A COMPARATIVE STUDY OF GIFT UNDER THE MUSLIM LAW AND

TRANSFER OF PROPERTY ACT, 1882

Defining Gifts

In Mulla's Principles of Muhammadan Law the term `HIBA' is defined as a transfer

of property made immediately without any exchange by one person to another and

accepted by or on behalf of later.

“Gift” is defined under Section 122 of the Transfer of Property Act, 1882, which

states that a ‘gift’ is a transfer of certain existing movable or immovable property

made voluntary and without consideration by one person called the donor, to

another, called a donee and accepted by or on behalf of the donee.

Different Kinds of Gift under Muslim Law:

Hiba Bil Iwaz

Hiba ba Shartul Iwaz

Ariat

Sadaqa

Essentials for a Valid Gift

Under the Muslim Law for a gift to be valid the following are the essentials

conditions

Declaration of the gift by the donor (ijab);

Acceptance of the gift by the donee (qabul);

Delivery of possession.

The essentials for a valid gift as under the Transfer of Property Act, 1882 are:

There must be a transfer of ownership of property

The property must be in existence

The transfer must be voluntarily made and without consideration

The property must be accepted by or on behalf of the person to whom it is

transferred.

The transfer must be affected in the manner prescribed by law.

Void Gifts

Under Muslim law the following gifts are considered to be void

Gift to unborn person

Gift in future

Contingent gift

Gift with a condition

Gift of Mushaa

Under the Transfer of Property Act, 1882, also there are certain conditions under which a gift

is held to be void. These are:

Gifts depending upon on unlawful purpose. (section 6 of the T.P. Act)

Gift made upon a condition, the fulfillment of which is impossible or forbidden by law.

(section 6 of the T.P. Act)

Gifts by a person incompetent to contract.

Where the donee of the gift dies before the acceptance.

A gift comprising of both the existing and future property is void as to the future property.

Revocation of Gifts

According to Hanafi law, [the] gift is revocable except under the following circumstances:

1.When the subject-matter of a gift has gone out of the possession of a donee by gift, sale or

any other form of alienation by which the right of property is transferred.

2. When the gift is to any of the donor's ascendants or descendants, brothers or sisters or their

children, uncle or aunt, The Prophet has said, "When a gift is made to prohibited relations, it

must not be resumed."

3. When the gift is made during coverture to the husband of wife, of the donor as the case

may be.

4. When the donor has died -- the doner's heirs [do] not have the power of revocation.

5. When the thing given has perished or is lost.

6. [A] gift given to charity or sadqa.

7. When the gift is for consideration.

Section 126 of the Transfer of Property Act, 1882, deals with revocation of gifts. It

states that:

“The donor and donee may agree that on the happening of any specified event

which does not depend on the will of the donor a gift shall be suspended or

revoked; but a gift which the parties agree shall be revocable wholly or in part, at

the mere will of the donor, is void wholly or in part, as the case may be.

A gift may also be revoked in any of the cases (save want or failure of

consideration) in which, if it were a contract, it might be rescinded.

Comparative Analysis

Conclusion

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