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GIFTS AND

DONATIONS
UNDER MUSLIM
LAW
F MAIZA AZAR
ATTORNEY-AT-LAW
What is a Gift
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 donee.
Types of Gifts under Muslim
Law
1. SADAQA
Where the object of the donor is to acquire merit in the eyes of the
Lord and a recompense in the next world, the gift is called
Sadaqa. It is a gift with a religious motive.

2. HIBA
Immediate and unqualified transfer of the corpus of the property
without any return.
(vide Fyzee p.188)

3. AARIAT
It is the grant of a licensed, revocable at the grantors option, to
take and enjoy the usufruct of a thing.
To make a person the owner of a corpus of the property without
consideration is Hiba, whilst to make him the owner of the profits
only is Aariat.
 The English term gift is wider than the
Arabic word “Hiba” and the two should not
be confused. Gift is generic term and
comprises a wide class of donations whilst
Hiba is a well defined concept of a Muslim
Law.
 In the Holy Quran, Hibah means to
present something to someone as a gift for
the Lords sake.
 Therefore, in Muslim law, a gift is always
based on religious background, that is for
the sake of Lord as opposed to the concept
of gift in English Law.
 Theearly Arabs gifted only movables.
Consequently, the possession was
handed over immediately with the
intention of gifting the property. The
acceptance and taking over the
possession also was done
immediately. It was not necessary to
have a document in written form.
 TheDonor did not expect anything in
return at the time of making the and
thus such gifts were irrevocable.
Three requisites of a gift under
Muslim Law
1. The manifestation of the wish to
give
2. The acceptance of the Donee either
expressly or impliedly
3. The immediate taking over of the
possession of the subject matter of
the gift
What is delivery of
possession
Transfer of the customary control
of over the thing from the
transferor to the transferee.
Tyabji, 2nd Edition, p.441
In Muslim law the term possession
means only such possession as the
nature of the subject is capable of. Thus,
the real test of the delivery of possession
is to see who - whether the donor or the
donee - reaps the benefits of the
property. If the donor is reaping the
benefit then the delivery is not done and
the gift is invalid. Another characteristic
of Muslim law is that writing is not
essential to the validity of a „gift‟ either
of movable or immovable property
 It is clear that the immediate taking over of
the possession of the property is one of the
essentials of a Muslim Deed of Gift. Hence
a person cannot make contingent or a
conditional gift.
 Under the Roman Dutch law a Donor can
make contingent or conditional gifts, but
such gifts are not considered as valid gifts
under the Shariah Law.
 Under the legal system of Ceylon there was
considerable uncertainty on the law
governing gifts made by Muslims.
 There had been conflicting judicial
decisions on the law governing donations
under the Muslim Law.
In the absence of any enactment dealing with
this aspect of the Muslim law our courts have
relied mostly on the opinions expressed in text
books and that too have found considerable
difficulty.
Affefudeen V Periathambi 14 NLR 295
Held : Donations between Mohammedans are
regulated by the Mohammedan Law. According
to Mohammedan law a donation whether
intended to take effect at once or at some future
period is invalid unless delivery be made by the
donor of the subject matter.
Khan V Marrikkar 16 NLR 425
The law applicable to the donations between
Mohammedans is the Mohammedan law and
not the Roman Dutch law.
Weerasekera V Pieris 34 NLR 281
Held, that the donor created a valid
fidei commissum such as is recog­nized
by the Roman-Dutch law and that the
donor did not intend to make such a
gift as is recognized under the Muslim
law which necessitates the donee
taking possession of the subject-
matter of the gift during the lifetime of
the donor.
 Where the donor does not give possession
the gift would be bad under Muslim law.'
But such a gift may be good under the
Roman-Dutch law. The document must
first be examined in the light of Muslim
law because the parties are Muslims and
have the privilege of donating under that
law. If the terms of the gift are repugnant
to that law then the Roman-Dutch law
applies. The effect of the Privy Council
decision is that you exclude the Muslim
law whenever a donation includes a
subsequent condition.
Sultan V Peiris 35 NLR 57
A Muslim by Deed of Gift gifted the
property in question to his nephews
reserving a life interest.
 The Supreme Court held that the gift
was not a valid one under the Muslim
law as it did not comply with the
requirement of that law that delivery
of possession of the subject matter of
the gift must be made to the Donee in
order to make the gift complete.
 All such conditions are void under
Muslim law. A forfeiture of rights in
favour of another person is bad. A
condition should not be imposed on
the donee except a condition that he
should make a return to the donor.
The test to be applied is not what
system of law the parties had in
mind but the construction of the
deed and the sort of gift it did create.
According to Macdonell C.J.,
If the Donor manifest a sufficiently clear
intention, he can contract himself out of the
Mohammedan law as to gifts altogether.
Henceforward then in examining a deed of gift
from one Mohammedan to another one must
examine the deed as a whole and with regard to
all its terms, to see if it shows an intention to
make such a gift inter vivos as is recognized by
Mohammedan law. If it does show such an
intention, the validity of that gift will be
determined by the rules applicable to a
Mohammadan deed of gift. If it does not show
such an intention yet does show an intention to
make a deed of gift, the validity of that gift will be
determined by the rules applicable to a deed of
gift made under the residuary law, the Roman-
Dutch.
According to Garvin S.P.J.,
There was no authority to be found in our law
for the proposition that a transaction which is
bad as a gift under the Muslim law could be
given effect to as a valid gift under the Roman-
Dutch law. But there is authority for the
proposition that there is nothing in the laws and
customs of the Muslims of Ceylon relating to gift
which-prevents a Muslim from impressing an
otherwise valid gift with a burden in the nature
of fidei commissum and that if he does the
validity of the clause or clauses in the deed by
which such a burden is sought to be impressed
must be tested and determined in accordance
with principles derived from the Roman-Dutch
law
The Muslim law is excluded not
because the donor wished to exclude it
but because he did not intend " to part
with the property in or the possession
of the premises " and did not therefore
intend to and did not purport- to make
such a gift as is understood by the
Muslim law. What he did intend to do
and what he did do was to create a
fidei commissum by a donation to take
effect after his death
The view taken by the Supreme Court
was that as the first part of deed
purported to constitute a deed inter
vivos, the Mohammedan law must be
applied thereto, and as possession of
the premises was not taken by the
donee in the donors life time, the gift
was offensive to the Mohammedan law.
The failure of the gift, resulted in the
failure of the fidei commissum based
upon it.
Abuthahir V Sally 43 NLR 193

A Muslim executed a deed of gift in favour of


one of his sons, reserving to himself and his
wife, if she survives him, the right to- take,
enjoy and receive the rents and profits of the
property gifted, during their lifetime. He also
reserved to himself the right to revoke and
cancel the gift at his will and pleasure. The
gift was also subject to a fidei commissum in
favour of the donee’s children. The donee and
the donor’s wife accepted the gift.
Held, that the deed created a valid fidei
commissum, and was a valid gift under the
general law although between Muslims.
Further held that the judgment in Sultan v.
Peiris was wrongly decided and must be
overruled.
Idroos Sathuk V Sittie Liyaudeen 51
NLR 509
Noorul Muhitha V Sittie Liyaudeen
54 NLR 270

Held, where a fidei commissum is


created by a deed of gift between
Muslims, the validity of the acceptance
has to be determined solely within the
framework of the Roman Dutch Law.
 Further, a Muslim widow is entitled as
natural guardian, to accept the gift for and
on behalf of her minor children, when they
are donees, although the principles of
Muslim law which do not recognize a
widow as the natural guardian of her minor
children.

 that under the Muslim law as received in


Ceylon, and in the circumstances of the
particular case, the mother had the
necessary authority to accept the gift
 Section3 of the Muslim Intestate
Succession and Wakf Ordinance
No. 10 of 1931.
For the purpose of avoiding and
removing all doubts it is hereby
declared that the law applicable to
donations and not involving
fideicommissa, usufructs and trusts
made by Muslims domiciled in Ceylon
or owing immovable property in Ceylon
shall be the Muslim law governing the
sect to which the Donor belongs.
 Provided that,
1. No deed of donation shall be
deemed to be irrevocable, unless it
is so stated in the deed, and
2. The delivery of the deed to the
Donee shall be accepted as evidence
of the delivery of possession of the
movable or the immovable property
donated by the deed.
 Section4 of the Muslim Intestate
Succession and Wakf Ordinance
No. 10 of 1931.
It is hereby further declared that the
principles of law prevailing in the
maritime provinces shall apply to all
donations, other than those to which
the Muslim law is made applicable by
Section 03.
 It is clear therefore that the
donations of immovables involving
fidei commissum and usufructs are
governed by the Roman Dutch law
as applied in Ceylon.
 Trusts created by Muslims, if not a
charitable trust which falls under
the pure definition of Wakfs, are
governed by the provisions of the
Trusts Ordinance.
To be continued…………

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