Presentation on

Family Law II
Presented by
Malavika J Maliyakkal
Roll no 36
BBA LLB B Batch
Bharata Mata School of Legal
Studies (BSOLS)
 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:

• 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.

• Under Hiba, a living Muslim voluntarily transfers the ownership of any

property to another living person. Hence, it is a transfer inter vivos.
• 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.

• 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.

• 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, 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

 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, 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.”
 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, 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.
 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.
• 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 recognised 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.
 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.
• 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.
• 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

• Mushaa divisible
 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.
 Conclusion
• The concept of gift is a long due process which is coming over from our past.
• The term “Hiba” and “gift” have a different meaning when taking into consideration the transfer of
property act, 1882. Hiba is governed according to the Muslim Law.
• So as we have discussed in this paper the three conditions of a valid gift that are:
• Declaration of gift by the donor.
• Acceptance of gift by the donee.
• Transfer of possession by the donor and its acceptance by the donee.
• There must be a bona fide intention of the donor to transfer the property.
• The gift can be revoked by the donor after a decree of revocation has been passed by the court of law.
• While concluding we can say that gift is an offer made by the donor to a person who accepts the offer,
known as donee. So, the term “gift” used in English is generic and should not be confused with that of
Muslim law known as “Hiba”.