Gift under Muslim Law | Civil Law for Judiciary Exams PDF Download

Significance of Gift in Islamic Tradition

• Gifts hold deep importance in Muslim law, representing acts of benevolence and charity within the Islamic faith.
• They symbolize the spirit of generosity and giving without expecting anything in return.
• Gift-giving is a voluntary act that fosters goodwill and strengthens social bonds in Islamic communities.

Definition of Gift

• In Islamic law, a gift refers to the voluntary transfer of ownership of an existing property from a donor to a donee without any form of payment or consideration.
• The essence of a gift lies in the act of giving without expecting a reciprocal benefit.

Essential Elements of a Gift

• Voluntary Transfer: A gift must be given willingly by the donor without any form of coercion.
• Transfer of Ownership: The gift entails the complete transfer of ownership rights from the donor to the donee.
• Existing Property: A gift can only involve properties that currently exist and are owned by the donor.
• No Consideration: A gift should be devoid of any form of payment or consideration from the donee.

Principles behind Gift Giving in Islam

• Generosity: Gift-giving reflects the Islamic value of being generous and selfless towards others.
• Charity: Gifts are seen as acts of charity, promoting the welfare of the community and aiding those in need.
• Spirit of Giving: Islam emphasizes the importance of giving with an open heart, expecting rewards from the divine rather than from the recipient.

Essential of a Valid Gift under Muslim Law

• Declaration by the donor: The donor must clearly and unambiguously express the intention to make a gift under Muslim Law. This declaration should leave no room for doubt regarding the donor's willingness to transfer ownership. For example, stating "I gift my car to my nephew" would fulfill this requirement.
• Acceptance by the donee: A gift under Muslim Law is only valid when the donee accepts it. If the donee does not accept the gift, it is considered void. In the case of a minor, the legal guardian can accept the gift on behalf of the minor. For instance, a father accepting a gift on behalf of his young child would meet this criterion.
• Delivery of possession: A critical aspect of a valid gift is the physical delivery of possession by the donor and its acceptance by the donee. Possession in this context means having control and deriving benefits from the property. It is essential that the donee actually benefits from the property. For example, if a person gifts a piece of land to another and hands over the keys to the property, this would satisfy the requirement of delivery of possession.

Parties and Conditions for Donor (Who can give)

• Attainment of the age of majority: The person giving the gift (donor) must have reached the age of majority according to the Indian Majority Act 1875. This means they should be legally recognized as an adult.
• Sound mind and understanding: The donor must be of sound mind, meaning they are mentally competent and fully comprehend the implications of the gift they are making.
• Absence of fraudulent or coercive advice: The donor should not be under any fraudulent or coercive influence when deciding to give the gift. The decision to gift must be made willingly and without any external pressure.
• Ownership over the property: The donor must legally own the property they intend to gift. They cannot gift something that does not belong to them.
• Validity of gifts by specific individuals:
  • A gift by a married woman is considered valid and is governed by the same legal rules as gifts by others. For example, if a married woman gifts her jewelry to a friend, it is a legally recognized transaction.
  • A gift by a pardanashin woman (a woman who maintains seclusion) is also valid. However, if there is a dispute later on, the burden of proof that the gift was not made under duress falls on the recipient. This ensures fair treatment of all parties involved.
  • A gift by a person facing insolvency is valid if it is genuine and not intended to defraud creditors. This means that even individuals in financial difficulty can make valid gifts as long as the intention is honest and not aimed at deceiving creditors.

Conditions for Recipient of Gift

• Donee Eligibility:
  • The recipient of the gift, known as the donee, needs to fulfill specific criteria:
  • The donee should have the legal capacity to own property, which includes both individuals and legal entities. It's important to note that a Muslim can also legally gift assets to a non-Muslim.
• Existence of Donee:
  • It is essential that the donee exists at the time the gift is transferred. In situations involving minors or individuals with mental incapacities, the gifted property must be handed over to their legal guardian. Otherwise, according to Muslim Law, the gift is considered invalid.
• Gifts to Unborn Individuals:
  • Gifts bestowed upon unborn persons are deemed void. However, a gift of future usufructs, which grants the right to utilize and enjoy the property, to an unborn individual is valid. This is provided that the donee is born and in existence when the entitlement opens up for heirs.

Conditions for Gift in Muslim Law (Understanding What Can Be Gifted)

• Subject Matter Eligibility:
  • The subject of a gift in Muslim Law must be tangible property, known as mal, that can be owned, possessed, and transferred.
  • Intangible items like services or future obligations are not valid for gifting.
• Existence Requirement:
  • The property meant for gifting must already exist at the time the gift is being made.
  • Gifts of future items or properties yet to be obtained are considered invalid.
• Donor's Possession:
  • The donor must be in possession of the property they intend to gift.
  • A person cannot gift something they do not own or control.
• Understanding Corpus and Usufructs:
  • Corpus (Ayn): This denotes absolute ownership rights over a property that is inheritable and timeless.
  • Usufructs (Manafi): Refers to the right to use and enjoy a property without ownership rights, limited and non-inheritable.
• Legal Precedent:
  • In the case of Nawazish Ali Khan vs. Ali Raza Khan (AIR 1984), the court affirmed the validity of gifting usufructs under Muslim law.
  • However, limitations may apply when the corpus has been gifted to another person.
  • A gift of life interest (usufructs) is valid and distinct from a gift of absolute ownership (corpus).
  • This ruling applies to both Shia and Sunni schools of thought in Islamic law.

Understanding the Concept of Gift under Muslim Law

• Property Eligibility for Gifting: In Muslim law, a gift can encompass any item over which ownership or property rights can be exercised. This includes a wide range of tangible and intangible assets, both movable and immovable.
• Possession Requirement: To qualify as a gift, the property must be existing and capable of transfer from the donor to the donee. It should be something that can be physically handed over.
• Specific Entity or Enforceable Right: The subject of the gift can either be a particular object or a legally enforceable right that the donor holds. This ensures clarity and enforceability in the gifting process.
• Definition of Mal: The term "mal" refers to property or wealth that is ownable by an individual, forming the basis for a valid gift under Muslim law. It covers assets that can be legally gifted.

For instance, a piece of land, a vehicle, or even a bank account can all be valid subjects for gifting under Muslim law, provided they meet the criteria outlined above.

• Important Legal Precedent: In the legal case of Rahim Bux vs. Mohd. Hasen (1883), the court ruled that services cannot be gifted as they do not exist as physical entities that can be transferred at the time of gifting.
• Division of Indivisible Property: It is noteworthy that indivisible property can be gifted to multiple recipients, allowing for the equitable distribution of assets among beneficiaries.

The Extent of Donor's Right to Gift

• Under normal circumstances, a donor's right to gift in Muslim Law is typically unrestricted, as affirmed by the case of Ranee Khajoorunissa vs. Mst. Roushan Jahan (1876). This means that a donor can choose to gift any portion of their property, even if it impacts their potential heirs adversely. The donor holds the autonomy to determine the extent of their property they wish to gift.
• There exists an exception to this general rule when it comes to individuals on their deathbed, known as Marz ul maut. In such cases, the right to make a gift is limited by the following conditions:
  • The donor is restricted from gifting more than one-third of their property.
  • The donor is prohibited from gifting any part of it to their heirs.
• These restrictions are designed to prevent potential exploitation or manipulation of gifts made by individuals who might be in a vulnerable state due to their health condition.

Kinds of Gifts under Muslim Law

Hiba under Muslim Law

• Definition: In Islamic law, gifts are known as "Hiba," specifically referring to property transfers between living individuals.
• Hedaya: Hiba denotes an immediate and unconditional transfer of ownership without any consideration.
• Ameer Ali: Describes Hiba as a voluntary gift without consideration, resulting in the donee becoming the owner.
• Mulla: Defines Hiba as the immediate and unconditional transfer of property, which can be accepted by the donee or on their behalf.
• Fyzee: Views Hiba as the immediate and unqualified transfer of property ownership without any expectation of return.

Hiba-bil-Iwaz

• Explanation: Similar to a sale, this type of gift involves the donee providing consideration to the donor before receiving the gift.
• Process: The donor may promise the gift in exchange for consideration, and registration is necessary to make the gift irrevocable.
• Special Feature: Allows for the gifting of co-ownership interests even in divisible property.

Hiba-ba-shart-ul-Iwaz

• Overview: Involves an immediate gift from the donor to the donee, with an agreement that the donee will provide something in return in the future.
• Requirement: The possession of the property must be transferred to the donee at the present time.

Sadaqah

• Definition: Sadaqah is a gift made with a religious motive, including both the property itself and the right to use it.
• Characteristics: Once given and possession delivered, the gift becomes irrevocable and can be made to charity or individuals.
• Differentiation: Unlike Waqf, Sadaqah allows the consumption of both the property and its benefits.

Ariyat

• Description: Ariyat is a form of gift where only the right to enjoy the property is transferred, not ownership.
• Outcome: Upon the donee's death, the property reverts back to the donor or their legal heirs.
• Comparison: Unlike a typical gift, Ariyat does not require express acceptance by the donee.

Musha

• Meaning: Musha refers to a gift conveying an undivided share in the property to the donee.
• Prohibition: In the Hanafi school, there are restrictions on Musha, especially in divisible property gifting.
• Exceptions:
  • A gift of Musha can be made without dividing if it's to a co-heir.
  • Gifts of specific types of properties are allowed under certain conditions.

Void Gifts in Muslim Law

• A gift made to an unborn person is not considered valid in Muslim law. However, a gift of a life interest in favor of an unborn person is accepted if the person comes into existence when such interest opens up.
• Gift of future property is void in Muslim law. For example, a gift of something that will come into existence in the future, like a crop that will grow, is not considered valid.
• A contingent gift is not recognized under Muslim law. This refers to a gift that depends on the occurrence of a specific condition. For instance, a gift from A to B that is subject to the condition that A does not have a male heir is considered void.
• Gift of speculative successionists is when someone tries to gift a mere chance of succession to a property that they do not currently own. Since the donor does not have ownership of the property, such a gift is void in Muslim law.
• The right to claim dower during a marriage is a personal claim of the wife in Muslim law and cannot be transferred to a third party, making any such gift void. However, if the wife passes away, the right to claim dower can be transferred.
• A gift of services is not considered valid under Muslim law. This means that you cannot gift services as you would tangible items.
• Gifts with conditions attached are not fully recognized in Muslim law. A gift must be unconditional, and any condition that obstructs the completeness of the gift is considered void. For example, if A gifts their house to B with conditions on selling it, these conditions are deemed void, and B retains full rights to the house.

Revocation of a Gift under Islamic Law

• Under Islamic law, all voluntary transactions are generally revocable. In Hanafi law, a gift is considered revocable, although it is discouraged to do so. In Shia law, a gift can be revoked by a simple declaration, while in Sunni law, revocation typically requires court intervention or the consent of the recipient.
• There are circumstances where a gift becomes absolutely irrevocable:

Irrevocable Situations

• When the donor or the donee is deceased.
• When the donee is closely related to the donor in prohibited degrees of consanguinity. In Shia law, a gift to any blood relative is irrevocable.
• In cases of a marital relationship between the donor and the donee. In Shia law, a gift between spouses can be revoked.
• If the donee transfers the gift's subject through sale or gift to another person.
• When the gift's subject is lost, destroyed, or significantly altered, losing its original identity.
• If the subject of the gift increases in value, and the increase is inseparable from the original gift under Islamic Law.
• When the gift is given as a "sadqa," a charitable or religious gift.
• If the donor accepts anything in return for the gift.

These specific circumstances render the gift irrevocable, depriving the donor of the right to revoke it. It's worth noting that the rules on revocability may vary slightly between Shia and Sunni interpretations of Islamic law.

Conclusion

• In conclusion, the Muslim law concept of gift carries significant weight, embodying the principles of generosity, charity, and the Islamic ethos of giving. A gift, defined as the voluntary transfer of ownership in an existing property from a donor to a donee without any reciprocal payment, aligns with Islam's teachings to share wealth and assist those in need.
• To be deemed valid in Muslim law, specific conditions must be fulfilled. These include a clear and unambiguous declaration by the donor, the acceptance of the gift by the donee (though not strictly mandatory in most interpretations), and the subsequent physical transfer of possession of the gifted property. Importantly, the subject of the gift must be an existing property owned by the donor, and the gift should be unconditional, free from any restrictive conditions.