Hiba: Gift Under Muslim Law- Questions & Answers By Justice V Ramkumar [Part-VI]

Q.20 What is the position regarding a “gift with a condition” ?

Ans. If the condition superadded to the grant which has been made absolute, derogates from the absoluteness of the grant, the condition will be invalid and not the grant. (this aspect has already been dealt with under Q. No: 10.3)

Q.21 Can there be gift of a “life-estate” under Muslim Law ?

Ans. No. There cannot be gift of a life interest under Mahomedan Law. But, where there is a gift of the “corpus”, there can be a life interest of the usufructs of such corpus. (Vide Kochu Ahammed Pillai v. Pathummal 2003 (1) KLT 826 = AIR 2003 Ker. 217 – R. Bhaskaran - J).

Q.22 Whether a gift of a property capable of division, if made to two or more persons without specifying their share or without dividing the property, is valid ?

Ans. No. Such a gift is invalid. But, the gift may be rendered valid if separate possession is taken by each of the donees of the portion of the property given to him/ her or if there is a subsequent arrangement between the donees with regard to the possession of the property gifted. This rule, however, does not apply to a case where a gift is of a share in freehold property in a large commercial town, constituting the third exception to a gift of mushaa where property is divisible.

Q.23 How to effect delivery of possession where the property gifted is incorporeal property or actionable claim ?

Ans. Where the subject-matter of gift is incorporeal property or actionable claim, the gift may be completed by any act on the part of the donor showing a clear intention to divest himself in praesenti of the property and to confer it upon the donee.

Illustration :- A gift of Government Promissory Note may be completed by endorsement and delivery to the donee.

Q.24 What is a Hiba - ba - shart - ul - iwas ?

Ans. It is a gift on a stipulation or promise of consideration. It resembles a sale in the first stage before receipt of consideration. Hence, seizin of the property between the donor and donee is an inevitable condition.

Q.25 What is a Hiba - bil - iwaz ?

Ans. It is a gift for consideration or exchange. It resembles a sale but delivery of possession is not required for completion of the transfer, unlike in the case of Hiba - ba - shart - ul - iwas.