GIFTS

This excerpt from the book on Property Law provides a comprehensive overview of the
concept of "gifts" under Muslim law, distinguishing it from the broader approach under the
Transfer of Property Act, 1882. It also delves into the requirements and principles that govern
the validity of gifts in Islamic legal tradition.

Key Points of the Section:

1. Overview of Gift in Muslim Law:

o Gifts are governed differently in Muslim law compared to the Transfer of
Property Act. Under Muslim law, a gift (often called Hiba) takes immediate
effect, allowing the donor to relinquish ownership and control over the
property as soon as the gift is made.
o The donor can make a gift to anyone, and it is valid even if the purpose is to
disinherit a legal heir or favor a specific person, provided the gift isn’t
intended to defraud creditors.
2. Definition and Requirements for a Valid Gift:
o Gift Definition: A gift is the voluntary transfer of existing property, made
without consideration, from a donor to a donee, with immediate delivery of
possession.
o Requirements:
 Declaration (Ijab) by the donor
 Acceptance (Qubool) by the donee
 Immediate Delivery of Possession (Qabza) of the property
3. Eligibility of Donor and Donee:
o The donor must be a competent adult of sound mind, but there is no
requirement for the donee to be a contracting adult.
o The donee can be a minor, of unsound mind, or even a juristic person (like a
mosque). However, the donee must exist at the time of the gift’s execution,
except in specific cases for unborn individuals if they come into existence by
the time the life interest ends.
4. Special Cases in Gifts:
o Gift by Pardanashin Women: A gift made by a secluded (Pardanashin)
woman is subject to greater scrutiny. Courts require proof that she fully
understood the gift’s implications.
o Ownership Requirement: Only the property's legal owner can make a gift. A
trespasser or someone without a legitimate title cannot validly gift property.
o Financial Obligations: Debts do not invalidate a gift unless the gift is
intended to defraud creditors.
o Gift to Future Persons or Future Property: A gift can only be made for
existing persons and property; gifts to unborn individuals or future property
are generally void.
5. Distinction between Corpus and Usufruct:
o Corpus refers to the property itself, conferring absolute ownership. In
contrast, usufruct refers to the benefits or produce of the property. Gifts of
corpus are permanent and inheritable, while usufruct gifts (e.g., use of land or
collection of rents) are temporary and cannot be transferred.
 6. Special Types of Property:
o A gift can include tangible and intangible assets, such as land, movable items,
rights, and certain types of actionable claims.
o However, future property or any contingent interest that depends on a future
occurrence cannot be gifted under Muslim law.
7. Equity of Redemption:
o The donor’s right to reclaim mortgaged property (equity of redemption) can be
gifted, provided possession can be legally transferred. However, if the
property is under mortgage, there’s a conflict in judicial views, with some
courts upholding constructive delivery of possession as sufficient.

The concept of a valid gift in law, particularly under Muslim law, involves three essential
elements: Declaration by the donor, Acceptance by the donee, and Delivery of possession
of the property. Let’s break down each requirement:

1. Declaration by the Donor:

o The donor (the person giving the gift) must voluntarily and clearly express
their intention to gift the property. This declaration must be explicit, indicating
a clear intention to transfer ownership and control of the property. For
example, a simple permission to stay in a house doesn’t qualify as a gift
without a formal declaration of intent.
o Fraudulent motives, such as using a gift to avoid debts or other obligations,
can render the gift voidable (can be challenged by creditors). A valid gift must
be declared publicly or in the presence of witnesses, demonstrating the donor’s
intent to give away ownership and control completely.
o In one Supreme Court case, an arrangement where a father allowed his sons to
manage separate pharmacies was not considered a gift. The arrangement
lacked a formal declaration of gift and was instead deemed a management
agreement.
2. Acceptance by the Donee:
o The donee (the person receiving the gift) must accept the gift, either
personally or through a representative if the donee is a minor or lacks legal
capacity.
o For minors, specific legal guardians can accept gifts on their behalf: the father,
the father’s executor, the paternal grandfather, or the grandfather’s executor.
Acceptance by anyone else, like the mother, is invalid unless appointed as
guardian in a will.
o In the case of Musa Miya v. Kadar Bux, a grandfather declared a gift to his
grandsons, but there was no acceptance by a legally recognized guardian. This
made the gift incomplete and invalid.
3. Delivery of Possession:
o Under Muslim law, delivering possession is a crucial component for a gift to
be considered complete and valid. This means the donor must relinquish all
control over the property, symbolized by actions like vacating it or transferring
keys or documents.
o Possession can be actual (physical) or constructive (symbolic, such as
transferring keys to an empty house or directing tenants to pay rent to the
donee).
o For example, in Abdul Rahim v. Sk Abdul Zabar, a father gifted land to his son
and arranged for mutation (record change) in the son’s name, although he
 didn’t directly hand over possession. The court upheld this as a valid gift, as
possession was symbolically transferred.

The Supreme Court provided six conditions for a gift to be valid under Muslim law:

1. The donor must be a sane adult and the lawful owner of the property.
2. The property must exist at the time of gifting.
3. If divisible, the property should be separated and specified.
4. The property must be lawful to own and benefit from under Shariat law.
5. The gift must be independent of items not included in the gift.
6. The gifted property must be placed in the donee’s possession or that of a
representative, guardian, or executor.

These rules ensure a gift under Muslim law is genuinely intended, legally accepted, and fully
transferred to the recipient.

The passage discusses various aspects of gift law, particularly focusing on exceptions to the
rule of physical delivery of possession, the formalities required for a valid gift, and how oral
gifts are treated under the law. Here's a breakdown of the key points:

1. Exceptions to the Rule of Physical Possession:

 Normally, for a gift to be complete and valid, there must be a delivery of physical
possession of the gifted property. However, there are exceptions to this rule:
o Gift from Husband to Wife: If a husband gifts immovable property (such as
the matrimonial home), there is no need for physical departure from the
property. The wife is presumed to have possession due to their relationship
and shared living arrangements.
o Gift from Father to Minor Child or Guardian to Ward: A gift from a
father to a minor child or from a guardian to a ward does not require the
physical delivery of possession. The intent to transfer ownership is sufficient.
o Donor and Donee Living Together: If the donor and donee live in the same
property that is being gifted, physical delivery is not required. A formal
declaration and overt acts (like handing over property documents) suffice.

2. Gift by Husband to Wife:

 When a husband gifts property to his wife (especially the matrimonial home),
physical departure or entry is not necessary because of their joint residence. The
husband's management of the property is seen as an act on behalf of the wife.
 Fatmabibi v. Abdul Rehman Abdul Karim: The Gujarat High Court held that an
oral gift by a husband to his wife of the matrimonial home was valid because there
was constructive delivery of possession, despite no physical transfer.

3. Gift to Minor or by Guardian:

 Gift by Father to Minor Child: If a father makes a gift to a minor child, delivery of
possession is not necessary. The father can accept the gift on behalf of the child.
  Gift by Maternal Grandfather: The Musa Miya v. Kadar Bux case illustrates that
a maternal grandfather’s gift to his minor grandsons was invalid because there was no
delivery of possession and the father was alive, making him the proper guardian.

4. Gift to a Minor by Someone Other than the Father or Guardian:

 If someone other than the father or guardian gifts property to a minor, delivery of
possession is mandatory. If the gift is valid, it can be delivered to the father or
guardian, or in their absence, to the person taking care of the minor.

5. When Donor and Donee Live in the Same Property:

 In this case, the donor does not need to leave the property, and no formal entry by the
donee is required. However, there must be a declaration of intent and some overt act
to show that the donor is relinquishing control of the property.
 Examples of overt acts include handing over documents, allowing the donee to collect
rents, or applying for a mutation of ownership.

6. Formalities for a Valid Gift:

 A gift can be oral or in writing. However, it must meet the three key requirements:
declaration, acceptance, and delivery of possession. An oral gift is valid if these
elements are proven.
 Gift by Non-Muslims: Under the Transfer of Property Act, 1882, a gift of
immovable property must be in writing, attested by two witnesses, and registered.
 Gift Deed and Oral Gift: If a gift deed is executed along with an oral gift, the deed
must be registered for the gift to be valid. This ensures that the intention to transfer
the property is legally recognized.

7. Oral Gifts:

 While oral gifts are permissible, they must meet the same requirements of declaration,
acceptance, and possession. The burden of proof is on the donee to establish that these
elements were met.
 Faridsaheb v. Ahmedsaheb: The Bombay High Court held that a gift deed executed
simultaneously with an oral gift must be registered to be valid.

The concept of Mushaa (Arabic: ‫ )ُمشاع‬refers to an undivided share in a property, where the
specific portion of the property assigned to an individual is not defined until a partition or
formal division takes place. This undivided share can exist in property capable of division or
property that cannot be divided without destroying its intrinsic value.

Key Points Regarding Mushaa and Gift of Mushaa:

1. Nature of Property:
o Capable of Division: If the undivided share is in property that can be divided
without damaging its value, it can be gifted as long as the division occurs, and
possession is handed over to the donee.
 o Incapable of Division: If the undivided share is in property like a common
entrance, staircase, or a well, which cannot be divided, the gift can still be
valid. However, the donor must take steps to demonstrate the intent to transfer
possession, which could involve actions like allowing the donee to use the
property or sharing it in common.
2. Sunni and Shia Law on Mushaa:
o Shia Law: The gift of an undivided share in property capable of division is
valid as long as it is not inconsistent with Shia principles.
o Sunni Law: The gift of an undivided share in divisible property is also valid,
but a formal partition and division may be required to perfect the gift. In
certain situations, like when one co-heir gifts a share to another co-heir or
when the property is part of large commercial land, the gift may be valid
without partition.
3. Exceptions:
o Co-heir Gift: When one co-heir gifts a share to another, such as a parent
gifting to a child, the gift is valid even without a partition.
o Zamindari/Taluka Share: This was significant before the abolition of
Zamindari laws in India, where the undivided share in properties like
Zamindari estates could be gifted without division.
o Freehold Properties in Large Towns: Shares in such properties can also be
gifted without partition.
o Land Company Shares: Similar to large town properties, shares in land
companies can be gifted without division.
4. Constructive Possession: When the donor is in constructive possession (i.e.,
possession on behalf of another) and gifts the share to the donee, this is treated as a
valid transfer of possession.
5. Gift of Mushaa to Multiple Donees:
o If a gift is made to two or more donees without specifying their shares, the gift
can be validated by subsequent partition, especially under Sunni law.
o Under Shia law, such a gift remains valid even without partition as long as the
shares are specified at the time of gifting.
6. Contingent and Conditional Gifts:
o Contingent Gifts: A gift conditioned on uncertain events (e.g., if a person
dies under certain conditions) is invalid.
o Conditional Gifts: A gift subject to a condition that restricts or limits the
enjoyment or use of the property (e.g., the donee cannot sell the property) is
valid but the condition itself is void, meaning the donee can ignore such
conditions.
7. Life Estate and Reversion:
o Gifts with conditions involving life estates (e.g., a gift of property for a
lifetime with a reversion to the donor) are recognized under Shia law but are
considered invalid in Sunni law when they derogate from the absolute nature
of the gift.
8. Gifts with Trust Conditions: Gifts that create a trust (such as a gift with a condition
that specifies how the income from the property should be used) are valid under both
Sunni and Shia law, provided the donor does not retain any rights over the corpus.

The concept of Hiba-bil-Iwaz in Islamic law refers to a type of gift with consideration or
exchange, which differs from a simple gift (Hiba). It involves a voluntary and genuine
intention by the donor to transfer ownership of property to the donee in exchange for a
specified consideration. Here are the key points explained:

Key Essentials of Hiba-bil-Iwaz:

1. Bona Fide Intention: The donor must have the genuine and voluntary intention to
make the gift, divesting themselves of all rights over the property and transferring
them to the donee.
2. Consideration: The donee must provide a consideration in return, which can be in the
form of money, services, the relinquishment of a claim to property, or even a promise,
such as marriage or dower payment. However, considerations like love or affection
are not valid.

Consideration:

 Consideration is a fundamental aspect of Hiba-bil-Iwaz. Without valid consideration,

the transaction becomes a simple gift (Hiba), which requires possession to be
delivered.
 Examples of valid considerations include money, returning a favor, or fulfilling
obligations (e.g., a promise to marry or the release of a claim on property).
 An example from case law is when a Muslim woman made a gift of her share in the
property to her nephews in exchange for an annual payment for her maintenance.

Legal Treatment and Formalities:

 A Hiba-bil-Iwaz shares several elements with a contract of sale, including the need for
an offer, acceptance, and consideration. It is often treated as a sale by the judiciary.
 If the consideration exceeds Rs. 100, a written, attested, and registered document is
required to complete the transaction, as specified under the Transfer of Property Act,
1882.

Adequacy of Consideration:

 The law does not require the consideration to be equivalent to the market value of the
gift. The adequacy of consideration is determined by the bona fide intention of the
donor.
 For example, a gift made at a fraction of the market value or in consideration of a
token gift (like a prayer rug or Quran) is still valid.

True Hiba-bil-Iwaz:

 This refers to a situation where the consideration is another gift, not mentioned as part
of the original transaction. It's essentially two separate gifts exchanged between the
same parties.
 In this case, delivery of possession becomes a necessary requirement, and the gift is
irrevocable once the second gift (consideration) is provided.

Hiba-ba-shart-ul-Iwaz:
  This is a gift made with a stipulation for the donee to fulfill a condition. Initially, the
gift is revocable, but once the condition is fulfilled (such as a promise), the gift
becomes irrevocable.
 If the subject matter is an undivided share in property, the gift is not valid without
delivery of possession.

Revocation of Gifts:

 Normally, gifts are revocable until all essential elements are fulfilled. If possession is
delivered, the gift becomes irrevocable, but it can still be revoked under certain
conditions like mutual consent or a court order.
 Certain gifts, such as those between husband and wife or where religious merit is
sought, are irrevocable even after completion.

Shia vs. Sunni Law:

 Under Shia law, gifts made to blood relations are irrevocable, but gifts between
husband and wife are revocable. In contrast, under Sunni law, gifts to a wife are
irrevocable, but gifts to other relations can be revoked.

Challenge to Validity of Gifts:

 Only persons whose rights are affected (e.g., the donor's legal heirs) can challenge the
validity of a gift. Strangers cannot challenge the validity even if possession is not
delivered.

Gifts Distinguished from Other Grants:

 Sadaqah: A gift with a religious purpose, irrevocable and requiring possession to be

delivered. It differs from a simple gift by its primary religious motive.
 Waqf: A permanent dedication of property to God for religious or charitable
purposes. The corpus remains with God, and the income is used for designated
purposes.
 Ariyat: A gift of usufruct for a specific period, revocable at the discretion of the
granter. It does not transfer ownership of the property itself, unlike a simple gift.