DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

PROJECT ON FAMILY LAW –II

TOPIC- GIFT

SUBMITTED TO: SUBMITTED BY:

 ACKNWLEDGEMENT
The success of this final report is the outcome of Guidance and valuable suggestions provided by
all the concerned without whom the report could not fide on the right back. I would like to
express my sincere gratitude to for giving me an opportunity to do this project work. I also
express my sense of deep gratitude towards the other faculty members for introducing a program
which enables us to learn more. Finally, I will be failing in my duty, if I do not thank my parents,
friends and well-wishers for their enthusiastic support and who have directly or indirectly helped
in some way or the other in making this final report a success.
 INTRODUCTION

"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and
without consideration, by one person, called the donor, to 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.

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 ariat, the grant of some limited interest in respect of the use or usufruct of some property
or right.

Where a gift of any property or right is made without consideration with the object of acquiring
religious merit, it is called sadaqah.

The terms "hiba" and "gift" are often indiscriminately used but the terms "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 favor 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, to another, called a donee
and accepted by or on behalf of the donee. 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.

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
property or being in possession of deed of gift alone. If a document of gift after its execution or
registration in favor 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.

ELEMENTS
There are there elements to complete the deed of the transfer of the property through the gift:-

1. Intention

The donor of the gift must have a present intent to make a gift of the property to the donee. A
promise to make a gift in the future is unenforceable, and legally meaningless, even if the
promise is accompanied by a present transfer of the physical property in question.

Suppose, for example, that a man gives a woman a ring and tells her that it is for her next
birthday and to hold on to it until then. The man has not made a gift, and could legally demand
the ring back at any time before the woman's birthday. In contrast, suppose a man gives a woman
a deed and tells her it will be in her best interest if the deed stays in his safe-deposit box. The
man has made a gift and would be unable to legally reclaim it.

2. Delivery
The gift must be delivered to the donee. If the gift is of a type that cannot be delivered in the
conventional sense - a house, or a bank account - the delivery can be effected by a constructive
delivery, wherein a tangible item allowing access to the gift - a deed or key to the house, a
passbook for the bank account - is delivered instead. Symbolic delivery is also sometimes
permissible where manual delivery is impractical, such as the delivery of a key that does not
open anything, but is intended to symbolize the transfer of ownership.

Certain forms of property must be transferred following particular formalities described by

statute law. In England, real property must be transferred by a written deed. The transfer of
equitable interests must be performed in writing by the owner or their agent.

A gift is assumed when property owner deeds real estate as joint tenants with rights of
survivorship. Regardless of contribution to purchase price, such a deed guarantees each tenant
equal shares upon sale or partition of the property.

3. Acceptance

The donee must accept the gift in order for the property transfer to take place. However, because
people generally accept gifts, acceptance will be presumed, so long as the donee does not
expressly reject the gift. A rejection of the gift destroys the gift, so that a donee cannot revive a
once-rejected gift by later accepting it. In order for such an acceptance to be effective, the donor
would have to extend the offer of the gift again.

TYPES
InterVivos

Inter vivos (Latin, between the livings) is a legal term referring to a transfer or gift made during
one's lifetime, as opposed to a testamentary transfer (a gift that takes effect on death) under the
subject of trust.

The term is often used to describe a trust established during one's lifetime, i.e., an Inter vivos
trust as opposed to a Testamentary trust which is established on one's death, usually as part of a
will. An Inter vivos trust is often used synonymously with the more common term Living trust,
but an Inter vivos trust, by definition, includes both revocable and irrevocable trust.

The term inter vivos is also used to describe living organ donation, in which one patient donates
an organ to another while both are alive. Generally, the organs transplanted are either non-vital
organs such as corneas or redundant vital organs such as one of the two kidneys or part of a liver.

Causa Mortis

“Causa mortis” is Latin for, “because of death.” A gift causa mortis is a gift that is made in
contemplation of impending death. The classic example is a gift made by a donor who is on his
or her death bed. However, for the gift to be considered causa mortis, the donor does not actually
have to be dying. It is sufficient that the donor make the gift because he or she know that he or
she is about to enter a situation in which there is a strong chance of death. For example: John is
about to undergo quadruple bypass surgery, during which he has approximately a 50% chance of
surviving. Before entering the surgery, he calls over his friend, William and says “You’ve
always been a good friend William. Here, take my Rolex watch.” He then gives William the
watch. This would undoubtedly be considered a gift causa mortisThe requirements for making a
gift causa mortis are the same as those requirements for making an inter-vivos gift. The donor
must intend to give the gift, the donor must deliver the property; and the donee must accept the
gift. Also, all three elements must be completed before the donor dies. Otherwise, the gift is
invalid.

There are two differences between the effect of an inter-vivos gift and a gift causa mortis. Both
differences involve revocation of the gift. The first difference is that gifts causa mortis are
revocable. Recall that an inter-vivos gift is completely irrevocable. Once the gift is completed,
the donor has no rights whatsoever in the property. However, a gift causa mortis can be revoked
by the donor at any time, for any reason. Therefore, while gifts causa mortis are actually
completed upon the delivery and acceptance, the actual right to keep the gift is only secured once
the donor dies. (Once the donor dies, the gift becomes irrevocable.)11
Outright

Outright gift is a donation of cash or other assets such as stock, real estate or personal property.
Outright gifts include cash, securities (stocks and bonds), real estate, tangible personal property,
matching gifts and gifts-in-kind.

Outright gifts made to a donee during minority belong to the donee and, during minority, should
be in charge of the guardian of the minor's estate

Onerous

Onerous gift refers to a gift that is subject to conditions. These conditions are imposed on the
recipient of the gift. Sometimes, onerous gift takes the nature of a sale because it involves the
element of consideration.

Some features of onerous gift are:

The onerous gift is subject to certain charges or obligations imposed on the donee by the donor

2. The donee is at liberty to accept any transfer of gift which is beneficial to him/her and refuse any
gifts which are onerous to the donee.

Remunerative

A gift, the object of which is to recompense the donee for services rendered to the donor Such
remunerative gifts are also irrevocable; under the former Italian code only pure remunerative
gifts were exempted from revocation. The provision was meant to understand gift that they were
irrevocable if they correspond the value of donee’s service.

REVOCATION
When gift may be suspended or revoked.—The donor and donee may agree that on the
happening of any specified event which does not depend on the will of the donor a gift shall be
suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at
the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be
revoked in any of the cases (save want or failure of consideration) in which, if it were a contract,
it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this
section shall be deemed to affect the rights of transferees for consideration without notice.

Illustrations

(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in
case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take
back the field.

(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at
pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs.
10,000, which continue to belong to A.

It appears that the donor had very clearly transferred to the donee’s ownership and title in respect
of her 1/8th share in properties. It was open to the donor to transfer by gift title and ownership in
the property and at the same time reserves its possession and enjoyment to herself during her
lifetime. There is no prohibition in law that ownership in property cannot be gifted without its
possession and right of enjoyment

Revocation by Mutual Agreement:

Donor and done may agree that the gift shall be suspended or revoked upon happening of an
event not dependant on the will of the donor. The condition revoking the gift must be express; it
should not be merely in the form of a wish or desire. In other words, the condition on the non-
fulfillment of which the donor may revoke the gift must be expressly laid down in the gift. A gift
of certain properties was executed in lieu of the past and future services rendered by done to
donor. But failure of done to render services to donor or to maintain donor in future, was not
specified to be a condition for revocation of the gift deed. The Himachal Pradesh High Court
held that since the condition for revocation of gift upon donee’s failure to render services to the
donor was not laid down in the deed, it was unconditional gift and, therefore, cannot be revoked
by the donor.

However, even though a condition is not laid down in the gift deed itself, and has been provided
under a mutual agreement separately but forms part of the transaction of gift, the condition
would be valid and enforceable. The condition upon which a gift is to be revoked must not
depend solely on the will of the donor. A gift revocable at the pleasure of donor is no gift at all
The condition or stipulation providing for revocation must have been mutually agreed upon at
the time of the gift. If such agreement is made after completion of gift, since the gift has already
become absolute, it cannot be revoked. However, it’s not necessary that stipulation for
revocation is given in the deed of gift itself. What is necessary is that stipulation and gift both are
made at the same time. They might be in two separate documents but must form part of the same
transaction. That is to say, the stipulation must relate to the same gift which is to be revoked.

Revocation by Rescission as Contracts:

Gift is a gratuitous transfer of ownership made voluntarily. If it could be proved that the gift was
not made voluntarily, i.e., the consent of the donor was not free, the gift must be revoked. Gift is
always preceded by an express or implied contract; offer by donor and acceptance by done. If the
preceding contract itself is rescinded or revoked there is no question of taking place of transfer
(gift) made under it. Accordingly, under Section 126 a gift is revoked also on any of the grounds
on which it might be rescinded has it been a contract. Section 19 of the Indian Contract Act
provides that “Where consent to an agreement is caused by coercion, undue influence, fraud or
misrepresentation, the agreement is a contract voidable at the option of the party whose consent
was so obtained”. Thus, where the gift is not made voluntarily because of any of the factors
mentioned above can be revoked by the donor. It is to be noted that this section deals with
revocation which means rescission or repudiation of gift; it does not deal with cases where the
gift is void, e.g., for want of donor’s tide. So, where the donor’s consent has been obtained by
coercion, undue influence, fraud or misrepresentation the donor has option to repudiate or revoke
the gift. If he does not exercise this option, the gift is not revoked. Gift may be revoked on the
above mentioned grounds only by the donor, he cannot assign this right to any other person.
However, after donor’s death, his legal heirs may sue for the revocation of gift on any one of
these grounds.

The period of limitation for the revocation of gifts on the ground of fraud, coercion,
misrepresentation or undue influence is three years from the date on which such facts are known
to the plaintiff (donor). The right to revoke the gift on the above mentioned grounds is lost when
the donor ratifies the gift either expressly or by his conduct.
No Revocation on any other ground:

Except on the ground of

(a) Condition subsequent not depending on the pleasure of the donor and

(b) On the grounds justifying of a contract, a gift cannot be revoked on any other ground.

A gift deed was validly executed in favor of the done. It was held that a simultaneous claim by
the donor that the gift deed was revoked unilaterally by him and lodged for registration was not
valid as there was no participation by the donee.

IN MUSLIM LAW
The conception of the term ‘gift’ as used in the Transfer of Property Act, 1882 is somewhat
different from the practice under the Muslim Law. Under the Muslim Law a gift is a transfer of
property or right by one person to another in accordance with the provisions provided under
Muslim law. Hiba (Tamlik al ain) , is an immediate and unconditional transfer of the ownership
of some property or of some right, without any consideration or with some return (ewaz); and
The term ‘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’. The other types of gifts
include Ariya (Tamlik al manafe), where only usufruct is transferred and Sadqah where the gift
is made by the muslim with the object of acquiring religious merit.

A Man may lawfully make a gift of his property to another during his lifetime; or he may give it
away to someone after his death by will. The first is called a disposition inter vivos; the second, a
testamentary disposition. Muhammadan law permits both kinds of transfers; but while a
disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-
third of the net estate. Muhammadan 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.

The Hanafi lawyers define hiba as ‘an act of bounty by which a right of property is conferred in
something specific without an exchange’. The Shias hold that ‘a hiba is an obligation by which
property in a specific object is transferred immediately and unconditionally without any
exchange and free from any pious or religious purpose on the part of the donor’. Muslim law
allows a Muslim to give away his entire property by a gift inter vivos, even with the specific
object of disinheriting his heirs.

ESSENTIALS OF HIBA

Since muslim law views the law of Gift as a part of law of contract, there must be an offer (izab),
an acceptance (qabul), and transfer (qabza). In Smt Hussenabi v Husensab Hasan[vii], a
grandfather made an offer of gift to his grandchildren. He also accepted the offer on behalf of
minor grandchildren. However, no express of implied acceptance was made by a major
grandson. Karnataka HC held that since the three elements of the gift were not present in the case
of the major grandchild, the gift was not valid. It was valid in regards to the minor grandchildren.

Thus, the following are the essentials of a valid gift-

1. A declaration by the donor: There must be a clear and unambiguous intention of the
donor to make a gift. Declaration is a statement which signifies the intention of transferor
that he intends to make a gift. A declaration can be oral or written. The donor may
declare the gift of any kind of property either orally or by written means. Under Muslim
law, writing and registrations are not necessary. In the famous case of Ilahi Samsuddin v.
Jaitunbi Maqbul (1994 SCC (5) 476) it was held that under Muslim Law, declaration
as well as acceptance of gift may be oral whatever may be nature of property gifted.
When the gift is made in writing, it is known as Hibanama. This gift deed need not be on
stamp paper and also need not be attested or registered. In the famous case of Md.
Hesabuddin v Md. Hesaruddin (AIR 1984 Gauhati 41), where the gift was made by a
Muslim Woman and was not written on a stamp paper, Guahati High Court held that the
gift was valid The declaration made by the donor should be clear. A declaration of Gift in
ambiguous words is void. In Maimuna Bibi v. Rasool Mian (AIR 1991 Pat 203), it was
held that while oral gift is permissible under Muslim law, to constitute a valid gift it is
necessary that donor should divest himself completely of all ownership and dominion
over subject of gift. His intention should be in express and clear words. According to
Macnaghten, “A gift cannot be implied. It must be express and unequivocal, and the
intention of donor must be demonstrated by his entire relinquishment of the thing given,
and the gift is null and void when he continues to exercise any act of ownership over it.”
 The declaration should be free from all the impediments such as inducement, threat,
coercion, duress or promise and should be made with a bona fide intention.
2. Acceptance by the donee: A gift is void if the donee has not given his acceptance.
Legal guardian may accept on behalf of a minor. Donee can be a person from any
religious background. Hiba in favor of a minor or a female is also valid. Child in the
mother’s womb is a competent done provided it is born alive within 6 months from the
date of declaration. Juristic person are also capable of being a donee and a gift can be
made in their favor too. On behalf of a minor or an insane person, any guardian as
mentioned under the provisions of Muslim law can accept that gift. These include:
Father
Father’s Executor
Paternal Grand-Father
Paternal Grand Father’s Executor

3.Delivery of possession by the donor and taking of the possession by the done: In
Muslim law the term possession means only such possession as the nature of the subject is
capable of. Thus, the real test of the delivery of possession is to see who – whether the donor
or the donee – reaps the benefits of the property. If the donor is reaping the benefit then the
delivery is not done and the gift is invalid.22

The mode of delivery of possession depends completely upon the nature of property. A
delivery of possession may either be:
Actual
Constructive
1. Actual Delivery of Possession: Where the property is physically handed over to the
donee, the delivery of possession is actual. Generally, only tangible properties can be
delivered to the done. A tangible property may be movable or immovable. Under
Muslim law, where the mutation proceedings have started but the physical possession
cannot be
2. given and the donor dies, the gift fails for the want of delivery of possession.
However, in such cases if it is proved that although, the mutation was not complete
 and the done has already taken the possession of the property, the gift was held to be
valid.
2. Constructive Delivery of Possession: Constructive delivery of possession is
sufficient to constitute a valid gift in the following two situations:23
Where the Property is intangible, i.e. it cannot be perceived through senses.
Where the property is tangible, but its actual or physical delivery is not possible.
Under Muslim law, Registration is neither necessary, nor sufficient to validate the
gifts of immovable property. A hiba of movable or immovable property is valid
whether it is oral or in writing; whether it is attested or registered or not, provided that
the delivery of possession has taken place according to the rules of Muslim Law.

Constiutional Validity of Hiba

The question of whether the first exemption was constitutionally valid in regards to the right to
equality (article 14 of the Indian Constitution) was rather rapidly solved by the Courts, validating
the disposition on the grounds of ‘reasonable classification.

It is enough to say that it is now well settled by a series of decisions of this Court that while
Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of
legislation, and in order to pass the test of permissible classification, two conditions must be
fulfilled, namely:24

(1) That the classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group; and,

(2) That differentia must have a rational relation to the object sought to be achieved by the
statute in question.

The classification may be founded on different bases such as, geographical, or according to
objects or occupations and the like. The decisions of this Court further establish that there is a
presumption in favor of the constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the constitutional guarantee; that it
must be presumed that the legislature understands and correctly appreciates the needs of its own
people and that its laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds; and further that the legislature is free to
recognise degrees of harm and may confine its restrictions to those cases where the need is
deemed to be the clearest.

It is well known that there are fundamental differences between the religion and customs of the
Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding gift are
based on reasonable classification and the provision of Section 129 of the Transfer of Property
Act exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the
Constitution.

The most essential element of Hiba is the declaration, “I have given”. As per Hedaya, Hiba is
defined technically as:

“Unconditional transfer of existing property made immediately and without any exchange or
consideration, by one person to another and accepted by or on behalf of the latter“.

According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the property
without any return.

CONCLUSION
Gift is a transfer of property where interest is transferred from one living person to another,
without any consideration. It is a gratuitous and inter vivos in nature. This is the general
definition that is accepted by all the religions, including Muslim law. As per the Muslim Law, a
gift is called as Hiba.

Under English laws, right in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. Rights in land described as “estate” under English Law
do not always imply only absolute ownership but it also includes rights which fall short of it and
are limited to the life of the grantee or in respect of time and duration or use of the same.27

27 http://www.shareyouressays.com/117603/what-is-the-process-of-revocation-of-gifts-under-
muslim-law,

Under Hindu Law, gift is regarded as the renunciation of the property right by the owner in the
favor of donee. According to Jimutvahana, under Hindu law’s concept of gift, ownership is not
created by acceptance but by renunciation of the donor. But however Mitakshara school of hindu
law considers acceptance as an important ingredient for gift. The donor can divest his interest by
renunciation but cannot impose the same on the donee if he is not ready to accept.

Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650
AD. 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 (called as Ayn) and the usufruct in the
property (as Manafi). Over the corpus of property the law recognises only absolute dominion,
heritable and unrestricted in point of time. 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 and the usufruct is also regarded as 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. 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 recognizes ownership of the land limited in duration while Muslim law admits only
ownership unlimited in duration but recognizes interests of limited duration in the use of
property. This basically differentiates Muslim Law’s concept of property and gift from that of
English Law.28

Surprisingly enough, all gifts are revocable before the actual transfer of property is made (i.e.)
any person can unilaterally revoke his or her promise to gift before the promise is fulfilled. After
possession, the laws of revocation differ between Sunni and Shi’a laws.
 BIBLIOGRAPHY
1. www.wikipedia.com

2.http://www.shareyouressays.com/117603/what-is-the-process-of-revocation-of-gifts-
undermuslim-law

3. http://www.legalindia.in/laws-article-relating-to-gift,

4. http://lawstudentshelpline.com/index.php/muhammadan-law/2-uncategorised/382-q-what-is-
hibawho-can-make-a-hiba-what-are-the-essentials-of-a-hiba-is-a-hiba-made-with-intent-to-
defraudcreditors-valid,

5. Sinha, R.K., ‘Muslim Law’, Central Law Agency, Allahabad, 2006

6. http://wahabohidlegalaid.blogspot.in/2013/03/hiba-gift.html

7. https://makashfa.wordpress.com/tag/history/page/110/,

8. http://www.scribd.com/doc/126718471/LAW-OF-GIFT-Muslim-LAw

9. http://archive.org/stream/cihm_12245/cihm_12245_djvu.txt

10. Kesari, U.P.D., ‘Modern Hindu Law’, Central Law Publications, Allahabad.