3 Essential Conditions for a Valid Gift (Hiba) under Muslim Law
(III) The delivery of possession.
A Hiba is not valid unless these three essential conditions are fulfilled.
I. Declaration of Gift:
Declaration is a statement which signifies the intention of the transferor that he intends to make a gift. The person who declares that he is transferring his property through a gift is called donor. The person in whose favour the gift is made is called donee. Declaration is, therefore, the manifestation of the intention of the donor to divest his ownership in the property and to vest it in the donee.
Oral or Written:
A Hiba may be made orally. Writing is not necessary. The donor may declare the gift of any kind of property, of any valuation, either orally or write a deed. Under Muslim Law, writing is not necessary for the validity of gift whether property is movable or immovable. Section 123 of the Transfer of Property Act which provides that gift of immovable property must be in writing and registered, is not applicable to gift made by Muslims.
In llahi Samsuddin v. Jaitunbi Maqbul, the Supreme Court held that under Muslim Law, declaration as well as acceptance of gift may be oral whatever may be the nature of property gifted. Where a gift is made in writing, it is called Hibanama. This gift-deed (Hibanama) need not be on stamp-paper and also need not be attested or registered.
In Md. Hesabuddin v. Md. Hesaruddin, a Muslim woman made a gift of her immovable properties to her son. The gift was written on ordinary paper and was not registered. The Guahati High Court held that the gift was valid because under Muslim Law writing and registration is not any essential condition for the validity of gifts.
The declaration must be made in clear words. A declaration of gift in ambiguous words is void. That is to say, the declaration must expressly suggest that the donor is relinquishing his ownership completely. In Maimuna Bibi v. Rasool Mian, the Patna High Court has held that while 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 subject (i.e., property) of gift.
The court observed that donor should express his intention of divesting the ownership in express and clear words. According to Macnaghten, “A gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void when he continues to exercise any act of ownership over it.”
The declaration for the gift must be made voluntarily. Consent of the donor in making the gift must be a free consent. If the donor makes the gift under threat of force, coercion, undue influence or fraud, the gift is not valid.
By voluntary declaration we also mean that the donor has fully understood the nature of the transaction and there was no external influence in his taking the decision for making the gift. Where the donor claims that he or she had declared or signed the gift- deed without understanding the consequences, the act of donor cannot be said to be a free act and the gift is void.
But, it must be noted that want of understanding or undue influence in making a gift must be proved very strictly. Mere fact that the donor is an illiterate person or is a woman in purdah is not sufficient to establish that the donor could not understand the legal implications of his declarations or that there was an undue influence.
Bona fide Intention:
Gifts must be made honestly, i.e. with a bona fide intention to give the property to the donee. A declaration of gift with an intention to defraud the creditors of the donor is voidable at the option of such creditors. However, the mala fide or fraudulent (dishonest) intention of the donor cannot be presumed only by the fact that he incurs certain debts. The mala fide intention must be fully established.
Competency of the Donor:
Declaration of a gift is made by the donor. Donor must be a competent person. Every Muslim is competent to make a gift if he has capacity as well as the right.
For a valid Hiba, the donor must be (i) adult (ii) of sound mind, and (iii) Muslim.
At the time of making the gift the donor must be adult. He must have attained the age of majority i.e., must be of eighteen years. If a minor is under the supervision of the Court of Wards, the majority is attained on the completion of twenty-one years. Thus, a Muslim becomes major for making a gift only upon attaining the age of eighteen or twenty-one years, as the case may be. A gift by a minor is void.
(ii) Sound Mind:
The donor must also be of sound mind. An insane person has no capacity to understand the legal implications of his or her activities. However, a declaration of gift by a person of unsound mind during ‘lucid interval’ is lawful and the gift is valid.
As discussed earlier, ‘lucid interval’ is a temporary period during which a person of unsound mind acquires capacity to understand the legal consequences of his or her activities, i.e. becomes a normal human being.
At the time of making the declaration of gift, the donor must be a Muslim. Where the donor is a non-Muslim, the gift is not Hiba. A gift made by a non-Muslim is regulated by the Transfer of Property Act, 1882 and rules of Muslim personal law are not applicable to it. If at the time of making of gift the donor is Muslim but, after completion of gift he renounces Islam and becomes non-Muslim, the gift continues to be a valid gift under Muslim law.
Capacity alone is not sufficient. The donor must also have the right to make the gift. One may have the capacity, i.e. he may be a Muslim, adult and of sound mind yet, he cannot lawfully gift away the properties of others because he has no such authority.
A donor has a right to gift only those properties of which he is the owner. In the transaction of gift nothing less than the absolute interest or, the ownership of property is transferred. Therefore, it is necessary that donor himself has the title which he intends to pass on to the donee. A person who is simply a tenant in a house, cannot gift that house because he is not the owner of that house.
There are certain properties which are regarded as non-transferable under Section 6 of the Transfer of Property Act, 1882. Any kind of transfer including gift, of a non- transferable property is void. A person who owns such properties has no right to alienate them.
Therefore any person including a Muslim has no right to declare a gift of non- transferable properties. For example, if a property has been acquired by the Government, the owner of that property has no right to make a gift of that property. It may be noted that a Muslim has a right to gift away all the properties which are under his ownership at the time when declaration of gift is made by him.
II. Acceptance of Gift:
Gift must be accepted by the donee. Donee is that person in whose favour the gift is made. Gift is a bilateral transaction. It takes place between two persons. In the transfer of property by way of gift, the first step is the declaration of gift by the donor and the second is the acceptance by the donee. Acceptance signifies the intention of the transferee (donee) to take the property and become its owner. Without acceptance a gift is not complete.
Competency of the Donee:
The donee, in whose favour the property is gifted, may be any person in existence. For being a competent donee, the only essential requirement is that he or she must be in existence at the time of the declaration. In other words, the donee must be a living person on the date of the transfer. Donee may be a person of any religion, sex, age or state of mind.
Thus, a Muslim may make a lawful Hiba in favour of a Hindu or a Christian or any non-Muslim. Similarly, a Hiba in favour of a female or minor or an insane person is also valid. Specific mention of the following persons would explain the competency of a donee under Muslim law.
Child in Womb:
A child in mother’s womb is competent donee provided it is born alive within six months from the date on which gift were made. A child in the mother’s womb i.e., child en ventre sa mere is a person in existence. Therefore, the child in its mother’s womb is a competent donee. Although the child in mother’s womb has no wordly existence yet, in the eyes of law it is regarded as a living person. However, the birth of such child is not certain.
The child may die in the womb or abortion may take place. Therefore a gift may be made in favour of a child in the womb but the child must be born alive. If after the gift an abortion takes place or the child dies in the womb, the gift already made becomes void. Accordingly, under Muslim law, a gift in favour of a child in the womb is valid provided such child is born alive within six months from the date on which the gift was made.
It may be noted that it is absolutely necessary that the child must be in existence in its nother’s womb when the declaration of gift is made. If the child is not in mother’s womb on the date when declaration is being made, the gift is void ab initio and cannot be validated when conception takes place on a later date and a living child is born subsequently.
For example, A makes a gift of his properties in favour of B’s unborn child. Â is a bachelor on the date of declaration but soon after he gets married. A son is born to B. The gift is void and it cannot be validated and enforced in favour of B’s son because he was not in existence even in his mother’s womb when the gift was made. In other words, gift in favour of future donee i.e. a donee who has no existence at all (not even in mother’s womb) is void.
Juristic persons are also competent donee and a gift may be made to them. In the eyes of law, the term ‘person’ means not only the human person but it also includes a juristic or legal person. Juristic or legal persons have no biological existence but for the sake of convenience and to avoid practical difficulty, law confers rights and duties to such entities.
That is to say, they are legally presumed to be persons. For example, a corporation, registered firm, company and an University is a juristic person. A jursitic person is legally presumed to be adult and of sound mind. Thus, a gift in favour of a school or a mosque is valid.
Where a Muslim donates money for the repair or maintenance of mosque or an institution, the gift is valid. The acceptance of a gift in favour of an institution or any other juristic person is made by its manager or any other competent authority.
Minor and Insane:
Gift to a minor or a person of unsound mind is valid. Minor and insane person may not have mature understanding but they are persons in existence. Therefore, a minor or a person of unsound mind is a competent donee. But such gifts must be accepted by the guardian of that minor or insane donee.
A gift to a minor or to a person of unsound mind is void without acceptance by the guardian. For purposes of acceptance of a gift, the guardians of a minor or of insane person are as under:
(ii) Father’s executor,
(iii) Paternal grand-father,
(iv) Paternal grand-father’s executor.
These guardians are in the order of priority. That is to say, in the presence of father the paternal grand-father is not entitled to accept the gift and so on. In the absence of the abovementioned persons, a gift on behalf of minor or insane is accepted by the ‘guardian of the property’.
It is significant to note that under Muslim law, mother has not been regarded as ‘guardian of property’ of her minor children. Therefore, she is not entitled to accept the gift on behalf of her minor child.
A guardian, who accepts the ownership of the gifted property on behalf of minor or the insane, takes also the possession of the property. When a guardian himself makes a gift to his ward, his declaration of gift is made as owner of the property, and acceptance by him is in the capacity of guardian of the minor or insane person.
Two or More Donees:
The donee may be an individual or a class of persons. When the donee is a group of persons, all the persons constituting that group must be ascertainable. That is to say, they must be known as to who are the donees. Gift to two or more donees must be accepted by all of them separately.
If the share of each donee is clearly defined, the donor need not separate or divide these shares and give possession to each of them. However, a gift to two or more donees without specifying their respective shares and without giving them separate possession has also been held to be valid. In such cases the donees take the property as tenant-in- common.’
III. Delivery of Possession:
Delivery of possession is an act by which a donor puts the donee in possession of the property. Under Muslim law, a gift is complete only after the delivery of the possession. Therefore, the gift takes effect from the date on which the possession of the property is delivered to the donee; not from the date on which the declaration was made.
The donor must divest himself of not only the ownership, but also of possession in favour of the donee to complete the gift. Delivery of possession is so important in the Muslim law of gifts (Hiba) that without delivery of possession to the donee, the gift is void even if it has been made through a registered document.
Muslim law does not presume transfer of ownership rights from donor to donee without the delivery of possession of the property. Importance of delivery of possession has been given in Hedaya as under:
“The possession of a property is necessary in order to establish a right of property in the gift because right of property is not established in a thing given merely by means of the contract (i.e. declaration and acceptance).”
The mode of delivery of possession, i.e., how the property is to be transferred, depends upon the nature of the property gifted. All that is legally required for a donor to constitute the delivery of possession is to do something by which a donee gets the physical control over property.
A donee is said to be in possession of a property “when he is so placed with reference to it that he can exercise exclusive control over it, for the purpose of deriving from it such benefit as it is capable of rendering or as is usually derived from it.” A delivery of possession may be either (i) actual or (ii) constructive.
(1) Actual Delivery of Possession:
Where a property is physically handed over to the donee, the delivery of possession is actual. If the physical possession of a property is possible, its gift is not complete without actual delivery of possession. But actual delivery of possession is possible in respect of only those properties which are capable of being physically possessed and given. Generally, only the tangible properties may be actually delivered to the donee.
A tangible property may be movable as well as immovable. For example jewels, money, vehicle etc. is tangible movable property and house, land etc. is tangible immovable property. Where the property is movable, it must be actually transferred and handed over to the donee; a mere entry in a register or account book is not sufficient and does not constitute a delivery of possession.
Similarly, where the property is immovable, its actual delivery of possession is also necessary to validate the gift. But the immovable properties cannot be picked up and handed over to the donee. Therefore, if the gifted property is a land, house or a garden, the donor may deliver the possession by giving up all dealings with the property and by placing it at the complete disposal of the donee so that the donee may use it as he likes.
Thus, where the donor makes a gift of his house in which he is residing, he must vacate it and ask the donee to live in it. Delivery of possession in case of a garden may be completed by giving to the donee full control over it, including all rights to enjoy the fruits and the flowers. Similarly, where the subject matter of a gift is an agricultural land, its delivery may be made by allowing the donee to plough the field or to reap the crop.
Under Muslim law, actual physical transfer of the property is so very much necessary that even the mutation of names or entry in official papers and records would not constitute the delivery of possession. Where the mutation proceedings have started but the physical possession could not be given and the donor dies, the gift fails for want of delivery of possession.
However, in such cases if it is proved that although the mutation proceedings were not complete but the donee has already taken possession of the property, the gift was held valid. Similarly, where a property is held by some other person adversely to the donor, the donor must first of all take possession from him and thereafter pass it on to the donee.
However, as has been discussed in the following lines, if the donor is unable to get the possession from a trespasser, a constructive or symbolic delivery of possession is sufficient to constitute a valid gift.
(2) Constructive Delivery of Possession:
Constructive delivery of possession means a symbolic transfer of property. Delivery of possession is constructive if property is not actually delivered but the donor has done some act due to which it is legally presumed that the possession has been given to the donee.
Where the property is of such a nature that its physical possession is not possible and it cannot be delivered actually, a constructive delivery of possession is sufficient to complete the gift. Constructive delivery of possession is sufficient to constitute a valid gift in the following two situations:
(i) Where the property is intangible property.
(ii) Where the property is tangible property but, under the situations, its actual or physical delivery of possession is not possible.
It is interesting to note that there are certain properties which have no physical existence i.e., they cannot be perceived through senses. Such properties are called intangible or incorporeal properties. Although an incorporeal property cannot be possessed, but it can be owned and its owner may make a lawful gift of it.
Therefore, in the gifts of incorporeal properties, only constructive delivery of possession is possible which, under the law, fulfils the requirement of a valid gift. Any such act of the donor which indicates a clear intention that he has relinquished all the benefits of the property gifted may be regarded as constructive delivery of possession. Fyzee rightly observes thus;
“In the case of chattels and land or corporeal (tangible) property generally, actual delivery of possession is necessary. But in the case of incorporeal property and actionable claims, where the property is not susceptible of physical possession, the donor must do everything in his power to show a clear intention of transferring the property effectively to the donee and of relinquishing entirely his own dominion over the property”.
All that is required to constitute a constructive delivery of possession is an ‘overt act’ by the donor. Therefore, the modes of constructive delivery of possession may differ from case to case. Thus, where a gift is made of certain Zamindari rights, the delivery of possession is legally presumed by mutation of names i.e., by change of names in the revenue records.
A house, in which tenants are living, may be gifted by the landlord without forcing the tenants to vacate and without giving actual possession to the donee. If the donor, i.e. the landlord has delivered the title deeds of the house to the donee, and has instructed the tenants that now the donee has become their new landlord, he has fulfilled the condition of the delivery of possession and the gift is valid.
The same rule would also apply where an immovable property, in the possession of a lessee, is gifted by the owner (lessor) to the donee. A Government promissory note may be transferred lawfully only by an endorsement in favour of the transferee and the delivery of that endorsed promissory note to the transferee.
Therefore, in the gift of a Government promissory note if the donor, after making an endorsement, hands it over to the donee, the delivery of possession is complete and the gift is valid. In certain cases it is possible that under Muslim law the donor reserves for himself the usufruct or the benefit of the property gifted. In the gifts with such reservations, the possession of the property remains with the donor so that he may enjoy the benefits of the property while the ownership is with donee.
Therefore, in cases where a donor gifts away the corpus but reserves the usufruct for himself, the delivery of possession is presumed if, after the date of the gift, the donee makes payment of the Government revenue or other dues, in respect of the property gifted to him. The payment of revenue by the donee amounts to constructive delivery of possession and the gift is complete.
It must be noted that an act of the donor may amount to a constructive delivery of possession only where such an act is sufficient to give to the donee the rights over the gifted property. In the leading case, Aga Mohamed Jaffer v. Koolsom Beebee, a husband gave to his wife a bank receipt issued in his favour from a bank where he had deposited some money.
After giving the bank receipt to his wife, he said, “After taking a bath, I shall go to the bank and transfer the account in your name”. Unfortunately, the husband died before he could transfer the money in favour of his wife.
The widow as a donee claimed the amount on the ground that there was a declaration and acceptance of the Hiba and there was also a delivery of possession because the husband (donor) had handed over the bank-receipt to her.
But, the Privy Council held that giving of the bank-receipt to the wife does not amount to a constructive delivery of possession because this was not an appropriate method of transferring the account. If the account could have been transferred, the delivery of possession could have been construed; the widow had no right to draw the money without the transfer of account in her name.
Moreover, it was found that the margin of the receipt contained the words, ‘not transferable’. Accordingly, the court held that Hiba in favour of the widow was not valid because there was no delivery of possession, sufficient to give rights to the donee, under the law.
Property Held Adversely to Donor:
A property is said to be held adversely to donor if it is in wrongful possession of some other person. Where the property is held adversely to donor, the donor must first of all obtain the possession himself and thereafter deliver it to the donee. If the donor, whose property is held adversely to him, does nothing except declaring the gift of that property, the gift is void.
In Maqbool Alam Khan v. Mst. Khodaija, the Supreme Court has held that if the gifted property is in the wrongful possession of a trespasser, a mere declaration and acceptance would not complete the gift. In such cases, there must be either (actual) delivery of possession or some overt act by the donor to put the property in power of the donee to obtain possession. The Court observed further that if apart from making declaration of gift of a property held adversely to him the donor does nothing else, the gift is invalid.
Where a donor whose property is in the adverse possession of another person, has done everything which entitles the donee to get the possession, a constructive or symbolic delivery of possession takes place although the possession is not given immediately to the donee. A, whose property is held in adverse possession by Z, makes a gift of that property to B.
The gift is duly executed by A and is accepted by B. The donee Â, files a suit against Z for obtaining the possession and also joins A (donor) as the defendant party. In the written statement A admits the claim of Â whereas Z argues that gift to Â is void because there was no delivery of possession by A to B.
In this illustration we find that although there was no actual delivery of possession by the donor, as he himself had no possession, yet his admission of B’s claim in the written statement must be taken as a constructive delivery of possession.
In Mahomed Buksh v. Hosseini Bibi, where the facts were similar to the illustration given above, their Lordships of the Privy Council observed that under these circumstances there can be no objection as to the validity of the gift on the ground that donor had no possession at the time of the gift which could be given to the donee.
The Court further observed that the donor did all that could perfect the contemplated gift and that nothing more was required from the donor to complete the gift. But, it must be remembered that where the property is in the adverse possession, there must be some ‘overt act’ on the part of the donor to indicate his intention of parting with the possession.