Gifts Under Muslim Law

What are gifts?

• Gift is the transfer of certain existing moveable and immoveable property
made voluntarily and without consideration
• Person making a gift is called DONOR
• Person receiving the gift is called DONEE
• Gift is also called HIBA
• The TOPA, 1882 also defines and regulates laws relating to gifts. But this does
not apply to Muslim law
• A Muslim is competent to make a gift of his total property during his lifetime
• Gift can be made with specific purpose or out of love and affection
• Purpose of gift is immaterial, as long as it is not to defraud a person
 Requirement of a valid gift
• 1) Parties to the Gift/Hiba
a. Donor
b. Donee
• 2) Subject Matter of Gift
• 3) Essential Ingredient of a valid Gift
a. Declaration by the donor (IJAB)
b. Acceptance by the done (QUBOOL)
c. Delivery of possession (QABZA)

If these three conditions are fulfilled, the gift is valid and complete
Smt Hussenabi v Husensab Hasan,
 Subject Matter of a Gift
• Can be moveable or immoveable property
• Ancestral of self acquired property
• Corporeal or incorporeal
• Subject matter of gift must be in existence on date of making gift
• Benefit conferred must be certain and immediate. Immediate delivery
of property is vital
• Gift of a life interest may be executed, where the donee enjoys the
gift during his lifetime. But no absolute interest in property is made
Declaration by donor
• Must be done with free consent
• Should not be ambiguous
• Done without any fraudulent motive
• Done in the presence of witnesses or by public statement

• Important Cases
Hussaina Bai vs. Zohara Bai
Ilahi Samsuddin v. Jaitunbi Maqbul
Md. Hesabuddin v Md. Hesaruddin
Maimuna Bibi v. Rasool Mian
Acceptance by Donee (Qubool)
• Donee must be competent to accept gift
• If not competent, gift will be accepted by guardian
• Guardian may be the father or paternal grandfather only
• Father may appoint other relatives as guardian
• In case of minor married girl, the husband may also be guardian
• No other relative considered legal guardian when the father or
paternal grandfather is alive
• Musa Miya vs. Kaddar Bux
Delivery of Possession (Qabza)
• Acceptance must be followed by delivery of possession
• Unlike TOPA lot of emphasis on immediate delivery of possession
• The gift is not valid unless delivery is made
• In case of moveable property the donor must deliver the property
• In case of immoveable property-
a. Donor must vacate the property along with all his possessions
b. Put the done in possession
 Six criterions for the validity of a gift under
Muslim law
• Donor should be sane and major and must be the owner of the property which he is
gifting
• The thing gifted should be in existence at the time of Hiba
• The thing gifted is divisible, it should be separated and made distinct
• The thing gifted should be such property to benefit from which is lawful under the
shariat
• The thing gifted should not be accompanied by things not gifted, i.e should be free
from things which have not been gifted
• The thing gifted should come in possession of the done himself or his representatives,
guardian or executor.

ABDUL RAHIM VS. SK. ABDUL ZABAR

Revocation of Gifts
• Prophet was against the revocation of gifts
• The Muslim law-givers have approached the subject of revocability of gift
from several angles. General rule: “all gifts except those which are made
by one spouse to another, or to a person related to the donor within the
degrees of prohibited relationship, are revocable”
• Muslim law lays down a long list of gifts which are irrevocable.
• Classifies gifts from the point of view of revocability under the following
two heads:
a. Revocation of gifts before the delivery of possession, and
b. Revocation of gifts after the delivery of possession.
 Revocation of gifts after the delivery of possession
• All gifts after the delivery of possession can be revoked with the consent of the donee,
• Revocation can be made only by a decree of the court.
• Revocation of a gift is a personal right of the donor,

According to the Hanafi School, with the exception of the following cases, a gift can be revoked even after the
delivery of possession. The exceptions to the same are:
• When a gift is made by one spouse to another.
• When the donor and the donee are related within the prohibited degrees.
• When the donee or the donor is dead.
• When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he had disposed of
it by sale, gift or otherwise or, where he had consumed it, or where it had been lost or destroyed.
• When the value of the subject-matter has increased.
• When the identity of the subject-matter of the gift has been completely lost, just as wheat, the subject-matter
of gift, is converted into flour.
• When the donor has received something in return (iwaz).
• When the object of the gift is to receive the religious or spiritual benefit or merit, such as sadaqa.
 Shia law of revocation of gifts
• The Shia law of revocation of gifts differs from the Sunni law in the
following respects:
• First, gift can be revoked by a mere declaration on the part of the
donor without any proceedings in a court of law;
• Secondly, a gift made to a spouse is revocable; and
• Thirdly, a gift to a relation, whether within the prohibited degrees or
not, is revocable.