COMPARITIVE STUDY OF GIFT AS UNDER THE TRANSFER OF
PROPERTY ACT AND MOHEMMEDAN LAW - INTRODUCTION
By K. Kruthika Rao, N.L.U., Jodhpur
"Gift" is
the transfer of certain existing moveable or immoveable 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. Such acceptance
must be made during the lifetime of the donor and while he is still capable of
giving. If the donee dies before acceptance,
the gift is void.
The conception of the term "gift" as used In the Transfer of Property Act is somewhat different from the use in Mohammedan law.
In the Mohammedan
law a gift is a transfer of property or right by one person to another in
accordance with the provisions given in the Mohammedan law and includes-
a)
A hiba, an immediate
and unconditional transfer of the ownership of some property or of some right,
without any consideration or with some return (ewaz); and
b)
An ariat, the grant of
some limited interest in respect of the use or usufruct of some property or
right.
Where a gift of
any property or right is made without consideration with the object of
acquiring religious merit, it is called sadaqah.
The
terms "hiba" and "gift" are often indiscriminately used but
the terms "hiba" is only one of the kinds of transactions which are
covered by the general term "gift”. A hiba is a transfer without
consideration. A gift by a Muslim in favour of his co-religionist must be under
the Mohammedan Law. A gift is not a contract (though in Muslim law it is called
a contract) but the principle may be applicable even to gift.
In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or taking are two contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates 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. The essential elements of a gift are
(a) The absence of consideration;
(b) the donor;
(c) The donee;
(d) The subject-matter;
(e) the transfer; and the acceptance.
The concept of gift is diametrically opposed to any presence of consideration or compensation.
In order to constitute a valid
gift, the pivotal requirement is acceptance thereof. No particular mode of
acceptance is required and the circumstances throw light on that aspect. A
transaction of gift in order to be complete must be accepted by the donee
during the lifetime of the donor. Factum of acceptance can be established by
different circumstances such as donee taking a property or being in possession
of deed of gift alone. If a document of gift after its execution or
registration in favour of donee is handed over to him by the donor whom he
accepts, it amounts to a valid acceptance of gift in law. The specific recital
in the deed that possession is given raises a presumption of acceptance.
CONCEPTION
OF PROPERTY
English Law.-In order to appreciate the questions of conditions in gifts (and also in bequests) it is necessary to first note the different conceptions of property in English and Mohammedan laws. The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. Rights in land described as "estate in land" do not always imply only absolute ownership but also rights which fall short of it and are limited to the life of the grantee or otherwise limited in respect of time and duration or use property in all these various forms are described as "estate". Ownership of land is thus split up into estates distinguished in point of quality (e.g., into legal and equitable estates) and in point of duration (e.g., estates in fee simple, in tail, for life or in remainder.'
Mohammedan Law.-In general, Muslim
law draws no distinction between real and personal property, and there is no
authoritative work on Muslim law, which affirms that Muslim law recognises the
splitting up of ownership of land into estates. What Muslim law does recognize
and insist upon, is the distinction between the corpus of the property itself (ayn)
and the usufruct in the property (manqft). Over the corpus of
property the law recognises only absolute dominion, heritable and unrestricted
in point of time; and where a gift of the corpus seeks to impose a condition
inconsistent with such absolute dominion the condition is rejected as
repugnant; but interests limited in point of time can be created in the
usufruct of the property and the dominion over the corpus takes effect subject
to any such limited interests. Limited interests in respect of property are not
identical with the incidents of estates under the English law. Under the
Mohammedan law they are only usufructuary interest (and not rights of ownership
of any kind).
Thus, in English law a person having interest in immoveable property for limited periods of time is said to be the "owner" of the property during those periods. The usufruct is also a part of the corpus. On the other hand, in Muslim law, a person can be said to be an "owner" only if he has full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment of property is granted to a person for life or other limited period such person cannot be said to be an "owner" during that period. The English law thus recognises ownership of the land limited in duration while Muslim law admits only ownership unlimited in duration but recognises interests of limited duration in the use of property.
There is no difference between the several schools of Muslim law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools.
THE DONOR
DONER’S QUALIFICATION
The donor is the person who gives. Any person who is sui juris can make a gift of his property. A minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would therefore be void trustees cannot make a gift out of trust property unless authorized by the terms of the contract.
On behalf of a minor, a natural guardian can accept a gift containing a condition that the person nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would amount to recognition by the natural guardian of the nominated person as the manager or the agent of minor for the purpose of such property.
In Mohammedan law majority is
to be determined according to Sec. 3 of the Majority Act, and not by Mohammedan
law.
The age of majority as regards
matters other than marriage, dower, divorce and adoption, is now regulated by
the Indian Majority Act IX of 1875. Section 3 of the Act declares that a person
shall be deemed to have attained majority when he shall have completed the age
of eighteen years. In the case, however if a minor of whose person or property
a guardian has been appointed, or of whose property the superintendence has
been assumed by a Court of Wards, the Act provides that the age of majority
shall be deemed to have been attained on the minor completing the age of
twenty-one years.
Soundness of mind and majority are
the only qualifications required for making a gift. A gift to be valid must be
made by a person with his free consent and not under compulsion. The donor must
not be insane but a mere weakness of the intellect would not be sufficient to
invalidate the gift if the donor was able to apprehend the transaction.
Donor’s powers
are unrestricted in Mohammedan law-
A man may lawfully make a gift of his property to another during his lifetime, or he may give it away to some one after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition. Mohammedan law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the net estate. Mohammedan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will from that of a will a gift may be made to a stranger wholly excluding the heirs. Pardanashin Lady Free consent means, the consent should not have been obtained by fraud, misrepresentation or undue influence. An insolvent donor is not competent to make a gift.
THE DONEE
The donee is the person who accepts the gift, by or on behalf of a person who is not competent to contract. A minor therefore may be a donee; but if the gift is onerous, the obligation cannot bee enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the gift.
The words 'accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance. A gift can be made to a child en ventre sa mere and could be accepted on its behalf.
The donee must be an ascertainable person and be a donee under this section; nor can a gift be made to an unregistered society.
A gift to two or more persons may be a gift to them as joint tenants or as tenants in common. The presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a Hindu gift the donees are presumed to take as tenants in common
It is necessary in Mohammedan law that the donee should accept a hiba
and possession must be delivered in the case of hiba. As hiba is immediate and
absolute transfer of ownership a hiba in favour of a person who was not in
existence is invalid. It is necessary that the donee should accept a hiba and
possession must be delivered in the case of hiba. As hiba is immediate and
absolute transfer of ownership a hiba in favour of a person who was not in
existence is invalid.
Gifts
of Usufruct(Ariat) to unborn persons -a
hiba stands on a different footing from a gift of a limited interest in
usufruct a gift of future usufruct to unborn persons is valid provided that the
donee is in being at the time when interest opens out for heirs
Child in the womb -
a hiba in favour of a child in the womb is
valid if the child is born within six months from the date of the hiba
because in that case it is presumed that the child actually existed
as a distinct entity in the womb of his mother.
Juristic persons - a
gift to juristic persons or any other institution
is valid. So a gift to corporate units, e.g. a tauazhi (consisting of a mother
and of all her children and not descendants in the female line governed by
Marumakkathayam law) are valid. Such a gift will be valid as being one for the
whole body.
It has been held that a mosque is recognized by the
Mohammedan jurist as a juristic person, and that a valid gift can be made in
favour of a mosque.
Gifts to
Non-Muslims - a gift may be made to a
non-Muslim but
in such a case the property will, after the completion of the gift, be subject
to the personal law of the donee and not that of donor.
SUBJECT OF GIFT
The subject matter of the gift must be certain existing movable or immovable property. It may be land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future property. A gift of a right of management is valid; but a gift of future revenue of a village is invalid. These cases were decided under Hindu and Mohammedan law respectively but they illustrate the principle. In a Calcutta case, it was said that the release of a debt is not a gift, as a gift must be of tangible property. It is submitted that the release of a debt is not a gift as it does not involve a transfer of property but is merely a renunciation of a right of action. It is quite clear that an actionable claim such as a policy of insurance may be the subject of a gift
It is submitted that in a deed of gift the meaning of the word 'money' should not be restricted by any hard and fast rule but should be interpreted having regard to the context properly construed in the light of all the relevant facts.
Therefore in order to constitute a valid gift, there must be an existing property.
In Mohammedan law
any property or right which has some legal value may be the subject of a gift.
CONDITIONS FOR
VALID GIFT UNDER SECTION 122 OF THE TRANSFER OF PROPERTY
There was a divergence of view between the two schools of Hindu law as to the necessity of acceptance of the gift by the donee, Dayabhaga holding that it was not necessary but Mistakshara holding the contrary. This section has modified the indigenous Dayabhaga law. A transfer of a stock to the name of the donee vests the property in him subject to his right to repudiate the gift, even though he be unaware of the transfer And this is so even though the gift be onerous. The mutation entries of the property alleged to be gifted does not conveyor extinguish any title and those entries are relevant only for the purpose of collection of land revenue.
Gift defined under the Transfer of Property Act is as given below-
122.
"Gift" defined. -
"Gift" is the transfer of certain existing moveable or immoveable
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.
It is required
to be a voluntary transfer of property to another made gratuitously and without
consideration. This section applies to those gifts that are gifts inter
vivos or an absolute gift. Property under the above section can be
both moveable or immoveable but however have to be tangible in nature. In order to constitute a valid gift, there
must be an existing property as already earlier elaborated.
Voluntarily
- In this section the word 'voluntarily' bears its ordinary popular meaning. It
denoting the exercise of the unfettered free will, and not its technical
meaning of 'without consideration'. When a gift is made, it must satisfactorily
appear that the donor knew what he was doing and understood the contents of the
instrument and its effect, and also that undue influence or pressure was not
exercised upon clear intention to make an out-and-out gift, but the intention
has failed for want of transfer or any other cause, the courts will not convert
what was meant to be an out-and-out gift into a trust, and the donor will not
be deemed a trustee of the property for the intended donee. The gift will fail.
Also where the husband deposited certain ornaments with a bank for safe custody
in the joint names of himself and his wife, with direction to be delivered to
be either or survivor, it did not amount to a gift, as the husband retained
dominion over the property. Where a person keeps money to fixed deposit in the
name of his niece, brought up and given in marriage by him, there is an
inference of gift in favour of the niece.
Where the
motive behind the deed of gift was unequivocal to give the transferee a title
which would act as a safeguard against any claim for pre-emption, the
transaction for that reason cannot be called a sale. Similarly where a person
settles an annuity upon his alleged wife, the settlement cannot be construed to
be a contract for consideration of love and affection, but is a gift pure and
simple.
Donative
intention (motive) and consideration-
A gift is a
transfer. But it does not contain any element of consideration. Complete
absence of monetary consideration is the main, hallmark, which distinguishes a
gift from a grant or any other transactions for valuable or adequate
consideration. Where there is any equivalent of benefit measured in terms of
money in respect of a gift, the transaction ceases to be a gift. Love,
affection, spiritual benefit and many other factors may enter in the intention
of the donor to make a gift but these financial considerations cannot be called
or held to be legal considerations as understood by law. Legal consideration is
one recognised or permitted by law as valid and lawful. The term is also
sometimes used as equivalent to a 'good' or 'sufficient' consideration. Love
and affection is a sufficient consideration when a gift is contemplated, but it
is not considered as a 'valuable' consideration when such is required.
It is one of the essential requirements of a
gift that it should be made by the donor ‘without consideration’.
The word 'consideration' has not been defined in the T.P. Act, but means the
same as in the Contract Act excluding natural love and affection. If not, and
if the transfer involved consideration, the transaction would amount to a sale
within the meaning of sec. 54 or to an exchange within the meaning of sec. 118.
The essence of a gift inter vivos must be without 'consideration' of the
nature defined in sec. 2(d) of the Contract Act.
Where a very
old man, with weak eyesight, sues for cancellation of the deed of gift executed
by him in favour of his son alleging that it was not his voluntarily act. The circumstance
also indicated that the donee was in a position to dominate the will of the
donor. Under such circumstance the onus shifts on to the donee to prove that
the gift was made voluntarily.
In another case of the Orissa High court, Gift deed is alleged to have been taken from a pardanashin lady by practicising fraud. When the plaintiff is an illiterate or pardanashin lady, in spite of the fact that she is unable to establish her case of practising fraud, the onus still remains uponi the donee to establish conclusively that the document was executed after it was read over and explained to her and after she understood the contents thereof.
‘Without
consideration’ - A gift is a transfer
without consideration and if there is any consideration in any shape, there is
no gift. The word 'consideration' means valuable consideration, i.e.
consideration either of money or money's worth. A gift in lieu of conferring
spiritual benefit to the donor is not a transfer with consideration, but is to
be treated as a gift.
Where a mother gifts property to her only daughter, who promises to maintain the former throughout her life, the promise is not enforceable in law because the gift has to be for natural love and affection and not for any consideration . A minor may be a donee and the minor's natural guardian can accept the gift on behalf of the minor. But if the gift is onerous, the obligations cannot be enforced against the minor during his minority. But on his attaining majority, the minor must accept the burden or return the gift. The donee can even be a child en ventre sa mere (in its mother's womb).
When Acceptance to be made. - Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
Acceptance. - The gift must be accepted by the donee or by someone on his behalf. An offer without acceptance by the donee cannot complete the gift. Acceptance may be inferred from acts prior to the execution of the deed of gift. Mere silence may sometimes indicate acceptance provided the donee knows about the gift, slighest evidence of acceptance being sufficient.
Even when a gift
is made by a registered instrument, the same has to be accepted by or on behalf
of the donee to make it complete, failing which the gift will be bad, because
it so provides in sec. 122. What the law
requires is acceptance of the gift after its execution, though the deed may not
be registered. Anterior negotiations or talks about the gift would not amount
to acceptance. Person accepting gift on behalf of the minors appended his
thumb-impression on the deed in token of acceptance. It was held that
the gift was complete. Acceptance must be essentially made before the death
of the donor. There must be something shown to indicate an acceptance.
The acceptance may be signified by an overt act such as the actual taking of
possession of the property, or such acts by the donee as would in law amount to
taking possession of the property where the property is not capable of physical
possession. Acceptance may be implied, but the rule of implied acceptance ought
not to be extended so far as to hold that the acceptance will be presumed
unless dissent is shown. Acceptance will be presumed if there is possession,
actual or on the parties where some right, interest, profit or benefit accrues
to one party, or some forbearance, detriment, loss, or responsibility is given,
suffered or undertaken by the other. There is nothing in section122 of
the transfer of property Act to show that the acceptance under this section
should be express. The acceptance may be inferred, and it may be proved by the
donee's possession of the property, or even by the donee's possession of the
deed of gift.
Delivery of possession of the gifted property is not absolute requirement, for the completeness or the validity of the gift as found in Muslim Law of Gifts.
When a gift of immovable property is not onerous, only slight evidence is sufficient for establishing the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift, it is only normal to assume that the donee had accepted the gift, because the acceptance would only promote his own interest. Mere silence may sometimes be indicative of acceptance, provided it is shown that the donee knew about the gift. No express acceptance is necessary for completing a gift.
While mere possession by or on behalf of, a donee may amount to acceptance, mere possession cannot be treated as evidence of acceptance where the subject matter is jointly enjoyed by the donor and the donee.
A gift of immovable property can only be made by a registered instrument. A deed cannot be dispensed with even for a property of small value, as in the case of a sale. And as a further precaution, attestation by two witnesses is required. This provision excludes every other mode of transfer and even if the intended donee is put in possession, a gift of immovable property is invalid without a registered instrument.
ESSENTIALS OF GIFT UNDER MOHAMMEDAN LAW
Under Mohammedan
law, to be a valid gift, three essentials are required to exist:
(a)
declaration of gift by
the donor
(b) an acceptance of the gift, express or implied, by or on behalf of the donee, and
(c)
delivery of possession
of the subject of gift.
Courts
have consistently held that when there is no compliance of any of the above
three essential conditions the gift renders itself as invalid. Another characteristic
of Mohammedan law is that writing is not essential to the validity of a gift
either of movable or immovable property.
In another case the Patna High Court held that under the Mohammedan Law for validity of the deed of gift four elements are necessary
Ø declaration of gift by the donor
Ø relinquishment by donor of-ownership-and dominion
Ø acceptance of the gift by donee, and
Ø delivery of possession of the property by donor.
Under
the Mohammedan Law it is essential as regards gift that the donor should divest
himself completely of all the ownership and dominion over the subject of the
gift. It is essential to the validity of the gift that there should be delivery
of such possession as the subject of the gift is susceptible of. According to
Muslim law it is not necessary that there should be deed of gift in order to
make it a valid gift, but of course, if there is a deed it should be
registered.
Acceptance- Acceptance may be made expressly or impliedly by conduct,
but acceptance would be unnecessary in a case where the gift is made by a
guardian to his ward. Mohammedan law does not dispense with the necessity for
acceptance of the gift even in cases where the donees are minors. If the donees
are minors it may be that the evidence of acceptance will have to be approached
with reference to that fact, but that does not mean that no proof of evidence
of acceptance is necessary in the case of a gift in favour of minor.' A minor
who has attained discretion may accept the gift even after it has been rejected.
He may also refuse to accept the gift.
Delivery
of possession - Under the Mohammedan law
it is not
necessary that there must be actual delivery of possession to make a gift
valid. It is a fundamental rule of Mohammedan law as regards gifts,that
"the donor should divest himself completely of all ownership and dominion
over the subject of the gift. It is essential to the validity of a gift that
there- should be a delivery of such possession as the subject of the gift is
susceptible of what delivery the property is capable of and whether such
delivery as the property is capable of has been given would depend upon the
particular facts in each case. A gift with a reservation of possession by the
donor during his life was held to be void in K.S. Mohammad Aslam Khan v.
Khalilul Rahman Khan, One thing is clear, that by reserving undisturbed his
right to be in possession and enjoyment, the donor does not divest himself
completely of all dominion over the properties, though in sense, he purports to
associate the donees with himself, nor can such
associating the donees in the matter of possession and enjoyment with him be
deemed to be delivery of such possession, if all, as the properties are
susceptible of. It is not correct to say that a stipulation that the donor and
the donees shall be in joint possession, satisfies the requirement of delivery
of possession in a gift under the Mohammedan law.
Even
where the donee resides with the donor in the property although no physical
departure by the donor or formal entry by the donee, is necessary, the gift has
to be completed by the donor indicating a clear intention of his part to
transfer possession and to divest himself of all control over the subject
of the gift.' Among the conditions required for the
validity of a gift under Mohammedan law the most essential is that of delivery
of possession, actual or constructive, with the permission of the donor,
without which a gift cannot be valid.
Possession,
Actual and Constructive - It should,
however, is noted that while the delivery of possession is an essential
condition for the validity of the gift, it is not necessary that in every case
there should be a physical delivery of possession. Possession the delivery of
which would complete a gift may be either actual or constructive. All that is
necessary is that the donor should divest himself completely of all ownership
and dominion over the subject of the gift. The relinquishment of control is
thus necessary to complete the gift. 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 if the latter, it is transferred, and the
gift is complete if the donee is permitted directly or indirectly to receive
the benefit. Constructive possession of the subject of the gift is therefore
sufficient.
Oral Gift of an
Immoveable Property-
In view of sec. 123
of Transfer of Property Act, a gift of immovable property, which is not
registered, is bad in law and cannot pass any title to the donee. Any oral gift
of immovable property cannot be made in view of the provisions of sec. 123.
Mere delivery of possession without a written instrument cannot confer any
title
Under the Muslim law, an oral
gift is permissible. However, in order to constitute a valid gift, the donor
should divest himself completely of all ownership and dominion over the subject
of gift. It is also essential for the donee not only to prove that the donor
had made an oral gift in his favour, but it is also essential for him to prove
that he accepted the said gift and delivery of possession of the gifted
property had also been effected.
Although the Hindu law requires
delivery of possession to complete a gift of immovable property, that law has
been abrogated by sec. 123 of this Act. This section clearly seems to have the
effect of rendering unnecessary the delivery of possession, substituting, as it
does, registration for delivery of possession
Since delivery of possession is not
necessary, it follows that if a Hindu executes a gift in praesenti of
three villages by means of a duly registered instrument but reserves possession
of the villages in order to enjoy the usufruct during his lifetime, and at the
same time provides that he would not alienate the property to anybody else, the
gift is perfectly valid.
Under the Mohammedan law, the
essentials of a gift are: declaration of gift by the donor, an acceptance of
the gift by the donee, and delivery of possession such as is the subject of the
gift susceptible of. This rule of Mohammedan law is unaffected by the
provisions of sec. 123, Transfer of property Act and, consequently, a registered
instrument is not necessary to validate a gift of immovable property.
Possession means not always
actual physical possession but possession which the property is capable of
being given. So far as declaration is concerned, it must be shown that the
donor either in the "presence of witnesses or otherwise made a public
statement that he gifted the property in favour of the donee and that he
divested himself of the ownership of the property by delivering possession to
the donee. A Mohammedan can make oral gift of his immovable gift subject to
these conditions.
Delivery of possession being
essential to the validity of a gift, it follows that if there is no delivery of
possession, there is no valid gift.
Under the Mohammedan law, a valid
gift can be affected by delivery of possession, and if there is delivery of
possession, the mere fact that there is also an unregistered deed of
gift does not make the gift invalid.
A COMPARITIVE OF GIFT IN THE TRANSFER OF PROPERTY ACT AND IN MOHAMMEDAN LAW
PROPERTY- Gifts as given under the transfer of property Act deals only with gifts of tangible properly;
and so a release of a security without
consideration does not fall under this section; because, though the release of
the security may be said to be a gift, still the gift is not one of tangible
property. When the certificate of shares together with a blank transfer form
signed by the registered shareholder is handed over to the buyer by the
registered holder, the buyer acquires not the full property in the shares but
the title to get on the register of the company. This title to get on the
register, though a chose in action, constitutes goods within the meaning of the
Sale of Goods Act, and the gift of such title to get on the register is
complete when a deed of gift duly attested and registered, together with the shares
and blank transfer form signed by the donor, is handed over to the donee.
HIBA
OF CORPOREAL AND INCORPOREAL PROPERTY-it
is not necessary that a hiba must be of some corporeal or tangible property, it
may be made not only of corporeal property but also of incorporeal property.
Thus, a hiba may be made of actionable claims or chooses-in-action, e.g.
debts,negotiable instruments or Government promissory notes.
Gift
of a debt -the gift of a debt to the
debtor is lawful both
by analogy (qiyas) and liberal interpretation (istehsan). A gift takes effect
in two ways, by transfer of right of property (tamlik) or by cancellation or
discharge (iskat). The gift of a debt to the debtor comes under the latter
category. If the creditor releases the principal debtor from debt, both the
debtor and surety are released. The release of a debt may also be made in
favour of the heirs of the debtor if he dies.
EXISTENCE OF PROPERTY NECESSARY- In order to constitute a valid gift, there must be an existing property. In other words, the subject-matter of the gift must be certain existing moveable or immovable property like land, goods or actionable claims. It must be transferable under sec. 6. In case of gift of certain amount by entries in the books of account by credit and debit, the sums should be available on the date of gift in the account of the firm whose accounts are said to be credited or debited. In the case of banking companies or other firms and companies who have overdraft facilities, even if the sums are not in credit of the donor and are not with such companies or firms, gifts might be possible by adjustment of the book entries. But in the case of non-banking companies or firms, if these companies or firms do not have overdraft facilities, it is not possible to make a valid gift if sums or funds are not available. A donation cannot be made of anything to be in future (e.g. future revenues of a property).
EXISTENCE
OF PROPERTY NECESSARY ALSO IN CASE OF HIBA-
A
hiba is an out-and-out transfer of some determinate thing or an incorporeal
right, it is necessary that such thing or right must be in existence and can be
transferred immediately. Also in the case of a gift of usufruct(Ariat)
produce (Manqfi) refers to rights which accrue from day to day in future.
Such produce or use of a thing becomes property particle by particle as it is
brought into being. The manqfi may thus be transferred by the donor during his
lifetime by gift or by bequest and be the subject of gift even though they are
not in existence at the time of the gift.
Equity
of Redemption can be subject of a valid gift-where the property gifted is subject to a usurfructory mortgage, what is
gifted is merely the equity of redemption and not physical possession of the
property itself.
ORAL
GIFT OF IMMOVEABLE PROPERTY - In view of
sec. 123, a gift of immovable property which is not registered is bad in law
and cannot pass any title to the donee. Any oral gift of immovable property
cannot be made in view of the provisions of sec. 123. Mere delivery of
possession without a written instrument cannot confer any. Under the Muslim
law, an oral gift is permissible. However, in order to constitute a valid gift,
the donor should divest himself completely of all ownership and dominion over
the subject of gift. It is also essential for the donee not only to prove that
the donor had made an oral gift in his favour, but it is also essential for him
to prove that he accepted the said gift and delivery of possession of the
gifted property had also been.
WHEN
GIFT MAY BE SUSPENDED OR REVOKED
Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.the following are those conditions-
(1) That the donor and donee must have agreed that the gift
shall be
suspended or revoked on the happening of a specified event;
(2) such event must be one which does not depend upon the
donor's
will;
(3) the donor and donee must have agreed to the condition at
the
time of accepting the gift; and
(4) the condition should not be illegal, or immoral and should
not be
repugnant to the estate created under the gift. Section 126 is controlled by
sec. 10. As such, a clause in the gift deed totally prohibiting alienation is
void in view of the provisions contained in sec. 10. A gift, which was not
based on fraud, undue influence or misrepresentation nor was an onerous one,
cannot be cancelled unilaterally. Such a gift deed can be cancelled only by
resorting to legal remedy in a competent court of law.
A Mohammedan on the other hand can revoke a gift even after delivery of possession except in the following cases:
(1) When the gift is made by a husband to his wife or by a wife
to her husband;
(2) when the donee is related to the donor within the
prohibited degrees;
(3) when the gift is Sadaka (i.e. made to a charity or
for any religious
purpose).
(4) when the donee is dead;
(5) when the thing given has passed out of the donee's
possession
by sale, gift or otherwise;
(6) when the thing given
is lost or destroyed;
(7) when the thing given
has increased in value, whatever be the cause of the increase;
(8) when the thing given
is so changed that it cannot be identified, as when wheat is converted into
flour by grinding; and
(9) when the donor has received something in exchange for the gift
Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.
ONEROUS GIFT
'Onerous gift' is a gift made subject to certain charges
imposed by the donor on the donee. The principle behind this is that he who
accepts the benefit of a transaction must also accept the burden of the same.
This section, being an embodiment of a rule of equity, applies equally to
Hindus and Mahomedans. For acceptance of an onerous gift, acceptance of the
gift itself is sufficient; there need not be any separate and express
acceptance of the onerous condition also at the same time. The acceptance of
the gift will carry with it the acceptance of the onerous condition also, even
though at the time of the gift the donee was not aware of such condition,
specially where the onerous condition is of a trifling nature (payment of Rs. 5
as monthly maintenance to a certain person for life). A donee not competent to
contract and accepting property burdened by any obligation is not bound by his
acceptance. But if, after becoming competent to contract and being aware of the
obligation, he retains the property given, he becomes so bound.
UNIVERSAL DONEE
The
essential condition to constitute a universal donee is that the gift must
consist of the donor's whole property. If any portion of the donor's
property, no matter whether it is moveable or immovable, is excluded from the
operation of the gift or the endowment, the donee is not a universal donee.
This concept is embodied in section 128 of the Transfer of property Act. Where
a Mahomedan made a gift of the whole of his estate to his son and directed him
to pay his debts, the son was a universal donee and he was liable to pay all
debts of the donor. There is no rule of Mahomedan law which conflicts with the provisions
of this section.
CONCLUSION
The conception of
the term gift and subject matter of gift has been an age old and traditional
issue which has developed into a distinct facet in property law. Different
aspects related to gift in property act and its distinction with the Mohammedan
law and its implications has been the major subject matter of this article.
In considering the law of gifts,
it is to be remembered that the English word ‘gift’ is generic and must not be
confused with the technical term of Islamic law, hiba.
The concept of hiba and the term
“gift as used in the transfer of property act, are different. As we have seen
in the project that Under Mohammedan law, to be a valid gift, three essentials
are required to exist: (a) declaration of gift by the donor (b) an acceptance
of the gift, express or implied, by or on behalf of the donee, and (c) delivery
of possession of the subject of gift.
The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. The essential elements of a gift are (a) The absence of consideration; (b) the donor; (c) the donee ;(d) the subject-matter; (e) the transfer; and the acceptance
Thus this striking difference between
the two laws relating to gift forms the base of this project in understanding
its underlying implications.