INTRODUCTION

Gift is a transfer of property in which ownership is transferred by a living person to another

living person and, the transfer is made without any consideration. Gift is, therefore, a transfer
inter vivos i.e. between living persons. Where a transfer of property takes place after the
death of a transferor, it is called a will. Moreover, gift is a gratuitous transfer i.e., a transfer,
without any consideration.
Where ownership in a property is transferred in return of some consideration, the transfer is
not gift; it is either sale or exchange. In brief, the essential feature of the gift is that it is a
gratuitous and inter vivos transfer of ownership in an existing property.
This accepted meaning of the term gift is recognised in all the legal systems, including the
Muslim law. Under Muslim law, a gift is called Hiba.
When a Muslim transfers his property through gift, the transfer is called Hiba or a Muslim
gift. The religion of the person to whom the gift is made, is not relevant. If the transferor is
Muslim, the gift is Hiba. Thus, where a Muslim makes a gift of his properties in favour of a
Hindu, the gift is nonetheless a Hiba.
It may be noted that gift, being a transfer of property, is governed by the Transfer of Property
Act, 1882. Chapter VII of this Act is applicable to gifts made by any person in India,
irrespective of religion, caste or creed. But, the Transfer of Property Act does not apply to
Muslim gifts or the Hiba.
The reason is that although there is no difference in the gifts made by non-Muslims and a
Hiba in so far as its basic nature is concerned yet, the formalities of Hiba are different from
that of a gift made by any non-Muslim.
As the rules of Muslim personal law were found to be in conflict with the general rules
framed for all the persons in India, it was deemed fit to exclude Hiba, or the gift made by a
Muslim, from the operation of Chapter VII of the Transfer of Property Act.
Moreover, the Shariat Act, 1937, includes gift as one of the matters in which rule of decision
should be Muslim personal law if the parties are Muslims. The result is that gifts made by
non-Muslims in India are governed by the provisions of the Transfer of Property Act, 1882,
whereas the gifts made by Muslims are governed by the Muslim personal law. However,

other kinds of transfers inter vivos by Muslims, such as the sale, exchange, mortgage or lease,
are regulated by the Transfer of Property Act and not by Muslim law. The conception of the
term "gift" as used In the Transfer of Property Act is somewhat different from the use in
Mohammedan law.
In the Mohammedan law:
a) A hiba, an immediate and unconditional transfer of the ownership of some property or of
some right, without any consideration or with some return (ewaz); and
b) An ariyat, the grant of some limited interest in respect of the use or usufruct of some
property or right.
c) sadaqah: Where a gift of any property or right is made without consideration with the
object of acquiring religious merit.
The terms "hiba" and "gift" are often indiscriminately used but the term "hiba" is only one of
the kinds of transactions which are covered by the general term "gift".
A hiba is a transfer without consideration. A gift by a Muslim in favour of his co-religionist
must be under the Mohammedan Law. A gift is not a contract (though in Muslim law it is
called a contract) but the principle may be applicable even to gift.
In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or
taking are two contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the
Act postulates that a gift is a transfer of certain existing movable or immovable property
made voluntary and without consideration by one person called the donor, to another, called a
donee and accepted by or on behalf of the done.
The policy of the Muhammadan law appears to be. Observed the Privy Council, to
prevent a testator interfering by will with the course of the devolution of property according
to law among his heirs, although he may give a specified portion, as much as a third, to a
stranger. But it appears that a holder of property may, to a certain extent, defeat the policy of
law by giving in his lifetime the whole or any part of his property to one of his sons, provided
he complies with certain forms.1
1 Ranee Khujooroonissa v. Roushun Jehan, (1876) 3 IA 291: (1876) 2 Cal 184 at
307

DEFINTIONS OF GIFT
Abdur Rahim: A transfer of a determinate property (mal) without an exchange. Juristically
it is treated as consisting of proposal or offer on part of the donor to give a thing and of
acceptance of it by the done. Until acceptance, the gift has no operation.2
Mulla: Gift 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.3
Fyzee: Hiba is the immediate and unqualified transfer of the corpus of the property without
any return.4
Baillie: The conferring of a right in something specific without an exchange.
The concept of contract underscores the concept of Hiba also; it is a contract consisting of
proposal or offer on the part of the donor to give a thing and the acceptance of the thing and
the acceptance of the thing by the done; the element of consideration only is absent; and that
distinguishes it from sale. The law of gift being regarded as a part of the law of contract,
following elements are prescribed for Hiba by the Muslim Law; Ijabtender, Qabul
acceptance, Qabza(delivery of) possession.

2 Abdur Rahim, at p. 297

3 Mulla, at p. 150
4 Fyzee, at p. 218

ESSENTIALS OF A VALID GIFT

Writing and registration are not necessary for the validity of a gift. It may be oral or in
writing. Since muslim law views the law of Gift as a part of law of contract, there must be an
offer (izab), an acceptance (qabul), and transfer (qabza). In Smt Hussenabi vs Husensab
Hasan,5 a grandfather made an offer of gift to his grandchildren. He also accepted the offer on
behalf of minor grandchildren. However, no express of implied acceptance was made by a
major grandson. Karnataka HC held that since the three elements of the gift were not present
in the case of the major grandchild, the gift was not valid. It was valid in regards to the minor
grandchildren. In one case,6 the validity of the oral gift has been upheld. It was observed that
the Muslim Law permits an oral gift, but to make a gift valid the following three essentials
must co-exist:
(i)
(ii)
(iii)

A declaration of gift by the donor,

Acceptance of the gift express or implied, by or on behalf of the done, and
Delivery of possession of the subject of the gift by the donor to the done. Delivery
of possession need not all cases be actual. It should be delivery of such possession
as the subject possession as the subject of the gift is susceptible.

I. Declaration of Gift:
Declaration is a statement which signifies the intention of the transferor that he in- tends to
make a gift. The person who declares that he is transferring his property through a gift is
called donor. The person in whose favour the gift is made is called donee. Declaration is,
therefore, the manifestation of the intention of the donor to di- vest his ownership in the
property and to vest it in the donee.
Oral or Written:
A Hiba may be made orally. Writing is not necessary. The donor may declare the gift of any
kind of property, of any valuation, either orally or write a deed. Under Muslim Law, writing
is not necessary for the validity of gift whether property is movable or immovable. Section
123 of the Transfer of Property Act which provides that gift of immovable property must be
in writing and registered, is not applicable to gift made by Muslims.
5 AIR 1989 Kar
6 Syed Mohd. Salim Hashmi v. Syed Abdul Fateh, AIR 1972 Pat 279

In llahi Samsuddin v. Jaitunbi Maqbul,7 the Supreme Court held that under Muslim Law,
declaration as well as acceptance of gift may be oral whatever may be the nature of property
gifted. Where a gift is made in writing, it is called Hibanama. This gift-deed (Hibanama) need
not be on stamp-paper and also need not be attested or registered.
In Md. Hesabuddin v. Md. Hesaruddin,8 a Muslim woman made a gift of her immovable
properties to her son. The gift was written on ordinary paper and was not registered. The
Guahati High Court held that the gift was valid because under Muslim Law writing and
registration is not any essential condition for the validity of gifts.
Express Declaration:
The declaration must be made in clear words. A declaration of gift in ambiguous words is
void. That is to say, the declaration must expressly suggest that the donor is relinquishing his
ownership completely. In Maimuna Bibi v. Rasool Mian, the Patna High Court has held that
while oral gift is permissible under Muslim law, to consti- tute a valid gift it is necessary that
donor should divest himself completely of all ownership and dominion over subject (i.e.,
property) of gift.
The court observed that donor should express his intention of divesting the owner- ship in
express and clear words. According to Macnaghten, A gift cannot be im- plied. It must be
express and unequivocal, and the intention of the donor must be demonstrated by his entire
relinquishment of the thing given, and the gift is null and void when he continues to exercise
any act of ownership over it.
Free Consent: The declaration for the gift must be made voluntarily. Consent of the donor in
making the gift must be a free consent. If the donor makes the gift under threat of force,
coercion, undue influence or fraud, the gift is not valid. By voluntary declaration we also
mean that the donor has fully understood the nature of the transaction and there was no
external influence in his taking the decision for making the gift. Where the donor claims that
he or she had declared or signed the gift- deed without understanding the consequences, the
act of donor cannot be said to be a free act and the gift is void.

7 1994 SCC (5) 476, JT 1994 (4) 371

8 12 May, 1983

But, it must be noted that want of understanding or undue influence in making a gift must be
proved very strictly. Mere fact that the donor is an illiterate person or is a woman in purdah is
not sufficient to establish that the donor could not understand the legal implications of his
declarations or that there was an undue influence.
Bona fide Intention: Gifts must be made honestly, i.e. with a bona fide intention to give the
property to the donee. A declaration of gift with an intention to defraud the creditors of the
donor is voidable at the option of such creditors. However, the mala fide or fraudulent
(dishonest) intention of the donor cannot be presumed only by the fact that he incurs certain
debts. The mala fide intention must be fully established.
Competency of the Donor: Declaration of a gift is made by the donor. Donor must be a
competent person. Every Muslim is competent to make a gift if he has capacity as well as the
right.
Capacity: For a valid Hiba, the donor must be (i) adult (ii) of sound mind, and (iii) Muslim.
(i) Adult: At the time of making the gift the donor must be adult. He must have attained the
age of majority i.e., must be of eighteen years. If a minor is under the supervision of the
Court of Wards, the majority is attained on the completion of twenty-one years. Thus, a
Muslim becomes major for making a gift only upon attaining the age of eighteen or twentyone years, as the case may be. A gift by a minor is void.
(ii) Sound Mind: The donor must also be of sound mind. An insane person has no capacity to
under- stand the legal implications of his or her activities. However, a declaration of gift by a
person of unsound mind during is lawful and the gift is valid. As discussed earlier, is a
temporary period during which a person of unsound mind acquires capacity to understand the
legal consequences of his or her activities, i.e. becomes a normal human being.
(iii) Muslim: At the time of making the declaration of gift, the donor must be a Muslim.
Where the donor is a non-Muslim, the gift is not Hiba. A gift made by a non-Muslim is
regulated by the Transfer of Property Act, 1882 and rules of Muslim personal law are not
applicable to it. If at the time of making of gift the donor is Muslim but, after completion of
gift he renounces Islam and becomes non-Muslim, the gift continues to be a valid gift under
Muslim law.

Right: Capacity alone is not sufficient. The donor must also have the right to make the gift.
One may have the capacity, i.e. he may be a Muslim, adult and of sound mind yet, he cannot
lawfully gift away the properties of others because he has no such authority.
A donor has a right to gift only those properties of which he is the owner. In the transaction of
gift nothing less than the absolute interest or, the ownership of proper- ty is transferred.
Therefore, it is necessary that donor himself has the title which he intends to pass on to the
donee. A person who is simply a tenant in a house, cannot gift that house because he is not
the owner of that house.
There are certain properties which are regarded as non-transferable under Section 6 of the
Transfer of Property Act, 1882. Any kind of transfer including gift, of a non- transferable
property is void. A person who owns such properties has no right to alienate them.
Therefore any person including a Muslim has no right to declare a gift of non- transferable
properties. For example, if a property has been acquired by the Government, the owner of
that property has no right to make a gift of that property. It may be noted that a Muslim has a
right to gift away all the properties which are under his ownership at the time when
declaration of gift is made by him.
II. Acceptance of Gift:
Gift must be accepted by the donee. Donee is that person in whose favour the gift is made.
Gift is a bilateral transaction. It takes place between two persons. In the transfer of property
by way of gift, the first step is the declaration of gift by the donor and the second is the
acceptance by the donee. Acceptance signifies the intention of the transferee (donee) to take
the property and become its owner. Without acceptance a gift is not complete. It may be
express or implied. For example, A owes Rs 100 to B. B makes a gift of his debt of Rs 100 to
A, which A does not accept and insists on paying the money to B. the gift shall, however, be
valid and effective even on As refusal to accept it. Also, no acceptance is required when gift
is to a son or ward by the father or guardian.9
III. Delivery of Possession:
Delivery of possession is an act by which a donor puts the donee in possession of the
property. Under Muslim law, a gift is complete only after the delivery of the possession.
9 Alibai v. Bai Asi, AIR 1934 Bom 21

Therefore, the gift takes effect from the date on which the possession of the property is
delivered to the donee; not from the date on which the declaration was made.
The donor must divest himself of not only the ownership, but also of possession in favour of
the donee to complete the gift. Delivery of possession is so important in the Muslim law of
gifts (Hiba) that without delivery of possession to the donee, the gift is void even if it has
been made through a registered document.
Muslim law does not presume transfer of ownership rights from donor to donee without the
delivery of possession of the property. Importance of delivery of possession has been given in
Hedaya as under:
The possession of a property is necessary in order to establish a right of property in the gift
because right of property is not established in a thing given merely by means of the contract
(i.e. declaration and acceptance).
The mode of delivery of possession, i.e., how the property is to be transferred, de- pends
upon the nature of the property gifted. All that is legally required for a donor to constitute the
delivery of possession is to do something by which a donee gets the physical control over
property.
A donee is said to be in possession of a property when he is so placed with reference to it that
he can exercise exclusive control over it, for the purpose of deriving from it such benefit as it
is capable of rendering or as is usually derived from it. A delivery of possession may be
either (i) actual or (ii) constructive.
(1) Actual Delivery of Possession:
Where a property is physically handed over to the donee, the delivery of possession is actual.
If the physical possession of a property is possible, its gift is not complete without actual
delivery of possession. But actual delivery of possession is possible in respect of only those
properties which are capable of being physically possessed and given. Generally, only the
tangible properties may be actually delivered to the donee.
A tangible property may be movable as well as immovable. For example jewels, money,
vehicle etc. is tangible movable property and house, land etc. is tangible immovable property.
Where the property is movable, it must be actually transferred and handed over to the donee;

a mere entry in a register or account book is not sufficient and does not constitute a delivery
of possession.
Similarly, where the property is immovable, its actual delivery of possession is also necessary
to validate the gift. But the immovable properties cannot be picked up and handed over to the
donee. Therefore, if the gifted property is a land, house or a gar- den, the donor may deliver
the possession by giving up all dealings with the proper- ty and by placing it at the complete
disposal of the donee so that the donee may use it as he likes.
Thus, where the donor makes a gift of his house in which he is residing, he must vacate it and
ask the donee to live in it. Delivery of possession in case of a garden may be completed by
giving to the donee the fruits and the flowers. Similarly, where the subject matter of a gift is
an agricultural land, its delivery may be made by allowing the donee to plough the field or to
reap the crop. Under Muslim law, actual physical transfer of the property is so very much
necessary that even the mutation of names or entry in official papers and records would not
constitute the delivery of possession. Where the mutation proceedings have started but the
physical possession could not be given and the donor dies, the gift fails for want of delivery
of possession.
However, in such cases if it is proved that although the mutation proceedings were not
complete but the donee has already taken possession of the property, the gift was held valid.
Similarly, where a property is held by some other person adversely to the donor, the donor
must first of all take possession from him and thereafter pass it on to the donee. If the donor
is unable to get the possession from a trespasser, a constructive or symbolic delivery of
possession is sufficient to constitute a valid gift.
(2) Constructive Delivery of Possession:
Constructive delivery of possession means a symbolic transfer of property. Delivery of
possession is constructive if property is not actually delivered but the donor has done some
act due to which it is legally presumed that the possession has been given to the donee.
Where the property is of such a nature that its physical possession is not possible and it
cannot be delivered actually, a constructive delivery of possession is sufficient to complete
the gift. Constructive delivery of possession is sufficient to constitute a valid gift in the
following two situations:
(i)

Where the property is intangible property.

(ii)

Where the property is tangible property but, under the situations, its actual or
physical delivery of possession is not possible.

In the leading case, Aga Mohamed Jaffer v. Koolsom Beebee,10 a husband gave to his wife
a bank receipt issued in his favour from a bank where he had deposited some money.
After giving the bank receipt to his wife, he said, after taking a bath, I shall go to the bank
and transfer the account in your name. Unfortunately, the husband died before he could
transfer the money in favour of his wife.
The widow as a donee claimed the amount on the ground that there was a declaration and
acceptance of the Hiba and there was also a delivery of possession because the husband
(donor) had handed over the bank-receipt to her.
But, the Privy Council held that giving of the bank-receipt to the wife does not amount to a
constructive delivery of possession because this was not an appropriate method of
transferring the account. If the account could have been transferred, the delivery of
possession could have been construed; the widow had no right to draw the money without the
transfer of account in her name.
Moreover, it was found that the margin of the receipt contained the words, not transferable.
Accordingly, the court held that Hiba in favour of the widow was not valid because there was
no delivery of possession, sufficient to give rights to the donee, under the law.
In Abdur Rahman v. Athifa Begum,11 A made a deed only stating that she had transferred
the scheduled property by way of settlement deed upon the beneficiary B to hold it forever,
subject to the condition that A shall during her lifetime be entitled to the usufruct and also
right to reside in it. A did not make over the possession of the property to B, not even
symbolic, even the documents of the title were not given, and the deed not also recite that the
gift was accepted by the done. In these conditions the Kerala High Court held the deed was
not a valid gift.
In M. Rawther v. Charayil,12Kerala High Court held that:

10 (1903) 30 IA 94
11 AIR 1998 Kant 39

A deed of gift executed by a Muslim recording a gift made according to three conditions laid
down by Muslim Law is merely evidence of a completed gift and as such is not compulsorily
registrable and is admissible in evidence notwithstanding Sections 17 and 49.

EXCEPTIONS IN DELIVERY OF POSSESSSION

The following are the cases where deliver of possession by the donor to the donee is not
required 1) When the donor and the donee reside in the same house which is to be gifted. In such
a case, departure of the donor from the house is not required.
In Ibrahim Bivi v. Pakkir Mohideen,13 Madras High Court held that where the
property gifted is a house and the settlor and the settle reside in that house, it is not
necessary for the settlor formally to depart from the house in order to indicate that the
settle has been given possession of the property gifted. The view has been taken
because of the clear prouncement of the Privy Council to the same effect in Musa
Miya v. Kadar bax14 and that of the Supreme Court in Katheessa Umma v.
Narayanath Kunhamu15.
2) Gift by husband to wife or vice versa. The delivery of possession is not required if
the donor had a real and bona fide intention of making the gift.
In Amina Bibi v. Khatija Bibi16,a husband had made a gift of his house to his wife.
He had given the keys of the house to his wife, left the house for a few days, but had
returned afterwards and lived with her till his death. It was held that gift was valid.
3) Gift by one co-sharer to other. Bona fide intention to gift is required.
4) Part delivery - Where there is evidence that some of the properties in a gift were
delivered, the delivery of the rest may be inferred.
12 AIR 1972 Ker 27
13 AIR 1970 Mad 19
14 AIR 1928 PC 108
15 AIR 1964 SC 275
16(1864) 1 Bom HCR 157

5) Gift by a father to his minor or lunatic son. In Mohd Hesabuddin vs Mohd.

Hesaruddin AIR 1984, the donee was looking after the donor, his mother while
other sons were neglecting her. The donor gifted the land to the donee and the donee
subsequently changed the name on the land records. It was held that it was a valid
gift even though there was no delivery of land.
6) Zamindari villages - Delivery is not required where the gift includes parcels of land
in zamindari if the physical possession is immpossible. Such gift may be completed
by mutation of names and transfer of rents and incomes.
7) Subject matter in occupation of tenant - If a tenant is occupying the property the gift
may be affected by change in ownership records and by a request to the tenant to
attorn the donee.
8) Incorporeal rights - The gift may be completed by any appropriate method of
transfering all the control that the nature of the gift admits from the donor to the
donee. Thus, a gift of govt. promissory note may be affected by endorsement and
delivery to the donee.
9) Where the donee is in possession - Where the donee is already in possession of the
property, delivery is not required. However, if the property is in adverse possession
of the donee, the gift is not valid unless either the donor recovers the possession and
delivers it to donee or does all that is in his power to let the donee take the
possession.

CONSTITUTIONAL VALIDITY OF HIBA

The Transfer of Property Act exempts only those gifts which are made by Muslims. This
exemption may appear to be a discrimination on the ground of religion which is against the
constitutional mandate. But, it is now well established law that this exemption is
constitutional and lawful. Muslim gift or the Hiba has been associated with religion and has
also been included in the Shariat Act, 1937, to be regulated only by Muslim personal law;
therefore, the exemption under Section 129 of the Transfer of Property Act does not violate
Article 14 of the Constitution of India.
The courts have held that the rules of Muslim law regarding gifts are based on reasonable
classification and there is no discrimination in allowing a separate law for gifts made by
Muslims. A significant point in respect of Hiba is that Muslim Law recognises certain
peculiar kinds of gifts which are not known to other systems of law. For example, Muslim
Law recognises, Hiba-bil-Ewaz or a gift with an exchange, and Hiba-ba-Shart- ul-Ewaz or a
gift with a condition precedent. Under Muslim Law, these two transfers are regarded as
distinct kinds of Hiba.
But, as a matter of fact, these kinds of gifts are gifts only for the names sake. As is discussed
in the following pages, the courts in India have never regarded them as species of gift. Hibabil-Ewaz has been treated by the courts as a sale or exchange. Similarly, Hiba-ba-Shart-ulEwaz has been interpreted as a Hiba subject to some prior condition.
The transfer by way of gift has been recognised as lawful since the early years of Islam. The
Prophet directed the people of Arabia to make gifts to each other in order to encourage
mutual love and affection between them. He has said Send Ye presents to each other for the
increase of your love.

WHO CAN MAKE GIFTS

The following persons can make gifts:
1)
2)
3)
4)
5)

Must have attained the age of majority - Governed by Indian Majority Act 1875.
Must be of sound mind and have understanding of the transaction.
Must be free of any fraudulent or coercive advice as well as undue influence.
Must have ownership over the property to be transfered by way of gift.
A gift by a married woman is valid and is subjected to same legal rules and

consequences.
6) A gift by a pardanashin woman is also valid but in case of a dispute the burden of
proof that the transaction was not conducted by coercion or undue influence is on the
donee.
7) Gift by a person in insolvent circumstances is valid provided that it is bona fide and
not merely intended to defraud the creditors.
If the donor is suffering from the death-illness, or maraz-ul-maut, such a gift is called
donates mortis causa. Strictly it is neither exactly a gift, nor exactly a legacy (will), but a
mixture of both.
An insolvent may also make a hiba with bona fide intention. Thus rushd (sanity), bulugh
(majority), maliki (ownership) and free mind or no undue influenceare the ingredients of
capacity to make hiba.

IN WHOSE FAVOUR (DONEE)

A gift may be mad in favour of the following:17
a) Any living person who is capable of holding property: The donee, in whose favour
the property is gifted, may be any person in existence. For being a competent donee,
the only essential requirement is that he or she must be in existence at the time of the
declaration. In other words, the donee must be a living person on the date of the
transfer. Donee may be a person of any religion, sex, age or state of mind. Thus, a
Muslim may make a lawful Hiba in favour of a Hindu or a Christian or any nonMuslim. Similarly, a Hiba in favour of a female or minor or an insane person is also

17 Verma, at pp. 536-36

valid. Specific mention of the following persons would explain the competency of a
donee under Muslim law.
b) Gift to two or more persons: A gift to two or more persons may be a gift to them as
joint tenants or as tenants in common. The presumption of English law in favour of
joint tenancy does not apply to a Hindu gift, and in a Hindu gift the donees are
presumed to take as tenants in common It is necessary in Mohammedan law that the
donee should accept a hiba and possession must be delivered in the case of hiba. As
hiba is immediate and absolute transfer of ownership a hiba in favour of a person who
was not in existence is invalid. It is necessary that the donee should accept a hiba and
possession must be delivered in the case of hiba. As hiba is immediate and absolute
transfer of ownership a hiba in favour of a person who was not in existence is invalid.
c) Gifts of Usufruct(Ariat) to unborn persons: A hiba stands on a different footing
from a gift of a limited interest in usufruct a gift of future usufruct to unborn persons
is valid provided that the donee is in being at the time when interest opens out for
heirs.
d) Child in the womb: A hiba in favour of a child in the womb is valid if the child is
born within six months from the date of the hiba because in that case it is presumed
that the child actually existed as a distinct entity in the womb of his mother.
e) Juristic persons: A gift to juristic persons or any other institution is valid. So a gift to
corporate units, e.g. a tauazhi (consisting of a mother and of all her children and not
descendants in the female line governed by Marumakkathayam law) are valid. Such a
gift will be valid as being one for the whole body. It has been held that a mosque is
recognized by the Mohammedan jurist as a juristic person, and that a valid gift can be
made in favour of a mosque.
f) Gifts to Non-Muslims: A gift may be made to a non-Muslim but in such a case the
property will, after the completion of the gift, be subject to the personal law of the
donee and not that of donor.

WHAT MAY BE GIVEN IN GIFT

The subject matter of the gift must be certain existing movable or immovable property. It may
be land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future

property. A gift of a right of management is valid; but a gift of future revenue of a village is
invalid. These cases were decided under Hindu and Mohammedan law respectively but they
illustrate the principle. In a Calcutta case, it was said that the release of a debt is not a gift, as
a gift must be of tangible property. It is submitted that the release of a debt is not a gift as it
does not involve a transfer of property but is merely a renunciation of a right of action. It is
quite clear that an actionable claim such as a policy of insurance may be the subject of a gift.
It is submitted that in a deed of gift the meaning of the word 'money' should not be restricted
by any hard and fast rule but should be interpreted having regard to the context properly
construed in the light of all the relevant facts. Therefore in order to constitute a valid gift,
there must be an existing property. In Mohammedan law any property or right which has
some legal value may be the subject of a gift.
1) Hiba Of Corporeal And Incorporeal Property: it is not necessary that a hiba must be
of some corporeal or tangible property, it may be made not only of corporeal property but
also of incorporeal property. Thus, a hiba may be made of actionable claims or choosesin-action, e.g. debts,negotiable instruments or Government promissory notes.
2) Gift of a debt: the gift of a debt to the debtor is lawful both by analogy (qiyas) and
liberal interpretation (istehsan). A gift takes effect in two ways, by transfer of right of
property (tamlik) or by cancellation or discharge (iskat). The gift of a debt to the debtor
comes under the latter category. If the creditor releases the principal debtor from debt,
both the debtor and surety are released. The release of a debt may also be made in favour
of the heirs of the debtor if he dies.
3) Equity of Redemption can be subject of a valid gift: where the property gifted is
subject to a usurfructory mortgage, what is gifted is merely the equity of redemption and
not physical possession of the property itself.
4) Voluntarily: In this section the word 'voluntarily' bears its ordinary popular meaning. It
denoting the exercise of the unfettered free will, and not its technical meaning of 'without
consideration'. When a gift is made, it must satisfactorily appear that the donor knew what
he was doing and understood the contents of the instrument and its effect, and also that
undue influence or pressure was not exercised upon clear intention to make an out-andout gift, but the intention has failed for want of transfer or any other cause, the courts will
not convert what was meant to be an out-and-out gift into a trust, and the donor will not
be deemed a trustee of the property for the intended donee. The gift will fail. Also where
the husband deposited certain ornaments with a bank for safe custody in the joint names
of himself and his wife, with direction to be delivered to be either or survivor, it did not

amount to a gift, as the husband retained dominion over the property. Where a person
keeps money to fixed deposit in the name of his niece, brought up and given in marriage
by him, there is an inference of gift in favour of the niece. Where the motive behind the
deed of gift was unequivocal to give the transferee a title which would act as a safeguard
against any claim for pre-emption, the transaction for that reason cannot be called a sale.
Similarly where a person settles an annuity upon his alleged wife, the settlement cannot
be construed to be a contract for consideration of love and affection, but is a gift pure and
simple.

KINDS OF GIFTS
There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz,
Sadkah, and Ariyat.
Hiba Bil Iwaz - Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means gift for
consideration already received. It is thus a transaction made up of two mutual or reciprocal
gifts between two persons. One gift from donor to donee and one from donee to donor. The
gift and return gift are independent transactions which together make up Hiba bil Iwaz.
In India, it was introduced as a device for effecting a gift of Mushaa in a property capable of
division. So a Hiba Bil Iwaz is a gift for consideration and in reality it is a sale. Thus,
registration of the gift is necessary and the delivery of possession is not essential and
prohibition against Mushaa does not exist. The following are requisites of Hiba bil Iwaz 1) Actual payment of consideration on the part of the donee is necessary. In
Khajoorunissa vs Roushan Jehan,18 held that adequacy of the consideration is not
the question. As long is the consideration is bona fide, it is valid no matter even if it is
insufficient.
2) A bona fide intention on the part of the donor to divest himself of the property is
essential.

18 (1876) 2 Cal 184: 3 IA 152

Gift in lieu of dower debt - In Gulam Abbas vs Razia Begam19, All HC held that an oral
transfer of immovable property worth more than 100/- cannot be validly made by a Muslim
husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It is
neither Hiba nor Hiba bil Iwaz. It is a sale and must done through a registered instrument.
Hiba ba Shartul Iwaz - Shart means stipulation and Hiba ba Shart ul Iwaz means a gift made
with a stipulation for return. Unlike in Hiba bil Iwaz, the payment of consideration is
postponed. Since the payment of consideration is not immediate the delivery of possession is
essential. The transaction becomes final immediately upon delivery. When the consideration
is paid, it assumes the character of a sale and is subject to presumption (Shufa). As in sale,
either party can return the subject of the sale in case of a defect. It has the following
requisites
1)
2)
3)
4)

Delivery of possession is necessary.

It is revocable until the Iwaz is paid.
It becomes irrevocable after the payment of Iwaz.
Transaction when completed by payment of Iwaz, assumes the character of a sale.

In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both
gifts for a return and the gifts must be made in compliance with all the rules relating to simple
gifts.

GIFT WITH A CONDITION

19 AIR 1951 All 86 (FB)

A gift must always be unconditional. When a gift is made with a condition that obstructs its
completeness, the gift is valid but the condition becomes void. Thus, if A gifts B his house on
a condition that B will not sell it or B will sell it only to C, the condition is void and B takes
full rights of the house.
Mushaa (Hiba bil mushaa)
Mushaa means undivided share in a property. The gift of undivided share in an indivisible
property is valid under all schools but there is no unanimity of opinion amongst different
schools about gift of undivided share in a property that is divisible. In Shafai and Ithna
Asharia laws it is valid if the donor withdraws his control over the property in favor of the
donee. But under Hanafi law, such a gift is invalid unless it is separated and delivered to the
donee.
Illustration a) A, B, and C are the co-owners of a house. Since a house cannot be divided, A can give
his undivided share of the house to D in gift.
b) A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and Ithna Ahsharia
law, A can give his undivided share of the wheat to D if he withdraws control over it
but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers
the possession of 1 ton of wheat to D.
In case of Kasim Hussain vs Sharif-un-nisa,20 A gifted his house to B along with the right to
use a staircase, which was being used by C as well. This gift was held valid because staircase
is indivisible.

WHEN GIFT MAY BE SUSPENDED OR REVOKED

20 ILR (1883) 5All 285

Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.
The following are those conditions(1) That the donor and donee must have agreed that the gift shall be suspended or revoked on
the happening of a specified event. Such event must be one which does not depend upon
the donor's will. The donor and donee must have agreed to the condition at the time of
accepting the gift; and
(2) The condition should not be illegal, or immoral and should not be repugnant to the estate
created under the gift. Section 126 is controlled by sec. 10. As such, a clause in the gift
deed totally prohibiting alienation is void in view of the provisions contained in sec. 10. A
gift, which was not based on fraud, undue influence or misrepresentation nor was an
onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by
resorting to legal remedy in a competent court of law.
A Mohammedan on the other hand can revoke a gift even after delivery of possession
except in the following cases:
(1) When the gift is made by a husband to his wife or by a wife to her husband;
(2) When the donee is related to the donor within the prohibited degrees;
(3) When the gift is Sadaka (i.e. made to a charity or for any religious purpose).
(4) When the donee is dead;
(5) When the thing given has passed out of the donee's possession by sale, gift or otherwise;
(6) When the thing given is lost or destroyed;
(7) When the thing given has increased in value, whatever be the cause of the increase;
(8) When the thing given is so changed that it cannot be identified, as when wheat is
converted into flour by grinding; and
(9) When the donor has received something in exchange for the gift.
In these cases gift may be revoked.

CONCLUSION

The conception of the term gift and subject matter of gift has been an age old and traditional
issue which has developed into a distinct facet in property law. Different aspects related to
gift in property act and its distinction with the Mohammedan law and its implications has
been the major subject matter of this article. In considering the law of gifts, it is to be
remembered that the English word 'gift' is generic and must not be confused with the
technical term of Islamic law, hiba. The concept of hiba and the term "gift as used in the
transfer of property act, are different. As we have seen in the project that Under
Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration of
gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the
donee, and (c) delivery of possession of the subject of gift. The English law as to rights in
property is classified by a division on the basis of immoveable and moveable (real and
personal) property. The essential elements of a gift are (a) The absence of consideration; (b)
the donor; (c) the donee ;(d) the subject-matter; (e) the transfer; and the acceptance Thus this
striking difference between the two laws relating to gift forms the base of this project in
understanding its underlying implications.