Gift under Muslim Law

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Gift under Muslim law holds profound significance, embodying the principles of benevolence and charity within the Islamic tradition. Rooted in the spirit of giving, a gift is a voluntary transfer of Ownership of an existing property from one person to another without any consideration. 

What is a Gift under Muslim Law?

A gift is generally a transfer of Ownership of a property by a living person to another living person without any consideration. 

In Muslim law, a gift is a voluntary transfer of Ownership in an existing property from one person (donor) to another (donee) without any consideration or payment in return. Gift is an essential aspect of Islamic jurisprudence rooted in the principles of generosity, charity and the spirit of giving in Islam.

Essential of a Valid Gift under Muslim Law

In Islamic law, the concept of a gift is considered an integral part of contract law. For a valid gift under Muslim Law, three essential elements must be present: an offer (izab), an acceptance (qabul) and a transfer (qabza). 

An illustrative case, Smt Hussenabi vs Husensab Hasan AIR 1989 Kar, involved a grandfather offering his grandchildren a gift. He duly accepted the gift on behalf of his minor grandchildren. 

However, there was no express or implied acceptance from his adult grandson. Consequently, the Karnataka High Court ruled that the gift concerning the major grandson was invalid due to the absence of all three elements. Nevertheless, the gift remained valid with respect to the minor grandchildren as the necessary elements were satisfied in their case.

Therefore, the conditions that must be satisfied for a valid gift in Muslim law are as follows:

Declaration by the donor

The donor must express a clear and unambiguous intention to make a gift under Muslim Law. The declaration should leave no room for doubt regarding the donor’s willingness to transfer Ownership.

Acceptance by the donee

The gift under Muslim Law becomes valid only when the donee accepts it. The gift is considered void if the donee does not accept his acceptance. In the case of a minor, the legal guardian may accept the gift on the minor’s behalf.

Delivery of possession

A crucial aspect of a valid gift is the physical delivery of possession by the donor and the acceptance of possession by the donee. In Muslim law, possession means having control and benefiting from property. The key consideration is who, between the donor and the donee, is enjoying the benefits of the property. If the donor continues to derive the benefits, the delivery of possession is not considered complete, and the gift would be invalid.

Parties and Conditions for Donor (Who can give)

For a valid gift transaction under Muslim Law, two parties must be involved – the donor (the person giving the gift) and the donee (the person receiving the gift). The donor must meet the following conditions:

a. Attainment of the age of majority: The donor must have reached the age of majority, as governed by the Indian Majority Act 1875.

b. Sound mind and understanding: The donor must be of sound mind and clearly understand the gift transaction.

c. Absence of fraudulent or coercive advice: The donor should not be under the influence of any fraudulent or coercive advice, and the decision to gift must be voluntary.

d. Ownership over the property: The donor must have legal Ownership over the property they intend to transfer as a gift.

e. Validity of gifts by specific individuals:

  • A gift by a married woman is valid and subject to the same legal rules and consequences as gifts by others.
  • A gift by a pardanashin woman (a woman who observes seclusion) is also valid. However, in case of a dispute, the burden of proof that the transaction was not conducted under coercion or undue influence lies on the donee.
  • A gift by a person in insolvent circumstances is valid if it is genuine and not intended to defraud creditors.

Conditions for Donee (Who can receive)

The donee (the person receiving the gift) must meet the following conditions:

a. Capable of holding property: The donee must be capable of holding property, including individuals and juristic persons. A Muslim may also make a lawful gift to a non-Muslim.

b. Existence of the donee: The donee must exist when the gift is given. In the case of a minor or a person of unsound mind, the possession of the gifted property must be given to their legal guardian or else the gift in Muslim Law is considered void.

c. Gift to unborn persons: A gift to an unborn person is considered void. However, a gift of future usufructs (the right to use and enjoy the property) to an unborn person is valid, provided that the donee is born and in existence when the interest opens out for heirs.

Conditions for Gift in Muslim Law (What can be gifted)

To be a valid gift under Muslim Law, the subject matter of the gift must meet certain conditions. The following are the conditions for what can be gifted under Muslim law:

Designable under the term mal: The subject of the gift must fall under the category of mal, which refers to tangible property that can be owned, possessed and transferred. Intangible items or things that cannot be owned, such as services or future obligations, cannot be gifted.

Existence at the time of the gift: The property intended to be gifted must exist when the gift is made. Gifts under Muslim Law of future items or properties that are yet to be created or acquired are considered void.

Possession by the donor: The donor must be in possession of the property they intend to gift under Muslim Law. A person cannot gift something they do not own or have control over.

Muslim law recognises a distinction between the corpus (Ayn) and the usufructs (Manafi) of a property:

a. Corpus (Ayn): It refers to the absolute right of Ownership of the property, which is heritable and has no time limitation. In other words, it is the Ownership of the property itself.

b. Usufructs (Manafi): This refers to the right to use and enjoy the property without possessing the ownership rights. It is limited and not heritable.

In the case of Nawazish Ali Khan vs. Ali Raza Khan (AIR 1984), the court held that the gift of usufructs is valid under Muslim law. However, if the gift is of the corpus, limitations might be imposed if the usufructs have been gifted to someone else. The court clarified that a gift of life interest (usufructs) is valid and does not automatically extend to become a gift of corpus (absolute Ownership). This ruling is applicable to both Shia and Sunni schools of thought in Islamic law.

Subject Matter of Gift under Muslim Law

Certain general principles govern the subject of a gift in Muslim law. It includes:

  • Anything over which dominion or right of property may be exercised: This covers any tangible or intangible property that can be owned, possessed and transferred, including both movable and immovable assets.
  • Anything which may be reduced to possession: The property to be gifted must be in existence and capable of being transferred from the donor to the donee.
  • Anything which exists either as a specific entity or as an enforceable right: The subject of the gift can be an identifiable object or a legally enforceable right that the donor possesses.
  • Anything that comes within the meaning of the word mal refers to property or wealth that a person can own and forms the basis for a valid gift under Muslim Law.

In the case of Rahim Bux vs. Mohd. Hasen (1883), the court held that the gift of services is not valid because services do not exist as a specific entity that can be transferred at the time of making the gift.

It is also important to note that a gift of an indivisible property can be made to multiple recipients.

The Extent of Donor’s Right to Gift

The general rule is that a donor’s right to gift is unrestricted. As established in the case of Ranee Khajoorunissa vs. Mst. Roushan Jahan (1876), the Privy Council recognised that a donor may gift all or any portion of their property, even if it adversely affects the expectant heirs. The donor has the freedom to decide how much of their property they wish to gift under Muslim Law.

However, there is one exception to this rule. The right of a person on their deathbed (Marz ul maut) to make a gift is restricted in the following ways:

  • The donor cannot gift more than one-third of their property.
  • The donor cannot gift it to any of their heirs.

These restrictions are in place to prevent any potential misuse or manipulation of gifts made by individuals who may be in a vulnerable state due to their health condition.

Kinds of Gifts under Muslim Law

Hiba under Muslim Law

In Islamic law, gifts are referred to as “Hiba.” While the term “gift” has a broader meaning and encompasses various transfers of Ownership without consideration, the term “Hiba” has a narrower scope and specifically pertains to transfers of property between living persons.

According to different legal scholars:

1. Hedaya: “Hiba” is an unconditional and immediate transfer of Ownership in an existing property, made without any consideration.

2. Ameer Ali: “Hiba” is a voluntary gift of property from one person to another without any consideration, resulting in the donee becoming the proprietor of the gifted property.

3. Mulla: “Hiba” is the immediate and unconditional transfer of property from one person to another, and the gift can be accepted by the donee or on behalf of the donee.

4. Fyzee: “Hiba” is the immediate and unqualified transfer of the Ownership of the property without any expectation of return.

Hiba-bil-Iwaz

Hiba-bil-Iwaz is similar to a sale, where the donee has already provided some consideration to the donor and in return, the donor makes a gift to the donee. In this type of gift, unlike a regular Hiba, the donee must first give some consideration to the donor without any prior agreement for a gift. After receiving the consideration, the donor gives the donee the gift in Muslim Law.

It is not necessary for the donor to immediately give possession of the gifted property to the donee in Hiba-bil-Iwaz. Instead, the donor may promise to give the gift in exchange for the consideration. However, such a gift must be registered, and an oral promise is not sufficient. Once the registration is done, the gift becomes irrevocable. Additionally, the gift of Musha (co-ownership) is permissible even in divisible property under this type of Hiba.

Hiba-ba-shart-ul-Iwaz

In Hiba-ba-shart-ul-Iwaz, the donor and the donee have an agreement where the donor will make the gift to the donee immediately and in return, the donee will provide something to the donor in the future. The possession of the property must be delivered to the donee at the present time in this type of gift under Muslim Law. 

However, Musha (co-ownership) cannot be gifted under Hiba-ba-shart-ul-Iwaz. Initially, it is considered a simple gift, but once the Iwaz (consideration) is performed, it transforms into a sale.

Sadaqah

Sadaqah is a gift made with a religious motive, and the donor gifted both the corpus (the property itself) and the usufruct (the right to use and enjoy the property). Once the gift of Sadaqah has been made and possession has been delivered, it becomes irrevocable. The gift of Sadaqah can be made to charity or even to poor individuals. It can also be given jointly to two or more persons. The donee has the right to use or consume both the corpus and the usufruct of the gifted property.

Unlike a regular gift, Sadaqah does not require an express acceptance by the donee. The key distinction between Sadaqah and Waqf is that the gift is made for religious and charitable purposes. Still, in Waqf, the corpus of the gift cannot be consumed, whereas in Sadaqah, both the corpus and usufruct can be consumed.

Ariyat

Ariyat is a form of gift primarily intended for charitable purposes. In this type of gift in Muslim Law, the Ownership of the property is not transferred; only the usufruct, which grants the right to enjoy the benefits of the property, is transferred. Upon the death of the donee, the property will revert back to the donor or, if the donor is deceased, then to the legal heirs of the donor. Ariyat is a gift without consideration and can be likened to a license.

Unlike a normal gift, an express acceptance by the donee is not required for Ariyat, and the donor doesn’t have to be of the age of majority.

Musha

Musha, also known as Hiba-bil-musha, literally means confusion. It is a gift that conveys an undivided share in the property to the donee. Hence, the gift of Musha represents an undivided portion of the property. In the Hanafi school (Sunni), there is a prohibition against Musha, and if the property is divisible, it must be divided first before transferring the share.

According to the Hanafi Sunnis, the gift will be irregular if a divisible Musha property is gifted without dividing it. However, if the property is indivisible, such as the gift of the right to use stairs or a pathway passing through the property, Musha is allowed.

There are certain exceptions to the prohibition against Musha:

A gift of Musha can be made without dividing a divisible property if the gift is made to a co-heir.

When a person makes the gift of their share in a zamindari.

  • When the gift is of one’s share in a limited company.
  • When the gift is of freehold property in a commercial town.

Despite the prohibition of Musha in the Hanafi school, it is not commonly followed at present, as it goes against the right to dispose of property freely. Many consider a person to have full rights to dispose of their property as they see fit, including the ability to gift an undivided share (Musha) in the property.

Void Gifts in Muslim Law

The following gifts are considered void under Muslim law:

  • A gift to an unborn person: A gift made to a person who is yet to be born is not valid. However, a gift of a life interest in favour of an unborn person is valid if the person comes into existence when such interest opens up.
  • Gift of future property: A gift of something that is to come into existence in the future is void. For instance, a gift of a crop that will grow in the future is not valid.
  • Contingent gift: A gift that depends on the occurrence of a contingency is void. For example, a gift by A to B, subject to the condition that A does not get a male heir, is not valid.
  • Gift of speculative successionists: This refers to a mere chance of succession to some property upon the death of someone or upon the partition of some property. Since the donor presently does not own the property, it cannot be gifted, and thus, the gift is void.
  • Gift of the right to claim dower: The right to claim dower during the continuation of a marriage is a purely personal claim of the wife and cannot be transferred to a third person, making such a gift void. However, the right to claim dower can be transferred if the wife dies.
  • Gift of services: A gift of services is not considered valid.
  • Gift with a condition: A gift must always be unconditional, and any condition attached to the gift that obstructs its completeness is considered void. In such cases, the gift itself remains valid, but the condition becomes ineffective. For instance, if A gifts their house to B with the condition that B cannot sell it or can only sell it to C, the condition will be deemed void, and B will have full rights to the house. The condition cannot restrict B’s Ownership or use of the gifted property, as it goes against the essence of a gift, which is meant to be a voluntary and unconditional transfer of Ownership.

Revocation of a Gift under Muslim Law

Under Muslim law, all voluntary transactions are generally revocable. In Hanafi law, even a gift is considered revocable, though it is considered abominable to revoke a gift. In contrast, in Shia law, a gift can be revoked by a mere declaration, while in Sunni law, revocation can only occur through the intervention of a court of law or with the consent of the donee.

However, there are certain situations where a gift becomes absolutely irrevocable:

  • When the donor is deceased.
  • When the donee is deceased.
  • When the donee is related to the donor in prohibited degrees of consanguinity. Note that in Shia law, a gift to any blood relative is irrevocable.
  • When there exists a marital relationship between the donor and the donee. Again, in Shia law, a gift to a husband by the wife or vice versa is revocable.
  • When the donee has transferred the subject of the gift through a sale or gift to another person.
  • When the subject of the gift is lost, destroyed or has undergone such a change, it loses its identity.
  • When the subject of the gift has increased in value, and the increment is inseparable from the original gift under Muslim Law.
  • When the gift is given as a “sadqa,” which refers to a gift made for charitable or religious purposes.
  • When the donor has accepted anything in return for the gift.

In these specified circumstances, the gift becomes irrevocable, and the donor loses the right to revoke it. It is important to note that the rules regarding revocability may vary slightly between the Shia and Sunni schools of thought in Islamic law.

Conclusion

The concept of gift under Muslim law holds significant importance, reflecting the principles of generosity, charity and the spirit of giving in Islam. A gift is a voluntary transfer of Ownership in an existing property from one person (donor) to another (donee) without any consideration or payment in return. The act of giving a gift is considered virtuous and aligns with the teachings of Islam to share wealth and support those in need.

For a gift to be valid in Muslim Law, certain conditions must be met. It requires a clear and unambiguous declaration by the donor, acceptance by the donee (though not strictly required under most interpretations) and the subsequent delivery of possession of the gifted property. The subject of the gift must be an existing property that the donor currently owns, and the gift must be unconditional, without any obstructive conditions.


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