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 the
legal 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.

Gift of Spes-Successionis:
Gift of the Spes Successionis is also void. Spes Successionis means a mere
expectation of getting certain properties through succession. A son after the death of his
father inherits his properties as legal heir and such properties are vested in him. But,
before the death of father, the son has simply a chance or expectation of getting his
property through inheritance because he may or may not survive his father.
Therefore, during the life of his father, the sons interest in fathers property is merely a
future possible interest, i.e. spes-successionis. As such, this future property cannot be
the subject-matter of a gift. Similarly, a property given under a will is the future possible
interest of the legatee. The property vests in the legatee only after the death of legator
provided such legatee himself is alive at the death of legator and the will is not revoked.
The gift of a property by a legatee given to him under a will is also a gift of spessuccessionis and as such void. Moreover, Spes Successionis is a non-transferable
property under Section 6 of the Transfer of Property Act, 1882. Any transfer, including
gift of any non-transferable property is void.

Gift of Actionable Claims: Intangible Properties:

Actionable Claim is an intangible property. Intangible or incorporeal property has no
physical existence but it may be owned by a person. As such, its owner may transfer it
through a gift. Under Section 3 of the Transfer of Property Act an actionable claim has
been defined as: (a) an unsecured debt, or (b) any interest in a movable property, not in
possession of the claimant.
Thus, if A has given certain money to on loan, and the loan has not been secured by
any kind of Ss property, then A has a right to claim the money by maintaining an action
in a court of law against B. As right to claim the money from is As actionable claim
which is his property and he may lawfully make a gift of this right.
In other words, A can gift this right to X, the donee, in which case X would be entitled to
get the money from B. Further, the right of A to claim his movable property e.g. motorcar which is in the possession of another person, is also his actionable claim and this

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 subjectmatter 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, the
subject-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:

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
mortgagors 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 equity
of 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.

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-eMahr 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, wifes 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.

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.