Handout for the topic of GIFT/HIBA
 

GIFT
Introduction
Definintion of Gift:
1- Section 122 of Transfer Of property Act,1882:
“A gift is a transfer of certain 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”

2- Hedaya:
“hiba is transfer of property made immediately and without any exchange.”
Parties to a valid gift:
1-DONOR(wahib):
a- Every Muhammadan
b- male or female
c- married or unmarried
d- major(who have attained majority under Mahority Act 1875 i.e 18 years or 21 years of age if he/she is under guardian appointed by court)
e- owner of property

2- DONEE(mohub lahu)
a- Muslim or non muslim
b- married or unmarried
c- male or female
d- minor or major
e- lunatic or sane
f- Existence of a donee i.e the donee must exist at the time the gift is made
g- Unborn donee: General Rule: a gift to an unborn donee,who is in the womb and is born within six months of the gift, is valid
(NOTE: point “g” is an exception to point “I”)

Subject mater(mouhab)
1- moveable or immoveable
2- corporeal,incorporeal
3- right which ahs some value
4- it must be n existence at the time when the gift is made
5- gift of musha(undevided share) is invalid
Exception: gift of such undevided share is valid which is incapable of devision:
a- hiba by one co-heir to the other;
b- hiba of a share in free hold property in a large town;
c- hiba of a share in a zimindari or taluka;
d- hiba of a share in a land company
examples of such indivisible property are share in a a stair case,a share in the bank of a tank or share in the business of Turkish bath….
Essentials of a valid gift:

1- Two parties i.e donor and donee
2- Capacity of parties
3- Formalities of making a gift must be fulfilled

How to make a valid gift/Formalities:

1- declaration by the donor of his intention to make gift
2- acceptance(expressed or implied) of the gift by the donee or his agent
Exception: no declaration needed where gift is made:
a- a guardian to his ward; or
b- a debt to the debtor
3- declaration must be followed by delivery of possession(actual,constuctive)
Exception: no delivery needed;
a-where donor and donee are residing together
b- mouhub in possession of other person
c- where donor is husband,donee wife and vice versa
d- where guardian is donor and ward is donee
e- where donee is the Baillie
f- where mouhab is not capable of being delivered
CONCLUSION:
Cse law:
Lala V. Rasula 1957
"gift can be made of the entire property,thus defeating the law of inheritance"

Difference: Gift & Will
 

Definition of the both e.g gift and will


GIFT WILL
1- when come into action:
at once
after the death of the party making it
2- limit on the right to transfer property:
no limit
can transfer only 1/3rd of the total property by will
3- acceptance of the benificiary:
donee must accept
not required
4- delivery of possession:
required at the time
no immidiate delivery is required
the gift is made
5- Doctrine of Musha:
it applies here
not apply here
6- Revocation
cannot be revocked
can be revocked at any time before death
or after delivery,except
in some cases

[COLOR="Black"][SIZE="2"][FONT="Arial Black"]A widow cannot make Gift of her Dower then why it written in one place that"A widow can make gift of her dower in Favour of her deceased husband?:con...again,another place it is mentioned that"You cannot make Gift in favour of a Dead Person?:conPlease solve this confusion.
Regards[/FONT][/SIZE][/COLOR]

[QUOTE=Maha Khan;213177][COLOR="Black"][SIZE="2"][FONT="Arial Black"]A widow cannot make Gift of her Dower then why it written in one place that"A widow can make gift of her dower in Favour of her deceased husband?:con...again,another place it is mentioned that"You cannot make Gift in favour of a Dead Person?:conPlease solve this confusion.
Regards[/FONT][/SIZE][/COLOR][/QUOTE]

aoa your querry can be well reproduced in the farm of following questions;
a- whether a widow can gift her dower to her late husband?if yes,then why it is said that she can't make a gift of her dower?
b- that whether a gift can be made in favour of a dead person?if not then how come any such gift can be made by a woman of her dower in favour of her late husband?

Question a:

1- woman can gift her dower which has fallen due(as in case of prompet dower which becomes due on her deman, or which has been paid to her,as in these cases it become her exclusive property)
2- gift of a dower to late husband by his wife is in legal terms waiving of one's rights in favour of a dead person.In other words freeing the dead from liability.
NOTE: gift in this farm i.e relinquishing the deceased from liability can be always made.
other example of such gift can be the relinquishment of the debtor by the creditor from the liability to return the the loan.

Question b:

1- a gift cannot be made to anyone non existant,no matter the donee is an unborn child(not going to take birth within 6 months from the date when the gift is made) or a dead person.
Exception: gift of dower or any other such right due against the deceased can be made in his favour by the person in whose favour the right is falling due.

hope i made the point..
best regards