Kinds of Gifts Under Muslim Law

8/15/2019 Kinds of Gifts Under Muslim Law

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Kinds of Gifts under Muslim Law – Essay

Kinds of Gifts under Muslim Law – Essay

The subject-matter of a gift is the property which is transferred by a donor to the donee.

Any kind of property which the donor owns at the time of making the gift may be the

subject-matter of gift. However, the property must be transferable under Section 6 of the

Transfer of Property Act, 1882.

As a matter of fact, any property (mal) over which ownership may be exercised, may be

transferred through a gift. Gift is a transfer of ownership (absolute interest) of the

property, therefore, the donor must own it at the time of the declaration.

Once it is established that a person owns a property and he has right to transfer it, he

can make a gift of that property whether movable or immovable. Tangible as well as

intangible property may be the subject-matter of a gift. Gift of certain specific kinds of

properties is discussed below.

Gift of Future Property:

Gift of a future property is void. The property, which is the subject-matter of a gift, must

be in existence at the time of the declaration. Through a gift, the donor transfers thelegal control or ownership in a property. For ownership the existence of the property is

necessary; there is no ownership without any property.

Therefore, if the property does not exist, the ownership also cannot exist and if

ownership does not exist, what is to be transferred? Therefore, the gift of a property

which is not in existence at the time of declaration, though it may come into existence

on a future date, is unlawful. Fatwai Alamgiri, provides thus:

“The thing itself must be in existence at the time of the gift, so that if one should give the

fruit that may be produced by his palm-tree this year or what is in the womb of his sheep

or in the udder, the gift is unlawful though power be given to take possession at the time

of production…, so also as to the butter in milk, the oil in seasame or the flour in wheat

with similar powers.”


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‘claim’ may also be gifted by him. Actionable claim’ is regarded as incorporeal movable

property.

Any other beneficial interest which is owned by a person may also be the subject-

matter of gift. Where the beneficial interest exists in an immovable property, the interest

is intangible immovable property. Thus, right to collect rents is incorporeal property, and

a gift of this right is lawful.

Similarly, gift of a Government Promissory Note or of the Zamindari Rights, held under

Government is valid. In the same manner, a right to receive specific share of the

offerings made by the pilgrims at a shrine, may also be a subject-matter of gift.

It may be noted that in the case of a gift of the ‘right to receive’ the offerings, thesubject-matter is the ‘right to receive’ and not the offerings which are to be made in

future. Therefore, gift of a right to receive the offerings is not a gift of future property; it is

a gift of the present beneficial interest and is transferable through a gift.

In brief, it may be stated that all forms of actionable claims and also the beneficial rights

in the movable and immovable properties may be the subject-matter of a gift. But, such

rights or interests must be vested in the donor at the time when the gift is made.

Actionable claims and other incorporeal properties cannot be possessed; therefore,

actual delivery of possession is neither possible nor required under the law. The gift

may be completed merely by establishing the fact that the donor has a bona fide

intention to give, and that he has done everything which was necessary to give

possession to the donee.

However, a gift of an actionable claim may be made only according to the provisions of

the Transfer of Property Act, 1882, because transfer of actionable claims has been

separately dealt with (Ch. VIII of the Act) and the contrary rules, if any, of the Muslim

law are not applicable on the transfer of actionable claims even if the transferor is a

Muslim. Accordingly, where a Muslim gifts away an actionable claim, it is not valid

unless it is in writing and is duly signed by him.

Gift of Equity of Redemption:


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Gift of an ‘equity of redemption’ is valid. When a person (mortgagor) takes some loan

from the other (mortgagee) by securing his immovable property, he has an equitable

right to redeem (take back) his property after paying the loan.

Mortgagors this right is called his ‘equity of redemption’. Equity of redemption is

mortgagor’s beneficial interest (intangible properly) and is owned by him. A mortgagor

can make a gift of his ‘right of redemption’. Where a gift of the equity of redemption is

made, the donee becomes entitled to redeem the mortgage from the mortgagee after

satisfying the debt.

In the simple mortgage the possession remains with the mortgagor, therefore, there is

no difficulty in completing the gift by delivery of possession. In such cages the donee

satisfies the debt and mortgagor i.e. the debtor (donor) gives the possession.

But, in the usufructuary mortgage, the possession is already with the mortgagee.

Therefore, the donor of the equity of redemption (i.e. mortgagor) cannot transfer the

possession to donee. Accordingly, the Allahabad, Patna, Madhya Pradesh and Calcutta

High Courts have held that in a usufructuary mortgage, the gift of ‘equity of redemption’

is valid without any formal delivery of possession.

In Fatima Bi v. Bhavsa Maracous, the usufructuary mortgagor made the gift of his equityof redemption in favour of his wife. Physical possession was not given to her as it was

not possible in the circumstances; it was held by the court that although delivery of

possession is necessary condition for a valid Hiba yet, since the mortgage was

usufructuary (the property was in possession of mortgagee) the delivery of possession

is not possible. Therefore, gift may be completed by any overt act of the donor which is

sufficient to entitle the donee to take possession. Accordingly, the gift of equity of

redemption was, held valid.

Gift of Insurance Policy:

Gift of Insurance Policy is valid. The policy-holder, whether he is Muslim or non- Muslim,

has an interest in the sum insured. The policy-holder owns this interest. However, this

interest is his contingent interest. As gift of contingent interest is void under Muslim law,

the gift of insurance policy cannot be made by a Muslim policyholder under Muslim law.


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But, under Section 38 of the Insurance Act, 1938, gift (assignment) of insurance policy

is lawful.

In Sadiq Ali v. Zahida Begam the Allahabad High Court held that the expression, “any

law or custom having the force of law to the contrary”, in Section 38(7) of the Insurance

Act, 1938, are wide enough to exclude the contrary rules of Muslim law on gifts. The

result is that where a Muslim makes a gift of his insurance policy the gift is valid

because the Insurance Act, 1938, would be applicable and not the contrary rules of the

Muslim personal law.

Gift of Dower (Mahr):

Gift of dower by a Muslim wife in favour of her husband is valid. This is called as Hiba-e-

Mahr i.e. gift of dower. But, wife can make the gift of her dower only in favour of her

husband. Dower (Mahr) is a debt which is due to the wife against her husband.

Right to claim a debt is an actionable claim, therefore, wife’s ‘right to dower’ is her

actionable claim and as such it may be a subject-matter of Hiba. It may be noted that

dower is a personal right of the wife and personal obligation of the husband. Therefore,

it can neither be transferred by any person except wife nor can be transferred to any

person other than husband. Gift of dower to any person other than husband is void.

Under Muslim law, provision has been made that wife may remit the claim of her dower

in favour of her husband. In the language of law, remission of dower by a wife is a gift of

her dower in favour of the husband. However, in a gift of dower following two rules are

significant:

(i) The wife may make the gift of her dower to husband either unconditionally or subject

to some conditions. If the gift to husband is subject to conditions, the gift to husband is

revoked upon non-fulfilment of that condition.

(ii) A gift of dower to a dead husband is also valid. It operates to extinguish the right of

the widow to claim the Mahr.”


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The gift of dower is a gift of an actionable claim, therefore, it is submitted that such gift

must be made in writing. It cannot be affected orally. However, registration is not

necessary.

Gift of ‘Services’:

The subject-matter of gift must be some property whether tangible or intangible.

Services or the natural love and affection are not properties; therefore, they cannot be

the subject-matter of a Hiba. Gift of services or that of love and affection is no gift at all.

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Kinds of Gifts Under Muslim Law