NAME –AMIR SUBHANI KHAN

COURSE- BA LLB (Hons.)

SEMESTER- IV
ROLL NO- 10
TOPIC- GIFT AND WILL
SUBMITTED TO – PROF. KAHKASHAN Y.
DANYAL
GIFT OR HIBA
In Muslim law, gifts are called “hiba”. The gifts in India are governed by Transfer of Property
Act, 1872. However, the provision of Transfer of Property Act, 1872 does not apply to Muslim
law. The English term, ‘gift’ is of a wider connotation and applies to all transactions where one
transfer’s one’s property to another without any consideration.

Although Muslim Law allows only one third disposition through “will” it allows a man to give
whole of his property during his lifetime by means of gift or “hiba”1

AMEER ALI - A hiba is a voluntary gift without consideration of property or the substance of
thing by one person to another so as to constitute the done the proprietor of the subject-matter of
the gift.

MULLA – Gift is a transfer of property made immediately and without any exchange by one
person to another and accepted by or on behalf of the latter.

BAILLIE- The conferring of right in something specific without an exchange.

Essentials of a valid gift

1. Declaration of the gift by the donor.
2. Acceptance of the gift expressly or impliedly, by donee or by someone else on his behalf.
3. Delivery of possession of the subject matter of the gift to the donee.

DECLARATION
Declaration doesn’t just means announcement of the gift but it also means that the donor should
have real intention of making the gift. Gifts without intention maybe sham gifts, colourable or
benami transaction

ACCEPTANCE
In order for completion of transaction the donee must accept the gift. This acceptance maybe
express or implied. An exception to this rule is gift of a debt to a debtor or his heir which is valid
without acceptance and is not invalid even if rejected by him.

Also no acceptance is required when gift is to a son or ward by father or guardian.2

DELIEVERY
1
Abdul vs. Ahmed, (1881) 8 IA 25
2
Alibai v Bai Asi, AIR 1934 Bom 21
When the donor makes the declaration of gift and donee accepts it then possession should be
transferred to the donee. Such transfer of possession maybe actual or constructive.

Registration of gift is no way an indication of delivery of possession. Thus when A makes a gift
of house belonging to him to B and registers it to his name but doesn’t transfer the possession,
the gift is not complete.3

Actual Delivery of Possession: Where the property is physically handed over to the donee, the
delivery of possession is actual. Generally, only tangible properties can be delivered to the
donee. Tangible property may be movable or immovable.

Constructive Delivery of Possession: Constructive delivery of possession is sufficient to

constitute a valid gift in the following two situations:

1. Where the Property is intangible, i.e. it cannot be perceived through senses.

2. Where the property is tangible, but its actual or physical delivery is not possible.

EXCEPTION TO THIS RULE

1. Donor and donee reside in the same house.

When donor and donee reside in the same house the gift is complete without physical transfer
of possession. Madras High Court in case of Ibrahim Bivi v Pakkir Mohideen4 held that “
where the property gifted is a house and the settlor and settle reside in that house, it is not
necessary for the settlor formally depart from the house in order to indicate that the settle has
been given possession of the property gifted.”

This view was taken because of the clear pronouncement of Privy Council in case of
Musamian v Kader Bux5 and that of Supreme Court in case of Katheesan Umma v
Narayanath Kunhau6 in the same effect.

2. Husband to wife.

Where a married couple lives in a house belonging to husband, the gift deed can be transferred
from the husband to the wife without an actual transfer of the possession of the property.

3. Father to child: Mother to son: Guardian to ward

3
Mulla
4
AIR 1970 Madras 19
5
AIR 1928 PC 108
6
AIR 1964 SC 275
 Transfer of possession of property is not necessary where a father or mother makes a gift
of immovable property to their minor child or when a guardian makes a gift to their
ward.
The rational is that it would be absurd if the owner of property hands over the possession
to themselves as the minor can not accept gift on his own.

4. Gift to donee already in possession

Where the donee is already in the possession of the gift the gift is complete just by
declaration and acceptance.

CAPACITY TO MAKE A HIBA

Mental capacity – Every Muslim, male or female, married or unmarried, who has
attained the age of majority and who is of sound mind has the mental capacity to make a
gift. The rule of Muslim law of majority, i.e. attainment of puberty, does not apply to
gifts. A person of unsound mind can make a valid gift during lucid intervals.

Financial capacity – The Malikis hold the view that a person under insolvent
circumstances have no capacity to make a gift. On the other hand, the Hanafis hold the
view that insolvency does not create an incapacity to make a gift, but the kazi has the
power to render such gift invalid if it is made with a view to defrauding the creditors As
held in the case of Abdul vs. Mir Md, The Indians court follow the Hanafi view. In
every gift, there must be a bona fide intention on the part of the donor to transfer property
to the done and if it is made with an intention to defraud the creditors, the gift is invalid.

IN WHOSE FAVOUR GIFT CAN BE MADE

1. Any living person who is capable of holding property.

2. Child in the womb- A gift to an unborn person maybe made provided that child is
born within 6 months from the date of the gift.
3. Unborn person- A gift of limited interest can be made to an unborn person provided
that such person is in existence when interest opens out for him.
4. Jurist person- Gift to mosque, durgahs is valid.
5. Non- Muslims
6. Two or more persons- When gift is made to two or more donee without dividing the
property, its validity is governed by Doctrine of Mushaa.

DOCTRINE OF MUSHAA
The word Mushaa has been derived from the Arabic word ‘’Shuyua’’ which literally means
‘confusion’. Under Muslim law, Mushaa signifies an undivided share in a joint property. Mushaa
is therefore, a co-owned or joint property.

If one of the several owners of this property makes a gift of his own share, there may be a
confusion as to which portion or part of the property is to be given to the done.

A Mushaa or undivided property may be of two kinds ;

1. Where property is indivisible

A gift may be validly made of an undivided share ( mushaa) in a property which is
incapable of being divided or where the property can be used in better advantage in an
undivided condition. For example, a bathing ghat, a stair case or a cinema house etc. are
indivisible Mushaa properties where the physical partition or division of such properties
is not practical.
Where a stair case is co-owned by, say two persons, then each being the owner of half of
the stair-case, is entitled to make a Hiba of his share. If stair-case is divided into two
parts, it would either be too narrow to be used by any one, or the upper half may come in
the share of one and the remaining lower half in the other’s share. In both the cases the
stair case would become useless for both of them and also for the donee.
The doctrine of Mushaa is not applicable where the subject-matter of gift is indivisible.

2. Where property is divisible.

The gift of mushaa of property which is capable of being divided is irregular but not void.
Subsequent division and delivery of possession makes the gift valid. A co-owned piece of
land, house or a garden may be divided easily without changing the nature and without
affecting the utility of the property.

There are six exception to this general rule7

1. Where the gift is made by one co-heir to another.

2. Where the gift is of share in a Zamindari or Taluka.
3. When the gift is to two or more persons.
4. Where the gift is of share a share in a freehold property in a large commercial town.
5. Where the gift is of a shares in a Land Company.
6. Where a property is gifted to a person with a condition that he shall make certain periodic
payments out of the income of the property, such payment is not governed by Doctrine of
Mushaa.

REVOCATION OF GIFT

7
Fyzee, 241-243
Although there is a tradition which indicates that the Prophet was against the revocation of gifts,
it is a well-established rule of Muslim law that all voluntary transactions, including gifts, are

Revocation of gifts before the delivery of possession

A gift maybe revoked by the donor at any time before the delivery of possession. The reason is
that the gift is no gift before the delivery of possession..

Revocation after the delivery of possession

When a gift is made and subject matter of the gift is duly transferred to the possession of the
donee,its revocation is possible in only

a. by the intervention of the court.

b. by the consent of the donee.

WILL UNDER ISLAMIC LAW

In pre-Islamic Arab’s capacity to dispose of his property by will was as full as his power to deal
with it by acts inter vivos. He was free to make will in favour of any one he chose, and there was
nothing to prevent him from giving away his entire property to some rich stranger, leaving his
own children, parents in destitute. He was also at liberty to give preference to one heir to the
exclusion of others.8 Prophet Muhammud observed that this unrestricted right of making a will
was a social and economic problem for the heirs of the testator.

The importance of the Islamic will is clear from the following two hadith:

Sahih al-Bukhari: “It is the duty of a Muslim who has anything to bequest not to let two nights
pass without writing a will about it.”

Ahmad and Ibn Majah: "A man may do good deeds for seventy years but if he acts unjustly
when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he
will enter the Fire. If, (on the other hand), a man acts wickedly for seventy years but is just in his
last will and testament, the goodness of his deed will be sealed upon him, and he will enter the
Garden.”

After the advent of Islam, when Koran laid down specific rules for the distribution of
inheritance, it placed a restriction on the testator’s power, so that he was not allowed to bequeath
more than one-third of his estate. This one-third for the purpose of a will is enough for a stranger

8
Abdur Rahim
whom the testator loves and the rest of the property of the testator will devolve to his lawful
heirs. In India, this rule of one-third was recognised by various courts as early as 1806 and later
on in 1864 in the “Ekin Bibee” case. Presently, in India the will of a Muslim is governed by
Mohammedan Law subject to the provisions of the Indian Succession Act, 1925.

Tyabji says that a will means “the legal declaration of the intentions of a Muslim with respect to
his property which he desires to be carried into effect after his death.”
Darrul Mukhtar define it as an assignment of property to take effect after ones death.

FORMS OF WILL
Any particular medium is not provided and it could be made either orally or in writing and no
formality is required for making a Will as held in the case of Abdul Manan Khan v Mirtuza
Khan9 Convenience however demands that it should be in writing. The only requisite is that the
intention of the testator should be clear thus a dumb person or a person who is unable to speak
due to illness can make valid wills through gesture.

Essentials of the Will are

1. the testator must be competent.

2. The bonafide intention must be clear
3. It must be intended to operate after his death
4. the legatee must be competent to take benefit
5. Subject matter:- A Muslim can bequeath any property movable or immovable, corporeal
or incorporeal, which must be in existence and transferable at the time of testator's death.
Therefore it is not necessary that the subject matter of the will must exist at the time of
making the will but it must exist when the will becomes operative that is at the time of
the death of the testator.

Abatement of Legacies
Where a bequest of more than one-third of property is made to two or more persons and the heirs
do not give their consent, the shares are reduced proportionately to bring it down to one-third, or
in other words, the bequest abates rateably. The above rule applies in Sunni law only.

Chronological Priority

9
AIR 1991 Pat 154
According to Shia law, if several bequests are made through a Will, priority would be
determined by the order in which they are mentioned or by the point of time. Thus, legacies take
effect in order of preference.

The legatee mentioned first in the will gets his share as mentioned under the will. After giving
his share, the remaining goes to the second legatee. If there still remains something, it goes to the
third and as soon as the one-third property is exhausted, the distribution is stopped and the next
legatee does not get anything. Thus, here a legatee either gets his share or gets some share or gets
nothing at all.

If bequest are for religious or pious purposes but exceed the legal limit of one third then the
priority would be determined in the following order

a. Bequest for faraiz( duties which are expressly ordered in Koran like performance of haj)
b. Bequest for wajibat (those act recommended by Koran but not obligatory like charity on
day of breaking of fast)
c. Bequest for nawafil ( voluntary but pious act which are not even recommended like
building a bridge)

Bequest of the first take preference over second and that of second over third.

WILLS DURING MARAZ-UL-MAUT

In a Malayasian case Mustak Ahmed v/s Abdul Wahid, it was stated that, “Marz-ul-Maut (mortal
sickness) is the kind of sickness, such that in the condition of the sick person there has generally
been fear of death for him, and the sick person being unable to attend to his business, if he is a
man, his business outside the house, if she is a woman, her business inside the house.

To constitute maraz-ul-maut there must be

a. Proximate danger of death

b. Apprehension in the mind of the sick
c. Some external indication like inability to perform the routine work.

A gift without consideration made in maraz-ul-maut takes effect as a will.Under Hanafi law it
takes effect to the extent of bequeathable third if not in favour of heirs and possession has been
taken by donee.

Under Shia law it takes effect to the extent of one third even it is in favour of heirs provided
possession is transferred.

REVOCATION OF WILL
Muslim law confers on a testator right to revoke his will. A Muslim testator may revoke, during
his life-time, any will made by him expressly or impliedly or by subsequent will.

Express Revocation is one where the testator revokes the bequest in express terms either orally
or in writing.

Implied Revocation is one where testator does an act from which revocation maybe inferred.For
example bequest of piece of land is revoked, if the testator builds a house upon it.

A bequest to a person is revoked by a bequest in a subsequent will of same property to another

person.