Examine the proposition that in Hanafi law a grant of life estate must necessarily transfer the whole ownership.
Find the question and answer of Muslim Law only on Legal Bites.
Question: Examine the proposition that in Hanafi law a grant of life estate must necessarily transfer the whole ownership. [RJS 1977]Find the question and answer of Muslim Law only on Legal Bites. [Examine the proposition that in Hanafi law a grant of life estate must necessarily transfer the whole ownership.]AnswerIt is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Relinquishment of control...
Question: Examine the proposition that in Hanafi law a grant of life estate must necessarily transfer the whole ownership. [RJS 1977]
Find the question and answer of Muslim Law only on Legal Bites. [Examine the proposition that in Hanafi law a grant of life estate must necessarily transfer the whole ownership.]
Answer
It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Relinquishment of control over the subject is necessary to complete the gift. A gift with a reservation of possession of property by the donor during his life is void as held in Mahomed Aslam Khan v. Khalilul Rehman, (1947) 51 C.W.N. 832.
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.
Under Sunni law, the gift of the 'life interest' or 'life estate' is not possible because a gift for life operates as an absolute gift. But, under Shia law, the gift of life interest (or life estate) is possible. Where a Shia donor makes a gift 'for life', the donee can enjoy the property during his life but after his death, the property reverts back to the donor or to the donor's legal heirs.
Under Muslim law, whenever the term property is used in its general sense it means and includes its corpus as well as the usufruct. Therefore, ordinarily, a transfer of property means a transfer of the corpus together with all the beneficial interests (usufruct) of that property.
In Nawazish Ali Khan v. Ali Raza Khan, AIR 1948 Privy Council 134, it was held by the Privy Council that the Mohammedan Law requires the gift of the corpus itself and if there is anything repugnant to such a gift such a repugnant condition would be invalid. But it is necessary that the gift should be 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 under the law.
Mayank Shekhar
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