.          ESSENTIALS /FORMALITIES OF GIFT:

Under Mohammedan Law, for the validity of a gift, the following formalities must be complied with.

(1)      Clear and unambiguous declaration by the donor or his agent.

(2)      Acceptance by the donee or his agent.

(3)      Delivery of possession.

(1)     Clear and unambiguous declaration by the donor or his agent:  

The first condition required for the validity of a gift is the declaration of intention. Such declaration may be made orally or in writing. A clear and unequivocal declaration of intention of making a gift by the donor or his agent, the first is essential element for the validity of a gift. The form of declaration is not immaterial. The term tamlik meaning ownership, which is equally applicable to sale and gift may be used in a declaration of gift.

 

 

(2)     Acceptance by the donee or his agent:

The second condition necessary for the validity of a gift is acceptance by the donee or his agent. Such acceptance may be made expressly or impliedly. Acceptance is not required in the following two cases:

(i)       Where the gift is' made by a guardian to his ward; and

(ii)      Where the gift of a debt is made to the debtor.

(3)     Delivery of possession:

The third and most essential condition required for the validity of a gift is delivery of possession of the property whether movable or immovable of gift. A gift not accompanied by possession is void ab initio. For the delivery of possession the following mentioned points may be noted:

(i) Actual or constructive delivery of possession: The delivery of possession may be actual, or physical and constructive or symbolic. The requirement is that the donor should divest himself completely of all ownership and dominion over the subject-matter of the gift and should deliver the possession of property to the donee.

Constructive delivery of possession' of the subject matter of the gift is sufficient because the real test of the delivery of possession is to see whether the donor or donee reaps the benefit. If the former possession is not transferred and

(ii) Exception to actual or physical delivery of possession: In every case of property, whether movable or immovable, actual physical delivery of possession, must be made except in few cases. -In such cases symbolic or constructive delivery of possession is sufficient. The exceptions are:

(a)      Joint residence of the donor and the donee: When the donor and the donee are both " residing in the same house, which is the subject matter of gift, the actual or physical delivery of possession is not necessary, in such a case the gift will be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over property.

(b)      Property in possession of other persons: The property of gift may not be in the possession of the donor himself but in the possession of some other person like as mortgagee, tenant or licensee. This property of the gift may be held adversely by other persons or under attachment for arrears of revenue^

(c)      Gift between spouses: When a husband or a wife makes gifts to each other of some property. in their joint possession, then the physical delivery of possession is not required.

(d)      Gift by a guardian to his ward: In the case of gift made by a guardian to his ward, actual delivery of possession is not necessary, only an indication of a bona fide intention to stand in loco parentis to the donee or is in lawful custody of donee.

(e)      Gift to a bailee: No physical delivery of possession is required, if a gift is made to the bailee in whose possession the subject-matter of the gift is already. The gift is complete by mere declaration and acceptance.

(f)      The property not capable of being delivered: In cases where the property is not capable of being delivered, physical delivery of possession is not essential,

(i)      A gift of a zamindari right may be completed by mutation of names in the records of right.

(ii)     A. gift of the right to collect rents and profits of shares of revenue paying villages may be made without making a physical delivery of possession as the property does not admit it.

(iii) Delivery of possession to whom made: Delivery of possession of a gift is made by the donor of his agent to different persons entitled to it under different circumstances.

(a)      A gift to the donee: Ordinarily delivery of possession of the subject of the gift is made to the donee himself or his agent. But the position is different when the donee is minor or lunatic, minor wife and a gift made through a trust .

(b)      A gift to a minor or lunatic: In the case of minor or lunatic, the possession of the subject of gift will be made to his legal guardian only. The gift will be complete only on such delivery of possession. In the absence of such guardian delivery can be made to any other guardian in order or to a de facto guardian.       

(c)      A gift to a minor wife: When a gift is made to a minor wife, whose marriage has been consummated, the delivery' of possession is given to her husband. But if the marriage has not been consummated, then possession would not be delivered to the husband. In such case, delivery of possession would be made to the father.

(d)      When gift through a trust: A gift may be made through a medium of a trust.   In such cases, the delivery of possession should be made to the trustee,

          Completion of a gift: The gift becomes complete at the time when delivery of possession is made, whether, such possession is actual or constructive. For the validity of a gift delivery of possession is must. When the donor is neither in actual nor in constructive possession, the gift would be invalid.

6. REVOCATION OF GIFT:

(1)     Revocation, before the delivery of possession: Delivery of possession makes a gift complete, so before the delivery of possession all gifts are revocable. Mere declaration of revocation by the donor is sufficient to revoke the gift. According to Durr-ul-Mukhtar there being no gift till the delivery of possession, the question of revocation hardly arises. So the use of the term revocation to such incomplete gifts is not proper.

(2)     Revocation after the delivery of possession: When delivery of possession is made by the donor, the gift becomes complete. For the revocation of such a gift, there are two methods:

(i) with the mutual consent of the parties, and  (ii) by a decree of the Court.

A donor can revoke the gift after the delivery of possession in the above mentioned ways, but after his death, heirs cannot revoke it or a gift can also not be revoked after the death of the donee. Till the passing of the decree the use or t profit of the property belongs to the donee.

But under the Shia law of gift declaration of revocation on the part of the donor is sufficient. There is no need of getting a decree from the Court.

There are certain exceptions, when after the delivery of possession, a gift cannot be revoked. According to Hanafi law such exceptions are as follows:

(i)      Gift between the spouses:      A gift between the spouses in irrevocable, if made only during the subsistence of their marriage, even though the marriage is irregular and is dissolved afterwards. Under the Shia law, a donor can revoke a gift by mere declaration without getting a decree form the Court. A gift made to a spouse is revocable.

(ii)     Relationship by prohibited degrees:         When the donor and the donee are related within prohibited degrees, by consanguinity, the gifts are irrevocable. Gift in favour of persons other than related by blood, is not irrevocable and when a joint gift of indivisible property is made to a stranger, and a relation within prohibited degrees by consanguinity, then gift can be revoked so far as the stranger is concerned.   ,

(iii) Death of either party:      The right of gift is personal right and so if either the donor or the donee dies, the gift is irrevocable, their heirs have no right of revocation.

(iv)    Gift of debt to the debtor:      When a gift of a debt is made to the debtor, by which the debtor discharged from liability, then also the gift becomes irrevocable.

(v)      increase in value of the gift:            When the value of the subject.-matter of the gift has increased, then also the gift becomes irrevocable.

(vi)    Destruction of identity:         When the identity of the subject-matter of the gift has been completely lost, then also the gift becomes irrevocable. For example, the gift of wheat becomes irrevocable when the wheat is converted into flour.

(vii)   Consideration received for gift:      When the donor has received some consideration in exchange of the gift by way of return or iwaz then also the gift is irrevocable. Hiba- bil-iwaz and hiba-ba-sharat-ul-iwaz come under this category.

(viii)  Gift in sadaqa form:      When the purpose of gift is to receive religious or spiritual benefit or merit, such as sadaqa, then also gift becomes irrevocable.

So, in the above mentioned cases, once delivery of possession is made, the gift becomes irrevocable, otherwise after delivery of possession, a gift can be revoked either by mutual consent of the parties or by a decree of the Court.

7.      GIFT WITH CONSIDERATION:

There are two kinds of gifts in this respect.

(i)       Hiba-bil-iwaz-and;

(ii)      Hiba-ba-shart-ul-iwaz

 

 (1)    Hiba-bil-iwaz:     

A hiba-bil-iwaz is the transfer of some property (whether movable or immovable) or right by one person to another, for a consideration or for exchange or return (iwaz) of something.

Hiba-bil-iwaz therefore acquires the character of a sale. In fad it has been held to be a reality and has also been held to possess all the incidents of a contract of sale. The iwaz forms the consideration and is a necessary part of Hiba-bil-iwaz. The adequacy of consideration is not material. What is material is that it must be actually and bona fide paid. It is not necessary that payment should be immediate. It may be made even subsequently provided it is offered and accepted as an iwaz of the gift already made.

According to the case of Wilayat Jan v, Muhammad Sharif. 1985 S C M R 1191. Hiba-bil-iwaz is distinguishable (rom a simple gift as the former is a gift for consideration. It is in reality, a sale and has all the incidents of a contract of sale. Two conditions, however, must concur to make the transaction valid namely

 (1)     actual payment of consideration (Iwaz) on the part of the donee, and

(2)      a bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. The adequacy of consideration is not material.

(2)     Hiba-ba-sharat-ul-iwaz, defined: A hiba- ba-sharat-ul-iwaz is the transfer of some movable or immovable property or right by one person to another. With some condition or stipulation (sharat) and also for some consideration or exchange or return (iwaz) delivery of possession is necessary. It is revocable till delivery of possession and not afterwards. On delivery of possession or fulfillment of the condition, hiba becomes a sale.

 (3)    Formalities: The three formalities of a gift; declaration, acceptance and delivery of possession must be followed for the validity of Hiba-bil-iwaz and Hiba ba-sharat-ul-iwaz.

(4)     Kinds of Hiba-bil-iwaz,

A hiba-bil-iwaz is of the two kinds:

(i)       True hiba-bil-iwaz ; and

(ii)      False hiba-bil-iwaz

(i)      True hiba-bil-iwaz: It is the classical form of hiba, so all. the formalities necessary for a hiba must be complied with. In this kind of hiba-bil-iwaz there is a transaction of two mutual gifts and the consideration is paid spontaneously and without any condition or stipulation. Such transaction has all the incidents of a gift. According to Baillie, this kind of transaction has the following characteristics.

(a)      In this form, the mutual gifts exist, for example, in transaction original gift and the other of the return or iwaz or exchange.

(b)      The consideration is without any stipulation.

(c)      The transaction is not a mutual exchange or a contract of maawzat either in its inception or completion as in the case with a false hiba-bil- iwaz

(ii)     False hiba-bil-iwaz: In this kind of hiba-bil- iwaz, there is a gift by a single act, of example, in one transaction both gift and return or iwaz are made. The donor makes the.gift only for an exchange. Such a form has all the incidents of a sale.

In Hitendra Singh v. Maharaja of Darbhanga, the Privy Council observed:

“Under the Mohammedan Law transfer by way of hiba- bil-iwaz is treated as sale and not_a gift.”

 (5)    Hiba and hiba-bil-iwaz, distinguished:

(i)       A hiba is a transfer of some property or right by one person called the donor to another called the donee without any consideration, but a hiba-bil-iwaz is hiba for consideration or in return ot iwaz of something.

(ii)      In hiba bil-iwaz there are two transactions, one is for a hiba and the second is for iwaz ,both these transactions are known as hiba-bil-iwaz. but in hiba there is only one transaction.

(iii)     The false hiba-bil-iwaz is in reality a sale and has all the ingredient of sale.

(iv)     The formalities necessary for a hiba must be complied with in case of hiba-bil-iwaz also.

(6)     Hiba-bil-iwaz and hiba-ba-sharat-ul-iwaz, distinguished:

(i)       When a gift is made with a condition or stipulation, for some consideration, the transaction is called hiba-ba-sharat-ul-iwaz.But in hiba-bil-iwaz there is no condition or stipulation.

(ii)      In hiba-ba-sharat-ul-iwaz delivery of possession  is necessary but in hiba-bil-iwaz, it is not necessary.

(iii)     A hiba-ba-sharat-ul-iwaz, is revocable till the delivery of possession of the iwaz or return is made by the donee or the donor. In hiba-bil-iwaz, also the gift becomes irrevocable when return or iwaz is delivered. In true hiba-bil-iwaz the return or iwaz is made spontaneously but in hiba-ba-sharat-ul- iwaz it is expressly stipulated.

(iv)     Both these transactions give rise to the right of pre-emption.

(v)      In a false hiba-bil-iwaz and a hiba-ba-sharat-ul- iwaz the transaction ultimately becomes a sale but in true hiba- bil-iwaz, that transaction remains a gift only.

(7)     Consideration for gift: Both the transactions require consideration. Even a small consideration, may be the hiba-bil- iwaz, or hiba-ba-sharat-ul-iwaz the only requirement is that the consideration should be actually and bona fide paid. A mere promise to pay is not sufficient.

 

8. EFFECT OF A  GIFT MADE DURING MARZ-UL-MAUT

Ans. Marz-ul-maut: Arabic equivalent for death-illness is 'marz-ul-maut which is made up of two words: (1) marz. and (2) maut. When a person suffering from  illness is under the apprehension of 'maut' (death) he-is said to be suffering from 'marz-ul-maut' or death-illness.

The best and most accepted definition death-illness is given by Baillie. According to him it is an illness "which is highly probable, will ensue fatally".

A marz-ul-maut is a malady (illness) which induces an apprehension of death in the person suffering from it and which eventually results in his death.

It is an essential condition of marz-ul-maut, that is, death- illness, that the person suffering from the marz-ul-maut be under an apprehension of maut i.e., death. Where the malady is of long continuance and there is no immediate apprehension of death, the malady is not marz-ul-maut; but it may become marz-ul-maut if it subsequently reaches such a stage as to render death highly probable, and does in fact result in death.

To constitute a malady marz-ul-maut, there must be :

(1)      proximate danger of death, so that there is a preponderance of apprehension of death ;

(2)      some degree of subjective apprehension of death in the mind of the sick person ; and

(3)      some external indications, chief among which would be inability to attend to ordinary avocations, although his attending the ordinary avocations does not conclusively prove that he was not suffering from marz-ul-maut.

Effect of gift made at the time of marz-ul-maut: A gift made during marz-ul-maut cannot take effect beyond one-third estate of the donor, after paying funeral expenses and debts, unless the heirs give their consent, after the donor's death Nor such a gift can take effect, if made in favour of an heir, unless the other heirs give their consent, after the donor's death.

A gift in death-illness takes place-only when the donor dies. Such a gift is subject to all the conditions necessary for the validity of a simple gift, including delivery of possession by the donor to the donee.       

1. If the gift was made under pressure, what the Privy Council described as "pressure of the sense of the imminence of death then the gift would be hit by doctrine of marz-ul-maut The same criterion was accepted by the Supreme Court. Both these precedent cases set out the following factors which the Court should consider to sustain the conclusion that the impugned transaction was made under such pressure.
2. Was the donor suffering at the time of the gift from a disease which was the immediate cause of his death?
3. Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby or to endanger in him the apprehension of death?
4. Was the illness such as to incapacitate him from the pursuit of his ordinary avocations-a circumstance which might create in the mind of the sufferer an apprehension of death?
5. Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom sufferer to malady. PLD 1977 SC 28.

A gift made by a Muslim during marz-ul-maut or death-illness cannot take effect beyond a third of his estate after payment of funeral expenses and debts, unless the heirs give their 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.        

A gift made during marz-ul-maut is subject to all the conditions necessary for the validity of a hiba or' gift, 'including delivery of possession by the donor to the donee.