Gift is a process of transfer of certain existing moveable or immoveable assets/property made voluntarily and without any consideration by one person called donor to another person called Donee. Such acceptance of gift must be made during the lifetime of the donor and while the donor is still capable of giving. If the Donee died before acceptance of the gift, the gift will be voidable. The conception of the term “gift” is used in the Transfer of Property Act is little different from the use in Mohammedan law. As per the Mohammedan law a gift is a transfer of property or right by one person to another as per the provisions of the Mohammedan law.
A Hiba an unconditional and immediate transfer of the ownership of assets/property or of right. It could be without any consideration or with some return i.e. ewaz and an Ariat the grant of some limited interest in respect of the use property or right. A gift of any right or property made without any consideration with the object of acquiring religious merit it is known as sadaqah. A Muslim can devolve his property in many ways. Mohammedan law permits the transfer of property/assets inter vivos i.e. gift or will. A disposition inter vivos i.e. gift is unrestricted as to quantum and a Muslim is allowed to give away his property/assets during lifetime by the way of gift but only 1/3 of the total property can be bequeathed by will.
The gifts in India are governed under the act of Transfer of Property Act, 1872. However, the provision under the Transfer of Property Act, 1872 does not apply to Mohammedan law.In ordinary legal way there cannot be a `gift’ without taking or giving. As per the section 122 of the Act, a gift is a transfer of certain existing movable or immovable assets/property made voluntary and without any consideration by one person to another person.Following are the essential elements of a gift:
- The doner
- The done
- Absence of the consideration
- The Subject of the gift/Hiba
- The transfer and the acceptance.
Capacity to make a Hiba/Gift
Mental capacity –In the Muslim law every Muslim male or female, unmarriedor married and has attained the age of majority with sound mind has the mental capacity to make a gift. As per the rule of Muslim law of majority, i.e. attainment of puberty does not apply to gift. A person who is an unsound mind can make a valid gift during lucid intervals. The givers under Mohammedan law recognize the doctrine of ikrash or compulsion and any gift deed executed under compulsion will not be counted as valid deed. In these circumstances the gift is voidable and it can be avoided by the person/donor whose consent was so obtained. The case of Hussaina Bai v. Zohara Bai1959 (AIR 1960 MP 60) can be referred.
Financial capacity –The view of Malikis holds that a person who is insolvent or extremely involved circumstances have no capacity to make any gift. However, in Hanafis view is that if any person is under insolvency circumstance, he has a right to make a gift but the kazi has the power to declare such gift nugatory if it is made with the intention to defrauding the donee. The Indian court has accepted the Hanafi school. Therefore, in every gift a bona fide intention must on the part of the donor to transfer property to the donee. And, if a gift is made with an intention to defraud the donee the gift will be invalid. The case of Abdul vs. Mir Md, (1886) 11 IA 10 can be referred.
Who can Challenge a Hiba or Gift
A stranger cannot challenge the validity of a gift/Hiba on the ground that the gift is bad or not in good position as no delivery of possession has been made. A gift only can be challenged when the issue is raised between the donor or those claiming under him on one side and the person who are claiming under other side.
Revocation of gift/Hiba
Although the Prophet was not in the favor of revocation of gift, it is a well established rule in the Islamic law that all voluntary transactions including gifts can be revoked.
Types of revocation
- Revocation of gift/hiba before delivery of possession
- Revocation of gift/hiba after delivery of possession
Revocation of gift/hiba before delivery of possession
All gifts are revocable before the delivery of possession is given by the donor. For such matters no order from the court is necessary. The fact of the matter is that no gift/hiba is complete till the delivery of possession is made and therefore, in all those matters where possession has not been transferred by the donor the gift is incompleteand whether it is revoked or not, it will not be valid till the delivery of possession is made.
Revocation of gift/hiba after delivery of possession AGift/Hiba can be revoked in either of the following manner:
- With the consent of the done.
- By a decree of the court.
Only a declaration of revocation of gift/hibaby the donor or filing a suit in the court or any other action is not enough to revoke a gift/hiba. The donee is entitled to use that property in any manner until a decree is passed by the court revoking the gift/hiba. A case of Mahboob vs. Abdul, 1964 Raj 250 can be referred.