Under Muslim law a gift may be made orally or in writing, irrespective of the fact whether the property is movable or immovable. But in every case the delivery of possession must be made to the donee. But if property is in hands of tenant then constructive possession would be sufficient.
The requirement of formalities laid down or gift in S. 123, Transfer of Property Act, are not applicable to Muslim gift. The only formality that is essential for the validity of a Muslim gift is “taking a possession of the subject-matter of gift by the donee either actually or constructively”.
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ADVERTISEMENTS:
The registration of the gift-deed does not cure the defect or want of the delivery of possession, and a gift made under a registered-deed is not valid, if delivery of possession has not been made to the donee. Further, if the delivery of possession has not been made, though all the formalities laid down in S. 123, Transfer of Property Act is complied with, then such a gift is not valid.
Under Muslim law for the gift of even immovable property neither written gift deed nor registration is necessary. But if the gift of immovable property worth Rs. 100 or more is made in writing, then registration is compulsory under Section 17, Registration Act.
Since clear and unequivocal declaration of intention of making a hiba is an essential element, it is essential that the donor should completely divest himself of all ownership and dominion over the subject-matter of the gift and should deliver the possession of property to the donee. The delivery of possession may be actual, constructive or symbolic.
For the validity of a gift, relinquishment of control over the subject-matter of the gift by the donor is essential. Any reservation of possession of property by the donor during his life time will render the hiba invalid. Mere book entry of possession, or deposit in the joint names of the donor and donee, does not amount to the delivery of possession.
ADVERTISEMENTS:
A declaration in a gift-deed that the possession has been handed over to the donee binds the heirs of the donor. Similarly, a recital in a gift-deed that possession has been handed over to the donee gives rise to a presumption of such delivery of possession. Such a presumption may be rebutted.
The delivery of possession may be constructive. Thus, in a case where the donor made the gift of corpus though reserved the usufruct to himself, the payment of the government revenue by the donee in respect of the land, the subject-matter of gift, was held to be the constructive delivery of possession by the donor to the donee.
In Noorjahan v. Muftakhar, a donor made a gift of certain property to the donee, but the donor continued to manage the properties and appropriated profits to himself. Till the death of the donor, no mutation was made in the name of the donee. It was held since no delivery of possession was made, the gift failed.
When the gift is made to a minor, the delivery of possession may be made to the guardian of the minor, or to the minor himself if he had attained the age of discretion. In Hussenabi v. Husensab, a gift was made by a grandfather to his grandsons living with him.
ADVERTISEMENTS:
The gift is valid is respect of the minor sons, as acceptance will be presumed to have taken place. But in the absence of proof of acceptance by the major grandson, the gift was held invalid.
Delivery of Possession of Immovable Property:
In the case of immovable property actual delivery of possession is necessary. However, when the property is in the occupation of tenants, the delivery of possession may be made by attoring the donee, by delivery of title-deeds or by mutation in the revenue records.
When a donor reserves the right to receive rents during his life time, and also undertakes to make payment of municipal dues, a mere recital in gift-deed that the delivery of possession has been made will not be enough, and the gift will fail for want of the delivery of possession.
When the donor and the donee are both residing in the house, the subject-matter of gift, the actual delivery of possession is not necessary; the gift will be complete 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 the property.
Thus, where gift was from husband to wife who were living in the same house, there was no necessity of formal departure of donor and formal entry of donee. There was a clear declaration of gift by donor in favour of donee, it was held to be a valid gift.
Further where an uncle made the gift to his nephew of the house in which both were living, the transfer of property in the name of the nephew and the recovery of rents in his name were considered to be sufficient to indicate delivery of possession of the property, though the uncle and the nephew continued to live in the same house.
But where neither title-deed are delivered to the donee, nor rents are collected in the name of the donee, and where the donor continues to pay the municipal dues, it was held that the gift was invalid as no delivery of possession has been made to the donee. Similarly, where neither the title-deed was delivered nor attainment by tenants was made, it was held that the gift was invalid.
Also, where possession of gifted property was not made over to the beneficiary by the gift-deed and beneficiary was neither in actual nor symbolic possession of property till the death of donor nor was there a recital in the gift-deed regarding acceptance by the beneficiary, it was held to be not a valid gift.
Delivery of possession of incorporeal property:
In respect of incorporeal property, or actionable claims, distinction is made between those properties which are capable of delivery of possession and which are not so capable. In the former case, the actual delivery of possession is necessary. Thus, a gift of a government promissory note can be made by endorsement and the delivery of the note to the donee.
In the latter case, all that is necessary is that the donor should divest himself completely of the ownership of, and dominion over, the property; the delivery of possession may be made in such manner as the subject-matter of gift is susceptible of.
Thus, a gift of zamidari right may be completed by mutation of names in the records of right. In Aga Mahmmed v. Koolsoix a husband handed over to his wife a receipt of a deposit of money in a bank and said: “After taking the bath, I will go to the bank and transfer the papers in your name”.
The receipt contained in the margin the word, “not transferable”. A died before he could affect the transfer. It was held that the gift was invalid, since the donor’s right to receive the money from the bank could not be transferred by the mere delivery of the receipt.
In some cases, actual delivery of possession is not necessary, only symbolic delivery of possession is enough. The cases are:
(a) Where the donor and the donee reside in the same house, the subject-matter of gift, the actual delivery of possession is not necessary, though clear and unequivocal manifestation of an intention on the act of the donor to divest himself of ownership and dominion is necessary. The same is true of a gift by a co-sharer to another. This aspect of the matter we have already discussed.
(b) Where a husband makes a gift to the wife or the wife makes a gift to the husband of a house or some other property in their joint possession, and then the actual delivery of possession is not necessary.
Even when the husband continues to live in the house the subject matter of the gift and collect rent after the date of the gift, the gift will be valid, and it will be presumed that he is collecting rent on behalf of the wife.
In Md. Sadiq v. Fakhr, the Privy Council said that when a person makes a gift of agricultural land to his wife, the gift will be valid even if no mutation of names has been made. In this case gift will be valid even if no mutation of names has been made.
In this case the declaration by the husband that he had made the gift and the handing over of the gift-deed to the wife by the husband were considered to be sufficient to constitute a valid gift.
In Ahima v. Khatya, where the donor handed over the keys of the house, the subject-matter of the gift, to his wife, the gift was considered to be valid, even though the husband continued to live in that house.
The court observed: ‘The relation of husband and wife and his legal right to reside with her and to manage her property rebut the inference which the case of parties standing in a different relation would arise from a continued residence in the house after the making of the hiba, and in the husband generally receiving rents of the chawl annexed to that house”.
The question came up for consideration before the Supreme Court in Valie v. Puthakkalan, where a husband made a gift of immovable property to his minor wife, under a registered gift deed. The gift deed was handed over to the mother of the wife. The wife had no other legal guardian.
Holding the gift valid, Hidayatullah, J. (as he was then) said: “The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mamoothy (the husband) to his mother-in-law and accepted by her on behalf of the minor. If Mamoothy had handed over the deed to his wife, the gift would have been complete under Muhammedan law and it seems impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness, he did not, complete the gift”.
(c) Where a gift is made by the father or the guardian to a minor, the actual delivery of possession to the minor need not be made. In an early case the Privy Council observed: “Where there is on the part of a father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without a change of possession and will presume the subsequent holding of the property to be on behalf of the minor”.
Thus, no delivery of possession, actual or constructive, is necessary when the father or the guardian makes a gift to his minor child or ward. All that is required is to establish a bona fide and unequivocal intention to make the gift.
Similarly, when the gift is made by the grandfather; the father being dead, no delivery of possession is necessary. But if the father is alive, then the gift by the grandfather to the minor grandson will not be valid unless the possession of the property is handed over by the grandfather to the father.
In those cases where someone else is appointed as guardian, then the acceptance of the gift by that guardian on behalf of the minor is enough, even though the father is alive. However, a gift by the father to his minor son will not be invalid because delivery of possession has been made to the mother who is guardian of the minor.
Under Muslim law, mother is not a legal guardian of her minor children, and, therefore, when she makes a gift to her minor child, the delivery of possession must be made to the father, or, in his absence, to the legal guardian; otherwise the gift will be invalid.
Where a gift is made by a father or guardian to the minor along with some others (in the sense that a trust for the benefit of the minor comes into existence), then the delivery of possession is necessary.
(d) Where a gift is made to the bailee (in whose possession the subject-matter of the gift is), no delivery of possession is necessary; the gift may be completed by declaration and acceptance.
According to the Fatwai Alamgiri, if the subject-matter of the gift is in the possession of the donee, either as a deposit or ariya, the gift is completed by acceptance, and formal delivery of possession is not necessary.
However, the gift of a house to a person who is merely employed to collect will not be valid by mere declaration and acceptance without the delivery of possession, since it cannot be said that the house was in the possession of the donee.