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

Q.11.4 What is the classical requirement of Muslim Law regarding the handing over of the property gifted ?

Ans. The classical requirement is that the donor should physically depart from the premises with all his goods and chattels and the donee should formally enter into possession. (Vide Macnaghten - page 231).

The donor must completely divest himself of the ownership. (Vide Ismail Rawther v. Kunju Rawther 1964 (1) KLR 326 (DB) - T. K. Joseph, T. C. Raghavan - JJ.)

Q.11.5 Are there exceptions to the above classical requirement of Muslim Gifts regarding delivery of possessions of the subject-matter of gift and what are they ?

Ans. Yes. There are exceptions to the classical requirement of Muslim Law. The following are those exceptions:-

• Where the donor and donee are residing together in the gifted property.

    Where the donor and donee are both residing in the property which is the subject matter of gift. In such cases no physical departure by the donor or formal entry by the donee is necessary to complete the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. (Vide –

• Mulla Para.152(3);
• Dr. Tahir Mohammed page 203 point No. 9;
• Shaik Ibrahim v. Shaik Suleman (1884) 9 Bom. 146 - West, N Haridas - JJ;
• Abdul Majidkhan v. Husseinbu (1920) 22 Bom. L.R. 229;
• Jamil - un - nissa v. Mohammad Zia AIR 1937 All. 547 ;
• Mt. Naurozi v. Najaf Ali Shah AIR 1939 Pat. 321 – James - J;
• Mst. Azizi v. Sona AIR 1962 J & K 4 - S Bashir-Ud-Din - JJ;
• Ashia Ummal v. Vasanthi 1964 KLT 844 (DB) – T. K. Joseph, T. C. Raghavan - JJ;
• Ayeeshee Bivi v. Mohd. Alim AIR 1964 Mad. 309 (donor – donee living together) – Veeraswami - J;
• C.T.D.A. Pathumma v. Pokku AIR 1998 Ker. 134 – T. V. Ramakrishnan, K. S. Radhakrishnan - JJ).
• Abdul Razak Saheb v. Zainab Bi, AIR 1933 Mad. 86 – Madhavan Nair - J;
• Shaik Ibrahim v. Shaik Suleman, (1885) ILR 9 Bombay 146 - West, N Haridas - JJ;
• Humera Bibi v. Najm-un-Nissa Bibi, (1906) 28 Allahabad 147 – Stanley - CJ;
• Ma Mi and Another v. Kallander Ammal, AIR 1927 PC 22 - Atkinson, Carson, J Wallis - JJ;
• Baldeo Prasad Balgovind v. Shubbratan, 1936 Allahabad L J 590 ;
• Kandath Veettil Bava v. Musaliam Veettil Pakrukutty and Others, (1907) 30 Madras 305;
• Maitheen Beevi Umma v. Ithappiri Varkey, 1956 KLT 444 - Varadharaja Iyengar - J;
• Rahmat Ali v. Mt. Daulat, AIR 1925 Lahore 501;
• AbduI Razak Saib v. Zainab Bi, 1932 Mad. WN 1178 – Madhavan Nair - J).
• Umma v. Varkey 1956 KLT 444 = AIR 1956 TC 268 (DB) - Koshy- C.J, Iyengar – J).

In all the above cases it has been held that the mere fact that the donor continues to reside with the donee will not constitute non delivery of possession so as to invalidate the gift. Humera Bibi v. Najm - un - nissa (1906) 28 All. 147 (aunt to nephew both residing together); Bibi Khaver v. Bibi Rukhia (1905) 29 Bom. 468 (gift to daughter-in-law and her children); Kandath v. Musalium (1907) 30 Mad. 305 (Mother to daughter).

• Even where the donee reside with the donor in the gifted property, if there is a stipulation in the deed that the donor and donee shall be in joint possession, it will not satisfy the requirement of delivery of possession. (Vide Pichakkannu v. Aliyarkunju 1963 KLT 226 - Velu Pillai – J)
• Where the gift is by a father or by a guardian to a minor.

  Where the gift is by a father or guardian in favour of minors, no transfer of possession is necessary to the donee. (See –

• Ahmedkutty v. Ismalu, 1981 KLT 918 – Chandrashekhara Menon - J,
• Valia Peedikakkandi Katheesa Umma and Others v. Pathakkalan Narayanath Kunhamu, AIR 1964 SC 275 – M. Hidayatullah – J and
• The Official Receiver, Kozhikode v. T. Moideen Koya and Others, 1969 KLR 508 - Sadasivan - J;
• G. Abdul Rahim Sahib v. Zeenath Bi and Others, AIR 1963 Mad. 186 – Ramakrishnan - J.
• Paragraph 155 of Mulla's Principles of Mohammedan Law reads as follows:

“155. Gift to a minor by father or other guardian. -- No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give.”

• In Muhammed Sadiq Ali Khan v. Fakr Juhan Beegmn, AIR 1932 PC 13, following an earlier decision of the Privy Council in Ameeroonissa Khatoon v. Abedoonissa Khatoon - 2 Indian Appeals 87 - the Privy Council observed as follows:

“In the case of a gift by a Mohammedan father to his infant child no transfer of possession is required; it is only necessary to establish a bona fide intention to give.”

Where there is on the part of a father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of possession, and will presume the subsequent holding of the property by the father or other guardian to be on behalf of the minor donee. This principle also applies to a gift of her property made by a Mohammedan lady to her minor son adopted by her and is living with her under her guardianship. (Vide -- Munni Bai v. Abdul Gani, AIR 1959 MP 225 – M. Hidayatullah, G. Bhutt - JJ)

• Noohu Pathummal v. Ummattathu Ameena AIR 1980 Mad. 66 – Sethuraman – J, held in paragraph 6 that in the case of a gift to a minor child by father no delivery of possession is required and all that is necessary is to establish a bona fide intention to give.
• In Ibrahim Shah Mohammed and Others v. Noor Ahmed Noor Mohamed and Others, AIR 1984 Gujrat 126 - V Bedarkar, A Ravani – JJ, it was held that possession given to the mother in the case of a gift by father to minor son in spite of the fact that the minors grandfather (guardian) was alive, will not invalidate the gift.

c) Where the donor is not the father or guardian of the minor or lunatic

    Where a gift to a minor or to a lunatic is made by a person other than the father or guardian, such gift may be completed by delivery of possession to the father or guardian of the minor. (Vide

• Musa Miya Muhamad Shaffi v. Kadar Bax Khaj Bax AIR 1928 PC 108 = 55 Indian Appeals 171 (PC) - Shaw, Carson, L Sandeson;
• Jhumman v. Hussain AIR 1931 Oudh 7

(Here the gift was by the maternal uncle but no possession was delivered and hence the gift was held invalid).

d) Gift by the father and acceptance by the mother

    A gift deed executed by the father in favour of his daughter and children to be born to such daughter was held to be valid to the extent of the gift in favour of the donee (other than the progeny to be born to her). It was held that no delivery of possession was necessary and that the mother was entitled to keep possession of the gifted properties as a trustee in view of the estrangement between the husband and wife. The subsequent deed of cancellation executed by the donor was also held to be invalid. (Vide Laila Beevi @ Laila Buhari v. N. Sumina @ Summayya 2009 (3) KHC 661 – V. Ramkumar - J).

e) Gift by husband to wife

Where the gift is by a Muslim husband to his wife, physical departure by the donor and handing over possession to the donee, is not necessary. (Vide –

• Ma Mi v. Kallander Ammal AIR 1927 PC 22 – John Wallis - J;
• Mohammad Sadiq v. Fakhr Jahan AIR 1932 PC 13. Mulla -Paragraph 153).
• In AIR 1927 PC 22 it was held that where a husband makes a gift of a house to his wife and notwithstanding the gift he continues to live in the house or continues to receive the rents after the gift, such conduct will not invalidate the gift and that the presumption in such a case would be that the rents are collected by the husband on behalf of the wife and not on his own account. Delivery of possession in order to complete the gift may be either actual or constructive. All that is necessary is relinquishment of control. Even symbolic possession of property is sufficient to make a valid gift.
• Noohu Pathummal v. Ummattathu Ameena AIR 1980 Mad. 66 – Sethuraman – J, in the case of gift of immovable property by the husband to the wife, no physical departure or formal entry is required, where the property is used by the husband and wife for their joint residence or is let out to tenants. The fact that the husband continued to live in the gifted house or to receive the rents and profits after the date of gift, will not invalidate the gift, the presumption in such a case being that the residence was on account of matrimonial obligation and the collection of rents and profits by the husband was on behalf of the wife and not on his own account. Even absence of mutation of names will be unnecessary if the deed of gift declares that the husband delivered possession to the wife and if the gift deed is handed over to her and retained by her. (Vide para 6)

f) Gift to a bailee.

Where the subject matter of the gift is already in the possession of the donee as bailee, the gift may be completed by declaration and acceptance without any formal delivery of possession. (Vide paragraph 157 of Principles of Mahomedan Law by Mulla (22^nd Edition).

g) Minor on attaining majority may himself take possession.

    A gift to a minor will also be complete when the minor after attaining the age of discretion, himself takes possession. (Vide –

• Katheessa Umma v. Narayanath Kunhamu AIR 1964 SC 275 = 1964 KHC 309 – 3 Judges – A. K. Sarkar,             M. Hidayatullah, J. C. Shah - JJ; (Here, one Mammotty, who was ill and hospitalized for a long time, was ultimately discharged uncured and was in the house of his mother-in-law Katheesumma. While so, on     07-04-1944 he made a gift of his properties including immovable properties to his wife Seinaba (who was less than 16 years old and residing along with him) by a registered deed. Seinaba’s father and grandfather were not alive. The gift was accepted by Katheesumma on behalf of the donee Seinaba. Subsequently, on 03-05-1946 Mammoty died without any issue. Seinaba also died on 25-02-1947. The Supreme Court held that the gift was valid.
• Mt. Fatma v. Mt. Autun AIR 1944 Sind 195;
• Muni Bai v. Abdul Gani AIR 1959 M.P. 225 -                   M Hidayatullah, G Bhutt - JJ ;
• Assankutty v. Mohd. Kurikkal 1961 KLT 959 – S.Velu Pillai -J. (Where it was held that the minor can accept the gift then and there even during his minority).

Q.12 Is mutation of names necessary to complete the transfer of possession of the subject-matter of gift in favour of the donee ?

Ans. No. Mutation of names is not a condition precedent for the delivery of the property in favour of the donee. If there is delivery of possession of the gifted property to the donee, it is not necessary that there should be mutation of names in the revenue register to complete the process of delivery. (Vide Muhammad Mumtaz v. Zubaida Jan (1889) 16 Indian Appeals 205 – Lord Watson, Lord Barnes Peacock, Lord Richard Couch - JJ; Mohammad Sadiq v. Fakhr Jahan AIR 1932 PC 13).

Mutation of names in the registry cannot also be a valid substitute for delivery of possession. (Vide Mohammad Azim v. Saadat Ali AIR 1931 Oudh 177 - George Rankin, Porter, Romer - JJ ).

Q.13 Is a gift made to an unborn person, invalid ?

Ans. Yes. Such a gift is not valid. Even though a Muslim gift can be made through the medium of trust, a Mahomedan cannot through the medium of trust settle property for the benefit of persons who are incapable of accepting a gift. Life estates (other than interest in usufructs) and vested remainders are unknown to Muslim Law. (Vide Nawzish Ali Khan v. Ali Raza Khan AIR 1948 PC 134 –   Sir. John Beaumont.)

    Where a gift is made in favour of a living person (donee) and also in favour of children to be born to the donee in future, the gift made in favour of the living donee will be valid and the deed of gift to the extent it conveys rights to unborn persons would be void. (Vide Laila Beevi @ Laila Buhali v. N. Sumina @ Summayya 2009 (3) KHC 661 – V. Ramkumar - J). (See also para 151 of Principles of Mahomedan Law by Mulla).

Q.14 What is meant by “mushaa” ?

Ans. Mushaa is an undivided share in property which may either be movable or immovable. It means the undistributed or common or undivided portions of property which forms the subject matter of a gift.