A gift is a transfer of property where interest is transferred from one living person to another, without

any consideration. It is a gratuitous and inter vivos in nature. This is the general definition that is
accepted by all the religions, including Muslim law. As per the Muslim Law, a gift is called as Hiba.

Meaning and Definition of Gift

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.

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

Muslim law allows a Muslim to give away his entire property by a gift inter-vivos, even with the specific
object of disinheriting his heirs. [Abdul vs. Ahmed, (1881) 8 IA 25]

ESSENTIALS OF HIBA

Since Muslim law views the law of Gift as a part of the law of contract, there must be
an offer (izab), an acceptance (qabul), and transfer (qabza).

In Smt Hussenabi v Husensab Hasan[vii], a grandfather made an offer of a gift to his

grandchildren. He also accepted the offer on behalf of minor grandchildren. However,
no express of 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.
Thus, the following are the essentials of a valid gift[viii]-
1. A declaration by the donor:
There must be a clear and unambiguous intention of the donor to make a
gift. A declaration is a statement which signifies the intention of the
transferor that he intends to make a gift. A declaration can be oral or
written. The donor may declare the gift of any kind of property either
orally or by written means. Under Muslim law, writing and registrations
are not necessary.

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul[ix] it was

held that under Muslim Law, declaration, as well as acceptance of the
gift, may be oral whatever may be nature of property gifted. When the
gift is made in writing, it is known as Hibanama[x]. This gift deed need
not be on stamp paper and also need not be attested or registered.[xi] In
the famous case of Md. Hesabuddin v Md. Hesaruddin[xii], where the
gift was made by a Muslim Woman and was not written on a stamp
paper, Gauhati High Court held that the gift was valid.
The declaration made by the donor should be clear. A declaration of Gift
in ambiguous words is void. In Maimuna Bibi v. Rasool Mian[xiii], it
was held that while the oral gift is permissible under Muslim law, to
constitute a valid gift it is necessary that donor should divest himself
completely of all ownership and dominion over the subject of the gift.
His intention should be in express and clear words. According to
Macnaghten, “A gift cannot be implied. It must be express and
unequivocal, and the intention of the donor must be demonstrated by his
entire relinquishment of the thing given, and the gift is null and void
when he continues to exercise any act of ownership over it.”[xiv]
The declaration should be free from all the impediments such as
inducement, threat, coercion, duress or promise and should be made with
a bona fide intention.

2. Acceptance by the donee[xv]

A gift is void if the donee has not given his acceptance. The legal
guardian may accept on behalf of a minor. Donee can be a person from
any religious background. Hiba in favor of a minor or a female is also
valid. A child in the mother’s womb is a competent done provided it is
born alive within 6 months from the date of declaration. A juristic person
is also capable of being a donee and a gift can be made in their favor too.
On behalf of a minor or an insane person, any guardian as mentioned
under the provisions of Muslim law can accept that gift. These
authorized people include[xvi]:
  Father,
 Father’s Executor,
 Paternal Grand-Father, and
 Paternal Grand Father’s Executor.
3. Delivery of possession by the donor and taking of the possession
by the done[xvii]:
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 – reap the
benefits of the property. If the donor is reaping the benefit then the
delivery is not done and the gift is invalid.

The mode of delivery of possession depends completely upon the nature

of the property. Delivery of possession may either be: Actual, or
Constructive.

1. 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 done. Tangible property may
be movable or immovable. Under Muslim law, where the mutation
proceedings have started but the physical possession cannot be given
and the donor dies, the gift fails for the want of delivery of
possession[xviii]. However, in such cases, if it is proved that although
the mutation was not complete and the done has already taken the
possession of the property, the gift was held to be valid[xix].
2. Constructive Delivery of Possession: Constructive delivery of
possession is sufficient to constitute a valid gift in the following two
situations:
 Where the Property is intangible, i.e. it cannot be perceived through
senses.
 Where the property is tangible, but its actual or physical delivery is not
possible.
Under Muslim law, Registration is neither necessary nor sufficient to validate the gifts
of immovable property.  A hiba of movable or immovable property is valid whether it
is oral or in writing; whether it is attested or registered or not, provided that the
delivery of possession has taken place according to the rules of Muslim Law[xx
Delivery of Possession(cpmpletion of
gift)
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. Muftakhar[4], 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

Capacity to make a Hiba

Mental capacity: A person who is of sound mind and has the mental capacity to understand
the legal implications of his act is eligible to make a gift. However, a gift made by a person of
unsound mind during lucid intervals is a valid gift. Also, the donor must be free from any
coercive or fraudulent influence while making a gift.

In the case of Hussaina Bai v. Zohara Bai[1], the validity of a gift made by parda-nasheen ladies
was declared by the court. In this case, a parda-nasheen Muslim lady was brought from Nagpur to
Burhanpur on an excuse that her brother-in-law was seriously ill. After reaching the place, she had a fit
of hysteria, and soon after it, she was made to sign a gift deed without informing her the content of the
deed and no opportunity was given to her to take an independent decision. The court held that-

“When a gift is made by a parda-nasheen lady, it is important to establish that the consent of the lady
was free and she made the gift on her independent advice. The burden to prove that the gift was made
free from compulsion lies on the donee. In this case, the deed was executed from the lady under
compulsion, it was not her voluntary act, and hence, the deed was held invalid.”
Financial Capacity: According to the Hanafi view, if a person is under insolvent circumstances, he is
allowed to make a gift. However, the Kazi has the power to declare any gift as void if it is made with a
view to defraud the donee. The Indian courts have accepted the view of the Hanafi school that from the
fact of indebtedness or embarrassing financial circumstances of the donor, it cannot be inferred that the
donor has fraudulent intentions.

So, in every gift, there must be a bona fide intention on the part of the donor to transfer property to the
donee. Evidently, if a gift is made with a malafide intention to defraud the donee, the gift is invalid

The Subject matter of Hiba

Islamic law does not make any distinction between ancestral or self-acquired or between movable or
immovable property as far as the concept of Hiba is concerned. Any form of the property upon which
the dominion can be exercised may constitute the subject-matter of the Hiba. Both incorporeal and
corporeal property can be the subject-matter of a Hiba.

Similarly, a gift can be made of property on lease, a property of attachment or any actionable claim.
Unlike the concept of the will or wasiyat under Islamic law in which only one-third of the total property
can be bequeathed by a will, a Hiba or gift can be made of the entire propert

 Gift in writing not necessary miss notes

 Evidence of gift miss notes
 Gift made in the favor of 2 or more person copy
 Gift made during death illness my copy + miss notes if the donor in his deathliness wala , then
Pakistan ruling aigi

Doctrine of Mushaa
The word ‘Mushaa’ has an Arabic origination which literally means ‘confusion’. Under Islamic law,
Mushaa denotes an undivided share in joint property. It is, therefore, a co-owned or joint property. If
one of the several owners of such property makes a gift of his own share, there may arise confusion in
regard to what part of the property is to be given to the donee. Practically, it is too difficult to deliver the
possession of a joint property if a gift is made by a donor without partition of the joint property.

To circumvent such confusion, the Hanafi Jurists have developed the doctrine of Mushaa. Gift of Mushaa
i.e gift of a share in the co-owned property is invalid without the partition and actual delivery of that
part of the property to the donee. If the co-owned property is not capable of partition, the doctrine of
Mushaa is impertinent. A Mushaa or undivided property is of two kinds:
Mushaa Indivisible
It includes the property in which the partition is not possible. A gift of an undivided share (Mushaa) in a
property which is incapable of being divided or where the property can be used for better advantage in
an undivided condition, is valid. The doctrine of Mushaa is not applicable where the property
constituting the subject-matter of the gift is indivisible. All the schools of Islamic law accept the view
that a gift of Mushaa indivisible is valid without partition and the actual delivery of possession.

For example, a staircase, a cinema hall, a bathing ghat etc. comprises indivisible Mushaa properties. If
these kinds of properties are divided, then their original identity will be lost.

Mushaa Divisible
Mushaa divisible is the property which is capable of division without affecting its value or character. If
the subject-matter of a Hiba is Mushaa divisible, the doctrine of Mushaa is applied and the gift is valid
only if the specific share which has been gifted, is separated by the donor and is actually given to the
donee. However, a gift without partition and the actual delivery of possession is merely irregular and not
void ab initio

Exceptions: Gift of such undivided share is valid which is incapable of division:

a)      Hiba by one co-heir to the other; For instance, A Muslim woman died leaving a mother, a son, and
a daughter. The mother made a gift of her unrealized one-sixth share jointly to the deceased’s son and
daughter. The gift was upheld by Privy Council.

b)      Hiba of a share in freehold property in a large commercial town; For instance, A wins a house in
Dhaka. He makes a gift of one-third of his house to B. The property being situated in a large commercial
town, the gift is valid.

c)      Hiba of a share in a zamindari or taluka; According to Ameer Ali, the doctrine of Musha is applicable
only to small plots of land, and not to specific shares in large landed properties, like zamindaris. 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 is no regular partition of the zamindari, the gift is valid.

d)     Hiba of a share in a land company

Muslim law recognizes the difference between the corpus and the usufructs of a property. Corpus, or
Ayn, means the absolute right of ownership of the property which is heritable and is unlimited in point
of time, while, usufructs, or Manafi, means the right to use and enjoy the property. It is limited and is
not heritable. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a
property is called Ariya.

In Nawazish Ali Khan vs Ali Raza Khan[xxvi], 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 a life interest is valid and it doesn’t automatically
enlarge into the gift of corpus. This ruling is applicable to both Shia and Sunni.

HIBA- IL-IWAZ
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means a gift for consideration already
received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One
gift from a donor to the donee and one from donee to the donor.

The gift and return gift are independent transactions. Therefore, when both i.e., hiba (gift) and iwaz
(return or consideration) is completed, the transaction is called hiba-bil-iwaz. For example, A makes a
gift of a cow to S and later B makes a gift of a house to A. If B says that the house was given to him by A
by way of return of exchange, then both are irrevocable[xxix].

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 the 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[xxx], it was held that adequacy of the consideration is not the question. As long as 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.

Conditional or Contingent Hiba or Gifts( miss notes )

The contingent or conditional gifts are those which are made dependent for their operation upon
occurrence of a consistency. A contingency is a possibility, a chance, an event, which may or may not
happen. In Muslim law, contingent or conditional gifts are void.

In Muslim law, a gift is not rendered invalid, by involving an invalid condition. Hanafi law clearly lays
down that in such a case the gift is valid and the condition is valid.

REVOCATION OF GIFT
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 revocable. The
Muslim law-givers have approached the subject of revocability of gift from several angles.

From one aspect, they hold that all gifts except those which are made by one spouse to another, or to a
person related to the donor within the degrees of prohibited relationship, are revocable.

The Hedaya gives the reasons thus[xxxii]:

“The object of a gift to a stranger is a return for it is custom to send presents to a person of high rank
that he may protect the donor; to a person of inferior rank that the donor may obtain his services; and
to person of equal rank that the donor may obtain an equivalent and such being the case it follows that
the donor has the power of annulment, so long as the object of the deed is not answered, since a gift is
capable of annulment”.

The texts of Muslim law lay down a long list of gifts which are irrevocable. The contents of the list differ
from school to school, and the Shias and the Sunnis have the usual differences. The Muslim law-givers
also classify gifts from the point of view of revocability under the following two heads[xxxiii]:

 Revocation of gifts before the delivery of possession, and

 Revocation of gifts after the delivery of possession.

 Revocation of gifts before the delivery of possession[xxxiv]:

Under Muslim law, all gifts are revocable before the delivery of possession is given to the donee. Thus, P
makes a gift of his motor-car to Q by a gift deed. No delivery of possession has been made to Q. P
revokes the gift.

The revocation is valid. In this case, it will not make any difference that the gift is made to a spouse, or to
a person related to the donor within the degrees of prohibited relationship. The fact of the matter is
that under Muslim law no gift is complete till the delivery of possession is made, and therefore, in all
those cases where possession has not been transferred the gift is incomplete, and whether or not it is
revoked, it will not be valid till the delivery of possession is made to the donee.

The revocation of such a gift, therefore, merely means that the donor has changed his mind and does
not want to complete it by the delivery of possession. For the revocation of such gifts, no order of the
court is necessary. Fyzee rightly says that this is a case of inchoate gift and it is not proper to apply the
term revocation to such a gift.

 Revocation after the delivery of possession[xxxv]:

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient
to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is entitled to use the
property in any manner; he can also alienate it.

It seems that:

 all gifts after the delivery of possession can be revoked with the consent of the donee,
 revocation can be made only by a decree of the court.

The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his
heirs after his death. A gift can also not be revoked after the death of the donee.

According to the Hanafi School with the exception of the following cases, a gift can be revoked even
after the death of the donee.

According to the Hanafi School, with the exception of the following cases, a gift can be revoked even
after the delivery of possession. The exceptions to the same are[xxxvi]:

 When a gift is made by one spouse to another.

  When the donor and the donee are related within the prohibited degrees.
 When the donee or the donor is dead.
 When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he
had disposed of it by sale, gift or otherwise or, where he had consumed it, or where it had been
lost or destroyed.
 When the value of the subject-matter has increased.
 When the identity of the subject-matter of the gift has been completely lost, just as wheat, the
subject-matter of gift, is converted into flour.
 When the donor has received something in return (iwaz).
 When the object of the gift is to receive the religious or spiritual benefit or merit, such as
sadaqa.

The Shia law of revocation of gifts differs from the Sunni law in the following respects: First, gift can be
revoked by a mere declaration on the part of the donor without any proceedings in a court of law;
secondly, a gift made to a spouse is revocable; and thirdly, a gift to a relation, whether within the
prohibited degrees or not, is revocable.

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient
to revoke a gift. Until a decree of the court is passed revoking the gift, the donee is entitled to use the
property in any manner, he can he can also alienate it. [Mahboob vs. Abdul, 1964 Raj 250]

Waqf

Sec 203 def (FULL)

commentary
If we look at the word ‘Waqf’, in its literal sense it is referred to
as ‘detention’, ‘stoppage’ or ‘tying up’. According to the legal definition, it
means a dedication of some property for a pious purpose in perpetuity.
The property so alienated should be available for religious or charitable
purposes. Such a property is tied up forever and becomes non-transferable.

It has been observed in the case of M Kazim vs A Asghar Ali that waqf in its
legal sense means the creation of some specific property for the fulfilment of
some pious purpose or religious purpose.

A lot of eminent Muslim jurists have defined Waqf in their own way. According
to Abu Hanifa, “Wakf is the detention of a specific thing that is in the ownership
of the waqif or appropriator, and

the devotion of its profits or usufructs to charity, the poor, or other good
objects, to accommodate loan.”

“As defined by Abu Yusuf, waqf has three main elements. They are-

 Ownership of God
 The extinction of the founder’s right
 The benefit of mankind
Definition under Mussalman Waqf Validating Act, 1913-  Section 2 of the
Act defines waqf as, “the permanent dedication by a person professing the
Mussalam faith of any property for any purpose recognised by Musalman Law as
religious, pious or charitable.”

Wakf Act, 1954 defines Wakf as, “Wakf means the permanent dedication by

a person professing the Islam, of any movable or immovable property for any
purpose recognized by Muslim Law as religious, pious, or charitable.”
A waqf can be either in writing or can be made by an oral presentation. In the
case of an oral agreement, the presence of words emphasising on the intention
of the parties is a prerequisite.

204 words constituting of waqt copy

205 Validity of wqf copy

207 purpose copy +

Case

In  Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, the dedication of house by a

Muslim for use of all travelers regardless of religion and status was held not to be a
Wakf on the ground that under Muslim law a Wakf should have a religious motive and it
should be only for benefit of Muslim community and if it is secular in character the
charity should be to the poor alone.

When a Wakf is constituted, it is presumed that a gift of some property has been made
in favor of God. This is ensured through a legal fiction that waqf property becomes the
property of God.

Waqf by Non-Muslims:

The waqif must believe in the principles of Islam’, it is not necessary he is Muslim by
religion. The Madras and Nagpur High Courts have held that a non-Muslim can also
create a valid waqf provided the object of waqf is not against the principles of Islam.

Patna High Court has also held that a valid waqf may be created by a non-Muslim.
However, a non-Muslim waqf may make public waqf, he cannot create any private waqf

The following are not recognized as valid objects of the waqf, by the Muslim law.

 Objects prohibited by Islam, e.g maintaining a church or temple.

 Providing for the rich exclusively.
 Objects which are uncertain.

OFFICE OF MUTAWALLI (COPY)

Mutawalli is the manager of a wakf. He is not the owner or even a trustee of the
property. He is only a superintendent whose job is the see that the usufructs of the
property are being utilized for valid purpose as desired by the wakif. He has to see that
the proposed beneficiaries are indeed getting the benefits. Thus, he only has limited
control over the usufructs.
In Ahmad Arif vs Wealth Tax Commissioner, SC held that a mutawalli has no power to
sell, mortgage, or lease wakf property without prior permission of the Court or unless
that power is explicitly provided to the mutawalli in wakfnama.

Who can be a mutawalli – A person who is a major, sound mind, and who is capable of
performing the functions of the wakf as desired by the wakif can be appointed as a
mutawalli. A male or female of any religion can be appointed. If religious duties are a
part of the wakf, then a female or a non-muslim cannot be appointed.

In Shahar Bano vs Aga Mohammad, Privy Council held that there is no legal restriction
on a woman becoming a mutawalli if the duties of the wakf do not involve religious
activities.

Removal of a mutawalli –
Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif.
However, a mutawalli can be removed in the following situations –

1. By Court –
 1. if he misappropriates wakf property.
 2. Even after having sufficient funds, does not repair wakf premises and wakf
 falls into disrepair.
 3. Knowingly or intentionally causes damage or loss to wakf property. In Bibi
Sadique Fatima vs Mahmood Hasan, SC held that using wakf money to buy
property in wife’s name is such breach of trust as is sufficient ground for removal
of mutawalli.
 4. he becomes insolvent.

2. By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove
mutawalli from his office under the conditions mentioned therein.

3. By the wakif – As per Abu Yusuf, whose view is followed in India, even if the wakif has
not reserved the right to remove the mutawalli in wakf deed, he can still remove the
mutawalli.