What Is Gift And Essentials Of The Gift| Gift Under Muslim Law
What is Gift
Gift is a transfer of property by the donor {Giver, One who owns the property} In favour of Donee {To whom the gift is made} Without taking any consideration {price} from the Donee. Gift is immediate and unqualified transfer of the corpus of the property without return. It is the conferring of the property without consideration. It is a transfer of property, made immediately, And without any exchange, by one person to other and accepted by our on behalf of the latter.
One of the briefest but most famous seeing of the prophet{PBUH} Is the Thadun Tahabua {Exchange gift for it increase mutual love}. For more than 14 centuries, exchanging gifts has become a noble tradition among Muslims all over the world. Law of Hiba has this tradition as its starting point, and Muslim jurists have evolved a very refined system of Hiba law.
Definitions of gift
According to Abdul Rahim Gift is a transfer of a determinate Property without an exchange. Juristically, it is treated as consisting of proposal or offer on the part of the donor to give a thing and of acceptance of it by the Donee. Until acceptance, the gift has no operation.
According to Mullah Gift 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.
Essentials of a gift.
- Donor {Donor must be a Muslim}
- Property {Movable or immovable} {Donor must have ownership over the property}
- Delivery of possession {delivery is the heart and soul of gift}
- Donee
- No consideration {without money}
There are three essentials of valid gift.
- Declaration of Hiba by the donor {intention}.
An oral declaration may validly create a gift. It is not necessary that a written gift Norma must be executed. Intention is necessary component for any action in Islamic law.
- Acceptance of Hiba, expressly or impliedly, by or on behalf of the Donee.
The Donee must accept the gift. The acceptance may be express or implied the gift to minor can be accepted by his guardian on his behalf.
- Delivery of the position of the subject matter of HIBA to the done.
When the donor makes a declaration of gift and the donee accepts. The possession of the thing should be given to Donee. Delivery of possession may be actual or constructive.
There are certain exceptions where the delivery of the possession is not necessary
Doner and donee resides in the same house.
Gift by husband to wife or vice versa
Gift by father or mother to child.
Gift to donee already in possession.
General rules of gift.
However, there are certain rules which are necessary to be followed and same shall determine the validity of gifts:
- There shall be offer from the donor.
- There shall be acceptance from the donee of the offer of donor.
- There shall be immediate delivery of possession from donor to Donee of the subject matter of the gift {movable and immovable} and the immediate taking of possession by the Donee.
- There shall be no consideration {price} given in exchange of gift, if it is so then it is a sale not a gift.
- The whole process shall be completed during the lifetime of donor and Donee.
- The donor must be competent of making gift i.e. he must have attained the age of majority, with sound mind, understanding the nature of the transaction, with free consent i.e. free from any duress, undue influence, fraud.
- The donor must not be compelled to make the gift of the property.
- The donor must not be a minor in any case, however Donee can be minor.
- The Donee must accept the offer of donor. He must take position of such property. In case the gift is made in favour of minor, then in such case guardian of such minor shall take possession of such property till the minor attains the age of majority.
- Writing is Not essential for the validity of gifts though writing is preferable for evidential value of authenticity. Oral gifts are otherwise valid in Islam. However, section 123 of the transfer of property act, 1882 provides that a gift of immovable property must be affected by registered document and in case of movable property registration or by delivery of position. But the provisions of section 122 to 129 do not apply to Muslim gifts as is laid down in section 129 of the act.
Gift in favour of children.
The gifts were traditionally made in favour of those persons who could not inherit the property and gifts were generally made out of love and affection.
In case where a donor intends to gift his entire property in favour of all of his/her children whether male or female, then such gift is to be made equally irrespective of gender is as per Hanafi, Maliki, Shafi School. However according to Hanabli School in the matter of gift 2:1 rule will be followed.
In case where a donor intends to gift only a portion of his property to any of his children, i.e son or daughter, such gift is also valid.
In case where a donor gifted his entire property to only one of his child excluding all other children, then such gift is totally invalid.
Gift during death bed {maraz-ul-maut}.
Where a person makes a gift during the illness which is likely to cause his death, in other words, when a gift is made at the death bed, such gift do not take effect by gift but takes effect of the will only i.e. one third 1/3 of the property takes effect in favour of ligatee and not beyond in any case.
Gift made to spouse
Gift made to the spouse when completed in all respects cannot be taken back in any case. Similarly, the gift which are given to the bride or groom at the time of marriage by the in laws or spouse cannot be taken back or demanded back. It is observed that at the dissolution of marriage, gifts in the form of gold ornaments or some other items are demanded back. This is completely invalid as such gifts are irrevocable.
Revocation of gift.
There is a clear Hadith Where the prophet of Allah has equated that person who demands gift back with a dog who vomits and takes it back. Therefore, it is condemnable to revoke or demand gift back. Therefore, a person at the first instance is not compelled to make gift but if he or she does so, it must be voluntarily out of love and affection without any fear or coercion. No person can claim gifts as a matter of right from another person. But once a person may gift in favour of another person completing all the essentials of the same, then subsequently donor cannot dispossess the donee of the same, in such case, the Donee as a matter of right can claim such possession back.