Gift

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Introduction

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Introduction

Gift is a Transfer of Property and is dened in Section 122 of the Transfer of Property Act, 1882. It is a unique Gift is a Transfer of Property and is dened in Section 122 of the Transfer of Property Act, 1882. It is a unique transfer of property in the sense that it involves no consideration. The asic essence of a !ift is the co"plete transfer of property in the sense that it involves no consideration. The asic essence of a !ift is the co"plete asence of consideration#1$. The la% of !ifts i

asence of consideration#1$. The la% of !ifts i n India is n India is !overned y Sections 122 to !overned y Sections 122 to 12& of the 12& of the TTransfer ofransfer of Property Act, 1882. 'o%ever (oha""edan !ifts are su)ect to the rules of (usli" *a% and the Transfer of Property Act, 1882. 'o%ever (oha""edan !ifts are su)ect to the rules of (usli" *a% and the Transfer of Propert

Property Act, 1882 y Act, 1882 is not applicale to is not applicale to such !ifts.such !ifts.  The di+erences 

 The di+erences et%een the (usli" *a% et%een the (usli" *a% of !ifts and the of !ifts and the la% of !ifts undela% of !ifts under the Tr the Transfer of Prransfer of Property Act aoperty Act arentrent very !reat. Apart fro" a fe%

very !reat. Apart fro" a fe% "inor di+erences o%in! to reli!ion and custo" the "inor di+erences o%in! to reli!ion and custo" the asic essence and conceptasic essence and concept of a !ift is the sa"e under oth syste"s of la%.

of a !ift is the sa"e under oth syste"s of la%.  There canno

 There cannot e too "any di+ert e too "any di+erences et%een !ences et%een !ifts under di+erifts under di+erent syste"s of la% as ent syste"s of la% as the denition othe denition of a !iftf a !ift is very clear and there is a %ell-settled consensus as to %hat the essential ele"ents of a !ift are. To have too is very clear and there is a %ell-settled consensus as to %hat the essential ele"ents of a !ift are. To have too "any di+erences et%een the la%s of !ifts

"any di+erences et%een the la%s of !ifts "i!ht interfere %ith the funda"entals of "i!ht interfere %ith the funda"entals of the concept of a !ift the concept of a !ift andand !ive the transaction a di+erent colour. or e/a"ple there is a consensus a"on!st al"ost all

!ive the transaction a di+erent colour. or e/a"ple there is a consensus a"on!st al"ost all syste"s of la%syste"s of la% that a !ift involves

that a !ift involves no consideration and involves the ele"ents of no consideration and involves the ele"ents of voluntary !ivin! and acceptance follo%edvoluntary !ivin! and acceptance follo%ed y possession in the hands of the donee ie. the person %ho accepts the !ift fro" the donor ie. the person y possession in the hands of the donee ie. the person %ho accepts the !ift fro" the donor ie. the person %ho !ives the !ift. This consensus is al"ost universal and %ill re"ain unchan!ed.

%ho !ives the !ift. This consensus is al"ost universal and %ill re"ain unchan!ed. In this pro)ect a co"prehensive co"parative study and analysis of

In this pro)ect a co"prehensive co"parative study and analysis of Gifts under the TrGifts under the Transfer of property Act,ansfer of property Act, 1882 and (oha""edan !ifts has een

1882 and (oha""edan !ifts has een perfor"ed. This pro)ect rst deals %ith Gifts under the perfor"ed. This pro)ect rst deals %ith Gifts under the TTransfer ofransfer of Propert

Property Act. It y Act. It e/plains and analyses the various sections dealin! %ie/plains and analyses the various sections dealin! %i th !ifts %ith reference to appropriateth !ifts %ith reference to appropriate case la%. The study of

case la%. The study of HibaHiba or a (oha""edan !ift %ith or a (oha""edan !ift %ith referenreference to the ce to the various rules of (oha""edan la%various rules of (oha""edan la% relatin! to !ifts and )udicial

relatin! to !ifts and )udicial interpretatinterpretation also for"s an ion also for"s an inte!ral part of the inte!ral part of the pro)ect. This pro)ect also dealspro)ect. This pro)ect also deals %ith a

%ith a donatio mortis causadonatio mortis causa or a  or a !ift "ade in !ift "ade in conte"plation of death %ith reference to the Indian Successionconte"plation of death %ith reference to the Indian Succession Act, 1&20. In order to

Act, 1&20. In order to achieve a !reater understandin! of the concept of !ifts achieve a !reater understandin! of the concept of !ifts the transaction of !ift has eenthe transaction of !ift has een co"pared and di+erentiated fro" other for"s of transfer of property. The pro)ect also co"pares the la% of co"pared and di+erentiated fro" other for"s of transfer of property. The pro)ect also co"pares the la% of !ifts under the T

!ifts under the Transfer of Property Act, 1882 and the ransfer of Property Act, 1882 and the (usli" *a% of (usli" *a% of !ifts. This part of !ifts. This part of the pro)ect isthe pro)ect is

e/tre"ely i"portant as it is here that the conict et%een (oha""edan !ifts and Gifts under the Transfer of  e/tre"ely i"portant as it is here that the conict et%een (oha""edan !ifts and Gifts under the Transfer of  Propert

Property Act, 1882 y Act, 1882 is discussed. The researcher has endeavoured to study the conict in is discussed. The researcher has endeavoured to study the conict in !reat detail fro"!reat detail fro" various vie%points and has also !iv

various vie%points and has also !iv en so"e su!!estions aout the sa"e.en so"e su!!estions aout the sa"e.  The ri!ht to !ift a

 The ri!ht to !ift a%ay ones pr%ay ones property %hetheoperty %hether "ovale or i""ovale is an i"pr "ovale or i""ovale is an i"portant ri!ht and ortant ri!ht and an i"portantan i"portant ele"ent of property la%. Althou!h a !ift involves no consideration in

ele"ent of property la%. Althou!h a !ift involves no consideration in the le!al sense it the le!al sense it involves theinvolves the consideration of love, a+ection, spiritual and reli!ious enet etc.

consideration of love, a+ection, spiritual and reli!ious enet etc. %hose i"portance cannot e overlooed.%hose i"portance cannot e overlooed.  Thus the la% re

 Thus the la% relatin! to !ifts halatin! to !ifts has a hu"ane ele"ent in it s a hu"ane ele"ent in it and as such the laand as such the la% of !ifts shou% of !ifts should e clear andld e clear and una"i!uous %ithout any scope for "isuse and

una"i!uous %ithout any scope for "isuse and controversycontroversy. This . This o)ective "i!ht e idealist o)ective "i!ht e idealist ut ulti"atelyut ulti"ately the la% relatin! to !ifts should

the la% relatin! to !ifts should al%ays strive to protect the interests of the al%ays strive to protect the interests of the donee, donor and the propertydonee, donor and the property involved in the

involved in the !reater interests of )ustice.!reater interests of )ustice.

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• Research MethodologyResearch Methodology

Aims and Objectives Aims and Objectives  The ai" of this Pr

 The ai" of this Pro)ect is to provido)ect is to provide a co"prehee a co"prehensive analysis and co"pansive analysis and co"parison et%een Grison et%een Gifts under theifts under the  T

 Transfer of Prransfer of Property Act, 1882 aoperty Act, 1882 and (oha""edan Gifnd (oha""edan Gifts. The pro)ects. The pro)ect ai"s at e/plainin! at ai"s at e/plainin! and analy3in! thend analy3in! the relevant provisions of the T

relevant provisions of the Transfer of Property Act, 1882 and also ransfer of Property Act, 1882 and also understandin! the rules of (usli" understandin! the rules of (usli" *a%*a% relatin! to !ifts. The pro)ect also ai"s at di+erentiatin! Gifts fro" other for"s of Transfer of Property and relatin! to !ifts. The pro)ect also ai"s at di+erentiatin! Gifts fro" other for"s of Transfer of Property and studyin! !ifts under the Succession Act. The

studyin! !ifts under the Succession Act. The controverscontroversy re!ardin! the interpretation of section 12& of y re!ardin! the interpretation of section 12& of thethe  T

 Transfer 4f Prransfer 4f Property Act, 1882 hoperty Act, 1882 has also een hi!hli!htas also een hi!hli!hted in the pro)ect ed in the pro)ect and su!!estions tand su!!estions to end theo end the controversy et%een 'ia and the Transfer of Property Act, 1882 have also een !iven.

controversy et%een 'ia and the Transfer of Property Act, 1882 have also een !iven. Nature of project

 The pro)ect is descriptive as %ell as analytical in nature. 'o%ever the "a)ority of the pro)ect is analytical in nature.

Sources Of Data

 The sources of data used are "ainly secondary in nature. A host of leadin! te/toos on Property *a% as %ell as case reporters lie All India 5eporter 6A.I.57, Supre"e ourt ases 6S7 etc. and )ournals lie Annual Survey of Indian *a% have een referred to.

Scope and imitation

 The scope of this pro)ect is li"ited to the la% of !ifts prevailin! in India only. Areas of focus and concentration have een the provisions of the Transfer of Property Act, 1882 relatin! to !ifts and the rules of (usli" *a% relatin! to !ifts in India. 4%in! to the vastness and co"ple/ity of the rules under (usli" *a% )ust the asic concepts and funda"entals of the la% of !ifts have een focused upon.

Research !uestions  The research questions are9

• :hat is a !ift under (usli" *a% and the Transfer of Property Act; • :hat are the concepts of property associated %ith !ifts;

• :hat are the various aspects of Property la% that "usli" *a% and the Transfer of Property Act deal

%ith in relation to !i fts and ho% are these various aspects dealt %ith;

• :hat are the di+erences et%een (aho"edan !ifts and Gifts under the Transfer of Property Act,

1882;

• :hat are the "ain issues in the controversy and conict et%een the Transfer of Property Act, 1882

and the (usli" *a% of Gifts;

• 'o% has this controversy een dealt %ith ;

• 'o% can this conict e resolved so as to prevent in)ustice of any sort;

Mode of "itation

A unifor" "ode of citation has een adopted throu!hout the pro)ect.

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#ifts $nder %he %ransfer Of

&roperty Act' ())*

Section (** of the Transfer of Property Act, 1882 denes a Gift as <

=#ift is the transfer of certain e+isting movable or immovable property made voluntarily and ,ithout consideration' by one person' called the donor' to another' called the donee' and accepted by or on behalf of the donee.>

In ordinary le!al e+ect there cannot e a !ift %ithout a !ivin! or tain!. The !ivin! or tain! are t%o conte"poraneous, reciprocal acts, %hich constitute a !ift. The essential ele"ents of a !ift are9#2$

•  The Asence of onsideration •  The ?onor

•  The ?onee

•  The Su)ect (atter •  The Transfer

•  The Acceptance

Absence of "onsideration

 The concept of Gift is dia"etrically opposed to any presence of consideration or co"pensation. The essence of a !ift is that it is a !ratuitous transfer. @lacstone says =Gifts are al%ays !ratuitous, !rants are upon so"e consideration or equivalent.>#$ The %ord Bvoluntarily in Section 122 of the Transfer of Property Act, 1882 is used in its popular sense denotin! the e/ercise of unfettered %ill and not in its technical sense of B%ithout consideration. #C$

In Shakuntala v. State of Haryana [5] the Supre"e ourt stated that i t is one of the essential require"ents of a !ift that it it should e "ade y the donor B%ithout consideration. The %ord consideration has not een dened in the Transfer of Property Act, 1882 ut %e have no dout that it has een used in the Act in the sa"e sense as in the Indian ontract Act, 18D2 and e/cludes natural love and a+ection. If it %ere to e other%ise a transfer %ould really a"ount to a sale or an e/chan!e for each party %ill have the ri!hts and e su)ect to the liailities of a seller as to %hat he !ives and have the ri!hts and e su)ect to the liailities of a uyer as to %hat he taes. It is the essence of a !ift that it should e %ithout consideration. The principles laid do%n in the Indian ontract Act,18D2 relatin! to free consent %ould apply i n deter"inin! %hether a !ift is voluntary. *a% as to undue inuence is the sa"e i n the case of a !ift inter vivos as in the case of a

contract. In Shakuntala v. State of Haryana [6] it %as held that a !ift "ade under undue inuence and not voluntarily %as void. The court stated that %hile tryin! a case for undue inuence it "ust consider t%o thin!s9 6a7 :hether the relation et%een the donor and donee is such that the donee is ale to do"inate the %ill of the donor. 67 'as the donee used that position to otain an undue advanta!e over the donor;

Donor

 The donor is the person %ho !ives. Any person %ho is sui juris can "ae a !ift of his property. A "inor, ein! inco"petent to contract is inco"petent to transfer and a !ift y the "inor %ould therefore e void. Trustees cannot "ae a !ift out of trust property unless authori3ed y the ter"s of the trust.#D$

Donee

 The donee is the person %ho accepts the !ift. A !ift "ay e accepted y or on ehalf of a person %ho is not co"petent to contract. A "inor "ay therefore e a doneeE ut if the !ift is onerous, the oli!ation cannot e enforced a!ainst hi" %hile he i s a "inor. The donee "ay e a person unale to e/press acceptance. Thus a !ift can e "ade to a child en ventre sa mere and could e accepted on its ehalf#8$. The donee "ust e an ascertainale person and so the pulic cannot e a donee under Section 122 of Transfer of Property Act, 1882. Gift to an unre!istered society and a transfer of property to God is also not a valid !ift %ithin the "eanin! of Section 122. In Shri Ram Krishan Mission v. Dogar Singh [9] dedication of property y a 'indu to a dhar"asala %as held not to e a !ift as the donee %as not a l ivin! person.

 The su)ect "atter of the !ift "ust e certain e/istin! "ovale or i""ovale property. It "ay e land, !oods or actionale clai"s. It "ust e transferale under Section F of the Transfer of Property Act, 1882. 'o%ever it cannot e future property. A !ift of a ri!ht of "ana!e"ent is valid ut a !ift of future revenue of a villa!e is invalid. The release of a det is not a !ift as it does not involve a transfer of property ut is "erely a

renunciation of a ri!ht of action. 'o%ever an actionale clai" such as an insurance policy "ay e the

su)ect of a !ift. In a !ift deed the " eanin! of the %ord "oney should not e restricted y any hard and fast rule ut should e interpreted havin! re!ard to the conte/t properly construed in the li!ht of all relevant facts#1$.

%ransfer

 This ele"ent of a !ift is e/plained later in the conte/t of Section 12 of the Transfer of Property Act,1882 in this section.

Acceptance

In order to constitute a valid !ift the pivotal require"ent is acceptance. In N.M Thakker v. .M Thakker  [11] it %as held that the e/ecution of a re!istered !ift deed, acceptance of the !ift and delivery of the property to!ether "ae the !ift co"plete. Ho particular "ode of acceptance is required. ircu"stances of the case %ill deter"ine the "ode of acceptance. A transaction of !ift in order to e co"plete "ust e accepted y the donee durin! the lifeti"e of the donor. If the donor dies efore acceptance the !ift eco"es void. actu" of acceptance can e estalished y di+erent circu"stances such as donee tain! possession of the property or ein! in possession of the !ift deed alone.#12$

%rusts

An interpretation of Section 122 %ill reveal that a !ift "ay e "ade y the equitale "achinery of a trustE and the interposition of the trustees enales a !ift to e "ade to a person not yet in e/istence and therefore incapale of ein! the donee of a direct !ift.

Section (*- of the Transfer of Property Act, 1882 states ho% the transfer of a !ift is e+ected. This Section "ay e studied under the follo%in! heads9

• Mode of Transfer- Immovable Property 

A !ift of i""ovale property, no "atter %hat the value of the property, can only e "ade y a re!istered instru"ent. This provision e/cludes every other "ode of transfer and even if the intended donee is put in possession a !ift of i""ovale property is invalid %ithout a re!istered instru"ent.#1$

• Signatres

 The !ift deed "ust e si!ned y or on ehalf of the donor in order to e+ect transfer. (erely the si!nature of the intended donee on the !ift deed %ill not e+ect the transfer.#1C$

•  !ttestation

A !ift deed "ust e attested y at least t%o %itnesses and a !ift deed not attested y %itnesses is void. The essential conditions of a valid attestation under Section  of the Transfer of Property Act, 1882 are that, t%o or "ore %itnesses "ust have seen the e/ecutant si!n the instru"ent or have received fro" hi" personal no%led!e of his si!nature, and %ith a vie% to attest or to ear %itness to this fact, each of the" has si!ned the instru"ent in the presence of the e/ecutant. In !rij Raj singh v. Se"ak Ram [15] it %as held that no particular for" need e follo%ed fore attestation of a !ift deed. In this case a !ift deed %as e/ecuted y the ori!inal o%ner, presented for re!istration y a duly authori3ed po%er of attorney and attested y t%o

%itnesses. It %as held to e valid. Attestation %as proved y one of the %itnesses y cate!orically statin! that he had suscried his si!natures on the !ift deed in three di+erent capacities ie. Scrie, attestin! %itness and identifyin! %itness efore the re!istrar.

• "egistration

 The %ord B5e!istered in this Section does not "ean re!istered in the lifeti"e of the donor. If the other conditions to the validity of the !ift are co"plied %ith the death of the donor is not a !round for refusin! re!istration. If a !ift of i""ovale property is "ade y a re!istered instru"ent that is duly re!istered then the pre-e/istin! ri!ht, title and interest of donor stand divested in the doneee y the operation of Section 1D of the Indian 5e!istration Act, 1&8. In Ku##us"ami $hettiar v. %. $hettiar  #1F$ it %as held that a re!istered instru"ent styled as a release deed releasin! ri!ht, title and interest of releasor %ithout consideration "ay operate as transfer y %ay of !ift %hen the docu"ent clearly sho%s intention to e+ect transfer and is si!ned y or on ehalf of releasor and attested y at least t%o %itnesses. A !ift of i""ovale property, %hich is not re!istered, is ad in la% and cannot pass any title to the donee. An oral !ift of i""ovale property cannot e "ade under section 12 of the Transfer of Property Act, 1882. In &omtibai v. Mattula [1#] it %as held that "ere intention to !ive a%ay the property is not enou!h to e+ect the transfer of !ift. There has to e a re!istered !ift deed i n order for the !ift to e co"plete in the eyes of la%.

 The e+ect of an insuciently sta"ped and unre!istered !ift deed %as considered in !al"ant Singh v. Mehar Singh.#18$ It %as held that an unre!istered !ift deed cannot e used to prove title. It %as also held that under Section F of the Sta"p Act once a !ift deed is ad"itted in evidence it cannot e called into question later on the !rounds of insuciency of sta"p.

• "evo$ation of Gift by %onor 

 The Privy ouncil has laid do%n that after delivery of the deed of !ift and efore re!istration the donor cannot revoe the !ift. In !hagatrai v. &hanshyamdas [19] it %as held that %here a !ift has een e+ected y a re!istered instru"ent duly attested and the !ift has een acted upon y the donee, the title le!ally passes to the donee and cannot e defeated y any intention of the donor to the contrary.

• Mode of Transfer & Movables

:ith re!ard to "ovale property this Section allo%s t%o alternative "odes of transfer vi3. 5e!istered deed si!ned y or on ehalf of the donor and ?eli very of possession.

• %elivery 

In order that a !ift is valid under this section the donor should have done all that he can to put the su)ect "atter of the !ift %ithin the po%er of the donee to otain possession. A valid !ift "ust ordinarily e follo%ed y possession#2$. In !aby %mmal v. Rajan %sari ['1] the court held that there "ust e proof of delivery and possession of the !ifted property. In the asence of such proof the deed cannot e construed to e a !ift deed. In Taraknath v. Sushil $handra Dey  [''] there %as no actual delivery of the possession pursuant to the !ift havin! een "ade. It %as held that the circu"stances did not %arrant physical possession and

constructive delivery of the possession %as enou!h to hold the !ift valid.

•  !$tionable (laims

Gift deeds transferrin! actionale clai"s lie shares, insurance policies have een held to e valid.

In 'asudev v. ranlal [')] a !ift deed relatin! to shares in a co"pany %as re!istered. It %as si!ned y oth the donor and donee. The donor undertoo to have the shares transferred in the oos of the co"pany to the na"e of the donee. The share certicates and the !ift deed %ere delivered to the donee alon! %ith the lan transfer for"s duly si!ned. @efore the transfer could e e+ected in the oos of the co"pany the donor died. The question arose %hether there %as a co"plete !ift or %hether the donors heirs could clai" the shares. It %as contended that the !ift %ould not e co"plete efore co"plyin! %ith the for"alities prescried y the o"panies Act, 1&0F. The Supre"e ourt held that the require"ents of the Transfer of

Property Act, 1882 %ere fully satised and the donee %as clothed %ith a ri!ht to !et his na"e entered in the co"panys oos as the donee. This ri!ht %ould prevail over the clai"s of the heirs of the donor.

• *+tent 

 This Section does not apply to territories e/cluded fro" the operation of the Indian 5e!istration Act, 1&8. Section (*. of the Transfer of Property Act, 1882 states that a !ift of future property is void. There cannot e a !ift of future property for such a !ift can only e a pro"ise and a pro"ise not supported y

consideration is invalid as a contract. There cannot e a !ift of future property either under 'indu or (oha""edan la%. In $(T v. R.S &u#ta [',] the court laid do%n that in order to constitute a valid !ift there "ust e e/istin! property. In this case a !ift %as !iven y instructin! a non anin! co"pany, r" or 'indu Jndivided a"ily in %hich the donor had an account to !ive e+ect to the !ift y deitin! his account and creditin! the account in the na"e of the donee. It %as held that "ere entries in the oos of account %ould not constitute a valid !ift unless the co"pany, r" or 'indu Jndivided a"ily has sucient cash in hand or overdraft facilities %ith any an. The court decided that on facts the !ift in question %as invalid in asence of cash alance or overdraft facilities in the co"pany.

Section (*/ of the Transfer of Property Act,1882 applies only %hen the !ift is to t%o or "ore donees as tenants in co""on. The refusal of one donee %ill not prevent the !ift tain! e+ect as re!ards the share of the others.

Section (*0 of the transfer of Property Act, 1882 lays do%n that conditional !ifts are allo%ed y la%. The require"ents as to validity of conditions are9#20$

• A condition should not e va!ue.

• A condition should not e inherently i"possile of perfor"ance. •  The condition should not e ille!al.

•  The condition should not e i""oral.

•  The condition should not e opposed to pulic policy.

If the conditions attached to a !ift, %hether as conditions precedent or as conditions susequent, satisfy the require"ents "entioned aove, they are valid and can e !iven e+ect to. If there is a valid condition

precedent, the !ift %ill not tae e+ect until the condition is fullled. If there is a valid condition susequent, the !ift ceases %hen the condition is satised. In N.M Thakker v. .M Thakker  ['6] a conditional !ift deed %as e/ecuted y %hich possession and en)oy"ent of the property %ere retained durin! the donors lifeti"e.  There %as no recital of acceptance and no evidence in proof of acceptance. The !ift %as to eco"e operative

after the death of the donor. A susequent deed %as e/ecuted y the donor %ithin a "onth cancelin! the !ift deed o%in! to non-full"ent of conditions su)ect to %hich there %as an oral understandin! et%een the donor and donee. The court held that the !ift deed %as validly cancelled o%in! to non fulll"ent of the conditions. A 5esu"ale Gift is one %hich is revocale at any ti"e at the "ere %ill of the donor. Such a !ift is void ainitio.#2D$

Section (*1 of the Transfer of Property Act, 1882 deals %ith 4nerous Gifts. The e+ect of an onerous !ift is that the donee is liale to the e/tent of the !ifted property in his hands to "eet the oli!ation %ith %hich the !ift is urdened. This section !rants a "inor the ri!ht to repudiate an onerous !ift after attainin! "a)ority. Accordin! to Section (*) of the Transfer of Property Act, 1882 a universal donee is a donee %ho receives the %hole of the donors property y %ay of !ift. 4n a plain readin! of this section it is clear that the liaility of the universal donee is to the e/tent of the property acquired y hi" y virtue of the !ift deed fro" the donor ho%ever in reality Section 128 fastens the personal liaility upon the universal donee for all dets due y the donor at the ti"e of the !ift.

Section (*2 of the Transfer of Property Act, 1882 e/cludes (oha""edan *a% of !ifts and !ifts "ade in conte"plation of death fro" the purvie% of the la% of !i fts in the Transfer of Property Act, 1882. This section is e/tre"ely controversial and its constitutionality has een challen!ed. It has een discussed in !reater detail later in this pro)ect.

·

Mohammedan #ifts Or 3iba

A Hiba or a !ift under (usli" la% li terally "eans 4the donation of a thing from ,hich the donee may derive bene5t67

K"inent )urists of (usli" la% have dened !ift in various %ays. So"e of the i"portant denitions of Hiba or !ift are9#28$

M$A 9 Gift is a transfer of property, "ade i""ediately and %ithout any e/chan!e, y one person to another, and accepted y or on ehalf of the latter.

89:;; 9 Hiba is the i""ediate and unqualied transfer of the corpus of the property %ithout any return. A<D$R RA3IM 9 A transfer of a deter"inate property 6"al7 %ithout an e/chan!e. Luristically it is treated as consistin! of proposal or o+er on part of the donor to !ive a thin! and of acceptance of it y the donee. Jntil acceptance the !ift has no operation.

 The i"portance of Hiba or !ift in (usli" la% lies in the fact that %hereas (usli" la% allo%s testa"entary disposition %ithin the li"it of one-third only, a !ift inter vivos "ay e "ade %ithout any restriction. (usli" *a% allo%s a person to !ift a%ay the %hole of his property durin! his lifeti"e.#2&$

*ssentials of a iba

 The essential ele"ents of a !ift under (usli" *a% are clear and %ell settled. They are9#$

• ?eclaration of the !ift y the donor

• Acceptance of the !ift, e/pressly or i"pliedly, y or on ehalf of the donee • ?elivery of possession of the su)ect "atter of the !ift to the donee.

If any of the aove ele"ents is "i ssin! the !ift is not co"plete and %ill e invalid in the eyes of (usli" *a%.

%e$laration

?eclaration does not si"ply "ean an announce"ent of the !ift ut also entails that the donor should have a real intention of "ain! the !ift. In '..K )mma v. .N Kunhamu [)1] a husand "ade a !ift of i""ovale property y re!istered deed to his "inor %ife %ho had attained puerty. The !ift %as accepted y her "other on her ehalf. There %as no !uardian alive to accept the !ift. The !ift deed %as handed over to the "inor %ifes "other in %hose house the husand and %ife %ere livin!. The court statin! that there %as a co"plete intention to divest o%nership on the part of the husand, the donor to transfer the property to the donee 6his %ife7 held the !ift co"plete and valid. In State of ). v. Sayed %bdul *ain [)'] it %as held that declaration of !ift y the donor is an essential condition for the validity of a !ift. :here there is no real and ona de intention to transfer the o%nership of the su)ect of the !ift, an alle!ed !ift "aye of no e+ect. A !ift "ade %ith an intention to defraud the creditors of the donor is voidale at the option of the creditors.#$

 %cce#tance

 The donee "ust accept the hia for it to e valid. This acceptance "ust e e/press or i"plied ie. y conduct. 'o%ever the !ift of a det to a detor or his heir is valid %ithout acceptance and is not invalidated y the

detors refusal to accept the !ift. It should e noted that no acceptance is required %hen a !ift is to a child fro" his or her "other or father or fro" a !uardian to a %ard.#C$

?elivery of Possession

:hen the donor "aes a declaration of a !ift and the donee accepts, then the possession of the thin! !ifted should also e !iven to the donee. Such delivery of possession "ay e actual or constructive. It %as held in M.M Khan v. S.% Khan [)5] that it is essential to the validity of a !ift under (oha""edan la% that there should e delivery of such possession as the su)ect of the !ift is susceptile of. In other %ords the tain! of the possession of the su)ect "atter of the !ift y the donee either actually or constructively is necessary to co"plete a !ift. In case there is "ore than one donee, possession y one donee is presu"ed to e in the na"e and on ehalf of the other co-donees.

5e!istration of a !ift deed does not in any %ay do a%ay %ith the need for delivery of possession.  There are certain cases %hen delivery of possession is not necessary and the !ift is valid even %ithout

delivery of possession. They are9#F$

• :hen the donor and donee reside in the sa"e house. • A !ift "ade y a husand to his %ife.

• A !ift fro" a !uardian to a %ard or fro" a "other or father to their child. • :hen the su)ect of the !ift is already in possession of the donee.

?onors under (usli" *a%

Kvery (usli" "ale or fe"ale, %ho is a "a)or, and sane "ay "ae a !ift, provided he or she is not su)ect to any force or fraud. A "arried (usli" fe"ale can also "ae a !ift.#D$

?onees under (usli" *a%

A !ift "ay e "ade in favour of the follo%in!9#8$

1. Any livin! person %ho is capale of holdin! property.

2. A !ift to a child in the %o" is valid provided that the child is orn %ithin si/ "onths fro" the date of the !ift, ecause, in that case, it is presu"ed that the child %as actually e/istin! as a distinct entity in the %o".

. A !ift of a li"ited interest in the usufruct of the property "ay e "ade to an unorn person provided that such person is in e/istence %hen the interest opens out for hi".

C. Gifts "ay e "ade validly to )uristic persons such as "osques, dar!ahs and charitale institutions lie schools.

0. Gifts "ay e "ade to non-"usli"s. The !ift property %ill e su)ect to the personal la% of the donee once he !ets possession of it.

Su)ects of 'ia

All mal or for"s of property over %hich control "ay e e/ercised are proper su)ects of !ift. These include all mal, %hether ancestral or self acquired, "ovale or i""ovale, corporeal or incorporeal.

A !ift of an A"%IONA<; "AIM is also valid under (usli" *a%#&$. A (usli" "ort!a!or can "ae a valid !ift of his ri!ht of e.ity of redemption even if the "ort!a!ee is i n possession. Section 86D7 of the Insurance Act, 1&8 lays do%n that any person can assi!n and transfer his insurance policy his personal la% not%ithstandin!. Thus y virtue of this section a (usli" can "ae a valid !ift of his insurance policy.

5e!istration of Gifts

Jnder (usli" *a% a !ift "ay e oral or %ritten. As (usli" la% reco!ni3es oral !ifts thus a !ift under (usli" la% need not e re!istered. As section 12& of the Transfer of Property Act, 1882 e/e"pts (usli"s fro" the provisions of Section 12 of the sa"e act a !ift under (usli" la% cannot e invalidated for %ant of

re!istration. In Mohammed Hesabuddin v. Mohammed Hesaruddin [,/] the court oserved that it cannot e taen as sine qua non in all cases that %herever there is a %ritin! aout a (oha""edan !ift of i""ovale property there "ust e re!istration thereof. The facts and circu"stances have to e taen into consideration efore deter"inin! %hether the !ift requires re!istration or not. In Nasib %li v. +ajed %li [,1] it %as held that a !ift deed e/ecuted y a "usli" %ho has "ade a !ift in accordance %ith the provisions of (usli" la% is "erely evidence of a co"plete !ift and as such is not co"pulsorily re!istrale and is ad"issile in evidence not%ithstandin! the e"ar!o laid do%n y sections 1D and C& of the Indian 5e!istration Act, 1&8. In Ram Ni"as Todi v. !ibi *abrunnissa [,'] the Supre"e ourt of India upheld the validity of an unre!istered oral !ift and laid do%n that (usli" personal la%s override tenancy la%s and other specic le!islations unless it is specically "entioned to the contrary in the le!islation.

Gift of (orps 0!yn and 2sfr$t 0Mana3

:hat (usli" la% does reco!ni3e and insist upon is the distinction et%een the corpus of the property itself and the usufruct of the property. 4ver the corpus of the property the la% reco!ni3es only asolute do"inion, heritale and unrestricted in point of ti"e, and %here a !ift of the corpus sees to i"pose a condition

inconsistent %ith such asolute do"inion the condition is re)ected as repu!nant, ut interest li"ited in point of ti"e can e created in the usufruct of the property and the do"inion over the corpus taes e+ect su)ect to any such li "ited interests.#C$

In *ameela !egum v. $ontroller of ,state Duty- Madras [,,] it %as held that a reservation of the ri!hts in "ana so lon! as the ayn is transferred does not render the !ift ad.

onditional, ontin!ent and uture Gifts onditional Gifts "ay e of t%o types9

• "onditional #ifts< onditional Gifts or !ifts that are suspended on a condition are invalid, unless

the condition is such that it can e fullled i""ediately, in %hich case it constitutes the acceptance.  Thus if the donor says = %hen to"orro% co"es I %ill !ive you a co"puter> the !ift is invalid. A

condition %hich is capale of i""ediate fulll"ent eco"es the acceptance if it is perfor"ed and the !ift is valid. Thus i f a person says to another =if you o%e "e "oney you are asolved fro" it> then the !ift is valid as e/istence of the det %ould constitute acceptance.

• #ifts ,ith conditions< If a !ift is "ade su)ect to a condition %hich co"es in the %ay of full

o%nership of the !ifted property, the !ift is valid ut the condition is void. If a house is !ifted on the condition that it shall not e sold then the restraint on alienation is void and the house elon!s asolutely to the donee. In Mohammed Nariuddin v. &ovindarajalu %##ah [,5] the court considered the validity of a !ift %ith a condition restrainin! alienation under (usli" la% as %ell as under the  Transfer of Property Act, 1882 and held that it %as not possile to put restraints on alienation. ontin!ent Gift

A hiba cannot e "ade to tae e+ect on the happenin! of a contin!ency or a future uncertain event. All contin!ent !ifts are void.#CF$ 4nly a !ift of an insurance policy %hich "ay e contin!ent in nature is valid o%in! to the operation of Section 86D7 of the Insurance Act, 1&D.

A hiba "ust e of e/istin! property. It cannot e "ade to tae e+ect at any future ti"e, %hether such ti"e is denite or indenite. or e/a"ple if A "aes a !ift to @ of =the fruit that %ill e produced y his pal" tree ne/t year> the !i ft is void as it is a !ift of future property.#CD$

Gift throu!h the "ediu" of trust

A !ift "ay e "ade throu!h the "ediu" of trust. The sa"e conditions are necessary for the validity of such a !ift as those for a !ift "ade directly to the donee %ith the di+ erence that in the case of a !ift throu!h the "ediu" of trust the !ift should e accepted y the trustees and possession should also e delivered to the trustees. A (oha""edan cannot throu!h the "ediu" of trust settle property for the enet of persons %ho are incapale of tain! under the la% of !ift, nor can he throu!h a trust create an estate not reco!ni3ed y the la% of !ifts of the sect to %hich he elon!s.#C8$

5evocation of Gift

Accordin! to (usli" *a% all voluntary transactions are revocale. Thus !ifts "ay also e revoed. A !ift "ay e revoed y the donor at any ti"e efore delivery of possession. The reason is that the !ift is not a !ift efore delivery of possession and hence the rules relatin! to !ifts do not apply to it. :hen a !ift i s co"plete and the su)ect "atter of the !ift is duly transferred to the donee revocation of the !ift is possile only throu!h intervention of the court of la, or y the consent of the donee.

In the follo%in! cases a co"pleted !ift cannot e revoed even y the court or throu!h the consent of the donee9#C&$

• :here it is "ade y the husand to his %ife or vice versa

• :here the donor and donee are related to one another %ithin the prohiited de!rees y

consan!uinity

• :here the donor or donee dies

• :here the thin! !iven is destroyed or lost

• :here the thin! !iven has passed out of the donees possession y !ift, sale or other%ise • :here the thin! !iven has increased in value

• :here the thin! !iven has so chan!ed that it cannot e identied • :here the donor has received a return 6 e"a 7 for the !ift

• :here the !ift a"ounts to a sada/a

'ia-il-e%a3

A hiba0bil0e"a  as distin!uished fro" a hiba is a !ift for consideration. After the !ift has een "ade the donee "ay o+er to "ae a reciprocal !ift to the person "ain! the pri"ary !ift. Then the reciprocal !ift is called the e"a or return for the pri"ary !ift. If the e"a  is accepted then it eco"es a hiba0bil0e"a .#0$ In India the hiba0bil0e"a  is not reco!ni3ed as a !ift. It is treated as a sale and has all the incidents of a contract of sale. A hiba0bil0e"a  is thus !overned y the la% relatin! to sale in the Transfer of Property Act, 1882.

A sada/a is a !ift "ade %ith the o)ect of acquirin! reli!ious or spiritual "erit.#01$ It is e/actly lie a hiba %ith the only e/ception ein! that it cannot e revoed under any circu"stance.

• #ifts $nder %he Indian Succession Act' (2*/

A donatio mortis causa or !ift in conte"plation of death is dened y Section 1&1 of the Indian Succession Act, 1&20 as9 4 A gift is said to be made in contemplation of death ,here a man' ,ho is ill and e+pects to die shortly of his illness' delivers to another possession of any movable property to =eep as gift in case the donor shall die of that illness7 Such a gift may be resumed by the giver and shall not ta=e e>ect if he recovers from the illness during ,hich it ,as made? nor if he survives the person to ,hom it ,as made76

 The require"ents of a Gift in onte"plation of ?eath as laid do%n y Section 1&1 of the Indian Succession Act, 1&20 are9

•  The !ift "ust e of "ovale property • It "ust e "ade in conte"plation of death

•  The donor "ust e ill and e/pects to die shortly of the illness • Possession of the property should e delivered to the donee

•  The !ift does not tae e+ect if the donor recovers fro" the illness or the donee predeceases the

donor

 These require"ents of a valid donatio mortis causa %ere laid do%n y the Supre"e ourt of India

in $omissioner of &ift Ta1 v. %bdul Karim Mohammed.#02$ In this case the Supre"e ourt interpretin! Section 1&1 of the Indian Succession Act, 1&20 stated that there %as nothin! ne% in the require"ents provided under Section 1&1 of the Indian Succession Act, 1&20.They are si"ilar to the constituent ele"ents of a valid donatio mortis causa. The ourt also laid do%n that Section 1&1 provided for "eanin! or require"ents of a !ift in conte"plation of death and this section could not e invoed for clai"in! e/e"ption fro" !ift ta/. A !ift "ade in conte"plation of death is called a Mar0ul0maut  under (usli" *a%. A mar0ul0maut  satises the conditions of section 1&1 of the Indian Succession Act, 1&20.

A donatio mortis causa or !ift "ade in conte"plation of death is e/e"pt fro" the provisions of Transfer of Property Act, 1882. The "ain di+erences et%een a donatio mortis causa and a !ift as dened in the  Transfer of Property Act, 1882 are9

• A donatio mortis causa is one "ade y a person e/pectin! that he %ould die of an illness. An

ordinary !ift "ay e "ade at any ti"e.

• In a !ift "ade in conte"plation of death the condition that the !ift shall not tae e+ect if the donor

recovers fro" the illness is i"plied. In an ordinary !ift conditions are not i"ported y i"plication.

• A donatio mortis causa is resu"ale at the %ill of the donor. An ordinary !ift resu"ale at the %ill of

the donor is void.

• A !ift "ade in conte"plation of death relates only to "ovale property %hereas a !ift under the

 Transfer of Property Act, 1882 "ay relate to "ovale or i""ovale property.

• An ordinary !ift taes e+ect i""ediately after the !ift deed is co"pletely e/ecuted %hile a donatio

• #ift And Other %ransfers

A Gift, thou!h a transfer of property, is a !ratuity and an act of !enerosity and does not contain any ele"ent of consideration in any shape or for". o"plete asence of "onetary consideration is the "ain hall"ar %hich distin!uishes a !ift fro" a !rant or other transactions lie lease, sale, "ort!a!e etc. %hich "ay e for valuale or adequate consideration. :here there is any equivalent or enet "easured in ter"s of "oney in respect of a !ift the transaction ceases to e a !ift and assu"es a di+erent colour. The "otive or the purpose of "ain! a !ift should not e confused %ith the consideration %hich is the su)ect "atter of the !ift. *ove, a+ection, spiritual enet and "any other factors "ay enter in the intention of the donor to "ae a !ift ut these lial considerations cannot e called or held to e le!al considerations as understood y la%.#0$  Thus in spite of a !ift ein! such a unique for" of transfer it is often confused %ith other for"s of transfer of

property. The courts have done their it in clearin! the confusion and di+erentiatin! et%een a !ift and other for"s of transfer of property.

Gift and *icence

In The State of ). v. Sayed %bdul *alil [5,] the plainti+ %as allotted a house y 'is 'i!hness Ha%a of 5a"pur. After the "er!er of 5a"pur %ith J.P in 1&C& this house %as !iven to the (unicipal oard of 5a"pur y the Govern"ent of Jttar Pradesh. The (unicipal @oard thereupon de"anded rent fro" the plainti+

throu!h notices and on refusal to pay, attached the house. The plainti+ led a suit for declaration that he %as the o%ner of the house in possession and in the alternative he %as a licencee, entitled to re"ain in possession of the house for life %ithout pay"ent of any rent. 4n a perusal of the docu"ent y %hich this house %as allotted to the plainti+ the court oserved that the Ha%a "eant to do nothin! "ore than to !ive to the plainti+ free residential acco""odation in a house o%ned y the !overn"ent. or a transfer of

o%nership, the purpose is stated clearly to e that the property !iven %ill e o%ned and possessed henceforth y the donee in such a %ay that he can use it or deal %ith it as he lies. (ere allot"ent of

acco""odation y the order of the Ha%a %ill not constitute transfer of o%nership. Transfer of o%nership, in the ordinary course, is e/pected to e evidenced y "uch "ore clear and unequivocal lan!ua!e. The

transaction %as held to e a !rant of licence revocale at the !rantors option. In the asence of any

declaration of !ift y the donor it cannot e taen to e a !ift of the property under the Transfer of Property Act, 1882.

Gift and :ill

:hether a docu"ent operates as a !ift or a %ill is often a controversial su)ect. If it is a :ill, it %ill e

revocale even if it contains a clause foriddin! alienation. 4ther%ise the revocation %ould e invalid in the face of the condition foriddin! revocation. The question %as considered in Duraisami v. Saroja %mmal.#00$  The court pointed out that the real test to distin!uish et%een a !ift and a :ill %as %hether or not there is a

transfer in #raesenti. In this case the e/ecutant reserved to hi"self a ri!ht in the property for his life ti"e and, su)ect to this, !ave the property to A 6the plainti+7. A %as not to alienate the property durin! the e/ecutants life ti"e and the patta for the l and %as to continue in the na"e of the e/ecutant durin! his lifeti"e. It %as concluded fro" these directions that the e/ecutant intended to e/ecute a settle"ent deed operative in #raesenti and so his susequent revocation %as invalid and the susequent alienee fro" hi" could not acquire any title.

• 3iba @7 #ifts $nder %he %ransfer Of &roperty Act' ())*

Analy3in! the concept of Gift under the Transfer of Property Act, 1882 and Hiba under (usli" *a% rin!s to li!ht the fact that there is not "uch di+erence et%een (oha""edan !ifts and the la% of !ifts under the  Transfer of Property Act, 1882. The asic essence of a !ift and its "ain concepts are "ore or less the sa"e

under oth syste"s of la%. 'o%ever there are a fe% areas %here there are so"e di+erences et%een a hiba and a !ift as understood y the Transfer of Property Act, 1882.

After delivery of the !ift is co"plete and the !ift is in possession of the donee it cannot e revoed under any circu"stance under the Transfer of Property Act, 1882. 'o%ever under (usli" *a% a hiba "ay e revoed even after delivery throu!h the intervention of the court or throu!h the consent of the donee. There are ho%ever e/ceptions to this rule %hen after delivery a hiba cannot e revoed under any circu"stance.  The Transfer of Property Act, 1882 does not allo% !ifts to e "ade to )uristic persons or to non livin! thin!sE

Jnder (usli" *a% a hiba0bil0e"a , a type of !ift %hich has an ele"ent of consideration is valid. 'o%ever under the Transfer of Property Act, 1882 a !ift %hich has any ele"ent of consideration is void. The hiba0bil0 e"a  is not considered as a !ift in India ut in lassical (oha""edan *a% a hiba0bil0e"a  is a valid !ift. A donatio mortis causa or !ift "ade in conte"plation of death co"es %ithin the purvie% of Section 1&1 of the Indian Succession Act, 1&20. A donatio mortis causa under (usli" *a% is no%n as a mar0ul0maut . A mar0ul0maut  satises the conditions of Section 1&1 of the Indian Succession Act, 1&20.#0F$ The only di+erence is that throu!h a mar0ul0maut  a donor can !ift a%ay only one third of his estate and if he %ishes to e/ceed this li"it the prior consent of his heirs is necessary.

(oha""edan *a% allo%s oral !ifts %hereas the Transfer 4f Property Act, 1882 does not. 5e!istration is thus an essential ele"ent to e+ect transfer of a !ift under the Transfer of Property Act, 1882 %hereas under (usli" *a% 5e!istration of a !ift deed is not necessary. This di+erence is the "ain one of contention et%een the la% of !ifts under the Transfer of Property Act, 1882 and (oha""edan Gifts and has stirred up a hu!e controversy %hich has even l ed to challen!in! the constitutionality of certain provisions of the  Transfer of Property Act, 1882.

Section 12 of the Transfer of Property Act, 1882 lays do%n the "anner in %hich a !ift has to e e+ected and prescries the need for a re!istered instru"ent si!ned y or on ehalf of the donor and attested y at least t%o %itnesses if the su)ect "atter is i""ovale property.

Section 12& of the Transfer of Property Act, 1882 provides that =Hothin! in this chapter 6%hich deals %ith !ifts7M.shall e dee"ed to a+ect any rule of (oha""edan *a%.>

In &hulam %hmed Su2 v. Mohammed Sidi/ Dareel [5#] the ull @ench of the La""u and Nash"ir 'i!h ourt %as ased to "ae an =authoritative pronouncement> on the proposition of la% =if in vie% of sections 12 and 12& of the Transfer of Property Act, 1882 the (usli" *a% on the question of !ifts stands superseded and %hether it is necessary that there should e a re!istered instru"ent as required y sections 12 and 12& of the Transfer of Property Act, 1882 in the case of !ifts "ade under (usli" *a%. 4n a revie% of the case la% and a close e/a"ination of the %ordin! of section 12& of the Transfer of Property Act, 1882 the court

ans%ered oth the questions in the ne!ative. It pronounced that Sections 12 and 12& of the Transfer of Property Act, 1882 did not supersede (usli" *a% relatin! to oral !ifts and that a re!istered instru"ent %ould not e necessary for a !ift under (usli" *a%. Accordin! to the court only if an instru"ent %as e/ecuted and its e/ecution %as conte"poraneous %ith the "ain! of the !ift, the instru"ent should e re!istered as provided in Section 1D of the Indian 5e!istration Act, 1&8. This decision of the court, %hich it called an authoritative pronounce"ent, %as a "ere restate"ent of %hat is undoutedly settled la% on the point at issue. The court itself referred in its )ud!"ent to the identical decisions in several earlier cases of other courts %hich fortied its pronounce"ent.

In !ibi Maniran v. Mohammad (sha/ue [54] a ?ivision @ench of the Patna 'i!h ourt re)ected the ar!u"ent that Section 12& of the Transfer of Property Act, 1882 violated Article 1C of the onstitutionE the court held that the classication et%een (oha""edans and others %as reasonale, havin! re!ard to the %ell no%n funda"ental di+erences et%een the reli!ion and custo"s of (oha""edans on one hand and the reli!ion and custo"s of others.

In Makku Ra"ther v. Manaha#ara $harayil [59] it %as held that Section 12& of the Transfer of Property Act, 1882 %as ultra vires the onstitution if it %as held applicale to all (oha""edan !ifts and should therefore e construed as li"ited to (oha""edan !ifts of a charitale or reli!ious nature. Lustice Nrishna Iyer in his  )ud!"ent stated that =secular> (oha""edan !ifts are di+erent fro" (usli" !ifts of a =reli!ious> nature and

such =secular> !ifts should confor" to the require"ents of %ritin!, attestation and re!istration as laid do%n in Section 12 of the Transfer of Property Act, 1882 in order to survive the scrutiny of Article 1C of the

onstitution. @y classifyin! (usli" !ifts into secular and reli!ious cate!ories this )ud!"ent i"ported into the faric of Isla"ic la% so"ethin! %hich %as hitherto unno%n. In his )ud!"ent Lustice Nrishna Iyer said that (usli" )urists do not !ive any hint any%here of any taoo of a Mussalman reducin! a !ift to %ritin!, to !et it attested or to !et it re!istered y any pulic authority. 'e also asserted that there is asolutely no conict et%een Section 12 of the Transfer of Property Act, 1882 and the rules of (usli" *a% e/cept "ay e %here reli!ious or charitale !ifts are "ade. Seen in this conte/t it is not )ustiale to classify various co""unities for purposes of docu"entation, attestation and re!istration of purely secular !ifts.

 Lustice Nrishna Iyers )ud!"ent !oes a!ainst the settled la% in India on the point of the conict et%een (uli" *a% and the Transfer of Property Act, 1882 %ith respect to !ifts and has co"e under severe criticis". It is i"possile to distin!uish et%een reli!ious and secular !ifts ecause 'indu and (oha""edan la%s are

so inti"ately connected that they cannot e readily dissevered fro" it. (oreover Lustice Nrishna Iyers classication of !ifts into reli!ious and secular !oes a!ainst the nor"s of interpretin! (usli" la% and if such classication %as adhered to it %ould shae the funda"entals of (usli" *a%.

It is of e/tre"e i"portance to loo at this controversy fro" another vie%point. 5e!istration of a !ift deed is not an anti-reli!ious or sacrile!ious act. It does not interfere %ith the oservance of reli!ious rites. It ensures a proper authentic record of the property transaction, %hich is ulti"ately enecial to the parties

the"selves. As the (usli" )urists have the"selves acno%led!ed in their denitions, hiba is re!arded as a part of the la% of contractE the concept of contract underscores the concept of hiba. Lust as other sales and contracts y (usli"s are su)ect to the civil la%s of the country, there is nothin! unusual in coverin! these transactions also under the ordinary civil la%s. The only !rud!e can e on account of the require"ent of re!istration fees ut no (oha""edan )urist has clai"ed or )ustied i""unity fro" secular ta/ation. An e/e"ption fro" so"e le!al for"alities should e clai"ed in such areas %here it is essential to eep intact reli!ious rites, cere"onies or oservances of essentially reli!ious character. Too "uch insistence on

i""unities fro" !eneral la%s of the land reeds separatist tendencies. Instead of advancin! hair-splittin! ar!u"ents to clai" i""unity, the (usli" society should %illin!ly co"e for%ard to clai" "a/i"u"

inte!ration %ith the !eneral le!al syste" of the country.

• "onclusion

'avin! studied and co"pared the (oha""edan la% of !ifts and !ifts under the Transfer of Property Act, 1882 it can e accurately said that the "ost si!nicant issue in India today re!ardin! the la% of !ifts is the interpretation of Section 12& of the Transfer of Property Act, 1882 and the applicaility of the provisions of the Act to the hiba or (oha""edan !ifts. The courts in India have upheld the constitutionality of Section 12& of the Transfer of Property Act, 1882 and have interpreted it to "ean that the provisions of the Transfer of Property Act, 1882 shall not apply to (oha""edan !ifts and (oha""edan !ifts %ill e solely !overned y the rules of (usli" la%. 'o%ever Lustice Nrishna Iyers )ud!"ent %hich has !one a!ainst the settled la% of the land and held the Transfer of Property Act, 1882 to e applicale to (usli" !ifts of a secular nature has co"e under severe criticis" ut has raised questions too re!ardin! the har"ony of la%s relatin! to !ifts.  Lustice Nrishna Iyers vie%s on the la% relatin! to !ifts are too drastic and if upheld %ould shae the

funda"entals of (usli" la%.

 The present situation of e/tre"e uncertainty overshado%in! the la% of hiba rin!s no credit to Indian  )urisprudence. It creates !reat diculties and ha3ards for "usli"s desirin! to "ae dispositions of their

property. It is thus dicult for la%yers to tender !ood advice to their clients or to tae sure step in conveyancin! !ifts.

An attitude of callous i ndi+erence, co"pounded %ith inadequate understandin! of a syste" of la%

so"eti"es decried as outdated, has led so"e )ud!es, so"eti"es, to pass il l-considered )ud!"ents that have inicted needless in)ustice on parties and created confusion in le!al ad"inistration.

It is i"perative that this eld of la% e considered in !reat depth y the Supre"e ourt either in its appellate  )urisdiction or upon a presidential 5eference under Article 1C of the onstitution, in order that clarity,

certainty, and rationality, in the conte/t of the needs of conte"porary society, in accord %ith the innate !enius of (usli" *a% and in har"ony %ith the !eneral le!al faric e restored to Indian Lurisprudence in the "atter of !ifts.

'o%ever till this confusion is cleared it is advisale for conveyancers to e on the safe side and satisfy the require"ents of re!istration as envisa!ed y the Transfer of property Act, 1882 and the rules of (usli" *a% in the case of all hibas.

 To end this controversy le!islative chan!e is necessary. Such le!islative chan!e should incorporate in the  Transfer 4f Property Act, 1882 the sustance of the hiba as understood y the (usli"s, provide

discountenace of oral !ifts not evidenced y re!istration and provide a le!al facility to everyone. This %ill advance an inte!ration of the institutions and la%s relatin! to !ifts in India and rin! aout har"ony.

• <ibliography

1. Asaf A.A y3ee, 3utlines of Mohammedan 4a" 6?elhi9 4/ford Jniversity Press, 1&8D7.

2. G. Oenatasua 5ao, $ommentary on the Transfer of ro#erty %ct  6(adras9 . Suiah Shetty and Sons, 1&&7.

. (. 'idayatullah and Arshad 'idayatullah, Mulla5s rinci#les of Mohammedan 4a" 6@o"ay9 H.(  Tripathi private *i"ited, 1&&7.

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0. Hishi Purohit, rinci#les of Mohammedan 4a" 6He% ?elhi9 4rient Pulishin! o"pany, 1&&87. F. Salil N. 5oycho%dhury and '.N Saharay, The (ndian Succession %ct- 698:  6@o"ay9 H.( Tripathi

Private *i"ited, 1&&7.

D. Syed Nhalid 5ashid, Muslim 4a" 6lucno%9 Kastern @oo o"pany, 1&&F7.