Abstract

The provisions under the Transfer of Property Act, 1882 relating to gifts i.e., transfer of property without consideration are not applicable to Muslims. Mohammedan Law governs Muslims. The author aims to understand the intricacies of gifting among Muslims in this article.</em >

Abstract

1.    Introduction

2.    Terms to be understood

2.1. Ayn

2.2. Ariyat

2.3. Hiba

2.4. Hibanamah

2.5. Hibadar

2.6. Iwaz

2.7. Jab

2.8. Manafi

2.9. Mushaa

2.10.Sadaqah

2.11.Qubool

3.   Who can give a gift?

4.   Who can receive a gift?

5.   How can property be gifted?

6.   What can be gifted?

7.   Can gifts be revoked?

8.   Dénouement

1. Introduction

A gift by a Mohammedan must comply with Mohammedan Law.¹ According to Section 129 of the Transfer of Property Act, 1882, Chapter VII of the said Act does not apply to Muslims and their gifts would be governed by Mohammedan Law.²

The reason for the importance of Hiba, is that a Mohammedan by will/testamentary instrument cannot dispose of more than one-third of his property (i.e. estate remaining after funeral expenses and debts). Any bequest of more than one-third of his estate will abate. Even marz-ul- maut i.e., death-bed gift cannot exceed beyond one-third of his remaining estate.^{3</sup >}

The burden of proof of compliance with Mohammedan Law is on the donor.^{4</sup > Thus adherence to the essentials of Hiba is of utmost importance for succession planning as per the intentions of the donor.}

2. Terms to be understood

2.1. Ayn

Ayn or corpus is the absolute right of ownership to the property. Such a right is heritable and has no duration.

2.2. Ariyat

The concept of Ariyat is akin to a license. The gift is in the form of a “right to use”. It could be for a particular period or for the life of the donee. Upon the death of the donee, the right is transferred back to the donor.

The right cannot be inherited or transferred. It can be revoked at the will of the donor. The donee has only rights over the revenue generated from the property during the vesting period.

2.3. Hiba

Hiba is an Urdu word which means “gift”. It may be in oral or written.^{5 6} It is a voluntary inter vivos transfer without any consideration by a donor to a donee.⁷ According to Mulla. “Gift is a transfer of property made immediately without any consideration”. Thus Hiba is an immediate transfer of the corpus of the property without any return; Every Muslim, who has attained majority and has a sound mind can make a gift.⁸ The transfer should be bona fide,

any malice would make the Hiba void.⁹

Therefore, there are three requirements for a Hiba¹⁰:

1. Declaration¹¹ of unconditional transfer of existing property
2. Acceptance of the said property
3. Transfer of possession by the donor and its acceptance by the donee.

2.4. Hibanamah

Hibanamah is the deed of gift.

2.5. Hibadar

Hibadar is the donee.

2.6. Iwaz

Iwaz means consideration.

Hiba-bil-Iwaz means transfer of property for some consideration. It is essential that the donee has already provided some consideration to the donor and in return, the donor gives the property. The quantum of consideration is not important but should be bona fide.¹² Such a gift must be affected with the help of a written, attested and registered document.¹³

Hiba-ba-Shartul-Iwaz means a conditional gift. The donor imposes certain reasonable conditions that are mandatory for the transfer. The gift is revocable until the Iwaz is paid.

2.7. Jab

Jab means declaration. It is a prerequisite for a valid gift.^{14</sup > In a simple sense, the gift must be consensual, expressed and bona fide15. The declaration requires witnesses or a statement as evidence of transfer of property.16 Any statement made under undue influence or fraud cannot be termed as a jab and the transfer would be void.17}

2.8. Manafi

Manafi or usufructs means the right to use and enjoy property without possessing its ownership rights. Gift of usufructs is valid under Muslim Law. The gift of corpus will have certain limitations if the gift is usufructs is given to someone else, and life interest in usufructs cannot be assumed to be a gift of corpus.¹⁸

2.9. Mushaa

Mushaa is an Arabic word which means ‘confusion’. In Mohammedan Law, it refers to the ‘saayu’, meaning undivided share in a property.

Where one is a co-owner of an undivided share in a property, movable or immovable, confusion arises as to which part of the property belongs to the donor. In such cases the doctrine of Mushaa is followed. Properties which are indivisible can also form a part of Hiba.

2.10. Sadaqah

Sadaqah is a transfer with a religious motive. Sadaqah cannot be revoked. The essential conditions of Hiba are required to be satisfied, however, expressed acceptance is not an essential condition. Transfer of possession is essential and there are no exceptions, therefore, Sadaqah is not valid if the subject gift is an indivisible share of the property.

2.11. Qubool

Qubool means acceptance. It is an essential condition for Hiba. Where the donee is a minor, the father would be the sole guardian and without his acceptance, Hiba would be incomplete.^{19</sup > The Mother cannot accept the gifts on behalf of her minor children.20</sup >}

3. Who can give a gift?

Every major Mohammedan of a sound mind may dispose of their property by way of a gift.²¹²² A Muslim woman has the same rights as that of a Muslim man.²³

It is essential that the donor is the owner of the property. A gift is not valid without seisin.24

According to Mohammedan Law, the age of majority is 18 years. However, this is superseded by the Indian Majority Act, 1875,25 hence for the purpose of wills, gifts and wakfs, the age of majority will be on attaining the age of 18.^{26</sup >}

Further, it is not mandatory that a Hiba is in writing, even when it is in writing it is not necessary to register the same.27 Au Contraire, it was also held that if the gift is reduced to writing and the immovable property is worth more than Rs. 100/- then section 17 of the Registration Act, 1908 would be attracted and the document would require registration. This controversy was later set aside and the Hon’ble Supreme Court approved the erstwhile view that the written document does not require a registration.²⁸

Mutation of names is not a necessary condition for delivery of the property in favour of the donee.²⁹

4. Who can receive a gift?

The Donee can be any person or class of persons, it can also be a non-muslim. It can also a juristic person who is competent to give their consent for the purpose of Hiba. The Donee must express or imply the acceptance of Hiba.³⁰

Gifts to an unborn are invalid, albeit a Muslim can give gifts through a medium of trust, the beneficiaries should be capable of accepting Hiba.³¹ A child in the womb of a woman is a competent donee.³²

5. How can property be gifted?

Both, movable and immovable property can be gifted under Hiba. Gifts are rendered valid by tender, acceptance and seisin.³³ A gift is not complete unless possession is given and taken at the time of gift i.e., at the time of declaration and acceptance.³⁴ The delivery of possession can be postponed with the consent and during the life of the donor.³⁵ Thus, delivery of possession is essential and registration cannot cure any defect.³⁶³⁷

Where khas or physical transfer of possession is not possible, constructive possession will suffice.^{38 39} If the donor has done all within his powers to divest himself and put the property in the possession of the donne, it would be considered as sufficient for Hiba.⁴⁰ However there are certain exceptions to this rule – (i) Where the donor and donee reside in the gifted property.⁴¹ (ii) Where the gift by a father or guardian or stranger⁴² is in favour of minors or luantic.⁴³ (iii) Gift to a bailee.

In case of an immovable property, the donor can immediately transfer the ayn or corpus of the property without reserving any dominion over the corpus. Also, the donor can gift a corpus but reserve the rights of manafi or usufructs.^{44 45} Where the donor reserves the right to corpus and usufructs, Hiba is said to be invalid.⁴⁶ Mortgaged^{47</sup > and tenanted48 49 property can also be gifted.}

An absolute gift with a condition repugnant to the grant or whole enjoyment of the property would render Hiba invalid.⁵⁰ For example prohibition of alienation of property by the donee would be void in law.^{51</sup >}

6. What can be gifted?

The Donor can gift anything over which dominion or right of property can be exercised i.e., tangible or intangible property. It is important that the subject matter is in existence. Any legally enforceable right can be gifted.

Anything that can be considered mal i.e., tangible property that can be owned possessed and transferred can be gifted.⁵²

Gift of service is not mal and does not exist as a specific entity and hence cannot be gifted.

7. Can gifts be revoked?

Hiba can be revoked before delivery of possession. Once possession is transferred Hiba cannot be revoked other than two conditions: (i) By an order of the court and (ii) by the consent of the donee.

8. Dénouement

The concept of gift under Mohammedan Law is different and should not be confused with the generic meaning of gift. The personal law reflects on principles of generosity and charity. Since the Mohammedan law does not followfff the other laws for the transfer of property i.e., Transfer of Property Act, 1882, Registration Act 1908 et cetera, there has to be strict adherence to the Mohammedan law.

Further, the Mohammedan law does not override the Income-tax Act, 1961. Therefore, the provisions of Income-tax Act, 1961, inter alia should be kept in mind while planning a smooth succession plan for an estate of a Mohammedan.

1. Kaia Chand v. Jagannath AIR 1928 PC 108 
2. Hafeeza Bibi v. Saikh Farid (2011) 5 SCC 654
3. Veerankutty v. Jainuddin ILR 1955 TC 863 (DB)
4. Laila Beevi v. N Sumina 2009 (3)KHC 661
5. Maqbool Alam Khan v. Mst. Khodajia & Ors 1966 SUPREME COURT 1194</em >
6. Md. Hesabuddin v. Md. Hesaruddin AIR (1984) Pat 203
7. Abdul Rahim v. Abdul Zabar (2009) SCC 160, AIR 2010 SC 211
8. Salekath Beevi v. Mumthas Beevi RSA No. 474 of 2007 (Ker)(HC)
9. Munni Bai v. Abdul Gani AIR 1959 MP 226 
10. P. Kunhimma Umma v. Aisha Umma (1922) 49 IA 195 
11. Maimuna Bibi v. Rasool Mian AIR 1991 Pat 203 
12. Khajoorunissa v. Raushan Begam CA No. 2845 of 2006 dated February 01, 2016 (SC) </em >
13. Gopal Das v. Sakina Bibi AIR 1936 Lah 307 
14. State of Uttar Pradesh v. Sayed Abdul Jalil MANU/SC/402/1972
15. Sultan Miya v. Ajibkhatoon Bibi (1932) 59 Cal 557 
16. Ratan Lal Bora v. Mohd. Nabiuddin AIR 1984 AP 344 
17. Mohammad Mustafa v. Abu Bakr MANU/SC/357/1970 
18. Nawazish Ali Khan v. Ali Raza Khan AIR 1948 PC 134 
19. Musa Miya v. Kadar Bux AIR 1928 PC 108 
20. Ghulam Hussain Kututubuddin Maner v. Abdul Rashid Abdulrajak Maner MANU/ SC/ 2742/2000 </em >
21. Mohamad Abdul Ghani v. Fakhr Jehan Begum AIR 1922 PC 281 
22. Sultan Begum v. Ara Begum AIR 1933 PC 164 
23. Laila Beevi v. N Sumina 2009 (3)KHC 661 
24. Abdul Rahim v. Abdul Zabar (2009) 6 SCC 160, AIR 2010 SC 211 
25. Except for marriage, dower, divorce and adoption 
26. Mahboob Sahab v. Syed Ismail (1995) 3SCC 693 
27. Assan Rawther v. Ammu Umma AIR 1972 Ker 27
28. Hafeeza Bibi v. Shaikh Farid (2011) 5 SCC 654, AIR 2011 SC 1695 </em >
29. Muhammad Mumtaz v. Zubaida Jan (1889) 16 Indian Appeals 205 
30. Munni Bai v. Abdul Gani AIR 1959 MP 226 
31. Nawzish Ali Khan v. Alo Raza Khan AIR 1948 PC 134 
32. Tagore v. tagore (1874) LR 1 IA 387 
33. Katheesa Umma v. Kunhamu AIR 1964 SC 275 
34. Mulani Moula Bakhsh AIR 1924 All 370 
35. Jhumman v. Husain AIR Oudh 7 
36. AIR 1960 Mysore 97 
37. AIR 1971 Himachal Pradesh 5 
38. Nooru Mohamed v. Sultan Pillai 1955 KLT 865 
39. Smt. Alimon Nessa v. Sudhir Chandra Dey AIR 1991 Gau 13 
40. Ismail v. Idrish AIR 1974 Pat 54 (DB) 
41. Abdul Majidkhan v. Husseinbu (1920) 22 Bom LR 229 
42. Musa Miya Shaffi v. Kadar Bax Khaj Bax AIR 1928 PC 108 
43. Valia Peedikakkandi Katheesa Umma and Others v. Pathakkalan Narayanath Kunhamu 1964 SC 275 </em >
44. Nawab Umjad Ally Khan v. Mohumdee Begum (1867) 11 MIA 517 (PC) </em >
45. Mohammad Abdul Khani Khan v. Mt. Fakhr Jaghan AIR 1922 PC 281 
46. K. S. Mahomed Aslam Khan v. Khalilul Rehman Khan and Others AIR 1947 PC 97 </em >
47. Abdul Rahim v. Abdul Zabar (2009) 6 SCC 160, AIR 2010 SC 211 
48. Allah Rakha v. Alo Mohammad AIR 1929 Lah. 45 
49. Hafiz Abdul Basit v. Ahmed Milan AIR 1973 Delhi 280
50. Nawab Umjad Ally Khan v. Mohumdee Begum (1867) 11 MIA 517 (PC) </em >
51. Abdul Gafur v. Nizamuddin (1892) 19 Indian Appeals 170 PC 
52. Rahim Bux v. Mohd. Hasen (1983)