LAW OF GIFT

1.      INTRODUCTION:

In Pakistan the subject of gifts is governed by the Transfer of Property Act, but the provisions of this Act do not apply to the Mohammedans. Gifts made by a Mohammedans are still governed by their personal law. In Mohammedan Law, the term hiba is used for gifts. A Mohammedan has full power of disposing his own property by way of gift even if disinheriting his heirs.

2.      MEANING:

A gift is a transfer of property (movable or immovable) or right by one person to another. The dictionary meaning of the term “gift” -is “some present”.’ Section 122 of the Transfer of Property Act, 1882, defines it as:

“A gift is a transfer of certain existing movable or immovable 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.”

Generally the terms “gift” and “hiba" are simultaneously used. The terms “hiba" is only one kind (with others) of transactions which are included under the general terms “gift”. Under Mohammedan Law, the term “Hiba is often used for the term “Gift”

3.    DEFINITIONS

 A Hiba is an immediate transfer of ownership of some movable property or right by the one person to another without any consideration.

Ameer Ali defines it as:

“A hiba is a voluntary gift without consideration, of property or the substance of thing by one person to another so as to constitute the donee the proprietor of the subject-matter of the gift.

According to the Hedaya, A hiba is transfer of property made immediately and without any exchange.

According to Hanafi lawyers hiba is an act of the bounty by which a right of property is conferred in something specific without an exchange.

          Baillie defines it as:-

“The conferring of right of property without an exchange”.

According to Sharya-ul-lslam,

 Hiba is “a contract by which the property or a substance (ayn) is transferred immediately and unconditionally without any exchange and free from any pious or religious purpose on the part of the donor.

          Durr-ul-Mukhtar defines it as a “transfer of the right, of property in substance by one person to another without return." Under the Shia law, a hiba is “an obligation to which- property is a specific object is transferred immediately and unconditionally without any exchange and free from any pious or religious purpose on the part of the donor.”

So, everywhere the idea hidden is that a hiba immediate transfer without consideration and is unconditional.

Ariat,:

          An ariat is the giving of the use, enjoyment or usufruct of some movable or immovable property or right to another without any consideration or without any return of exchange. The Durir-Mukhtar defines it as “Making another owner of the usufruct without any consideration.

        According to the Fatwa-i-Alamgiri it is the giving of the usufruct without any return ” So when a person grant a license or right to the usufruct without any consideration then such transaction is known as ariat or areat. In ariat, the ownership of the property is not transferred but only the use of profit of such property or right is granted for a limited time and can be revoked any time by the person who has granted it,

Sadaqa:

          A sadaqa is the immediate transfer of some movable or immovable property to right by one person to another with the object of acquiring some religious or spiritual benefit but without any consideration. So like a hiba, the property of right is transferred immediately with the object of making charity. Sadaqa is similar to hiba with the only difference of its object like hiba, in sadaqa delivery of possession is necessary. A sadaqa once made cannot be revoked, for example when a person makes a gift of Rs 10,000/ for distribution of food to people on some religious day, the transaction is sadaqa,

4.      PERSONS ENTITLED TO MAKE A GIFT:

The following persons are entitled to make or take a gift:

1. Capacity for a donor:   

A donor, who has the following qualifications, has capacity to make a gift.

(i) Muhammadan;          A donor must be a Mohammedan.

(ii) Status:  A donor may be a male or female,

(iii) Age of majority:      A donor must have attained the age of majority. The age of majority is the age prescribed under Section 3 of the Indian Majority Act, 1875. Accordingly. The age of majority for the purpose of making a gift is the attainment of Ii years and if he or she is under a guardian appointed by the Court, the age of majority is the completion of 21 years.

(iv)  Soundness of mind:        A donor must he a person of sound mind. But a person of unsound mind or an insane can make a gift during lucid intervals. A mere weakness of the intellect would not be sufficient to make a gift invalid, if the donor was able to apprehend transaction.

(v)      Ownership of property:          A donor can make a gift of his or her own property, in other words the ownership of the property must be with the donor, at the time of making a gift. A gift by widow who is in possession of the property of her husband in lieu of dower cannot make a gift of such property. ,

(vi)    Gift of entire property:           A donor can give away his or her whole property by way of a gift during his lifetime. A man, may exclude his heirs. A donor may transfer his whole property by gift even if the gift has effect of defeating the Mohammedan Law of Inheritance. A gift may be made, of entire property to a stranger excluding heirs even with the heirs consent.

(vii)   Free consent:       A gift made under compulsion is not valid but voidable. Free consent' of the donor must be associated with the gift.

1. Capacity for a donee (Mahub-lahu):         

A donee who fulfills the following applications, has capacity to take gift:

1. Mohammedan or non-Mohammedan:       A done may be a Mohammedan or a non-Mohammedan. After the completion of the gift, to a non-Mohammedan, the property will be subject to the personal law of the donee.
2. Sex:   A donee may be male or female.
3. Status:        A donee may be married or unmarried.
4. Age:   A donee may be major or minor.
5. Soundness or unsoundness of mind:        A donee may be an insane. But when a gift is made to a minor or a person of unsound mind, the gift will be complete by the delivery of possession to the guardian of the minor or of the person of the unsound mind..
6. Existence of a donee:   At the time of making a gift, the donee must be in existence. A gift to an unborn person is invalid. For example, if the donor makes a gift of some property to a donee and after his death to donee’s son who is not in existence, such gift will be void.
7. Unborn donee:     A gift to an unborn donee, who is in womb and is born within 6 month of making of the gift, is valid. And a gift of future usufruct to unborn persons is valid provided the donee is in being at the time when interest opens out of heirs. Similarly when a gift of maintenance till death to his male heirs, and if the donee has got some male heirs at the time of the gift, the gift is valid. But a gift in favour of unborn person not born within 6 months of making of the gift is not valid.
8. Joint donees        : A gift may be made jointly to two or more persons but the shares of each should be clearly specified. For example, if a gift of a property capable of being divided is made to two or more persons without specifying their shares or without dividing them, .then the gift is not valid but if such donees themselves make any mutual arrangement and take possession of their individual shares, then the gift is valid.