Laws For everyday life
How to make gift of immovable property?
Syed Gouseuzzaman Haideri Ali
GIFT is one of the modes of transferring property. In every society and in every legal system there are laws for making gift. Gift is a transfer of movable or immovable property made voluntarily and without any consideration. In Indian Subcontinent there are provisions of gift in:
(i) Transfer of Property Act 1882;
(ii) In Muslim Hanafi Laws;
(iii) In Muslim Shia Laws;
(iv) In Hindu Dayabhaga Laws;
(v) In Hindu Mitakhshara Laws.
Gift has been properly defined in section-122 of Transfer of Property Act 1882. According to this section, gift is a transfer of certain movable or immovable property made voluntarily and without any consideration, by one person called the donor, and accepted by or on behalf of the donee.
Section-123 defines how transfer of gift is to be effected. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses.
Gift according to Muslim Hanafi laws
In Hanafi laws and as well as in other schools of Islamic Laws gift is known as 'hiba'. A gift or hiba is a transfer of property, made immediately and without any exchange, by one person to another, and accepted by or on behalf of the latter.
Persons capable of making gift:
Every Muslim of sound mind and not a minor may dispose of his property by gift. A gift as distinguished from a will, may be made of the whole of the donor's property, and it may be made even to an heir.
The three essentials of a gift:
It is essential to the validity of a gift that there should be;
(i) a declaration of gift by the donor,
(ii) an acceptance of the gift express or implied by or on behalf of the donee, and
(iii) delivery of possession of subject matter of the gift by the donor to the donee. If these conditions are completed, than the gift is complete.
In Islamic Hanafi Law the registration of a gift is not essential. It can be completed by the delivery of possession. But after the amendment of 2005 of the section-17 of Registration Act 1908, every transfer of property including gift or 'hiba' under Islamic Law must be registered.
Contingent gift:
A gift cannot be made to take effect on the happening of a contingency. When a gift is made subject to a condition, then the condition will be void and the gift will be valid.
Revocation of gift:
A gift may be revoked by the donor at any time before the delivery of possession. The reason is that before delivery of possession, the gift is not complete. Once possession is delivered, a gift can be revoked only by a decree of a court. However a gift cannot be revoked in the following cases,
(a) when the gift is made by a husband to his wife or by a wife to her husband,
(b) when the donee is related to the donor within the prohibited degrees,
(c) when the donee is dead,
(d) when the thing given is lost or destroyed,
(e) when the thing given has passed out of the donee's possession by sale, gift or otherwise,
(f) when the thing given has increased in value, whatever be the cause of the increase,
(g) when the thing given has undergone so much change that it cannot be identified, as for example when wheat is converted to flour by grinding,
A gift may be revoked by the donor only and not by the heirs of the donor after his death.
Gift of life estate:
Gift with life interest is valid in Shia Law. In Hanafi Law, there was a confusion during British Period. The British Courts confused the gift with life interest with 'Vested Remainders' and decided that gift of life estates are not valid in Hanafi Law. But, subsequently confusion was removed.
In Hanafi Law there is a distinction between the 'corpus' of a property and 'usufruct', 'profit' or 'income' of a property. Gift with life interest of the corpus of the property is not valid in Hanafi School. But gift of life estate of the usufruct, profit or income of a property is valid under the Hanafi School. It was decided in Nawab Umjad Ally Khan's Case (1867). In this case 'A' transfers and endorses government promissory notes to the name of his son 'B', and delivers them to 'B'. Thus 'A' retains no dominion over the corpus of the property but stipulates that 'B' should pay the recurring income to 'A' during 'A's life time.
The Privy Council held both the gift and the condition to be valid. Here, the life interest on the income of the property and not on the corpus of the property. In this case the parties were Shias, but the Privy Council did not proceed to decide the case to enforce Shia Laws which is different from Hanafi Laws and which is in favour of creating life interest. The same principle was also applied in Mohammad Abdul Ghani v. Fakhr Jahan Begum (1922)49 I.A. 195., where both the parties were governed by Hanafi Laws.
(…to be continued)
The writer is an Advocate of the Supreme Court of Bangladesh.
