UNIVERSITY OF PETROLEUM AND ENERGY

STUDIES

Family Law

College of Legal Studies

BBA.LLB 2014-19
IV- Semester
SESSION: JANUARY-MAY

PROJECT
ON
HIBA = A GIFT

Under the Supervision of: PROF. Mamta Rana

NAME: PUNEET GANDHI

SAP ID: 500037545

ROLL NO: R760214038

CONTENTS
Topic Page
No.
1. Introduction………………………………………………………………….. 3
2. Conditions for a Valid Gift (Hiba) under Muslim Law……………………… 4
a) Declaration……………………. 5
b) Acceptance, and……………….. 7
c) Delivery of possession………… 10
3. Conception of Property….…………………………………………………… 15
4. Suspended or revoked Gift ………………………………………………….. 16
5. Onerous Gift………………………………………………………………….. 17
6. Conclusion ……………………………………………………………………. 17

7. Bibliography………………………………………………………………....... 18
 1. INTRODUCTION

Talking about the Hindu law, a Hindu has a full power of alienation over his separate
property. He may make a gift inter vivos1 with respect to his undivided interest in the
coparcenary property. The Karta is allowed to make gifts of small portions of the joint
family property for certain purposes, and father Karta can make gifts of love and
affection. The Hindu female holder of stridhan2 had power to dispose of stridhan by gift.
As we can say, that the exact meaning of hiba is a gift in Islamic law. Also, "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, The Section 122 of transfer of property act 1972,
defines the gift as above.
According to the mitakshara, a gift is defined as under: “Gift consists in the
relinquishment Which means without consideration of one’s own right in property and
the creation of the another man’s right is completed on that other’s acceptance of the
gift, but not otherwise 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 sadaqa.

1
It is a legal term referring to a transfer or gift made during one's lifetime.
2
It is the property that a woman obtains at the time of her marriage, as it differs from Dowry.
When all is said in done, Islamic law draws no qualification in the middle of genuine and
individual property, what Islamic law recognizes and demand, is the refinement between
the corpus of the property itself and the usufruct3 in the property.

Over the corpus of property the law perceives just outright territory, heritable and
unhindered in purpose of time; and where a "gift" of the corpus tries to force a condition
conflicting with such supreme domain the condition is rejected as offensive; however
intrigues restricted in purpose of time can be made in the usufruct of the property and
the territory over the corpus produces results subject to any such constrained hobbies.
Under the Muslim law they are just usufructuary hobby (and not privileges of
responsibility for kind). There is no contrast between the few schools of Islamic law in
their major origination of property and proprietorship. A restricted interest produces
results out of the usufruct under any of the schools.
There are a few varieties of Hiba. For instance, Hiba bil Iwaz , Hiba ba Shart ul Iwaz ,
Hiba bil mushaa, Sadkah, and Ariya.

As in India uniform common code is not connected so which law will administer the
endowments of property. We have exchange of property Act, Indian Succession Act,
Registration Act, Indian Majority Act, and Guardianship Act, Civil strategy code. There
are close to home laws of different groups. So in the snippet of contention of laws Hiba,
which law will win'.

2. Conditions for a Valid Gift (Hiba)

A Hiba is not substantial unless these three crucial conditions are satisfied which are:
a.) Declaration
b.) Acceptance, and
c.) The delivery of possession

3
The right to enjoy the use and advantages of another's property short of the destruction or waste of its
substance.
I. Declaration of Gift:
Presentation is an announcement which means the expectation of the transferor that he
plans to make a gift. The individual who announces that he is exchanging his property
through a gift is called donor. The individual in whose support the gift is made is called
donee. Revelation is, accordingly, the indication of the goal of the contributor to strip his
possession in the property and to vest it in the donee.

Oral or Written:
A Hiba might be made orally. Writing is not necessary. The donor might announce the
endowment of any sort of property, of any valuation, either orally or compose a deed.
Under Muslim Law, writing is not necessary for the legitimacy of gift whether property is
portable or resolute. Section 123 of the Transfer of Property Act which gives that
endowment of steady property must be in composing and enrolled, is not relevant to gift
made by Muslims.

Cases like,

In llahi Samsuddin v. Jaitunbi Maqbul4, the Supreme Court held that under Muslim Law,
statement and additionally acknowledgment of blessing might be oral whatever might
be the way of property talented. Where a blessing is made in composing, it is called
Hibanama.
In Md. Hesabuddin v. Md. Hesaruddin, a Muslim lady made an endowment of her
steadfast properties to her child. The blessing was composed on common paper and
was not enrolled. The Guwahati High Court held that the blessing was substantial in
light of the fact that under Muslim Law composing and enrollment is not any key
condition for the legitimacy of endowments.

Express Declaration:
The declaration must be made in clear words. A declaration of gift in questionable
words is void. That is to say, the announcement should explicitly recommend that the

4
1994 SCC (5) 476, JT 1994 371
donor is giving up his proprietorship totally. In Maimuna Bibi v. Rasool Mian5, the Patna
High Court has held that while oral gift is passable under Muslim law, to constitute a
substantial blessing it is essential that donor ought to strip himself totally of all
possession and territory over subject (i.e., property) of Gift.

Free Consent:
The statement for the gift must be made intentionally. Assent of the benefactor in
making the gift must be of free assent. On the chance that the donor makes the
blessing under risk of power, intimidation, undue impact or misrepresentation, the gift is
not valid.
By voluntary declaration we also mean that the donor has completely understood the
way of the exchange and there was no outside impact in his taking the choice for
making the gift. Where the donor guarantees that he or she had announced or marked
the gift deed without comprehension the outcomes, the demonstration of donor can't
be said to be a free demonstration and the gift is void.

Bona Fide Intention:

Gifts must be made truly, i.e. with a true blue expectation to give the property to the
donee. A declaration of gift with a intention to cheat the leasers of the donor is voidable
at the choice of such creditors. Notwithstanding, the mala fide or fake (exploitative)
goal of the benefactor can't be assumed just by the way that he causes certain
obligations. The mala fide 6goal must be completely settled.

Competency of the Donor:

Declaration of gift is made by the donor. Donor must be a skillful individual. Each
Muslim is able to make a gift if he has capacity and additionally the right.

Capacity:
For a legitimate Hiba, the contributor must be (i) Adult (ii) of sound personality, and (iii)
Muslim.
(i)Adult:
5
AIR 1991 Pat 203, 1990 (38) BLJR 1037
6
In bad faith with intent to deceive.
At the time of making the gift the donor must be adult. He more likely than not
accomplished the period of larger part i.e., must be of eighteen years. On the off chance
that a minor is under the supervision of the Court of Wards, the lion's share is achieved
on the finishing of twenty-one years.
(ii) Sound Mind:
The donor should likewise be of sound personality. A crazy individual has no ability to
comprehend the lawful ramifications of his or her exercises. In any case, an affirmation
of gift by a man of unsound personality amid 'clear interim' is legitimate and the gift is
void.
(iii) Muslim:
At the season of making the announcement of gift, the donor must be a Muslim. Where
the giver is a non-Muslim, the gift is not Hiba. A gift made by a non-Muslim is managed
by the Transfer of Property Act, 1882 and standards of Muslim individual law are not
pertinent to it

II. Acceptance of Gift:

Gift must be accepted by the donee. Donee is that person in whose favor the gift is
made. Gift is a bilateral transaction. It takes place between two persons. In the transfer
of property by way of gift, the first step is the declaration of gift by the donor and the
second is the acceptance by the donee. Acceptance signifies the intention of the
transferee (donee) to take the property and become its owner. Without acceptance a
gift is not complete.

Competency of the Donee:

The donee, in whose favor the property is gifted, may be any person in existence. For
being a competent donee, the only essential requirement is that he or she must be in
existence at the time of the declaration. In other words, the donee must be a living
person on the date of the transfer. Donee may be a person of any religion, sex, age or
state of mind.
Thus, a Muslim may make a lawful Hiba in favour of a Hindu or a Christian or any non-
Muslim. Similarly, a Hiba in favour of a female or minor or an insane person is also valid.
Specific mention of the following persons would explain the competency of a donee
under Muslim law.
Child in Womb:
A child in mother’s womb is competent donee provided it is born alive within six months
from the date on which gift were made. A child in the mother’s womb i.e., child en ventre
sa mere 7is a person in existence.
Therefore, the child in its mother’s womb is a competent donee. Although the child in
mother’s womb has no wordly existence yet, in the eyes of law it is regarded as a living
person. However, the birth of such child is not certain. The child may die in the womb or
abortion may take place.
Therefore a gift may be made in favour of a child in the womb but the child must be
born alive. If after the gift an abortion takes place or the child dies in the womb, the gift
already made becomes void. Accordingly, under Muslim law, a gift in favour of a child in
the womb is valid provided such child is born alive within six months from the date on
which the gift was made.

It may be noted that it is absolutely necessary that the child must be in existence in its
nother’s womb when the declaration of gift is made.
If the child is not in mother’s womb on the date when declaration is being made, the gift
is void ab initio and cannot be validated when conception takes place on a later date
and a living child is born subsequently.
For example, A makes a gift of his properties in favour of B’s unborn child. В is a
bachelor on the date of declaration but soon after he gets married. A son is born to B.
The gift is void and it cannot be validated and enforced in favour of B’s son because he
was not in existence even in his mother’s womb when the gift was made. In other words,
gift in favour of future donee i.e. a donee who has no existence at all (not even in
mother’s womb) is void.

Juristic Person:
Juristic persons are also competent donee and a gift may be made to them. In the eyes
of law, the term ‘person’ means not only the human person but it also includes a juristic
or legal person.

7
A child which is still "en ventre sa mere" is accepted to be a beneficiary and may therefore become a
member of the class, provided it is subsequently born alive.
Juristic or legal persons have no biological existence but for the sake of convenience
and to avoid practical difficulty, law confers rights and duties to such entities.
That is to say, they are legally presumed to be persons. For example, a corporation,
registered firm, company and an University is a juristic person. A juristic person is
legally presumed to be adult and of sound mind.
Thus, a gift in favour of a school or a mosque is valid. Where a Muslim donates money
for the repair or maintenance of mosque or an institution, the gift is valid. The
acceptance of a gift in favour of an institution or any other juristic person is made by its
manager or any other competent authority.

Minor and Insane:

Gift to a minor or a person of unsound mind is valid. Minor and insane person may not
have mature understanding but they are persons in existence. Therefore, a minor or a
person of unsound mind is a competent donee. But such gifts must be accepted by the
guardian of that minor or insane donee.

A gift to a minor or to a person of unsound mind is void without acceptance by the

guardian. For purposes of acceptance of a gift, the guardians of a minor or of insane
person are as under:
 Father,
 Father’s executor,
 Paternal grand-father,
 Paternal grand-father’s executor.
These guardians are in the order of priority. That is to say, in the presence of father the
paternal grand-father is not entitled to accept the gift and so on.
In the absence of the abovementioned persons, a gift on behalf of minor or insane is
accepted by the ‘guardian of the property’.
It is significant to note that under Muslim law, mother has not been regarded as
‘guardian of property’ of her minor children.
Therefore, she is not entitled to accept the gift on behalf of her minor child.
A guardian, who accepts the ownership of the gifted property on behalf of minor or the
insane, takes also the possession of the property. When a guardian himself makes a gift
to his ward, his declaration of gift is made as owner of the property, and acceptance by
him is in the capacity of guardian of the minor or insane person.

Two or More Donees:

The donee may be an individual or a class of persons. When the donee is a group of
persons, all the persons constituting that group must be ascertainable.
That is to say, they must be known as to who are the donees. Gift to two or more
donees must be accepted by all of them separately.
If the share of each donee is clearly defined, the donor need not separate or divide these
shares and give possession to each of them.
However, a gift to two or more donees without specifying their respective shares and
without giving them separate possession has also been held to be valid. In such cases
the donees take the property as tenant-in- common.’

III. Delivery of Possession:

Delivery of possession is an act by which a donor puts the donee in possession of the
property. Under Muslim law, a gift is complete only after the delivery of the possession.
Therefore, the gift takes effect from the date on which the possession of the property is
delivered to the donee; not from the date on which the declaration was made.
The donor must divest himself of not only the ownership, but also of possession in
favour of the donee to complete the gift. Delivery of possession is so important in the
Muslim law of gifts (Hiba) that without delivery of possession to the donee, the gift is
void even if it has been made through a registered document.

Muslim law does not presume transfer of ownership rights from donor to donee without
the delivery of possession of the property. Importance of delivery of possession has
been given in Hedaya8 as under:

8
It is an Arabic word meaning "guidance". According to Islamic belief, guidance has been provided by
“The possession of a property is necessary in order to establish a right of property in
the gift because right of property is not established in a thing given merely by means of
the contract (i.e. declaration and acceptance).”
The mode of delivery of possession, i.e., how the property is to be transferred, depends
upon the nature of the property gifted. All that is legally required for a donor to
constitute the delivery of possession is to do something by which a donee gets the
physical control over property.
A donee is said to be in possession of a property “when he is so placed with reference
to it that he can exercise exclusive control over it, for the purpose of deriving from it
such benefit as it is capable of rendering or as is usually derived from it.” A delivery of
possession may be either (i) actual or (ii) constructive.

(1) Actual Delivery of Possession:

Where a property is physically handed over to the donee, the delivery of possession is
actual. If the physical possession of a property is possible, its gift is not complete
without actual delivery of possession. But actual delivery of possession is possible in
respect of only those properties which are capable of being physically possessed and
given.
Generally, only the tangible properties may be actually delivered to the donee.
A tangible property may be movable as well as immovable.
For example jewels, money, vehicle etc. is tangible movable property and house, land
etc. is tangible immovable property. Where the property is movable, it must be actually
transferred and handed over to the donee; a mere entry in a register or account book is
not sufficient and does not constitute a delivery of possession.

Similarly, where the property is immovable, its actual delivery of possession is also
necessary to validate the gift. But the immovable properties cannot be picked up and
handed over to the donee.
Therefore, if the gifted property is a land, house or a garden, the donor may deliver the
possession by giving up all dealings with the property and by placing it at the complete
disposal of the donee so that the donee may use it as he likes.
Thus, where the donor makes a gift of his house in which he is residing, he must vacate
it and ask the donee to live in it. Delivery of possession in case of a garden may be

Allah to humans primarily in the form of the Qur'an.

completed by giving to the donee full control over it, including all rights to enjoy the
fruits and the flowers. Similarly, where the subject matter of a gift is an agricultural land,
its delivery may be made by allowing the donee to plough the field or to reap the crop.
Under Muslim law, actual physical transfer of the property is so very much necessary
that even the mutation of names or entry in official papers and records would not
constitute the delivery of possession.
Where the mutation proceedings have started but the physical possession could not be
given and the donor dies, the gift fails for want of delivery of possession. However, in
such cases if it is proved that although the mutation proceedings were not complete but
the donee has already taken possession of the property, the gift was held valid. Similarly,
where a property is held by some other person adversely to the donor, the donor must
first of all take possession from him and thereafter pass it on to the donee.
However, as has been discussed in the following lines, if the donor is unable to get the
possession from a trespasser, a constructive or symbolic delivery of possession is
sufficient to constitute a valid gift.

(2) Constructive Delivery of Possession:

Constructive delivery of possession means a symbolic transfer of property. Delivery of

possession is constructive if property is not actually delivered but the donor has done
some act due to which it is legally presumed that the possession has been given to the
donee.
Where the property is of such a nature that its physical possession is not possible and it
cannot be delivered actually, a constructive delivery of possession is sufficient to
complete the gift.
Constructive delivery of possession is sufficient to constitute a valid gift in the following
two situations:

 Where the property is intangible property.

 Where the property is tangible property but, under the situations, its
actual or physical delivery of possession is not possible.
Intangible Properties:
It is interesting to note that there are certain properties which have no physical
existence i.e., they cannot be perceived through senses. Such properties are called
intangible or incorporeal properties. Although an incorporeal property cannot be
possessed, but it can be owned and its owner may make a lawful gift of it.
Therefore, in the gifts of incorporeal properties, only constructive delivery of possession
is possible which, under the law, fulfils the requirement of a valid gift.
Any such act of the donor which indicates a clear intention that he has relinquished all
the benefits of the property gifted may be regarded as constructive delivery of
possession. Fyzee rightly observes thus;
“In the case of chattels and land or corporeal (tangible) property generally, actual
delivery of possession is necessary.
But in the case of incorporeal property and actionable claims, where the property is not
susceptible of physical possession, the donor must do everything in his power to show
a clear intention of transferring the property effectively to the donee and of relinquishing
entirely his own dominion over the property”.
All that is required to constitute a constructive delivery of possession is an ‘overt act’ by
the donor. Therefore, the modes of constructive delivery of possession may differ from
case to case. Thus, where a gift is made of certain Zamindari rights, the delivery of
possession is legally presumed by mutation of names i.e., by change of names in the
revenue records.
If the donor, i.e. the landlord has delivered the title deeds of the house to the donee, and
has instructed the tenants that now the donee has become their new landlord, he has
fulfilled the condition of the delivery of possession and the gift is valid.
The same rule would also apply where an immovable property, in the possession of a
lessee, is gifted by the owner (lessor) to the donee. A Government promissory note may
be transferred lawfully only by an endorsement in favour of the transferee and the
delivery of that endorsed promissory note to the transferee.
Therefore, in the gift of a Government promissory note if the donor, after making an
endorsement, hands it over to the donee, the delivery of possession is complete and the
gift is valid.
In certain cases it is possible that under Muslim law the donor reserves for himself the
usufruct or the benefit of the property gifted. In the gifts with such reservations, the
possession of the property remains with the donor so that he may enjoy the benefits of
the property while the ownership is with donee.
Therefore, in cases where a donor gifts away the corpus but reserves the usufruct for
himself, the delivery of possession is presumed if, after the date of the gift, the donee
makes payment of the Government revenue or other dues, in respect of the property
gifted to him. The payment of revenue by the donee amounts to constructive delivery of
possession and the gift is complete.
It must be noted that an act of the donor may amount to a constructive delivery of
possession only where such an act is sufficient to give to the donee the rights over the
gifted property. In the leading case, Aga Mohamed Jaffer v. Koolsom Beebee9, a
husband gave to his wife a bank receipt issued in his favour from a bank where he had
deposited some money.
After giving the bank receipt to his wife, he said, “After taking a bath, I shall go to the
bank and transfer the account in your name”. Unfortunately, the husband died before he
could transfer the money in favour of his wife. The widow as a donee claimed the
amount on the ground that there was a declaration and acceptance of the Hiba and
there was also a delivery of possession because the husband (donor) had handed over
the bank-receipt to her.
But, the Privy Council held that giving of the bank-receipt to the wife does not amount to
a constructive delivery of possession because this was not an appropriate method of
transferring the account. If the account could have been transferred, the delivery of
possession could have been construed; the widow had no right to draw the money
without the transfer of account in her name.
Moreover, it was found that the margin of the receipt contained the words, ‘not
transferable’. Accordingly, the court held that Hiba in favour of the widow was not valid
because there was no delivery of possession, sufficient to give rights to the donee,
under the law.

Property Held Adversely to Donor:

A property is said to be held adversely to donor if it is in wrongful possession of some
other person. Where the property is held adversely to donor, the donor must first of all
obtain the possession himself and thereafter deliver it to the donee. If the donor, whose
property is held adversely to him, does nothing except declaring the gift of that property,
the gift is void.

9
AIR 1933 All 634.
In Maqbool Alam Khan v. Mst. Khodaija, 10the Supreme Court has held that if the gifted
property is in the wrongful possession of a trespasser, a mere declaration and
acceptance would not complete the gift. In such cases, there must be either (actual)
delivery of possession or some overt act by the donor to put the property in power of
the donee to obtain possession. The Court observed further that if apart from making
declaration of gift of a property held adversely to him the donor does nothing else, the
gift is invalid.
Where a donor whose property is in the adverse possession of another person, has
done everything which entitles the donee to get the possession, a constructive or
symbolic delivery of possession takes place although the possession is not given
immediately to the donee. A, whose property is held in adverse possession by Z, makes
a gift of that property to B.
The gift is duly executed by A and is accepted by B. The donee В, files a suit against Z
for obtaining the possession and also joins A (donor) as the defendant party. In the
written statement A admits the claim of В whereas Z argues that gift to В is void
because there was no delivery of possession by A to B. In this illustration we find that
although there was no actual delivery of possession by the donor, as he himself had no
possession, yet his admission of B’s claim in the written statement must be taken as a
constructive delivery of possession.
The Court further observed that the donor did all that could perfect the contemplated
gift and that nothing more was required from the donor to complete the gift. But, it must
be remembered that where the property is in the adverse possession, there must be
some ‘overt act’ on the part of the donor to indicate his intention of parting with the
possession.

3. 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

10
1966 AIR 1194, 1966 SCR (3) 479.
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 recognizes
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 recognizes 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.
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. 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.
 4. Suspended or Revoked Gift

So, this part of the Hiba deals with the different section which is,
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.

5. 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,
especially 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.

6. 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:

 Declaration of gift by the donor

 An acceptance of the gift, express or implied, by or on behalf of the

donee, and

 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.

7. Bibliography

 www.legalserviceindia.co
 www.womenproperty.org
 www.advocatekhoj.com
 Family law by Paras Diwan
 www.Indiankanoon.org
 www.wikipedia.com