Explaining the essential conditions of a valid gift under Muslim Law, state the circumstances if any when the transfer of possession is not necessary for making a gift.

Question: Explaining the essential conditions of a valid gift under Muslim Law, state the circumstances if any when the transfer of possession is not necessary for making a gift. [JJS 2014]

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Answer

Under the Muslim law, for the validity of a gift, the following formalities must be complied with:

i. Clear and unequivocal declaration by the donor

ii. Acceptance by the donee

iii. Delivery of possession.

i. Clear and unequivocal declaration by the donor

The first condition required for the validity of a gift is the declaration of intention. Such declaration may be made orally or in writing. An unequivocal declaration of intention to make a gift by the donor or his agent the first is an essential element of the validity of a gift. The form of declaration is not immaterial. Such declaration of intention must be bona fide. Such declaration may be made orally or by writing a deed.

ii. Acceptance by the donee

The second condition necessary for the validity of a gift is acceptance by the donee or his agent. Such acceptance may be made expressly or impliedly.

iii. Delivery of Possession

A gift is complete only after the delivery of the possession. So the third and most essential condition required for the validity of a gift is delivery of possession of the property whether movable or immovable of gift. A gift not accompanied by possession is void ab initio. Under Muslim law, a gift is complete only after the delivery of the possession.

Exception to actual delivery of Possession:

Under Mohammedan Law, every property whether movable or immovable, delivery of possession, actual or physical is necessary to make it a valid transaction of gift. However, there are few exceptions to this general principle. In such cases symbolic or constructive delivery of possession is sufficient. The exceptions are:

a. Joint residence of the donor and the donee: When the donor and the donee are both residing in the house, which is the subject matter of the gift, the actual or physical delivery of possession is not necessary, in such a case the gift will be completed by some overact by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the property.

b. Property in possession of other persons: The property of the gift may not be in the possession of the donor himself but in the possession of some other person as a mortgagee, tenant or licensee. This property of the gift may be held adversely by other persons or under attachment of arrears of revenue. A valid gift may be made of the possession of a mortgagee, even if the donor makes a constructive delivery of possession. Such possession may be made by the donor by handing over the gift deed and divesting himself of his title, right and interest in the property.

c. Gift between spouses: When a husband or a wife makes gifts to each other of some property in their joint possession, then the physical delivery of possession is not required. In Mohd. Sadiq v. Fakhr Jahan, AIR 1932 PC 13, where the donor handed over the keys of the house to his wife, the subject matter of the gift, the gift would be valid even though the husband continued to live in that house.

d. Gift by a guardian to his ward: In the case of a gift made by a guardian to his ward, actual delivery of possession is not necessary, only an indication of a bona fide intention to stand in loco parentis to the donee or is in lawful custody of donee.