Professional Documents
Culture Documents
FAMILY LAW
FACULTY OF LAW
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
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.
of
giving.
If
the
donee
dies
before
merit,
terms
it
"hiba"
is
and
called
sadaqah.
"gift"
are
often
his
co-religionist
must
be
under
the
contemporaneous,
reciprocal
acts,
which
(b)
the donor;
(c)
The donee;
(d)
The subject-matter;
(e)
of
acceptance
circumstances
throw
is
light
required
on
that
and
aspect.
the
A
and
personal)
property.
Rights
in
land
the
Mohammedan
law
they
are
only
any
kind).
10
ownership
of
the
land
limited
in
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
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
complete
his
intention
by
delivering
13
Act,
of
1882
Hiba
:-
contains
The
Transfer
besides
of
general
14
to
sale,
mortgage,
charge,
lease,
and
15
the
conferring
of
the
property
without
offer of gift
AIR1989Kar
17
two:
(i) the donor, i.e., the person who makes the gift.
(ii) The donee, i.e., the person who takes something
as gift.
Mohammedan:
donor
must
be
Mohammedan.
18
19
In Kaireern Biwi
v. Mariarn Biwi
Their
v.
A
Ahmed,6
Mukhtar
gift
deed
executed
and
by
deed
were
themselves
originally
and
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
though
not
pardanashin.
her
property
by
way
of
executing
possession
is
handed
over
to
Ms
Mohammedan:
donee
may
be
in
mothers
womb
has
no
worldly
v.
Noor
Ahnzad
Noor
23
any
mutual
arrangement
and
tale
Gift
of
usufruct
to
unborn
person.
Act
may
be
noted.
residue.;
25
Fiduciary
relationship.When
the
donee
the
donor,
in
case
of
dispute,
the
(1928)30BOMLR766
26
father
or
guardian
of
the
minor.
ownership
may
be
exercised,
may
be
Whatever
is
made
according
to
Muslim
27
matter
of
gift:
this
right
is
called
his
equity
of
10
AIR1939All744
29
property
whether
tangible
or
intangible.
mortgaged
property
is
in
mortgagees
thing
is
valid.
not
opposed
to
justice,
equity
and
good
(ii)
32
33
The
property
and,
Formalities
and
modes
of
Gift.The
most
transaction.
It
will
have
to
satisfy
certain
as
Essentials
of
Gift,
35
Ismail,11
held
that
though
gift
by
The
possession
11
donee
of
that
should take
property
delivery
either
of
actually
the
or
AIR1995SC1205
36
plaintiffs
in
O.S.No.317
of
1990
for
Ramanathapuram
was
also
dismissed.
on18August,2011
12
37
Law,
Therefore,
Hiba
does
the
donees
not
require
being
the
Exs.B.1
to
B.3
in
support
of
their
39
Court
Cases
158.
COURT
1205.
170.
It
also
speaks
about
the
fact
the
13
40
and
the
appellants
in
D.R.Rathina
Murthy
v.
(2011)1SupremeCourtCases158
41
In
Bibi
considering
Riajan
the
Khatoon
scope
of
v.
Sadrul
Section
167
Alam,16
of
the
As
by
M.Hidayatullah
Article
(Section)
167
15
16
42
possession.
The
following
passage
is
AIR1970ALLAHABAD170,
43
the
gift
on
his
behalf.
18
44
third
and
most
essential
condition
possession
of
the
property
whether
of
possession
of
the
property.
given
in
Hedaya
as
under:
The
45
because
right
of
property
is
not
contract
(i.e.,
declaration
and
acceptance).
(v)
or
constructive
or
symbolic.
Delivery
of
Possession:
Where
Constructive
Delivery
of
Possession:
transfer
of
property.
Delivery
of
possession
is
not
possible.
are
certain
properties
which
have
no
senses.
Such
properties
are
called
may
be
regarded as
constructive
delivery
of
possession.
are:
possession,
then
the
physical
delivery
of
49
any
consideration
or
exchange.
In
the
before
delivery
of
possession:
the
delivery
of
possession
all
gifts
are
are
two
ways:
when
even
after
the
delivery
of
51
of
gift.
Muslim
law
negatives
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
gift
is
revoked
by
him;
53
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
54
Khajuooroonissa
v.
Raushan
Jehan19
Their
3IndApp291(PC)(M)
55
held
that
the
gift
was
hiba-bil-iwaz
the
Courts
of
Calcutta,
Madras,
Lahore
and
iwaz
means
means
a
gift
stipulation,
made
with
Hiba-ba-shartul-iwaz,
the
payment
of
it
contains
the
following
features:
is
necessary.
57
or
instrument
of
gift.
58
apex
Yakub
court
appealed
said
in
Section
the
apex
court.
17(1)(a)of
the
59
property
by
Mohammadan.
and
schedule
appended
thereto.
60
and
Hiba
compared.l.
Like
hiba,
61
of
the
substance
of
thing
without
Hiba-ba-shartul-iwaz
62
Hiba
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.
Delivery of possession is
essential.
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
of
immoveable
and
moveable
(real
and
this
project
in
understanding
its
underlying
implications.
64