A father made a gift inter vivos to his minor son. Critically examine the validity of the said gift the light of the essential of Hiba under Mohammedan Law.

Question: A father made a gift inter vivos to his minor son. Critically examine the validity of the said gift the light of the essential of Hiba under Mohammedan Law. [HJS 2015, 2009]

Find the question and answer of Muslim Law only on Legal Bites. [A father made a gift inter vivos to his minor son. Critically examine the validity of the said gift the light of the essential of Hiba under Mohammedan Law.]

Answer

A Muslim can devolve his property in various ways. Muslim law permits the transfer of property inter vivos (gift) or through testamentary dispositions (will). A disposition inter vivos is unrestricted as to quantum and a Muslim is allowed to give away his entire property during his lifetime by gift, but only one-third of the total property can be bequeathed by will. Conventionally, a gift, being a transfer of property is governed by the Transfer of Property Act, 1882.

But Chapter VII of the Transfer of Property Act, 1882 regulating the gifts does not apply to the 'Muslim Gifts' or the 'Hiba'. Although there is no such difference between a gift made by a non-muslim or a Muslim yet, the formalities of Hiba are different from that of a gift made by a non-muslim. Therefore, Hiba is governed by Muslim Personal Law.

Basically, under Hiba, a living muslim voluntarily transfers the ownership of any property to another living person. Hence, it is a transfer inter vivos. Hiba is an immediate and unconditional 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. The gift is complete not on the declaration of the date of acceptance, but on the date on which possession is delivered.

It is also essential that for the validity of a gift the donor should divest himself completely of all ownership and domain over the subject of the gift. What is essential is that there should be a gift of the corpus. If the donor reserves to himself the right to be in possession of the corpus and the right to enjoy the same, there cannot be a valid gift as per Muslim Law.

In the decision reported in Ibrahim Kunju v. Pakkeer Muhammed Kunju, 1984 KLJ 890, it was held as follows:

"While it is true that according to principles of Mohammedan Law, a gift of immovable properties of which the donor is in actual possession is not complete unless the donee is given possession, the mere fact that the donor reserves the right to take usufruct during his lifetime does not mean that possession is not given to the donees. Such a reservation is quite consistent with the delivery of possession of the properties to the donees. A condition in a deed of gift that the whole of the usufruct would be taken by the donor during his lifetime would not make the gift invalid if possession of the subject matter of the gift was given to the donees."

In the decision reported in Munni Bai v. Abdul Gani, AIR 1959 MP 225, it was held as follows:

"Under the Mohammedan Law, the donee of a gift is not precluded by a minority from accepting the gift. When, therefore, the document embodying the intention of the do not to give the property in gift is delivered by the do not to the donee and accepted by him it amounts to acceptance of the gift on his part."

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