Gift under Muslim Law- some issues:

[C.A. DEV KUMAR KOTHARI]

References and links:

ABDUL RAHIM & ORS. VS. SK. ABDUL ZABAR & ORS 2009 -TMI - 203142 - SUPREME COURT OF INDIA

Mullic Abdool Guffoor vs. Muleka [ILR 1884 (10) Calcutta 1112]

Abu Khan vs.Moriam Bibi [1974 (40) Cuttack Law Times 1306

Valia Peedikakkandi Katheessa Umma & ors. vs. Pathakkalan Narayanath Kunhamu [AIR 1964 SC 275]

 Md. Noorul Hoda vs. Bibi Raifunnisa & ors. [1996 (7) SCC 767],

Sneh Gupta vs. Devi Sarup & Ors. [2009 (2) SCALE 765

Gift:

Making gift of property owned by a person to any other person is his personal right. However, in case the property is acquired with some restrictions, then one has to follow such restriction. Under personal law as well as per social or family norms and usages also some restrictions can be applicable on the right to make gift. Therefore, one should check the instruments under which a property was acquired, the personal law applicable in case of donor and donees, customs and usages which some time provide exceptions even on legal restrictions. For example, in case of Christians some usages and practices are considered to provide from restrictions about adoption and gifts etc. 

In this write-up, some issues relating to gifts by a person who is Muslim by religion are discussed.

As per the Muslim law gift is a contract in which there should be an offer and acceptance. The offer will naturally be from the side of donor who can offer to make some gifts to other person with or without any restrictions. The donee must also accept the offer to make it a contract. In case of movable property generally declaration coupled with handing over of possession is consider completion of gift. In case of immovable properties there may be further requirement to register the instrument of transfer by way of gift or otherwise.

Recent judgment of the Supreme Court:

In Abdul Rahim Vs. Sk Abdul Zabar vide  judgment dated 06.03.2009  the Supreme Court of India considered various aspects of gift by a Muslim.

The Court after referring to several earlier decisions on the issue and also various religious texts discussing the legal scenario and observed and held on the following lines:

               A gift indisputably becomes complete when a person transfers with immediate effect the ownership of his movable or immovable property to another person, and that other person himself or someone else with his consent takes possession of the property gifted and accepts the gift.

 Under Mohammadan Law it is a contract which takes effect through offer and acceptance. 

The conditions to make a valid and complete gift under the Mohammadan Law are as under:

(a) The donor should be sane and major and must be the owner of the property which he is gifting. 

(b) The thing gifted should be in existence at the time of hiba

{(Per author in this context phrase ‘time of hiba’  can be considered to mean time when declaration of gift is made). However dictionaries states like  Hiba is a word that comes from the Arabic language meaning, "A gift from God." A beautiful girl, usually of Middle Eastern roots, who is truly a gift from God. Empathetic, charming, and kind. Strong willed and very strong in her beliefs. Lives for love and loves life. She is lovely all around, she is God's gift to mankind.)

You must be blessed, because you have a hiba in your life.}

(c) If the thing gifted is divisible, it should be separated and made distinct.

(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.

(e) The thing gifted should not be accompanied by things not gifted; i.e. should be free from things which have not been gifted.

(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.

Other aspects relating to gift by a muslim:

    (i)  The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee.

    (ii For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose.

(iii)  Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. ( per author- gift can be made of a property which is subject to some encumbrance of any nature. The donor can make gift subject to such encumbrance and donee can accept the same as such or can accept the gift subject to clearance of encumbrance.)

(iv) It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee's ownership, the same cannot be revoked. 

   (v) A gift of immovable property made by a Muslim is valid even if it is not registered under the Transfer of Property Act or the Stamps and Registration Act.

 A specimen of gift from a Muslim is given below:

 

DECLARATION OF GIFT

I Shri …B…… son of ……F…….. having permanent residence at …………   ( I am having PAN……. ) aged about … years  do hereby make statements and  declare as follows:

1. That Smt.  ……. S…… is my younger sister to whom I made offer to gift Rs.      and she has accepted such offer to receive and also accept the gift. 

 

1. That  Smt. …… S…..        is  daughter of Shri … F…..    she is  married to and is  W/O Shri ………. and is permanently residing at ……. ( she is having PAN……)
2. That out of natural love and affection I have gifted to my sister Smt. … S ….  total  sum of Rs.   /-   (Rs. …..    only)  as per the details given below:

Cheque number / date	Bank account number  bank and branch on which cheque is drawn.	Amount Rs.	Remarks -
			Cheque personally handed over  by me
			Amount transferred by fund transfer from my bank to bank a/c of “S”.
			Handed over in cash.

1. That the above sum of money has been gifted by me out of my free will and desire while I am having  sound health physically and mentally both.
2. That I am absolute owner of the money lying in my bank account as represented by the above mentioned cheque and I have absolute right to make the gift as owner of the said sum, at my own and without any need of consent of anyone else.
3.  That my sister “S”  has accepted the gift.
4. That now my sister  “S”  is absolute owner of the said sum gifted by me and I or my legal heirs shall have no right or interest  of any kind and in any circumstances in the said sum gifted.
5. That the gift so made is unconditional and my sister “S”  shall be at liberty to use the sum so gifted at her free will and desire. 
6. That the gift is not revocable in any circumstances by me or any other person.
7. The sum so gifted is of nature of property the benefit from which is lawful under the Shariat 

In witness whereof I have solemnly declared the above statements on this  …. day of  April 2011 at       and signed the document and my sister   “..S” has also signed the same as to her acceptance of the gift:

Witnesses to both parties:                                                               (B…..)                                                                                                                                                                                                                                                 

                                                                                                           I have accepted the gift  (S…)