Family Law II(Mohammedan Law)

GIFT(HIBA) & WILL

 Gift

A gift under Muslim law is a-

Voluntary, unconditional & immediate transfer by donor

Certain specified existing property (Movable or

immovable)

Without consideration

Acceptance by or on behalf of donee

 Gift in Muslim Law

A living person voluntarily conveys his properties to another living

person.

Gift(Hiba) is a contractual transaction.

Offer & acceptance are insisted upon.

Without consideration.

Transferor transfers ownership or absolute interest in the property.

Transferor can not impose any condition.

 Essential kinds & formalities for valid Gift

Who may give:Donar

Donar must have-

Attained the age of majority.

Sound mind

Free of any fraudulent or influence

Ownership over the property to be transferred

 Who may Receive: Donee

A gift may be made in favour of a Muslim, non

muslim,heir,non-heir,minor,insane or a juristic person(for
example mosque).

Any person capable of holding property may be the donee

of a gift.

Sex,age,religion or state of mind is no bar to the taking of a

gift.

Donar must be a Muslim.

 Who may Receive: Donee

A gift to an unborn person or a dead person is void.

A child in mother’s womb is competent donee

provided it is born alive within six months from the
date on which gift was made.

Gift to two or more donees must be accepted by all of

them separately.
 Property Rights which may be Gifted

The property must exist at the time the gift is made.

Donor must possess it.

Money,Mahar,Promissory Notes, Government

Securities, Insurance Policy,Copyright,Goodwill.
 Extent of Donor's Right to Gift

It is unrestricted.

He may Gift whole of the property or any part of

property.

Exception-Gift made during death illness(Marz-ul-

Maut)
 Formalities and Modes of Gift

Declaration by the Donar

Acceptance by the Donee

Delivery of Possession
 Void Gifts

Gift to unborn Person

Gift to a dead Person

Contingent Gift

Gift in Future

Gift with a condition

 Revocation of Gift

Hiba once made is irrevocable.

Before the delivery of possession, the gift is not

complete & donor can revoke it.

After delivery of possession, the donor has a right to

revoke the gift either with the consent of the donee
or by a decree of court.
 Following Gifts are absolutely Irrevocable

When the Donor/Donee is dead.

When the Donar/Donee related by blood or marital

relationship.

When the Gift property is sold or gifted is lost,

destroyed or changed.
 Will

An instrument by which a person makes disposition

of his property to take effect after his death.

It becomes effective after the death of the testator &

it is revocable.
 Object of Will

According to the tradition of Prophet is to provide

maintenance to members of family & other relatives
where they can not be provided by the law of
inheritance.

Prophet has declared that the power should not be

exercised to injury of lawful heirs.
 Formality of a Will

No writing is necessary.

Verbal Declaration is necessary as the intention of the

testator is ascertained.

Where the will is in writing, it is called Wasiyatnama.

If it is in writing, it need not be signed.

It does not require attestation. If it is attested ,there is no

need to get it registered.
 Subject matter of Will

The testator must be owner of property.

Property must be capable of being transferred.

Property must be in existence.

Any kind of property movable or immovable may be

the subject matter of will.
 Testamentary Power & its Limits

A Muslim does not possess an unlimited power of

making disposition by Will.
No Muslim can make a Will of more than 1/3 of his
net assets after payment of funeral charges & debts.
(Sunni & Shia Law)
In respect of will of 1/3rd to an heir, the consent of
other heirs is required in Sunni law but not in Shia
law. In case of non heir(Stranger) the consent of
heirs is not required.