Concept of Gift Under Islamic Law

Introduction
A Muslim can devolve his property in various ways. Muslim law permits the
transfer of property inter vivos (gift) or through testamentary dispositions
(will). A disposition inter vivos is unrestricted as to quantum and a Muslim is
allowed to give away his entire property during his lifetime by gift, but only
one-third of the total property can be bequeathed by will. Conventionally, a
gift, being a transfer of property is governed by the Transfer of Property Act,
1882.

But Chapter VII of the Transfer of Property Act, 1882 regulating the gifts does
not apply to the ‘Muslim Gifts’ or the ‘Hiba’. Although there is no such
difference between a gift made by a non-muslim or a Muslim yet, the
formalities of Hiba are different from that of a gift made by a non-muslim.
Therefore, Hiba is governed by the Muslim Personal Law.

Meaning and Definition of Gift

A gift is generally a transfer of ownership of a property by a living person to
another living person without any consideration. In Islamic law, gifts are
known as ‘Hiba’. To be very precise, gift implies to an extensive overtone and
appertain to all kind of transfers of ownership not involving any consideration.
On the other hand, the term ‘Hiba’ includes a narrow connotation. It is
basically transferred inter vivos i.e. between living person.

According to Hedaya– “Hiba is an unconditional transfer of ownership in an

existing property, made immediately without any consideration.”

According to Ameer Ali– “A Hiba is a voluntary gift without consideration of

property by one person to another so as to constitute the donee the proprietor
of the subject-matter of the gift.”
According to Mulla– “A Hiba is a transfer of property, made immediately and
without any exchange by one person to another and accepted by or on behalf
of the latter.”

According to Fyzee– “Hiba is the immediate and unqualified transfer of the

corpus of the property without any return.”

Salient Features of a Hiba

After anatomizing the definitions and meaning, some prominent features of
Hiba emerge as follows:

1. Hiba is a transfer of property by act of the parties and not by operation

of law. It means that any transfer of property done by the court of law
or any transfer of ownership by the Muslim law of inheritance will not be
considered as Hiba.
2. Under Hiba, a living Muslim voluntarily transfers the ownership of any
property to another living person. Hence, it is a transfer inter vivos.
3. The transferor transfers ownership of the property in absolute
interest and the transferee gets the complete title in respect of the
property given to him. Conditions, restrictions or partial rights in the
gifted property are averse to the concept of Hiba under Islamic law.
4. Hiba is operative with immediate effect and deprives the transferor
of his control and ownership over the property. Moreover, as the
property is passed immediately to the transferee, the property must be
in existence at the time when the gift is made. A gift made for a property
which will exist is future is termed as void.
5. A Hiba is a transfer of property without any consideration. If
anything of any value is taken by the transferor in return or exchange,
such a transfer of property is not a gift.
Competency of the Donor: Capacity and Right
A person who makes the declaration of a gift is called a donor. A donor must
be a competent person to make a gift. Every Muslim, male or female, married
or unmarried, who has attained the age of majority and has a sound
mind is a competent donor. For the purpose of making a gift, the age of
majority is the attainment of 18 years and 21 years if he is under a certificated
guardian.

Capacity to make a Hiba

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

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

“When a gift is made by a parda-nasheen lady, it is important to establish that

the consent of the lady was free and she made the gift on her independent
advice. The burden to prove that the gift was made free from compulsion lies
on the donee. In this case, the deed was executed from the lady under
compulsion, it was not her voluntary act, and hence, the deed was held
invalid.”

Financial Capacity: According to the Hanafi view, if a person is under

insolvent circumstances, he is allowed to make a gift. However, the Kazi has
the power to declare any gift as void if it is made with a view to defraud the
donee. The Indian courts have accepted the view of the Hanafi school that
from the fact of indebtedness or embarrassing financial circumstances of the
donor, it cannot be inferred that the donor has fraudulent intentions.

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

Right to make a Hiba

Capacity to make a gift is not solely enough. The donor must also have a right
to make a Hiba. A Muslim has a right to gift only those properties of which he
has the ownership. If he is simply a tenant in a house, he is not allowed to
gift that house to someone because he does not have the ownership of that
house. Such a gift is considered as invalid.

However, a Muslim has a right to gift away all his properties which are under
his ownership at the time of declaration of the gift. The transfer of the property
by the donor must be in the absolute interest of the donee. Therefore, it is
imperative that the donor himself has the ownership of that property which
he intends to pass on to the donee.

Competency of the Donee

The person in whose favour the gift is made is known as the donee. For being
a competent donee, the only essential requirement is that a donee must be
any person in existence at the time of the making of a gift. He may be a person
of any religion, sex, or state of mind. Thus, a Muslim can make a lawful Hiba
in favour of a non-muslim, female, minor or an insane person.

Child in Womb: A child in the mother’s womb is a competent donee provided

that it is born alive within six months from the date on which the gift was
made. If after the declaration of the gift the child dies in the womb or an
abortion takes place, the gift becomes void. Also, the child must be in
existence in the mother’s womb at the time of the making of the gift. If a child
is not in the mother’s womb or the conception takes place after the declaration
of the gift, such a gift is void ab initio.

Juristic Person: A juristic person includes a firm, corporation, company,

association, union, university or any other organization. A juristic person is
presumed to be an adult of sound mind like a human being in the eyes of law
and hence, is a competent donee in whose favour a gift can be made. A gift
in favour of a mosque, temple or a school is valid.

Two or more Donees: A donee may be an individual or a class of persons.

In case the donee is a group of people, all the people in that particular group
must be ascertainable.

The Subject matter of Hiba

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

Similarly, a gift can be made of property on lease, a property of attachment

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

Formalities of a Hiba
It is often supposed that the word ‘gift’ connotes the exact identical meaning
as the term ‘Hiba’. A gift is a broad and generic concept whereas Hiba is a
narrow and well-defined legal concept. Juristically, in Islamic law, a Hiba is
treated similar to a contract consisting of an offer to give something on the
part of donor and acceptance on the part of the donee. Thus, to make a Hiba
three essential formalities have to be fulfilled.

1. A declaration of gift by the donor

2. Acceptance of the gift by the donee
3. Delivery of possession by the donor and taking of possession by the
donee

These three formalities are discussed in detail below:-

Declaration of gift by the Donor

Declaration simply signifies the intentions of the donor to make a gift. It is a
substantiation of the intention of the donor to transfer the ownership of the
property to the donee.

Oral or Written: The donor may declare a gift of any kind of property either
orally or through a written deed.

In the case of Md. Hesabuddin v. Md. Hesaruddin[2], a Muslim woman made

a gift of her immovable properties in favour of her son. The gift was written
on ordinary paper and was not a registered deed. The court held the validity
of such gifts in this case as-

“ Under Muslim law, writing is not essential for the validity of a gift whether it
is moveable or immovable property. Therefore, the gift, in this case, was held
to be valid because writing and registration of a gift are not mandatory
requisites to make a valid gift.”
Express Declaration: A declaration of a gift must be expressly made in clear
words that the donor is conceding his ownership of the property completely.
A gift made in ambiguous words is null and void.

In Maimuna Bibi v. Rasool Mian[3], it was held that-

“ It is necessary that the donor divest himself completely of all the dominion
and ownership over the property of gift. The donor must express his explicit
intention to transfer the ownership to the donee clearly and unequivocally.”

Free Consent: The consent of the donor in making the gift must be free. A
declaration of a gift must be made voluntarily by the donor. Any gift made by
a donor under threat, force, coercion, influence or fraud is not a valid gift.

Bona fide Intention: Mere announcement of a gift is not considered as a

valid declaration until it entails the intention of the donor. Absence of real and
honest intention to transfer the ownership of the property will make a gift
ineffective. A gift made with an intention to defraud the donee is void. A gift
without an intention may be pretence gift, colourable or Benami transaction
etc. however, mere indebtedness does not affect the competency of the donor
unless his malafide intention is established.

Acceptance of gift by the Donee

For the validity of a gift, it must be accepted by the donee. Acceptance
manifests the intention of the donee to take the property and become its new
owner. Without acceptance, the gift is considered to be incomplete. Since
under Islamic law, Hiba is treated as a bilateral transaction, therefore, it is
important that the proposal made by the donor to transfer the ownership of
the property must be accepted by the donee.

Minor: In case the donee is minor, the acceptance on behalf of a minor can
be given by the guardian of the property of the minor.
Juristic person: If a gift is made in favour of any institution or any other
juristic person, the acceptance of the gift is made by either manager or any
other competent authority.

Two or more Donees: Gift made in favour of two or more donees must be
accepted by each and every person separately. If the share of each person is
explicitly specified by the donor then, they will get the separate possession in
the same way as declared by the donor. But if the share under a gift is not
specified and no separate possession is given by the donor, then also the gift
is valid and the donees will take the property as tenants-in-common.

Delivery of Possession
The formalities laid down for gifts under Section 123, Transfer of Property Act,
1882, are not applicable to Muslim gifts. Under Islamic law, a gift is complete
only after the delivery of possession by the donor and taking of possession by
the donee. Thus, it is obligatory that the declaration and acceptance must be
accompanied by the delivery of possession of the property.

The gift takes effect from the date when the possession of the property is
delivered to the donee and not from the date when the declaration was made
by the donor. Delivery of possession is an overriding facet in Islamic law. The
importance is to such an extent that without the delivery of possession to the
donee, the gift is void even if it has been made through a registered deed.

The donor must divest himself of not only the ownership but also the
possession in favour of the donee in order to make a gift complete. Muslim
law does not presume transfer of ownership rights from donor to a donee
without the explicit delivery of possession of the property.

In Noorjahan v. Muftakhar[4], a donor made a gift of certain property to the

donee, but the donor continued to manage the properties and takes the profit
himself. Till the death of the donor, no mutation was made in the name of the
donee. It was held by the court that since no delivery of possession was made,
the gift was incomplete and ineffective in nature.

Mode of Delivery of Possession

The mode of delivery of possession totally depends upon the nature of the
property gifted. Legally, the donor is required to do something by which the
donee gets the physical control over the property in order to constitute the
delivery of possession.

A donee is said to be in possession of a property when he is so placed that he

can exercise exclusive dominion over it and gain the benefits out of it as is
usually derived from it. Therefore, the delivery of possession can be either
actual or constructive i.e. symbolic.

Actual Delivery of Possession

Actual delivery means when a property is physically handed over to the donee.
This type of delivery is possible only with tangible properties (movable as well
as immovable) which are capable of being physically possessed and given.

Where the property is movable, it must be actually transferred and handed

over to the donee.

For example, if a donor gifts a car to the donee, he must give the keys of
the car and all other documents of the car to the donee so that he can use it.
Mere declaring the gift on a document is not enough. The property must be
handed over immediately.

Similarly, where the property is immovable, its actual delivery of possession

is compulsory. But since it cannot be picked up and handed over, the donor
may delivery such property by giving all the documents related to that
property and by placing it to the donee so that he can use it as he likes.
For example, if a donor gifts the house in which he is residing, he must
vacate it and ask the donee to live in it in order to make his gift valid. In case
of a garden, the donor may give full dominion to the donee to use the garden
in whichever way he wants including all the rights to enjoy the fruits and
flowers.

Constructive Delivery of Possession

Constructive delivery of possession means a symbolic transfer of property. In

this mode of delivery, the donor does some act due to which it is legally
presumed that the possession has been delivered to the donee. Such type of
delivery of possession takes place only when the property is of such a nature
that it is not possible to delivery through actual mode. Constructive delivery
of possession is sufficient to constitute a valid gift under two circumstances
only:

1. Where the property is intangible.

2. Where the property is tangible but, under the situation, its actual
delivery of possession is not possible.

When the constructive delivery of possession is completed?

When the possession of the movable property is delivered, the exact time of
delivery of possession can be easily determined. The problem arises in the
case of immovable or incorporeal properties where it is onerous to prove the
exact time of the delivery of possession. However, in India, there are two
judicial views regarding the exact time of the completion of delivery of
possession.

• Benefit Theory: Under this view, it is believed that a constructive delivery of

possession is complete as soon as the donee starts getting the benefits out of
the gifted property. Where even after the declaration of the gift, the donor is
 enjoying the benefits, the gift is not complete. But, if the donor enjoys the
benefits, it is deemed that the delivery of possession has taken place.

This approach lays more emphasis on the facts of donee’s benefits from the
gifted property instead of the act which symbolises constructive delivery of
possession.

For example, if a donor gifts a rented house to the donee, the delivery of
possession is considered to take place from the date on which the donee gets
the rent from the tenants.

• Intention Theory: This approach supports the view that the delivery of
possession is completed on the date on which the donor intent to transfer the
possession to the donee. The intention of the donor can be proved on the basis
of the facts and circumstances which vary from case to case. In
correspondence to the intention of the donor, some potent facts must be
established which exhibit that the donor has physically done everything he
could in the given circumstances.

In other words, the court accepts that the delivery of possession is deemed to
have taken place only when the bona fide intention of the donor to complete
the gift is thoroughly established and it is not important to prove that from
which date the donee reaps the benefits of the property given.

For example, if the donor and donee are living in the same house which
constitutes the subject-matter of the gift, the donor’s intention to transfer the
possession to the donee is sufficiently proved if the donee has been authorised
to manage the house.

Who may challenge the Delivery of Possession?

It is not at all necessary to prove separately in each and every case that the
delivery of possession has been completed until and unless the validity of gift
is challenged by the donor, the donee or any person legally authorised to claim
on behalf of them.

In the case of Y. S. Chen v. Batulbai[5], a Muslim woman made a gift of a

portion of her house to her daughter. The gifted portion of the house was
occupied by a tenant who used to pay the rent regularly to the daughter
(donee) recognising her as the landlady. After some time, the tenant refused
to recognise the daughter as his landlady on the ground that the gift made in
her favour was void because there was no delivery of possession. It was held
by the court that –

“Any objection as to the validity of gift on the ground of absence of delivery

of possession cannot be raised by the tenant who is a stranger to the
transaction of a gift.”

Conditional or Contingent Hiba

The contingent or conditional gifts whose operation depends upon the
occurrence of a contingency. A contingency is a possibility, a chance, an event
which may or may not happen. Under Islamic law, conditional or contingent
gifts are void.

For example, if a Muslim made a gift to his wife for life, and after her death to
his children who are living at the time of his death, the gift is said to be
contingent.

Revocation of Hiba
Although Prophet was against the revocation of gifts, it is a well-established
rule of the Islamic law that all voluntary transactions, including Hiba, are
revocable. Different schools have different views with regard to revocation.
The Muslim law-givers classified the Hiba from the point of view of revocability
under the following categories:
 • Revocation of Hiba before the delivery of possession

All gifts are revocable before the delivery of possession is given to the donee.
For such revocation, no orders of the court are necessary. As discussed above
that under Muslim law, no Hiba is complete till the delivery of the possession
is made, and therefore, in all those cases where possession has not been given
to the donee, the gift is incomplete and whether it is revoked or not, it will not
be valid till the delivery of possession is made to the donee.

It implies that the donor has changed its mind and not willing to complete the
gift by delivery of possession.

For example, X, a Muslim, makes a gift of his car to Y through a gift deed
and no delivery of possession has been made to Y. X revokes the gift. The
revocation is valid.

• Revocation after the delivery of possession

In this situation, a Hiba can be revoked in either of the following ways:

1. With the consent of the donee

2. By a decree of the court.

Mere declaration of revocation by the donor or filing a suit in the court or any
other action is not enough to revoke a gift. The donee is entitled to use the
property in any manner until a decree is passed by the court revoking the gift.

Gift to Minor
Any gift made in favour of a minor or insane person is valid. They may not
have the capacity to understand the legal consequences but they are persons
in existence and thus, are competent donee. But such gifts are valid only if
accepted by the guardian of the minor or insane donee. A gift is void without
the acceptance by the guardian.

For the purpose of acceptance of the gift, the guardian of a minor or insane
donee are as under in the order of priority:

1. Father
2. Father’s executor
3. Paternal grandfather
4. Paternal grandfather’s executor

Therefore, in the presence of the father, the paternal grandfather is not

allowed to accept the gift on behalf of the minor or insane and so on. If all the
above-mentioned guardians are not present, then the gift is accepted by the
‘guardian of the property of minor or insane’.

If a guardian himself makes a gift in favour of his ward, he will declare the gift
acting as a donor and has the capacity to accept the gift as the guardian of
the minor or insane.

It is to be noted here that the mother is not recognized as the guardian

of the property of her minor child. Hence, she is not entitled to accept the
gift on behalf of her minor child.

Where a gift is made to a minor or lunatic, the gift is complete only if the
guardian has taken the actual or constructive delivery of possession of the
property on behalf of such persons. If the possession is taken by any other
person who is neither a legal guardian nor a de facto guardian, the gift
becomes ineffective and void.

Katheessa Ummand v. Naravanath Kumhamuand[9] is a leading case on this

point.
Facts: In this case, a Muslim husband made a registered gift to his wife who
was a minor. The gift was accepted by the donee’s mother. Unfortunately,
after two years, the husband died and soon after it the donee (wife) also died.
The validity of the gift was challenged by the elder brother of the donor
(husband) on the ground that there was no delivery of possession as a gift to
the minor was accepted by her mother who is not a legal guardian according
to the Islamic law.

Issue: The question before the court was whether a gift by a Muslim husband
to his minor wife and accepted by the mother on behalf of the minor wife, is
valid?

Held: The court, in this case, held that it is a well-established rule under
Islamic law that mother is not a legal guardian of the minor’s property,
therefore, she is incompetent to take the delivery of the possession on behalf
of the minor donee. But, in case there is no legal guardian to accept the gift,
the completion of the gift for the benefit of the minor has the utmost
significance.

If the donee had already attained the age of puberty, the gift is valid even if
it is accepted by a person who has no authority to accept the gift on behalf of
a minor. In this case, the gift was held to be valid although the delivery of
possession was not accepted by any competent guardian on behalf of minor
but since the minor had reached the age of discretion (fifteen years) and was
competent to accept the gift herself.

When Delivery of Possession is not necessary

Islamic law of gift binds great significance to delivery of possession especially
in case of immovable property. The other essentials of Hiba will have no legal
effect unless accompanied by delivery of possession. But there are certain
exceptions to this general rule. The following are the situations under which a
gift is valid without actual or constructive delivery of possession:
 • Donor and donee live jointly in the gifted house: Where the subject-
matter of a gift is a house in which the donor and donee both resides together,
any formal delivery of possession is not necessary to complete the gift. Since
the donee is already continuing the possession of the house in some other
capacity, there is no need to give the donee the same possession again in a
different capacity.

But, there must be some conspicuous act or apparent activity on the part of
the donor that indicates the bona fide intention of the donor to transfer the
possession.

In Humera Bibi v. Najmunnissa[6], a Muslim lady executed a gift deed of

her house in favour of her nephew who was living with her in the same house.
The property was transferred in the name of the nephew but she continued to
live with him as before. But after the making of the gift, the rents were
collected in the name of the donee. It was held that “ the gift was valid
although there was neither any physical transfer to the donee nor any physical
departure of the donor from the house.”

• Gift by a husband to wife or vice versa: where a gift of immovable property

is made by a husband to wife or vice versa, no transfer of possession is
mandatory. The reason behind this is that a joint residence is an integral aspect
of the relationship of marriage. To perform the matrimonial obligations it is
necessary the husband and wife must live together.

In the case of Fatmabibi v. Abdul Rehman[7], the husband made an oral gift
of a house to his wife. Later, the deed was also registered. The stepson, who
lived with his wife in the gifted house, challenged the validity of the gift on the
ground that there was no delivery of possession of the house. It was held that
–

“Oral gift in presence of two persons amounts to the declaration, mentioning

the name of the wife in the registration deed amounts acceptance and
mutation in the name of the wife at the instance of the wife amounts sufficient
delivery of possession keeping in view the relationship between the parties.”

In Katheessa Ummand v. Naravanath Kumhamuand[8], the Supreme Court

held that “ where a husband made a gift in favour of his minor wife by a
registered deed and possession is handed over to the mother of minor wife,
the gift was valid. Since the wife had no father and grandfather alive, nor any
executor, the delivery of the gift deed to her mother instead of the minor wife
herself did not invalidate the gift, as the intention was well established.”

• Gift by Guardian to Ward: In case a guardian makes a gifts in favour of his

ward, he declares the gift as donor and accepts the gift on the part of the
donee, the delivery of possession is not compulsory provided that there is a
bona fide intention on the part of the guardian to divest his ownership and
give it to his ward.
• Gift of property already in possession of donee: The basic objective behind the concept of
delivery of possession is to give the physical dominion over a property to the donee. But,
anyhow if the donee already has possession of the property given by donor under a gift, mere
declaration and acceptance are enough to complete the gift. No formal delivery of possession is
required to complete the gift.

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

To circumvent such confusion, the Hanafi Jurists have developed the doctrine
of Mushaa. Gift of Mushaa i.e gift of a share in the co-owned property is invalid
without the partition and actual delivery of that part of the property to the
donee. If the co-owned property is not capable of partition, the doctrine of
Mushaa is impertinent. A Mushaa or undivided property is of two kinds:

Mushaa Indivisible
It includes the property in which the partition is not possible. A gift of an
undivided share (Mushaa) in a property which is incapable of being divided or
where the property can be used for better advantage in an undivided
condition, is valid. The doctrine of Mushaa is not applicable where the property
constituting the subject-matter of the gift is indivisible. All the schools of
Islamic law accept the view that a gift of Mushaa indivisible is valid without
partition and the actual delivery of possession.

For example, a staircase, a cinema hall, a bathing ghat etc. comprises

indivisible Mushaa properties. If these kinds of properties are divided, then
their original identity will be lost.

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

For example, a co-owned piece of land or a garden or a house is a Mushaa

divisible property which can be divided by a visible mark of identification
without changing its original character.

Shia law does not recognize the principle of Mushaa. According to Shia law,
a gift of a share of divisible joint property is valid even if it is made without
partition.
Comparison of Gift and Will
Basis of
Gift Will
Comparison

A man can give away his whole Only one-third of the net estate
Quantum
property during his lifetime. can be bequeathed.

A gift inter vivos can be made in For bequeathing more than

favour of any person without any one-third of the property to any
Beneficiary
restriction (except during marz-ul- person, consent of heirs is
maut). mandatory.

The property may or may not

be in existence at the time of
Existence of Property gifted must be in existence
execution of the will but it must
Property at the time of making the gift.
be existing at the time of the
death of the legator.

Under gift, the immediate and A transfer of property comes

Transfer of
absolute transfer of property takes into effect only after the death
Property
place. of the legator.

Immediate delivery of possession Since property devolves on the

Delivery of must take place as soon as the donor legatee only after the death of
Possession declares the gift and the donee the legator so no question of
accept the same. delivery of possession arises.

Once a gift is made, a mere A bequest may be revoked by

Revocation
declaration to revoke it by the donor the legator any time after
is not sufficient. A revocation can executing it and before his
only take place either by the consent death either impliedly or
of the donee or by the intervention of expressly or by a subsequent
the court. will.
Gift, its essentials and kinds under Muhammadan Law

A gift or hiba is a transfer of property, made immediately and without any exchange, by one person to another, and

accepted by or on behalf of the other. Even Muslim of sound mind and not a minor may dispose of his property by gift.

A gift to a person not yet in existence is void. There must be in every gift a bona fide intention on part of the donor to

transfer the property from the donor to the donee.

A gift as distinguished from a will may be made of the whole of the doner’s property, and it may be made even to an

heir. A gift of property in the possession of a person who claims it adversely to the donor is not valid, unless the donor

obtains and delivers possession thereof to the done, or does all that he can to complete the gift so as to put it within

the power of the done to obtain possession.

When gift is made subject to condition. When a gift is made subject to a condition which derogates from the

completeness of the grant, the condition is void, and the gift will take effect as if no condition were attached to it.

Essentials of Gift
There are three essentials of a gift, namely

1. There should be a declaration of gift by the donor.

2. There must be an acceptance of the gift, express or implied, by or on behalf of the done.

3. There should be delivery of possession of the subject of the gift by the donor to the done.

If these conditions are complied with, the gift is complete.

Gift of Mushaa (Doctrine of Mushaa)

Mushaa is an undivided share in property either movable or immovable. A valid gift may be made of an undivided share

(Mushaa) in property which is not capable of division.

A gift of an undivided share (Mushaa) in property which si capable of division is irregular (Fasid), but not void (Batil).

However the irregular gift can be rendered valid by subsequent partition and delivery to the done of the share given to

him.
A gift of undivided share (Mushaa), though it be a share in property capable of division, is valid from the moment of the

gift, even if the share is not divided off and delivered to the done, in the following cases:

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

b. Where the gift if of a share in Zamindari to Tahika.

c. Where the gift is of a share in free hold property in large commercial town.

d. Where the gift is of shares in a land company.

Kinds of Gift
The following are the kinds of gift recognized by Islamic Law.

1. Hiba

2. Hiba-bil-iwaz

3. Hiba-be-Shart-ul-Iwaz

4. Areat

5. Sadaqah

The mode of delivery of possession in the different contingencies is as under

1. Where donor is in possession.

The gift of such property is not complete unless the donor physically departs from the premises with all his goods land

chattels, and the done formally enters into possession.

2. Where property is in the occupation of tenants

A gift of such property is completed by a request by donor to the tenants to attorney to the done or by delivery of the

title deed or by mutation in the revenue records. But where the donor reserves to himself any rights during his lifetime,

i.e, of receiving rents, a mere rectal in the deed that delivery of possession has been given to the done will not make

the gift complete.

3. Where the donor and done both reside in the property.

No physical departure or formal entry is necessary in such a case. The gift may be completed by some overt act by the

donor indicating a clear intention of his part to transfer possession and to divest himself of all control over the subject

of the gift
"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and
without consideration, by one person, called the donor, to another, called the donee, and accepted
by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and
while he is still capable of giving. If the donee dies before acceptance, the gift is void.

The conception of the term "gift" as used In the Transfer of Property Act is somewhat different from
the use in Mohammedan law. In the Mohammedan law a gift is a transfer of property or right by one
person to another in accordance with the provisions given in the Mohammedan law and includes-
a) A hiba, an immediate and unconditional transfer of the ownership of some property or of some
right, without any consideration or with some return (ewaz); and

b) An ariat, the grant of some limited interest in respect of the use or usufruct of some property or
right.
Where a gift of any property or right is made without consideration with the object of acquiring
religious merit, it is called sadaqah.

The terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the
kinds of transactions which are covered by the general term "gift". A hiba is a transfer without
consideration. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law.
A gift is not a contract (though in Muslim law it is called a contract) but the principle may be
applicable even to gift.

In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or taking are two
contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates that a
gift is a transfer of certain existing movable or immovable property made voluntary and without
consideration by one person called the donor, to another, called a donee and accepted by or on
behalf of the donee. The essential elements of a gift are
(a) The absence of consideration;
(b) the donor;
(c) The donee;
(d) The subject-matter;
(e) the transfer; and the acceptance.

The concept of gift is diametrically opposed to any presence of consideration or compensation.

In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular mode of
acceptance is required and the circumstances throw light on that aspect. A transaction of gift in order
to be complete must be accepted by the donee during the lifetime of the donor. Factum of
acceptance can be established by different circumstances such as donee taking a property or being
in possession of deed of gift alone. If a document of gift after its execution or registration in favour of
donee is handed over to him by the donor whom he accepts, it amounts to a valid acceptance of gift
in law. The specific recital in the deed that possession is given raises a presumption of acceptance.

Conception of Property
English Law.-In order to appreciate the questions of conditions in gifts (and also in bequests) it is
necessary to first note the different conceptions of property in English and Mohammedan laws. The
English law as to rights in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. Rights in land described as "estate in land" do not always
imply only absolute ownership but also rights which fall short of it and are limited to the life of the
grantee or otherwise limited in respect of time and duration or use property in all these various forms
are described as "estate". Ownership of land is thus split up into estates distinguished in point of
quality (e.g., into legal and equitable estates) and in point of duration (e.g., estates in fee simple, in
tail, for life or in remainder.'

Mohammedan Law.-In general, Muslim law draws no distinction between real and personal property,
and there is no authoritative work on Muslim law, which affirms that Muslim law recognises the
splitting up of ownership of land into estates. What Muslim law does recognize and insist upon, is the
distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft).
Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in
point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such
absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be
created in the usufruct of the property and the dominion over the corpus takes effect subject to any
such limited interests. Limited interests in respect of property are not identical with the incidents of
estates under the English law. Under the Mohammedan law they are only usufructuary interest (and
not rights of ownership of any kind).

Thus, in English law a person having interest in immoveable property for limited periods of time is
said to be the "owner" of the property during those periods. The usufruct is also a part of the corpus.
On the other hand, in Muslim law, a person can be said to be an "owner" only if he has full and
absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment
of property is granted to a person for life or other limited period such person cannot be said to be an
"owner" during that period. The English law thus recognises ownership of the land limited in duration
while Muslim law admits only ownership unlimited in duration but recognises interests of limited
duration in the use of property.

There is no difference between the several schools of Muslim law in their fundamental conception of
property and ownership. A limited interest takes effect out of the usufruct under any of the schools.

The Donor
Doner's Qualification
The donor is the person who gives. Any person who is sui juris can make a gift of his property. A
minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would
therefore be void trustees cannot make a gift out of trust property unless authorized by the terms of
the contract.

On behalf of a minor, a natural guardian can accept a gift containing a condition that the person
nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would
amount to recognition by the natural guardian of the nominated person as the manager or the agent
of minor for the purpose of such property.

In Mohammedan law majority is to be determined according to Sec. 3 of the Majority Act, and not by
Mohammedan law.

The age of majority as regards matters other than marriage, dower, divorce and adoption, is now
regulated by the Indian Majority Act IX of 1875. Section 3 of the Act declares that a person shall be
deemed to have attained majority when he shall have completed the age of eighteen years. In the
case, however if a minor of whose person or property a guardian has been appointed, or of whose
property the superintendence has been assumed by a Court of Wards, the Act provides that the age
of majority shall be deemed to have been attained on the minor completing the age of twenty-one
years.

Soundness of mind and majority are the only qualifications required for making a gift. A gift to be
valid must be made by a person with his free consent and not under compulsion. The donor must
not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the
donor was able to apprehend the transaction.

Donor's powers are unrestricted in Mohammedan law-

A man may lawfully make a gift of his property to another during his lifetime, or he may give it away
to some one after his death by will. The first is called a disposition inter vivos and the second a
testamentary disposition. Mohammedan law permits both kinds of dispositions, but while a
disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third
of the net estate. Mohammedan law allows a man to give away the whole of his property during his
lifetime, but only one-third of it can be bequeathed by will from that of a will a gift may be made to a
stranger wholly excluding the heirs. Pardanashin Lady Free consent means, the consent should not
have been obtained by fraud, misrepresentation or undue influence. An insolvent donor is not
competent to make a gift.

The Donee
The donee is the person who accepts the gift, by or on behalf of a person who is not competent to
contract. A minor therefore may be a donee; but if the gift is onerous, the obligation cannot bee
enforced against him while he is a minor. But when he attains majority he must either accept the
burden or return the gift.

The words 'accepted by or on behalf of the donee show that the donee may be a person unable to
express acceptance. A gift can be made to a child en ventre sa mere and could be accepted on its
behalf.

The donee must be an ascertainable person and be a donee under this section; nor can a gift be
made to an unregistered society.

A gift to two or more persons may be a gift to them as joint tenants or as tenants in common. The
presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a Hindu
gift the donees are presumed to take as tenants in common It is necessary in Mohammedan law that
the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is
immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence
is invalid. It is necessary that the donee should accept a hiba and possession must be delivered in
the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a
person who was not in existence is invalid.

Gifts of Usufruct (Ariat) to unborn persons -a hiba stands on a different footing from a gift of a limited
interest in usufruct a gift of future usufruct to unborn persons is valid provided that the donee is in
being at the time when interest opens out for heirs.
Child in the womb

- a hiba in favour of a child in the womb is valid if the child is born within six months from the date of
the hiba because in that case it is presumed that the child actually existed as a distinct entity in the
womb of his mother.

Juristic persons - a gift to juristic persons or any other institution is valid. So a gift to corporate units,
e.g. a tauazhi (consisting of a mother and of all her children and not descendants in the female line
governed by Marumakkathayam law) are valid. Such a gift will be valid as being one for the whole
body.
It has been held that a mosque is recognized by the Mohammedan jurist as a juristic person, and
that a valid gift can be made in favour of a mosque.
Gifts to Non-Muslims - a gift may be made to a non-Muslim but in such a case the property will, after
the completion of the gift, be subject to the personal law of the donee and not that of donor.

Subject Of Gift

The subject matter of the gift must be certain existing movable or immovable property. It may be
land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future property.
A gift of a right of management is valid; but a gift of future revenue of a village is invalid. These
cases were decided under Hindu and Mohammedan law respectively but they illustrate the principle.
In a Calcutta case, it was said that the release of a debt is not a gift, as a gift must be of tangible
property. It is submitted that the release of a debt is not a gift as it does not involve a transfer of
property but is merely a renunciation of a right of action. It is quite clear that an actionable claim
such as a policy of insurance may be the subject of a gift It is submitted that in a deed of gift the
meaning of the word 'money' should not be restricted by any hard and fast rule but should be
interpreted having regard to the context properly construed in the light of all the relevant facts.
Therefore in order to constitute a valid gift, there must be an existing property. In Mohammedan law
any property or right which has some legal value may be the subject of a gift.

Conditions For Valid Gift Under Section 122 Of The Transfer of Property

There was a divergence of view between the two schools of Hindu law as to the necessity of
acceptance of the gift by the donee, Dayabhaga holding that it was not necessary but Mistakshara
holding the contrary. This section has modified the indigenous Dayabhaga law. A transfer of a stock
to the name of the donee vests the property in him subject to his right to repudiate the gift, even
though he be unaware of the transfer And this is so even though the gift be onerous. The mutation
entries of the property alleged to be gifted does not conveyor extinguish any title and those entries
are relevant only for the purpose of collection of land revenue.

Gift defined under the Transfer of Property Act is as given below-

122. "Gift" defined. - "Gift" is the transfer of certain existing moveable or immoveable property made
voluntarily and without consideration, by one person, called the donor, to another, called the donee,
and accepted by or on behalf of the donee.

It is required to be a voluntary transfer of property to another made gratuitously and without

consideration. This section applies to those gifts that are gifts inter vivos or an absolute gift. Property
under the above section can be both moveable or immoveable but however have to be tangible in
nature. In order to constitute a valid gift, there must be an existing property as already earlier
elaborated.

Voluntarily - In this section the word 'voluntarily' bears its ordinary popular meaning. It denoting the
exercise of the unfettered free will, and not its technical meaning of 'without consideration'. When a
gift is made, it must satisfactorily appear that the donor knew what he was doing and understood the
contents of the instrument and its effect, and also that undue influence or pressure was not
exercised upon clear intention to make an out-and-out gift, but the intention has failed for want of
transfer or any other cause, the courts will not convert what was meant to be an out-and-out gift into
a trust, and the donor will not be deemed a trustee of the property for the intended donee. The gift
will fail. Also where the husband deposited certain ornaments with a bank for safe custody in the
joint names of himself and his wife, with direction to be delivered to be either or survivor, it did not
amount to a gift, as the husband retained dominion over the property. Where a person keeps money
to fixed deposit in the name of his niece, brought up and given in marriage by him, there is an
inference of gift in favour of the niece.

Where the motive behind the deed of gift was unequivocal to give the transferee a title which would
act as a safeguard against any claim for pre-emption, the transaction for that reason cannot be
called a sale. Similarly where a person settles an annuity upon his alleged wife, the settlement
cannot be construed to be a contract for consideration of love and affection, but is a gift pure and
simple.

Donative intention (motive) and consideration-

A gift is a transfer. But it does not contain any element of consideration. Complete absence of
monetary consideration is the main, hallmark, which distinguishes a gift from a grant or any other
transactions for valuable or adequate consideration. Where there is any equivalent of benefit
measured in terms of money in respect of a gift, the transaction ceases to be a gift. Love, affection,
spiritual benefit and many other factors may enter in the intention of the donor to make a gift but
these financial considerations cannot be called or held to be legal considerations as understood by
law. Legal consideration is one recognised or permitted by law as valid and lawful. The term is also
sometimes used as equivalent to a 'good' or 'sufficient' consideration. Love and affection is a
sufficient consideration when a gift is contemplated, but it is not considered as a 'valuable'
consideration when such is required.

It is one of the essential requirements of a gift that it should be made by the donor 'without
consideration'. The word 'consideration' has not been defined in the T.P. Act, but means the same
as in the Contract Act excluding natural love and affection. If not, and if the transfer involved
consideration, the transaction would amount to a sale within the meaning of sec. 54 or to an
exchange within the meaning of sec. 118. The essence of a gift inter vivos must be without
'consideration' of the nature defined in sec. 2(d) of the Contract Act.

Where a very old man, with weak eyesight, sues for cancellation of the deed of gift executed by him
in favour of his son alleging that it was not his voluntarily act. The circumstance also indicated that
the donee was in a position to dominate the will of the donor. Under such circumstance the onus
shifts on to the donee to prove that the gift was made voluntarily.

In another case of the Orissa High court, Gift deed is alleged to have been taken from a pardanashin
lady by practicising fraud. When the plaintiff is an illiterate or pardanashin lady, in spite of the fact
that she is unable to establish her case of practising fraud, the onus still remains uponi the donee to
establish conclusively that the document was executed after it was read over and explained to her
and after she understood the contents thereof.

'Without consideration' - A gift is a transfer without consideration and if there is any consideration in
any shape, there is no gift. The word 'consideration' means valuable consideration, i.e. consideration
either of money or money's worth. A gift in lieu of conferring spiritual benefit to the donor is not a
transfer with consideration, but is to be treated as a gift.

Where a mother gifts property to her only daughter, who promises to maintain the former throughout
her life, the promise is not enforceable in law because the gift has to be for natural love and affection
and not for any consideration . A minor may be a donee and the minor's natural guardian can accept
the gift on behalf of the minor. But if the gift is onerous, the obligations cannot be enforced against
the minor during his minority. But on his attaining majority, the minor must accept the burden or
return the gift. The donee can even be a child en ventre sa mere (in its mother's womb).

When Acceptance to be made. - Such acceptance must be made during the lifetime of the donor
and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

Acceptance. - The gift must be accepted by the donee or by someone on his behalf. An offer without
acceptance by the donee cannot complete the gift. Acceptance may be inferred from acts prior to the
execution of the deed of gift. Mere silence may sometimes indicate acceptance provided the donee
knows about the gift, slighest evidence of acceptance being sufficient.

Even when a gift is made by a registered instrument, the same has to be accepted by or on behalf of
the donee to make it complete, failing which the gift will be bad, because it so provides in sec. 122.
What the law requires is acceptance of the gift after its execution, though the deed may not be
registered. Anterior negotiations or talks about the gift would not amount to acceptance. Person
accepting gift on behalf of the minors appended his thumb-impression on the deed in token of
acceptance. It was held that the gift was complete. Acceptance must be essentially made before the
death of the donor. There must be something shown to indicate an acceptance. The acceptance
may be signified by an overt act such as the actual taking of possession of the property, or such acts
by the donee as would in law amount to taking possession of the property where the property is not
capable of physical possession. Acceptance may be implied, but the rule of implied acceptance
ought not to be extended so far as to hold that the acceptance will be presumed unless dissent is
shown. Acceptance will be presumed if there is possession, actual or on the parties where some
right, interest, profit or benefit accrues to one party, or some forbearance, detriment, loss, or
responsibility is given, suffered or undertaken by the other. There is nothing in section122 of the
transfer of property Act to show that the acceptance under this section should be express. The
acceptance may be inferred, and it may be proved by the donee's possession of the property, or
even by the donee's possession of the deed of gift.

Delivery of possession of the gifted property is not absolute requirement, for the completeness or the
validity of the gift as found in Muslim Law of Gifts.
When a gift of immovable property is not onerous, only slight evidence is sufficient for establishing
the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift, it is
only normal to assume that the donee had accepted the gift, because the acceptance would only
promote his own interest. Mere silence may sometimes be indicative of acceptance, provided it is
shown that the donee knew about the gift. No express acceptance is necessary for completing a gift.

While mere possession by or on behalf of, a donee may amount to acceptance, mere possession
cannot be treated as evidence of acceptance where the subject matter is jointly enjoyed by the
donor and the donee.

A gift of immovable property can only be made by a registered instrument. A deed cannot be
dispensed with even for a property of small value, as in the case of a sale. And as a further
precaution, attestation by two witnesses is required. This provision excludes every other mode of
transfer and even if the intended donee is put in possession, a gift of immovable property is invalid
without a registered instrument.

Essentials Of Gift Under Mohammedan Law

Under Mohammedan law, to be a valid gift, three essentials are required to exist:
(a) declaration of gift by the donor
(b) an acceptance of the gift, express or implied, by or on behalf of the donee, and
(c) delivery of possession of the subject of gift.

Courts have consistently held that when there is no compliance of any of the above three essential
conditions the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing
is not essential to the validity of a gift either of movable or immovable property.
In another case the Patna High Court held that under the Mohammedan Law for validity of the deed
of gift four elements are necessary
¢ declaration of gift by the donor
¢ relinquishment by donor of-ownership-and dominion
¢ acceptance of the gift by donee, and
¢ delivery of possession of the property by donor.

Under the Mohammedan Law it is essential as regards gift that the donor should divest himself
completely of all the ownership and dominion over the subject of the gift. It is essential to the validity
of the gift that there should be delivery of such possession as the subject of the gift is susceptible of.
According to Muslim law it is not necessary that there should be deed of gift in order to make it a
valid gift, but of course, if there is a deed it should be registered.
Acceptance- Acceptance may be made expressly or impliedly by conduct, but acceptance would be
unnecessary in a case where the gift is made by a guardian to his ward. Mohammedan law does not
dispense with the necessity for acceptance of the gift even in cases where the donees are minors. If
the donees are minors it may be that the evidence of acceptance will have to be approached with
reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary
in the case of a gift in favour of minor.' A minor who has attained discretion may accept the gift even
after it has been rejected. He may also refuse to accept the gift.

Delivery of possession - Under the Mohammedan law it is not necessary that there must be actual
delivery of possession to make a gift valid. It is a fundamental rule of Mohammedan law as regards
gifts,that "the donor should divest himself completely of all ownership and dominion over the subject
of the gift. It is essential to the validity of a gift that there- should be a delivery of such possession as
the subject of the gift is susceptible of what delivery the property is capable of and whether such
delivery as the property is capable of has been given would depend upon the particular facts in each
case. A gift with a reservation of possession by the donor during his life was held to be void in K.S.
Mohammad Aslam Khan v. Khalilul Rahman Khan, One thing is clear, that by reserving
undisturbed his right to be in possession and enjoyment, the donor does not divest himself
completely of all dominion over the properties, though in sense, he purports to associate the donees
with himself, nor can such associating the donees in the matter of possession and enjoyment with
him be deemed to be delivery of such possession, if all, as the properties are susceptible of. It is not
correct to say that a stipulation that the donor and the donees shall be in joint possession, satisfies
the requirement of delivery of possession in a gift under the Mohammedan law.

Even where the donee resides with the donor in the property although no physical departure by the
donor or formal entry by the donee, is necessary, the gift has to be completed by the donor
indicating a clear intention of his part to transfer possession and to divest himself of all control over
the subject of the gift.' Among the conditions required for the validity of a gift under Mohammedan
law the most essential is that of delivery of possession, actual or constructive, with the permission of
the donor, without which a gift cannot be valid.

Possession, Actual and Constructive - It should, however, is noted that while the delivery of
possession is an essential condition for the validity of the gift, it is not necessary that in every case
there should be a physical delivery of possession. Possession the delivery of which would complete
a gift may be either actual or constructive. All that is necessary is that the donor should divest
himself completely of all ownership and dominion over the subject of the gift. The relinquishment of
control is thus necessary to complete the gift. The real test of the delivery of possession is to see
whether the donor or donee reaps the benefit; if the former possession is not transferred and if the
latter, it is transferred, and the gift is complete if the donee is permitted directly or indirectly to
receive the benefit. Constructive possession of the subject of the gift is therefore sufficient.

Oral Gift of an Immoveable Property-

In view of sec. 123 of Transfer of Property Act, a gift of immovable property, which is not registered,
is bad in law and cannot pass any title to the donee. Any oral gift of immovable property cannot be
made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument
cannot confer any title Under the Muslim law, an oral gift is permissible. However, in order to
constitute a valid gift, the donor should divest himself completely of all ownership and dominion over
the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral
gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of
possession of the gifted property had also been effected.

Although the Hindu law requires delivery of possession to complete a gift of immovable property,
that law has been abrogated by sec. 123 of this Act. This section clearly seems to have the effect of
rendering unnecessary the delivery of possession, substituting, as it does, registration for delivery of
possession.
Since delivery of possession is not necessary, it follows that if a Hindu executes a gift in praesenti of
three villages by means of a duly registered instrument but reserves possession of the villages in
order to enjoy the usufruct during his lifetime, and at the same time provides that he would not
alienate the property to anybody else, the gift is perfectly valid.

Under the Mohammedan law, the essentials of a gift are: declaration of gift by the donor, an
acceptance of the gift by the donee, and delivery of possession such as is the subject of the gift
susceptible of. This rule of Mohammedan law is unaffected by the provisions of sec. 123, Transfer of
property Act and, consequently, a registered instrument is not necessary to validate a gift of
immovable property.

Possession means not always actual physical possession but possession which the property is
capable of being given. So far as declaration is concerned, it must be shown that the donor either in
the "presence of witnesses or otherwise made a public statement that he gifted the property in
favour of the donee and that he divested himself of the ownership of the property by delivering
possession to the donee. A Mohammedan can make oral gift of his immovable gift subject to these
conditions.

Delivery of possession being essential to the validity of a gift, it follows that if there is no delivery of
possession, there is no valid gift.
Under the Mohammedan law, a valid gift can be affected by delivery of possession, and if there is
delivery of possession, the mere fact that there is also an unregistered deed of gift does not make
the gift invalid.

A Comparitive Of Gift In The Transfer Of Property Act And In Mohammedan Law

Property- Gifts as given under the transfer of property Act deals only with gifts of tangible properly;
and so a release of a security without consideration does not fall under this section; because, though
the release of the security may be said to be a gift, still the gift is not one of tangible property. When
the certificate of shares together with a blank transfer form signed by the registered shareholder is
handed over to the buyer by the registered holder, the buyer acquires not the full property in the
shares but the title to get on the register of the company. This title to get on the register, though a
chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the gift of such
title to get on the register is complete when a deed of gift duly attested and registered, together with
the shares and blank transfer form signed by the donor, is handed over to the donee.

Hiba of Corporeal And Incorporeal Property

- it is not necessary that a hiba must be of some corporeal or tangible property, it may be made not
only of corporeal property but also of incorporeal property. Thus, a hiba may be made of actionable
claims or chooses-in-action, e.g. debts,negotiable instruments or Government promissory notes.

Gift of a debt -the gift of a debt to the debtor is lawful both by analogy (qiyas) and liberal
interpretation (istehsan). A gift takes effect in two ways, by transfer of right of property (tamlik) or by
cancellation or discharge (iskat). The gift of a debt to the debtor comes under the latter category. If
the creditor releases the principal debtor from debt, both the debtor and surety are released. The
release of a debt may also be made in favour of the heirs of the debtor if he dies.

Existence of Property Necessary- In order to constitute a valid gift, there must be an existing
property. In other words, the subject-matter of the gift must be certain existing moveable or
immovable property like land, goods or actionable claims. It must be transferable under sec. 6. In
case of gift of certain amount by entries in the books of account by credit and debit, the sums should
be available on the date of gift in the account of the firm whose accounts are said to be credited or
debited. In the case of banking companies or other firms and companies who have overdraft
facilities, even if the sums are not in credit of the donor and are not with such companies or firms,
gifts might be possible by adjustment of the book entries. But in the case of non-banking companies
or firms, if these companies or firms do not have overdraft facilities, it is not possible to make a valid
gift if sums or funds are not available. A donation cannot be made of anything to be in future (e.g.
future revenues of a property).

Existence Of Property Necessary Also In Case Of Hiba-

A hiba is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary
that such thing or right must be in existence and can be transferred immediately. Also in the case of
a gift of usufruct(Ariat) produce (Manqfi) refers to rights which accrue from day to day in future. Such
produce or use of a thing becomes property particle by particle as it is brought into being. The
manqfi may thus be transferred by the donor during his lifetime by gift or by bequest and be the
subject of gift even though they are not in existence at the time of the gift.

Equity of Redemption can be subject of a valid gift-where the property gifted is subject to a
usurfructory mortgage, what is gifted is merely the equity of redemption and not physical possession
of the property itself.

Oral Gift Of Immoveable Property - In view of sec. 123, a gift of immovable property which is not
registered is bad in law and cannot pass any title to the donee. Any oral gift of immovable property
cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written
instrument cannot confer any. Under the Muslim law, an oral gift is permissible. However, in order to
constitute a valid gift, the donor should divest himself completely of all ownership and dominion over
the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral
gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of
possession of the gifted property had also been.

When Gift May Be Suspended Or Revoked

Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.the
following are those conditions-
(1) That the donor and donee must have agreed that the gift shall be suspended or revoked on the
happening of a specified event;
(2) such event must be one which does not depend upon the donor's will;
(3) the donor and donee must have agreed to the condition at the time of accepting the gift; and
(4) the condition should not be illegal, or immoral and should not be repugnant to the estate created
under the gift. Section 126 is controlled by sec. 10. As such, a clause in the gift deed totally
prohibiting alienation is void in view of the provisions contained in sec. 10. A gift, which was not
based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled
unilaterally. Such a gift deed can be cancelled only by resorting to legal remedy in a competent court
of law.

A Mohammedan on the other hand can revoke a gift even after delivery of possession except
in the following cases:
(1) When the gift is made by a husband to his wife or by a wife to her husband;
(2) when the donee is related to the donor within the prohibited degrees;
(3) when the gift is Sadaka (i.e. made to a charity or for any religious
purpose).
(4) when the donee is dead;
(5) when the thing given has passed out of the donee's possession
by sale, gift or otherwise;
(6) when the thing given is lost or destroyed;
(7) when the thing given has increased in value, whatever be the cause of the increase;
(8) when the thing given is so changed that it cannot be identified, as when wheat is converted into
flour by grinding; and
(9) when the donor has received something in exchange for the gift
Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has
not reserved to himself the power to revoke it, but the revocation must be by a decree of court.

Onerous Gift
'Onerous gift' is a gift made subject to certain charges imposed by the donor on the donee. The
principle behind this is that he who accepts the benefit of a transaction must also accept the burden
of the same. This section, being an embodiment of a rule of equity, applies equally to Hindus and
Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is sufficient; there need
not be any separate and express acceptance of the onerous condition also at the same time. The
acceptance of the gift will carry with it the acceptance of the onerous condition also, even though at
the time of the gift the donee was not aware of such condition, specially where the onerous condition
is of a trifling nature (payment of Rs. 5 as monthly maintenance to a certain person for life). A donee
not competent to contract and accepting property burdened by any obligation is not bound by his
acceptance. But if, after becoming competent to contract and being aware of the obligation, he
retains the property given, he becomes so bound.

Universal Donee
The essential condition to constitute a universal donee is that the gift must consist of the donor's
whole property. If any portion of the donor's property, no matter whether it is moveable or
immovable, is excluded from the operation of the gift or the endowment, the donee is not a universal
donee. This concept is embodied in section 128 of the Transfer of property Act. Where a
Mahomedan made a gift of the whole of his estate to his son and directed him to pay his debts, the
son was a universal donee and he was liable to pay all debts of the donor. There is no rule of
Mahomedan law which conflicts with the provisions of this section.

Conclusion
The conception of the term gift and subject matter of gift has been an age old and traditional issue
which has developed into a distinct facet in property law. Different aspects related to gift in property
act and its distinction with the Mohammedan law and its implications has been the major subject
matter of this article. In considering the law of gifts, it is to be remembered that the English word 'gift'
is generic and must not be confused with the technical term of Islamic law, hiba. The concept of hiba
and the term "gift as used in the transfer of property act, are different. As we have seen in the project
that Under Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration
of gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee,
and (c) delivery of possession of the subject of gift. The English law as to rights in property is
classified by a division on the basis of immoveable and moveable (real and personal) property. The
essential elements of a gift are (a) The absence of consideration; (b) the donor; (c) the donee ;(d)
the subject-matter; (e) the transfer; and the acceptance Thus this striking difference between the two
laws relating to gift forms the base of this project in understanding its underlying implications