donees and possession of the
properties was also transferred to the donees.

Revocation of gift:

A gift may be revoked by the donor at any time before delivery of possession. The reason is that
before delivery there is no completed gift at all.

A gift may be revoked even after delivery of possession except in the following cases:-

a) when the gift is made by a husband to his wife or by wife to her husband;
b) when the donee is related to the donor within the prohibited degrees;
c) when the donee is dead;
d) when the thing given has passed out of the donees possession by sale, gift or otherwise;
e) when the thing given is lost or destroyed;
f) when the thing given has increased in value, whatever be the cause of the increase;
g) when the thing given is so changed that it cannot be identified, as when wheat is
converted into flour by grinding;
h) when the donor has received something in exchange(iwaz) for the gift

A gift may be revoked by the donor, but not by his heirs after his death. Its the donors law that
will apply to a revocation and not that of the donee.

Once the possession is delivered, nothing short of a decree of the court is sufficient to revoke the
gift. Neither a declaration of revocation by the donor nor even the institution of a suit for
resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to
use and dispose of the subject of the gift.

Reservation of power of revocation: Where a settler reserve to himself the power of revocation,
the question arises whether a gift made through the medium of a trust is valid and, if valid,
whether the settler is entitled to exercise the power of revocation.

Constitutional Validity of Hiba


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

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

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

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

The classification may be founded on different bases such as, geographical, or according to
objects or occupations and the like. The decisions of this Court further establish that there is a
presumption in favor of the constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the constitutional guarantee; that it
must be presumed that the legislature understands and correctly appreciates the needs of its own
people and that its laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds; and further that the legislature is free to
recognise degrees of harm and may confine its restrictions to those cases where the need is
deemed to be the clearest.

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

The most essential element of Hiba is the declaration, I have given. As per Hedaya, Hiba is
defined technically as:
Unconditional transfer of existing property made immediately and without any exchange or
consideration, by one person to another and accepted by or on behalf of the latter.

According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the property
without any return.21

PROBLEMS:

1. A executes a deed to gift of immovable property in favour of B. At the date of the gift, the
property is in possession of C who claims to hold it adversely to A. B sues C to recover
possession of the property from him, joining A in the suit as the party defendant. A by his
written statement admits Bs claim. C contends that the gift is void, in as much as A was
out of possession at the date of the gift, and no possession was ever given to B.
Whether the gift is valid?

Ans. Issue: whether the gift is valid.

Here though there is no deliver of possession still the gift is valid. This could be referred from
the case of Mahomed Buksh v Hosseini Bibi22 in which it was stated that, if the donor did all he
could to perfect the contemplated gift and that nothing more was required from him. The gift was
attended with the utmost publicity, the hibanamah itself authorizes the donee to take possession
and it appears that infact that the donee did take possession. So, it was held that under such
circumstances there can be no objection to the gift on the ground that the donor had no
possession and that he himself did not give possession at the time of gift.

So, we can say that the gift deed by A to B was valid as though A was not in possession of the
property at the time of gift, but he did all he could to claim back the property.

21 http://www.lawctopus.com/academike/concept-of-gift-under-muslim-law/

22 (1888) 15 Cal. 684, 701-702, 15 I.A. 81


2. A, a Shia Mahomedan executes a deed purporting to transfer certain immovable
properties to B, C and D as trustees for the benefit of his wife and children. The dde is
executed by A and it is registered. It is not executed by B, C and D or any of them. A
continues to be in receipt and enjoyment of the rents as before. Whether the deed is valid?

Ans. Here as there is no acceptance of the trust by the trustees, nor is there any delivery of
possession to the trustees. The gift is therefore void. The introduction of trustees is merely the
employment of machinery whereby the gift is carried into effect. Acceptance of the trust by the
trustees is indicated by their executing the deed of trust. Here in the given situation the deed was
not executed by the trustees and hence there was no acceptance. As in that case of the gift to the
donee direct, so in the case of a gift through the medium of a trustee, the donor should divest
himself of all control over the corpus of the property. Here it was not done and hence the gift is
invalid.

3. A Mahomedan lady who had brought up her nephew as her son, executed a deed of gift in
favour of the nephew of a house in which they are both residing at the time of the gift.
The donor did not physically depart from the house either at the time of the gift or at any
subsequent period, but continued to live in the house with her nephew. The property was
transferred in the name of the nephew, and the rents were recovered in his name. whether
the gift is complete?

Ans. The gift is complete even though there is no formal delivery of possession as there. In the
given situation even though there is no actual delivery of possession but as the property was
transferred in the name of the nephew and the rents were recovered in his name so it was implied
that the property was transferred to him and hence the gift is valid. This situation can be referred
to the case of Humera Bibi v Najm un nissa23.

4. A paternal Grandmother gifted property to B a minor by the deed of settlement, but


property was not delivered to the donee. The paternal Grandmother and B lived together
in the house. There was a clear intention to give the property and hold it on behalf of B.

23 (1905) 28 All. 17
Ans. As the minor could get possession for himself and he lived in the house, a reservation by the
donor of the right of residence did not detract from the gift. A minor could accept the gift it was
therefore not necessary that the property should be handed over to the natural guardian. Donor
can act as the guardian and indicate some other person and hand over possession to him. There
should be a clear intention to make a gift and deliver possession where the donor and the donee
reside together a clear act only is necessary.

5. A executes a deed of gift in favour of B, but conditioned that as long as he lives he will
enjoy and possess the property and will have total right over it and will not sell or make
gift of the property to anyone and after the death of A, B will be the owner of the
property. Whether the gift is valid?

Ans. Issue whether a gift made in Futuro be vaid.

In the given situation the gift will not be valid as there is no delivery of possession and will also
not be possible till the death of A. The given situation could be referred to the case of
Chekkonekutti v Ahmed in which Ahmed make a deed in favour of his wife and told her that she
can enjoy the property till her death and after that this property to be forwarded to the daughter,
and children born to her. On the date of deed her daughter did not had any children and she also
died before the wife of Ahmed but leaving behind two children. These children claim the
property. It was held that the gift was not valid as it was made in indefinite future time.

Hence the gift made by A in favour of B is invalid as it has been made in futuro.

6. A makes a gift deed of whole of his property in favour of B on the condition that B will
pay all of his debts. Will the gift be valid?

Ans. Here the deed is valid to the extent of property gifted and not to the payment of the debts.
This could be referred with the case of Krishna Behari v Mt. Ahmadi.24

24 (1925) 11 Luck. 199. 155, I.C. 303, (35) A.O. 432.


LATEST CASES

Rasheeda khatun vs. Ashiq Ali, s/o lieutenant Abu Mohd.25, 2009, deided on October 10,
2014

The appeallant filed a suit in 1975 against the original defendants seeking recovery of possession
of the suit house. The case of the plaintiff was that the owner of the house was A who she was
looking after in his old age. Being pleased with her services, A had made an oral gift of the suit
in her favour in 1968, which was accepted by her and the possession of the house was also
handed over to her. Pursuant to the oral gift she lived in the premises and continued to look after
A. however being apprehensive that some others might disturb in her possession, A executed a
deed of gift in writing in 1970 evidencing the oral gift. A died in 1972. It was pleaded that with
in one month from the death of A, the defendants dishonestly moved an application under section
145 CrPC before SDM with an intention to evict the plaintiff and in the said proceedings the
property in question was attached, and all these circumstances constrained the plaintiff to file the
civil suit for declaration that she was the owner in possession of the house in question. During
the pendency of the suit, as alleged the defendants took over the possession in pursuance of the
release order passed by the SDM in 1975 and thereafter the plaintiff amended the plaint and
sought the relief of recovery of possession as well.

Held: A gift under the mahommadan law can be an oral gift and need not be registered; a written
instrument does not, under all circumstances require registration; to be a valid gift under
mohammadan law three essential features namely (i) declaration of the gift by the donor, (ii)
acceptance of the gift by the donee expressly impliedly, and (iii) delivery of possession either
actually ar constructively to the donee , are to be satisfied; solely because the writing is
contemporaneous of the making of the gift deed, it does not warrant registration under section 17
of the registration act. Actual physical possession may not be always necessary if there is
constructive possession of the donee.

V. Sreeramachandra Avadhani v. Shaik Abdul Rahim and another26

25 (2014) 10 SCC 459.

26 (2014) 9 SCC 350


One SH, belonging to Muslim Community, executed a gift deed whereby a titled house with
open space was gifted in favour of his wife BB. The text of the gift deed was as follows: I am
conveying in your favour, The titled house together with open space purchased by me out of my
earning, and got the same registered, as you are my wife and out of love to you and delivered
possession of the same to you forthwith. From now on you shall enjoy this immovable property
freely without a right to gift, sale etc. and you shall enjoy the property during your lifetime.
Neither myself nor my successors shall raise any objection in respect with this property. We shall
have no right to cancel this conveyance with silly reasons. During your lifetime you should not
alienate this property in favour of anybody and after your lifetime this property should devolve
upon your offspring and if you have no children the same shall return back to me or my near
successors with absolute right of enjoyment and dispossession by way of gift, sale, etc.

BB enjoyed the property during the lifetime of her husband; later BB sold the property to
appellant. After death of BB respondent brought a suit seeking declaration of their title over the
gifted property, recovery of possession and mesne profit on the ground that BB had no right to
sell the property and that respondent is LR of SH.

Held: Under Mahomedan Law, a gift has to be unconditional. Therefore, conditions expressed in
a gift are to be treated as void. A conditional gift is valid, but the conditions are void. So, the
right of BB to enjoy the property is valid but the conditions not to sell or alienate the property are
invalid. Hence, the sell of property to the appellant is valid and the respondent cant claim the
property.

CONCLUSION

The concept of the term gift and subject matter of gift has been an age old and traditional issue.
There are certain essentials of gift namely declaration, acceptance without the gift is not valid.
The gift can be revoked under certain conditions as discussed also there are certain kinds of gifts
namely mushaa, etc. All these things have made the procedure of making gift in a proper way
also made the procedure of making gift to come under the law. It also makes clear as to who can
make a gift deed in whose favour clearing all the confusions and making the procedure smooth.