February 12, 2019 | Author: Gohar Yaseen | Category: Ownership, Property, Concurrent Estate, Deed, Consideration
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Gift in Mohammadan Law...


Gift "Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor donor,, to another, another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. It is required to be a voluntary transfer of property to another made gratuitously and without consideration. The conception of the term "gift" as used In the Transfer of Property Act  is somewhat different from the use in Mohammedan law . In the Mohammedan law: "a gift is a transfer of property or right by one person to another in accordance with the provisions given in the Mohammedan law and includes: a) A hiba, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and b) An areat, the grant of some limited interest in respect of the use or usufruct of some property or

right. c) sadaqah: Where a gift of any property or right is made without consideration with the object of 

acquiring religious merit. The terms "hiba" and "gift"  are often indiscriminately used but the term "hiba" is only one of the kinds of transactions which are covered by the general term "gift".

A hiba is a transfer without consideration. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law. A gift is not a contract (though in Muslim law it is called a contract) but the principle may be applicable even to gift. In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or taking are two contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates that a gift is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor donor,, to another, another, called a donee and accepted by or on behalf  of the donee.

Essential Elements of a Gift: The essential elements of a gift are: (a) The absence of consideration; (b) the donor; (c) The donee; (d) The subject-matter; (e) the transfer; and the acceptance. The concept of gift is diametrically opposed to any presence of consideration or compensation. Acceptance:In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No

particular mode of acceptance is required and the circumstances throw light on that aspect. A transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor.. Factum of acceptance can be established by different circumstances such as donee taking a donor property or being in possession of deed of gift alone. If a document of gift after its execution or registration in favour of donee is handed over to him by the donor whom he accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that possession is given raises a presumption of acceptance.

Conception Of Property: English Law: In order to appreciate the questions of conditions in gifts (and also in bequests) it is necessary to first note the different conceptions of property in English and Mohammedan laws . The

English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. Rights in land described as "estate in land" do not always imply only absolute ownership but also rights which fall short of it and are limited to the life of the grantee or

otherwise limited in respect of time and duration or use property in all these various forms are described as "estate". Ownership of land is thus split up into estates distinguished in point of quality (e.g., into legal and equitable estates) and in point of duration (e.g., estates in fee simple, in tail, for life or in remainder.' Mohammedan Law: In general, Muslim law draws no distinction between real and personal property, and there is no authoritative work on Muslim law, which affirms that Muslim law recognises the splitting up of ownership of land into estates. What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of  time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Mohammedan law they are only usufructuary interest (and not rights of  ownership of any kind). Thus, in English law a person having interest in immoveable property for limited periods of time is said to be the "owner" of the property during those periods. The usufruct is also a part of the corpus. On the other hand, in Muslim law, a person can be said to be an "owner" only if he has full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment of property is granted to a person for life or other limited period such person cannot be said to be an "owner" during that period. The English law thus recognises ownership of the land limited in duration while Muslim law admits only ownership unlimited in duration but recognises interests of limited duration in the use of property. There is no difference between the several schools of Muslim law in their fundamental conception of  property and ownership. A limited interest takes effect out of the usufruct under any of the schools.

The Donor: Doner's Qualification:

The donor is the person who gives. Any person who is sui juris can make a gift of his property. A minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would therefore be void. Trustees cannot make a gift out of trust property unless authorized by the terms of  the contract. In Mohammedan law majority is to be determined according to Sec. 3 of the Majority Act, and not by Mohammedan law. The age of majority as regards matters other than marriage, dower, divorce and adoption, is now regulated by the Indian Majority Act IX of 1875. Section 3 of the Act declares that a person shall be deemed to have attained majority when he shall have completed the age of eighteen years . In the case, however if a minor of whose person or property a guardian has been appointed, or of whose property the superintendence has been assumed by a Court of Wards, the Act provides that the age of  majority shall be deemed to have been attained on the minor completing the age of twenty-one years. Soundness of mind and majority are the only qualifications required for making a gift. A gift to be

valid must be made by a person with his free consent and not under compulsion. The donor must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the donor was able to apprehend the transaction.

Unrestricted Donor's powers in Mohammedan law: A man may lawfully make a gift of his property to another during his lifetime, or he may give it away to some one after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition . Mohammedan law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum  and testamentary disposition is limited to onethird of the net estate. Mohammedan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will. A gift may be made to a stranger wholly excluding the heirs . Pardanashin Lady Free consent means, the consent should not have been obtained by fraud, misrepresentation or undue influence. An insolvent donor is not competent to make a gift.

The Donee: The donee is the person who accepts the gift , by or on behalf of a person who is not competent to contract. On behalf of a minor, a natural guardian can accept a gift containing a condition that the

person nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would amount to recognition by the natural guardian of the nominated person as the manager or the agent of  minor for the purpose of such property.A minor therefore may be a donee; but if the gift is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the gift. The words 'accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance . A gift can be made to a child and could be accepted on its behalf. The donee must be an ascertainable person and be a donee under this section; nor can a gift be made to an unregistered society .

Gift to two or more persons: A gift to two or more persons may be a gift to them as  joint tenants or as tenants in common. The presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a Hindu gift the donees are presumed to take as tenants in common It is necessary in Mohammedan law that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid. It is necessary that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid.

Gifts of Usufruct(Ariat) to unborn persons: A hiba stands on a different footing from a gift of a limited interest in usufruct a gift of future usufruct to unborn persons is valid provided that the donee is in being at the time when interest opens out for heirs.

Child in the womb: A hiba in favour of a child in the womb is valid if the child is born within six months from the date of the hiba because in that case it is presumed that the child actually existed as a distinct entity in the womb of his mother.

Juristic persons: Agift to juristic persons or any other institution is valid. So a gift to corporate units, e.g. a tauazhi (consisting of a mother and of all her children and not descendants in the female line governed by Marumakkathayam law) are valid. Such a gift will be valid as being one for the whole body. It has been held that a mosque is recognized by the Mohammedan jurist as a juristic person, and that a valid gift can be made in favour of a mosque.

Gifts to Non-Muslims: A gift may be made to a non-Muslim but in such a case the property will, after the completion of the gift, be subject to the personal law of the donee and not that of donor.

Subject Of Gift: The subject matter of the gift must be certain existing movable or immovable property.It may be land, goods, or actionable claims. It must b e transferable under s 6. But it cannot be future property. A gift of a right of management is valid; but a gift of future revenue of a village is invalid. These cases were decided under Hindu and Mohammedan law respectively but they illustrate the principle. In a Calcutta case, it was said that the release of a debt is not a gift, as a gift must be of tangible property. It is submitted that the release of a debt is not a gift as it does not involve a transfer of  property but is merely a renunciation of a right of action. It is quite clear that an actionable claim such as a policy of insurance may be the subject of a gift. It is submitted that in a deed of gift the meaning of the word 'money' should not be restricted by any hard and fast rule but should be interpreted having regard to the context properly construed in the light of all the relevant facts. Therefore in order to constitute a valid gift, there must be an existing property. In Mohammedan law any property or right which has some legal value may be the subject of a gift.

Hiba Of Corporeal And Incorporeal Property:

it is not necessary that a hiba must be of some corporeal or tangible property, it may be made not only

of corporeal property but also of incorporeal property. Thus, a hiba may be made of actionable claims or chooses-in-action, e.g. debts,negotiable instruments or Government promissory notes. Gift of a debt:

the gift of a debt to the debtor is lawful both by analogy (qiyas) and liberal interpretation (istehsan). A gift takes effect in two ways, by transfer of right of property (tamlik) or by cancellation or discharge (iskat). The gift of a debt to the debtor comes under the latter category. If the creditor releases the principal debtor from debt, both the debtor and surety are released. The release of a debt may also be made in favour of the heirs of the debtor if he dies.

Equity of Redemption can be subject of a valid gift:

where the property gifted is subject to a usurfructory mortgage, what is gifted is merely the equity of  redemption and not physical possession of the property itself.

Voluntarily :

In this section the word 'voluntarily' bears its ordinary popular meaning. It denoting the exercise of  the unfettered free will , and not its technical meaning of 'without consideration'. When a gift is made, it must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect , and also that undue influence or pressure was not exercised upon clear intention to make an out-and-out gift, but the intention has failed for want of  transfer or any other cause, the courts will not convert what was meant to be an out-and-out gift into a trust, and the donor will not be deemed a trustee of the property for the intended donee. The gift will fail. Also where the husband deposited certain ornaments with a bank for safe custody in the joint names of himself and his wife, with direction to be delivered to be either or survivor, it did not amount to a gift, as the husband retained dominion over the property. Where a person keeps money to fixed deposit in the name of his niece, brought up and given in marriage by him, there is an inference of gift in favour of the niece. Where the motive behind the deed of gift was unequivocal to give the transferee a title which would act as a safeguard against any claim for pre-emption, the transaction for that reason cannot be called a sale. Similarly where a person settles an annuity upon his alleged wife, the settlement cannot be construed to be a contract for consideration of love and affection, but is a gift pure and simple.

Donative intention (motive) and consideration: A gift is a transfer. But it does not contain any element of consideration. Complete absence of  monetary consideration is the main , hallmark, which distinguishes a gift from a grant or any other transactions for valuable or adequate consideration. Where there is any equivalent of benefit measured in terms of money in respect of a gift, the transaction ceases to be a gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these financial considerations cannot be called or held to be legal considerations as understood by law. Legal consideration is one recognised or permitted by law as valid and lawful. The term is also sometimes used as equivalent to a 'good' or 'sufficient' consideration. Love and affection is a sufficient consideration when a gift is contemplated, but it is not considered as a 'valuable' consideration when such is required.

Onus of proof: Where a very old man, with weak eyesight , sues for cancellation of the deed of gift executed by him in favour of his son alleging that it was not his voluntarily act. The circumstance also indicated that the donee was in a position to dominate the will of the donor. Under such circumstance the onus shifts on to the donee to prove that the gift was made voluntarily. In another case of the Orissa High court, Gift deed is alleged to have been taken from a pardanashin lady by practicising fraud. When the plaintiff is an illiterate or pardanashin lady , in spite of the fact that she is unable to establish her case of practising fraud, the onus still remains upon the donee to establish conclusively that the document was executed after it was read over and explained to her and after she understood the contents thereof.

Delivery of possession: Delivery of possession of the gifted property in English law, is not absolute requirement, for the completeness or the validity of the gift as found in Muslim Law of Gifts. Even where the donee resides with the donor in the property although no physical departure by the

donor or formal entry by the donee, is necessary, the gift has to be completed by the donor indicating a clear intention of his part to transfer possession and to divest himself of all control over the subject of  the gift.' Among the conditions required for the validity of a gift under Mohammedan law the most essential is that of delivery of possession, actual or constructive, with the permission of the donor, without which a gift cannot be valid. It should, however, is noted that while the delivery of 

possession is an essential condition for the validity of the gift, it is not necessary that in every case there should be a physical delivery of possession. Possession the delivery of which would complete a gift may be either actual or constructive. All that is necessary is that the donor should divest himself  completely of all ownership and dominion over the subject of the gift. The relinquishment of control is thus necessary to complete the gift. The real test of the delivery of possession is to see whether the donor or donee reaps the benefit; if the former possession is not transferred and if the latter, it is transferred, and the gift is complete if the donee is permitted directly or indirectly to receive the benefit. Constructive possession of the subject of the gift is therefore sufficient.

A gift of immovable property can only be made by a registered instrument. A deed cannot be dispensed with even for a property of small value, as in the case of a sale. And as a further precaution, attestation by two witnesses is required. This provision excludes every other mode of transfer and even if the intended donee is put in possession, a gift of immovable property is invalid without a registered instrument.

Essentials Of Gift Under Mohammedan Law: Under Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration of gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of gift. Courts have consistently held that when there is no compliance of any of the above three essential conditions the gift renders itself as invalid. It is one of the essential requirements of a gift that it should be made by the donor 'without consideration'. The word 'consideration' has not been defined in the T.P. Act, but means the same as in the Contract Act excluding natural love and affection. If not, and if the transfer involved consideration, the transaction would amount to a sale within the meaning of sec. 54 or to an exchange within the meaning of sec. 118. The essence of a gift inter vivos must be without 'consideration' of the nature defined in sec. 2(d) of the Contract Act. Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift either of movable or immovable property. In another case the Patna High Court held that under the Mohammedan Law for validity of the deed of gift four elements are necessary ¢ declaration of gift by the donor ¢ relinquishment by donor of-ownership-and dominion ¢ acceptance of the gift by donee, and ¢ delivery of possession of the property by donor. Under the Mohammadan Law it is essential as regards gift that the donor should divest himself  completely of all the ownership and dominion over the subject of the gift. It is essential to the validity of the gift that there should be delivery of such possession as the subject of the gift is susceptible of. According to Muslim law it is not necessary that there should be deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered.

When Gift May Be Suspended Or Revoked: Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.the following are those conditions(1) That the donor and donee must have agreed that the gift shall be suspended or revoked on the happening of a specified event; (2) such event must be one which does not depend upon the donor's will; (3) the donor and donee must have agreed to the condition at the time of accepting the gift; and (4) the condition should not be illegal, or immoral and should not be repugnant to the estate created under the gift. Section 126 is controlled by sec. 10. As such, a clause in the gift deed totally prohibiting alienation is void in view of the provisions contained in sec. 10. A gift, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by resorting to legal remedy in a competent court of law.

A Mohammedan on the other hand can revoke a gift even after delivery of possession except in the following cases: (1) When the gift is made by a husband to his wife or by a wife to her husband; (2) when the donee is related to the donor within the prohibited degrees; (3) when the gift is Sadaka (i.e. made to a charity or for any religious purpose). (4) when the donee is dead; (5) when the thing given has passed out of the donee's possession by sale, gift or otherwise; (6) when the thing given is lost or destroyed; (7) when the thing given has increased in value, whatever be the cause of the increase; (8) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and (9) when the donor has received something in exchange for the gift Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.

Onerous Gift: 'Onerous gift' is a gift made subject to certain charges imposed by the donor on the donee. The principle behind this is that he who accepts the benefit of a transaction must also accept the burden of  the same. This section, being an embodiment of a rule of equity, applies equally to Hindus and Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is sufficient; there need not be any separate and express acceptance of the onerous condition also at the same time. The acceptance of the gift will carry with it the acceptance of the onerous condition also, even though at the time of the gift the donee was not aware of such condition, specially where the onerous condition is of a trifling nature (payment of Rs. 5 as monthly maintenance to a certain person for life). A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.

Universal Donee: The essential condition to constitute a universal donee is that the gift must consist of the donor's whole property. If any portion of the donor's property, no matter whether it is moveable or immovable, is excluded from the operation of the gift or the endowment, the donee is not a universal donee. This concept is embodied in section 128 of the Transfer of property Act. Where a Mahomedan made a gift of  the whole of his estate to his son and directed him to pay his debts, the son was a universal donee and he was liable to pay all debts of the donor. There is no rule of Mahomedan law which conflicts with the provisions of this section.

Conclusion: The conception of the term gift and subject matter of gift has been an age old and traditional issue which has developed into a distinct facet in property law. Different aspects related to gift in property act and its distinction with the Mohammedan law and its implications has been the major subject matter of  this article. In considering the law of gifts, it is to be remembered that the English word 'gift' is generic and must not be confused with the technical term of Islamic law, hiba. The concept of hiba and the term "gift as used in the transfer of property act, are different. As we have seen in the project that Under Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration of gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of gift. The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. The essential elements of a gift are (a) The absence of consideration; (b) the donor; (c) the donee ;(d) the subject-matter; (e) the transfer; and the acceptance Thus this striking difference between the two laws relating to gift forms the base of this project in understanding its underlying implications.

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