By Abdul Subhan DIHE

B.A LLB
Batch 5

*Discuss the concept of Gift Muslim laws

*Draft a Gift deed under Islamic Laws.

CONCEPT OF HIBA UNDER MUSLIM LAW

The conception of the term ‘gift’ as used in the Transfer of Property
Act, 1882 differ from the practice under the Muslim Law. Under the
Muslim Law, a gift is a transfer of property or right by one person to
another in accordance with the provisions provided under Muslim law.
Hiba (Tamlik al ain), is an immediate and unconditional transfer of the
ownership of some property or of some right, without any
consideration or with some return (ewaz); and the term ‘hiba’ and ‘gift’
are often indiscriminately used but the term hiba is only one of the
kinds of transactions which are covered by the general term ‘gift.

The Hanafi Jurist define hiba as ‘an act of giving by which a right of
property is conferred in something specific without an exchange’. The
Shias hold that ‘a hiba is an obligation by which property in a specific
object is transferred immediately and unconditionally without any
exchange and free from any pious or religious purpose on the part of
the donor’.
Elements of Hiba

Muslim law sees the law of Gift as a part of the law of contract, there
must be an offer (izab) by donor , an acceptance by donee (qabul), and
transfer of item/property In Naeem ul haq v Nazir The father made an
offer to his son of a gift. But no express implied acceptance was showed
the court held that since major element of acceptance was not present
the gift was void.

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.

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.

Acceptance by the donee

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.
Father and his executor, paternal grandfather and his executor
Transfer of the property by the donor and taking the possession by the
donee

DRAFT

Gift Deed created and executed at 12 Feb 2021 B/w parties

Mr. Rizwan ahmed 52 years Resident of Karac
(here inafter called the “Donor”) of the one part
Mr. Muhammad Ahmed 24 years Resident of karachi
(here in-after called the “Donee”) of the other part

Whereas the donor has great love and affection with the done
and being related as following to the Donee Father
And whereas the Donor has agreed to gift the sum of the
property to the Donee amounting 50 lacs and has agreed to
accept the same.

Witnesseth as follows
1) The donor has hereby donate gift the aforesaid sum of the
property to Muhammad Ahmed son of Rizwan ahmed aged 22
Resident of Karachi
2) The aforesaid sum of the property is sitting in bank deposit in
Rizwan ahmed UBL bank account Hill park branch IBAN no.
11920115846897
3) The possession of the aforementioned sum has been
delivered to the donee through the wire transaction dated 12-
feb-21
4) The sum of the property amounting to 25 lacs is tax free and
hence there shall be no income tax deducted according to
income tax ordinance 2001
5) The donee shall become absolute owner and exclusive owner
of the cash amount with all rights and from today enjoy all
rights of owner ship. The donor shall be left with no title of the
sum of property
6) all the transaction cost are borne by the donee
7) this deed shall be governed by the laws of Islamic republic of
Pakistan, Karachi.

In witness Whereof the parties have signature of their hands on

this gift deed dated 12-feb-2021

1. Mr Rizwan ahmed

____________________

2. Mr.Muammad ahmed
*Discuss the concept Will under Muslim laws and also
Draft Will deed (Wasiyatnama) under Islamic Laws.

A will, wasiyaat or law of succession in a Islamic law is an instrument by

which a person conveys how his property be disposed or certain things
should be done.

Tyabji defines Will as a conferment of right of property in a specific

thing or in a profit or advantage or in a gratuity to take effect on the
death of the testator

The main feature of a Will is that it becomes effective after the death of
the person and it is revocable. (if disputed)

Unlike any other disposition (e.g. sale, gift deed), the testator exercises
full control over the property or demand in question till he is alive: the
legatee or beneficiary under the Will cannot interfere in any manner
whatsoever in the legator's power of enjoyment of the property
including its disposal or transfer (in that case the Will becomes
revoked).
Common reason behind the Will
In Islam the concept of will is introduced as to provide for the
maintenance of the members of the family after the death of testator
Or amend certain things in way to settle and divide the property
A property cannot be written off in a will on the expense of other
beneficiaries who are lawful heir.
“A bequest in favour of an heir would be an injury to the other heirs as
it would reduce their shares and would consequently induce a breach
of the ties of kindred.”

Requirments of a valid will

There is no exact principles of making a will but as long as these

following principles are available it will be considered a valid will
A person who is created a will should be of sane mind and competent
entity
*The person receiving the bequest should be lawful heir he could be
minor or major in some instances unborn child can receive a will
property with certain conditions
* The property in will should be bequest able property
*consent should be present by all the legal heirs
*the legator should have absolute rights on the property

Revocation
Muslim law confers on a testator unfettered right to revoke his will. A
Muslim testator may revoke, during his life-time, any Will made by him
expressly or impliedly.
 DRAFT
Will Last Testament

Created at September /2/1994

I Madiha khan s/o Nasir khan Residing in Nowshera, Pakistan Age 74
By religion Muslim of sunni fiqh
1. I revoke all former wills if any and this shall remain the final testament
2. I appoint Meer khan s/o naeem khan to be executor and trustees of
my last will but if any of the person or above died before the execution
of trust then I appoint noor khan s/o meer noor khan.
3. I Bequest my property located in Johr town bunglow 134 build of 75
acre
A.subject to my express direction to the contrary, to use their discretion
in the realization of my estate with the power to my Trustees to sell,
call in or convert into cash at such time or times and in such manner
B to pay my just debts, funeral and other testamentary expenses, all
succession duties, inheritance and death taxes, and all expenses
necessarily incidental thereto, to be paid and satisfied by my Trustees
as soon as conveniently may be after my death;
c) to pay such religious taxes (like khums and kaffarah) and other
d) to divide and pay or transfer the balance of my estate as soon as is
reasonably practicable after my death as follows:
to my all four children with equity
IN WITNESS WHEREOF I have to this my Last Will and Testament set my
hand this 2 sep day of thursday, 1995.

SIGNED by the Testator and declared as last Will and Testament, in the
presence of us both present together at the same time who at his
request and in her presence and in the presence of each other have
hereunto subscribed our names as witnesses.

Name ________________

Signature ________________

Name ________________

Signature ________________