Abstract
A Very Short Introduction provides insight into what muslim law is, but why it is the way it is. How have laws had to respond to social changes when it comes to the distribution of gift? Since ancient times we have seen rising problems related to the gift distribution among muslim law. How do families deal with the chaos of distribution of gifts? Family law has recently been challenged to keep up-to-date with the social and scientific changes which affect it. What is a gift? What leads to the distribution of gifts? What rights should they have? What are the essentials of Gift? What are the ways of accepting Gifts? What are the new dilemmas which will be faced by families?
Keywords: Muslim law, Gift, Revocation of Gift.
Introduction:
In Muslim law, gifts are called “Hiba”. The gifts in India are governed by Transfer of Property Act, 1872[1]. However, the supply of Transfer of Property Act, 1872 doesn’t apply to Muslim law. English term, ‘gift’ is of a wider connotation and applies to all or any transactions where one transfer’s one’s property to a different with none consideration. The term hiba features a narrow meaning.
Definition of Gift:
According to Ameer Ali, “A hiba may be a voluntary gift inconsiderately of property or the substance of thing by one person to a different so on constitute the done the proprietor of the subject-matter of the gift.” Muslim law allows a Muslim to offer away his entire property by a present inter-vivos, even with the precise object of disinheriting his heirs. Abdul Vs. Ahmed [2]
Perquisites of Gift under Muslim Law:
The hiba to be valid and complete three conditions are to be fulfilled. The very first condition being; the donor must make a suggestion i.e. ijab , an equivalent must accepted by donee i.e. qubool and thus the possession of the property must be subsequently delivered i.e. qabza. If these conditions are fulfilled then it’s a legitimate hijab. Following are the essentials of a legitimate hijab:
1. Declaration
According to the SC declaration is precondition of the validity of a present . The donor must voluntarily declare the offer to form a present . The gift would be voidable at the choice of the creditors if the declaration is tainted with a fraudulent motive on the a part of the donor. There has got to be real and bonafide intention. The declaration has got to be made in presence of some witness.
2. Acceptance
The offer to form a present must be accepted by or on behalf of the donne. Under muslim law the guardian is entitled to offer acceptance on behalf of a minor or an individual of unsound mind. He can even appoint a guardian. If the daddy is alive, he happens to be the only guardian of the property of the minor, after the daddy comes the executor appointed under his will, parental grandfather, his executor appointed the desire.
In certain cases, where there are not any guardians and therefore the minor is under the care and protection of an individual aside from guardian such person can accept the gift on behalf of the minor. just in case of a minor girl who is married and has been living together with her husband after obtaining puberty then the husband can validity accept the gift on behalf of her even within the presence of her father.
3. Delivery of possession
One of the essentials of a legitimate gift is that it should be subsequently delivered to the donee. The gift isn’t valid unless amid the delivery possession. this is often how it differentiates the gift under muslim law and therefore the gift under transfer of property act,1882. No emphasis is laid on immediate delivery of possession under the transfer of property act. The owner should thereby divest himself on the ownership and provides complete control of the property to the donne. If it’s a moveable property then he must deliver the possession and if it’s an immovable property then he should:
a. Vacate the possession alongside all his belongings that might signify his relinquishment of total control.
b. Put the donne in possession
Jamela vs. Abdul Rahman [3]
Ibrahim vs. Noor Ahmed [4]
Mohammed vs. Fakr [5]
Modes of Capacity of Gift under Muslim Law:
1. Mental capacity:
Every Muslim, male or female, married or unmarried, who has attained the age of majority and who is of sound mind has the brain to form a present . The rule of Muslim law of majority, i.e. attainment of puberty, doesn’t apply to gifts. an individual of unsound mind can make a legitimate gift during lucid intervals. The Muslim law-givers recognize the doctrine of ikrash or compulsion, and a gift-deed executed under compulsion isn’t valid. In such a case the gift is voidable, and it are often avoided by the donor whose consent was so obtained.
2. Financial capacity
The Malikis hold the view that an individual under insolvent circumstances or extremely involved circumstances haven’t any capacity to form a present . On the opposite hand, the Hanafis hold the view that insolvency doesn’t create an incapacity to form a present , but the kazi has the facility to render such gift nugatory if it’s made with a view to defrauding the creditors. The Indian courts follow the Hanafi view. In every gift, there must be a real intention on the a part of the donor to transfer property to the donee. And, if a present is formed with an intention to defraud the creditors, the gift is invalid. Abdul Vs. Mir Md [6]
Kinds of Hiba(Gifts):
1. Sadaqah
This is a present with a spiritual motive and is irrevocable. It needn’t be expressly accepted by the donne. one among the mandatory requirements of a legitimate Sadaqah is delivery of possession. Sadaqah are often made to 2 or more persons jointly.
2. Hiba-bil-iwaz
There are two basic elements:
a. A real voluntarily intention on the a part of the donor to form the gift and to divest himself of the entire rights over the property and therefore the vest within the donne.
b. Payment of consideration by the donne-
It contains a component called iwaz or exchange. it’s an independent gift in reciprocally of the primary gift. Therefore, these are two different gifts wherein the parties are but the donor is one gift becomes the donne the another. It also has elements of contract of sale because the wants are like the parties to the contract must be competent, there should be offer and acceptance and there must be consideration also. it’s to be effected with the assistance of a written, attested and a registered document, where the consideration is quite Rs. 10/-
3. Hiba-ba-shart-ul-iwaz
It is a present which is formed with a stipulation (shart) for return from side of the donne. It includes all the essentials of valid gift and once the stipulation is fulfilled by the donne it takes the character of Hiba-ba-shart-ul-iwaz. Until the stipulation is fulfilled the gifts is revocable. Payment of iwaz makes three gift irrevocable.
4. Airyat
Perquisites of Airyat:
a. It are often revocable.
b. It must be transfer of ownership.
c. It must be for a particular period.
d. It doesn’t depend on the heirs of the donne on his death. Airyat is nothing but the grant of a licence, right to enjoy usufruct during a specific time or period and it’s revocable at the choice of the granter.
Subject Matter of the Gift:
All sorts of property over which dominion might be exercised, or anything which might be taken into possession, or which could exist as a selected entity, or as an enforceable right, maybe the subject-matter of a legitimate gift. Muslim law, during this context, makes no distinction between ancestral or self-acquired or between movable and immovable property.
Gift of Musha:
The word “musha” means an undivided share or a part of a property, movable or immovable. Among the Shafis and Ithana Asharis, the gift of musha is valid, if the donor withdraws his dominion and allows the donee to exercise control. Sadiq vs. Hashim [7]
But the rule is otherwise among the Hanafis. the overall rule is thus laid down within the Hedaya, “A gift of a neighbourhood of a thing which is capable of a division isn’t valid unless the said part is split off and separated from the property of the donor, but a present of an indivisible thing is valid.”
The doctrine of musha has been subject to much criticism. it’s been said that the doctrine is “wholly unadapted to a progressive society”. Sheikh Md. vs. Zabeda [8]. The doctrine has been confined to within the strictest rules by judicial interpretation and has been cut-down considerably.
Who can Challenge a Hiba(Gift)?
A stranger cannot challenge the validity of a present on the bottom that the gift is bad as no delivery of possession has been made. a present on this ground are often challenged only the difficulty is raised between the donor or those claiming under him on one side and therefore the done and people claiming under him on the opposite.
Conditional/Contingent Hiba(Gift):
The contingent or conditional gifts are those which are made dependent for his or her operation upon the occurrence of a consistency. A contingency may be a possibility, a chance, an event, which can or might not happen. In Muslim law, contingent or conditional gifts are void.
In Muslim law, a present isn’t rendered invalid, by involving an invalid condition. Hanafi law clearly lays down that in such a case the gift is valid and therefore the condition is valid.
Under Shia law, if the conditions attached to a present is subsidiary, then both the gift and therefore the condition are valid.
Revocation of Gifts:
Although there’s a practice which indicates that the Prophet was against the revocation of gifts, it’s a well-established rule of Muslim law that each one voluntary transactions, including gifts, are revocable.
Modes of Revocation:
1. Revocation of Gift Before Possession
Under Muslim law, all gifts are revocable before the delivery of possession is given to the done. the very fact of the matter is that under Muslim law no gift is complete till the delivery of possession is formed, and therefore, altogether those cases where possession has not been transferred, the gift is incomplete. The revocation of such a present , therefore, merely means the donor has changed his mind and doesn’t want to finish it by the delivery of possession.
2. Revocation of Gift After Delivery of Possession
Mere declaration of revocation by the donor, or institution of a suit, or the other action, isn’t sufficient to revoke a present . Until a decree of the court is passed revoking the gift, the donee is entitled to use the property in any manner, he also can alienate it. Mahboob Vs. Abdul [9]. The revocation of a present may be a personal right of the donor, and, therefore, a present can’t be revoked by his heirs after his death. a present also cannot be revoked after the death of the donee. (There are some exceptions in Hanafi School).
References:
1. India Code https://www.indiacode.nic.in/bitstream/123456789/2338/1/A1882-04.pdf (Visited on Apr 20, 09:05 PM)
2. Abdul Vs. Ahmed (1881) 8 IA 25 (India)
3. Jamela vs. Abdul Rahman 2001 Guj. 175 (India)
4. Ibrahim vs. Noor Ahmed 1984 Guj. 126 (India)
5. Mohammed vs. Fakr (1922) 49 IA 195 (India)
6. Abdul Vs. Mir Md (1886) 11 IA 10 (India)
7. Sadiq vs. Hashim, (1916) 43 IA 212 (India)
8. Sheikh Md. vs. Zabeda, (1889) 16 IA 205 (India)
9. Mahboob Vs. Abdul, 1964 Raj 250 (India)
About the Author:-
This Article is Authored by Aryan Sinha, 3rd Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.
