Professional Documents
Culture Documents
A person is competent to make a gift (Hiba) of his total property during his lifetime.
The gift is operative with immediate effect and divests him of his control and ownership
over the property.
A gift with the intention of disinheriting an heir
The intention of the gift is not important but it cannot be the intention to circumvent a
provision of the law. Voidable at the instance at the creditors. However just because he
had some debts does not affect the validity of the gift. Intention is important to affect the
validity of the gift.
Gift can be made of existing movable or immovable property made voluntarily and
without consideration by one person called the donor to another called donee and
accepted by or on behalf of the donee, followed by immediate delivery of possession of
the subject matter of the gift.
All rights of the donor vests in the donee.
Hiba should not be confused with the English term- gift. Hiba is a narrow and well-
defined legal concept.
Hiba is the immediate and unqualified transfer of property.
1) Declaration (Ijab) by the Donor- Manifestation of the wish to be on the part of the donor
2) Acceptance (Qubool) by the Donee- either implied or express
3) Immediate delivery of possession (Qabza)- either actually or constructively
Any Muslim, who is major and of sound mind is competent to contract can make a gift of
his property.
The person making a gift must have full and absolute ownership over such property.
The property must be in existence and should be specified.
The age of majority for determining the competency of gift is eighteen years in ordinary
cases and 21 years where a guardian has been appointed by the court.
Gift by a Woman- A female is also competent to make a gift. If a gift has been made by a
Pardanashin woman, the validity of the gift is in question, the burden of proof is on the
donee to prove that she understood the full consequences of her act and nature of her
actions. (Imam Sahib vs. Ameer Sahib, AIR 1955 Mad 621). It is also the duty of the
court to scrutinize the documents and evidence on record properly. (Hussaina Bai vs.
Zohra Bai, AIR 1960 MP 60).
A gift can be lawfully made in the favour of natural and artificial persons, non-Muslims,
would-be heirs, minors, mentally handicapped and women irrespective of their marital
status. He should be a juristic person capable of holding property. The done can be of any
sex, any age and even of any religion. He can be a relative or a stranger. Property can
validly be gifted to a female irrespective of her marital status.
Gift to an Unborn Person- The donee can be a minor or a major but he must be in
existence. A gift to an unborn person not yet in existence is void. A gift to a person by
way of maintenance allowance for life and to his male heirs not in existence at the time of
making the gift will be valid provided they are born by the time the interest in favour of
the living person comes to an end.
Gift can be made to a child in womb of his mother provided he is born within six months
of the date of making of gift
Tangible and intangible but has to be existence at the time of making a gift.
Negotiable instruments, government promissory notes, cheques, zamindari rights
Gift of future property is void.
A gift of spes successionis is void.
Future Gift
A gift of existing property but operative on a future date would be void. The reason is
that immediate delivery of possession of property is one of the essential conditions of
validity.
Where the donor does not have the actual physical possession of the property to be gifted
and the same is held by another person adversely to the donor unless the donor obtains
and delivers possession thereof to the donee or does all that he can to put it within the
power of the donee to obtain possession.
a) Donor files a suit and donee joins in as a party to the suit for trespass.
b) Obtains possession via suit and gives it to the donee.
The right of the mortgagor to repay a loan and redeem the mortgaged property is called
his equity of redemption.
Bom HC held invalid, other courts have held it to be valid.
Actual or constructive possession required.
1) Declaration Clear and unambiguous. Essential for the Donor to divest himself
completely of all ownership and dominion over the subject of the gift. Mere permission
to live in the house would not be a gift. It has to be his own free will and consent.
2) Acceptance- Has to be by the donee or in cases where the donee is incompetent to accept,
it should be done on behalf of the minor by the guardian. The guardian in Muslim law of
the property of the minor are father, his executor appointed under his Will, paternal
grandfather, his executor appointed under his Will.
Gift was made by paternal grandfather in presence of the father, mother accepted it- it
was held to be an invalid gift.
If there is no guardian and the minor is under the care and protection of a person other
than the guardian, such person can validly accept the gift on behalf of the minor girl.
Husband can validly accept gifts even in the presence of the father.
3) Delivery of Possession- A gift is not valid unless it is accompanied by delivery of
possession.
The donor must vacate the premises signifying complete relinquishment of
control, ownership and possession, in favour of the donee. Possession could be
actual or constructive. For example- gift is in writing and the gift deed embodies a
declaration that the possession has been delivered, it would amount to delivery of
possession.
Actual Delivery of Possession- vacate the possession alongwith his belongings
and put the donee in possession. In case of movable property- handing over the
movable property to the donee.
Constructive Possession- The gift can be completed by delivery of title deeds to
the donor, mutation of names in the official records, direction to the tenants to pay
the rent to the donee.
a. Gift by Husband to the Wife of Immovable properties- A gift by the husband to the wife,
physical departure is not necessary. Joint residence is an integral part of the matrimonial
life. A mutation of names will be clear proof but it is not an essential condition of a valid
gift.
b. Gift by Father to Minor Child or by Guardian of the Ward: Essential for a bona fide
intention to exist on the part of the father or guardian to make a gift. Donor and acceptor
on behalf of the donee are the same. But where the property is gifted by the father to his
minor child and also to another person- possession is necessary.
c. Where donor and donee reside in the gift property matter- some cogent evidence required
to show bonafide intention on part of the donor to complete the gift. Overt acts would be-
making a declaration in presence of a number of friends and entrusts the management of
the property to the donee, hands over the papers of the property, mutation of names,
possession, donee starts paying municipal taxes, starts collecting rent in his name.
It can be an oral gift or in writing. Possession has to be handed over. Example- Illahi
Shamsuddin vs. Jalunbi Makbul Nadaf, - the deceased made an oral gift in the favour of
her daughter and grandson in her lifetime dividing the house in two parts and giving the
possession to these two donees. Moreover a mutation of property was sanctioned in their
favour.
Even if a gift is in writing or a registered deed and it does not fulfill the conditions of a
valid gift, it is considered to be invalid.
Mushaa
Undivided share in the property, specified and identified property. A has a plot of land
and three sons. Property goe
what part of the land is going to whom.
Validly gifted has to clearly demonstrate an act of putting the donor in possession of the
land.
Gift is valid
Contingent Gifts
Conditional Gifts
A gift by a Muslim during marz-ul-maut or death-illness cannot take effect beyond a third
of his estate after the payment of the funeral expenses and debts, unless the heirs give the
consent, after the death of the donor, to the excess taking effect; nor can such a gift take
effect if made in favour of an heir unless the other heirs consent there
death.
There must be proximate danger of death, apprehension of death in the mind of the
person, inability to carry on daily activities, illness, fatal nature.
Recovery- will operate as a normal gift and it could extend to the whole of property.
ISA- Donatio Mortis Causa- only movable property, no extent of the property to be gifted
or class of heirs, if the person recovers, the gift fails.
A bonafide and voluntary intention on part of the donor to make the gift and divest
himself of complete rights.
Payment of consideration by the donee.
Here payment is more important and not the delivery of possession.
Revocation of a Gift
Under Shia Law- any relative irrevocable but husband and wife revocable.
Wills
declaration of the intention of a testator with respect to his property which he desires to be
carried into effect after his death.
Probate of a will- The word probate means to prove or validate. Probate is the procedure by
which a will is approved by the Court as the valid and last will of a deceased testator (the person
who made the will). It also confirms the appointment of the person named as executor in the will.
Where a Muslim gets married under the Special Marriage Act, 1954 to a Muslim or to a
Non-Muslim, he along with his spouse and children born out of this marriage would no
longer be governed by the Muslim law of succession but will be governed by the
provisions of the Indian Succession Act, 1925.
Even if they get the marriage registered subsequently under the SMA.
Under ISA, a person has the authority to will away the entire property but under Muslim
law, the person can only will away 1/3rd of the property.
Restrictions under Muslim law for bequeathing property in favour of an heir, whereas
under the ISA, there are no such restrictions.
Competency of the Testator- Sound mind and major.- Majority is regulated by Indian
Majority Act, 1875- Section 3 of the Act completed eighteen years of age.
If a will was made by a Mahomedan person before the enactment (1875), the age of
majority under Muslim law being fifteen, any will made after attaining the age of 15 was
held to be valid.
Now the Majority Act, 1875 applies to anyone who is domiciled in India.
A will under Muslim law can also be oral. For oral wills- burden of establishing an oral
will is very heavy. It must be proved with utmost precision, and with every circumstance
of time and place. The court must be certain that it knows what the speaker said and must
from the circumstances and from the statement be able to infer for itself that testamentary
effect was intended, in addition to being satisfied of the contents of the direction.
in writing, signing or attestation is not a requirement.
If attestation is done, it does not require to be registered.
A will under Muslim law does not require probate.
A will when it is reduced to writing is called wasiyatnama.
A will- under Shia law, Will made by person who commits suicide or attempts to commit
suicide is invalid.
Under Sunni law- the Will by a person who commits a suicide is valid.
Legatee can be anyone- any religion but should not be against Islam, a person who
renounces Islam.
It can be in favour of an institution but it cannot be against the religion.
Legatee should be in existence on the date of making such will- child in womb is treated
as in existence if it is born within six months from the date of making a will under Sunni
and within ten months under Shia law.
1/3rd Rule- A Mahomedan cannot by will dispose of more than a third of the surplus of his estate
after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take
effect unless the heirs consent.
Prevents a person from interfering and defeating the claims of his lawful heirs.
2/3rd of the property must go by succession.
1/3rd, he is allowed to settle claims or just give away property.
An heirless person can bequeath more than 1/3rd of the property.
Heirs consenting to the bequeath exception to the 1/3rd Rule
Where consent not obtained- it will be valid upto 1/3 rd the property.
Another exception to the 1/3rd rule- If the only heir is the wife- the husband can bequeath
upto 5/6th of the property by way of will, if the only heir is the husband- the wife can
bequeath upto 2/3rd of the property.
If the bequest exceeds the legal third and the heirs refuse their consent, the bequest abate
rateably.
Shia law does not recognize this principle of rateable distribution.
Bequest to Heirs
Under Sunni law, a bequest cannot be made to heirs not even 1/3rd of the property
except when the other heirs give their consent. Consent is required after the death of
the testator. Any single heir can consent so as to bind his own share.
Under Shia law, consent is immaterial and bequest can be made to an heir only 1/3rd
is allowed, excess will need consent. Such consent can be given at the time of making
the will by the testator, before the death or even after his death.
Consent cannot be rescinded once given.
Examples- A Mohamaden dies leaving him surviving a son, a father and a paternal grandfather.
Here the grandfather is not an heir and a bequest to him is valid without the assent of the son and
the father.
Sunni-
the testator has a son and a father living at the time of the will. The father dies in the course of
the lifetime of the son. The bequest to grandfather cannot take place if the son does not consent.
The consent may be express or implied- for example- A bequeaths the whole of his property to a
stranger by way of a written will which is attested by his sons who are his only heirs. The
Legatee enters into possession after the death of A and recovers rent and the sons do not object to
this- the consent is implied.
Q. Ali dies leaving three sons behind, Muhammad, Hasan and Husain. His net estate amounts to
Rs. 9,000. He leaves by will 3,000 to Hasan.
Consent can be given by one heir or all heirs, when given by one- it will be valid only
Conditional Bequest
Contingent bequests
Sunni law- will go to the heirs and the legacy will be lapse.
Shia law- will pass to the heirs legatees of the Will if the testator does not revoke it.
A will under Muslim law does not require probate and can be admitted in evidence if
proved duly.
Revocation of Will
Musa Miya Mahammad Shaffi and Anr. vs. Kadar Bax Walad Khaj Bax and Anr., AIR
1928 PC 108
The plaintiff claimed as one of the heirs under the Mohomadden law of Abdul Rasul,
who was his brother.
Abdul Rasul died leaving him surviving as his heirs a widow, a daughter and his brother.
Widow was entitled to 1/8th and daughter to ½, and the plaintiff to 3/8th. He claimed that
the widow and the daughter were in the possession of the said property.
Widow and daughter filed a joint statement saying that in 1910, Abdul Rasul had made a
gift gave all his properties to his grandson, who are the sons of his daughter under an
oral gift and informed their father by a letter. In 1911 he wrote another letter stating that
by virtue of an oral gift or in the alternative of a will- the grandsons have become the
possession of the property. The plaintiff therefore was not entitled to any relief.
The Appellants are the grandsons here. Supported the pleas by the mother and daughter.
They also said that their grandfather and the grandsons were staying together and the
grandfather believed that his possession was for and on behalf of them.
Trial court held it was a will and will could not be more than 1/3 rd of the property and
hence plaintiff got a share in the property.
There was no transfer of possession in this case. It was claimed that since possession and
management was on behalf of the grandsons. It was a valid transfer.
Appellants were minors at the time of the alleged gift.
Mahamad Shafi lived with the Abdul Rasa. Everyone lived in the house of Abdul Rasa.
There was no mutation of the names and no deed was executed.
Abdul wrote to Mahamad Shafi from Mecca saying he made a gift of his property-a plot
of land to his two grandsons.
Father of the minor was alive and actually living with his wife and children and was in a
position to take care of the property so gifted.
Gift by husband to minor wife and accepted on her behalf by her mother is valid,
Husband was very sick and living in the house of mother in law. Though not in
apprehension of death.
Mother of the minor wife was acting as a guardian and taking care of both the
husband and the wife.
Intention of a clear gift gift accepted as valid and complete.