What is Gift

Gift is a transfer of property by the donor {Giver, One who owns the property} In favour of Donee {To whom the gift is made} Without taking any consideration {price} from the Donee. Gift is immediate and unqualified transfer of the corpus of the property without return. It is the conferring of the property without consideration. It is a transfer of property, made immediately, And without any exchange, by one person to other and accepted by our on behalf of the latter.

One of the briefest but most famous seeing of the prophet{PBUH} Is the Thadun Tahabua {Exchange gift for it increase mutual love}. For more than 14 centuries, exchanging gifts has become a noble tradition among Muslims all over the world. Law of Hiba has this tradition as its starting point, and Muslim jurists have evolved a very refined system of Hiba law.

According to Abdul Rahim Gift is a transfer of a determinate Property without an exchange. Juristically, it is treated as consisting of proposal or offer on the part of the donor to give a thing and of acceptance of it by the Donee. Until acceptance, the gift has no operation.

According to Mullah 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.

What are the Types of gift 

There are two types of gifts which are as under

1. Hiba-bil-iwaz:  hiba means gift and iwaz means consideration or return. Hiba-bil-iwaz , is therefore, a gift with an exchange or a gift for consideration.

2 Hiba-shart-ul-iwaz: Hiba is gift and Shart means situations and hiba shart ul iwaz means a gift made with stipulation for return. Unlike in hiba bil iwaz, the payment of consideration is postponed.

Essentials of a gift.

• Donor {Donor must be a Muslim}

• Property {Movable or immovable} {Donor must have ownership over the property}

• Delivery of possession {delivery is the heart and soul of gift}

• Donee

• No consideration {without money}

There are three essentials of valid gift.

• Declaration of Hiba by the donor {intention}.

An oral declaration may validly create a gift. It is not necessary that a written gift Norma must be executed. Intention is necessary component for any action in Islamic law.

Case Laws in relation declaration are described as follows:

Md. Hesabuddin v. Md. Hesaruddin, (1983), the Guwahati High Court found that a gift given by a Muslim lady and not inscribed on stamp paper was legal.

State of U. P. v. Sayed Abdul Jalil (1972), the Supreme Court held that "the declaration is one of the major formalities that have to be fulfilled for a gift to be termed as valid". A declaration must be clear and free from ambiguity. Such a declaration can be oral or written.

Ilahi Samsuddin v. Jaitunbi Maqbul (1994), the Supreme Court ruled that under Muslim law, the statement made by the donor and the acceptance made by the donee can both be oral, regardless of the form of the property. The statement and acceptance stated in writing are done through a gift-deed. The Hibanama may not be made on the stamp paper and is not required to be registered. The donor's declaration should be explicit. A statement of gift in confusing wording is considered void.

Maimuna Bibi v. Rasool Mian, (1990), Patna High Court in this matter held that while oral gifts are acceptable under Muslim law, a legal gift requires the giver to totally relinquish all ownership and control over the subject of the gift. His purpose should be expressed in direct and plain language. The declaration should be devoid of any barriers, such as incentive, threat, compulsion, duress, or promise, and it should be made with a genuine purpose.

• Acceptance of Hiba, expressly or impliedly, by or on behalf of the Donee.

A gift is only regarded as valid in Muslim law if it is accepted by the recipient. If the donee does not accept the gift, it is invalid. A minor's legal guardian may receive the gift on their behalf.

A donee can be of any religious origin, and a hiba in favor of a juvenile or female is legal. A kid born alive within six months of the declaration date is a competent donee. Juristic persons might also be honored with a present. Any authorized guardian, including the father, Father's Executor, Paternal Grandfather, and Paternal Grandfather's Executor, may receive the gift on behalf of a minor or insane individual.

In the case of Munni Bai v. Abdul Gani (1959), it was held that an acceptance may be made expressly or impliedly.

• Delivery of the position of the subject matter of HIBA to the done.

When the donor makes a declaration of gift and the donee accepts. The possession of the thing should be given to Donee. Delivery of possession may be actual or constructive.

There are certain exceptions where the delivery of the possession is not necessary

• Doner and donee resides in the same house.
• Gift by husband to wife or vice versa
• Gift by father or mother to child.
• Gift to donee already in possession.

General rules of gift.

However, there are certain rules which are necessary to be followed and same shall determine the validity of gifts:

• There shall be offer from the donor.

• There shall be acceptance from the donee of the offer of donor.

• There shall be immediate delivery of possession from donor to Donee of the subject matter of the gift {movable and immovable} and the immediate taking of possession by the Donee.

• There shall be no consideration {price} given in exchange of gift, if it is so then it is a sale not a gift.

• The whole process shall be completed during the lifetime of donor and Donee.

• The donor must be competent of making gift i.e. he must have attained the age of majority, with sound mind, understanding the nature of the transaction, with free consent i.e. free from any duress, undue influence, fraud.

• The donor must not be compelled to make the gift of the property.

• The donor must not be a minor in any case, however Donee can be minor.

• The Donee must accept the offer of donor. He must take position of such property. In case the gift is made in favour of minor, then in such case guardian of such minor shall take possession of such property till the minor attains the age of majority.

• Writing is Not essential for the validity of gifts though writing is preferable for evidential value of authenticity. Oral gifts are otherwise valid in Islam. However, section 123 of the transfer of property act, 1882 provides that a gift of immovable property must be affected by registered document and in case of movable property registration or by delivery of position. But the provisions of section 122 to 129 do not apply to Muslim gifts as is laid down in section 129 of the act.

Gift in favour of children.

The gifts were traditionally made in favour of those persons who could not inherit the property and gifts were generally made out of love and affection.

In case where a donor intends to gift his entire property in favour of all of his/her children whether male or female, then such gift is to be made equally irrespective of gender is as per Hanafi, Maliki, Shafi School. However according to Hanabli School in the matter of gift 2:1 rule will be followed.

In case where a donor intends to gift only a portion of his property to any of his children, i.e son or daughter, such gift is also valid.

In case where a donor gifted his entire property to only one of his child excluding all other children, then such gift is totally invalid.

Gift during death bed {maraz-ul-maut}.

Where a person makes a gift during the illness which is likely to cause his death, in other words, when a gift is made at the death bed, such gift do not take effect by gift but takes effect of the will only i.e. one third 1/3 of the property takes effect in favour of ligatee and not beyond in any case.

 in Masood ali v. Mohammad khan (1957)

It was held that, where a disease that is lingering to begin with becomes grave and reaches a point where imminent death becomes evident to the sufferer and in fact happens, it will be called Maraz-ul-maut.

Essential Conditions for Marz-ul-maut: The Supreme Court in Commissioner of Gift Tax, Ernakulam v. Abdul Karim Mohammad (1991) has given three tests to determine whether an illness is to be regarded as marz-ul-maut or not. According to the court, there must be:

• Proximate danger of death

• Some degree of subjective apprehension of death in the mind of the sick person; and
• Some external indicia chief among which would be the inability to attend to ordinary avocations

A gift made by an individual during marz-ul-maut is regarded as both a gift and a Will (Wasiyat). It must satisfy the three essential elements of a valid gift: a declaration by the donor, acceptance by the donee either personally or through a competent representative, and immediate delivery of the gifted property during the donor's lifetime. In addition to this, as it is also treated as a Will, it cannot be made of more than one-third of the total property unless the heirs whose share would be adversely affected give their consent for the validity of the excess bequest.

Where Donor Recovers from Illness:

Where a gift is made during an apprehension of death, and the donor recovers from the illness, this would not be called a gift made during marz-ul-maut and would operate as an ordinary gift.

Burden of Proof: The initial burden to prove the requirements of marz-ul-maut is on the person who sets up such a plea.

Case Laws

In Fazal Husain Khan v. Ali Husain And Ors (1914), it was held that a donation given under Marz-ul-Maut is only valid if it represents one-third of the deceased's property. This principle applies in Hanafi law, where a Marz-ul-Maut gift to one heir is only legitimate if the other heirs agree. Such donations are not permitted among Ismailia Shias unless the other heirs approve.

In Commissioner Of Gift Tax v. Abdul Karim Mohd (1991), it was held by the Supreme Court that transfers made under Marz-ul-Maut are exempt from gift tax.

Gift made to spouse

Gift made to the spouse when completed in all respects cannot be taken back in any case. Similarly, the gift which are given to the bride or groom at the time of marriage by the in laws or spouse cannot be taken back or demanded back. It is observed that at the dissolution of marriage, gifts in the form of gold ornaments or some other items are demanded back. This is completely invalid as such gifts are irrevocable.

Revocation of gift.

There is a clear Hadith Where the prophet of Allah has equated that person who demands gift back with a dog who vomits and takes it back. Therefore, it is condemnable to revoke or demand gift back. Therefore, a person at the first instance is not compelled to make gift but if he or she does so, it must be voluntarily out of love and affection without any fear or coercion. No person can claim gifts as a matter of right from another person. But once a person may gift in favour of another person completing all the essentials of the same, then subsequently donor cannot dispossess the donee of the same, in such case, the Donee as a matter of right can claim such possession back.

what is gift of musha

Musha refers to an undivided share or part in a property, and if such undivided property is gifted without being divided it may be unclear which portion of the property was gifted such property may be movable or immovable. According to Hanafi, doctrine of Musha, gifting a share in co-owned property is considered invalid unless there is both partition and actual delivery of that specific part of the property to the recipient. However, if the co-owned property cannot be divided or partitioned the doctrine of Musha does not apply.

Property Incapable of being Divided: A gift of an undivided portion in a property (Musha) that cannot be split is lawful. The 'Doctrine of Musha' does not apply when the property forming the subject matter of the gift is indivisible.

Property Capable of Division: In cases where the subject of a Hiba is Musha-divisible, the Hanafi principle of Musha applies. According to this principle, the gift is not considered valid unless the particular share being gifted is separated by the donor and physically handed over to the recipient. However, according to the Hanafi doctrine of Musha, if the gift

is made without partition and actual delivery of possession, it is not void from the beginning; instead, it is considered irregular.

Exception to Musha: Even in the Hanafi

School, the following qualities, even if divisible, do not have to be divided before the gift:

1. When the gift is given to a co-heir
2. A gift of a stake in a limited corporation
3. A gift of a portion in some freehold property in a business town
4. Zamindari shares are given as gifts

What is a gift (Hiba) under Muslim law?

A gift under Muslim law, known as Hiba, is the voluntary transfer of property or ownership by one person (donor) to another (donee) without any consideration. It is a unilateral act that becomes valid once all essential conditions are fulfilled. The concept of Hiba is deeply rooted in Islamic tradition and is governed by personal laws rather than statutory provisions like the Transfer of Property Act.

What are the essential conditions for a valid gift under Muslim law?

For a valid gift (Hiba) under Muslim law, the following three essentials must be present: 1. Declaration of the gift by the donor. 2. Acceptance of the gift by the donee (during the lifetime of the donor). 3. Delivery of possession of the gifted property (actual or constructive). All three elements must occur during the lifetime of the donor, and the donor must be a Muslim, of sound mind, and not a minor.

Can a gift under Muslim law be revoked after it is made?

Yes, under certain conditions, a gift can be revoked under Muslim law. However, revocation after delivery of possession is discouraged and only allowed with the court's permission, except in cases where the gift is made to a spouse, close relative, or by a parent to a child. According to Hanafi law, a gift can be revoked unless: • It is made in exchange for consideration (Hiba-bil-iwaz), or • It is made between spouses, or • The donee has died or transferred the property. The Shia law does not allow revocation after the delivery of possession.