EXIM Bank Agricultural University Bangladesh

Course Title: Law of Transfer of Property

Course Code: LAW 328
Assignment Topic: Gift under the Transfer of Property Act 1882 and Islamic Law: A
comparative Study
Submission Date: 22. 10. 2020

Submitted by Submitted to

Md. Arifin Arif Md. Anamul Haque

Reg: LLBA2018000559 Lecturer

Department of Law Department of Law

EXIM Bank Agricultural University Bangladesh EXIM Bank Agricultural University Bangladesh

EXIM Bank Agricultural University Bangladesh

House no: 69-69/1; BoroIndara Moor
Chapainawabganj; Postcode-6300
Tel: 078153525-29

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CONTENTS
Chapter I
Introduction………………………………………………………………………………3
Definition of Hiba………………………………………………………………………..3
Kinds of Hiba……………………………………………………………………….……3

Chapter II
Essential Elements of Gift………………………………………………………………5
The Doner………………………………………………………………………………..5
Acceptance……………………………………………………………………………….7
Delivery of Possession…………………………………………………………………..8

Chapter III
Consideration……………………………………………………………………………9
Oral Gift of an Immoveable Property………………………………………………….9
What can be the Subject of the Gift……………………………………………………10

Chapter IV
Gift to Minor under Islamic Law………………………………………………………11

Chapter V
Exception in Delivery of Possession……………………………………………………12
Revocation of Gift……………………………………………………………………….13
Void Gift…………………………………………………………………………………14
Contingent and Conditional Gift……………………………………………………….14
Conclusion……………………………………………………………………………….14

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Chapter I
1. Introduction:
A gift is generally a transfer of ownership of a property by a living person to another living
person without any consideration. In Islamic law, gifts are known as ‘Hiba’. To be very precise,
gift implies to an extensive overtone and appertain to all kind of transfers of ownership not
involving any consideration. On the other hand, the term ‘Hiba’ includes a narrow connotation. It
is basically transferred inter vivos i.e. between living person.1
Gift‟ as defined under Sec. 122 of the Transfer of Property Act 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. It is
required to be a voluntary transfer of property to another made gratuitously and without
consideration. This section applies to those „gifts that are „gifts inter vivos or an absolute „gift‟.
Property under the above section can be both movable and immovable but however have to be
tangible in nature. In order to constitute a valid „gift‟, there must be an existing property as
already earlier elaborated.

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

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

According to Mulla– “A Hiba is a transfer of property, made immediately and without any
exchange by one person to another and accepted by or on behalf of the latter.”

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

3. Kinds of Gift
There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Sadkah,
and Ariyat.Hiba Bil Iwaz .
3.1.Hiba bil Iwaz.
Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means gift for consideration
already received. It is thus a transaction made up of two mutual or reciprocal gifts between two
persons.One gift from donor to donee and one from donee to donor. The gift and return gift are

1
Webpage:IPLEADERS, Link:https://blog.ipleaders.in/concept-of-gift-under-islamic-law/, Accessed on 07
October,2020

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independent transactions which together make up. In India, it was introduced as a device for
affecting a gift of Mushaa in a property capable of division. So a Hiba Bil Iwaz is a gift for
consideration and in reality it is a sale. Thus, registration of the gift is necessary and the delivery
of possession is not essential and prohibition against Mushaa does not exist. The following are
requisites of Hiba bil Iwaz – Actual payment of consideration on the part of the donee is
necessary. In Khajoorunissa vs Raushan Begam 1876, held that adequacy of the consideration is
not the question. As long is the consideration is bona fide, it is valid no matter even if it is
insufficient. A bona fide intention on the part of the donor to divest himself of the property is
essential. Gift in lieu of dower debt - In Gulam Abbas vs Razia AIR 1951, All HC held that an
oral transfer of immovable property worth more than 100/- cannot be validly made by a muslim
husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It is
neither Hiba nor Hiba bil Iwaz. It is a sale and must done through a registered instrument.
3.2.Hiba ba Shartul Iwaz
Shart means stipulation and Hiba ba Shart ul Iwaz means a gift made with a stipulation for
return. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the payment of
consideration is not immediate the delivery of possession is essential. The transaction becomes
final immediately upon delivery. When the consideration is paid, it assumes the character of a
sale and is subject to presumption (Shufa). As in sale, either party can return the subject of the
sale in case of a defect. It has the following requisites: delivery of possession is necessary; it is
revocable until the Iwaz is paid; it becomes irrevocable after the payment of Iwaz; transaction
when completed by payment of Iwaz, assumes the character of a sale. In general, Hiba bil Iwaz
and Hiba ba Shart ul Iwaz are similar in the sense that they are both gifts for a return and the
gifts must be made in compliance with all the rules relating to simple gifts.
3.3.Mushaa (Hiba bil mushaa)
Mushaa means undivided share in a property. The gift of undivided share in an indivisible
property is valid under all schools but there is no unanimity of opinion amongst different schools
about gift of undivided share in a property that is divisible. In Shafai and Ithna Asharia laws it is
valid if the donor withdraws his control over the property in favor of the donee. But under Hanafi
law, such a gift is invalid unless it is separated and delivered to the donee.
3.4.Differences between Hiba, Hiba bil Iwaz, and Hiba ba Shart ul Iwaz –2

Hiba Hiba bil Iwaz Hiba ba Shart ul Iwaz

Ownership in property is transferred Ownership in property is
Ownership in property
for consideration called iwaz. But transferred for consideration
is transferred without
there is no express agreement for a called iwaz, with an express
consideration.
return. Iwaz is voluntary. agreement for a return.

2
Article From Wahab Ohid Legal Aid, Link: http://wahabohidlegalaid.blogspot.com/2013/03/hiba-
gift.html#:~:text=In%20Khajoorunissa%20vs%20Raushan%20Begam,of%20the%20property%20is%20essential.
Accessed on 7th October 2020.

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Delivery of possession Delivery of possession is NOT Delivery of possession is
is essential. essential. essential.
Gift of mushaa where a
Gift of mushaa even where a property Gift of mushaa where a property
property is divisible is
is divisible is valid. is divisible is invalid.
invalid.
Barring a few
It is revocable until the iwaz is
exceptions it is It is irrevocable.
paid. Irrevocable after that.
revocable.
In its inception it is a gift but
It is a pure gift. It is like a contract of sale. becomes a sale after the iwaz is
paid.

Chapter II
1. Essential Elements of a Gift
Since Muslim law views the law of Gift as a part of law of contract without consideration, there
must be an offer (ijab), an acceptance (qabul), and transfer (qabza).
The following are the essentials of a valid gift: A declaration by the donor - There must be a
clear and unambiguous intention of the donor to make a gift. Acceptance by the donee - A gift is
void if the donee has not given his acceptance. Legal guardian may accept on behalf of a minor.
Delivery of possession by the donor and taking of the possession by the donee. In Muslim law
the term possession means only such possession as the nature of the subject is capable of. Thus,
the real test of the delivery of possession is to see who - whether the donor or the donee - reaps
the benefits of the property. If the donor is reaping the benefit then the delivery is not done and
the gift is invalid. Another characteristic of Muslim law is that writing is not essential to the
validity of a „gift‟ either of movable or immovable property.
In Smt Hussenabi vs Husensab Hasan AIR 1989 Kar, a grandfather made an offer of gift to his
grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express
or implied acceptance was made by a major grandson. Karnataka HC held that since the three
elements of the gift were not present in the case of the major grandchild, the gift was not valid. It
was valid in regards to the minor grandchildren.
The following are the conditions which must be satisfied for a valid gift.
Parties - There must be two parties to a gift transaction - the donor and the donee.

2. The Donor
Donor's powers are unrestricted in Muslim law-A man may lawfully make a „gift‟ of his
property to another during his lifetime, or he may give it away to someone after his death by will.

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The first is called a disposition inter vivos and the second a testamentary disposition. Muslim law
permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum
and testamentary disposition is limited to one-third of the net estate. While giving a hiba a
muslim donor must fulfill the following conditions. The donor must have attained the age of
majority - Governed by Majority Act 1875; must be of sound mind and have understanding of
the transaction; must be free of any fraudulent or coercive advice as well as undue influence;
must have ownership over the property to be transfered by way of gift. A gift by a married
woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin
woman is also valid but in case of a dispute the burden of proof that the transaction was not
conducted by coercion or undue influence is on the donee. Gift by a person in insolvent
circumstances is also valid provided that it is bona fide and not merely intended to defraud the
creditors.
2.1.Extent of Donors right to gift
General rule is that a donor‟s right to gift is unrestricted. In Ranee Khajoorunissa v. Mst
Roushan Jahan 1876, it was recognized by the Privy Council that a donor may gift all or any
portion of his property even if it adversely affects the expectant heirs. However, there is one
exception that the right of gift of a person on death bed (Marz ul maut) is restricted in following
ways - He cannot gift more than one third of his property and he cannot gift it to any of his heirs.
2.2.Conditions for Donee (who can receive)
Any person capable of holding property, which includes a juristic person, may be the donee of a
gift. A muslim may also make a lawful gift to a non-muslim; donee must be in existence at the
time of giving the gift; in case of a minor or lunatic, the possession must be given to the legal
guardian otherwise the gift is void; gift to an unborn person is void unless the birth of the child
took place within 6 months of the gift. However, gift of future usufructs to an unborn person is
valid provided that the donee is in being when the interest opens out for heirs. The donee is the
person who accepts the „gift‟, by or on behalf of a person who is not competent to contract. A
minor therefore may be a donee; but if the „gift‟ is onerous, the obligation cannot be enforced
against him while he is a minor. But when he attains majority he must either accept the burden or
return the „gift‟.
A „gift‟ to two or more persons may be a „gift‟ to them as jointly. The presumption of English
law in favour of joint tenancy does not apply to a Hindu „gift‟, and in a Hindu „gift‟ the donees
are presumed to take as tenants in common It is necessary in Muslim law that the donee should
accept a Hiba and possession must be delivered to donee. As Hiba is immediate and absolute
transfer of ownership a hiba in favour of a person who was not in existence is invalid. A Hiba
and Aria in favour of a child in the womb is valid if the child is born within six months from the
date of the hiba because in that case it is presumed that the child actually existed as a distinct
entity in the womb of his mother.

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 3. Acceptance
Acceptance may be made expressly or impliedly by conduct, but acceptance would be
unnecessary in a case where the „gift‟ is made by a guardian to his ward. Muslim law does not
dispense with the necessity for acceptance of the „gift‟ even in cases where the donees are
minors. If the donees are minors it may be that the evidence of acceptance will have to be
approached with reference to that fact, but that does not mean that no proof of evidence of
acceptance is necessary in the case of a „gift‟ in favour of minor.' A minor who has attained
discretion ( sareer) may accept the „gift‟ even after it has been rejected. He may also refuse to
accept the „gift‟. The words 'accepted by or on behalf of the donee show that the donee may be a
person unable to express acceptance. A „gift‟ can be made to a child en ventre se mere and could
be accepted on its behalf.
There was a divergence of view between the two schools of Hindu law as to the necessity of
acceptance of the „gift‟ by the donee, Dayabhaga holding that it was not necessary but
Mistakshara holding the contrary. This section has modified the indigenous Dayabhaga law. A
transfer of a stock to the name of the donee vests the property in him subject to his right to
repudiate the „gift‟, even though he is unaware of the transfer and this is so even though the
„gift‟is onerous. The donee must be an ascertainable person so a „gift‟ cannot be made to an
unregistered society.
Even when a „gift‟ is made by a registered instrument, the same has to be accepted by or on
behalf of the donee to make it complete, failing which the „gift‟ will be bad, because it so
provides in sec. 122. What the law requires is acceptance of the „gift‟ after its execution, though
the deed may not be registered. Anterior negotiations or talks about the „gift‟ would not amount
to acceptance. Person accepting „gift‟ on behalf of the minors appended his thumb-impression
on the deed in token of acceptance. It was held that the „gift‟ was complete. Acceptance must be
essentially made before the death of the donor. There must be something shown to indicate an
acceptance. The acceptance may be signified by an overt act such as the actual taking of
possession of the property, or such acts by the donee as would in law amount to taking
possession of the property where the property is not capable of physical possession. Acceptance
may be implied, but the rule of implied acceptance ought not to be extended so far as to hold that
the acceptance will be presumed unless dissent is shown. Acceptance will be presumed if there is
possession, actual or on the parties where some right, interest, profit or benefit accrues to one
party, or some forbearance, detriment, loss, or responsibility is given, suffered or undertaken by
the other. There is nothing in section122 of the Transfer of Property Act 1882 to show that the
acceptance under this section should be express. The acceptance may be inferred, and it may be
proved by the donee's possession of the property, or even by the donee's possession of the deed
of „gift.
A gift of immovable property as per Transfer of Property Act 1882 can only be made by a
registered instrument. A deed cannot be dispensed with even for a property of small value, as in
the case of a sale. And as a further precaution, attestation by two witnesses is required. This
provision excludes every other mode of transfer and even if the intended donee is put in
possession, a „gift‟ of immovable property is invalid without a registered instrument.

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

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

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

In Noorjahan v. Muftakhar3 a donor made a gift of certain property to the donee, but the donor
continued to manage the properties and takes the profit himself. Till the death of the donor, no
mutation was made in the name of the donee. It was held by the court that since no delivery of
possession was made, the gift was incomplete and ineffective in nature.

Existence of Property Necessary Also In Case Of Hiba A hiba is an out-and-out transfer of some
determinate thing or an incorporeal right, it is necessary that such thing or right must be in
existence and can be transferred immediately. Also in the case of a „gift‟ of usufruct (Aria)
produce (Manafe) refers to rights which accrue from day to day in future. Such produce or use of
a thing becomes property particle by particle as it is brought into being. The manafe may thus be
transferred by the donor during his lifetime by „gift‟ or by bequest and be the subject of „gift‟
even though they are not in existence at the time of the „gift‟.
Any oral „gift‟ of immovable property cannot be made in view of the provisions of sec. 123 of
the Transfer of Property Act 1882. Mere delivery of possession without a written instrument
cannot confer any right. But under the Islamic law, an oral gift is permissible. However, in order
to constitute a valid gift, the donor should divest himself completely of all ownership and
dominion over the subject of „gift‟. It is also essential for the donee not only to prove that the
donor had made an oral „gift‟ in his favour, but it is also essential for him to prove that he
accepted the said „gift‟ and delivery of possession of the „gifted property had also been made.

3
AIR 1970 All. 170

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Chapter III
1. Consideration
A „gift‟ is a transfer. But it does not contain any element of consideration. Complete absence of
monetary consideration is the main, hallmark, which distinguishes a „gift‟ from a grant, sale,
exchange, or any other transactions for valuable or adequate consideration. Where there is any
equivalent of benefit measured in terms of money in respect of a „gift‟, the transaction ceases to
be a „gift‟. Love, affection, spiritual benefit and many other factors may enter in the intention of
the donor to make a „gift‟. The word 'consideration' has not been defined in the T.P. Act, but
means the same as in the Contract Act excluding natural love and affection. If not, and if the
transfer involved consideration, the transaction would amount to a sale within the meaning of
sec. 54 or to an exchange within the meaning of sec. 118. The essence of a „gift‟ inter vivos
must be without 'consideration' of the nature defined in sec. 2(d) of the Contract Act. A „gift‟ in
lieu of conferring spiritual benefit to the donor is not a transfer with consideration, but is to be
treated as a gift. Where a mother gifts property to her only daughter, who promises to maintain
the former throughout her life, the promise is not enforceable in law because the „gift‟ has to be
for natural love and affection and not for any consideration. A minor may be a donee and the
minor's natural guardian can accept the „gift‟ on behalf of the minor. But if the „gift‟ is onerous,
the obligations cannot be enforced against the minor during his minority. But on his attaining
majority, the minor must accept the burden or return the „gift‟. The donee can even be a child in
its mother's womb.

2. Oral ‘gift’ of an Immoveable Property

In view of sec. 1234 of Transfer of Property Act, a gift of immovable property, which is not
registered, is bad in law and cannot pass any title to the donee. Any oral „gift‟ of immovable
property cannot be made in view of the provisions of sec. 123. Mere delivery of possession
without a written instrument cannot confer any title.
Under the Islamic law, an oral gift is permissible. However, in order to constitute a valid gift, the
donor should divest himself completely of all ownership and dominion over the subject of „gift‟.
It is also essential for the donee not only to prove that the donor had made an oral „gift‟ in his
favour, but it is also essential for him to prove that he accepted the said „gift‟ and delivery of
possession of the „gifted property had also been effected.
Although the Hindu law requires delivery of possession to complete a gift of immovable
property, that law has been abrogated by sec. 123 of this Act. This section clearly seems to have
the effect of rendering unnecessary the delivery of possession, substituting, as it does,
registration for delivery of possession.
Since delivery of possession is not necessary, it follows that if a Hindu executes a „gift‟ in
favour of three villages by means of a duly registered instrument but reserves possession of the

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Transfer how effected,sec-123 of T.P Act

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villages in order to enjoy the usufruct during his lifetime, and at the same time provides that he
would not alienate the property to anybody else, the „gift‟ is perfectly valid.
Since delivery of possession is not necessary, it follows that if a Hindu executes a „gift‟ in
favour of three villages by means of a duly registered instrument but reserves possession of the
villages in order to enjoy the usufruct during his lifetime, and at the same time provides that he
would not alienate the property to anybody else, the „gift‟ is perfectly valid.

3. What can be the subject of Gift

The intended property to be given in gift must be designable under the term mal; it must be in
existence as the time when the gift is made. 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. A „gift‟ of a right of management is valid; The general principle is that the subject
of a gift can be anything over which dominion or right of property may be exercised; anything
which may be reduced to possession; anything which exists either as a specific entity or as an
enforceable right; but a „gift‟ of future revenue of a village is invalid. Thus, gift of anything that
is to be made in future is void; the donor must possess the gift. In Nawazish Ali Khan v. Ali Raza
Khan AIR 1984,5 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 doesn't automatically enlarge into gift of
corpus. This ruling is applicable to both Shia and Sunni.
In Rahim Bux vs Mohd. Hasen 1883, it was held that gift of services is not valid because it does
not exist at the time of making the gift. Gift of an indivisible property can be made to more than
one persons.
Under the Muslim law, the essentials of a „gift‟ are: declaration of „gift‟ by the donor, an
acceptance of the „gift‟ by the donee, and delivery of possession such as is the subject of the
„gift‟ susceptible of. This rule of Muslim law is unaffected by the provisions of sec. 123,
Transfer of property Act and, consequently, a registered instrument is not necessary to validate a
„gift‟ of immovable property.
Possession means not always actual physical possession but possession which the property is
capable of being given. So far as declaration is concerned, it must be shown that the donor either
in the "presence of witnesses or otherwise made a public statement that he „gifted the property in
favour of the donee and that he divested himself of the ownership of the property by delivering
possession to the donee. A Muslim can make oral „gift‟ of his immovable property subject to
these conditions.
Delivery of possession being essential to the validity of a „gift‟, it follows that if there is no
delivery of possession, there is no valid „gift‟. Under the Muslim law, a valid „gift‟ can be
affected by delivery of possession, and if there is delivery of possession, the mere fact that there
is also an unregistered deed of „gift‟ does not make the „gift‟ invalid.

5
30 AIR 1943 Oudh 243-Ed

10
The transfer of property Act deals only with „gift‟s of tangible properly; and so a release of a
security without consideration does not fall under this section; because, though the release of the
security may be said to be a „gift‟, still the „gift‟ is not one of tangible property. When the
certificate of shares together with a blank transfer form signed by the registered shareholder is
handed over to the buyer by the registered holder, the buyer acquires not the full property in the
shares but the title to get on the register of the company. This title to get on the register, though a
chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the „gift‟ of
such title to get on the register is complete when a deed of „gift‟ duly attested and registered,
together with the shares and blank transfer form signed by the donor, is handed over to the
donee. The subject-matter of the gift must be certain existing movable or immovable property
like land, goods or actionable claims. It must be transferable under sec. 6. In case of gift of
certain amount by entries in the books of account by credit and debit, the sums should be
available on the date of „gift‟ in the account of the firm whose accounts are said to be credited or
debited. In the case of banking companies or other firms and companies who have overdraft
facilities, even if the sums are not in credit of the donor and are not with such companies or
firms, „gift‟s might be possible by adjustment of the book entries. But in the case of non-banking
companies or firms, if these companies or firms do not have overdraft facilities, it is not possible
to make a valid „gift‟ if sums or funds are not available.

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

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

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

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

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

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

11
Where a gift is made to a minor or lunatic, the gift is complete only if the guardian has taken the
actual or constructive delivery of possession of the property on behalf of such persons. If the
possession is taken by any other person who is neither a legal guardian nor a de facto guardian,
the gift becomes ineffective and void.

Katheessa Ummand v. Naravanath Kumhamuand6 is a leading case on this point.

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

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

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

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

Chapter V
1. Exceptions in delivery of possession
The following are the cases where deliver of possession by the donor to the donee is not
required: Gift by a father to his minor or linatic son. In Mohd Hesabuddin v. Mohd. Hesaruddin
AIR 1984, the donee was looking after the donor, his mother while other sons were neglecting
her. The donor gifted the land to the donee and the donee subsequently changed the name on the
land records. It was held that it was a valid gift even though there was no delivery of land; When
the donor and the donee reside in the same house which is to be gifted. In such a case, departure
of the donor from the house is not required; Gift by husband to wife or vice versa. The delivery
of possession is not required if the donor had a real and bona fide intention of making the gift;
Gift by one cosharer to other. Bona fide intention to gift is required; Part delivery - Where there

6
AIR 1964 SC 275

12
is evidence that some of the properties in a gift were delivered, the delivery of the rest may be
inferred; Zamindari villages - Delivery is not required where the gift includes parcels of land in
zamindari if the physical possession is impossible. Such gift may be completed by mutation of
names and transfer of rents and incomes. The gift may be completed by any appropriate method
of transfering all the control that the nature of the gift admits from the donor to the donee. Thus,
a gift of govt. promissory note may be affected by endorsement and delivery to the donee; Where
the donee is in possession - Where the donee is already in possession of the property, delivery is
not required. However, if the property is in adverse possession of the donee, the gift is not valid
unless either the donor recovers the possession and delivers it to donee or does all that is in his
power to let the donee take the possession.

2. Revocation of Gift:
Revocation under T.P Act:
Section 126 of the Transfer of Property provides that under the following conditions a gift may
be revoked:7 That the donor and donee must have agreed that the „gift‟ shall be suspended or
revoked on the happening of a specified event; such event must be one which does not depend
upon the donor's will; the donor and donee must have agreed to the condition at the time of
accepting the „gift‟; and the condition should not be illegal, or immoral and should not be
repugnant to the estate created under the „gift‟. Section 126 is controlled by sec. 10. As such, a
clause in the „gift‟ deed totally prohibiting alienation is void in view of the provisions contained
in sec. 10. A gift, which was not based on fraud, undue influence or misrepresentation nor was
an onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by
resorting to legal remedy in a competent court of law.
2.2.Revocation under Muslim Law:
A Muslim on the other hand can revoke a „gift‟ even after delivery of possession except in the
following cases: When the „gift‟ is made by a husband to his wife or by a wife to her husband ;
when the donee is related to the donor within the prohibited degrees; when the „gift‟ is Sadaka
(i.e. made to a charity or for any religious purpose); when the donee is dead; when the thing
given has passed out of the donee's possession by sale, „gift‟ or otherwise; or the thing given is
lost or destroyed; when the thing given has increased in value, whatever be the cause of the
increase; when the thing given is so changed that it cannot be identified, as when wheat is
converted into flour by grinding; and when the donor has received something in exchange for the
„gift‟ Except in those cases, a „gift‟ may be revoked at the mere will of the donor, whether he
has or has not reserved to himself the power to revoke it, but the revocation must be by a decree
of court.
Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also
generally revocable, though it is held to be abominable. In Shia law, a gift can be revoked by
mere declaration while in Sunni law, it can be revoked only by the intervention of the court of
law or by the consent of the donee.

7
Section 126(When a gift may be revoked)

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 2.3.The following gifts, however, are absolutely irrevocable:
When the donor is dead; when the donee is dead; hewn the donee is related to the donor in
prohibited degrees on consanguinity. However, in Shia law, a gift to any blood relative is
irrevocable; when donor and the donee stand in marital relationship. However, in Shia law, a gift
to husband by wife or vice versa is revocable; when the subject of the gift has been transfered by
the donee through a sale or gift; when the subject of the gift is lost or destroyed, or so changed as
to lose its identity; when the subject of the gift has increased in value and the increment is
inseparable; when the gift is a sadqa; when anything as been accepted in return.

3. Void Gifts
The following gifts are void: Gift to unborn person. But a gift of life interest in favor on a unborn
person is valid if he comes into existence when such interest opens out; Gifts in future - A thing
that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in
future is void; Contingent gift - A gift that takes affect after the happening of a contingency is
void. Thus a gift by A to B if A does not get a male heir is void

4. Contingent & conditional gifts

A gift must always be unconditional. When a gift is made with a condition that obstructs its
completeness, the gift is valid but the condition becomes void. Thus, if A gifts B his house on a
condition that B will not sell it or B will sell it only to C, the condition is void and B takes full
rights of the house.
Before the passing of the Insurance Act 1938 it was quite doubtful regarding the validity of gift
of life insurance by a Muslim. Now the Se. 38 of the insurance Act 2010 made it clear that
assignment and nomination of insurance policy by a Muslim to his wife or vice versa or to any
other person is valid. The same law is also upheld by various courts in different cases.

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 Muslim law and its implications has been the major
subject matter of this article. In considering the law of „gift‟s, 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.
Hiba under Muslim law is very easy to take into effect while gift under Transfer of Property Law
in India is a long procedural matter.

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REFERENCES:
1. Webpage:IPLEADERS, Link:https://blog.ipleaders.in/concept-of-gift-under-islamic-law/, Accessed on 07
October,2020

2. Article From Wahab Ohid Legal Aid, Link: http://wahabohidlegalaid.blogspot.com/2013/03/hiba-

gift.html#:~:text=In%20Khajoorunissa%20vs%20Raushan%20Begam,of%20the%20property%20is%20ess
ential. Accessed on 7th October 2020.
3. AIR 1970 All. 170
4. Transfer how effected,sec-123 of T.P Act

5. 30 AIR 1943 Oudh 243-Ed

6. AIR 1964 SC 275
7. Section 126(When a gift may be revoked)
8. Transfer of Property Act, 1882

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