ESSENTIALS OF GIFT (HIBA)

DECLARATION ACCEPTANCE DELIVERY OF POSSESSION

I. DECLARATION OF GIFT

When a donor makes declaration of gift orally or in writing that must signifies
the clear and unambiguous intention of the donor to transfer the ownership of
property on the other person (donee). The gift made under Muslim in writing is
known as hibanama. It need not to be in stamp paper, attested or registered. In
the case of Kamarunnissa Bibi vs. Hussaini Bibi1 A openly declared a gift of
certain landed property to B in presence of large gathering. When B accepted
the gift and A handed over the possession of the said property to B, the gift was
completed. It was held that oral gift was valid and need not to be registered.
Further in the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul2 it was held
that under Muslim Law, declaration, as well as acceptance of the gift, may be
oral whatever may be nature of property gifted

In case the gift ids made through the deed , registration of that is essential under
certain circumstances. It must be noted that registration by itself will not
remove any defects in the gift i.e. if the formalities of hiba are not followed.
The declaration made by the donor should be clear. A declaration of Gift in
ambiguous words is void.

In Maimuna Bibi v. Rasool Mian3 it was held that while the oral gift is
permissible under Muslim law, to constitute a valid gift it is necessary that
donor should divest himself completely of all ownership and dominion over the
subject of the gift. His intention should be in express and clear words. The
declaration should be free from all the impediments such as inducement, threat,
coercion, duress or promise and should be made with a bona fide intention.

1
(1880) 3 ALL 266
2
(1994) 5 SCC 476
3
AIR 1991 Pat 203

1
Declaration simply signifies the intentions of the donor to make a gift. It is a
substantiation of the intention of the donor to transfer the ownership of the
property to the donee.

Free Consent: The declaration must be made by donor voluntarily and with free
consent. Any gift made by a donor under threat, force, coercion, influence or fraud
is not a valid gift.

Bona fide Intention: while declaration should made by the donor with bonafide
intention (good intention). If the intention of donor is not honest then the gift made
will be held ineffective. A gift made with an intention to defraud the donee is void.

In the case of Hussaina Bai vs. Zohra Bai4, a pardanashin lady was brought from
Nagpur to Burhanpur on the false pretext that her brother-in-law was ill. At Nagpur
she was coerced to sign a gift deed which she believed would not take effect until
her death. She had no opportunity to take advice from others. It was held by the
court that woman had signed the gift deed under compulsion and it was not
voluntary act of her. So the gift made was declared by court as void.

II. ACCEPTANCE OF GIFT

Under Muslim law gift is a contract therefore there must be proposal (declaration)
and acceptance (Qabul). It’s a bialateral transaction which will not be effective
until and unless other party accepts it. Even if gift is made through registered
instrument it requires acceptance of donee.

The acceptance of gift must be made before the death of the donor. It is also very
important to establish the factum of acceptance which can be done by the overt act
of the donee and which would in law amounts to taking possession of property by
the donee. The acceptance may be inferred, and it may be proved by the donee’s
possession of the property or the deed of the gift. So the acceptance will be
presumed if the possession of some interest, right, profit or benefit accrues to one
part, or some forbearance, detriment loss or responsibility is given suffered or
undertaken by the other.

4
AIR 1960 Mad 447

2
In Smt Hussenabi v Husensab Hasan5 a grandfather made an offer of a 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.

III. DELIVERY OF POSSESSION

It is important when a donor is making gift in favour of donee he should divest

himself completely of all ownership and dominion over the subject of the gift.
Delivery of possession is essential to validate the gift made if the subject matter of
gift is susceptible of. If the donee is minor or lunatic the gift can be made in his or
her favour but the acceptance shall be made by the legal guardian of the minor or
lunatic.

Whether the delivery of possession of possible or not depends of the subject matter
of the gift and will vary as per the fact and circumstances of the each case. A gift
with the reservation of possession by the donor during his life is void. Possession
must be delivered of movable and immovable property. The delivery of possession
may be actual or constructive. In case the tangible property is being delivered the
making an entry in books of record or deposits in the name of both donor and
donee is not sufficient delivery as held by the court in the case of Mohd. Aslam vs.
Khailul6.

The delivery of possession may be:

I. ACTUAL DELIVERY OF POSSESSION

II. CONSTRUCTIVE DELIVERY OF POSSESSION

I. ACTUAL DELIVERY OF POSSESSION

In case the subject matter of the gift can be physically handed over to the
donee it is being known as actual delivery of possession. The actual delivery of
5
AIR 1989 Kant 218.
6
AIR 1935 BOM 84

3
possession is possible in case the gifts are of tangible and movable property.
Where the property is immoveable the donor must give up all dealings with the
property and place it at the discretion and disposal of the donee. In case the tenants
are present in the gifted property delivery may be given by asking the tenants to
pay rent to the donee. If the property is adversely possessed by another person its
duty of donor to take possession for the property by himself and deliver it to the
donee.

II. CONSTRUCTIVE DELIVERY OF POSSESSION7

Constructive delivery of possession is sufficient to constitute a valid gift in the

following two situations:

 Where the Property is intangible, i.e. it cannot be perceived through senses.

 Where the property is tangible, but it’s actual or physical delivery is not
possible.

In case donor handed over the keys of the house which was subject matter of gift it
will be construe that constructive delivery of possession is made and the gift will
be completed.

Under Muslim law, Registration is neither necessary nor sufficient to validate the
gifts of immovable property.  A hiba of movable or immovable property is valid
whether it is oral or in writing; whether it is attested or registered or not, provided
that the delivery of possession has taken place according to the rules of Muslim
Law.

In the case of Jamil-un-Nissa vs. Mohammad Zia8, a co-sharer in a village was

exclusive possession of a piece of open land. He gifted the same to another co-
sharer of the village. The gift deed declared that the possession had been delivered
to the donee. The court held that the gift is valid and there was delivery of
possession.
DELIVERY OF POSSESSION COMPLETED

In case of the tangible property the gift is completed only after the actual delivery
of possession that means the donee will be in possession of the subject matter of
the gift.
7
https://www.lawctopus.com/academike/concept-of-gift-under-muslim-law/
8
(1937) ALL 609

4
Whereas constructive delivery is completed as soon as donee starts getting
benefits, rights, interests directly or indirectly from the gifted property. This is
applicable in case the subject matter of the gift is intangible or incorporeal. The
donor have do such act that shows his or her clear and unambiguous intention to
relinquish all claims, interests or benefits from the gifted property.

In our country there are two theories which give a legal presumption of the
completion of constructive delivery of possession and they are:

i. Benefit Theory
ii. Intention Theory

Benefit Theory

According to this theory the constructive delivery of possession will be completed

as soon as the donee gets the all benefits arising out of gifted property and it can be
said gift is completed.

Intention Theory

As per this theory the constructive delivery of possession will be completed on the
specific date when the donor intends to transfer the possession to donee. This
intention can be proved by the fact and circumstances. The court will accept this
only when the bona fide intention to complete the gift is thoroughly established by
the donor and in that case it is not really important to prove from which date
actually the donee reaps the benefits.

PERSONS ENTITLE TO CHALLENGE DELIVERY OF POSSESSION

When a gift is made only two people are involved in it that one is donor who gives
gift and another one is donee who accepts it. Therefore these two people (donor
and donee) are only entitled to challenge validity of the gift made on the specific
ground of delivery of possession whether has taken place and completed or not. No
third person or stranger is in any case can challenge the validity of the gift on the
ground of delivery of possession held in the case of Sayed Eqbal vs. Rabia Bee9.

A mother gifted a house to her daughter which was in possession of a tenant. The
tenant residing the house was directed by mother to pay rent to her daughter. It was
9
(1984) 1 An WR 300

5
held that the tenant has no locus standi (the right or capacity to bring an action or
to appear before the court) to challenge the title of the daughter claiming that the
possession of the property was not delivered10.

DELIVERY OF POSSESSION NOT REQUIRED

As it was discussed earlier that a gift will be completed on the moment the subject
matter of the gift is delivered from donor to donee through actual or constructive
delivery of possession. But there are certain exceptions to this general rule that
means even without delivery of possession gift will be considered as completed
and they are as follows:

i. Donor and donee lives jointly in gifted property;

ii. Gift by husband to wife or wife to husband;
iii. Gift by guardian to his or her ward;
iv. Gift of the property which was already in possession of donee.

i. DONOR AND DONEE LIVES JOINTLY IN GIFTED PROPERTY

Any formal delivery of possession is not required in case subject matter of the gift
is a house and both donor and donee resides in that house jointly. The gift is
completed by the donor emphasizing and signaling a clear and unambiguous
intention to transfer the possession of his part and to divest himself of all control
over the subject of the gift11. There must be some overt act from the donor which
will show his or her clear intention to transfer the possession.

The gift made by a muslim lady in favour of the her nephew of a house where both
of them residing jointly without any physical transfer of property held valid by the
Allahabad High Court on the ground that the papers were already delivered to
donee by donor, further donee consented to enter the name of donee in the
municipal records and after such gift the rents were collected by donee in the case
of Humera Bibi vs. Najmunnissa 12.

10
Y. S Chen vs. Batubai 1991 MP 90
11
Aftab vs. Tayiba (1973) ALL 53.
12
, (1905) 28 ALL 147; Ibrahim Bivi vs. K.M.M Pakkir Mohideen, AIR 1970 Mad

6
 ii. GIFT BY HUSBAND TO WIFE OR WIFE TO HUSBAND

Marriage is a institution which bring two different people under a same roof. It is
known to us that after marriage girl have to reside in her husband’s house. They
have to perform their marital obligations staying under same roof. Therefore when
a gift is made by a husband to his wife or by a wife to her husband delivery of
possession is not required to complete the gift. Mere mutation of name and
delivery of deed in favour of donee is sufficient to complete the gift made. But in
the case of Mohammad Sadig vs. Fakr Jahan 13, it was held by the Hon’ble Court
that even mutation is not required to complete the gift in case the deed of gift is
already being possessed by the donee.

In the case of Noohu Pathuammal vs. Ummathu Amina, the Madras High Court
held that husband’s continuation staying in the gifted house with the wife or
receiving rents even after gift of that house was made in favour of his wife will not
invalidate the gift. The legal presumption in such cases will be as the joint
accommodation was on the basis of martial obligations and rents are being
collected by husband on behalf of his wife.

iii. GIFT BY GUARDIAN TO HIS OR HER WARD

Under the chapter of guardianship it was already discussed that a minor or insane
person needs guardian who will take care of them. As, a minor because of his
immature understanding and insane person due to his mental incapacity will not be
able to take proper care of him or herself. While discussing the donee it was also
explained that a minor or insane person can be a donee. Whereas, acceptance of
gift by the donee is one of very important element of a valid gift. Therefore when
gift is made in favour of minor or insane person the acceptance of gift needs to be
made by the guardian. In case if a guardian is making gift then the delivery of
possession is not required.

13
(1931) 59 IA 1- In this case no mutation of record was made in favour of wife of agricultural land. But the
husband has declared that he had gifted the same to her and the deed was in her possession. The court held that
this is a valid gift.

7
A parent may make gift in favour of minor child without delivery of possession
and such gift is valid14.

This exception is applicable only in case the gift is made by legal guardians or
parent. In a case grandfather makes gift of his property to his minor grandson and
the delivery of possession of such property is not provided to the father of that
minor child who was alive when the gift was made. The court heldthat such gift is
not valid as grandfather has to deliver the possession of the property to the legal
guardian (father) of the minor child (donee) in the case of Musa Miya vs. Kadear
Bux15.

iv. GIFT OF THE PROPERTY WHICH WAS ALREADY IN

POSSESSION OF DONEE

In case the donee is in possession of the property gifted prior to gift made to him or
her by the donor the formality of delivery of possession is not required to be
fulfilled.

14
Natho vs. Hadayat Begum, 1948 Lah 197.
15
(1928) 55IA 171.