Introductory Remarks

A hiba or a simple gift inter vivos has been variously defined. Literally it means, ”The donation of a
thing from which the donee may derive benefit". In its technical sense it is

defined as,

”an unconditional transfer of property, made immediately and without any exchange or
consideration, by one person to another and accepted by or on behalf of the later"

It is offering of property without any return or consideration i.e. conferring of a right of property in
something specific without any exchange1 or return. _

Nature and Definition

Gift is transfer of some existing property without consideration? TPA, (5.122) defines it as, 'the
transfer of certain existing movable or immovable property made voluntarily and without
consideration by one person called donor to another called the donee, and accepted by or on behalf
of the donee’ .

298

Sharaya-ul-Islam defines the term hiba as, 'a contract by which the property of substance (nyn) is
transferred immediately and unconditionally Without any exchange and he:

from any pious or religious purpose on the part of donor3’. Sir Abdur Rahim states, 'it is a transfer of
a determinate prOperty (mal) Without an

exchange".

As per Mulla, 'it is transfer of property made immediately, and without any exchange by one person
to another, and accepted by or on behalf of the latters’.

Fyzee defines hiba as, ’the immediate and unqualified transfer of the corpus of the property without
any return”. ,
Baillie is of the view that it is conferring a right in something specific without an exchange7.

As per Mejelle, hiba is to give ownership of property to another without reward, a person who gives
it is called, ’wahib’, the property is called, ’mewhub’ and the person who accepts is called, ’mewhub
aleh'3. ‘

Requisites of Gift Following are the essentials of a valid gift under Islamic law:(1) Parties ‘ (2) Subject
matter . (3) Form of gift (4) Extent of gift (5) Formalities

1 . Parties

Two parties are involved in a gift transaction i.e. (a) donor and (b) donee. The first being maker of
gift and second is the person who takes something as gift. Following qualifications are prescribed for
donor and donee. '

(a) Qualifications for Donor

As gift is a contractual relationship, so donor must have following

(i) Must be adult

(ii) Must have understanding (sane)

(iii) Must be free

(iv) Must be owner of the property being gifted out

So, a gift made by a married woman, a pardanashin lady, a deaf and dumb person 01' a blind person
is always valid provided it fulfills all the requisites of valid gift.

298
Sharaya-ul-Islam defines the term hiba as, 'a contract by which the property of substance (nyn) is
transferred immediately and unconditionally Without any exchange and he:

from any pious or religious purpose on the part of donor3’. Sir Abdur Rahim states, 'it is a transfer of
a determinate prOperty (mal) Without an

exchange".

As per Mulla, 'it is transfer of property made immediately, and without any exchange by one person
to another, and accepted by or on behalf of the latters’.

Fyzee defines hiba as, ’the immediate and unqualified transfer of the corpus of the property without
any return”. ,

Baillie is of the view that it is conferring a right in something specific without an exchange7.

As per Mejelle, hiba is to give ownership of property to another without reward, a person who gives
it is called, ’wahib’, the property is called, ’mewhub’ and the person who accepts is called, ’mewhub
aleh'3. ‘

Requisites of Gift Following are the essentials of a valid gift under Islamic law:(1) Parties ‘ (2) Subject
matter . (3) Form of gift (4) Extent of gift (5) Formalities

1 . Parties

Two parties are involved in a gift transaction i.e. (a) donor and (b) donee. The first being maker of
gift and second is the person who takes something as gift. Following qualifications are prescribed for
donor and donee. '

(a) Qualifications for Donor

As gift is a contractual relationship, so donor must have following

(i) Must be adult

(ii) Must have understanding (sane)

(iii) Must be free

(iv) Must be owner of the property being gifted out

So, a gift made by a married woman, a pardanashin lady, a deaf and dumb person 01' a blind person
is always valid provided it fulfills all the requisites of valid gift.

(b) Qualifications for Donee

Donee may be any person capable of holding property. This includes even a juristic personHence,
age, race, sex and religion are not a bar to the taking of gift. Even if the donee is incompetent to give
consent, another person on his behalf can give acceptance. A gift in favour of an unborn child is
invalid, except where such child is born within six months of the date of gift as the law presumes a
child in womb to be in existence and anybody who is in existence is created as competent donee.

2, Subject Matter of Gift

All things which are not illegal for Muslims can be a valid subject matter of gift. Following rules are
prescribed in this regard:’

(i) Anything over which dominion or right of property can be exercised or

(ii) Anything which can be reduced to possession or

(iii) Anything which exists either as a specific entity or an enforceable right or

(iv) Anything which comes under the definition of mal" having some value can be a

valid subject matter of gift under pure Islamic law. Two elements of property _
under Islamic law are differentiated i.e. the corpus10 and the usufruct“. So, it must always be seen
whether the gift is for corpus or usufruct? If the gift is for corpus then any condition which derogates
from absolute dominion over the subject of gift is to be rejected as repugnant. If gift is in the
usufruct of property, it can take effect leaving the ownership of the corpus unaffected except for the
period for which its enjoyment is postponed as a result of gift. Gift of property not in existence at the
time of making the gift is always void.

(v) Gift of life interest is valid”. 3. Form of Gift

Gift under Islamic law may be (a) oral or (b) written. Oral gift is as effective as a written one provided
it fulfills all requisites of a valid gift. Under Islamic law a gift of immovable property can be made
verbally and without recourse to written and registered instrument”, the Only condition is transfer
of possession.

4Extent of Gift

. It is general rule that the donor can gift out whole of his property to anybody during his ”fame. This
may be in favour of any person, including his legal heir or a stranger. However this 1’ ule has
following exceptions.

298

Sharaya-ul-Islam defines the term hiba as, 'a contract by which the property of substance (nyn) is
transferred immediately and unconditionally Without any exchange and he:

from any pious or religious purpose on the part of donor3’. Sir Abdur Rahim states, 'it is a transfer of
a determinate prOperty (mal) Without an

exchange".

As per Mulla, 'it is transfer of property made immediately, and without any exchange by one person
to another, and accepted by or on behalf of the latters’.

Fyzee defines hiba as, ’the immediate and unqualified transfer of the corpus of the property without
any return”. ,
Baillie is of the view that it is conferring a right in something specific without an exchange7.

As per Mejelle, hiba is to give ownership of property to another without reward, a person who gives
it is called, ’wahib’, the property is called, ’mewhub’ and the person who accepts is called, ’mewhub
aleh'3. ‘

Requisites of Gift Following are the essentials of a valid gift under Islamic law:(1) Parties ‘ (2) Subject
matter . (3) Form of gift (4) Extent of gift (5) Formalities

1 . Parties

Two parties are involved in a gift transaction i.e. (a) donor and (b) donee. The first being maker of
gift and second is the person who takes something as gift. Following qualifications are prescribed for
donor and donee. '

(a) Qualifications for Donor

As gift is a contractual relationship, so donor must have following

(i) Must be adult

(ii) Must have understanding (sane)

(iii) Must be free

(iv) Must be owner of the property being gifted out

So, a gift made by a married woman, a pardanashin lady, a deaf and dumb person 01' a blind person
is always valid provided it fulfills all the requisites of valid gift.

299

(b) Qualifications for Donee

Donee may be any person capable of holding property. This includes even a juristic personHence,
age, race, sex and religion are not a bar to the taking of gift. Even if the donee is incompetent to give
consent, another person on his behalf can give acceptance. A gift in favour of an unborn child is
invalid, except where such child is born within six months of the date of gift as the law presumes a
child in womb to be in existence and anybody who is in existence is created as competent donee.

2, Subject Matter of Gift

All things which are not illegal for Muslims can be a valid subject matter of gift. Following rules are
prescribed in this regard:’

(i) Anything over which dominion or right of property can be exercised or

(ii) Anything which can be reduced to possession or

(iii) Anything which exists either as a specific entity or an enforceable right or

(iv) Anything which comes under the definition of mal" having some value can be a

valid subject matter of gift under pure Islamic law. Two elements of property _

under Islamic law are differentiated i.e. the corpus10 and the usufruct“. So, it must always be seen
whether the gift is for corpus or usufruct? If the gift is for corpus then any condition which derogates
from absolute dominion over the subject of gift is to be rejected as repugnant. If gift is in the
usufruct of property, it can take effect leaving the ownership of the corpus unaffected except for the
period for which its enjoyment is postponed as a result of gift. Gift of property not in existence at the
time of making the gift is always void.

(v) Gift of life interest is valid”. 3. Form of Gift

Gift under Islamic law may be (a) oral or (b) written. Oral gift is as effective as a written one provided
it fulfills all requisites of a valid gift. Under Islamic law a gift of immovable property can be made
verbally and without recourse to written and registered instrument”, the Only condition is transfer
of possession.
4Extent of Gift

. It is general rule that the donor can gift out whole of his property to anybody during his ”fame. This
may be in favour of any person, including his legal heir or a stranger. However this 1’ ule has
following exceptionsz~

,'-,.___.~ ‘9 .1, .._l 4“!

”3‘

.r’):

:11

" l/uf" ' ":9

(i) Gift during marz-ul-maut (deathbed illness) (ii) Gift through will (testamentary gift)

(a) Gift during Marz-uI-Maut

A gift made during mnrz-ul-mmlt, is subject to certain restrictions; but here one thing must be kept
in mind that, such a gift must fulfill all the conditions” necessary to make a Valid gift. The Hanafis and
Shias hold that such gifts are valid to the extent of 1/3rd unless hem consent but Malikis hold these
gifts as void.15 The donor can dispose of property during man. ul-nmut to following persons:

‘1) Non hair

A person can’t make valid gift of more than 1/3rd of his property. 16 (ii) Heir

It is altogether invalid}?

In case of gift of dowor debt by the wife during death bed illness in favor of husband, it is invalid.18
As husband is uer heir and consent of all other heirs is necessary.

(b) Gift through Will

The policy of Islamic law appears to be to prevent a testator interfering by will with the course of
devolution of property according to law among his legal heirs, although he may gift out a Specified
portion upto 1/ 3rd to a stranger.

5. Formalities for Making Gift

Hiba under Islamic law must fulfill certain formalities as the mere presence of donor, donee and
subject matter will not be sufficient to complete a transaction through gift. These formalities are in
fact the real tests of the validity of a gift. These are called, ” three conditions”.

Three Conditions

These three conditions are also termed as essentials of a gift”. They are:

(i) Declaration ‘

(ii) Delivery of possession

(iii) Acceptance

The first two are on part of donor and the last one must be from the donee himself or on his behalf.
These three must coexist in order to complete a valid gift.

(i) Declaration
The declaration must be clear and unambiguous in form of intention of the donor while making a
gift. As without intention a gift cannot be validly made. Such intention must be real

298

Sharaya-ul-Islam defines the term hiba as, 'a contract by which the property of substance (nyn) is
transferred immediately and unconditionally Without any exchange and he:

from any pious or religious purpose on the part of donor3’. Sir Abdur Rahim states, 'it is a transfer of
a determinate prOperty (mal) Without an

exchange".

As per Mulla, 'it is transfer of property made immediately, and without any exchange by one person
to another, and accepted by or on behalf of the latters’.

Fyzee defines hiba as, ’the immediate and unqualified transfer of the corpus of the property without
any return”. ,

Baillie is of the view that it is conferring a right in something specific without an exchange7.

As per Mejelle, hiba is to give ownership of property to another without reward, a person who gives
it is called, ’wahib’, the property is called, ’mewhub’ and the person who accepts is called, ’mewhub
aleh'3. ‘

Requisites of Gift Following are the essentials of a valid gift under Islamic law:(1) Parties ‘ (2) Subject
matter . (3) Form of gift (4) Extent of gift (5) Formalities

1 . Parties

Two parties are involved in a gift transaction i.e. (a) donor and (b) donee. The first being maker of
gift and second is the person who takes something as gift. Following qualifications are prescribed for
donor and donee. '
(a) Qualifications for Donor

As gift is a contractual relationship, so donor must have following

(i) Must be adult

(ii) Must have understanding (sane)

(iii) Must be free

(iv) Must be owner of the property being gifted out

So, a gift made by a married woman, a pardanashin lady, a deaf and dumb person 01' a blind person
is always valid provided it fulfills all the requisites of valid gift.

299

(b) Qualifications for Donee

Donee may be any person capable of holding property. This includes even a juristic personHence,
age, race, sex and religion are not a bar to the taking of gift. Even if the donee is incompetent to give
consent, another person on his behalf can give acceptance. A gift in favour of an unborn child is
invalid, except where such child is born within six months of the date of gift as the law presumes a
child in womb to be in existence and anybody who is in existence is created as competent donee.

2, Subject Matter of Gift

All things which are not illegal for Muslims can be a valid subject matter of gift. Following rules are
prescribed in this regard:’

(i) Anything over which dominion or right of property can be exercised or

(ii) Anything which can be reduced to possession or

(iii) Anything which exists either as a specific entity or an enforceable right or

(iv) Anything which comes under the definition of mal" having some value can be a

valid subject matter of gift under pure Islamic law. Two elements of property _

under Islamic law are differentiated i.e. the corpus10 and the usufruct“. So, it must always be seen
whether the gift is for corpus or usufruct? If the gift is for corpus then any condition which derogates
from absolute dominion over the subject of gift is to be rejected as repugnant. If gift is in the
usufruct of property, it can take effect leaving the ownership of the corpus unaffected except for the
period for which its enjoyment is postponed as a result of gift. Gift of property not in existence at the
time of making the gift is always void.

(v) Gift of life interest is valid”. 3. Form of Gift

Gift under Islamic law may be (a) oral or (b) written. Oral gift is as effective as a written one provided
it fulfills all requisites of a valid gift. Under Islamic law a gift of immovable property can be made
verbally and without recourse to written and registered instrument”, the Only condition is transfer
of possession.

4Extent of Gift

. It is general rule that the donor can gift out whole of his property to anybody during his ”fame. This
may be in favour of any person, including his legal heir or a stranger. However this 1’ ule has
following exceptionsz~

,'-,.___.~ ‘9 .1, .._l 4“!

”3‘

.r’):
W

:11

" l/uf" ' ":9

(i) Gift during marz-ul-maut (deathbed illness) (ii) Gift through will (testamentary gift)

(a) Gift during Marz-uI-Maut

A gift made during mnrz-ul-mmlt, is subject to certain restrictions; but here one thing must be kept
in mind that, such a gift must fulfill all the conditions” necessary to make a Valid gift. The Hanafis and
Shias hold that such gifts are valid to the extent of 1/3rd unless hem consent but Malikis hold these
gifts as void.15 The donor can dispose of property during man. ul-nmut to following persons:

‘1) Non hair

A person can’t make valid gift of more than 1/3rd of his property. 16 (ii) Heir

It is altogether invalid}?

In case of gift of dowor debt by the wife during death bed illness in favor of husband, it is invalid.18
As husband is uer heir and consent of all other heirs is necessary.

(b) Gift through Will

The policy of Islamic law appears to be to prevent a testator interfering by will with the course of
devolution of property according to law among his legal heirs, although he may gift out a Specified
portion upto 1/ 3rd to a stranger.
5. Formalities for Making Gift

Hiba under Islamic law must fulfill certain formalities as the mere presence of donor, donee and
subject matter will not be sufficient to complete a transaction through gift. These formalities are in
fact the real tests of the validity of a gift. These are called, ” three conditions”.

Three Conditions

These three conditions are also termed as essentials of a gift”. They are:

(i) Declaration ‘

(ii) Delivery of possession

(iii) Acceptance

The first two are on part of donor and the last one must be from the donee himself or on his behalf.
These three must coexist in order to complete a valid gift.

(i) Declaration

The declaration must be clear and unambiguous in form of intention of the donor while making a
gift. As without intention a gift cannot be validly made. Such intention must be real and bona fide.
Authority of gift cannot be delegated to attorney”. (ii) Delivery of Possession

The other elements of gift have no effect unless coupled with delivery of possession of gubject
matter. The word possession under Islamic law here means, ”Only such possession as the nature of
the subject is capable of". So the real test will be to see who reaps the benefits of property gifted
out, if the donor continues to get benefits of such property then the possession is not delivered, and
if the donee benefits from the gifted property, this shows that the possession is delivered and the
gift is complete. Delivery of possession is made one of the most important ingredient for
completionof gift because gift is always without consideration and contracts without consideration
are not enforceable under the lawn, while gift is an exception to it. So, without delivery only offer
and acceptance will not complete a contract of gift like other contracts”, hence, such a gift will be
void ab-initio’3. However, where donor and donee are living together, delivery of possession is not
necessary.
(iii) Acceptance

The acceptance of gift is also essential for the completion of gift. This acceptance may be from the
donee himself or if he is incompetent to give his acceptance any other competent person can give
acceptance on his behalf who is responsible for his care or custody. Where donor is the father of a
minor son then no acceptance is necessary.

Mejelle24 has prescribed some conditions for making a gift, these include;

(a) The thing given shouldrbe existing at the time of gift.

(b) The thing given be property of the donor.

(c) The thing given be known and fixed.

((1) The donor be of sound mind and of age.

(e) If approval of donor is taken place by compulsion or force, it is not good.

Void Gifts

Under Islamic law following gifts cannot be validly made:

(i) Gift to Unborn child, not born within six months from date of gift (ii) Future Gifts

(iii) Contingent Gifts

(iv) Gift of Life interest under Srinni Law

(v) Conditional Gifts

(vi) Gift of Illegal Thing

(vii) Gift of Musha

298

Sharaya-ul-Islam defines the term hiba as, 'a contract by which the property of substance (nyn) is
transferred immediately and unconditionally Without any exchange and he:

from any pious or religious purpose on the part of donor3’. Sir Abdur Rahim states, 'it is a transfer of
a determinate prOperty (mal) Without an

exchange".

As per Mulla, 'it is transfer of property made immediately, and without any exchange by one person
to another, and accepted by or on behalf of the latters’.

Fyzee defines hiba as, ’the immediate and unqualified transfer of the corpus of the property without
any return”. ,

Baillie is of the view that it is conferring a right in something specific without an exchange7.

As per Mejelle, hiba is to give ownership of property to another without reward, a person who gives
it is called, ’wahib’, the property is called, ’mewhub’ and the person who accepts is called, ’mewhub
aleh'3. ‘

Requisites of Gift Following are the essentials of a valid gift under Islamic law:(1) Parties ‘ (2) Subject
matter . (3) Form of gift (4) Extent of gift (5) Formalities

1 . Parties

Two parties are involved in a gift transaction i.e. (a) donor and (b) donee. The first being maker of
gift and second is the person who takes something as gift. Following qualifications are prescribed for
donor and donee. '
(a) Qualifications for Donor

As gift is a contractual relationship, so donor must have following

(i) Must be adult

(ii) Must have understanding (sane)

(iii) Must be free

(iv) Must be owner of the property being gifted out

So, a gift made by a married woman, a pardanashin lady, a deaf and dumb person 01' a blind person
is always valid provided it fulfills all the requisites of valid gift.

299

(b) Qualifications for Donee

Donee may be any person capable of holding property. This includes even a juristic personHence,
age, race, sex and religion are not a bar to the taking of gift. Even if the donee is incompetent to give
consent, another person on his behalf can give acceptance. A gift in favour of an unborn child is
invalid, except where such child is born within six months of the date of gift as the law presumes a
child in womb to be in existence and anybody who is in existence is created as competent donee.

2, Subject Matter of Gift

All things which are not illegal for Muslims can be a valid subject matter of gift. Following rules are
prescribed in this regard:’

(i) Anything over which dominion or right of property can be exercised or

(ii) Anything which can be reduced to possession or

(iii) Anything which exists either as a specific entity or an enforceable right or

(iv) Anything which comes under the definition of mal" having some value can be a

valid subject matter of gift under pure Islamic law. Two elements of property _

under Islamic law are differentiated i.e. the corpus10 and the usufruct“. So, it must always be seen
whether the gift is for corpus or usufruct? If the gift is for corpus then any condition which derogates
from absolute dominion over the subject of gift is to be rejected as repugnant. If gift is in the
usufruct of property, it can take effect leaving the ownership of the corpus unaffected except for the
period for which its enjoyment is postponed as a result of gift. Gift of property not in existence at the
time of making the gift is always void.

(v) Gift of life interest is valid”. 3. Form of Gift

Gift under Islamic law may be (a) oral or (b) written. Oral gift is as effective as a written one provided
it fulfills all requisites of a valid gift. Under Islamic law a gift of immovable property can be made
verbally and without recourse to written and registered instrument”, the Only condition is transfer
of possession.

4Extent of Gift

. It is general rule that the donor can gift out whole of his property to anybody during his ”fame. This
may be in favour of any person, including his legal heir or a stranger. However this 1’ ule has
following exceptionsz~

,'-,.___.~ ‘9 .1, .._l 4“!

”3‘

w
.r’):

:11

" l/uf" ' ":9

(i) Gift during marz-ul-maut (deathbed illness) (ii) Gift through will (testamentary gift)

(a) Gift during Marz-uI-Maut

A gift made during mnrz-ul-mmlt, is subject to certain restrictions; but here one thing must be kept
in mind that, such a gift must fulfill all the conditions” necessary to make a Valid gift. The Hanafis and
Shias hold that such gifts are valid to the extent of 1/3rd unless hem consent but Malikis hold these
gifts as void.15 The donor can dispose of property during man. ul-nmut to following persons:

‘1) Non hair

A person can’t make valid gift of more than 1/3rd of his property. 16 (ii) Heir

It is altogether invalid}?

In case of gift of dowor debt by the wife during death bed illness in favor of husband, it is invalid.18
As husband is uer heir and consent of all other heirs is necessary.

(b) Gift through Will

The policy of Islamic law appears to be to prevent a testator interfering by will with the course of
devolution of property according to law among his legal heirs, although he may gift out a Specified
portion upto 1/ 3rd to a stranger.
5. Formalities for Making Gift

Hiba under Islamic law must fulfill certain formalities as the mere presence of donor, donee and
subject matter will not be sufficient to complete a transaction through gift. These formalities are in
fact the real tests of the validity of a gift. These are called, ” three conditions”.

Three Conditions

These three conditions are also termed as essentials of a gift”. They are:

(i) Declaration ‘

(ii) Delivery of possession

(iii) Acceptance

The first two are on part of donor and the last one must be from the donee himself or on his behalf.
These three must coexist in order to complete a valid gift.

(i) Declaration

The declaration must be clear and unambiguous in form of intention of the donor while making a
gift. As without intention a gift cannot be validly made. Such intention must be real

and bona fide. Authority of gift cannot be delegated to attorney”. (ii) Delivery of Possession

The other elements of gift have no effect unless coupled with delivery of possession of gubject
matter. The word possession under Islamic law here means, ”Only such possession as the nature of
the subject is capable of". So the real test will be to see who reaps the benefits of property gifted
out, if the donor continues to get benefits of such property then the possession is not delivered, and
if the donee benefits from the gifted property, this shows that the possession is delivered and the
gift is complete. Delivery of possession is made one of the most important ingredient for
completionof gift because gift is always without consideration and contracts without consideration
are not enforceable under the lawn, while gift is an exception to it. So, without delivery only offer
and acceptance will not complete a contract of gift like other contracts”, hence, such a gift will be
void ab-initio’3. However, where donor and donee are living together, delivery of possession is not
necessary.

(iii) Acceptance

The acceptance of gift is also essential for the completion of gift. This acceptance may be from the
donee himself or if he is incompetent to give his acceptance any other competent person can give
acceptance on his behalf who is responsible for his care or custody. Where donor is the father of a
minor son then no acceptance is necessary.

Mejelle24 has prescribed some conditions for making a gift, these include;

(a) The thing given shouldrbe existing at the time of gift.

(b) The thing given be property of the donor.

(c) The thing given be known and fixed.

((1) The donor be of sound mind and of age.

(e) If approval of donor is taken place by compulsion or force, it is not good.

Void Gifts

Under Islamic law following gifts cannot be validly made:

(i) Gift to Unborn child, not born within six months from date of gift (ii) Future Gifts

(iii) Contingent Gifts

(iv) Gift of Life interest under Srinni Law

(v) Conditional Gifts

(vi) Gift of Illegal Thing

(vii) Gift of Musha

Doctrine of Musha”

Muslin is an Arabic word meaning, ”mulrvirlcd share in property”. It is derived from the word,
"Shin/um". Such property may be movable or immovable. Many principles have been laid down
regarding gifts of undivided share in property and these are collectively termed as doctrine of
musha. As undivided share makes confusion in enjoyment of property gifted out, that's why it is
termed as musha. Such confusion can always be arisen where one co-share, gifts out his undivided
share to some stranger, while such confusion cannot arise where one co. sharer gifts out his
undivided share to other co-sharer. Now the properties can be divided into following for the sake of
understanding this doctrine:

(i) Properties capable of division (ii) Properties incapable of division

In the first case, where gift is made of a property which is capable of division without firstly dividing
the same, it is always treated as invalid though not altogether void, as it can be rendered valid by
subsequent partition and delivery. However, in these cases a gift of musha in a property capable of
division is also treated as valid; (a) gift by one heir to another, (b) gift of share in company. On the
other hand, where gifted property is incapable of division, the gift is always valid. Under Shia law the
gift of musha is valid in each case, provided donor gives to the donee possession of prOperty by
vacating and permitting him to exercise his control over it.

Kinds of Gifts

There can be certain types of gifts”, which are in fact variations of hiba and hence tend to differ from
hiba in certain aspects. One must not get confused while reading, as many of them will be found not
complying with the essential requisites laid down for the gifts, as they are explained here for
clarifying the concept and comparative study. They may include followingzv

6) Sadaqa

(ii) Aaria’t
(iii) Hiba-bil-iwaz (Gift for consideration)

(iv) Hiba-bil-shart-ul«iwaz (i) Sadaqa

It is a gift with a religious motive. It has following points of distinction with hiba

(a) The motive here is religious, which is not necessary in case of hiba

(b) It is always irrevocable, whereas in certain conditions hiba is revocable (ii) Aaria’t

It is a sort of granting permission or license to use usufruct of the property. Herf property itself is not
gifted out, but a right to enjoy the benefits is transferred. Following point?

must be kept in mind:(a) It is revocable

(b) Ownership in property is never transferred

298

Sharaya-ul-Islam defines the term hiba as, 'a contract by which the property of substance (nyn) is
transferred immediately and unconditionally Without any exchange and he:

from any pious or religious purpose on the part of donor3’. Sir Abdur Rahim states, 'it is a transfer of
a determinate prOperty (mal) Without an

exchange".

As per Mulla, 'it is transfer of property made immediately, and without any exchange by one person
to another, and accepted by or on behalf of the latters’.
Fyzee defines hiba as, ’the immediate and unqualified transfer of the corpus of the property without
any return”. ,

Baillie is of the view that it is conferring a right in something specific without an exchange7.

As per Mejelle, hiba is to give ownership of property to another without reward, a person who gives
it is called, ’wahib’, the property is called, ’mewhub’ and the person who accepts is called, ’mewhub
aleh'3. ‘

Requisites of Gift Following are the essentials of a valid gift under Islamic law:(1) Parties ‘ (2) Subject
matter . (3) Form of gift (4) Extent of gift (5) Formalities

1 . Parties

Two parties are involved in a gift transaction i.e. (a) donor and (b) donee. The first being maker of
gift and second is the person who takes something as gift. Following qualifications are prescribed for
donor and donee. '

(a) Qualifications for Donor

As gift is a contractual relationship, so donor must have following

(i) Must be adult

(ii) Must have understanding (sane)

(iii) Must be free

(iv) Must be owner of the property being gifted out

So, a gift made by a married woman, a pardanashin lady, a deaf and dumb person 01' a blind person
is always valid provided it fulfills all the requisites of valid gift.
299

(b) Qualifications for Donee

Donee may be any person capable of holding property. This includes even a juristic personHence,
age, race, sex and religion are not a bar to the taking of gift. Even if the donee is incompetent to give
consent, another person on his behalf can give acceptance. A gift in favour of an unborn child is
invalid, except where such child is born within six months of the date of gift as the law presumes a
child in womb to be in existence and anybody who is in existence is created as competent donee.

2, Subject Matter of Gift

All things which are not illegal for Muslims can be a valid subject matter of gift. Following rules are
prescribed in this regard:’

(i) Anything over which dominion or right of property can be exercised or

(ii) Anything which can be reduced to possession or

(iii) Anything which exists either as a specific entity or an enforceable right or

(iv) Anything which comes under the definition of mal" having some value can be a

valid subject matter of gift under pure Islamic law. Two elements of property _

under Islamic law are differentiated i.e. the corpus10 and the usufruct“. So, it must always be seen
whether the gift is for corpus or usufruct? If the gift is for corpus then any condition which derogates
from absolute dominion over the subject of gift is to be rejected as repugnant. If gift is in the
usufruct of property, it can take effect leaving the ownership of the corpus unaffected except for the
period for which its enjoyment is postponed as a result of gift. Gift of property not in existence at the
time of making the gift is always void.

(v) Gift of life interest is valid”. 3. Form of Gift

Gift under Islamic law may be (a) oral or (b) written. Oral gift is as effective as a written one provided
it fulfills all requisites of a valid gift. Under Islamic law a gift of immovable property can be made
verbally and without recourse to written and registered instrument”, the Only condition is transfer
of possession.

4Extent of Gift

. It is general rule that the donor can gift out whole of his property to anybody during his ”fame. This
may be in favour of any person, including his legal heir or a stranger. However this 1’ ule has
following exceptionsz~

,'-,.___.~ ‘9 .1, .._l 4“!

”3‘

.r’):

:11

" l/uf" ' ":9

(i) Gift during marz-ul-maut (deathbed illness) (ii) Gift through will (testamentary gift)

(a) Gift during Marz-uI-Maut

A gift made during mnrz-ul-mmlt, is subject to certain restrictions; but here one thing must be kept
in mind that, such a gift must fulfill all the conditions” necessary to make a Valid gift. The Hanafis and
Shias hold that such gifts are valid to the extent of 1/3rd unless hem consent but Malikis hold these
gifts as void.15 The donor can dispose of property during man. ul-nmut to following persons:

‘1) Non hair

A person can’t make valid gift of more than 1/3rd of his property. 16 (ii) Heir

It is altogether invalid}?

In case of gift of dowor debt by the wife during death bed illness in favor of husband, it is invalid.18
As husband is uer heir and consent of all other heirs is necessary.

(b) Gift through Will

The policy of Islamic law appears to be to prevent a testator interfering by will with the course of
devolution of property according to law among his legal heirs, although he may gift out a Specified
portion upto 1/ 3rd to a stranger.

5. Formalities for Making Gift

Hiba under Islamic law must fulfill certain formalities as the mere presence of donor, donee and
subject matter will not be sufficient to complete a transaction through gift. These formalities are in
fact the real tests of the validity of a gift. These are called, ” three conditions”.

Three Conditions

These three conditions are also termed as essentials of a gift”. They are:

(i) Declaration ‘

(ii) Delivery of possession

(iii) Acceptance
The first two are on part of donor and the last one must be from the donee himself or on his behalf.
These three must coexist in order to complete a valid gift.

(i) Declaration

The declaration must be clear and unambiguous in form of intention of the donor while making a
gift. As without intention a gift cannot be validly made. Such intention must be real

and bona fide. Authority of gift cannot be delegated to attorney”. (ii) Delivery of Possession

The other elements of gift have no effect unless coupled with delivery of possession of gubject
matter. The word possession under Islamic law here means, ”Only such possession as the nature of
the subject is capable of". So the real test will be to see who reaps the benefits of property gifted
out, if the donor continues to get benefits of such property then the possession is not delivered, and
if the donee benefits from the gifted property, this shows that the possession is delivered and the
gift is complete. Delivery of possession is made one of the most important ingredient for
completionof gift because gift is always without consideration and contracts without consideration
are not enforceable under the lawn, while gift is an exception to it. So, without delivery only offer
and acceptance will not complete a contract of gift like other contracts”, hence, such a gift will be
void ab-initio’3. However, where donor and donee are living together, delivery of possession is not
necessary.

(iii) Acceptance

The acceptance of gift is also essential for the completion of gift. This acceptance may be from the
donee himself or if he is incompetent to give his acceptance any other competent person can give
acceptance on his behalf who is responsible for his care or custody. Where donor is the father of a
minor son then no acceptance is necessary.

Mejelle24 has prescribed some conditions for making a gift, these include;

(a) The thing given shouldrbe existing at the time of gift.

(b) The thing given be property of the donor.

(c) The thing given be known and fixed.

((1) The donor be of sound mind and of age.

(e) If approval of donor is taken place by compulsion or force, it is not good.

Void Gifts

Under Islamic law following gifts cannot be validly made:

(i) Gift to Unborn child, not born within six months from date of gift (ii) Future Gifts

(iii) Contingent Gifts

(iv) Gift of Life interest under Srinni Law

(v) Conditional Gifts

(vi) Gift of Illegal Thing

(vii) Gift of Musha

Doctrine of Musha”

Muslin is an Arabic word meaning, ”mulrvirlcd share in property”. It is derived from the word,
"Shin/um". Such property may be movable or immovable. Many principles have been laid down
regarding gifts of undivided share in property and these are collectively termed as doctrine of
musha. As undivided share makes confusion in enjoyment of property gifted out, that's why it is
termed as musha. Such confusion can always be arisen where one co-share, gifts out his undivided
share to some stranger, while such confusion cannot arise where one co. sharer gifts out his
undivided share to other co-sharer. Now the properties can be divided into following for the sake of
understanding this doctrine:
(i) Properties capable of division (ii) Properties incapable of division

In the first case, where gift is made of a property which is capable of division without firstly dividing
the same, it is always treated as invalid though not altogether void, as it can be rendered valid by
subsequent partition and delivery. However, in these cases a gift of musha in a property capable of
division is also treated as valid; (a) gift by one heir to another, (b) gift of share in company. On the
other hand, where gifted property is incapable of division, the gift is always valid. Under Shia law the
gift of musha is valid in each case, provided donor gives to the donee possession of prOperty by
vacating and permitting him to exercise his control over it.

Kinds of Gifts

There can be certain types of gifts”, which are in fact variations of hiba and hence tend to differ from
hiba in certain aspects. One must not get confused while reading, as many of them will be found not
complying with the essential requisites laid down for the gifts, as they are explained here for
clarifying the concept and comparative study. They may include followingzv

6) Sadaqa

(ii) Aaria’t

(iii) Hiba-bil-iwaz (Gift for consideration)

(iv) Hiba-bil-shart-ul«iwaz (i) Sadaqa

It is a gift with a religious motive. It has following points of distinction with hiba

(a) The motive here is religious, which is not necessary in case of hiba

(b) It is always irrevocable, whereas in certain conditions hiba is revocable (ii) Aaria’t

It is a sort of granting permission or license to use usufruct of the property. Herf property itself is not
gifted out, but a right to enjoy the benefits is transferred. Following point?
must be kept in mind:(a) It is revocable

(b) Ownership in property is never transferred

(c) The heirs of donee don’t get. any right over subject matter after his death.

(iii) Hiba-biI-lwaz .

It simply means a gift with consideration or iwazZB. This concept departs from tire definitional
aspect of a gift through which we learnt that a gift is without consideration. The reason for
discussing this concept here is that originally it was not termed as gift with consideration but lateron
due to its nature [of transaction] this name was assigned to it, as it consists of two separate, MW of
gifts, one from donor to donee

and the other from donee to donor. However, it must be kept in mind that both transactions must
separately satisfy the essentials of a valid gift.

This concept was introduced as a device to evade the doctrine of musha in property capable of
division, as it is a gift with consideration and is not governed with the rules of gifts inter vivos, hence
the doctrine of musha does not apply in such cases. As, such a gift amounts to sale, hence it requires
registration. In order to make a valid gift through hiba-bil-iwaz following two conditions must be
fulfilled:

(a) Actual payment of consideration on part of donee

(b) A bona fide intention on part of donor to divest himself from possession of property and to
confer it upon the donee.

(iv) Hiba-bil-Shart-ul-Iwaz

It means a gift with a stipulation for a return. Here the payment of consideration is Postponed. As
the consideration is postponed, the delivery of possession is essential. It is bresumed as a sale and is
further divided into (a) true and (b) false hiba-bil-shart-ul-iwaz. It has following features:

298
Sharaya-ul-Islam defines the term hiba as, 'a contract by which the property of substance (nyn) is
transferred immediately and unconditionally Without any exchange and he:

from any pious or religious purpose on the part of donor3’. Sir Abdur Rahim states, 'it is a transfer of
a determinate prOperty (mal) Without an

exchange".

As per Mulla, 'it is transfer of property made immediately, and without any exchange by one person
to another, and accepted by or on behalf of the latters’.

Fyzee defines hiba as, ’the immediate and unqualified transfer of the corpus of the property without
any return”. ,

Baillie is of the view that it is conferring a right in something specific without an exchange7.

As per Mejelle, hiba is to give ownership of property to another without reward, a person who gives
it is called, ’wahib’, the property is called, ’mewhub’ and the person who accepts is called, ’mewhub
aleh'3. ‘

Requisites of Gift Following are the essentials of a valid gift under Islamic law:(1) Parties ‘ (2) Subject
matter . (3) Form of gift (4) Extent of gift (5) Formalities

1 . Parties

Two parties are involved in a gift transaction i.e. (a) donor and (b) donee. The first being maker of
gift and second is the person who takes something as gift. Following qualifications are prescribed for
donor and donee. '

(a) Qualifications for Donor

As gift is a contractual relationship, so donor must have following

(i) Must be adult

(ii) Must have understanding (sane)

(iii) Must be free

(iv) Must be owner of the property being gifted out

So, a gift made by a married woman, a pardanashin lady, a deaf and dumb person 01' a blind person
is always valid provided it fulfills all the requisites of valid gift.

299

(b) Qualifications for Donee

Donee may be any person capable of holding property. This includes even a juristic personHence,
age, race, sex and religion are not a bar to the taking of gift. Even if the donee is incompetent to give
consent, another person on his behalf can give acceptance. A gift in favour of an unborn child is
invalid, except where such child is born within six months of the date of gift as the law presumes a
child in womb to be in existence and anybody who is in existence is created as competent donee.

2, Subject Matter of Gift

All things which are not illegal for Muslims can be a valid subject matter of gift. Following rules are
prescribed in this regard:’

(i) Anything over which dominion or right of property can be exercised or

(ii) Anything which can be reduced to possession or

(iii) Anything which exists either as a specific entity or an enforceable right or

(iv) Anything which comes under the definition of mal" having some value can be a
valid subject matter of gift under pure Islamic law. Two elements of property _

under Islamic law are differentiated i.e. the corpus10 and the usufruct“. So, it must always be seen
whether the gift is for corpus or usufruct? If the gift is for corpus then any condition which derogates
from absolute dominion over the subject of gift is to be rejected as repugnant. If gift is in the
usufruct of property, it can take effect leaving the ownership of the corpus unaffected except for the
period for which its enjoyment is postponed as a result of gift. Gift of property not in existence at the
time of making the gift is always void.

(v) Gift of life interest is valid”. 3. Form of Gift

Gift under Islamic law may be (a) oral or (b) written. Oral gift is as effective as a written one provided
it fulfills all requisites of a valid gift. Under Islamic law a gift of immovable property can be made
verbally and without recourse to written and registered instrument”, the Only condition is transfer
of possession.

4Extent of Gift

. It is general rule that the donor can gift out whole of his property to anybody during his ”fame. This
may be in favour of any person, including his legal heir or a stranger. However this 1’ ule has
following exceptionsz~

,'-,.___.~ ‘9 .1, .._l 4“!

”3‘

.r’):

m
:11

" l/uf" ' ":9

(i) Gift during marz-ul-maut (deathbed illness) (ii) Gift through will (testamentary gift)

(a) Gift during Marz-uI-Maut

A gift made during mnrz-ul-mmlt, is subject to certain restrictions; but here one thing must be kept
in mind that, such a gift must fulfill all the conditions” necessary to make a Valid gift. The Hanafis and
Shias hold that such gifts are valid to the extent of 1/3rd unless hem consent but Malikis hold these
gifts as void.15 The donor can dispose of property during man. ul-nmut to following persons:

‘1) Non hair

A person can’t make valid gift of more than 1/3rd of his property. 16 (ii) Heir

It is altogether invalid}?

In case of gift of dowor debt by the wife during death bed illness in favor of husband, it is invalid.18
As husband is uer heir and consent of all other heirs is necessary.

(b) Gift through Will

The policy of Islamic law appears to be to prevent a testator interfering by will with the course of
devolution of property according to law among his legal heirs, although he may gift out a Specified
portion upto 1/ 3rd to a stranger.

5. Formalities for Making Gift

Hiba under Islamic law must fulfill certain formalities as the mere presence of donor, donee and
subject matter will not be sufficient to complete a transaction through gift. These formalities are in
fact the real tests of the validity of a gift. These are called, ” three conditions”.
Three Conditions

These three conditions are also termed as essentials of a gift”. They are:

(i) Declaration ‘

(ii) Delivery of possession

(iii) Acceptance

The first two are on part of donor and the last one must be from the donee himself or on his behalf.
These three must coexist in order to complete a valid gift.

(i) Declaration

The declaration must be clear and unambiguous in form of intention of the donor while making a
gift. As without intention a gift cannot be validly made. Such intention must be real

and bona fide. Authority of gift cannot be delegated to attorney”. (ii) Delivery of Possession

The other elements of gift have no effect unless coupled with delivery of possession of gubject
matter. The word possession under Islamic law here means, ”Only such possession as the nature of
the subject is capable of". So the real test will be to see who reaps the benefits of property gifted
out, if the donor continues to get benefits of such property then the possession is not delivered, and
if the donee benefits from the gifted property, this shows that the possession is delivered and the
gift is complete. Delivery of possession is made one of the most important ingredient for
completionof gift because gift is always without consideration and contracts without consideration
are not enforceable under the lawn, while gift is an exception to it. So, without delivery only offer
and acceptance will not complete a contract of gift like other contracts”, hence, such a gift will be
void ab-initio’3. However, where donor and donee are living together, delivery of possession is not
necessary.

(iii) Acceptance
The acceptance of gift is also essential for the completion of gift. This acceptance may be from the
donee himself or if he is incompetent to give his acceptance any other competent person can give
acceptance on his behalf who is responsible for his care or custody. Where donor is the father of a
minor son then no acceptance is necessary.

Mejelle24 has prescribed some conditions for making a gift, these include;

(a) The thing given shouldrbe existing at the time of gift.

(b) The thing given be property of the donor.

(c) The thing given be known and fixed.

((1) The donor be of sound mind and of age.

(e) If approval of donor is taken place by compulsion or force, it is not good.

Void Gifts

Under Islamic law following gifts cannot be validly made:

(i) Gift to Unborn child, not born within six months from date of gift (ii) Future Gifts

(iii) Contingent Gifts

(iv) Gift of Life interest under Srinni Law

(v) Conditional Gifts

(vi) Gift of Illegal Thing

(vii) Gift of Musha

Doctrine of Musha”

Muslin is an Arabic word meaning, ”mulrvirlcd share in property”. It is derived from the word,
"Shin/um". Such property may be movable or immovable. Many principles have been laid down
regarding gifts of undivided share in property and these are collectively termed as doctrine of
musha. As undivided share makes confusion in enjoyment of property gifted out, that's why it is
termed as musha. Such confusion can always be arisen where one co-share, gifts out his undivided
share to some stranger, while such confusion cannot arise where one co. sharer gifts out his
undivided share to other co-sharer. Now the properties can be divided into following for the sake of
understanding this doctrine:

(i) Properties capable of division (ii) Properties incapable of division

In the first case, where gift is made of a property which is capable of division without firstly dividing
the same, it is always treated as invalid though not altogether void, as it can be rendered valid by
subsequent partition and delivery. However, in these cases a gift of musha in a property capable of
division is also treated as valid; (a) gift by one heir to another, (b) gift of share in company. On the
other hand, where gifted property is incapable of division, the gift is always valid. Under Shia law the
gift of musha is valid in each case, provided donor gives to the donee possession of prOperty by
vacating and permitting him to exercise his control over it.

Kinds of Gifts

There can be certain types of gifts”, which are in fact variations of hiba and hence tend to differ from
hiba in certain aspects. One must not get confused while reading, as many of them will be found not
complying with the essential requisites laid down for the gifts, as they are explained here for
clarifying the concept and comparative study. They may include followingzv

6) Sadaqa

(ii) Aaria’t

(iii) Hiba-bil-iwaz (Gift for consideration)

(iv) Hiba-bil-shart-ul«iwaz (i) Sadaqa

It is a gift with a religious motive. It has following points of distinction with hiba

(a) The motive here is religious, which is not necessary in case of hiba

(b) It is always irrevocable, whereas in certain conditions hiba is revocable (ii) Aaria’t

It is a sort of granting permission or license to use usufruct of the property. Herf property itself is not
gifted out, but a right to enjoy the benefits is transferred. Following point?

must be kept in mind:(a) It is revocable

(b) Ownership in property is never transferred

(c) The heirs of donee don’t get. any right over subject matter after his death.

Aaria't is different from a l-liba in following aspects?“

Hiba Aaria’t i Donor must be major Not so Ownership is transferred Only usufruct is transferred i It
cannot be conditional or limited in time It may be It must be immediate and not contingent It may
be in future Doctrine of musha applies Does not apply

(iii) Hiba-biI-lwaz .

It simply means a gift with consideration or iwazZB. This concept departs from tire definitional
aspect of a gift through which we learnt that a gift is without consideration. The reason for
discussing this concept here is that originally it was not termed as gift with consideration but lateron
due to its nature [of transaction] this name was assigned to it, as it consists of two separate, MW of
gifts, one from donor to donee

and the other from donee to donor. However, it must be kept in mind that both transactions must
separately satisfy the essentials of a valid gift.

This concept was introduced as a device to evade the doctrine of musha in property capable of
division, as it is a gift with consideration and is not governed with the rules of gifts inter vivos, hence
the doctrine of musha does not apply in such cases. As, such a gift amounts to sale, hence it requires
registration. In order to make a valid gift through hiba-bil-iwaz following two conditions must be
fulfilled:

(a) Actual payment of consideration on part of donee

(b) A bona fide intention on part of donor to divest himself from possession of property and to
confer it upon the donee.

(iv) Hiba-bil-Shart-ul-Iwaz

It means a gift with a stipulation for a return. Here the payment of consideration is Postponed. As
the consideration is postponed, the delivery of possession is essential. It is bresumed as a sale and is
further divided into (a) true and (b) false hiba-bil-shart-ul-iwaz. It has following features:

(.1) Delivery is must (b) After completion it tn kes the character of sale (c) Before payment of iwaz it
is revocable and after that it becomes irrevocable

Comparison between Hiba-bll-lwaz and Hiba-bil-Shart-ul-lwaz

Hiba-bil-lwaz Hiba-bil-Shart-ul-Iwaz In the beginning it is gift, but once iwaz is naid, it becomes sale It
becomes irrevocable for the moment of its It becomes irrevocable only once iwaz is paid makin;
Delivery of possession is not compulsory for It is essential for its validity validi

It is like sale

Comparison between Hib'a, Hiba-bil-lwaz and Hiba-bil-Shart-ul-lwaz”

Hiba Hiba-bil-Iwaz Hiba-biI-Shart-ul-Iwaz

Ownership is transferred Ownership is transferred for Ownership is transferred for

without consideration consideration called iwaz, but iwaz, but such iwaz is an express this iwaz is
volunta condition
Delivery of possession is Not essential Essential

must

Gift of musha, where Valid luv-ah;

property is divisible is -""’"" ‘

invalid

Barring few exceptions, it Irrevocable from the moment Irrevocable after the performance

is revocable of its making of the promised condition, but

not before

In its inception it is like a gift, but operates as a sale when promised condition is oerformed

It is a gift pure and simple It is like a contract of sale

Revocation of Gift”

Before delivery of possession every gift is revocable, as it is not yet completed. However, after
delivery of possession gift cannot be revoked31 except with mutual consent of donee and donor or
through a decree of the court. Following gifts cannot be revoked:

(i) Where either of the parties to gift is dead Where parties are related in prohibiteddegregg

(ii) \ (iii) Spousal gifts.

298
Sharaya-ul-Islam defines the term hiba as, 'a contract by which the property of substance (nyn) is
transferred immediately and unconditionally Without any exchange and he:

from any pious or religious purpose on the part of donor3’. Sir Abdur Rahim states, 'it is a transfer of
a determinate prOperty (mal) Without an

exchange".

As per Mulla, 'it is transfer of property made immediately, and without any exchange by one person
to another, and accepted by or on behalf of the latters’.

Fyzee defines hiba as, ’the immediate and unqualified transfer of the corpus of the property without
any return”. ,

Baillie is of the view that it is conferring a right in something specific without an exchange7.

As per Mejelle, hiba is to give ownership of property to another without reward, a person who gives
it is called, ’wahib’, the property is called, ’mewhub’ and the person who accepts is called, ’mewhub
aleh'3. ‘

Requisites of Gift Following are the essentials of a valid gift under Islamic law:(1) Parties ‘ (2) Subject
matter . (3) Form of gift (4) Extent of gift (5) Formalities

1 . Parties

Two parties are involved in a gift transaction i.e. (a) donor and (b) donee. The first being maker of
gift and second is the person who takes something as gift. Following qualifications are prescribed for
donor and donee. '

(a) Qualifications for Donor

As gift is a contractual relationship, so donor must have following

(i) Must be adult

(ii) Must have understanding (sane)

(iii) Must be free

(iv) Must be owner of the property being gifted out

So, a gift made by a married woman, a pardanashin lady, a deaf and dumb person 01' a blind person
is always valid provided it fulfills all the requisites of valid gift.

299

(b) Qualifications for Donee

Donee may be any person capable of holding property. This includes even a juristic personHence,
age, race, sex and religion are not a bar to the taking of gift. Even if the donee is incompetent to give
consent, another person on his behalf can give acceptance. A gift in favour of an unborn child is
invalid, except where such child is born within six months of the date of gift as the law presumes a
child in womb to be in existence and anybody who is in existence is created as competent donee.

2, Subject Matter of Gift

All things which are not illegal for Muslims can be a valid subject matter of gift. Following rules are
prescribed in this regard:’

(i) Anything over which dominion or right of property can be exercised or

(ii) Anything which can be reduced to possession or

(iii) Anything which exists either as a specific entity or an enforceable right or

(iv) Anything which comes under the definition of mal" having some value can be a
valid subject matter of gift under pure Islamic law. Two elements of property _

under Islamic law are differentiated i.e. the corpus10 and the usufruct“. So, it must always be seen
whether the gift is for corpus or usufruct? If the gift is for corpus then any condition which derogates
from absolute dominion over the subject of gift is to be rejected as repugnant. If gift is in the
usufruct of property, it can take effect leaving the ownership of the corpus unaffected except for the
period for which its enjoyment is postponed as a result of gift. Gift of property not in existence at the
time of making the gift is always void.

(v) Gift of life interest is valid”. 3. Form of Gift

Gift under Islamic law may be (a) oral or (b) written. Oral gift is as effective as a written one provided
it fulfills all requisites of a valid gift. Under Islamic law a gift of immovable property can be made
verbally and without recourse to written and registered instrument”, the Only condition is transfer
of possession.

4Extent of Gift

. It is general rule that the donor can gift out whole of his property to anybody during his ”fame. This
may be in favour of any person, including his legal heir or a stranger. However this 1’ ule has
following exceptionsz~

,'-,.___.~ ‘9 .1, .._l 4“!

”3‘

.r’):

m
:11

" l/uf" ' ":9

(i) Gift during marz-ul-maut (deathbed illness) (ii) Gift through will (testamentary gift)

(a) Gift during Marz-uI-Maut

A gift made during mnrz-ul-mmlt, is subject to certain restrictions; but here one thing must be kept
in mind that, such a gift must fulfill all the conditions” necessary to make a Valid gift. The Hanafis and
Shias hold that such gifts are valid to the extent of 1/3rd unless hem consent but Malikis hold these
gifts as void.15 The donor can dispose of property during man. ul-nmut to following persons:

‘1) Non hair

A person can’t make valid gift of more than 1/3rd of his property. 16 (ii) Heir

It is altogether invalid}?

In case of gift of dowor debt by the wife during death bed illness in favor of husband, it is invalid.18
As husband is uer heir and consent of all other heirs is necessary.

(b) Gift through Will

The policy of Islamic law appears to be to prevent a testator interfering by will with the course of
devolution of property according to law among his legal heirs, although he may gift out a Specified
portion upto 1/ 3rd to a stranger.

5. Formalities for Making Gift

Hiba under Islamic law must fulfill certain formalities as the mere presence of donor, donee and
subject matter will not be sufficient to complete a transaction through gift. These formalities are in
fact the real tests of the validity of a gift. These are called, ” three conditions”.
Three Conditions

These three conditions are also termed as essentials of a gift”. They are:

(i) Declaration ‘

(ii) Delivery of possession

(iii) Acceptance

The first two are on part of donor and the last one must be from the donee himself or on his behalf.
These three must coexist in order to complete a valid gift.

(i) Declaration

The declaration must be clear and unambiguous in form of intention of the donor while making a
gift. As without intention a gift cannot be validly made. Such intention must be real

and bona fide. Authority of gift cannot be delegated to attorney”. (ii) Delivery of Possession

The other elements of gift have no effect unless coupled with delivery of possession of gubject
matter. The word possession under Islamic law here means, ”Only such possession as the nature of
the subject is capable of". So the real test will be to see who reaps the benefits of property gifted
out, if the donor continues to get benefits of such property then the possession is not delivered, and
if the donee benefits from the gifted property, this shows that the possession is delivered and the
gift is complete. Delivery of possession is made one of the most important ingredient for
completionof gift because gift is always without consideration and contracts without consideration
are not enforceable under the lawn, while gift is an exception to it. So, without delivery only offer
and acceptance will not complete a contract of gift like other contracts”, hence, such a gift will be
void ab-initio’3. However, where donor and donee are living together, delivery of possession is not
necessary.

(iii) Acceptance

The acceptance of gift is also essential for the completion of gift. This acceptance may be from the
donee himself or if he is incompetent to give his acceptance any other competent person can give
acceptance on his behalf who is responsible for his care or custody. Where donor is the father of a
minor son then no acceptance is necessary.

Mejelle24 has prescribed some conditions for making a gift, these include;

(a) The thing given shouldrbe existing at the time of gift.

(b) The thing given be property of the donor.

(c) The thing given be known and fixed.

((1) The donor be of sound mind and of age.

(e) If approval of donor is taken place by compulsion or force, it is not good.

Void Gifts

Under Islamic law following gifts cannot be validly made:

(i) Gift to Unborn child, not born within six months from date of gift (ii) Future Gifts

(iii) Contingent Gifts

(iv) Gift of Life interest under Srinni Law

(v) Conditional Gifts

(vi) Gift of Illegal Thing

(vii) Gift of Musha

Doctrine of Musha”

Muslin is an Arabic word meaning, ”mulrvirlcd share in property”. It is derived from the word,
"Shin/um". Such property may be movable or immovable. Many principles have been laid down
regarding gifts of undivided share in property and these are collectively termed as doctrine of
musha. As undivided share makes confusion in enjoyment of property gifted out, that's why it is
termed as musha. Such confusion can always be arisen where one co-share, gifts out his undivided
share to some stranger, while such confusion cannot arise where one co. sharer gifts out his
undivided share to other co-sharer. Now the properties can be divided into following for the sake of
understanding this doctrine:

(i) Properties capable of division (ii) Properties incapable of division

In the first case, where gift is made of a property which is capable of division without firstly dividing
the same, it is always treated as invalid though not altogether void, as it can be rendered valid by
subsequent partition and delivery. However, in these cases a gift of musha in a property capable of
division is also treated as valid; (a) gift by one heir to another, (b) gift of share in company. On the
other hand, where gifted property is incapable of division, the gift is always valid. Under Shia law the
gift of musha is valid in each case, provided donor gives to the donee possession of prOperty by
vacating and permitting him to exercise his control over it.

Kinds of Gifts

There can be certain types of gifts”, which are in fact variations of hiba and hence tend to differ from
hiba in certain aspects. One must not get confused while reading, as many of them will be found not
complying with the essential requisites laid down for the gifts, as they are explained here for
clarifying the concept and comparative study. They may include followingzv

6) Sadaqa

(ii) Aaria’t

(iii) Hiba-bil-iwaz (Gift for consideration)

(iv) Hiba-bil-shart-ul«iwaz (i) Sadaqa

It is a gift with a religious motive. It has following points of distinction with hiba
(a) The motive here is religious, which is not necessary in case of hiba

(b) It is always irrevocable, whereas in certain conditions hiba is revocable (ii) Aaria’t

It is a sort of granting permission or license to use usufruct of the property. Herf property itself is not
gifted out, but a right to enjoy the benefits is transferred. Following point?

must be kept in mind:(a) It is revocable

(b) Ownership in property is never transferred

(c) The heirs of donee don’t get. any right over subject matter after his death.

Aaria't is different from a l-liba in following aspects?“

Hiba Aaria’t i Donor must be major Not so Ownership is transferred Only usufruct is transferred i It
cannot be conditional or limited in time It may be It must be immediate and not contingent It may
be in future Doctrine of musha applies Does not apply

(iii) Hiba-biI-lwaz .

It simply means a gift with consideration or iwazZB. This concept departs from tire definitional
aspect of a gift through which we learnt that a gift is without consideration. The reason for
discussing this concept here is that originally it was not termed as gift with consideration but lateron
due to its nature [of transaction] this name was assigned to it, as it consists of two separate, MW of
gifts, one from donor to donee

and the other from donee to donor. However, it must be kept in mind that both transactions must
separately satisfy the essentials of a valid gift.

This concept was introduced as a device to evade the doctrine of musha in property capable of
division, as it is a gift with consideration and is not governed with the rules of gifts inter vivos, hence
the doctrine of musha does not apply in such cases. As, such a gift amounts to sale, hence it requires
registration. In order to make a valid gift through hiba-bil-iwaz following two conditions must be
fulfilled:

(a) Actual payment of consideration on part of donee

(b) A bona fide intention on part of donor to divest himself from possession of property and to
confer it upon the donee.

(iv) Hiba-bil-Shart-ul-Iwaz

It means a gift with a stipulation for a return. Here the payment of consideration is Postponed. As
the consideration is postponed, the delivery of possession is essential. It is bresumed as a sale and is
further divided into (a) true and (b) false hiba-bil-shart-ul-iwaz. It has following features:

(.1) Delivery is must (b) After completion it tn kes the character of sale (c) Before payment of iwaz it
is revocable and after that it becomes irrevocable

Comparison between Hiba-bll-lwaz and Hiba-bil-Shart-ul-lwaz

Hiba-bil-lwaz Hiba-bil-Shart-ul-Iwaz In the beginning it is gift, but once iwaz is naid, it becomes sale It
becomes irrevocable for the moment of its It becomes irrevocable only once iwaz is paid makin;
Delivery of possession is not compulsory for It is essential for its validity validi

It is like sale

Comparison between Hib'a, Hiba-bil-lwaz and Hiba-bil-Shart-ul-lwaz”

Hiba Hiba-bil-Iwaz Hiba-biI-Shart-ul-Iwaz

Ownership is transferred Ownership is transferred for Ownership is transferred for

without consideration consideration called iwaz, but iwaz, but such iwaz is an express this iwaz is
volunta condition
Delivery of possession is Not essential Essential

must

Gift of musha, where Valid luv-ah;

property is divisible is -""’"" ‘

invalid

Barring few exceptions, it Irrevocable from the moment Irrevocable after the performance

is revocable of its making of the promised condition, but

not before

In its inception it is like a gift, but operates as a sale when promised condition is oerformed

It is a gift pure and simple It is like a contract of sale

Revocation of Gift”

Before delivery of possession every gift is revocable, as it is not yet completed. However, after
delivery of possession gift cannot be revoked31 except with mutual consent of donee and donor or
through a decree of the court. Following gifts cannot be revoked:

(i) Where either of the parties to gift is dead Where parties are related in prohibiteddegregg

(ii) \ (iii) Spousal gifts

298
Sharaya-ul-Islam defines the term hiba as, 'a contract by which the property of substance (nyn) is
transferred immediately and unconditionally Without any exchange and he:

from any pious or religious purpose on the part of donor3’. Sir Abdur Rahim states, 'it is a transfer of
a determinate prOperty (mal) Without an

exchange".

As per Mulla, 'it is transfer of property made immediately, and without any exchange by one person
to another, and accepted by or on behalf of the latters’.

Fyzee defines hiba as, ’the immediate and unqualified transfer of the corpus of the property without
any return”. ,

Baillie is of the view that it is conferring a right in something specific without an exchange7.

As per Mejelle, hiba is to give ownership of property to another without reward, a person who gives
it is called, ’wahib’, the property is called, ’mewhub’ and the person who accepts is called, ’mewhub
aleh'3. ‘

Requisites of Gift Following are the essentials of a valid gift under Islamic law:(1) Parties ‘ (2) Subject
matter . (3) Form of gift (4) Extent of gift (5) Formalities

1 . Parties

Two parties are involved in a gift transaction i.e. (a) donor and (b) donee. The first being maker of
gift and second is the person who takes something as gift. Following qualifications are prescribed for
donor and donee. '

(a) Qualifications for Donor

As gift is a contractual relationship, so donor must have following

(i) Must be adult

(ii) Must have understanding (sane)

(iii) Must be free

(iv) Must be owner of the property being gifted out

So, a gift made by a married woman, a pardanashin lady, a deaf and dumb person 01' a blind person
is always valid provided it fulfills all the requisites of valid gift.

299

(b) Qualifications for Donee

Donee may be any person capable of holding property. This includes even a juristic personHence,
age, race, sex and religion are not a bar to the taking of gift. Even if the donee is incompetent to give
consent, another person on his behalf can give acceptance. A gift in favour of an unborn child is
invalid, except where such child is born within six months of the date of gift as the law presumes a
child in womb to be in existence and anybody who is in existence is created as competent donee.

2, Subject Matter of Gift

All things which are not illegal for Muslims can be a valid subject matter of gift. Following rules are
prescribed in this regard:’

(i) Anything over which dominion or right of property can be exercised or

(ii) Anything which can be reduced to possession or

(iii) Anything which exists either as a specific entity or an enforceable right or

(iv) Anything which comes under the definition of mal" having some value can be a
valid subject matter of gift under pure Islamic law. Two elements of property _

under Islamic law are differentiated i.e. the corpus10 and the usufruct“. So, it must always be seen
whether the gift is for corpus or usufruct? If the gift is for corpus then any condition which derogates
from absolute dominion over the subject of gift is to be rejected as repugnant. If gift is in the
usufruct of property, it can take effect leaving the ownership of the corpus unaffected except for the
period for which its enjoyment is postponed as a result of gift. Gift of property not in existence at the
time of making the gift is always void.

(v) Gift of life interest is valid”. 3. Form of Gift

Gift under Islamic law may be (a) oral or (b) written. Oral gift is as effective as a written one provided
it fulfills all requisites of a valid gift. Under Islamic law a gift of immovable property can be made
verbally and without recourse to written and registered instrument”, the Only condition is transfer
of possession.

4Extent of Gift

. It is general rule that the donor can gift out whole of his property to anybody during his ”fame. This
may be in favour of any person, including his legal heir or a stranger. However this 1’ ule has
following exceptionsz~

,'-,.___.~ ‘9 .1, .._l 4“!

”3‘

.r’):

m
:11

" l/uf" ' ":9

(i) Gift during marz-ul-maut (deathbed illness) (ii) Gift through will (testamentary gift)

(a) Gift during Marz-uI-Maut

A gift made during mnrz-ul-mmlt, is subject to certain restrictions; but here one thing must be kept
in mind that, such a gift must fulfill all the conditions” necessary to make a Valid gift. The Hanafis and
Shias hold that such gifts are valid to the extent of 1/3rd unless hem consent but Malikis hold these
gifts as void.15 The donor can dispose of property during man. ul-nmut to following persons:

‘1) Non hair

A person can’t make valid gift of more than 1/3rd of his property. 16 (ii) Heir

It is altogether invalid}?

In case of gift of dowor debt by the wife during death bed illness in favor of husband, it is invalid.18
As husband is uer heir and consent of all other heirs is necessary.

(b) Gift through Will

The policy of Islamic law appears to be to prevent a testator interfering by will with the course of
devolution of property according to law among his legal heirs, although he may gift out a Specified
portion upto 1/ 3rd to a stranger.

5. Formalities for Making Gift

Hiba under Islamic law must fulfill certain formalities as the mere presence of donor, donee and
subject matter will not be sufficient to complete a transaction through gift. These formalities are in
fact the real tests of the validity of a gift. These are called, ” three conditions”.
Three Conditions

These three conditions are also termed as essentials of a gift”. They are:

(i) Declaration ‘

(ii) Delivery of possession

(iii) Acceptance

The first two are on part of donor and the last one must be from the donee himself or on his behalf.
These three must coexist in order to complete a valid gift.

(i) Declaration

The declaration must be clear and unambiguous in form of intention of the donor while making a
gift. As without intention a gift cannot be validly made. Such intention must be real

and bona fide. Authority of gift cannot be delegated to attorney”. (ii) Delivery of Possession

The other elements of gift have no effect unless coupled with delivery of possession of gubject
matter. The word possession under Islamic law here means, ”Only such possession as the nature of
the subject is capable of". So the real test will be to see who reaps the benefits of property gifted
out, if the donor continues to get benefits of such property then the possession is not delivered, and
if the donee benefits from the gifted property, this shows that the possession is delivered and the
gift is complete. Delivery of possession is made one of the most important ingredient for
completionof gift because gift is always without consideration and contracts without consideration
are not enforceable under the lawn, while gift is an exception to it. So, without delivery only offer
and acceptance will not complete a contract of gift like other contracts”, hence, such a gift will be
void ab-initio’3. However, where donor and donee are living together, delivery of possession is not
necessary.

(iii) Acceptance

The acceptance of gift is also essential for the completion of gift. This acceptance may be from the
donee himself or if he is incompetent to give his acceptance any other competent person can give
acceptance on his behalf who is responsible for his care or custody. Where donor is the father of a
minor son then no acceptance is necessary.

Mejelle24 has prescribed some conditions for making a gift, these include;

(a) The thing given shouldrbe existing at the time of gift.

(b) The thing given be property of the donor.

(c) The thing given be known and fixed.

((1) The donor be of sound mind and of age.

(e) If approval of donor is taken place by compulsion or force, it is not good.

Void Gifts

Under Islamic law following gifts cannot be validly made:

(i) Gift to Unborn child, not born within six months from date of gift (ii) Future Gifts

(iii) Contingent Gifts

(iv) Gift of Life interest under Srinni Law

(v) Conditional Gifts

(vi) Gift of Illegal Thing

(vii) Gift of Musha

Doctrine of Musha”

Muslin is an Arabic word meaning, ”mulrvirlcd share in property”. It is derived from the word,
"Shin/um". Such property may be movable or immovable. Many principles have been laid down
regarding gifts of undivided share in property and these are collectively termed as doctrine of
musha. As undivided share makes confusion in enjoyment of property gifted out, that's why it is
termed as musha. Such confusion can always be arisen where one co-share, gifts out his undivided
share to some stranger, while such confusion cannot arise where one co. sharer gifts out his
undivided share to other co-sharer. Now the properties can be divided into following for the sake of
understanding this doctrine:

(i) Properties capable of division (ii) Properties incapable of division

In the first case, where gift is made of a property which is capable of division without firstly dividing
the same, it is always treated as invalid though not altogether void, as it can be rendered valid by
subsequent partition and delivery. However, in these cases a gift of musha in a property capable of
division is also treated as valid; (a) gift by one heir to another, (b) gift of share in company. On the
other hand, where gifted property is incapable of division, the gift is always valid. Under Shia law the
gift of musha is valid in each case, provided donor gives to the donee possession of prOperty by
vacating and permitting him to exercise his control over it.

Kinds of Gifts

There can be certain types of gifts”, which are in fact variations of hiba and hence tend to differ from
hiba in certain aspects. One must not get confused while reading, as many of them will be found not
complying with the essential requisites laid down for the gifts, as they are explained here for
clarifying the concept and comparative study. They may include followingzv

6) Sadaqa

(ii) Aaria’t

(iii) Hiba-bil-iwaz (Gift for consideration)

(iv) Hiba-bil-shart-ul«iwaz (i) Sadaqa

It is a gift with a religious motive. It has following points of distinction with hiba
(a) The motive here is religious, which is not necessary in case of hiba

(b) It is always irrevocable, whereas in certain conditions hiba is revocable (ii) Aaria’t

It is a sort of granting permission or license to use usufruct of the property. Herf property itself is not
gifted out, but a right to enjoy the benefits is transferred. Following point?

must be kept in mind:(a) It is revocable

(b) Ownership in property is never transferred

(c) The heirs of donee don’t get. any right over subject matter after his death.

Aaria't is different from a l-liba in following aspects?“

Hiba Aaria’t i Donor must be major Not so Ownership is transferred Only usufruct is transferred i It
cannot be conditional or limited in time It may be It must be immediate and not contingent It may
be in future Doctrine of musha applies Does not apply

(iii) Hiba-biI-lwaz .

It simply means a gift with consideration or iwazZB. This concept departs from tire definitional
aspect of a gift through which we learnt that a gift is without consideration. The reason for
discussing this concept here is that originally it was not termed as gift with consideration but lateron
due to its nature [of transaction] this name was assigned to it, as it consists of two separate, MW of
gifts, one from donor to donee

and the other from donee to donor. However, it must be kept in mind that both transactions must
separately satisfy the essentials of a valid gift.

This concept was introduced as a device to evade the doctrine of musha in property capable of
division, as it is a gift with consideration and is not governed with the rules of gifts inter vivos, hence
the doctrine of musha does not apply in such cases. As, such a gift amounts to sale, hence it requires
registration. In order to make a valid gift through hiba-bil-iwaz following two conditions must be
fulfilled:

(a) Actual payment of consideration on part of donee

(b) A bona fide intention on part of donor to divest himself from possession of property and to
confer it upon the donee.

(iv) Hiba-bil-Shart-ul-Iwaz

It means a gift with a stipulation for a return. Here the payment of consideration is Postponed. As
the consideration is postponed, the delivery of possession is essential. It is bresumed as a sale and is
further divided into (a) true and (b) false hiba-bil-shart-ul-iwaz. It has following features:

(.1) Delivery is must (b) After completion it tn kes the character of sale (c) Before payment of iwaz it
is revocable and after that it becomes irrevocable

Comparison between Hiba-bll-lwaz and Hiba-bil-Shart-ul-lwaz

Hiba-bil-lwaz Hiba-bil-Shart-ul-Iwaz In the beginning it is gift, but once iwaz is naid, it becomes sale It
becomes irrevocable for the moment of its It becomes irrevocable only once iwaz is paid makin;
Delivery of possession is not compulsory for It is essential for its validity validi

It is like sale

Comparison between Hib'a, Hiba-bil-lwaz and Hiba-bil-Shart-ul-lwaz”

Hiba Hiba-bil-Iwaz Hiba-biI-Shart-ul-Iwaz

Ownership is transferred Ownership is transferred for Ownership is transferred for

without consideration consideration called iwaz, but iwaz, but such iwaz is an express this iwaz is
volunta condition
Delivery of possession is Not essential Essential

must

Gift of musha, where Valid luv-ah;

property is divisible is -""’"" ‘

invalid

Barring few exceptions, it Irrevocable from the moment Irrevocable after the performance

is revocable of its making of the promised condition, but

not before

In its inception it is like a gift, but operates as a sale when promised condition is oerformed

It is a gift pure and simple It is like a contract of sale

Revocation of Gift”

Before delivery of possession every gift is revocable, as it is not yet completed. However, after
delivery of possession gift cannot be revoked31 except with mutual consent of donee and donor or
through a decree of the court. Following gifts cannot be revoked:

(i) Where either of the parties to gift is dead Where parties are related in prohibiteddegregg

(ii) \ (iii) Spousal gifts32 ‘~ [M

J‘.‘
\\

(jv) Where subject matter is further transferred by donee to Somebody else (4) Where subject
matter is lost, destroyed or otherwise disposed of

(vi) Where value of subject matter is increased and increment is inseparable (vii) Where donor got
something in return from the donee

(viii) Where gift was a sadaqa or having religious objects

(ix) When a man gives a debt to his debtor33

Revocation is a cancellation of the donee’ 5 right and it is reported as from Abu Yousuf glint until an
order has been passed by the judge for cancelling a gift, the donee may use and djspose of the
subject of it; but any such use or disposal after the judge has given his order is unlawful; and the
opinion of Abu Hanifa and Muhammad are the same“.

Shia and Sunni Law -Comparison

Shia Law Sunni Law Gift of debt to debtor is valid but not to any In both cases it’s valid ’ other nerson
Doctrine of musha does not a . .1 It a -lies A ;' to debtor is valid without acce . tance It is valid but
becomes inoerative if refused Lifetime interests are reco; ' ed For secular our -oses the are not reco;
' ed

Concluding Remarks

In short, gift is transfer of ownership of some existing property, without consideration. It is always
due to love and affection. Under pure Islamic law no registration is necessary however, Pakistani law
requires registration of certain gifts under Registation Act, 1908. For the completion of gift
declaration, delivery of possession and acceptance. are the most important elements and these
three must co-exist, otherwise gift will not be complete. Gifts can be further classified into many
types, as per the nature of transaction and property involved. Gift once complete cannot be revoked
except in some exceptional circumstances, even a presumptive heir35, a stranger and third party
cannot challenge the validity a gift“.

(iv) Where subject matter is further transferred by donee to somebody else (it) Where subject
matter is lost, destroyed or otherwise disposed of (vi) Where value of subject matter is increased
and increment is inseparable (vii) Where donor got something in return from the donee (viii) Where
gift was a sadaqa or having religious objects (ix) When a man gives a debt to his debtor“

Revocation is a cancellation of the donee’ 5 right and it is reported as from Abu Yousuf that until an
order has been passed by the judge for cancelling a gift the donee may use and dispose of the
subject of it; but any such use or disposal after the judge has given his order is unlawful; and the
opinion of Abu Hanifa and Muhammad are the same“.

Shia and Sunni Law -4 Comparison

Shia Law Sunni Law

Gift of debt to debtor is valid but not to any Inboth cases it’ s valid ' other cerson

Doctrine of musha does not a .1 it a ulies A ;' to debtor is valid without acce . tance It is valid but
becomes ino . erative if refused Lifelime interests are reco; ‘ ed For secular nur noses the are not
reco -, ' ed

Concluding Remarks

 In short, gift is transfer of ownership of some existing property, without consideration. it is

always due to love and affection. Under pure Islamic law no registration is necessary
however, Pakistani law requires registration of certain gifts under Registration Act, 1908. For
the completion of gift declaration, delivery of possession and acceptance, are the most
important elements and these three must co-exist, otherwise gift will not be complete. Gifts
can be further classified into many types, as per the nature of transaction and property
involved. Gift once complete cannot be revoked except in some exceptional circumstances,
even a presumptive heir35, a stranger and third party cannot challenge the validity a gift“.