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Law of Gifts (HIBA)

FAMILY LAW

FACULTY OF LAW

JAMIA MILLIA ISLAMIA


SUBMITTED BY:
Farhan Ahmed Ghazi
B. A. LL.B. (Hons.)
Class: 2nd yr
SUBMITTED TO:
Mrs. Kehkasha Danyal

ACKNOWLEDEMENT
I have taken efforts in this project however it
would not have been possible without the kind
support and help of many individuals, websites and
books. I would like to extend my sincere thanks to
all of them.
I am highly indebted to Mrs. Danyal for guidance
and constant supervision as well as for providing
necessary information regarding the project and
also for his support in completing the project.

Farhan Ghazi
B. A. LL.B. (Hons.)
Class: 2nd yr
Batch: 2012-17

Table of Contents
1. Introduction
4
2. Conception Of Property
7
3. Constitutionality of Hiba
9
4. Requisites of Hiba
14
5. Subject matter of Hiba
21
6. Doctrine of Mushaa
24
7. Formalities & modes of Gift
27
8. Case Laws
9. Revocation of Gifts
38
10. Kinds of Hiba
41
11. Registration
44
12. Sadaqah & Hiba
47

13. Ariyat
48
14. Conclusion
49

Gift is a transfer of property in which ownership is


transferred by a
person and,

living person to another living

the transfer is made without any

consideration. Gift is, therefore, a transfer inter vivos


i.e between living persons. Where a transfer of
property takes place after death of a transferor, it is
called a will. Moreover, gift is a gratuitous transfer
i.e. a, transfer without any consideration. Where
ownership in a property is transferred in return of
some consideration, the transfer is not a gift; it is
either sale or exchange. In brief, the essential feature
of a gift is that it is a gratuitous and inter vivos
transfer of ownership in an existing property. This
accepted meaning of the term gift is recognised in all
legal systems, including the muslim law.

Under muslim law, a gift is called Hiba. When a


muslim transfers his property through a gift, the
transfer is called a Hiba or a muslim gift. The
religion of the person to whom the gift is made, is not
relevant.if the transferor is muslim the gift is Hiba.
Thus, where a muslim makes a gift of his properties
in favour of a Hindu, the gift is nonetheless, a Hiba. It
may be noted that gift being a transfer of property, is
governed by the Transfer of Property Act, 1882.
chapter VII of this act is applicable to gifts made by
any person in India, irrespective of religion, caste or
creed. But, chapter VII of the Transfer of Property Act
does not apply to Muslim gifts or Hiba. 1 The reason is
that although there is no difference in the gifts made
by non muslims and a Hiba in so far as its basic
nature is concerned, yet the formalities of Hiba are
different from that of a gift made by any non-muslim.
As the rules of Muslim Personal Law were found to be
in conflict with the general rules framed for the
general people in India, it was deemed fit to exclude
Hiba, or the gift made by a muslim, from the
operation of Chapter VII of the Transfer of Property
Act. Moreover, the Shariat Act, 1937, includes gift as
one of the matters in which rule of decision should be
1

Transfer of Property Act, 1882, Section 129; Nothing in this chapter i.e. (chapter VII on Gifts) shall
be deemed to affect any rule of mohammadan law.

Muslim Personal Law if the parties are Muslims. The


result is that gifts made by non-muslims in India are
governed by the provisions of Transfer of Property
Act, 1882, whereas the gifts made by muslims are
governed by the muslim personal law. However, other
kinds of transfers, inter vivos by muslims, such as
sale, exchange, mortgage or lease, are regulated by
the Transfer of Property act and not by Muslim Law.
"Gift" is the transfer of certain existing moveable or
immoveable property made voluntarily and without
consideration, by one person, called the donor, to
another, called the donee, and accepted by or on
behalf of the donee. Such acceptance must be made
during the lifetime of the donor and while he is still
capable

of

giving.

If

the

donee

dies

before

acceptance, the gift is void.


The conception of the term "gift" as used In the
Transfer of Property Act is somewhat different from
the use in Mohammedan law. In the Mohammedan
law a gift is a transfer of property or right by one
person to another in accordance with the provisions
given in the Mohammedan law and includesa) A hiba, an immediate and unconditional transfer
of the ownership of some property or of some

right, without any consideration or with some


return (ewaz); and

b) An ariat, the grant of some limited interest in


respect of the use or usufruct of some property or
right.
Where a gift of any property or right is made
without consideration with the object of acquiring
religious
The

merit,

terms

it

"hiba"

is
and

called

sadaqah.

"gift"

are

often

indiscriminately used but the terms "hiba" is only


one of the kinds of transactions which are covered
by the general term "gift". A hiba is a transfer
without consideration. A gift by a Muslim in favour
of

his

co-religionist

must

be

under

the

Mohammedan Law. A gift is not a contract (though


in Muslim law it is called a contract) but the
principle may be applicable even to gift.

In ordinary legal effect, there cannot be a `gift'


without a giving or taking. The giving or taking are
two

contemporaneous,

reciprocal

acts,

which

constitute a gift. Section 122 of the Act postulates


that a gift is a transfer of certain existing movable

or immovable property made voluntary and without


consideration by one person called the donor, to
another, called a donee and accepted by or on
behalf of the donee. The essential elements of a gift
are
(a)

The absence of consideration;

(b)

the donor;

(c)

The donee;

(d)

The subject-matter;

(e)

the transfer; and the acceptance.

The concept of gift is diametrically opposed to any


presence of consideration or compensation.
In order to constitute a valid gift, the pivotal
requirement is acceptance thereof. No particular
mode

of

acceptance

circumstances

throw

is
light

required
on

that

and
aspect.

the
A

transaction of gift in order to be complete must be


accepted by the donee during the lifetime of the
donor. Factum of acceptance can be established by
different circumstances such as donee taking a
property or being in possession of deed of gift
alone. If a document of gift after its execution or
registration in favour of donee is handed over to

him by the donor whom he accepts, it amounts to a


valid acceptance of gift in law. The specific recital
in the deed that possession is given raises a
presumption of acceptance.
Conception Of Property
English Law.-In order to appreciate the questions
of conditions in gifts (and also in bequests) it is
necessary to first note the different conceptions of
property in English and Mohammedan laws. The
English law as to rights in property is classified by
a division on the basis of immoveable and moveable
(real

and

personal)

property.

Rights

in

land

described as "estate in land" do not always imply


only absolute ownership but also rights which fall
short of it and are limited to the life of the grantee
or otherwise limited in respect of time and duration
or use property in all these various forms are
described as "estate". Ownership of land is thus
split up into estates distinguished in point of
quality (e.g., into legal and equitable estates) and
in point of duration (e.g., estates in fee simple, in
tail, for life or in remainder.'
Mohammedan Law.-In general, Muslim law draws
no distinction between real and personal property,
and there is no authoritative work on Muslim law,
9

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 (ayn) and the usufruct in the property
(manqft). Over the corpus of property the law
recognises only absolute dominion, heritable and
unrestricted in point of time; and where a gift of
the corpus seeks to impose a condition inconsistent
with such absolute dominion the condition is
rejected as repugnant; but interests limited in point
of time can be created in the usufruct of the
property and the dominion over the corpus takes
effect subject to any such limited interests. 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).

Thus, in English law a person having interest in


immoveable property for limited periods of time is
said to be the "owner" of the property during those
periods. The usufruct is also a part of the corpus.
On the other hand, in Muslim law, a person can be
said to be an "owner" only if he has full and
absolute ownership. Ownership for a limited period

10

is not contemplated at all. 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. The English law thus
recognises

ownership

of

the

land

limited

in

duration while Muslim law admits only ownership


unlimited in duration but recognises interests of
limited duration in the use of property.
There is no difference between the several schools
of Muslim law in their fundamental conception of
property and ownership. A limited interest takes
effect out of the usufruct under any of the schools.

Constitutionality of Hiba:
The Transfer of Property Act exempts only those gifts
which are made by Muslims. This exemption may
appear to be discrimination on the ground of religion
which is against the constitutional mandate. But, it is
now well established law that this exemption is
constitutional and lawful.
Muslim gift or the Hiba has been associated with
religion and has also been included in the Shariat Act,
1937, to be regulated only by Muslim personal law;
therefore, the exemption under Section 129 of the
Transfer of Property Act does not violate Article 14 of
the Constitution of India.
11

The courts have held that the rules of Muslim law


regarding gifts are based on reasonable classification
and there is no discrimination in allowing a separate
law for gifts made by Muslims.2
A significant point in respect of Hiba is that Muslim
Law recognises certain peculiar kinds of gifts which
are not known to other systems of law. For example,
Muslim Law recognises, Hiba-bil-Ewaz or a gift with
an exchange, and Hiba-ba-Shart- ul-Ewaz or a gift
with a condition precedent. Under Muslim Law, these
two transfers are regarded as distinct kinds of Hiba.
But, as a matter of fact, these kinds of gifts are gifts
only for the names sake. As is discussed in the
following pages, the courts in India have never
regarded them as species of gift. Hiba-bil-Ewaz has
been treated by the courts as a sale or exchange.
Similarly, Hiba-ba-Shart-ul-Ewaz has been interpreted
as a Hiba subject to some prior condition.
The transfer by way of gift has been recognised as
lawful since the early years of Islam. The Prophet
directed the people of Arabia to make gifts to each
other in order to encourage mutual love and affection

However in M Rowther v. M Chary, AIR 1972 Ker. 27. The Kerala High Court has held that section
129 of the transfer of Property Act, read with article 14 of the Constitution of India, exempts only
religious gifts. It does not protect a non-religious i.e. a secular gift made by a muslim.

12

between them. He has said Send Ye presents to each


other for the increase of your love. 3
Gift is a generic term that includes all transfers of
property without consideration. In India, Gift is
considered equivalent to Hiba but technically. Gift has
a much wider scope than Hiba. The word Hiba
literally means, the donation of a thing from which
the donee may derive a benefit. It must be immediate
and complete. The most essential element of Hiba is
the declaration, I have given.
Concept of Hiba :- The Muhammadan Law defines
the Hiba or gift as a transfer of a determinate
(amount of) property without any exchange from one
person to another, and accepted by or on behalf of the
latter.1 Until acceptance, the gift has no operation. A
further condition relating to it is that the donor
should

complete

his

intention

by

delivering

possession of the property to the donee. Until then,


property remains entirely at the disposal of the donor
and upon his death, it will descend to his heirs. If
possession is given afterwards in pursuance of the
gift, they need not be i renewal of the gift. From the
above, it is clear that under Muslim law, a gift is
called Hiba. When Muslim transfers his property
through gift, the transfer is called Hiba. The religion
3

Hedaya (Hamiltons Transalation), Ed. II, p. 482

13

of the person to whom the gift is made, is not


relevant. If the transferor Muslim, the gift is Hiba.
Thus, where a Muslim makes a gift of his properties
in favour of a Hindu, the gift is nonetheless a Hiba. In
India, the subject of gifts is governed by the Transfer
of Property Act, 1872.

But, chapter VII of the

Transfer of Property Act does not apply to Muslim


gifts or the Hiba. The reason is that although there is
no difference in the gifts made by non muslim and a
Hiba in so far as its basic nature is concerned yet, the
formalities
of Hiba are different from that of a gift made by any
non-Muslim. As the rules of Muslim personal law
were to be in conflict with the general rules framed
for all persons in India, it was deemed fit to exclude
Hiba, or the gift made by a Muslim, from the
operation of Chapter VII of the Transfer of Property
Act. Moreover, the Shariat Act, 1937, includes gift as
one of the matters in which rule of decision should be
Muslim personal law if the parties are Muslims. The
result is that gifts made by a non-Muslim in India are
governed by the provisions of the Transfer of
Property Act, 1872, whereas the gifts made by
Muslims are governed by the Muslim personal law.
Constitutionality
Property

Act,

of

1882

Hiba

:-

contains

The

Transfer

besides

of

general
14

principles relating to transfer of property-the laws


relating

to

sale,

mortgage,

charge,

lease,

and

exchange, transfer of actionable claims and gifts of


property. All the Chapters of this Act except that on
gifts are applicable to the Muslim. As regards the
general principles relating to disposition of property
contained in Chapter 2 of the Transfer of Property
Act, the Act declares that nothing in the second
Chapter of this Act shall be deemed to affect any rule
of Mohammedan Law.This exemption may appear to
be discrimination on the ground of religion which is
against the Article 14 (i.e., right to equality) of the
Indian Constitution. But in Bibi Maniran v. Mohd.
Ishaque4, court now made it clear that this exemption
is constitutional and lawful. Muslim gift or the Hiba
has been associated and has also been included in the
Shariat Act, 1937, to be regulated only by Muslim
personal law. Therefore, the exemption under section
129 of the Transfer of Property Act does not violate
Article 14 of the Constitution of India. The courts
have held that the rules of Muslim law regarding gifts
are based on reasonable classification and there is no
discrimination in allowing a separate law for gifts
made by Muslims. The Kerala High Court has also
held that section 129 of the TPA, read with Article 14
of the Constitution of India, exempts only religious
AIR1963Pat229

15

gifts. It does not protect a non-religious, i.e., secular


gift made by a Muslim.
Definition of Gift.Under Muslim law, a person is
allowed to lawfully make a gift of his property to
another during his life time or he may transfer it by
way of will which will take effect after his death. The
first is called a disposition inter vivos and the latter a
testamentary disposition. A disposition inter vivos is
unfettered as to quantum. a testamentary disposition
is limited to 1/3 of the net estate. Muslim Law permits
a man to give away the whole of his property during
his life time, whereas only 1/3 of it can be bequeathed
by will. A hiba or simple gift inter vivos (between
living person) literally means the donation of a thing
from which the donee may derive benefit.1 In its
technical sense, it is defined as unconditional
transfer of property. made immediately and without
any exchange or consideration, by one person to
another and accepted by or on behalf of the latter. It
is

the

conferring

of

the

property

without

consideration. According to Mulla Gift is a transfer


of property, made immediately and without any
exchange, by one person to the other and accepted by
or on behalf of the latter.
Since Muslim Law views the law of the gift as a part
of the law of contract, there must be an offer (Ijab)
16

and an acceptance (qabtil) and delivery of possession


(qabza).
In P. Kunheema tlmma v. Aayssa Urnma, Kerala High
Court held that the requirements of a gift of
immovable property under the Muslim Law are : (1)
declaration by the donor (2) acceptance by the donee
and (3) delivery of possession by the donor to the
donee. There is, however, no consideration and this
fact coupled with the necessity to transfer possession
immediately distinguishes gifts from sale. It may be
noted that gift of the corpus of a thing is called hiba
while gift of only the usufuructs of a property is called
ariya.
In Smt. Hussenabi v. Husensab Hasan

offer of gift

was made. The offer was made by grandfather to his


grand children. The grand children were living with
him. On behalf of the minor children the acceptance
was made by the donor. But no express or implied
acceptance of gift was made by major grand son. The
Karnataka High Court held that when the three
essentials are not complete it cannot be a complete
gift. The gift-deed was valid in so far as the three
minor children are concerned. As regards the gift in
favour of the major sons was set aside.

AIR1989Kar

17

Requisites of gift. The requisites or essentials of a


valid gift are four in number, as follows:
1. Parties.
2. Subject.
3. Extent, and
4. Formalities or mode of gift.
Parties to a gift.The parties to a gift transaction
are

two:

(i) the donor, i.e., the person who makes the gift.
(ii) The donee, i.e., the person who takes something
as gift.

The donor.The capacity of making a gift, like


any other contract, depends on the following
conditions. The donor must have a donor, who
has the following qualifications, has capacity
to make a Hiba:

Mohammedan:

donor

must

be

Mohammedan.

Sex: A donor may be a male or female.

Status: A donor may be married or unmarried.

18

Age of Majority: A donor must have attained


the age of majority. The age of majority is the
age prescribed under section 3 of the Indian
Majority Act, 1875 as amended in 1999, which
now means eighteen years.

Ownership of Property: The person making a


Hiba must be the owner of the property which
is the subject matter of the Hiba. In other
words, the ownership of the property must be
with the donor, at the time of making a gift. A
gift by a widow who is in possession of the
property of her husband in lieu of dower
cannot make a gift of such property.

Free Consent: A gift made under compulsion


is not valid but voidable. Free consent of the
donor must be associated with the gift when a
gift is made by a pardanasheen lady, the proof
of independent outside advice is the usual
mode of discharging the burden by the donee
that the gift was free from compulsion. The
gift will be valid, if the pardanasheen lady had
the advantage of independent advice, and the
contents of the deed were fully explained to
and understood by her.

19

In Kaireern Biwi

v. Mariarn Biwi

Their

Lordships of Madras High Court followed the


view laid down by the Privy Council in
Faridimnissa
observed:

v.
A

Ahmed,6

Mukhtar
gift

deed

executed

and
by

pardanashin lady stands in a peculiar position.


The deposition made must be substantially
understood and must really be the mental act,
as its execution is the physical act of the
person who makes, it if however, the settlors
freedom and comprehension can be otherwise
established, or if, the scheme and substance of
the

deed

were

themselves

originally

and

clearly conceived and desired by the settlor,


and were then substantially embodied in the
deed. There would be nothing further to be
gained by independent advice. They must
satisfy the Court that the deed has been
explained to and understood by the party thus
under disability, either before execution, or
after it under circumstances which establish
adoption

of

it

with

full

knowledge

and

comprehension.
It may be noted that the protection given by
the rule relating to the pardanashin woman
1925PC204,atpp.350352

20

cannot plainly be the exclusive privilege of the


class commonly known as pardanashin. The
rule regarding transactions by pardanashin
ladies applies equally to illiterate and ignorant
woman

though

not

pardanashin.

pardanashin lady is fully competent to dispose


of

her

property

by

way

of

executing

document. In the case of a document executed


by a pardanashin lady, intelligent execution
must be proved. The extent and character of
the explanation required must depend in the
circumstances, The parda with its inhibitions
may be an additional feature or element in the
case but the real reason behind the rule is lack
of understanding and appreciation of what an
illiterate woman without independent advice
has done.A person in insolvent circumstances
can make a gift provided he has a bona fide
intention to give and the act is not merely
intended to defraud the creditors.

The Donee.Any person capable of holding


property, which includes a juristic person, may
be the donee of a gift. Thus sex, age, creed or
religion are no bar to the taking of a gift. A
Muslim may make a lawful gift in favour of any
non-Muslim, for example, Christian or Hindu.
21

However, the donee must be in existence at


the time of making the gift. in the case of a
minor or a lunatic, possession must be handed
over to the legal guardian. A donor D desires
to make a gift of an immovable property to M,
a minor. D must handover the possession of
the property of Ms father, the legal guardian.
If

possession

is

handed

over

to

Ms

brother, of Ms mother, the gift would be void.


A donee, who has the following qualifications,
has capacity to take a Hiba:

Mohammedan:

donee

may

be

Mohammedan or non- Mohammedan. After the


completion of the gift, to a non-Mohammedan,
the property will be subject to the personal
law of the donee.

Sex: A donee may be a male or female.

Status:A donee may be married or unmarried.

Age of Majority: A donee may be a major or


minor.

Soundness or unsoundness of mind: A donee


may be an insane. But when a gift is made to a
minor or a person of unsound mind, the gift
will be complete by the delivery of possession
22

to the guardian of the minor or of the person


of the unsound mind.

Existence of a donee or Child in Womb: A


Hiba cannot be lawfully made in favour of an
unborn person. Such a Hiba to unborn person
is invalid, with one exception. For example, if
the donor makes a gift of some property to a
donee and after his death to donees son who
is not in existence, such gift will be void. But a
gift to an unborn donee, who is in womb and is
born within 6 months of making of the gift, is
valid. Therefore, the child in its mothers
womb is a competent donee. Although the
child

in

mothers

womb

has

no

worldly

existence yet, in the eyes of law it is regarded


as a living person. Under the Muslim law, a
gift in favour of a child in the womb is valid
provided such child is born alive within six
months from the date on which the gift was
made. Gujarat High Court in Ibrahim Shah
Mohantinad

v.

Noor

Ahnzad

Noor

Mohammad.7 In this case the Court held that a


father can lawfully make a gift to his minor
son. In the present case the boys grandfather,
next entitled after the father to be the legal
on14February,1983.

23

guardian of the minors property was still


alive. The Court held that even though under
the Muslim law, the mother is not the natural
guardian of the property of her minor son.
When the father and grandfather are both
alive, she had the capacity, with the consent of
the legal guardian to take symbolic possession
of the property on behalf of the minor

A Hiba cannot be made in favour of a dead


person: When a widow makes a Hiba of her
Mehr to her deceased husband, though such a
transaction if called Hiba-a-Mehr. it is in fact a
unilateral foregoing of the right to Mehr by the
widow to which the principle of Hiba does not
apply.

And a gift of future usufruct to unborn person


is valid provided the donee is in being at the
time when interest opens out of heirs.

Joint donees: A Hiba jointly in favour of two or


more persons is not ipso facto invalid. In other
words, a gift may be made jointly to two or
more persons but the shares of each should be
clearly specified. For example, if a gift of a
property capable of being divided is made to
two or more persons without specifying their
24

shares or without dividing them, then the gift


is not valid kut if such donees themselves
make

any

mutual

arrangement

and

tale

possession of their individual shares, then the


gift is valid.

Gift

of

usufruct

to

unborn

person.

Formerly it was said that a gift of future


usufruct to unborn person shall not be valid.
Later on, this opinion, was not adopted.
In Ghulanz Huseins8 case it was held that a
gift of future usufruct to unborn persons is
valid provided that the donee is in being at the
time when interest opens out for heirs. In this
connection, the provisions of the Transfer of
Property

Act

may

be

noted.

(i) if the gift to an unborn person is proceeded


by a proper disposition, the gift shall be of the
whole

residue.;

(ii) the gift will not offend the rule against


perpetuities;
(iii) if a gift is made to a class of persons with
regard to some of whom it is void under (i) or
(ii), the gift fails in regard to those persons
only and not in regard to the whole class;
(iv) if a gift to an unborn person is void under
(1932)34BOMLR510

25

(i) or (ii) any gift intended to take effect after


such gift is also void.

Fiduciary

relationship.When

the

donee

stands in a fiduciary relationship to the donor


or the relation between the parties is such that
the donee is in a position to dominate the will
of

the

donor,

in

case

of

dispute,

the

presumption of undue influence arises and on


that account such a gift can be held to be void
and in such circumstances it is incumbent on
the donee to satisfy the Court that the donor
had competent and independent advice in
making the gift.

In Musa Miya v. Kadar Bux9, the Privy Council was


required to consider a case where it was alleged
that a grandfather had made a gift of property to
his grandsons, but had done nothing further to
complete the gift, not only was there no deed
executed and no mutation effected, but it was
proved that the grandfather had not relinquished
but continued to manage the property till his death,
without in any manner having indicated that he
regarded himself as a trustee for his grandsons or
9

(1928)30BOMLR766

26

that he was in possession of the property on their


behalf. The only question before the Privy Council
was whether the case fell within the exception
which provided that a gift by a father or other
guardian of a minor does not require a change of
possession and their decision was that it did not. It
was held that it is a well established principle of
law that a gift in favour of a minor by any person
other than the father or guardian of such minor
must be accompanied with delivery of possession to
the

father

or

guardian

of

the

minor.

2: Subject-matter of a Hiba (Mouhub) :- A


Muslim can make a Hiba of the whole of his/her
property. Every form of property or right which has
some legal value may be the subject-matter of a
Hiba.1 However, the property must be transferable
under section 6 of the Transfer of Property Act,
1882. As a matter of fact, any property (mal) over
which

ownership

may

be

exercised,

may

be

transferred through a gift. Tangible as well as


intangible property may be the subject matter of a
gift.

Whatever

is

made

according

to

Muslim

jurisprudence can be lawfully subjects of gifts at


Muslim law.

27

Following mentioned are some types of property or


right which may constitute the subject-matter of a
gift.
1. Gift or corporeal or incorporeal property: A Hiba
or gift may be made of corporeal as well as
incorporeal property. All actionable claims or any
other incorporeal property may be the subject-matter
of gift. The following subjects may constitute the
subject

matter

of

gift:

(i) Negotiable instrument,


(ii) Government promissory notes,
(iv). Property under attachment,
(v) Right to receive an annuity charged on land,
In all above cases, the donor should clearly show his
intention to divest himself in praesenti of the property
and confer it on the donee.
2. Gift of equity of redemption: Gift of an equity of
redemption is valid. When a person (mortgagor)
takes some loan from the other (mortgagee) by
securing his immovable property, he has an equitable
right to redeem his property after paying the loan.
Mortgagors

this

right

is

called

his

equity

of

redemption. Equity of [redemption is mortgagors


28

beneficial interest and is owned by him. A mortgagor


can make a gift of his right of redemption. Where a
gift of the equity of redemption is made, the donee
becomes entitled to redeem the mortgage from the
mortgagee satisfying the debt.
3. Gift of Insurance Policy: Gift of insurance policy is
valid. The policy holder, whether he is Muslim or nonMuslim, has an interest in the sum insured. The olicyho1dr owns this interest. However, this interest is
his contingent interest. s gift of contingent interest is
void under Muslim law, the gift of insurance policy
cannot be made by a Muslim policy holder under
Muslim law. But, under section 38(7) of the Insurance
Act, 1938, gift (assignment) of insurance policy is
lawful. In Sadiq Au v. Zahida Begum,10 the court held
that the expression, any law or custom having the
force of law to the contrary, in section 38(7) of the
Insurance Act, 1938 are wide enough to exclude the
contrary rules of Muslim law on gifts. The result is
that where a Muslim makes a gift of his insurance
policy the gift is

valid because the Insurance Act,

1938, would be applicable and not the contrary rules


of the Muslim law.

10

AIR1939All744

29

4. Gift of Debt: A release of a debt by the creditor to


the debtor may be made. Such release amounts to a
gift.
5. Gift of existence property only: Only the existent
property may be the subject of a gift. The property or
a right, which is not in existence, cannot be the
subject of a gift. For example, a gift of the fruit that
may be produced by the donors palm tree is not
valid.
6. Gift of Dower: Gift of dower by a Muslim wife in
favour of her husband is valid. This is called as Hibae-Mahr, i.e., gift of dower. Dower is a debt which is
due to the wife against her husband. Right to claim a
debt is an actionable claim, therefore, wifes right to
dower is her actionable claim and as such it may be a
subject matter of Hiba. But it should be made only to
the husband. Gift of dower to any person other than
husband is void.
7. Gift of Service: The subject matter of gift must be
some

property

whether

tangible

or

intangible.

Services or the natural love and affection are not


properties. Therefore, they cannot be all subjectmatter of a Hiba.
8. Gift of Mortgage property: A property which is
under a mortgage may also be lawfully gifted. In this
30

respect, the courts have held as following thing, (a)


when

mortgaged

property

is

in

mortgagees

possession the equity of redemption may be lawfully


gifted. (b) where a mortgaged property is gifted with
a condition that the mortgage be paid of from the
income of the property the gift will be void. (c) when
the property is subject to usufructuary mortgage, it
can form the subject of a valid gift.
Doctrine of Mushaa (Hiba-bil-Mushaa). :- There is no
unanimity of opinion amongst different schools of
Muslim Law on the question of the validity of the
doctrine of mushaa. Shafei and Ithna Ashari Shia
schools have recognized this principle. According to
these schools a gift of undivided property can be
validly made. In such cases it is necessary that the
donor must give to the donee the possession of the
undivided property. On the other hand, Hanafi school
does not recognize the doctrine of musha. According
to Hedaya 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
the gift of the property which cannot be divided is
valid.
Meaning.Musha is an Arbic word derived from
saayu meaning undivided share in a property. The
cule as to Musha, as laid down in Hedaya., is a gift of
31

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 where as a gift of an
indivisible

thing

is

valid.

In Aftab Hussain v. Smt. Tayebba Begum., it was ruled


that where some of the Mohammedan co-sharers are
in actual joint possession of a house, their possession
must be deemed to be, in the eye of law, on behalf of
all the co-shares including the one who is not in
actual possession and the possession of the latter
must be deemed to be constructive possession. If
there has been a gift of his undivided share in house
by a co-sharer who is in construetive possession and
the donor has also divested himself of the proprietary
right at the time of making the gift and delivered
constructing possession to the donee, then the gift is
not hit by the doctrine of Mushaa and is valid in law.
In a later case it was said that doctrine of Mushaa
was

not

opposed

to

justice,

equity

and

good

conscience.The validity of a gift of Mushaa must be


tested in the same way as of any other gift.
Kinds of Mushaa.A Mushaa may be either
(i)

in a property incapable of division, or

(ii)

in a property capable of division.

32

(i) Musha in a property incapable of division.A gift


of an undivided share in a property (mushaa) which is
not capable of division is valid. A, who owns a house,
makes a gift to B of the house and of the right to use
a stair-case by him jointly with the owner of an
adjoining house. The gift of As undivided share in the
stair-case, though it is a gift of a mushaa, is valid, for
a stair-case is not capable of division.A gift of a share
in the business of a Turkish bath is valid, for the
hammam, is not capable of division and would be
ruined, if it were divided by metes and bounds.
(ii) Mushaa in a property capable of division. If the
property is capable of division, the gift of mushaa will
be irregular though not void under Hanafi Law. It
means that it can be rendered valid by subsequent
partition and delivery.
However, in certain cases a gift of mushaa even in a
property capable of division is valid. Such cases are
as follows
1. Gift by one heir to another.Gift of mushaa by a
heir to his co-heir is valid. Where a Muslim woman
dies leaving a mother, a son and a daughter, the
mother can make a valid gift of her share to both or
any of them.

33

2. Gift of a share by a co-sharer in a Zarnindari or


Talauqa.This is valid because in such a case, what is
gifted is the right to receive and to collect separately
a definite share of produce or rent of the share. Thus,
if A and B are co-sharers in a Zamindari, each having
a well defined share in the rents of undivided land,
and A makes a gift of his share to B, there being no
regular partition of the Zamindari, the gift is valid.
However, after the abolition of the Zamindari system
in India, this exception has no practical significance.
3. Gift of share in a company is valid.
4. Gift of a share in the freehold property in a large
commercial town is also valid.
5. Gift of an undivided but divisible property to two
or more persons jointly is valid. X makes a gift of a
house to A and B in equal shares as tenants in
common.

The

property

is not divided off

and,

although their shares are clearly defined, possession


of their specific shares is not given to A and B. The
tenants are given notice that the properties have
been given away to A and B, to whom rent is to be
paid. Such a gift is valid.
6. Gift of a Mushaa with stipulation that the donee
shall pay certain periodical sums to someone is not
subject to impediments by the law of mushaa.
34

Formalities

and

modes

of

Gift.The

most

important requisite of hiba is that it must satisfy the


rules laid down by Muslim Law for making a gift.
Mere presence of a donor and a donee; their ability to
make and accept the gift and the existence of a valid
subject of gift will not have the effect of completing
the

transaction.

It

will

have

to

satisfy

certain

formalities, which in facts, are the real tests of the


validity of a gift transaction.
Three Conditions.The act of making a gift should
fulfil the following three conditions These are also
known

as

Essentials

of

Gift,

(i) declaration by the donor;


(ii) Acceptance by the donee; and
(iii)

Delivery of possession by the donor and


taking of possession by the donee.

Even when the declaration and acceptance are not


expressed in words,

so long as the intention is

evidenced by conduct, it would be sufficient.

(i )Declaration of gift.There must be a clear and


unambiguous intention of the donor to make the gift.
When there is no real or bona fide intention on the

35

part of the person making of the gift, the alleged gift


will be void. It is on this basis that it has been held
that a gift with intent to defraud creditors is voidable
at the option of the creditors. There must be the bona
fide intention of divesting himself in praesenti of his
proprietary title in the property gifted by the donor.
The intention must be real and bona fide and the
manifestation or the declaration of such intention
must be clear and unambiguous. The declaration of
the gift must be made voluntarily. It is necessary that
the donor must be a free agent in making the gift. If
the declaration of gift has been made under coercion,
fraud, misrepresentation or undue influence such a
gift is not valid.
The Supreme Court of India in Mahboob Sahab V.
Syed

Ismail,11

held

that

though

gift

by

Mohammedan is not required to be in writing and


consequently need not be registered under the
Registration Act; a gift to be complete, there should
be a declaration of the gift by the donor; acceptance
of the gift, expressed or implied, by or on behalf of
the donee, and delivery of possession of the property
or the subject-matter of the gift by the donor to the
donee.

The

possession
11

donee
of

that

should take
property

delivery

either

of

actually

the
or

AIR1995SC1205

36

constructively. On proof of these essential conditions,


the gift becomes complete and valid. In case of
immovable property in the possession of the donor, he
should completely divest himself physically of the
subject of the gift.

Mohammed Farook vs Gulsum Bibi12


JUDGMENT :- The defendants are the appellants
herein. The suit has been filed by the respondents
being the

plaintiffs

in

O.S.No.317

of

1990

for

declaration and for permanent injunction. The said


suit filed was decreed by the learned District Munsif,
Paramakudi. The appeal filed by the defendants in
A.S.No.14 of 1994, on the file of the Subordinate
Judge,

Ramanathapuram

was

also

dismissed.

Challenging the judgments and decrees rendered by


the Courts below against the defendants, the present
appeal has been filed.
2. At the time of admitting the Second Appeal, the
following Substantial Questions of law have been
framed:
(i) Whether the Courts below were right in decreeing
the suit in the absence of Sultan not being made a
defendant in the suit, more particularly when the

on18August,2011

12

37

issue was whether which of his two documents are


valid and binding on the parties to the suit?
(ii) Whether the Courts below were not in error in
holding that the plaintiffs are in possession inspite of
the fact that the Patta for the suit lands stand in the
name of the original title holder even after the
alleged settlement dated 26.08.1969?
(iii) Whether the lower appellate court was not in
error in not at all giving any finding with regard to
the evidence of PW I, PW II, DW I and DW II much
less even making in the reference to their evidence?
3. It is the case of the plaintiff that a registered gift
deed - Hiba was executed by the husband of the first
plaintiff being the father of the second defendant on
26.08.1969, covering the suit property. In pursuant to
the said gift deed, which also specifies that it is
irrevocable, possession has been given in favour of
the plaintiffs and they have been enjoying the suit
property as joint owners. Since an attempt has been
made by the defendants to interfere with the peaceful
possession and enjoyment of the suit property, the
plaintiffs have come forward to file the present Suit.
4. A written statement has been filed by the
defendants by stating that the gift deed executed by
the father of the second plaintiff Sulthan has been
cancelled by the Settlement Cancellation Deed dated
38

12.10.1982. Thereafter, by a registered sale deed


dated 16.07.1990, the suit property has been sold in
favour of the second defendant. In pursuant to the
sale, patta has been changed in favour of the second
defendant on 30.07.1990. It has been further stated
the gift has not come into effect as the declaration,
acceptance and possession have not been proved.
Therefore, the appellants being the defendants before
the trial Court prayed for dismissal of the suit.
6. The learned counsel for the appellants has
submitted that the declaration of the gift followed by
acceptance and delivery of possession has not been
proved by the plaintiffs. It is his case that a mere
factum of a written gift with due registration cannot
be a ground to prove its validity and under the
Mohammedan
registration.

Law,

Therefore,

Hiba

does

the

donees

not

require

being

the

plaintiffs will have to prove with substantial evidence


that settlement deed has been given effect. The
learned counsel further submitted that the documents
relied upon by the appellants do not show the factum
of possession and on the contrary the appellants have
produced

Exs.B.1

to

B.3

in

support

of

their

contentions to substantiate their case.


7. In support of his contention, the learned counsel
has made reliance upon the following judgments:

39

(i) Hafeeza Bibi & Others Versus Shaikh Farid


(Dead) by LRs. & Others - CDJ 2011 SC 497.
(ii) D.R.Rathna Murthy v. Ramappa - (2011) 1
Supreme

Court

Cases

158.

(iii) Mahboob Sahah v. Syed Ismail - AIR 1995


SUPREME

COURT

1205.

(iv) Noor Jahan v. Muftkhar Dad Khan - AIR 1970


ALLAHABAD

170.

(v) Bibi Riajan Khatoon v. Sadrul Alam - AIR 1996


PATNA 156.
8.

The document itself would make it clear the suit

property is given out of love and affection and it is


irrevocable.

It

also

speaks

about

the

fact

the

possession having been handed over. Therefore, it is


submitted, the Second Appeal will have to be
dismissed.
11. In Hafeeza Bibi &; Others Versus Shaikh Farid
(Dead) by LRs & Others,13 , the Hon'ble Apex
Court was pleased to hold that acceptance of the gift
by a donee either be expressed or implied and the
delivery and taking of possession thereof can either
be actual or constructive. In Mulla, Principles of
Mohamedan Law (19th Edition), Page 120, it has
been stated as follows: Under the Mahomedan law
the three essential requisite to make a gift valid :
CDJ2011SC497

13

40

(1) declaration of the gift by the donor


(2) acceptance of the gift by the donee expressly or
impliedly

and

(3) delivery of possession to and taking possession


thereof by the donee actually or constructively. No
written document is required in such as case. In the
present case on hand, the donor is the husband and
father of the plaintiffs. Therefore, considering the
said relationship coupled with documentary and oral
evidence, this Court is of the view that the findings of
the Courts below that the declaration, acceptance
and delivery of possession are duly established do not
warrant any interference. It is no doubt true that a
gift would become valid not withstanding the form
but on satisfying the three criteria of declaration,
acceptance and delivery. A deed of gift under
Mohammedan law is nothing but a piece of evidence.
Therefore, by taking into consideration of Ex.A.1 as a
piece of evidence, this Court is of the view that it has
come into effect.
12. In the judgments relied on by the learned counsel
for

the

appellants

in

D.R.Rathina

Murthy

v.

Ramappa,14 the issue was as to whether a registration


is required for a valid gift deed under Mohammedan
law. While considering the said issue, the Hon'ble
14

(2011)1SupremeCourtCases158

41

Apex Court has also considered the ingredients for


valid gift. As discussed above, the plaintiffs have
satisfactorily proved the ingredients of a valid gift.
13. The reliance made by the learned counsel for the
appellants in Mahboob Sahab v. Syed Ismail,15 AIR is
of no assistance. The issue in the said case was as to
whether the mother of a minor belonging to Muslim
religion can act as a legal guardian or not.
14.

In

Bibi

considering

Riajan
the

Khatoon

scope

of

v.

Sadrul

Section

167

Alam,16
of

Mohammedan Law, it has been held as follows:

the
As

regards the question whether the donor could cancel


the deed of gift by the subsequent deed. Suffice it to
say that in the Mohammodan Law by Mulla, 19th
Edition

by

M.Hidayatullah

Article

(Section)

167

indicates circumstances under which a deed of gift


could be revoked. In case the donor has not
relinquished his control and domination over the
property, and before the donee enters into possession
the donor is justified in cancelling the gift. The reason
is that before delivery of possession there is no gift
under Mohammedan Law. In view of discussions
made hereinbefore, the decree of the lower appellate
Court could not be sustained;

15
16

1995 Supreme Court Cases 1205


AIR1996PATNA156,

42

15. In Noor Jahan v. Muftkhar Dad Khan,17 the


question for consideration was the presumption in
favour of the gift deed which contains the recital
regarding

possession.

The

following

passage

is

apposite: It seems to me that under Mohamedan Law


a recital in the gift deed that possession has been
delivered to the donee of the property gifted gives
rise to a presumption only of such delivery and the
presumption may be rebutted by those challenging
the gift. The presumption may be rebutted by
establishing that the subsequent conduct of the donor
is inconsistent with the making of the gift or by
demonstrating the patent improbability of what is
stated by the recital; Applying the said ratio laid
down in the said judgment to the present case on
hand, this court is of the view that in view of the clear
recital under Ex.A.1, a presumption has been created
in favour of the plaintiffs regarding acceptance and
possession. Such a presumption can only be rebutted
only those who are challenging it. Therefore, it is for
the appellants to rebut the said presumption.
(ii)Acceptance of gift.There must be an acceptance
of gift, by or on behalf of the donee. It may be either
actual or constructive according to the circumstances
of the case. However, in a case before the Allahabad
High Court, it has been held that where a father or
17

AIR1970ALLAHABAD170,

43

other guardian make the donation in favour of his


minor son or other ward, acceptance is not necessary.
In Gulam Husain Kutbuddin Manner v. Abdul Rashid
Abdul Rajak Manner,18 the gift deed executed by the
donor was challenged on the ground that under
Muslim law the mother is not competent to act as
guardian of her minor son during the life time of the
minors father or grandfather and therefore not
entitled to accept the gift. The trial court accepted
the case and decreed the suit. The decree of the trial
court was affirmed by the First Appellate Court.
However, in Second Appeal High Court held that
since mother has accepted the gift as an agent of her
husband the gift deed is valid.
But the Supreme Court has held that under Muslim
law gift is a donation conferring right of property
without exchange. The gift is in the nature of contract
where there must be tender of the property and
acceptance of the property. It is only when these
three requirements are satisfied gift is completed
where the father of a minor is alive the mother of the
minor cannot be appointed as a guardian of minor to
accept

the

gift

on

his

behalf.

If has been further observed by the Court that it is


AIR2000(8)SCC507

18

44

not necessary to go into the wider question as to


whether the husband can appoint his wife as his
agent to act as a guardian of his minor son. The fact
that there was neither any pleading nor any evidence
to that effect and in absence of such requirement of
law the High Court could not have held that the wife
acted as an agent of her husband in accepting the gift
on behalf of the minor.
(iv)

Delivery of Possession :- A gift is complete


only after the delivery of the possession. So
the

third

and

most

essential

condition

required for the validity of a gift is delivery


of

possession

of

the

property

whether

movable or immovable as gift. A gift not


accompanied by possession is void ab initio.
Under the Muslim law, a gift is complete
only after the delivery of the possession.
Therefore, the gift takes effect from the date
on which possession of the property is
delivered to the donee, not from the date on
which the declaration was made. Muslim
law does not presume transfer of ownership
rights from donor to donee without the
delivery

of

possession

of

the

property.

Importance of delivery of possession has


been

given

in

Hedaya

as

under:

The
45

possession of a property, is necessary in


order to establish a right of property in the
gift

because

right

of

property

is

not

established in a thing given rely by means of


the

contract

(i.e.,

declaration

and

acceptance).
(v)

The delivery of possession may be either


actual

or

constructive

or

symbolic.

requirement is that the donor should divest


himself completely of all ownership and
domination over the subject-matter of the
gift and should deliver be possession of
property to the donee.
Actual

Delivery

of

Possession:

Where

property is physically handed over to the donee,


the delivery of possession is actual. If the
physical possession of the property is possible,
gift will not complete without actual delivery of
possession. Generally where the property is
movable, it must be actually transferred and
handed over to the donee.

Constructive

Delivery

of

Possession:

Constructive delivery of possession means a


symbolic

transfer

of

property.

Delivery

of

possession is constructive if property is not


46

actually delivered but the donor has done some


act due to which it is legally presumed that the
possession has been given to the donee. Where
the property is of such a nature that its physical
possession is not possible and it cannot be
delivered actually, a constructive delivery of
possession is sufficient to complete the gift.
Constructive delivery of possession is sufficient
to constitute a valid gift in the following two
situations:
(a) Where the property is tangible property but,
under the situation, its actual or physical delivery
of

possession

is

not

possible.

(b) Where the property is intangible property.


There

are

certain

properties

which

have

no

physical existence i.e., they cannot be perceived


through

senses.

Such

properties

are

called

intangible or incorporeal . Although an incorporeal


property cannot be possessed, but it can be owned
and its owner may make a lawful gift of it.
Therefore, in the gifts of incorporeal properties,
only constructive delivery of possession is possible
which
fulfills the requirement of a valid gift. Any such act
of donor which indicates a intention that he has
relinquished all the benefits of the property gifted,
47

may

be

regarded as

constructive

delivery

of

possession.

Exception to actual delivery of Possession: In every


case of property, whether mwable or immovable,
actual or physical delivery of possession must be
made except in few cases. In such cases symbolic or
constructive delivery of possession is sufficient. The
exception

are:

(a) Joint residence of the donor and the donee: When


the donor and the donee are both residing in the
house, which is subject-matter of gift, the actual or
physical delivery of possession is not necessary, in
such a case the gift will be completed by some
overact by the donor indicating a clear intention on
his part to transfer possession and to divest himself of
all control over the property.
(b) Property in possession of other persons: The
property of gift may not be in the possession of the
donor himself but in the possession of some other
person like as a mortgagee, tenant or licensee. This
property of the gift may be held adversely by other
persons or under attachment of arrears of revenue. A
valid gift may be made of the possession of a
mortgagee, even if the donor makes a constructive
delivery of possession. Such a possession may be
48

made by the donor by handing over the gift-deed and


divesting himself of his title, right and interest in the
property. When the property is in the occupation of
tenants, a valid gift may be made without giving
physical delivery of possession but by delivering titledeeds or by mutation in the revenue records.
(c) Gift between spouses: When a husband or a wife
makes gifts to each other of some property in their
joint

possession,

then

the

physical

delivery

of

possession is not required. Where the donor handed


over the keys of the house to his wife, the subjectmatter of the gift, the gift would be valid even though
the husband continued to live in that house.
(d) Gift by a guardian to his ward: In the case of a gift
made by a guardian to his ward, actual delivery of
possession is not necessary, only an indication of a
bona fide intention to stand in loco parentis to the
donee or is in lawful custody of donee.
(e) Gift to Baillie: No physical delivery of possession is
required, if a gift is made to one in whose possession
the subject-matter of the gift is already. The gift is
complete by mere declaration and acceptance.
(f) The property not capable of being delivered: In
cases where the property is not capable of being

49

delivered, physical delivery of possession is not


essential:
Revocation of Gift
Under Islamic law all voluntary transactions are
revocable, therefore this revocability should also be
attributed to Gift.1 Gift is a voluntary and gratuitous
transfer of property. The donor makes a gift of the
properties of his own free Will and the transfer
without

any

consideration

or

exchange.

In

the

transfer of property by way of gift, there are three


stages: Declaration, Acceptance and the delivery of
possession. As we have discussed earlier that without
the delivery of possession there is no gift at all.
Revocation

before

delivery

of

possession:

Delivery of possession makes a gift complete, so


before

the

delivery

of

possession

all

gifts

are

revocable. A gift may be revoked by the donor at any


time before the delivery of possession. A mere
declaration by the donor that he has revoked the gift
is sufficient.
Revocation after delivery of possession: When
delivery of possession is made by the donor, the gift
becomes complete. After the delivery of possession,
the gift cannot be revoked by donor through mere
declaration. For the revocation of such a gift, there
50

are

two

ways:

(i) With the mutual consent of the parties, and


(ii) By a decree of the court.
A donor can revoke the gift after the delivery of
possession in the abovementioned ways, but after his
death, his heirs cannot revoke it or a gift can also not
be revoked after the death of the donee.
Shia Law: Under the Shia law, even after the delivery
of possession, a gift may be revoked by the donor
merely by declaration. There is no need of getting a
decree from the court. But, under the Shia law too, if
the gift is irrevocable, it cannot be revoked after the
delivery of possession even by the court.
Exception or irrevocable Gift: There are certain
exceptions,

when

even

after

the

delivery

of

possession, a gift cannot be revoked. Such exceptions


are according to the Hanafi law, exceptions are as
follows:
(i) Gift between the spouses: A gift between the
spouses is irrevocable, if made only during the
subsistence of their marriage, even though the
marriage is irregular and is dissolved afterwards.
(ii) Relationship by prohibited degrees: When the
donor and the donee are related within prohibited

51

degrees, by consanguinity, the gifts are irrevocable.


Gift in favour of persons other than related by blood,
is not irrevocable. For example, a gift in favour of a
brother is irrevocable and in favour of a son-in-law is
revocable because son-in-law is not a blood relation.
Shia Law: Under the Shia law, a gift to a relation
whether within the prohibited degrees or not, is not
revocable, but irrevocable.
(iii) Death of either party: The right of gift is personal
right and so if either the donor or the donee dies, the
gift is irrevocable, their heirs have no right of
revocation.
(iv) Where the donee has transferred the property to
another person: After completion of the gift the donee
becomes an absolute owner of the gifted property. As
such, the donee may transfer that property to another
person. In such cases, interest of that third person
would be affected and he would be put to loss without
any fault of his own.
(v) Where the property is lost or has been destroyed:
After revocation of a gift, the property should revert
back to the donor but if it is lost or destroyed there
would remain nothing to be given back to the donor.
(vi) Increase in value of the gift: When the value of
the subject-matter of the gift has increased, it is
52

natural that the donor would be interested in the


revocation

of

gift.

Muslim

law

negatives

the

possibility of revocation of gift by donor due to such


situation.
(vii) Where the property given is changed beyond
identification: Where the shape, size and identity of
the property has been changed and it is not possible
to recognise that it is the same property which was
the

subject-matter

of

gift,

the

gift

becomes

irrevocable.
(viii) Consideration received for gift: When the donor
has received some consideration in exchange of the
gift by way of return or Iwaz, then also the gift is
irrevocable. Hiba-bil-Izvaz and Hiba-ba-Shart-ul-Iwaz
come under this category.
(ix) Gift in Sadaqa form: When the purpose of gift is
to receive religious or spiritual benefit or merit, such
as sadaqa, then also the gift becomes irrevocable.
Revival

of

revocationUnder

the

following

circumstances a revoked gift can be received:


(i) where the alienation consisted in the donee
making a fresh gift of it to a third person, and that
fresh

gift

is

revoked

by

him;

(ii) where an increase in value was caused by an

53

accession, and that accession has perished or is


destroyed.
Kinds of gift (Hiba).So far we were dealing with
hiba or simple gift inter vivos. It is absolute gift of the
corpus of the property without any return. It is gift
properly so called and satisfies all the essentials of a
gift laid down by Mohammedan Law. There are
certain other kinds of gift too, which are in fact,
variations of hiba but yet differ from it (hiba) in
certain respects. These kinds of gifts do not strictly
fulfil the essential requisites of gift laid down in its
definition.
Gift

for

consideration

(Hiba-bil-iwaz).Hiba

means gift and hvaz means consideration. Hiba-biliwaz means gift for consideration already received. As
it has been already mentioned in the beginning that
gift

is

transfer

of

property

without

consideration. This hibi-bli-iwaz departs from the


original definition. Hiba-bil-iwaz is a transaction,
made up for two mutual or reciprocal gifts between
two persons. One gift was from the donor to the
donee and the other from donee to the donor. The gift
and the return gift are separate nd independent
transactions which together make up hiba-bil-iwaz.

54

Requisites of a valid hiba-bil-iwaz.(1) Actual


payment of consideration on the part of the donee is
necessary.
In

Khajuooroonissa

v.

Raushan

Jehan19

Their

Lordships of the Privy Council said undoubtedly the


adequacy of consideration is not the question. A
consideration may be perfectly valid which is wholly
inadequate in amount when compared with the thing
given. Some of the case have gone so far as to say
that even a gift of a ring may be a sufficient
consideration, but whatever is amount, it must be
actually and bonafide paid., It would seem to follow
from this that however small the consideration for a
hiba-bil-iwaz may be the transaction would be valid if
the consideration was actual, and bona fide paid. A
mere promise to pay, however is not sufficient.
(2) A bona fide intention on the part of the donor to
divest himself in possession of the property and to
confer it upon the donee. A and B, two Muslim
brothers are tenants-in-common. A died leaving B and
his widow W. After As death B executed a deed
whereby he granted two of the villages to W, and W
executed a writing whereby in consideration of the
grant to her she gave up her claim to her husbands
estate in favour of B. The transaction was hiba-bil19

3IndApp291(PC)(M)

55

iwaz and was valid though possession was not


delivered.
In Ismail Beevis case the gift deed was executed for
consideration that donee should discharge the debt
charged on the property gifted and would be entitled
to property after marriage with the son of donor. It
was

held

that

the

gift

was

hiba-bil-iwaz

the

consideration thereof being the agreement to marry


the donors son. In such a case even if there is no
delivery of possession, the gift would be valid and the
donee would be entitled to the property.
High

Courts

of

Calcutta,

Madras,

Lahore

and

Allahabad hold such transaction as sale. Therefore


where property is immovable and worth Rs. 100 or
more it must be effected by a registered instrument
under Section 54 of the Transfer of Property Act.
Hiba-ba-shartul-iwaz.Shart
Hiba-ba-shartul

iwaz

means

means
a

gift

stipulation,
made

with

stipulation (Sliart), for a return. Unlike Hiba-biliwaz,


in

Hiba-ba-shartul-iwaz,

the

payment

of

consideration postponed. As the consideration is not


immediate, the delivery of possession is essential. The
transaction becomes final immediately on the delivery
of possession.2 When the consideration is paid, it
assumes the character of sale and is subject to
preemption (shufa) Further as in case of a sale, either
56

party can return the subject of sale for a defect.


Thus

it

contains

the

following

features:

(i) As in the case of hiba, so in this case, delivery of


possession

is

necessary.

(ii) It is revocable until the iwaz (Return) is paid.


(iii) It becomes irrevocable on the payment of iziaz.
(iv) The transaction when completed by payment of
iwaz, partakes of the character of sale.
The kinds of property that can be given away by way
of hiba can also be given by way of return gift (iwaz)
and the return must be made with all formalities
necessary for a hiba.
REGISTRATION

No need to register property gifted by


Muslims: SC
Such Assets Exempted From Transfer Of Property
Act
PRESS TRUST OF INDIA
New Delhi, May 5: A gift of immovable property made
by a Muslim is valid even if it is not registered under
the Transfer of Property Act or the Stamps and
Registration Act, the Supreme Court Thursday ruled.
The apex court said though the TP Act mandates
registration of a gift, the same would not apply to a

57

Muslim donor as the community has been exempted


from the provision.
A Bench of Justices R M Lodha and S S Nijjar in a
judgement quashed a ruling of the Andhra Pradesh
High Court that the property gifted by late Shaik
Dawood to one of his sons Muhammad Yakub was not
valid as it was not registered under the law.
The Bench said the three essentials of a gift under
Muhammadan Law are (i) declaration of the gift by
the donor (2) acceptance of the gift by the donee and
(3) delivery of possession. "Though the rules of
Muhammadan Law do not make writing essential to
the validity of a gift, an oral gift fulfilling all the three
essentials make the gift complete and irrevocable.
However, the donor may record the transaction of gift
in writing.
"In our opinion, merely because the gift is reduced to
writing by a Muhammadan instead of it having been
made orally, such writing does not become a formal
document

or

instrument

of

gift.

"When a gift could be made by Mohammadan orally,


its nature and character is not changed because of it
having been made by a written document. What is
important for a valid gift under Muhammadan Law is

58

that three essential requisites must be fulfilled,"


Justice Lodha writing the judgement said.
The apex court passed the judgement while upholding
the appeal filed by Yakub challenging the High
Court's ruling which had set aside a Visakhapatnam
trial court decree that no such registration was
required.
In the instant case, Shaikh Dawood had gifted (hiba)
his properties to one of his sons Yakub on February 5,
1968, by way of an unregistered written document.
The validity of the gift was challenged by his other
son Shaikh Farid and family members. Though the
trial court rejected their plea, the High Court took the
contrary view that the gift was invalid as it was not
registered.
Aggrieved
The

apex

Yakub
court

appealed
said

in

Section

the

apex

court.

17(1)(a)of

the

Registration Act leaves no manner of doubt that an


instrument of gift of immoveable property requires
registration irrespective of the value of the property.
However, the Bench said it was not applicable to a
Muslim in the light of Section 129 of the T.P. Act and
the rule of Mohammadan Law relating to gifts.

59

"The form is immaterial. If all the three essential


requisites are satisfied constituting valid gift, the
transaction of gift would not be rendered invalid
because it has been written on a plain piece of paper,"
the Bench said.
The apex court said Section 129 of T.P. Act preserves
the rule of Mohammadan Law and excludes the
applicability of Section 123 of T.P. Act to a gift of an
immovable

property

by

Mohammadan.

"The gift was made by Shaikh Dawood by a written


deed dated February 5, 1968, in favour of his son
Muhammad Yakub in respect of the properties A'
schedule

and

schedule

appended

thereto.

The gift as is recited in the deed was based on love


and affection for Muhammad Yakub as after the death
of donors wife, he has been looking after and helping
him.
"Can it be said that because a declaration is reduced
to writing, it must have been registered? We think
not. The acceptance of the gift by Muhammad Yakub
is also evidenced as he signed the deed," the Bench
said while quashing the High Court ruling and
restoring the decree passed by the trial court in
favour of Yakub.

60

Sadaqah.It is a gift with religious motive. It


differs from hiba in that (i) the motive of hiba is
secular while the motive of sadaqah is religious, (ii) a
hiba is revocable in certain circumstances. A Sadaqah
is irrevocable when possession is once delivered.
Sadaqah

and

Hiba

compared.l.

Like

hiba,

saclaqah, is not valid unless the delivery of possession


is made.
2. Like hiba, it is not valid if it consists of an
undivided share in property capable of division.
3. There is a desire to get religious merit in
Sadaqah; there is no such motive in a gift except
affection.
4. Sadaqah is not revocable if once completed by
delivery; gift is revocable in certain cases.
5. Express acceptance is not necessary which is
necessary in a gift.
6. Unlike hiba, Sadaqah is valid even though made
to two or more persons jointly, provided the donees
are poor persons.

Ariyat. The grant of a licence, resumable at the


grantors option to take and enjoy the usufruct of a
thing is called Ariyat (Mulla). It is to transfer the

61

right to enjoy the use of profits without any return.


According to Durral Mukhtar to make a person the
owner

of

the

substance

of

thing

without

consideration is a hiba, while to make him the owner


of the profits only without consideration is an ariyat.6
In hiba the donee gets the ownership in the gifted
property, but in ariyat, he only obtains the use or
beneficial enjoyment for a limited period, and the
ownership in the property does not pass to him.
Essentials of Ariyat:
1. It can be revoked.
2. Ownership of property is not transferred.
3. It must be for a definite period.
4. It does not devolve upon the heir of the
donee on his death.
Hiba bil-iwaz

Hiba-ba-shartul-iwaz

1. Return (iwaz) is involved in the contract of gift


as its direct and immediate consideration.

1. Iwaz is stipulated and is contracted for


with the original gift.

2. Delivery of possession is not essential for its


validity

2. Delivery of possession is essential, for its


validity.

3. It becomes irrevocable from the moment of its


making.

. It becomes irrevocable only after the


payment of iwaz by the donee.

4. It is like a contract of sale.

4. In the begirming it is a gift but it partakes


of a character of sale when the iwaz has
been paid

62

Hiba

Hiba bil iwaz

Hiba-ba-shartul-iwaz

1. Ownership in property is
transferred without consideration.

Ownership in property is
transferred for consideration
called iwaz. But there is no
express agreement for a return
or iwaz, that is to say, the
return is voluntary.

Ownership in property is
transferred for
consideration called iwaz.
There is an express
condition with the gift for
return.

2. Delivery of. possession is a


condition precedent for the validity
of the gift

Delivery of possession is not


essential.

Delivery of possession is
essential.

3. Gift of mushaa where a property


is divisible is invalid.

Gift of a mushaa is lawful


even where the property is
divisible.

3. Gift of a mushaa where


property is divisible is
invalid.

4. Barring a few exceptions,it is


revocable.

4. Irrevocable from the


moment of its making.

Irrevocable after the


performance of the
promised condition but
not before.

5. It is a gift pure and simple

It is like a contract of sale

5. In its inception it is like


a gift, but operates as a
sale when the promised
condition is performed.

Conclusion
The conception of the term gift and subject matter of
gift has been an age old and traditional issue which
has developed into a distinct facet in property law.
Different aspects related to gift in property act and its
distinction

with

the

Mohammedan

law

and

its

63

implications has been the major subject matter of this


article. In considering the law of gifts, it is to be
remembered that the English word 'gift' is generic
and must not be confused with the technical term of
Islamic law, hiba. The concept of hiba and the term
"gift as used in the transfer of property act, are
different. As we have seen in the project that Under
Mohammedan law, to be a valid gift, three essentials
are required to exist: (a) declaration of gift by the
donor (b) an acceptance of the gift, express or
implied, by or on behalf of the donee, and (c) delivery
of possession of the subject of gift. The English law as
to rights in property is classified by a division on the
basis

of

immoveable

and

moveable

(real

and

personal) property. The essential elements of a gift


are (a) The absence of consideration; (b) the donor;
(c) the donee ;(d) the subject-matter; (e) the transfer;
and the acceptance Thus this striking difference
between the two laws relating to gift forms the base
of

this

project

in

understanding

its

underlying

implications.

64

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