Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a well established rule of Muslim law that all voluntary transactions, including gifts, are revocable. The Muslim law-givers have approached the subject of revocability of gift from several angles.
From one aspect, they hold that all gifts except those which are made by one spouse to another, or to a person related to the donor within the degrees or prohibited relationship, are revocable.
The Hedaya gives the reasons thus: “The object of a gift to a stranger is a return for it is custom to send presents to a person of high rank that he may protect the donor; to a person of inferior rank that the donor may obtain his services; and to person of equal rank that the donor may obtain an equivalent and such being the case it follows that the donor has the power of annulment, so long as the object of the deed is not answered, since a gift is capable of annulment”.
Their texts of Muslim law to lay down a long list of gifts which are irrevocable. The contents of the list differ from school to school, and the Shias and the Sunnis have the usual differences. The Muslim law-givers also classify gifts from the point of view of revocability under the following two heads:
(i) Revocation of gifts before the delivery of possession, and
(ii) Revocation of gifts after the delivery of possession.
(i) Revocation of gifts before the delivery of possession:
Under Muslim law, all gifts are revocable before the delivery of possession is given to the donee. Thus, P makes a gift of his motor-car to Q by a gift deed. No delivery of possession has been made to Q. P revokes the gift.
The revocation is valid. In this case, it will not make any difference that the gift is made to a spouse, or to a person related to the donor within the degrees of prohibited relationship. The fact of the matter is that under Muslim law no gift is complete till the delivery of possession is made, and therefore, in all those cases where possession has not been transferred the gift is incomplete, and whether or not it is revoked, it will not be valid till the delivery of possession is made to the donee.
The revocation of such a gift, therefore, merely means that the donor has changed his mind and does not want to complete it by the delivery of possession. For the revocation of such gifts, no order of the court is necessary. Fyzee rightly says that this is a case of inchoate gift and it is not proper to apply the term revocation to such a gift.
(ii) Revocation after the delivery of possession:
Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is entitled to use the property in any manner; he can also alienate it.
It seems that: (a) all gifts after the delivery of possession can be revoked with the consent of the donee, and that (b) otherwise (in those cases where gifts are revocable) revocation can be made only by a decree of the court.
The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his heirs after his death. A gift can also not be revoked after the death of the donee.
According to the Hanafi School with the exception of the following cases, a gift can be revoked even after the death of the donee.
According to the Hanafi School, with the exception of the following cases, a gift can be revoked even after the delivery of possession;
(i) When a gift is made by one spouse to another,
(ii) When the donor and the donee are related within the prohibited degrees,
(iii) When the donee or the donor is dead,
(iv) When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he had disposed it off by sale, gift or otherwise or, where he had consumed it, or where it had been lost or destroyed,
(v) When the value of the subject-matter has increased,
(vi) When the identity of the subject-matter of the gift has been completely lost, just as wheat, the subject-matter of gift, is converted into flour,
(vii) When the donor has received something in return (iwaz), and
(viii) When the object of gift is to receive religious or spiritual benefit or merit, such as sadaqa. The Shia law of revocation of gifts differs from the Sunni law in the following respects: First, gift can be revoked by a mere declaration on the part of the donor without any proceedings in a court of law; secondly, a gift made to a spouse is revocable; and thirdly, a gift to a relation, whether within the prohibited degrees or not, is revocable.