Gifts under Muslim Law • •
A person is competent to make a gift (Hiba) of his total property during his lifetime. The gift is operatie with immediate effect and diests him of his control and ownership
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oer 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 circument a
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proision of the law. !oidable !oidable at the instance at the creditors. Howeer "ust because he had some debts does not affect the alidity of the gift. #ntention is important to affect the alidity of the gift. Gift can be made of e$isting moable or immoable property made oluntarily and
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without consideration by one person called the donor to another called done and accepted by or on behalf of the done% followed by immediately deliery of possession of the sub"ect matter of the gift. All rights of the donor ests in the done. Hiba should not be confused with the &nglish term' gift. Hiba is a narrow and well' defined legal concept. Hiba is the immediate and unualified transfer of property.
&ssential elements of Gift ) *eclaration *eclaration (#"ab) (#"ab) by the *onor' *onor' Manifest Manifestatio ation n of the wish to be on the part of the the donor +) Acceptance Acceptance (,ubool) (,ubool) by the *onee' *onee' either either implied implied or or e$press e$press -) #mmediate #mmediate deliery deliery of possessi possession on (,aba)' (,aba)' either actually actually or construc constructiely tiely /ho can make a gift and who can be the donee •
Any Muslim% who is ma"or and of sound mind is competent to contract can make a gift of
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his property. The person making a gift must hae full and absolute ownership oer such property. The property must be in e$istence and should be specified. The age of ma"ority for determining the competency of gift is eighteen years in ordinary
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cases and + years where a guardian has been appointed by the court. Gift by a /oman' A female is also competent to make a gift. #f a gift has been made by a
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0ardanashin woman% the alidity of the gift is in uestion% the burden of proof is on the donee to proe that she understood the full conseuences of her act and nature of her actions. (#mam 1ahib s. Ameer 1ahib% A#2 344 Mad 5+). #t is also the duty of the court to scrutinie the documents and eidence on record properly. (Hussaina 6ai s. 7ohra 6ai% A#2 358 M0 58).
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A gift can be lawfully made in the faour of natural and artificial persons% non'Muslims% would'be heirs% minors% mentally handicapped and women irrespectie of their marital
status. He should be a "uristic person capable of holding property. The done can be of any se$% any age and een of any religion. He can be a relatie or a stranger. 0roperty can alidly be gifted to a female irrespectie of her marital status. •
Gift to an 9nborn 0erson' The done can be a minor or a ma"or but he must be in e$istence. A gift to an unborn person not yet in e$istence is oid. A gift to a person by way of maintenance allowance for life and to his male heirs not in e$istence at the time of making the gift will be alid proided they are born by the time the interest in faour of the liing person comes to an end.
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Gift can be made to a child in womb of his mother proided he is born within si$ months of the date of making of gift
/hat can be a gift: • • • •
Tangible and intangible but has to be e$istence at the time of making a gift. ;egotiable instruments% goernment promissory notes% cheues% amindari rights Gift of future property is oid. A gift of spes successionis is oid.
A gift of e$isting property but operatie on a future date would be oid. The reason is that immediate deliery of possession of property is one of the essential conditions of alidity.
Gifts of property held adersely to the donor •
/here the donor does not hae the actual physical possession of the property to be gifted and the same is held by another person adersely to the donor unless the donor obtains and deliers possession thereof to the donee or does all that he can to put it within the power of the donee to obtain possession. a) *onor files a suit and donee "oins in as a party to the suit for trespass. b) =btains possession ia suit and gies it to the donee.
Gift of euity or 2edemption •
The right of the mortgagor to repay a loan and redeem the mortgaged property is called
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his euity of redemption. 6om H> held inalid% other courts hae held it to be alid. Actual or constructie possession reuired.
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&ssential elements of a gift
) *eclaration ? >lear and unambiguous. &ssential for the *onor to diest himself completely of all ownership and dominion oer the sub"ect of the gift. Mere permission to lie in the house would not be a gift. #t has to be his own free will and consent. +) 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 e$ecutor appointed under his /ill% paternal grandfather% his e$ecutor appointed under his /ill. Gift was made by paternal grandfather in presence of the father% mother accepted it' it was held to be an inalid gift. #f there is no guardian and the minor is under the care and protection of a person other than the guardian% such person can alidly accept the gift on behalf of the minor girl. Husband can alidly accept gifts een in the presence of the father. -) *eliery of 0ossession' A gift is not alid unless it is accompanied by deliery of possession. The donor must acate the premises signifying complete relinuishment of •
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control% ownership and possession% in faour of the donee. 0ossession could be actual or constructie.
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and out the donee in possession. #n case of moable property' handing oer the moable property to the donee. >onstructie 0ossession' The gift can be completed by deliery of title deeds to the donor% mutation of names in the official records% direction to the tenants to pay the rent to the donee.
&$ceptions to the 2ule of *eliery of 0hysical 0ossession' a. Gift by Husband to the /ife of #mmoable properties' A gift by the husband to the wife% physical departure is not necessary. @oint residence is an integral part of the matrimonial life. A mutation of names will be clear proof but it is not an essential condition of a alid gift. b. Gift by
hild or by Guardian of the /ard &ssential for a bona fide intention to e$ist on the part of the father or guardian to make a gift. *onor and acceptor on behalf of the donee are the same. 6ut where the property is gifted by the father to his minor child and also to another person' possession is necessary. c. /here donor and donee reside in the gift property matter' some cogent eidence reuired to show bonafide intention on part of the donor to complete the gift. =ert acts would be' making a declaration in presence of a number of friends and entrusts the management of the property to the donee% hands oer the papers of the property% mutation of names% possession% donee starts paying municipal ta$es% starts collecting rent in his name.
#t can be an oral gift or in writing. 0ossession has to be handed oer. &$ample' #llahi
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1hamsuddin s. @alunbi Makbul ;adaf% ' the deceased made an oral gift in the faour of her daughter and grandson in her lifetime diiding the house in two parts and giing the possession to these two donees. Moreoer a mutation of property was sanctioned in their faour. &en if a gift is in writing or a registered deed and it does not fulfill the conditions of a alid gift% it is considered to be inalid.
Mushaa •
9ndiided share in the property% specified and identified property. A has a plot of land and three sons. 0roperty goes to the three sons but unless it is demarcated% we donBt know what part of the land is going to whom.
Where the undivided share is incapable of division
!alidly gifted ? has to clearly demonstrate an act of putting the donor in possession of the land. Where the property is capable of division • • • • • • •
The property should be diided and then gifted #f property is gifted before partition 1hia law gift is alid 1unni law gift is irregular% not oid 1ubseuent diision and deliery of possession renders the gift as alid The moment suit for partition and separate possession is filed% the gift is perfected &$ceptions gift alid from date of inception% een if no diision is effected
Where gift is to two persons
C makes a gift of a house to A and 6 in eual shares as tenants'in'common
0roperty is not diided although the shares are clearly defined
0ossession of specific shares not gien
Gift is alid
>ontingent Gifts •
>ontingent gifts are inalid
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>onditional Gifts
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Gifts are meant to gie full ownership oer the property. 2ight to possess and alienate #f the condition is inconsistent with the incidence of ownership% then the condition is oid
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but the gift is held to be alid. A makes a gift to 6 and attaches a condition to it that she cannot sell it. >orpus ? you cannot restrict% in the usufruct (yoooofrukt) you can restrict the ownership.
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after death to the donor is alid.
*eath 6ed Gifts and Acknowledgments •
A gift by a Muslim during mar'ul'maut or death'illness cannot take effect beyond a third
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of his estate after the payment of the funeral e$penses and debts% unless the heirs gie the consent% after the death of the donor% to the e$cess taking effectD nor can such a gift take effect if made in faour of an heir unless the other heirs consent thereto after the donorBs death. There must be pro$imate danger of death% apprehension of death in the mind of the
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person% inability to carry on daily actiities% illness% fatal nature. 2ecoery' will operate as a normal gift and it could e$tend to the whole of property. #1A' *onatio Mortis >ausa' only moable property% no e$tent of the property to be gifted or class of heirs% if the person recoers% the gift fails.
Gift with &$change (Hiba'6il'#wa) •
A bonafide and oluntary intention on part of the donor to make the gift and diest
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himself of complete rights. 0ayment of consideration by the donee. Here payment is more important and not the deliery of possession.
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2eocation of a Gift • •
=rdinarily till the gift is complete% it is reocable. After completion of the gift% it can be reoked only where donee has consented or by a decree of the court.
a. b. c. d. e. f. g. h.
Gift by husband to wife or wife to husband *onee and donor are within prohibited degree of relationship /hen the donee is dead *onee has sold it Thing is lost or destroyed #ncreased on alue >annot be identified *onor has receied something in e$change
9nder 1hia Law' any relatie ? irreocable but husband and wife ? reocable.
/ills E/illB is defined under E1ection +(h)B of The F#ndian 1uccession Act% 3+4% means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. 0robate of a will' The word probate means to proe or alidate. 0robate is the procedure by which a will is approed by the >ourt as the alid and last will of a deceased testator (the person who made the will). #t also confirms the appointment of the person named as e$ecutor in the will. •
/here a Muslim gets married under the 1pecial Marriage Act% 34 to a Muslim or to a
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;on'Muslim% he along with his spouse and children born out of this marriage would no longer be goerned by the Muslim law of succession but will be goerned by the proisions of the #ndian 1uccession Act% 3+4. &en if they get the marriage registered subseuently under the 1MA. 9nder #1A% a person has the authority to will away the entire property but under Muslim
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law% the person can only will away I-rd of the property. 2estrictions under Muslim law for beueathing property in faour of an heir% whereas
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under the #1A% there are no such restrictions. 2egistration:
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&ssentials of a alid will • •
>ompetency of the Testator' 1ound mind and ma"or A will' under 1hia law% /ill made by person who commits suicide or attempts to commit
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suicide is inalid. 9nder 1unni law' the /ill by a person who commits a suicide is alid Legatee can be anyone' any religion but should not be against #slam% a person who
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renounces #slam. #t can be in faour of an institution but it cannot be against the religio.
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Legatee should be in e$istence on the date of making such will' child in womb is treated as in e$istence if it is born within si$ months from the date of making a will under 1unni and within ten months under 1hia law.
Legatee Guilty of causing death of the testator • •
9nder 1unni law it is inalid'intention does not matter 9nder 1hia law' intention matters.
6euest to Heirs •
9nder 1unni law% a beuest cannot be made to heirs ? not een I- rd of the property e$cept when the other heirs gie their consent. >onsent after death. 9nder 1hia law% consent is immaterial and beuest can be made to an heir only I- rd is allowed% e$cess will need consent. 1uch consent can be gien at the time of making the will by the testator or een after his death.
,. Ali dies leaing three sons behind% Muhammad% Hasan and Husain. His net estate amounts to 2s. 3%888. He leaes by will -%888 to Hasan. •
>onsent can be gien by one heir or all heirs% when gien by one' it will be alid only to the e$tent of the consenting heirBs share.
>onditional 6euest • •
>ondition is oid which hampers the absolute ownership of the legatee. 6euest is alid.
6euest of life estate • •
1unni law' it will operate as an absolute grant. 1hia law' it is allowed.' life estate in faour of one and then ested to another after his death is alid.
>ontingent beuests • •
May or may not happen The beuest is oid.
I-rd 2ule • •
0reents a person from interfering and defeating the claims of his lawful heirs. +I-rd of the property must go by succession.
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I-rd% he is allowed to settle claims or "ust gie away property. An heirless person can beueath more than I-rd of the property. Heirs consenting to the beueath ? e$ception to the I-rd 2ule /here consent not obtained' it will be alid upto I- rd the property.
A will under Muslim law can be oral. #f its writing% signing or attestation is not a reuirement. #f attestation is done% it does not reuire to be registered. A will under Muslim law does not reuire probate. A will when it is reduced to writing is called wasiyatnama
*eath of Legatee before the operation of the /ill • •
1unni law' will go to the heirs 1hia law' will pass to the legatees of the /ill if the testator does not reoke it.
0robate and Letters of Administration •
A will under Muslim law does not reuire probate and can be admitted in eidence if proed duly.
2eocation of /ill •
A will by its nature is reocable.
>ases . Abdul Hafi 6eg and Anr. s. 1ahebbi and =rs. Mar'ul'Maut • #t is a malady which induces an apprehension of death in the person suffering from it and • •
which eentually results in the death of the person. There was some lack of eidence in the present case% no doctors were e$amined and
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further the eidence was fluid. He died on the th day after falling ill. He fell ill and neer recoered from the illness. He was not able to take care of himself.
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He was asking for his near and dear ones to be by his side. He was merely making signs and shedding tears while looking at relaties. He made a gift + hours before death% Gift was within the ambit of Mar'ul'maut. The court held that "ust because doctors were not e$amined or medical reports were not produced% it cannot be held that eidence was not appreciated' it is the sub"ectie apprehension of death in the mind of the sick person who eentually died suffering from his last illness' test.
+. Hafeea 6ibi and =rs. s. 1haikh
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1appoora% Khairunnisa% ;oor"ahan% 2abia 6ibi and Alima 6ibi. All fie daughters were married. /ife had predeceased him. 1haik% 1apoora% Khairunnisa% noor"ahan and mohd. #bal (1on of Alima)' plaintiffs
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filed a suit for partition against Mehboob% 1ubhani% Jakub and 2abia. The sons and daughters of 1yed Ali who was brother of 1* were impleaded as defendants. 0arties are goerned by 1unni law. 0laintiffs said he died intestate and plaintiffs and defendants were entitled to some
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share of property and the other defendants were entitled to some of the share. Jakub contested that 1haik *awood e$ecuted a hiba and gifted his properties to him
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and put him in possession of the hiba properties on that day itself. Hiba was complete and plaintiffs were aware of the fact. /hether the hiba was binding and alid or not. Trial court said plaintiffs were not entitled to any share. 0laintiffs said that the gift had to be registered and stamped because it was in writing
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and such unregistered gift could not be relied upon. 1ection +3 of the T0 Act says' nothing in this shall be deemed to affect any rule of
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Mohammadden Law. 1. of the 2egistration Act says that an instrument of gift of immoable property reuires registration irrespectie of the alue of the property. The >ourt held that merely because the gift is reduced to writing by a Mohammadan
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instead of it being orally made% such writing does not become a formal document or instrument of gift. /hat is important is that the three essentials are fulfilled. The form is immaterial.
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1ection +3 of T0 e$cludes gifts made under Mohammaden Law. #n the present case the gift as recited in the deed was based on loe and affection as
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Jakub after the death of the donorBs wife had taken care of him. Acceptance was also seen as Jakub had signed the deed and Jakub had been residing
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in the gift property and thus was in actual physical possession of the house. 0laintiffs had no claim in the property.
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Musa Miya Mahammad 1haffi and Anr. s. Kadar 6a$ /alad Kha" 6a$ and Anr.% A#2 3+ 0> 8 •
The plaintiff claimed as one of the heirs under the Mohomadden law of Abdul 2asul%
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who was his brother. Abdul 2asul died leaing him suriing as his heirs a widow% a daughter and his brother.
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/idow was entitled to Ith and daughter to N% and the plaintiff to -Ith. He claimed that the widow and the daughter were in the possession of the said property. /idow and daughter filed a "oint statement saying that in 38% Abdul 2asul had made a
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gift gae all his properties to his grandson% who are the sons of his daughter under an oral gift and informed their father by a letter. #n 3 he wrote another letter stating that by irtue of an oral gift or in the alternatie of a will' the grandsons hae become the owners of Abdul 2asulBs property and the grandsons through their father were in possession of the property. The plaintiff therefore was not entitled to any relief. The Appellants are the grandsons here. 1upported the pleas by the mother and daughter. They also said that their grandfather and the grandsons were staying together and the
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grandfather belieed that his possession was for and on behalf of them. Trial court held it was a will and will could not be more than I- rd of the property and
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hence plaintiff got a share in the property. There was no transfer of possession in this case. #t was claimed that since possession and
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management was on behalf of the grandsons. #t was a alid transfer. Appellants were minors at the time of the alleged gift. Mahamad 1hafi lied with the Abdul 2asa. &eryone lied in the house of Abdul 2asa. There was no mutation of the names and no deed was e$ecuted. Abdul wrote to Mahamad 1hafi from Mecca saying he made a gift of his property'a plot
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of land to his two grandsons.
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position to take care of the property so gifted. Hayatuddin s. Abdul Gain and =rs
. 0lantiff appeal'challenging dismissal of the suit for a declaration and in"unction that he was lawfully in possession of house property in suit in pursuance of a gift deed e$ecuted by one 2ashidbi and Amnabi. +. Lamiya had two wies Malkobbi and 2ashidbi. Lamiya had a sister Amnabi. -. He died in 3 leaing a house property in dispute. . They all succeeded to his estate. 4. Gift deed they were gifting property to Hayatuddin. 5. 1hows that a part of the property was separated and gien to Malkubi. . Gift deed also shows that the property was in possession of the donee and he was entitled to use the property. . *onors and *onee filed a suit for declaration that Haytuddin was the owner. 3. Malkoobi was contesting the suit. 8. Gift of Mushaa ? is not oid but irregular and can be perfected by alid partition. . *onors specifically said that Ith be separated and gien to Malkoobi and rest be gien to Hayudtiin. +. The property was in the possession of the donee himself. -. 0laintiffs hae shares separated. *iest themseles of the poseession ? suit for declaration. !alia 0eedikakkandi s. 0athakkalan
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Gift by husband to minor wife and accepted on her behalf by her mother is alid% Husband was ery sick and liing in the house of mother in law. Though not in
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apprehension of death. #ntention of a clear gift ? gift accepted as alid and complete.
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