Any Muslim, who is major and of sound mind is competent to contract can make a gift of his property. The person making a gift must have full and absolute ownership of such property. The property must be in existence and should be specified. The age of majority for determining the competency of the gift is eighteen years in ordinary cases and 21 years where a guardian has been appointed by the court. You can talk to a good Muslim law lawyer in India to know more about the concept of a gift.
Gift by a Woman- A female is also competent to make a gift. If a gift has been made by a purdahnashin woman, the validity of the gift is in question, the burden of proof is on the donee to prove that she understood the full consequences of her act and nature of her actions. (Imam Sahib vs. Ameer Sahib, AIR 1955 Mad 621). It is also the duty of the court to scrutinize the documents and evidence on record properly. (Hussaina Bai vs. Zohra Bai, AIR 1960 MP 60).
A gift can be lawfully made in the favour of natural and artificial persons, non-Muslims, would-be heirs, minors, mentally handicapped and women irrespective of their marital status. He should be a juristic person capable of holding property. The one can be of any sex, any age and even of any religion. He can be a relative or a stranger. Property can validly be gifted to a female irrespective of her marital status.
A gift to an Unborn Person - The done can be a minor or a major but he must be in existence. A gift to an unborn person not yet in existence is void. A gift to a person by way of maintenance allowance for life and to his male heirs not in existence at the time of making the gift will be valid provided they are born by the time the interest in favour of the living person comes to an end. The gift can be made to a child in the womb of his mother provided he is born within six months of the date of the making of the gift.
What can be a Gift?
- Tangible and intangible but has to be existence at the time of making a gift.
- Negotiable instruments, government promissory notes, cheques, zamindari rights
- Gift of the future property is void.
- A gift of spes succession is void.
A gift of existing property but operative on a future date would be void. The reason is that immediate delivery of possession of the property is one of the essential conditions of validity. Gifts of property held adversely to the donor. The best Muslim law advocates can be consulted to know about the concept of gift.
Where the donor does not have the actual physical possession of the property to be gifted and the same is held by another person adversely to the donor unless the donor obtains and delivers possession thereof to the donee or does all that he can to put it within the power of the donee to obtain possession.
- Donor files a suit and donee join in as a party to the suit for trespass.
- Obtains possession via suit and gives it to the donee.
Gift of equity or Redemption
- The right of the mortgagor to repay a loan and redeem the mortgaged property is called his equity of redemption.
- Bombay HC held invalid, other courts have held it to be valid.
- Actual or constructive possession required.
Essential elements of a gift
- Declaration- Clear and unambiguous. Essential for the Donor to divest himself completely of all ownership and dominion over the subject of the gift. Mere permission to live in the house would not be a gift. It has to be his own free will and consent.
- Acceptance- Has to be by the donee or in cases where the donee is incompetent to accept, it should be done on behalf of the minor by the guardian. The Guardian in Muslim law of the property of the minor is – father, his executor appointed under his Will, paternal grandfather, his executor appointed under his Will.
The gift was made by paternal grandfather in presence of the father, mother accepted it- it was held to be an invalid gift.
If there is no guardian and the minor is under the care and protection of a person other than the guardian, such person can validly accept the gift on behalf of the minor girl. Husband can validly accept gifts even in the presence of the Father.
Delivery of Possession
A gift is not valid unless it is accompanied by delivery of possession.
- The donor must vacate the premises signifying complete relinquishment of control, ownership, and possession, in favour of the donee. Possession could be actual or constructive. For example- the gift is in writing and the gift deed embodies a declaration that the possession has been delivered, it would amount to delivery of possession.
- Actual Delivery of Possession- vacate the possession along with his belongings and out the donee in possession. In case of movable property- handing over the movable property to the donee.
- Constructive Possession- The gift can be completed by delivery of title deeds to the donor, mutation of names in the official records, direction to the tenants to pay the rent to the donee.
Exceptions to the Rule of Delivery of Physical Possession-
- Gift by Husband to the Wife of Immovable properties- A gift from the husband to the wife, physical departure is not necessary. The joint residence is an integral part of the matrimonial life. A mutation of names will be clear proof but it is not an essential condition of a valid gift.
- Gift by Father to Minor Child or by Guardian of the Ward: Essential for a bona fide intention to exist on the part of the father or guardian to make a gift. Donor and acceptor on behalf of the donee are the same. But where the property is gifted by the father to his minor child and also to another person- possession is necessary.
- Where donor and donee reside in the gift property matter- some cogent evidence required to show a bonafide intention on part of the donor to complete the gift. Overt acts would be- making a declaration in presence of a number of friends and entrusts the management of the property to the donee, hands over the papers of the property, mutation of names, possession, donee starts paying municipal taxes, starts collecting rent in his name.
Formalities for Effecting a Valid Gift
- It can be an oral gift or in writing. Possession has to be handed over. Example- Illahi Shamsuddin vs. Jalunbi Makbul Nadaf, - the deceased made an oral gift in the favour of her daughter and grandson in her lifetime dividing the house into two parts and giving the possession to these two donees. Moreover, a mutation of the property was sanctioned in their favour.
- Even if a gift is in writing or a registered deed and it does not fulfil the conditions of a valid gift, it is considered to be invalid.
Where the undivided share is incapable of division validly gifted – has to clearly demonstrate an act of putting the donor in possession of the land.
Where the property is capable of division, the property should be divided and then gifted, If the property is gifted before partition:
Shia law: A gift is valid
Sunni law: A gift is irregular, not void
Subsequent division and delivery of possession render the gift as valid. The moment suit for partition and separate possession is filed, the gift is perfected. Exceptions: gift valid from the date of inception, even if no division is affected.
Death Bed Gifts and Acknowledgments
A gift by a Muslim during marz-ul-maut or death-illness cannot take effect beyond a third of his estate after the payment of the funeral expenses and debts, unless the heirs give the consent, after the death of the donor, to the excess taking effect; nor can such a gift take effect if made in favour of an heir unless the other heirs consent thereto after the donor’s death.
There must be a proximate danger of death, apprehension of death in the mind of the person, inability to carry on daily activities, illness, fatal nature.
- Recovery- will operate as a normal gift and it could extend to the whole of the property.
- ISA- Donatio Mortis Causa- only movable property, no extent of the property to be gifted or class of heirs, if the person recovers, the gift fails.
Revocation of a Gift
- Ordinarily, until the gift is complete, it is revocable.
- After completion of the gift, it can be revoked only where donee has consented or by a decree of the court.
Following cases are absolutely irrevocable:
- Gift by the husband to wife or wife to husband
- Donee and donor are within a prohibited degree of relationship
- When the donee is dead
- Donee has sold it
- Thing is lost or destroyed
- Increased in value
- Cannot be identified
- The donor has received something in exchange
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