what are different types of gifts under muslim law? Can I give future gifts to my heirs?
I want to give my property as gift to my heirs and I want to know what are the different types of gifts under Muslim law?
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Gifts under Muslim Law
- A person is competent to make a gift (Hiba) of his total property during his lifetime.
- The gift is operative with immediate effect and divests him of his control and ownership over the property.
- A gift with the intention of disinheriting an heir
- The intention of the gift is not important but it cannot be the intention to circumvent a provision of the law. Voidable at the instance at the creditors. However just because he had some debts does not affect the validity of the gift. Intention is important to affect the validity of the gift.
- Gift can be made of existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called done and accepted by or on behalf of the done, followed by immediately delivery of possession of the subject matter of the gift.
- All rights of the donor vests in the done.
- Hiba should not be confused with the English term- gift. Hiba is a narrow and well-defined legal concept.
- Hiba is the immediate and unqualified transfer of property.
Essential elements of Gift
- Declaration (Ijab) by the Donor- Manifestation of the wish to be on the part of the donor
- Acceptance (Qubool) by the Donee- either implied or express
- Immediate delivery of possession (Qabza)- either actually or constructively
Who can make a gift and who can be the donee
- 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 over such property.
- The property must be in existence and should be specified.
- The age of majority for determining the competency of gift is eighteen years in ordinary cases and 21 years where a guardian has been appointed by the court.
- Gift by a Woman- A female is also competent to make a gift. If a gift has been made by a Pardanashin 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 done 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.
- 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.
- Gift can be made to a child in womb of his mother provided he is born within six months of the date of making of 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 future property is void.
- A gift of spes successionis 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 property is one of the essential conditions of validity.
Gifts of property held adversely to the donor
- 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 joins 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.
- Bom 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 are – father, his executor appointed under his Will, paternal grandfather, his executor appointed under his Will.
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- 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 alongwith 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 by the husband to the wife, physical departure is not necessary. 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 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 in two parts and giving the possession to these two donees. Moreover a mutation of property was sanctioned in their favour.
- Even if a gift is in writing or a registered deed and it does not fulfill the conditions of a valid gift, it is considered to be invalid.
- Undivided share in the property, specified and identified property. A has a plot of land and three sons. Property goes to the three sons but unless it is demarcated, we don’t know what part of the land is going to whom.
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 property is gifted before partition:
- Shia law: gift is valid
- Sunni law: gift is irregular, not void
- Subsequent division and delivery of possession renders the gift as valid
- The moment suit for partition and separate possession is filed, the gift is perfected
- Exceptions: gift valid from date of inception, even if no division is effected
Where gift is to two persons
- X makes a gift of a house to A and B in equal shares as tenants-in-common
- Property is not divided although the shares are clearly defined
- Possession of specific shares not given
- Gift is valid
- Contingent gifts are invalid
- For example- A makes a gift to B to take effect of A dies issueless – may or may not happen.
- Gifts are meant to give full ownership over the property.
- Right to possess and alienate
- If the condition is inconsistent with the incidence of ownership, then the condition is void but the gift is held to be valid. A makes a gift to B and attaches a condition to it that she cannot sell it. Corpus – you cannot restrict, in the usufruct (yoozoofrukt) you can restrict the ownership. For example- crops but not the land.
- Under Shia Law- the grant of life estate is a valid gift. A house by donor to A and then after death to the donor is valid.
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 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 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.
Gift with Exchange (Hiba-Bil-Iwaz)
- A bonafide and voluntary intention on part of the donor to make the gift and divest himself of complete rights.
- Payment of consideration by the donee.
- Here payment is more important and not the delivery of possession.
Revocation of a Gift
- Ordinarily till 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 husband to wife or wife to husband
- Donee and donor are within prohibited degree of relationship
- When the donee is dead
- Donee has sold it
- Thing is lost or destroyed
- Increased on value
- Cannot be identified
- Donor has received something in exchange
Under Shia Law- any relative – irrevocable but husband and wife – revocable.
‘Will’ is defined under ‘Section: 2(h)’ of The “Indian Succession Act, 1925”, means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
Probate of a will- The word probate means to prove or validate. Probate is the procedure by which a will is approved by the Court as the valid and last will of a deceased testator (the person who made the will). It also confirms the appointment of the person named as executor in the will.
- Where a Muslim gets married under the Special Marriage Act, 1954 to a Muslim or to a Non-Muslim, he along with his spouse and children born out of this marriage would no longer be governed by the Muslim law of succession but will be governed by the provisions of the Indian Succession Act, 1925.
- Even if they get the marriage registered subsequently under the SMA.
- Under ISA, a person has the authority to will away the entire property but under Muslim law, the person can only will away 1/3rd of the property.
- Restrictions under Muslim law for bequeathing property in favour of an heir, whereas under the ISA, there are no such restrictions.
Essentials of a valid will
- Competency of the Testator- Sound mind and major.- Majority is regulated by Indian Majority Act, 1875- Section 3 of the Act – completed eighteen years of age.
- If a will was made by a Mahomedan person before the enactment (1875), the age of majority under Muslim law being fifteen, any will made after attaining the age of 15 was held to be valid.
- Now the Majority Act, 1875 applies to anyone who is domiciled in India.
Formalities for making a will
- A will under Muslim law can also be oral. For oral wills- burden of establishing an oral will is very heavy. It must be proved with utmost precision, and with every circumstance of time and place. The court must be certain that it knows what the speaker said and must from the circumstances and from the statement be able to infer for itself that testamentary effect was intended, in adddtion to being satisfied of the contents of the direction.
- If it’s writing, signing or attestation is not a requirement.
- If attestation is done, it does not require to be registered.
- A will under Muslim law does not require probate.
- A will when it is reduced to writing is called wasiyatnama.
- A will- under Shia law, Will made by person who commits suicide or attempts to commit suicide is invalid.
- Under Sunni law- the Will by a person who commits a suicide is valid.
- Legatee can be anyone- any religion but should not be against Islam, a person who renounces Islam.
- It can be in favour of an institution but it cannot be against the religion.
- Legatee should be in existence on the date of making such will- child in womb is treated as in existence if it is born within six months from the date of making a will under Sunni and within ten months under Shia law.
Legatee Guilty of causing death of the testator
- Under Sunni law it is invalid-intention does not matter
- Under Shia law- intention matters.
1/3rd Rule- A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect unless the heirs consent.
- Prevents a person from interfering and defeating the claims of his lawful heirs.
- 2/3rd of the property must go by succession.
- 1/3rd, he is allowed to settle claims or just give away property.
- An heirless person can bequeath more than 1/3rd of the property.
- Heirs consenting to the bequeath – exception to the 1/3rd Rule
- Where consent not obtained- it will be valid upto 1/3 rd the property.
- Another exception to the 1/3rd rule- If the only heir is the wife- the husband can bequeath upto 5/6th of the property by way of will, if the only heir is the husband- the wife can bequeath upto 2/3rd of the property.
- If the bequest exceeds the legal third and the heirs refuse their consent, the bequest abate rateably.
- Shia law does not recognize this principle of rateable distribution.
Bequest to Heirs
- Under Sunni law, a bequest cannot be made to heirs – not even 1/3rd of the property except when the other heirs give their consent. Consent is required after the death of the testator. Any single heir can consent so as to bind his own share.
- Under Shia law, consent is immaterial and bequest can be made to an heir only 1/3rd is allowed, excess will need consent. Such consent can be given at the time of making the will by the testator, before the death or even after his death.
- Consent cannot be rescinded once given.
Examples- A Mohamaden dies leaving him surviving a son, a father and a paternal grandfather. Here the grandfather is not an heir and a bequest to him is valid without the assent of the son and the father.
Sunni- A by his will bequeaths certain property to his father’s father. Besides the father’s father, the testator has a son and a father living at the time of the will. The father dies in the course of the lifetime of the son. The bequest to grandfather cannot take place if the son does not consent.
The consent may be express or implied- for example- A bequeaths the whole of his property to a stranger by way of a written will which is attested by his sons who are his only heirs. The Legatee enters into possession after the death of A and recovers rent and the sons do not object to this- the consent is implied.
Q. Ali dies leaving three sons behind, Muhammad, Hasan and Husain. His net estate amounts to Rs. 9,000. He leaves by will 3,000 to Hasan.
- Consent can be given by one heir or all heirs, when given by one- it will be valid only to the extent of the consenting heir’s share.
- Condition is void which hampers the absolute ownership of the legatee.
- Bequest is valid.
Bequest of life estate
- Sunni law- it will operate as an absolute grant.
- Shia law- it is allowed.- life estate in favour of one and then vested to another after his death is valid.
- May or may not happen
- The bequest is void.
Death of Legatee before the operation of the Will
- Sunni law- will go to the heirs and the legacy will be lapse.
- Shia law- will pass to the heirs legatees of the Will if the testator does not revoke it.
Probate and Letters of Administration
- A will under Muslim law does not require probate and can be admitted in evidence if proved duly.
Revocation of Will
- A will by its nature is revocable. A bequest may be revoked wither expressly or by implication.
- A bequest to a person is revoked by a bequest in a subsequent will of the same property to another. But a subsequent bequest though it be of the same property to another person in the same will does not operate as a revocation of the prior bequest and the property will be divided between the two legatees in equal shares.
- Abdul Hafiz Beg and Anr. vs. Sahebbi and Ors.
- It is a malady which induces an apprehension of death in the person suffering from it and which eventually results in the death of the person.
- There was some lack of evidence in the present case, no doctors were examined and further the evidence was fluid. He died on the 4th day after falling ill.
- He fell ill and never recovered from the illness. He was not able to take care of himself. He was asking for his near and dear ones to be by his side. He was merely making signs and shedding tears while looking at relatives.
- He made a gift 24 hours before death,
- Gift was within the ambit of Marz-ul-maut.
- The court held that just because doctors were not examined or medical reports were not produced, it cannot be held that evidence was not appreciated- it is the subjective apprehension of death in the mind of the sick person who eventually died suffering from his last illness- test.
- Hafeeza Bibi and Ors. vs. Shaikh Farid and Ors.
- Shaik Dawood had three sons Shaik Farid, Mehboob, Yakub. He had five daughters- Sappoora, Khairunnisa, Noorjahan, Rabia Bibi and Alima Bibi. All five daughters were married. Wife had predeceased him.
- Shaik, Sapoora, Khairunnisa, noorjahan and mohd. Iqbal (Son of Alima)- plaintiffs filed a suit for partition against Mehboob, Subhani, Yakub and Rabia. The sons and daughters of Syed Ali who was brother of SD were impleaded as defendants.
- Parties are governed by Sunni law.
- Plaintiffs said he died intestate and plaintiffs and defendants were entitled to some share of property and the other defendants were entitled to some of the share.
- Yakub contested that Shaik Dawood executed a hiba and gifted his properties to him and put him in possession of the hiba properties on that day itself. Hiba was complete and plaintiffs were aware of the fact.
- Whether the hiba was binding and valid or not.
- Trial court said plaintiffs were not entitled to any share.
- Plaintiffs said that the gift had to be registered and stamped because it was in writing and such unregistered gift could not be relied upon.
- Section 129 of the TP Act says- nothing in this shall be deemed to affect any rule of Mohammadden Law. S. 17 of the Registration Act says that an instrument of gift of immovable property requires registration irrespective of the value of the property.
- The Court held that merely because the gift is reduced to writing by a Mohammadan instead of it being orally made, such writing does not become a formal document or instrument of gift.
- What is important is that the three essentials are fulfilled. The form is immaterial.
- Section 129 of TP excludes gifts made under Mohammaden Law.
- In the present case the gift as recited in the deed was based on love and affection as Yakub after the death of the donor’s wife had taken care of him.
- Acceptance was also seen as Yakub had signed the deed and Yakub had been residing in the gift property and thus was in actual physical possession of the house.
- Plaintiffs had no claim in the property.
Musa Miya Mahammad Shaffi and Anr. vs. Kadar Bax Walad Khaj Bax and Anr., AIR 1928 PC 108
- The plaintiff claimed as one of the heirs under the Mohomadden law of Abdul Rasul, who was his brother.
- Abdul Rasul died leaving him surviving as his heirs a widow, a daughter and his brother. Widow was entitled to 1/8th and daughter to ½, and the plaintiff to 3/8th. He claimed that the widow and the daughter were in the possession of the said property.
- Widow and daughter filed a joint statement saying that in 1910, Abdul Rasul had made a gift gave all his properties to his grandson, who are the sons of his daughter under an oral gift and informed their father by a letter. In 1911 he wrote another letter stating that by virtue of an oral gift or in the alternative of a will- the grandsons have become the owners of Abdul Rasul’s property and the grandsons through their father were in possession of the property. The plaintiff therefore was not entitled to any relief.
- The Appellants are the grandsons here. Supported the pleas by the mother and daughter.
- They also said that their grandfather and the grandsons were staying together and the grandfather believed that his possession was for and on behalf of them.
- Trial court held it was a will and will could not be more than 1/3 rd of the property and hence plaintiff got a share in the property.
- There was no transfer of possession in this case. It was claimed that since possession and management was on behalf of the grandsons. It was a valid transfer.
- Appellants were minors at the time of the alleged gift.
- Mahamad Shafi lived with the Abdul Rasa. Everyone lived in the house of Abdul Rasa.
- There was no mutation of the names and no deed was executed.
- Abdul wrote to Mahamad Shafi from Mecca saying he made a gift of his property-a plot of land to his two grandsons.
- Father of the minor was alive and actually living with his wife and children and was in a position to take care of the property so gifted.
Hayatuddin vs. Abdul Gain and Ors
- Plantiff appeal-challenging dismissal of the suit for a declaration and injunction that he was lawfully in possession of house property in suit in pursuance of a gift deed executed by one Rashidbi and Amnabi.
- Lamiya had two wives Malkobbi and Rashidbi. Lamiya had a sister Amnabi.
- He died in 1948 leaving a house property in dispute.
- They all succeeded to his estate.
- Gift deed they were gifting property to Hayatuddin.
- Shows that a part of the property was separated and given to Malkubi.
- Gift deed also shows that the property was in possession of the donee and he was entitled to use the property.
- Donors and Donee filed a suit for declaration that Haytuddin was the owner.
- Malkoobi was contesting the suit.
- Gift of Mushaa – is not void but irregular and can be perfected by valid partition.
- Donors specifically said that 1/8th be separated and given to Malkoobi and rest be given to Hayudtiin.
- The property was in the possession of the donee himself.
- Plaintiffs have shares separated. Divest themselves of the possession – suit for declaration.
Valia Peedikakkandi vs. Pathakkalan
- Gift by husband to minor wife and accepted on her behalf by her mother is valid,
- Husband was very sick and living in the house of mother in law. Though not in apprehension of death.
- Mother of the minor wife was acting as a guardian and taking care of both the husband and the wife.
- Intention of a clear gift – gift accepted as valid and complete.
Answered on 28 Sep 2018
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