CONCEPT OF GIFT AND WASIYAT UNDER MUSLIM PERSONAL LAW

(Project towards the fulfillment of the assessment in subject of Family Law-II)

SUBMITTED BY: SUBMITTED TO:

Rizul (1229) Mr. Ashok Wadje

Sarah (1234) Faculty of Law

Shivani Meena (1241) Submitted on:

7th Semester 23rd August, 2017

Section-B

B.A.LL.B.(Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

Summer Session

(July-November, 2017)

TABLE OF CONTENT
 ACKNOWLEDGEMENTS

We take this opportunity to express our profound gratitude and deep regard to our guide and
mentor Ms. Preeti Badola for her exemplary guidance, monitoring and constant encouragement
throughout the course of the project. We would further like to thank her for giving us this
opportunity to do this project by instilling her faith in us. Further, we would like to extend our
gratitude towards National Law University, Jodhpur which as an institution gave us the
platform to carry out our research. We are also grateful to our parents for their constant
guidance and support.
 RESEARCH METHODOLOGY
SUBJECT: Family Law-II

TOPIC: Concept of Gift and Wasiyat under Muslim Personal Law

The method of research opted by us to complete this project was doctrinal research from
primary and secondary sources. A major part of the project has been researched through the
Books and Commentaries on Family Law on the topic by scholars on the subject. Articles
available on web databases and cases have also been referred to.

The method of research opted by us in this project is doctrinal research from both online and
offline data sources. A major portion of the research is based on articles by different scholars,
analysis and critiques published by layers, academicians and law firms and general
commentaries available on legal databases. Other sources like opinions and comments by
different authors from a financial and commercial background have also been referred to. The
diversity of opinions has immensely contributed to the researchers’ ability to appreciate the
case from different perspectives and have led to a more comprehensive and holistic
understanding to gaining a better commercial understanding of the matter.
 INTRODUCTION

Gift is a transfer of property where interest is transferred from one living person to another,
without any consideration. It is a gratuitous in nature. The person to whom the gift is made is
the donee and by whom it is made is the doner

This is the general definition that is accepted by all the religions, including Muslim law. As per
the Muslim Law, a gift is called as Hiba.

Under English laws, right in property is classified by a division on the basis of immoveable
and moveable (real and personal) property. Rights in land described as “estate” under English
Law do not always imply only absolute ownership but it also includes rights which fall short
of it and are limited to the life of the grantee or in respect of time and duration or use of the
same.1

Under Hindu Law, gift is regarded as the renunciation of the property right by the owner in the
favor of donee. According to Jimutvahana, under Hindu law’s concept of gift, ownership is not
created by acceptance but by renunciation of the donor. But however Mitakshara school of
hindu law considers acceptance as an important ingredient for gift. The donor can divest his
interest by renunciation but cannot impose the same on the donee if he is not ready to accept.2

Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650
AD. In general, Muslim law draws no distinction between real and personal property, and there
is no authoritative work on Muslim law, which affirms that Muslim law recognises the splitting
up of ownership of land into estates. What Muslim law does recognize and insist upon, is the
distinction between the corpus of the property itself (called as Ayn) and the usufruct in the
property (as Manafi). Over the corpus of property the law recognises only absolute dominion,
heritable and unrestricted in point of time. Limited interests in respect of property are not
identical with the incidents of estates under the English law. Under the Mohammedan law they
are only usufructuary interest (and not rights of ownership of any kind). Thus, in English law
a person having interest in immoveable property for limited periods of time is said to be the
“owner” of the property during those periods and the usufruct is also regarded as a part of the
corpus. On the other hand, in Muslim law, a person can be said to be an “owner” only if he has
full and absolute ownership. If the use or enjoyment of property is granted to a person for life

1
Ashish Gupta, Points to be considered while drafting Gift Deed, Economic Times.
http://economictimes.indiatimes.com/points-to-be-considered-while-drafting-gift-deed/articleshow/4626685.cms
2
Kesari, U.P.D., ‘Modern Hindu Law’, Central Law Publications, Allahabad, 2007, p431
or other limited period such person cannot be said to be an “owner” during that period. The
English law thus recognises ownership of the land limited in duration while Muslim law admits
only ownership unlimited in duration but recognises interests of limited duration in the use of
property. This basically differentiates Muslim Law’s concept of property and gift from that of
English Law.3

Under Muslim Law, the religion of the person to whom gift is made is not relevant. In India,
there is a separate statute that governs the matters related to transfer of property. The Transfer
of Property Act, 1882 under Chapter VII talks about gifts and the procedure for making the
same. Yet as per section 129 of the Act, the Transfer of Property Act, 1882 does not apply to
the Muslims making gift.4

CONCEPT OF GIFT UNDER TRANSFER OF PROPERTY ACT

According to Section 122 of Transfer of Property Act, 1882 ‘Gift’ is defined as the transfer of
certain existing moveable and immoveable property made voluntarily and without
consideration, by one person called the donor, to another, called the donee, and accepted by or
on behalf of the donee. Such acceptance must be made during the lifetime of the donor and
while he is still capable of giving. If the donee dies before acceptance, the gift is void.

Gift, as defined in this section, is required to be a voluntary transfer of ownership in some

existing property made gratuitously and without consideration. The transferor is called donor
and the transferee is called donee. This section applies to those gifts that are inter vivos or an
absolute gift. Property under the above section can be both movable and immovable but
however have to be tangible in nature. In order to constitute a valid gift, there must be an
existing property as already earlier elaborated. As there is absence of consideration it would
not be a contract as defined in Contract Act.

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.5

Essential of gift
The essentials of the gift are as follows

3
Dr. Tabrez Ahmad, Comparative study of Gift under Islamic Law and Transfer of Property Law: Indian
perspective.
4
http://wahabohidlegalaid.blogspot.in/2013/03/hiba-gift.html, accessed on 14/4/2014.
5
Id.
 1. Doner and Donee
The donor is the person who gives. The donor must either be the owner of the property or
should possess an express authorization from the owner to execute a gift.6 A person who is
incompetent to contract cannot transfer his property, and therefore gift by the minor would be
void. A guardian of the property of the minor cannot make the transfer of the property without
the express permission of the court and if he exceeds the power and execute the gift the same
would be void.7

The donee on the other hand is the person who accepts the gift. The words 'accepted by or on
behalf of the donee show that the donee may be a person unable to express acceptance or is a
person incompetent to contract. Therefore a minor can be the done. On behalf of a minor, a
natural guardian can accept a gift containing a condition that the person nominated in the gift
deed shall act as a manager of the gifted property. Such acceptance would amount to
recognition by the natural guardian of the nominated person as the manager or the agent of
minor for the purpose of such property.8 The donee must be an ascertainable person therefore
the public or an unregistered society cannot be the done however a gift can be made in favour
of two or more done but they must be the ascertainable person.

2. Subject matter of a Gift

Gift must be made of existing movable or immovable property capable of being transferred.
Future property cannot be transferred. The share obtained after partition of the joint family
property can be gifted but not when the coparcener are joint because their interest would be
fluctuating.9 Even a gift of property that is obtained after a preliminary decree of partition is
passed by the court is valid.10

3. There must be transfer of ownership or creation of interest by the donor

As in case of a sale, there must be a transfer of all the rights in the property by the donor to the
donee. The doner is competent to create either an absolute interest in the property in favour of
donee or even a limited interest. It may, however, be noted that it is permissible to make
conditional gifts. The only restriction is that the condition must not be repugnant to other
provisions of the Transfer of Property Act, 1882 (Section 10 to 34).

6
Chand Bee v. Hameed Unnissa, AIR 2007 AP 150.
7
Lakhwinder Singh v. Paramjeet Singh, 2003(4) RCR (civil) 26 P&H.
8
K. Balakrishnan v. K Kamalam, AIR 2004 SC 1257
9
Munnilal Mahto v. Chandrashekhar Mahto, AIR 2003 Pat 66
10
Renu Devi v. Mahendra Singh, AIR 2003 SC 1608
 4. Gift must have been made voluntarily:
The offer to make the gift must be voluntary. A gift therefore should be executed with free
consent of the donor. This consent should be untainted by force, fraud or undue
influence.11Mere relationship between the donor and donee is not a conclusive of the fact of
the exercise of undue influence and it must be proved that the transaction is unconscionable.
For proving that the deed was exercised with free and voluntary consent of the doner it must
be proved that the physical act of signing the deed must coincide with the mental act i.e. an
intention to execute the gift. If both the elements are present the gift is executed with free and
voluntary consent and would be valid.12

5. Acceptance of the gift

In order to constitute a valid gift, the pivotal requirement is acceptance thereof. The gift must
be accepted by the donee himself. Acceptance can be validly given by a minor donee himself
or by his mother or guardian . If the guardian gives the acceptance on behalf of the minor the
minor on attaining majority can either accept it or reject it. If a gift is made to two or more
persons, one of whom is capable of taking and the other is not, it has been held that the former
will take the whole of the property.13 Acceptance must be made during the lifetime of the donor
and while he is capable of giving. According to Section 122 if the donee dies before the
acceptance of gift the gift is void. No particular mode of acceptance is required and the
circumstances throw light on that aspect. Acceptance should be clear and unambiguous. The
acceptance need not be express and may be inferred. Factum of acceptance can be established
by different circumstances such as donee taking a property or being in possession of deed of
gift alone. If a document of gift after its execution or registration in favour of donee is handed
over to him by the donor whom he accepts, it amounts to a valid acceptance of gift in law.

6. Consideration
A gift is a transfer. But it does not contain any element of consideration. Complete absence of
monetary consideration is the main, hallmark, which distinguishes a gift from a grant, sale,
exchange, or any other transactions for valuable or adequate consideration. Where there is any
equivalent of benefit measured in terms of money in respect of a gift, the transaction ceases to
be a gift. Love, affection, spiritual benefit and many other factors may enter in the intention of
the donor to make a gift. The word 'consideration' has not been defined in the T.P. Act, but

11
Samitra Devi v. Shukwinder Pal, AIR 1990 P&H 23
12
Shiv Kishan v. Hari Narain AIR 2008 (NOC) 567
13
Habibb Ullah Bhat v. Jana, AIR 2003 J&K 32.
means the same as in the Contract Act excluding natural love and affection. Gift in lieu of
conferring spiritual benefit and moral benefit or a promise to look after the donor in her old
age or through o out the life are transfer without consideration, and is to be treated as a gift. A
minor may be a donee and the minor's natural guardian can accept the gift on behalf of the
minor. But if the gift is onerous,14 the obligations cannot be enforced against the minor during
his minority. But on his attaining majority, the minor must accept the burden or return the gift.

TRANSFER HOW EFFECTED

Where immovable property is gifted the transfer must be effected by registered instrument
signed by or on behalf of the doner and attested by atleast two witnesses.15 A gift of immovable
property is invalid without a register instrument even if the intended donee is put into
possession. Title cannot pass without there being a registered deed of gift.16

For the purposes of movable property the transfer may be effected either by a registered
instrument signed by the transferor or by deliver of the subject matter of the gift. 17 Such
delivery may be made in such a way as sold goods may be delivered. A gift after the delivery
of possession becomes irrevocable18 but in order to be valid a gift should be followed by
possession and if the physical property is capable of possession, non-delivery of the property
makes a gift invalid.19 Delivery of possession of is not an essential requirement for gifts of
immovable property except in the case of Muslim Law This position of law is made quite clear
by the decision of the Supreme Court in Renikuntla Rajamma Vs. K.Sarwanamma which is
quite consistent the Statutory provision.20

SUSPENSION REVOCATION OF GIFT UNDER TRANSFER OF PROPERTY ACT

Section 126 of Transfer of Property Act, 1882 deals with when gift may be suspended
orrevoked. According to it, the donor and donee may agree that on the happening of any
specified event which does not depend on the will of the donor a gift shall be suspended or
revoked but a gift which the parties agree shall be revocable wholly or in part, at the mere will
of the donor is void wholly or in part as the case may be.

14
Section 127, Transfer of Property Law 1882.
15
Commissioner of Income Tax Jaipur v. Hiremal Nawalakha, AIR 2001 SC 3648.
16
R.N. Dawar v. Ganga Saran Dhama, AIR 1993 Del 19
17
Rameshwar Narain Singh v. Biknath Koeri, AIR 1923 Pat 23
18
Kashi Ammal v. Vellat Gounder, (1980) 2 Mad LJ 232.
19
Mukhtar Kaur v. Gulab Kaur, AIR 1977 Punj 257
20
AIR 2014 SC P.2906
A gift may also be revoked in any of the cases in which if it were a contract it might be
rescinded. Such as aforesaid a gift cannot be revoked. Nothing contained in this section shall
be deemed to affect the rights of transferees for consideration without notice.

Gift is transfer of ownership without consideration. Like other transfers, gift too can be made
subject to certain conditions. Donor may make a gift subject to a condition of it being
suspended or revoked. But, such gifts would then be governed by those provisions of this Act
which regulate conditional transfers. Accordingly, if a gift is made subject to condition of it
being revoked in future the condition must be valid and enforceable under those provisions.
Section 126 lays down two modes of revocation of gift:

(i) Revocation by mutual agreement of donor and donee.

(ii) Revocation by rescission as in the case of contracts.

Revocation by Mutual Agreement:

Donor and done may agree that the gift shall be suspended or revoked upon happening of an
event not dependant on the will of the donor. The condition revoking the gift must be express;
it should not be merely in the form of a wish or desire. In other words, the condition on the
non-fulfilment of which the donor may revoke the gift must be expressly laid down in the gift.
A gift of certain properties was executed in lieu of the past and future services rendered by
done to donor. But failure of done to render services to donor or to maintain donor in future,
was not specified to be a condition for revocation of the gift deed. The Himachal Pradesh High
Court in the case of Mool Raj v. Jamma Devi21 held that since the condition for revocation of
gift upon donee’s failure to render services to the donor was not laid down in the deed, it was
unconditional gift and, therefore, cannot be revoked by the donor.

However, even though a condition is not laid down in the gift deed itself, and has been provided
under a mutual agreement separately but forms part of the transaction of gift, the condition
would be valid and enforceable.22

The condition upon which a gift is to be revoked must not depend solely on the will of the
donor. A gift revocable at the pleasure of donor is no gift at all. The condition or stipulation
providing for revocation must have been mutually agreed upon at the time of the gift. If such
agreement is made after completion of gift, since the gift has already become absolute, it cannot

21
Mool Raj v. Jamma Devi, AIR 1995 HP 117.
22
Thakur Raghunathjee Maharaj v. Ramesh Chandra, AIR 2001 SC 2340.
be revoked. However, it’s not necessary that stipulation for revocation is given in the deed of
gift itself. What is necessary is that stipulation and gift both are made at the same time. They
might be in two separate documents but must form part of the same transaction. That is to say,
the stipulation must relate to the same gift which is to be revoked.

The condition for revocation of gift is a condition subsequent. It must be valid under the
provisions of law given for conditional transfers. The condition totally prohibiting the
alienation of property is void under Section 10 of this Act. Therefore, if the gift is made
revocable with such condition, the condition itself being void, the gift is not revoked.23

Revocation by Rescission as Contracts:

Gift is a gratuitous transfer of ownership made voluntarily. If it could be proved that the gift
was not made voluntarily, i.e., the consent of the donor was not free, the gift must be revoked.
Gift is always preceded by an express or implied contract; offer by donor and acceptance by
done. If the preceding contract itself is rescinded or revoked there is no question of taking place
of transfer (gift) made under it. Accordingly, under Section 126 a gift is revoked also on any
of the grounds on which it might be rescinded has it been a contract. Section 19 of the Indian
Contract Act provides that “Where consent to an agreement is caused by coercion, undue
influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the
party whose consent was so obtained”. Thus, where the gift is not made voluntarily because of
any of the factors mentioned above, the gift may be revoked by the donor. It is to be noted that
this section deals with revocation which means rescission or repudiation of gift; it does not deal
with cases where the gift is void, e.g., for want of donor’s tide. So, where the donor’s consent
has been obtained by coercion, undue influence, fraud or misrepresentation the donor has
option to repudiate or revoke the gift. If he does not exercise this option, the gift is not revoked.
Gift may be revoked on the above mentioned grounds only by the donor, he cannot assign this
right to any other person. However, after donor’s death, his legal heirs may sue for the
revocation of gift on any one of these grounds.

The period of limitation for the revocation of gifts on the ground of fraud, coercion,
misrepresentation or undue influence is three years from the date on which such facts are
known to the plaintiff (donor).24 The right to revoke the gift on the above mentioned grounds
is lost when the donor ratifies the gift either expressly or by his conduct.

23
Jagdeo Singh v. Nandan Mahto, AIR 1982 Pat. 22.
24
Art. 59, Indian Limitation Act, 1963.
No Revocation on any other ground: Except on the ground of

a) condition subsequent not depending on the pleasure of the donor and

b) on the grounds justifying of a contract, a gift cannot be revoked on any other ground.

A gift deed was validly executed in favour of the done. It was held that a simultaneous claim
by the donor that the gift deed was revoked unilaterally by him and lodged for registration was
not valid as there was no participation by the donee.25

It is to be noted that the Muslim law had laid down different rules with respect to gift. A clear
reading of Sec 129 of the Transfer of Property Act makes clear that Muslim Law of gifts
remains unaffected by the above provisions of the Transfer of Property Act. Muslim gifts enjoy
protection from Transfer of Property Act. The rules of Muslim with respect to Gift will be
discussed below in further chapters.

25
Sheel Arora v. Madan Mohan Bajaj, AIR 2009 NOC 333 (Bom).