What are the essentials of a valid gift under Muslim Law?

Question: What are the essentials of a valid gift under Muslim Law? 

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Answer

Essentials of a valid gift (also referred to as Hiba) under Muslim Law:

There are mainly three conditions that need to be fulfilled for the successful transfer of property or the making of a gift by a Muslim person. These conditions are as follows:

1. Declaration of gift by the donor.
2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and its acceptance by the donee.

1. Declaration of gift by the donor

Declaration of gift by the donor represents his/her willingness to make a gift. The declaration made should be clear and not ambiguous. A donor can make the declaration in two ways that are oral or written.

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul, 1994 SCC (5) 476, it was held by the apex court that under Muslim laws the declaration made by the donor and the acceptance made by the donee can be oral irrespective of the nature of the property. The declaration and acceptance made in the form of writing are through the way of gift-deed. In Muslim law, the gift deed is known as Hibanama. The Hibanama may not be on the stamp paper and is not compulsory to be registered.

In the case of Md. Hesabuddin v. Md. Hesaruddin, on 12 May 1983, where a Muslim woman transferred her property by the way of a Gift or Hiba and the gift deed was not on the stamp paper it was held to be valid by the Gauhati High Court.

The declaration should also be expressed. A gift made in an unambiguous manner is null and void.

2. Acceptance of gift by the donee

For the valid gift, it must be accepted by the donee. If there are more than one or two donee, then it must be accepted by both the donee and must be accepted separately. In Islamic law the Hiba is treated as a bilateral transaction i.e the donor makes the transfer and it must be accepted by the donee. If the acceptor of the gift is a minor or any person of unsound mind then it can be accepted by his guardians.

3. Transfer of possession by the donor and its acceptance by the donee

After the transfer proposed by the donor and its acceptance by the donee is complete the next important condition which needs to be fulfilled for a valid gift is the transfer of possession by the donor and its acceptance by the donee. As the formalities of a gift are mentioned under Section 123 of the Transfer of Property Act, of 1882 but these are not applicable in the case of "Hiba". In Hiba, the transfer is complete as soon as the possession is transferred from the donor to the donee. The valid effect of the gift is from the date of transfer and acceptance of the possession and not from the date of declaration.

In the case of Noorjahan v. Muftakhar, AIR 1970 All 170, the court held that where the declaration of the gift is made by the donor but afterward till his death all the profits made out of the property is taken by the donor himself the gift is invalid and not effective in nature since the transfer of possession has not taken place.

The mode of delivery of possession is dependent upon the nature of the property. The mode of delivery can be actual or constructive.

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