Date and Time: Thursday, 9 May 2024 12:20:00AM IST

Job Number: 223825153

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1. CHAPTER 14 GIFTS
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 CHAPTER 14 GIFTS
Kusum & Poonam Pradhan Saxena - Family Law
Poonam Pradhan Saxena

Kusum & Poonam Pradhan Saxena - Family Law > Kusum & Poonam Pradhan Saxena - Family
Law > VOLUME II

CHAPTER 14 GIFTS

INTRODUCTION
The Transfer of Property Act, 18821 deals with transfer of property by way of gifts. These provisions however do not
apply to gifts made by Muslims, who are consequently governed by the provisions of Muslim law.2

The rights of a person to dispose of his separate or self-acquired property inter vivos and at his pleasure are
universally recognised. Under Muslim law also, a person is competent to make a gift of his total property during his
lifetime and unlike the situation under the Transfer of Property Act, 1882, the gift here is operative with immediate
effect and divests him of his control and ownership over the property.

Gifts can be made with a specific purpose or simply out of love and affection. A gift made to one son so as to
strengthen his financial position in comparison to other sons who are financially better placed than him is perfectly
valid. A gift can be made even with the object of disinheriting an heir.3 Though the purpose behind a gift is
immaterial, yet, if it is to defeat the provisions of a law such as with an intention to defraud the creditors,4 such gifts
are not valid and are voidable at the option of the creditors, though the mere fact that a person owed some debts at
the time of making the gift5 or was even insolvent, is immaterial and does not affect the validity of the gift.

CONCEPT OF GIFT
Gift is the transfer of certain existing movable or immovable 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, followed by
immediate delivery of possession of the subject matter of the gift.

Gift therefore is a transfer of property. All the rights of the donor vest in the transferee with the help of this
conveyance. The donor gets the title, a right to possess and enjoy the property and a right to sell it at his pleasure if
he is otherwise competent to do it.

The term ‘Gift’ is often understood as a synonym of ‘Hiba’ or an English equivalent of Hiba, but has a wider
connotation than Hiba. Hiba is defined as ‘the donation of a thing from which the donee may derive a benefit’.6 It is
also explained as an unconditional transfer of property made immediately without any exchange or consideration by
one person to another and accepted by or on behalf of the later. Fyzee defines7 it as an immediate and unqualified
transfer of the corpus of the property without a return. Baillie defines it as the conferring of a right of something
specific without an exchange.8

REQUIREMENTS OF A VALID GIFT

There are three basic requirements for the validity of a gift:

(i) Parties to the gift:

(ii) The donor
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(iii) The donee

(ii) Subject matter of gift
(iii) Essential ingredients of making of a gift:
(a) Declaration (Ijab) by the donor
(b) Acceptance (Qubool) by the donee
(c) Immediate delivery of possession (Qabza)

The Donor

Any Muslim, who is major and of sound mind ie competent to contract can make a gift of his property. The age of
majority for determining the competency of gift is eighteen years in ordinary cases, and is twenty-one years where a
guardian has been appointed by the court.
Gift by a Woman

There is no discrimination on grounds of sex, and a female is also competent to make a gift. It is irrespective of the
fact of her marital status. She may be married, unmarried, widow or a divorced. She may be very active socially, an
outgoing person or a Pardanashin woman. In case a gift is alleged to have been made by a Pardanashin woman
and it is disputed, the burden of proving that she understood the full implication of the nature of her actions is on the
donee.9 The rule is in tune with the equitable principle that persons who have less or practically negligible
interaction with strangers due to social customs, need special protection for their own benefit. The Madras High
Court10 in relation to a gift executed by a Pardanashin woman has observed:

A gift deed executed by a Pardanashin lady stands in a peculiar position. The disposition made must be substantially
understood and must really be the mental act, as its execution is the physical act of the person who makes it... They
(donees) must satisfy the court that the deed has been explained to and understood by the party thus under disability,
either before execution, or after it under circumstances which establish adoption of it with full knowledge and
comprehension.

The Madhya Pradesh High Court11 also held that where the gift is made by a Pardanashin woman the donees must
establish that she understood the full nature and implication of the transaction. The duty is also on the court to
scrutinise the document very closely and inspect it thoroughly to judge its fairness. The requirement of a closer
scrutiny is all the more imperative in cases where the gift deed is executed in a language that is not the mother
tongue of the Pardanashin woman. In these cases the donee has to satisfy the court that not merely was the
document read over to her, but she actually understood it ie its contents and implications were told to her in the
language she was familiar with.
Donor must have Ownership in the Property

In order that the donor can make a valid gift, he must be the owner of the property. A trespasser cannot make a
valid gift of the property in his possession.12
Financial Obligations of Donor Immaterial

Donor can make a gift of his property and as aforesaid, he must have ownership in this property. If he has a bona
fide, genuine intention to make a gift of his property, his financial obligations would not stand in his way of making a
valid gift. A person who has contracted debts can make a valid gift except when it is with an objective to defraud his
creditors. In those cases it would be voidable at the option of such creditors. The gift can be to the extent of a part
of the property or even the total property.
Donee

For a donee, competency to contract is not an essential requirement. A donee can be a minor or even a person of
unsound mind. The only requirement is that he should be a juristic person, capable of holding property. A mosque is
a juristic person and competent to be a donee. The donee can be of any sex, any age and even of any religion. He
can be a relative or even a stranger. Property can validly be gifted to a female irrespective of her marital status.
Gift to Unborn Person

The donee can be a minor or a major but he must be in existence. A gift to an unborn person is void. However, a
gift to a person by way of a maintenance allowance for life and to his male heirs not in existence on the date of
making the gift will be valid provided they are born by the time the interest in favour of the living person comes to an
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CHAPTER 14 GIFTS

end. Under the Transfer of Property Act, 1882, property can be settled for the benefit of a person not in existence
on the date the settlement is created.13 The mode of settlement is that the life interest should be created in favour of
a living person and the absolute interest in this property on the death of this life estate holder should vest in the
person who was unborn on the date of execution of settlement and is born subsequently but before the life interest
comes to an end. The moment such a child is born he takes a vested interest in the property. This settlement
should not offend the rule against perpetuity.
Gift to a Child in Womb

A valid gift can be made to a child in the womb of his mother, provided it is born within six months of the date of the
making of gift. In such cases the child is treated as a separate entity.
Gift to a Non-Muslim

The religion of the donee is immaterial. The donee may be Muslim or even a non-Muslim. A Muslim can make a
valid gift in favour of a Hindu or a Christian.
Subject-matter of Gift

The subject-matter of gift can be property that is capable of being owned. It can be movable as well as immovable
property, ancestral or self-acquired, corporeal or even incorporeal property.

Corporeal property is one that has actual physical existence. It is tangible, such as land, a house etc. Incorporeal
property on the other hand, has no physical existence but it can be owned, such as a copyright or a goodwill. Its
actual physical possession cannot be delivered but it can be assigned. There was some confusion regarding
whether interests in property, which are not capable of actual physical possession but are chose in action can be
gifted validly or not. It has been held that a gift can be made of incorporeal property such as Zamindari rights, right
to receive a specific or a specified share in the offerings made by pilgrims at a specific shrine,14 negotiable
instruments, debts, promissory notes etc.15Gift can also be made of a property on lease or property that is subject
to a mortgage or is under an attachment or other actionable claims. In cases where actual physical possession
cannot be delivered, the gift can be completed by an overt act, that shows clearly an intention of the donor to divest
himself completely of the ownership and vest it in the donee. Any property that can be described as ‘mal’ can be the
subject matter of gift.16
Property must be in Existence

The subject-matter of a gift must be in existence. A gift cannot be made of property that would come in existence in
future.

Gift of Future Property : The subject-matter of the gift must be in existence on the date of making the gift. If the
subject-matter itself will come into existence at a future date, the gift would be void. For example, the donor makes
a gift to the donee in March, 2000, of all the eggs that his hens will lay in the month of May, or a farmer makes a gift
of the crops that would grow on his fields in the next season. These gifts would be void, the reason being that the
benefit conferred should be certain and immediate, of what is existing and is available. Similarly, a gift of spes
successionis would be void. But a gift of a specific share in rents that would arise in future is valid as they are
ascertainable in specific property.17 Similarly, a gift of specified share in offerings made by pilgrims at a specific
shrine is valid.18
Gift to take Effect on a Future Date

Under Muslim law, a gift of existing property but operative on a future date would be void. The reason is that
immediate delivery of possession of the property is one of the essential conditions for its validity. Where the donor
makes a gift to the donee that is to be operative only after his death or on the death of another person it would be
void as it is contradictory to the immediate delivery of possession.

For example, the donor has a daughter. He makes a gift to the donee that is to take effect on the death of his
daughter. The death of the daughter is a certain event, but is uncertain in point of time. The gift, therefore, would be
invalid.
Corpus and Usufruct

Muslim law makes a distinction between the gift of a corpus and that of a usufruct. A corpus is the thing itself. It
denotes transfer of absolute ownership, but usufruct refers to the produce of the thing, or the income or profits of
the thing (corpus). For example, land is the corpus and the crops would constitute the usufruct. Where the gift is of
the corpus, it is absolute, and confers ownership rights in favour of the donee that are both transferable and
heritable. It is called ‘Hiba’. It cannot be subject to a condition that deviates from the absolute nature of the grant. If
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CHAPTER 14 GIFTS

the condition limits absolute ownership in any manner, the donee is entitled to ignore the condition and the grant will
be valid. But, where the gift is of the usufruct only and not of the corpus, it is not absolute, but limited in point of time
and enjoyment. It is personal in character and is neither transferable nor heritable. It is called Ariyat. Under Muslim
law, a life interest cannot be created in the corpus but can be created in the ‘Manafi’ ie the usufruct.19 A gift of the
corpus where the donor reserves the usufruct for himself for life, and with the authority to collect the rents and
profits as the agent of the donee is valid.20
Gift of a Life Interest

A gift of a life interest is valid. In such gifts the donee does not get an absolute title. This right is neither heritable nor
transferable, but personal in character and lasts during the life of the donee. On his death it devolves in accordance
with the terms of the grant and does not pass to his heirs. A life interest does not automatically mature into an
absolute estate.21
Gift of Property Held Adversely to Donor

Where the donor does not have the actual physical possession of the property as the same is held by another
person adversely to the donor, the donor cannot make a valid gift of it unless:

(i) he actually obtains and delivers possession to the donee; a mere declaration is not sufficient,22 or
(ii) does all that can be done by him to complete the gift thereby enabling the donee to be in a position, from
where he can obtain possession.

Illustration : A gifts his land to B, that was held by C adversely against A, after filing a suit against C. He obtains
possession and delivers the possession to B. The gift is valid.23 Similarly, if the donor files a suit against a
trespasser after executing a gift in favour of the donee and the donee joins in the suit, it is not open to the
trespasser to challenge the validity of the gift on the ground that since no possession was delivered the gift was
void. This is because the moment the donor admits the claim of the donee before the court and pursues the suit to
enable the donee to take possession, the gift is valid and complete.24 The rule, therefore, is that if the donor has
done what all he/she could do to put the donee in possession, by filing a suit, and for executing a ‘hibanama’
authorising the donee to take possession and there was nothing more that she could do, the gift would be valid as
constructive possession would be deemed to be delivered.25
Gift of an Equity of Redemption

The right of a mortgagor to repay the loan and redeem or reclaim the mortgaged property is called his equity of
redemption. This equity of redemption is an interest in the immovable property and is transferable. A gift of equity of
redemption by the donor is valid if the possession of the mortgaged property is with him and he completes the gift
by delivery of possession of the mortgaged property. In some kinds of mortgages such as usufructory or even an
anomalous mortgage, the possession is with the mortgagee and in such cases it may not be possible for the
mortgagor to deliver the possession of the property to the donee. With respect to the validity of such gifts where the
possession is with the mortgagee, there is conflict of judicial opinion. The predominant view is that in such cases
even delivery of constructive possession is sufficient or it must be shown that some appropriate action was taken by
the donor to complete the gift.26 In an earlier decision of the Bombay High Court27 it was held that delivery of
possession is essential for the valid completion of a gift and since the possession of the property was with the
mortgagee under a valid contract, the gift of equity of redemption would not be valid for want of delivery of
possession. It is submitted that the view, upholding the validity of the gifts after delivery of constructive possession
in these cases appears to be correct.
Essential Ingredients of a Valid Gift

There are three essentials of a valid gift:

(i) Declaration by the donor

(ii) Acceptance by donee
(iii) Delivery of possession of property

The first important essential for the completion of a valid gift is that the donor must make an offer (ijab) to make a
gift, the second is that this offer should be accepted (qubool) by the donee and if he is incompetent to accept it
personally for want of capacity, then the acceptance should be given by a competent person on his behalf. The third
essential ingredient is that offer and acceptance must be followed by an immediate delivery of possession of the
property (qabza). If these three conditions are fulfilled, the gift is valid and complete.28
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Declaration

The offer to make a gift must be ‘declared’ voluntarily and with free consent. It must be clearly manifested without
any ambiguity. A mere permission to live in house so long as a person is employed would not make him the donee
or a recipient of gift of the house as a permission is not the same as a declaration and according to the Supreme
Court, declaration is a pre-condition for the validity of a gift.29

It is very important that the declaration should not be tainted with a fraudulent motive on the part of a donor, such as
to defraud the just claims of creditors. In such cases the gift would be voidable at the option of the creditors,30 but
as explained above, mere indebtedness would not stand in the way of the competency of a donor to make a gift.31
The intention should be real and bona fide.32

A declaration cannot be made in isolation and has to be made in the presence of some witnesses or by way of a
public statement, that the donor was gifting the property to the donee and thereby divesting himself of the complete
control over it, and has either delivered or was completing the gift by such delivery of possession as the property
was capable of. A declaration cannot be made unilaterally without making a public statement to that effect.33

In a case before the Supreme Court,34 the owner of three pharmacies entrusted the management of one pharmacy
each to his three sons. That continued even after his death. As each brother was looking after a separate
pharmacy, the profits were not distributed under this arrangement till a suit for partition was filed by one brother. On
the point of gift, the court said that a convenient arrangement of management of an establishment was not a gift
under Muslim law in absence of a declaration to that effect. As aforesaid, the declaration should not be induced by
fraud or undue influence or by the use of force or even under compulsion. Where a woman was brought to another
city on a false pretext and was made to sign the gift deed, before she could consult anyone, the court held that her
consent was not free and the gift was void.35
Acceptance

The second essential requirement for the validity of a gift is that it must be accepted by the donee, if he is
competent to accept it himself or by a competent person on his behalf if he lacks capacity to accept it himself.36
Under Muslim law, acceptance on behalf of a minor or a person of unsound mind can be given by the guardian of
his property. The guardians of the property of a minor are the following in the same order viz., father, his executor
appointed under his Will, paternal grandfather, his executor appointed under his Will. Father if alive, is the sole
guardian of the property of the minor. He can appoint an appropriate person, either a relative or even a friend to act
as a guardian of the property of a minor as an executor in his Will. Next to him is the paternal grandfather, who also
has a similar power to appoint a guardian of the minor as an executor under his Will. No other relative of the minor
including the mother, brother, maternal grandfather etc are stipulated as legal guardians. However, they can be so
appointed under a Will by the father or the paternal grandfather. Thus, where the father appoints the mother as an
executor under his Will, she is competent to give an acceptance for the gift offered to her minor child. Where the
father is alive, he alone is the legal guardian and no one else can even act as a guardian of the property of his
minor sons. If through a declaration, the offer of a gift is made to the minor sons, the acceptance must come from
the father failing which the gift would be incomplete and therefore void.37 In Musa Miya v. Kadar Bux 38 there was a
declaration by the donor in presence of his assembled friends that he had made a gift of his property to his
grandsons. This was expressed in the following words by means of a letter sent to the father of these minor children
by their maternal grandfather.

Now both the children, Essen Mian and Moosa Mian, are the owners of my property.

However, there was no evidence of either an acceptance given by the father or of the delivery of possession of this
property to the father of these minors. The gift was therefore held incomplete and invalid. Similarly in another case
before the Supreme Court,39 both the father and the paternal grandfather of the minors were present. The paternal
grandfather executed a gift in favour of his son’s sons in presence of their father. This gift was accepted by the
mother of the children. On a challenge to the validity of the gift, the Court held that the gift was invalid as it was not
accepted on behalf of the donee by a guardian of the children’s property, but was accepted by a person who was
not a guardian of the property and hence incompetent to accept it.

Acceptance by a Person, who is not the Guardian of Property : The natural guardians of the property of a minor
are only his father and failing him the paternal grandfather. The testamentary guardians are father’s executor
appointed under his Will, and the paternal grandfather’s executors again, appointed under his Will. The mother of a
minor child, son or daughter is not his/her legal guardian but can be a testamentary guardian, if she was so
appointed by either the father or the paternal grandfather under their Wills. In case of a minor married woman,
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where she has attained puberty and after marriage has lived with the husband, such husband is competent to
accept the gift on behalf of his minor wife even though her father might be living.40

A question arises, whether an acceptance given by a person on behalf of a minor, who is not a guardian of his/her
property, would be a valid acceptance. In Katheessa Umma’s case,41 the husband and the wife were living with the
wife’s mother in her house. The husband was ill and was being taken care of by them. He executed a registered gift
deed in favour of his wife and her mother accepted it on her behalf. On his death, his brother and two sisters
claimed his property (3/4th share ) by inheritance, while the wife claimed the total property under the gift. The
brother of the deceased contended that the mother was not a guardian of the property of the minor wife and
therefore not competent to accept it on her behalf, so the gift must fail. The question before the court was, when the
husband makes a gift to his minor wife in absence of her father and father’s father can he give its possession to her
mother, without affecting its validity? Was it absolutely necessary that possession of the property must be given to a
guardian specifically to be appointed by the civil court in such cases? The court quoted with approval the following
rule:42

If a fatherless child be under charge of his mother and she takes possession of a gift made to him it is valid... The same
rule holds with respect to a stranger who has charge of the Orphan.

The court also quoted43 the following passage with approval with respect to relaxation of the rules in certain cases.

It is lawful for a husband to take possession of anything given to his wife, being an infant, provided she has been sent from
her father’s house to his and this although the father be present, because he is held, by implication, to have resigned the
management of her concerns to the husband. It is otherwise when she has not been sent from her father’s house, because
then the father is not held to have resigned the management of her concerns. It is also otherwise with respect to a mother
or any other having charge of her, because they are not entitled to possess themselves of a gift in her behalf, unless the
father be dead, or absent, and his place of residence unknown; for their power is in virtue of necessity, and not from any
supposed authority, and this necessity cannot exist when the father is present.

Therefore, if the minor is under the care and protection of a person other than his guardian, only because there is
no guardian, such person can validly accept the gift on behalf of the minor.44 But in case of a minor girl who is
married and has lived with her husband after obtaining puberty, the husband can validly accept the gift on her
behalf even in presence of her father.
Delivery of Possession

The declaration and its acceptance must be followed by delivery of possession. It is this aspect of gift under Muslim
law, that differentiates it from a gift under the Transfer of Property Act, 1882. Under the Transfer of Property Act,
1882, there is no emphasis on immediate delivery of possession and the physical possession may be delivered at a
later stage depending upon the terms and conditions agreed upon by the parties, without affecting the validity of the
gift.

Under Muslim law, a gift is not valid unless it is accompanied by delivery of possession of the gifted property.45 It
does not have any legal effect, till possession is given.46

There is a Hadis of the prophet to the effect, that ‘a gift is not valid unless possessed’.47

Therefore it is absolutely essential that the owner must completely divest himself of the ownership and the complete
control over the property and vest it in the donee. It is said that the donor must vacate the premises and should not
leave even a straw belonging to him in the property, signifying complete relinquishment of control, ownership and
possession, in favour of the donee.48

The term possession means, ‘only such possession as the nature of subject is capable of’, and therefore it can be
actual, constructive or even symbolic.

Where the gift is in writing and the gift deed embodies a declaration that the possession of the property has been
delivered, it would amount to delivery of possession of the property if it is given and accepted by the donee,49 but a
mere admission in the deed without any other evidence that the possession has been delivered is not conclusive
establishing the delivery of possession.50

Actual Delivery of Possession : Where the donor makes a gift of his movable or immovable properties that were
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in his possession, in order to validly complete the gift he must deliver the possession of the movable property, and
in case it was immovable, he should:

(i) vacate the possession along with all his belongings that would signify his relinquishment of total control;
and
(ii) put the donor in possession.

Thus both physical departure of the donor and the formal entry by the donee must be shown. Where the donor
makes a gift of immovable property that is not in his possession at the time of making the gift he can complete the
gift by some overt act which shows the bona fide intention and is the appropriate action in such situation.51 For
example, where the property is in possession of a tenant, the gift can be completed by delivery of title deeds to the
donor, mutation of names in the office of the relevant authority and a direction to the tenants to pay rent to the
donee.52

The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For affecting a valid
gift the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of
property in possession of a trespasser is permissible in law provided the donor either obtains possession and gives
it to the donee or does all that he can to put it within the powers of the donee to obtain possession.

In Abdul Rahim v. Sk Abdul Zabar 53, a Muslim father who was about 85 years old executed a gift deed of his
properties (land) that he had purchased in favour of his son in 1973. In 1975, he filed an application before the
Tehsildar for mutation of his son’s name in his place as the owner. His other son challenged the validity of this gift
on the ground that since the possession of the property was not handed over to the younger son (donee) by the
father, the gift was illegal, void and inoperative. During the pendency of the litigation, the donee died and his legal
heirs were substituted in his place. The main argument of the donee was that as he was collecting rent from the
tenants of the land in his own capacity and not as an agent of the original owner of the property, and an order of
mutation was passed in his favour at the behest of the donor, the requirement of delivery of possession of the
property was met with for completion of the gift. The high court held that as the son was collecting rent from the
tenants even before the death of the donor, there was no material to show that the father had divested himself of
the title of the said property and had put the son in possession of the property. The apex court overruled the
decision of the High Court, accepted the claim of the son and held that the gift was valid as the essential
requirement of delivery of possession of the property was adequately met with in this case. The Supreme court laid
down six criterions for the validity of a gift under Muslim law54:

(i) Donor should be sane and major and must be the owner of the property which he is gifting;
(ii) The thing gifted should be in existence at the time of Hiba;
(iii) If the thing gifted is divisible, it should be separated and made distinct;
(iv) The thing gifted should be such property to benefit from which is lawful under the shariat;
(v) The thing gifted should not be accompanied by things not gifted, i.e., should be free from things which have
not been gifted;
(vi) The thing gifted should come in possession of the donee himself or of his representatives, guardian or
executor.

The court held that the gift was registered and contained a clear and unambiguous declaration of total divestment of
property. It further said that a registered document carries with it a presumption of its valid execution and a party
questioning it has to show that it was not a valid transaction. The agency of collecting rent by donee during the
lifetime of the father came to an end and he started doing it for his own self after the gift.

Exceptions to the Rule of Delivery of Physical Possession : There are three exceptions to the rule that in order
to be complete and valid, the offer and acceptance must be followed by immediate delivery of physical possession
of the property ie physical departure of donor and formal entry of donee. These exceptions are:

(i) where the gift is by the husband to the wife or vice versa;
(ii) where the gift is by the father to the minor child or by guardian to the ward; or
(iii) where the donor and donee reside in the same property which is the subject matter of gift.
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Gift by Husband to the Wife of Immovable Property : Where the husband makes a gift to the wife of either the
matrimonial home occupied by both of them or any other property belonging to him there is no need for an actual
physical departure by the donor. The reason is that the relationship of husband and wife is different from any other
relationship. Joint residence is an integral aspect of this relationship and the fact that the husband manages and
looks after the property of the wife is backed by an implied presumption that he does it on behalf of his wife. In
Fatmabibi v. Abdul Rehman Abdul Karim,55 the husband made an oral gift of a house to his wife. On a challenge to
the validity of the gift the trial court held that the gift fulfilled only one condition i.e. of declaration and as the rest of
the two conditions i.e. acceptance and delivery of possession were not present, the gift was invalid. The matter
went in appeal to the Gujarat High Court which reiterated the established principle of law, that in case of gift by the
husband to his wife, of the house that they were occupying, there is constructive delivery of possession and
acceptance and the gift was valid. Even where the property is let out to tenants and the husband collects the rent, it
is presumed that he does it on behalf of his wife.56 Thus where the husband gifts agricultural land to his wife by a
declaration and hands over the deed to her then, despite the fact that no mutation of names was done, the gift is
valid.57 Similarly, where the husband gifts the matrimonial home and a chawl next to this home, which was occupied
by tenants, to his wife and continued receiving rents from the tenants in the chawl, the gift is complete and valid and
the presumption that the husband is managing the property that now belongs to the wife, arises.58 A mutation of
names will be a clear proof of the genuineness of the intention, but it does not mean that mutation of names is
essential, more so in cases where the gift is properly declared and the gift deed is handed over to the wife.59

Where there is no need of a formal and physical delivery can the delivery of gift deed be made to the mother of a
minor wife, in absence of any guardian? In Katheesa Umma’s case,60 a gift was made by the ailing husband in
favour of his minor wife, who was around 17 years old. The gift deed was registered and was handed over to the
mother of the wife, in whose house the couple was living at that time. There was no guardian of property of the wife,
either natural or testamentary. The brother and sister of the deceased husband claimed his property and refuted the
claim of the wife on the grounds that since the mother of the wife was not the guardian of her property, the gift is
invalid for want of delivery of possession. Here, the gift deed was registered. Upholding the validity of the gift the
Supreme Court observed:61

The rules on the subject may first be recapitulated. It is only actual or constructive possession that completes the gift and
registration does not cure the defect nor is any bare declaration in the deed that possession was given to a minor of an
avail without the intervention of the guardian of the property unless the minor has reached the years of discretion. If the
property is with the donor he must depart from it and the donee must enter upon possession. The strict view was that the
donor must not leave behind even a straw belonging to him to show his ownership and possession. Exceptions to these
strict rules which are well recognised are gifts by the wife to the husband and by the father to his minor child. Later it was
held that where the donor and donee reside together an overt act is necessary and this rule applies between husband and
wife.

Here there was a declaration and a tender by the donor and as the gift was by a registered deed there was no
ambiguity with respect to the intention of the donor. The deed recorded that the possession of the property was
given to the mother and she had taken it on behalf of the wife. The court noted that the husband could have taken
the possession on behalf of his wife himself, as a husband is competent to accept the gift on behalf of his minor
wife, who has obtained puberty and who has lived with him, even where her father is alive. The court held here that
the gift was valid as the wife had attained the age of discretion, and they both were living in the house of the mother
of the wife. The intention to make the gift was clear and manifest because it was made by a registered deed. There
was complete intention to divest ownership on part of the donor and to transfer the property to his wife. The mere
fact that he handed the deed to the mother would not make the gift invalid. Rather, the court held, the mother was
capable to accept the gift on behalf of the minor wife in absence of any guardian.

Gift by Father to Minor Child or by Guardian to the Ward : Where the father makes a gift in favour of his minor
child, or a guardian gifts the property to his ward, delivery of possession of property is not essential and all that
needs to be established is that there was a bona fide intention on the part of the father or guardian to make a gift.62
This rule recognises the fact that here the donor is a person, who only is competent to accept the delivery of
possession of the property. Where the giver and accepter is one and the same person, to insist on a formal delivery
of possession would not be meaningful. It would be for all purposes a delivery by the right hand to the left hand.63
But where the property is gifted by the father to his minor child and also to another person along with her, delivery
of possession is necessary, e.g. a gift to a minor daughter and her major husband.64

‘Guardian’ refers to the guardian of property that includes the father, his executor, paternal grandfather and his
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executor in this order. If the father is alive he alone is the guardian of the property and the gift made by the mother
or maternal grandfather65 would require delivery of possession of the property.

In Musa Miya v. Kadar Bux,66 a declaration was made by the maternal grandfather of two minor boys on the 26th
day of Ramzan before several persons whom he had invited for dinner, that he was going to Mecca for a pilgrimage
and he had made a gift of his properties to his two grandsons and made them the owners thereof. The declaration
was also communicated to the women of the household at his request. The donor’s daughter, her husband and
these two minor boys were all living in the donee’s house with him and were also maintained by him, but at the time
when this declaration was made, the father was away. He was informed about the gift with the help of a letter sent
by the grandfather to him. Soon after the declaration, the donor went to Mecca and returned three months later. He
resumed the charge of this property and managed it as before till he died around 9 years after he had made the
declaration. Three years subsequent to the offer of gift, the donor received some land in his name which were
earlier purchased in the name of his brothers but were bought for him. No steps were taken by him to effect a
mutation of names or give any indication of conferring ownership or control of the property in favour of the minors.
The minor boys and their father were all along living with the donor, but they never participated in the management
of the property. On the death of the donor, his brother claimed 3/8th share of the total property and the minor boys
claimed the entire property under the gift. The counsel for the minor boys argued that in view of the facts of this
case, and the special relationship of the grandfather and the grandson, there was no need for delivery of
possession of the property and it could be validly presumed that the donor was managing the properties on behalf
of the minor grandsons. Rejecting this contention, the court said that the gift in this case was incomplete for want of
delivery of possession. The maternal grandfather was not the guardian as the father of minor children was alive.
Despite the fact that the children and their parents were living with the grandfather and he willingly maintained
them, these facts alone would not be sufficient to dispense away with the requirement of delivery of possession.
The gift was held to be incomplete and without any effect in law.

Gift to a Minor by a Person other than the Father or Guardian : The exception that formal delivery of
possession of property is not required is applicable only where the donor is a person who himself is also competent
to accept the gift on behalf of the donee ie he is either the father or any other guardian of property of the donee. But
where any other person makes a gift and the donee is a minor, delivery of possession is a mandatory
requirement.67 Such gifts will be complete when the possession is delivered to the father of the minor or to his
guardian and in their absence to a person under whose care and protection, the minor at the relevant time is.68
Where the minor has attained the age of discretion, he himself is capable of accepting the delivery of possession of
the property.69

Where Donor and Donee Live Together in the Same Property that is the Subject Matter of Gift : The third
exception to the rule of complete departure of the donor and a formal entry of the donee in the gifted property is
where the donor and donee were living together in the property that is the subject-matter of the gift. The donor in
such cases need not depart from the property and as the donee is already residing in the property, the need for a
formal entry does not exist.70However, despite the fact that the law does not require the donor to vacate the
premises, there has to be some cogent evidence, by way of a declaration on part of the owner and some overt act
that can lend a touch of bona fide intention on part of the donor to complete the gift, and divest himself of the total
control over the property.71

Law does not require that the donor and the donee should stand in some kind of family relationship. They can be
family members or even friends. The requirement for the application of this rule is:

(i) both the donor and the donee should reside together;
(ii) the place of residence is the subject-matter of gift; and
(iii) there is, besides a declaration, some overt act done by the donor that shows the relinquishment of control
by him and vesting of ownership in the donee.

If these three conditions are fulfilled then there is no need for a physical departure from the premises by the donor
and a formal taking over by the donee. For example, a Muslim donor makes a gift in favour of the donee living with
him with the help of a gift deed containing a declaration that he was transferring the property in favour of the donee.
After the execution of the gift, if the donor

(i) makes a declaration in presence of a number of friends, and entrusts the management of the property to
the donee; or
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(ii) hands over the papers of the property to him and authorises him to effect a mutation of names; or
(iii) authorises the donee to take possession of the property;72 or
(iv) the donor and the donee apply for mutation of names at the office of the relevant authority;73 or
(v) the donee starts paying municipal taxes in his name;74 or
(vi) the property is transferred in favour of the donee and he starts collecting rent in his name;75

the gift would be complete despite no physical delivery of possession. Thus where a sister executes a gift in favour
of her brother when they were living together in this house, the gift was held valid irrespective of the fact that there
was no delivery of possession,76 but where there is a declaration or even execution of a gift deed, but without any
recital, with respect to delivery of possession of property,77 and no handing over of management of property;78 or
the donor continues to pay the taxes himself,79 receives rent and there is no direction to the tenants to pay the rent
to the donee, the gift is incomplete and therefore invalid.80

FORMALITIES FOR EFFECTING A VALID GIFT

A gift can be oral or in writing. If it fulfills all the essentials of a valid gift ie there is a declaration, valid acceptance
followed by immediate delivery of possession, then it is perfectly valid even though none of the aspects has been
reduced to writing.81 An oral gift by the father-in-law to the daughter-in-law when possession is handed over to the
latter is perfectly valid.82 In another case before the Supreme Court, the deceased made an oral gift in favour of her
daughter and grandson in her lifetime dividing the house in two parts and giving the possession to these two
donees. Moreover, a mutation of property was sanctioned in their favour; it was held that the gift though oral was
perfectly valid.83

A gift may be in writing or even registered, but if it does not fulfill the basic requirements, it would nevertheless be
invalid. Mere writing or even registration would not cure the defect of an otherwise invalid gift.84

Thus, a gift can be validly effected orally or it can be reduced to writing and when it is in writing it would be valid
despite the fact that it was neither attested85 nor registered.86 If the gift is otherwise valid, even a mutation of names
is not necessary.87

A gift of immovable property made by a non-Muslim under the Transfer of Property Act, 1882, must be in writing,
properly attested by at least two competent witnesses and registered.88

An oral gift must be strictly proved in case of a dispute. What is required to be proved here is that the three basic
ingredients of a valid gift were complied with ie declaration, acceptance and delivery of possession and other
factors will be of little relevance. It is not the possession by the donee on the date of the dispute but the immediate
delivery of possession of the gifted property on the date of making of the gift that has to be proved. The fact, that
the alleged donee took possession of the property, looked after it during the lifetime of the donor, discharged the
debts of the owner, performed his last rites and was allowed possession for full one year after his death would not
be of importance if the making of gift is not proved. Even a notice served on him by the Panchayat to pay house tax
is not sufficient and what he has to prove is, when and how the gift was made in his favour.89

Thus where the alleged donee could neither disclose any details of the oral gift nor the date on which it was made,
the property at the time of the litigation stood in the name of the donor only and the subsequent conduct of the
parties was inconsistent with alleged execution, the court held that the gift was not proved.90 But an oral gift made
by a man in favour of his wife by a declaration, acceptance and a constructive delivery of possession is perfectly
valid.91
Gift deed executed simultaneously with an oral gift

As aforesaid an oral gift under Muslim law is perfectly valid so long as it is validly declared by the donor, validly
accepted by the donee and is followed by delivery of possession of the property. It must be proved properly or may
be reduced to writing later. Though there is no requirement under Muslim law for a gift to be in writing yet according
to the judicial opinion, if the gift deed was executed either prior to or simultaneously with it than in order to be valid it
must be registered in accordance with the provisions of the Transfer of Property Act, 1882. If the gift deed
accompanies or follows an oral gift such gift deed must be registered and its non-registration would adversely affect
the validity of the gift. In Faridsaheb v. Ahmedsaheb,192 along with an oral gift deed the donor executed a gift deed
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giving his complete property to one of his sons that was also followed by delivery of the possession of the property.
The Bombay High Court held that as the deed was executed prior to or simultaneously with the oral gift it required
registration and the gift would be invalid as it was not registered in the present case.

MUSHAA
‘Mushaa’ is an Arabic word derived from ‘saayu’ that signifies confusion. It refers to an undivided share in the
property.293 Property may be in the nature of independent unit, that can be ascertained, specified and identified
independently or it may be part of an independent unit, which is yet to be specified. The term ‘property’ includes an
undivided share in a property which can be the subject matter of a valid gift.

For example, a person A is the owner of a land X. This piece of land is ascertainable as an independent unit, and is
capable of delivery of possession by itself without effecting the rights of anyone else. Suppose A had three sons B,
C and D. On the death of A all these sons together inherit the property. The share of each of them will be one-third,
but which one-third of the land will go to the share of which son can be ascertained or specified only by a formal
demarcation or partition or actual division of the property. Till that is done, each will have an undivided share in the
land. With respect of Mushaa or undivided share, two situations are possible:

(i) undivided share can be in a property, which is capable of division without effecting its value or character
substantially; and
(ii) undivided share is in a property that is incapable of being divided. In trying to divide it, either the property
will be destroyed or its intrinsic value will be lost or it will be rendered useless, e.g. two brothers inherit a
house that has a common entrance, staircase or a right of way, a utensil, a carriage, tapestries, artefacts,
well, clothes, ornaments etc.

Gift of Mushaa

In order to effect a valid gift of Mushaa, the compliance of all the three conditions is necessary, ie, declaration,
acceptance followed by delivery of possession, but problem may arise in some cases in complying with the third
essential viz., delivery of possession. For that the rules are as follows:
Where the Undivided Share is Incapable of Division

Where the property (the undivided share) is not capable of division and admits only common enjoyment such as a
staircase,394 well, the banks of a tank,495 a right of way, a share in business in Turkish bath,596 the property can be
validly gifted without effecting a division of the property. In such cases the donor should by some act clearly
demonstrate his intention to put the donee in possession of the property as the nature of the property admits.
Where the Property is Capable of Division

Where the property is capable of division, it should be divided and its possession handed over to the donee.
However, even if it is not partitioned and delivered to the donee it is merely irregular and not void and can be
validated subsequently, by effecting its division and delivery of possession.

Under Shia law, the gift of an undivided share in a property capable of division is valid.697

Under Sunni law, the gift of Mushaa in a property capable of division is valid from the date of its inception, despite
the fact that no division is effected in certain specific situations. These are as follows:

(a) where the gift is made by one co-heir to another co-heir;

(b) where the gift is of a share in a Zamindari or Taluka;
(c) where the gift is of a share in freehold property in a large commercial town;
(d) where the gift is of shares in a land company.

Gift by One Co-heir to Another Co-heir : Co-heirs are persons who succeed to the estate of a deceased together.
They take their shares as tenants-in-common, and the extent of the share is well-defined, but the property may not
be formally divided. The only condition is that their inheritance should be from the same intestate. For example, two
sons succeeding to the estate of their father are co-heirs, wife and children inheriting the property of a ‘Muslim
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man’, a brother and a sister, two sisters, or a grandmother and a granddaughter would be co-heirs. In Mahommad
Buksh v. Hossenni Bibi,798 a Muslim woman died leaving behind her children and her mother. The mother
succeeded to one-sixth of her property that consisted of around 22 villages, the other five-sixth going to her
husband and her children. She executed a gift of her one-sixth share in favour of the children of her deceased
daughter. She and the children were the co-heirs of the deceased female, and therefore, the contention that the gift
was invalid for want of demarcation of the shares and delivery of possession, was rejected by the court, and it was
held that the gift was valid.

Constructive Possession : If the gift is by a co-sharer to another sharer and the co-sharer is in possession, the
possession is deemed to be on behalf of the other.899

Gift of a Share in Zamindari or Taluka : This exception is of little importance after the Zamindari were abolished
by the Government of India. Undivided share in a Zamindari9100 or in Kaimi land10101 or the land that is statutorily
impartible is valid without its actual division.

Gift of a Share in a Freehold Property in a Large Commercial Town : There are two requisites of this clause
viz., the share should be in a freehold property and secondly, the property should be in a large commercial town.
Such a share can be gifted validly without effecting its division.11102

Gift of a share in a land company is valid.12103

Gift of Mushaa and its Subsequent Validity

Where the property is capable of division, but is not divided and is gifted the gift is valid under Shia law and merely
irregular under Sunni law where it can be validated by effecting a division subsequent to the making of the gift. In
Hyatuddin v. Abdul Gani,13104 a Muslim man died in 1948, leaving behind one sister, two widows and a boy who
was brought up in his house since childhood. The share of each widow was one-eighth and of the sister was three-
fourth. The sister and one of the widows executed a gift in favour of this boy, Hyatuddin in 1952, of their respective
shares 3/4 + 1/8 = 7/8th of the property. The gift deed stated that the donee had the possession of the gifted
property and he was empowered to use them in any manner that he liked. The gift deed further stated that the
share of the other widow was separated and none of their (donor’s) heirs would have any interest in the property. In
1955, both the donors and also the donee filed a suit for a declaration that the donee was the owner of the property
and in the alternative, of partition and separate possession of the property in his favour. During the pendency of the
litigation, the sister died, and her heirs claimed that the gift being void had no legal effect and accordingly, they
were entitled to inherit her three-fourth share in the property. The court proceeded on the assumption that no formal
division of the property was effected. However, the tenants were given a direction to pay the rent to the donee and
the tenants were complying with these directions. The court held that the gift was merely irregular at the time of its
inception and the moment a suit for partition and separate possession was filed, it was perfected. Similarly, in
Hamid Ullah v. Ahmad Ullah,14105 the property consisted of six houses and three lands, and the donor who was not
in physical but constructive possession of the property executed a registered gift deed. The document recited that
the donor was in possession of the property and was conveying the same to the donee. She had given up all her
rights in the property and the donee was at liberty to deal with the property in any manner he chose. The court held
that the gift was valid as the donor had done practically all that she was able to do in the way of divesting herself of
possession and giving to the donees the same possession as she had.
Gift to Two or More Donees

Where a donor makes a gift of the property that is capable of division to two or more donees together, without
specifying their shares and without dividing the property, the gift will be irregular under Sunni law and can be
validated by a subsequent partition and occupation of their separate shares.15106

As the primary reason for the rule against the gift of Mushaa is to avoid confusion in ascertaining what exactly is the
property given to the donee, the confusion can be further compounded if the donees are two or more persons who
do not know, to what extent the property is given to them. In absence of specification of their shares the gift would
be irregular, but it can be regularised or perfected later. Under Shia law, a gift of property to two or more donees,
without specification of their shares or effecting a division of the property is valid.16107
Gift to Two or More Donees with Specification of Shares but as Joint Tenants

Where a gift is made in favour of two or more donees in specified shares but with a stipulation that they hold it as
joint tenants, so that if one dies, his share would not go to his legal heirs but will be taken by the other, it is valid
according to Shia law,17108 but under Sunni law, this condition would be void, and the gift would be valid. Each
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donee under Sunni law will take his specific share absolutely and on the death of either of them, the respective
share would go to their legal heirs and not to the surviving donee.

CONTINGENT GIFTS
A gift must be certain and should take effect immediately. If the gift is to take effect on the happening of a
contingency which may or may not happen it would be invalid. Contingency refers to a future uncertain event.

For example, A makes a gift to B, that is to take effect only if A dies issueless, or if A’s wife dies before B. These
are contingencies which may or may not happen, and a gift depended upon these uncertain conditions is invalid.
Similarly, where A makes a gift to B for life and then to C, provided he was living on B’s death, the gift to C will be a
contingent gift.18109

CONDITIONAL GIFTS
A gift is an absolute transfer of property whereby the donor divests himself of all the rights in the property and these
rights with the help of this gift are vested in the donee. What the donee acquires is the basic incidence of ownership
of the property viz., he acquires a title to the property, a right to possess and enjoy it and a right to alienate it at his
pleasure. These are the rights that are conveyed with the ownership. Where the donor makes the gift subject to a
condition or limitation, which restricts or limits the enjoyment of any of these three rights by the owner (donee), the
gift is called a conditional gift. If the condition is inconsistent with the incidence of absolute ownership, the condition
will be void but the gift would be valid. The donee would be entitled to ignore the condition as if it does not exist on
paper, without affecting the validity of the gift.19110

For example, A makes a gift of his house to B, and attaches a condition to the gift that B can only live in it and
cannot let it out to tenants. The gift conveys an absolute ownership, but the condition restricts the right of the owner
to possess and enjoy and alienate it at his pleasure. As an owner he can live in it, rent it out, grant a licence to
another to use it, and therefore, this condition can be ignored by the donee but the gift will be valid. Similarly, where
the donor makes an absolute gift to the donee and imposes a condition that so long as the donor or his wife is living
the donee cannot sell the property, this condition is repugnant to the grant created and would be void, and the gift
will be valid as an absolute gift.

No condition attached to a gift that restricts or prevents the donee from alienating the property, or restricting his
manner of enjoyment of property will be valid. For example, A makes a gift of his house to B with a condition that B
cannot sell it, or can use it only for a specific purpose. Such a condition would be void and the gifts would be
absolute and valid. Where the gift comprises agricultural land, and the donor puts a condition that the donee would
grow only wheat in it and no other crop, or would not use it for any other purpose except for agricultural purposes,
the gift is valid, and the donee is entitled to ignore both these conditions. He has the option and full rights as the
absolute owner of this land to grow whatever he finds suitable on it or to use it for whatever purpose he thinks fit.

The rule is applicable only where the gift is intended to be an absolute gift ie a gift of the corpus, and not merely of a
usufruct. Gifts creating a life interest in the usufruct stand on a different footing altogether. What is conveyed in a
gift of usufruct is not the ownership in the corpus or the thing itself, but an enjoyment of the produce of the corpus or
the thing without the title or a right of alienation of the corpus.20111 For example, a right conferred on the donee to
appropriate the crops of the land gives him a right to the enjoyment of the usufruct or the crops but not in the thing
ie the land. But if the donor makes a gift to the donee of a house with a condition that the donee is to enjoy the
house or live in it for his lifetime and then this house will revert to the donor, the condition of reversion is bad in the
eyes of law as it derogates from the absoluteness of the grant of the corpus, the house itself. This condition would
be void but the gift is valid and the donee would take an absolute interest in the house. In construing whether a gift
creates an absolute interest in the corpus or a right in only the usufruct with corpus going to a specific individual
mentioned by name, the substance of the gift has to be preferred to the form.21112 Thus where the donor makes a
gift of a house to A for his life and after the death of A to B for life, the condition of gift over to B derogates from the
absoluteness of the grant in favour of A. Since the gift is in the corpus (house) and not in the usufruct, the gift has to
be absolute. The result would be that it would be valid and absolute in favour of A and B will not get anything.
Shia Law
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The grant of a life estate in the corpus is recognised under the Shia law.22113 Thus a gift of a house by the donor for
life to A, with a condition, that after the death of A, the house will revert to the donor, is valid. The condition of
reversion is operative and will bind the donee. Similarly, where the donor makes a gift of a house to A for his life,
and on his death to B for life and then to C absolutely, the gift in favour of A, B and C is valid.23114
Gifts with a Condition in the Nature of a Trust

Both under the Sunni and the Shia law, conditions which are in the nature of a trust are valid if the donor does not
keep any rights with him over the corpus and the condition is in the nature of a direction with respect to utilisation of
the usufruct in favour of specific individuals named in the deed with their entitlement clearly specified.24115 It can
include a right to have the recurring income out of the usufruct even in favour of him self (donor). The condition in
these cases is in the nature of a trust and is enforceable that way. The most important thing is that the donor does
not have a right in the corpus, nor reserves the same in favour of anyone else, but only in part of the usufruct. For
example, A makes a gift of his property in favour of B, with a condition, that out of the income of the property, he
would pay Rs. 400 to him and an equal amount to his wife till their lifetime. Here the corpus is given without any
limitation to the donee, and the donor or his wife have no rights over it. It is only the usufruct, whose utilisation is
specified in favour of specific individuals with their entitlements clearly outlined.25116 Take another example, A
makes a gift of his property to B who has a wife W and two sons S1 and S2. The gift is with a condition that out of
the income coming out of the property, B is to pay 50% of this income to W for her maintenance and out of the rest
half S1, S2 and B will take in equal shares. This arrangement will continue till the life of B. The condition is perfectly
valid. As the condition is valid, the donee is under an obligation to honour it and abide by it. If he fails to do it, the
gift will not become invalid, but a cause of action will arise against him, that can be recovered with the help of law.
In the alternative the donor may also file a suit for revocation of gift provided other conditions are satisfied.26117

Whatever is the payment, or income, it must come out of the usufruct of the gifted property, otherwise it would not
be a condition in the nature of a trust. For example, the donor makes a gift of house in favour of the donee with a
stipulation that the donee was to pay him Rs. 1000 per month. The house was not yielding any income. This would
not be a condition in the nature of a trust as the income is not to be paid out of the usufruct coming out of the
property27118 and it is in the nature of an obligation that must be paid in all cases by the donee. Similarly if the
donor reserves the benefit of the corpus in his favour, then the condition would be invalid. For example, a donor A
makes a gift to B with the condition, that A would be entitled to reside in part of the gifted house for his life, the
condition is void, as the donor is not empowered to keep any dominion over the corpus. Similarly, where the donor
puts a condition, that during his lifetime, the donee has to pay his debts out of the usufruct of the property, the
condition is valid,28119 but if he puts a condition that should the need arise, the donee will have to return part of the
property back to the donor, so that he can repay his debts, the condition is void, as the donor is still keeping a
dominion over the gifted property (corpus).

GIFT WITH EXCHANGE (HIBA-BIL-IWAZ)

As distinguished from simple gifts, Muslim law also recognises gifts with an exchange. These gifts are called ‘hiba-
bil-iwaz’ and have two basic essentials:

(i) a bona fide and voluntary intention on part of the donor to make the gift and to divest himself of the
complete rights over the property and vest it in the donee;29120 and
(ii) payment of consideration by the donee.

What is noteworthy here is that the delivery of possession of the property is not one of the essential requirements.
Hiba-bil-iwaz is therefore an important device to effect a gift of Mushaa in a property capable of being divided,
which can be lawfully done in this manner.
Consideration

Payment of consideration is one of the most important aspects of Hiba-bil-iwaz. Without consideration it will be a gift
simpliciter and would have to fulfill all the essentials of a simple gift including immediate delivery of possession.
Consideration must be actually and bona fide paid.30121 It may be in the form of money or performance of an
obligation, in the form of return of a favour, or relinquishment of the claim to an estate or even a promise to marry,
or in lieu of payment of dower. However, considerations of love and affection, or consideration of donee being a
relative is not a valid consideration. For example, A makes a gift to B of his house or a portion of it in return of Rs.
10,000 or a gift of his land to W, in return of her promise to marry him,31122 or A makes a gift of his house to W, in
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return of or in lieu of her unpaid dower.32123 In these cases even if the possession is not delivered the gift is valid.
In Sarifuddin v. Mohiuddin,33124 a Muslim woman made a gift of her undivided share in the property in favour of her
nephews in consideration of the latter paying her Rs. 900 for her maintenance every year. The gift was a hiba bil-
iwaz and was valid despite the fact that the possession was not delivered to them. Similarly, where the donee in
consideration of proper arrangement made for her maintenance, relinquishes her claim of estate in favour of the
donor, it is a valid hiba-bil-iwaz.34125
Hiba-bil-iwaz Treated as a Sale

Hiba-bil-iwaz has all the elements of a contract of sale, as the parties must be competent to contract, there should
be an offer and an acceptance and presence of consideration is a must. Judiciary has also treated it as a
sale35126and therefore the basic formalities of effecting a sale specified in the Transfer of Property Act, 1882, are
applicable here. Where the consideration is more than Rs. 100 a hiba-bil-iwaz has to be effected with the help of a
written, attested and registered document.36127
Adequacy of Consideration

Consideration can be in cash or kind, but there is no requirement of law that it should be equivalent to the market
value of the object of the gift. If the intention is bona fide it can be grossly inadequate, yet perfectly valid.37128
Though considerations of love and affection or nearness of relationship by itself is not a valid consideration yet
these factors may influence the adequacy of consideration. A copy of the Quran38129 or a prayer carpet is also a
valid consideration. A gift of land at one-third its market value is valid. Similarly where property of considerable
value is gifted in consideration of the donee agreeing to maintain the donor for the rest of his life, it would be a valid
hiba-bil-iwaz.
True Hiba-bil-iwaz

In an ordinary hiba-bil-iwaz, there is a donor and the donee relationship. The donor makes the gift and the
consideration comes from the donee, but the primary subject-matter of the gift comes from the donor. A true hiba-
bil-iwaz is a gift where the iwaz is in fact another independent gift in return of the first gift. This second gift is not
specified in the first gift as its consideration, but it is in fact a return in lieu of the first gift. These are therefore two
distinct and independent gifts, where the parties are same, but the donor in one is the donee in another. For
example, the husband makes a gift of a necklace to his wife and hands it over to her. She accepts it and makes a
gift of a watch to him, making it clear that this was in return to his gift to her. The differences between a hiba-bil-
iwaz and a true hiba-bil-iwaz are that firstly, in the former delivery of possession is not necessary, but in the latter,
delivery of possession is necessary. Secondly, the former is revocable, but the latter, on furnishing of the second
iwaz, is irrevocable.
Hiba-ba-shart ul-iwaz

Where a gift is made with a stipulation for a return from the side of the donee, it is a simple gift to begin with, and all
the three essentials of a valid gift including the delivery of possession is necessary. However, where the stipulation
in the gift is fulfilled by the donee, it takes the character of a Hiba-ba-shartul-iwaz. This stipulation or promise that
the donee is supposed to perform, till its performance makes the gift revocable, but once it is performed, the gift
becomes irrevocable. Where the gift is of an undivided share in the property it would be invalid without delivery of
possession.

REVOCATION OF GIFTS
Ordinarily, till the gift is complete, it is revocable. In other words till all the essentials of gift are complied with, it is
open to the donor to withdraw his offer. Where the possession of the property has been delivered, the gift becomes
complete, but because it is purely a voluntary transaction it can be revoked even after its completion.

Revocation of gift can be with the consent of the donee or in the absence of his consent, by a decree of the court.
The right of revocation is only with the donor and can never be exercised by his heirs.39130

A gift which has been completed in the manner specified by law would be absolutely irrevocable in the following
cases:

(i) when either the donor or the donee is dead;

(ii) where the donor and the donee are husband and wife or vice versa;
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(iii) where the donor and donee are within prohibited degrees of relationship.
(iv) where the donor has received a return for the gift;
(v) where the subject-matter of the gift has been lost, destroyed or has been converted in such a manner that
it has lost its identity;40131
(vi) where the subject-matter has passed out of the hands of the donee by a transfer such as by way of a
sale,41132 gift etc.;
(vii) where the gift has substantially increased in value;
(viii) where the gift was for obtaining religious merit (Sadaqah).42133

Accordingly, a gift made by a man to his wife, by a brother to his sister, by the father to the daughter would be
irrevocable. Similarly where after the gift, the donee sells the property or dies, the gift cannot be revoked.
Shia Law

Under Shia law, a gift to any blood relation whether they stand in the prohibited degrees of relationship or not is
irrevocable. However, where the donor and the donee stand in the relationship of husband and wife, the gift is
revocable. Thus a gift by a Muslim to his father’s sister’s daughter (first cousin) is irrevocable under Shia law but
revocable under Sunni law. On the contrary, a gift by a man to his wife is irrevocable under Sunni law and
revocable under Shia law.
Mode of Revocation

A mere declaration or cancellation of gift deed will not effect a revocation of gift unless it is so consented to by the
donee, and a decree by the court is essential for a valid revocation.43134 However under Shia law, even a mere
declaration of revocation by the donor would be sufficient to effect a valid revocation and there is no necessity of
going to the court.

CHALLENGE TO THE VALIDITY OF THE GIFT

Only a person whose rights are affected by the gift can challenge its validity. For example, donor’s legal heirs can
challenge its validity. Even if the possession of the property is not delivered, a stranger or a trespasser cannot
challenge its validity.44135

GIFTS DISTINGUISHED FROM OTHER GRANTS

Sadaqah

In case of gift as it is generally understood, it can be the predominant purpose may be love and affection towards
the donee, or in the nature of a return for the services rendered by the donee in the past or it can be a simple act of
gratuity or benevolence or it may be in expectation of a return by way of a favour or reward in future. Besides these
materialistic or human wants, the purpose can also be to obtain religious merit or simply to confer a benefit on the
public at large.

‘Sadaqah’ is a gift primarily with religious motive. It is this specific religious purpose, that makes it different from a
simple gift. Secondly, a simple gift may be revoked under certain specific circumstances, but Sadaqah is
irrevocable. The consent or express acceptance of the donees in a Sadaqah is not a mandatory condition for its
validity.

Delivery of possession is a mandatory requirement for the validity of the Sadaqah and it does not admit of any
exceptions unlike a simple gift, and therefore Sadaqah is not valid if the subject-matter of gift is an undivided share
in the property, that is capable of division. Sadaqah can be made to two or more persons jointly with the incidence
of joint tenancy provided they are poor.
Waqf

In case of an ordinary gift, the donees are mortals or humans. ‘Waqf’ is a permanent dedication of the property to
God, with the intention that the usufruct of the property may be utilised for a religious, pious or charitable purpose.
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CHAPTER 14 GIFTS

The corpus belongs to God and therefore cannot be consumed, it is only the income coming out of the property that
can be used for the desired purposes. In case of Sadaqah, though the predominant motive is religious, the
complete property including the corpus and the income if any, can be used for achieving the desired purpose but
property settled by way of Waqf is in the nature of permanent dedication and therefore is irrevocable.
Ariyat

‘Ariyat’ is a gift of the right to enjoy the usufruct in a specific property for a specific time period and is revocable at
the pleasure of the granter. In fact it is more in the nature of a licence. It is personal in character and is neither
heritable nor transferable. It is revocable and does not confer on the grantee any right in the corpus, but only in the
income coming out of the property or the profits. In case of a simple gift, it is the transfer of property itself with all
incidents of ownership of property that is transferred.

1. Sections 122–126.
2. Ghulam Ahmed Sufi v. Mohammad Sadiq, AIR 1974 J&K 59 .
3. Hafiz Abdul Basit v. Hafiz Ahmed Mian, AIR 1973 Del 280 [LNIND 1972 DEL 224]; Khajooroonissa v. Rowshan Jehan,
(1876) 2 Cal 184; Sadik Hussain v. Hashim Ali, (1916) 43 IA 212.
4. Sultan Miya v. Ajibakhatoon Bibi, (1932) 59 Cal 557.
5. Abdul Hye v. Mir Mohamed, (1868) 10 Cal 616.
6. Hedaya, Hamilton Translation, Gracy London, 1870, p. 482; Baillie, Digest of Moohummudan Law, Part I, 1875, 515.
7. Fyzee, Outlines of Muhammadan Law, 218.
8. Baillie, Digest of Moohummudan Law, Part I, 1875, p. 515.
9. See Kulsumunisssa v. Ahmadi Begum, AIR 1972 All 219 . The case related to succession. See also Imam Sahib v.
Ameer Sahib, 1955 Mad 621 .
10. Kaireem Bi v. Mariam Bi, 1960 Mad 447 ; Faridunnissa v. Mukhtar Ahmed, AIR 1925 PC 204 .
11. Hussaina Bai v. Zohra Bai, AIR 1960 MP 60 [LNIND 1959 MP 24].
12. Raja Bai v. Ismail Ahmed, 7 BHCR 27.
13. See the Transfer of Property Act, 1882, s. 13.
14. Ahmad-ud-din v. Illahi Bakhsh, (1912) 34 All 465; Iqbal v. Controller of Estate Duty, AIR 1964 Guj 452 .
15. Mullick Abdul Gaffoor v. Mulcka, (1884) 10 Cal 112.
16. Mirza Abid v. Munno Bibi, AIR 1927 Oudh 261 .
17. There is a conflict of judicial opinion on whether a gift of a portion of future revenue would be valid or not. Bombay and
Calcutta High Courts held them as void, while Madras High Court in a later case held these gifts to be valid as they are
in the nature of a usufruct. See Amtul Nissa v. Mir Nurudin, (1896) 22 Bom 489; Anwar Reza v. Hachinur Reza, (1944)
1 Cal 680; Duriesh Mohindeen v. State of Madras, 1957 Mad 577 .
18. Yusuf Ali v. Collector of Tipperah, (1882) 9 Cal 138; Chekkone Kutti v. Ahmed, (1886) 10 Mad 196.
19. See Nawazish Ali Khan v. Ali Raza Khan, (1948) 75 IA 62; wherein it was held that a power given to a legatee to
appoint a successor is invalid under Muslim law.
20. MT Khalid v. PM Sainabi, AIR 1981 Ker 230 .
21. Amjad Khan v. Ashraf Khan, AIR 1929 PC 149 .
22. Moqbool Alam v. Khodajia, AIR 1966 SC 1194 [LNIND 1966 SC 37].
23. Mohammad Ayisha Beevi v. Samankatha, (1944) 2 Mad LJ 267.
24. Kalidas Mullick v. Kanhaya Lal Pundit, (1884) 11 Cal 121; Mahomed Buksh v. Hosseni Bibi, (1888) 15 Cal 684.
25. Mahomed Buksh v. Hosseni Bibi, (1888) 15 Cal 684. This case dealt not with adverse possession but of lack of delivery
of possession of undivided share in the property.
26. Fathima Bibi v. Bhavasa Maracair, (1979) 1 MLJ 409 [LNIND 1978 MAD 509]; Tara Prasana v. Shandi Bibi, (1922) 49
Cal 68; Abdul Kabir v. Jamila Khatoon, AIR 1951 AP 315 ; Muhar Bibi v. Maharulla Mondol, (1933) 57 Cal LJ 375.
27. Ismail v. Ramji, (1899) 23 Bom 682.
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CHAPTER 14 GIFTS

28. Tateef Khan v. Abdul Basifh Khan, (1984) Andh WR 72; Sultan Begum v. Ara Begum, (1933) 57 Cal LJ 459; Amjad
Khan v. Ashraf Khan, (1929) 56 IA 213; Mohamed Abdul Ghani v. Fakhr Jahan Begum, (1922) 49 IA 195.
29. State of Uttar Pradesh v. Sayed Abdul Jalil, MANU/SC/0402/1972, decided on 1 Feb., 1972.
30. Sultan Miya v. Ajibakhatoon Bibi, (1932) 59 Cal 557.
31. Azim-un-Nissa v. Dale, (1871) 6 Mad HC 455.
32. Watson & Co. v. Ramichand Dutt, 28 Cal 10.
33. Ratan Lal Bora v. Mohd. Nabiuddin, AIR 1984 AP 344 [LNIND 1984 AP 103], (1984) 2 Andh WR 201. See also
Mahboob Sahab v. Syed Ismail, AIR 1995 SC 1205 [LNIND 1995 SC 404].
34. Hussaina Bai v. Zohara Bai, AIR 1960 MP 60 [LNIND 1959 MP 24].
35. Mohammad Mustafa v. Abu Bakr, MANU/SC/0357/1970, decided on 8 Dec., 1970.
36. Wali Mohd v. Faqir Mohd., AIR 1978 J&K 92 ; Md Hesabuddin v. Md Hesaruddin, AIR 1984 Gau 41 .
37. Ghulam Hussain Kututubuddin Maner v. Abdul Rashid Abdulrajak Maner, MANU /SC/2742/2000, decided on 19 July,
2000.
38. AIR 1928 PC 108 .
39. Ghulam Hussain Kututubuddin Maner v. Abdul Rashid Abdulrajak Maner, MANU/SC/2742/2000, decided on 19 July,
2000; see also Valia Pedikakkandi Kathesa Umma v. Pathakkalan Narayanath Kunhamu, AIR 1964 SC 275 [LNIND
1963 SC 198]; Suna Meah v. SAS Pillai, AIR 1933 Rang 155 .
40. Durr-ul-Mukhtar, Vol. 3, p. 104; Fatwai-I-Alamgiri, Vol. 5, pp. 239–400, quoted in Valia Pedikakkandi Kathesa Umma v.
Pathakkalan Narayanath Kunhamu, AIR 1964 SC 275 [LNIND 1963 SC 198].
41. Ibid.
42. Hedaya, Hamilton’s Translation, Gracy London, 1870, p. 484; Baillie, Digest of Mohammedan Law, 1875, p. 539.
43. Durrul Mukhtar, Vol. 4, p. 512, quoted in Katheesa Umma’s case.
44. Hedaya, Hamilton’s Translation, Gracy London, 1870, p. 484.
45. Saira Bai v. SS Joshi, AIR 1960 MP 260 [LNIND 1960 MP 108]; Abu Khan v. Morian Bibi, (1974) 40 CLT 1306;
Hyatuddin v. Abdul Gani, 1975 Mah LJ 345 [LNIND 1974 BOM 102].
46. Baillie, Digest of Mohammedan Law, 1875, pp. 520–522.
47. Baillie, Digest of Mohammedan Law, 1875, p. 508; Mulla’s Principles of Mahomedan Law, 19th edn., (ed. M.
Hidayatullah and Arshad Hidayatullah), 1990, p. 118.
48. Valia Pedikakkandi Kathesa Umma v. Pathakkalan Narayanath Kunhamu, AIR 1964 SC 275 [LNIND 1963 SC 198].
49. Abu Khan v. Moriam Bibi, (1974) 40 CLT 1306.
50. Atmaram v. Girdhari Lal, 1972 Andh WR 125. See also Muhammad Mumtaz v. Zubaida Jan, (1889) 16 IA 205.
51. Hafiz Abdul Basit v. Hafiz Ahmad Mian, AIR 1973 Del 280 [LNIND 1972 DEL 224].
52. Maqbool Alam v. Khodaija, AIR 1966 SC 1194 [LNIND 1966 SC 37]. See also YS Chen v. Batulbai, AIR 1991 MP 90 .
53. AIR 2010 SC 211 [LNIND 2009 SC 559].
54. Ibid, p. 214.
55. AIR 2001 Guj 175 [LNIND 2000 GUJ 273]. See also Noorbibi v. Ayesha Bibi, AIR 1999 Guj 27 [LNIND 1998 GUJ
153].
56. Noohu Pathummal v. Ummathu Amma, 1980 Mad 66 ; Emnabai v. Aajirabai, (1888) 13 Bom 352.
57. Mohammad Sadiq v. Fakhr Jahan, AIR 1932 PC 13 .
58. Amina Bibi v. Khatiji Bibi, (1864) 1 Bom HC 157.
59. Ma Mi v. Kallander Ammal, AIR 1927 PC 22 ; Mohammad Sadiq v. Fakhr Jahan, AIR 1932 PC 13 .
60. Katheesa Umma v. N. Kunhamu, AIR 1964 SC 275 [LNIND 1963 SC 198].
61. Ibid., para 11.
62. Baillie, Digest of Mohammedan Law, 1875, p. 538; Kadderanbi v. Fatimabi, AIR 1981 Bom 406 [LNIND 1980 BOM
155]; Abdul Sattar v. Abu Bakkar, AIR 1977 Cal 132 [LNIND 1976 CAL 249]; Ameeroonissa v. Abodonissa, (1875) 15
Beng LR 67; Mohammad Sadiq v. Fakhr Jahan, AIR 1932 PC 13 . See also Khaliq Bux v. Mahabir Prasad, AIR 1931
 Page 19 of 21
CHAPTER 14 GIFTS

Oudh 19 ; Munni Bai v. Abdul Gani, AIR 1959 MP 225 [LNIND 1958 MP 11]; Sultan Miya v. Ajiba Khaton Bibi, AIR
1932 Cal 497 .
63. Kadderanbi v. Fatimabi, AIR 1981 Bom 406 [LNIND 1980 BOM 155].
64. Sugrabai v. Mahomedali, (1934) 36 Bom LR 1151.
65. Musa Miya v. Kadar Bux, AIR 1928 PC 108 .
66. Ibid.
67. SN Usman Ali v. OBV Kubendra Bai, 1973 Mad 280 .
68. Katheesa Umma v. P. Narayanath, AIR 1964 SC 273 .
69. Muni Bai v. Abdul Gani, AIR 1959 MP 225 [LNIND 1958 MP 11]; Assan Kutty v. Mohd Kurikkal, 1961 Ker LT 959.
70. Abdul Sattar Ostagar v. Abu Bakkar Ostagar, AIR 1977 Cal 132 [LNIND 1976 CAL 249]; Ayeeshee Biwi v. Mohammad
Alim, 1964 Mad 309 ; Shaikh Ibrahim v. Shaikh Suleman, (1884) 9 Bom 146.
71. SMS Saleem Hashmi v. Syed Abdul Fateh, AIR 1972 Pat 279 ; Ibrahim Biwi v. KMM Pakkir Rowther, 1970 Mad 17 .
72. Baldeo Prasad Balgovind v. Shubratan, (1936) All LJ 590.
73. Ibrahim Haji Musa v. Sugra Bibi, (1978) 19 GLR 1136.
74. Abdul Razak v. Zainabi, 1933 Mad 86 .
75. Hurema Bibi v. Najm-un-nissa, (1905) 28 All 17.
76. Takkadi Syed Mohamed v. Ahmed Fathummal, 1973 Mad 302 .
77. Qamar-ud-din v. Hassan Jan, AIR 1935 Lah 795 .
78. Musa Miya v. Kadar Bux, AIR 1928 PC 108 .
79. Qamar-ud-din v. Hassan Jan, AIR 1935 Lah 795 .
80. Hussaina Bai v. Zohra Bai, AIR 1960 MP 60 [LNIND 1959 MP 24]; Maithee Bibi Umma v. Ithappiri Varkey, AIR 1956
Tr&Coch 292 .
81. Abdul Sattar v. Additional District Judge, 1978 All LJ 543.
82. Ram Niwas Todi v. Bibi Jabrunnissa, MANU/SC/1274/1996 decided on 6 Aug., 1996.
83. Illahi Shamsuddin Nadaf v. Jalunbi Makbul Nadaf, MANU/SC/0812/1994, decided on 14 July, 1994.
84. Gulam Hussain Kutubuddin Maner v. Abdul Rashid Abdulrajak Maner, MANU/ SC/2742/2000, decided on 19 July,
2000.
85. Abdul Hamid v. M. Abdul Ghani, AIR 1934 Oudh 163 ; Karam Ilahi v. Sharf-ud-din, (1916) 38 All 212.
86. See the Indian Registration Act, 1908, s. 17(a); Abdul Rahman v. Gaya Prasad, AIR 1929 Oudh 435 ; Nasib Ali v.
Wajed Ali, AIR 1927 Cal 197 ; Mohammad Hesabuddin v. Mohammad Hesaruddin, AIR 1984 Gau 41 .
87. Mohammad Azim v. Saadat Ali, AIR 1931 Oudh 177 ; Mohammad Sadiq v. Fakr Jahan, AIR 1932 PC 13 .
88. See the Transfer of Property Act, 1882, s. 123.
89. Chhota Uddandu Sahib v. Masthan Bi, AIR 1975 AP 271 [LNIND 1974 AP 202].
90. AMK Mariam Bibi v. MA Abdul Rahim, AIR 2000 NOC 21 (Mad).
91. Fatmabibi v. Abdul Rehman Abdul Karim, AIR 2001 Guj 175 [LNIND 2000 GUJ 273].
92 Faridsaheb Husseinsaheb Sharikmaslat v. Ahmedsaheb Husseinsaheb Sharikmaslat, AIR 2010 Bom 100 [LNIND
2010 BOM 319]; see also Gulam Ahmad Safi v. Mohd Sidiq Dareel, AIR 1974 J&K 59 ; Imbichimoideenkutty v.
Pathumunni Umma, AIR 1989 Ker 148 [LNIND 1988 KER 60].
93 Aqil Ahmad, Mohammadan Law, 17th edn., (ed. IA Khan) 1995, p. 179; Mulla’s Principles of Mahomedan Law, 19th
edn. (ed. M. Hidayatullah and A. Hidayatullah), 1990, p. 128.
94 Kasim Husain v. Sharif-un-Nissa, (1883) 5 All 285.
95 Ala Baksa v. Mahabat Ali, AIR 1935 Cal 739 .
96 Fayyaz-ud-din v. Kutab-ud-din, AIR 1929 Lah 309 .
97 Baillie, Digest of Moohummedan Law, Part II, 1869, p. 204.
98 (1888) ILR 15 Cal 689 (PC).
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99 Aftab Hussain v. Tayebba Begum, AIR 1973 All 54 ; see also Said Hasan v. Shah Hasan, AIR 1947 Lah 272 .
100 Ameerroonnissa v. Abadoonnissa, (1875) 15 Bom LR 67; Kairam Bi v. Mariam Bi, 1960 Mad 447 ; Aziz v. Sona Mir,
AIR 1962 J&K 4 .
101 Ismail v. Idrish, AIR 1974 Pat 54 .
102 Natho v. Hadayat Begum, AIR 1949 Lah 238, wherein a gift of one-third share in a house in Rangoon was effected
validly.
103 Ibrahim Goolam Arif v. Saiboo, (1907) 35 Cal 1.
104 AIR 1976 Bom 23 [LNIND 1974 BOM 102].
105 AIR 1936 All 473 .
106 Ebrahim Alibhai v. Bai Asi, AIR 1934 Bom 21 ; Asan Kutty v. Mohammad Kuri Kal, 1961 Ker LT 959; Mohammad Yusuf
v. Hasina Yusuf, AIR 1948 Bom 61 ; Kaniz Fatima v. Jai Narain, AIR 1944 Pat 334 ; Azizi v. Sona Mir, AIR 1962 J&K 4
; Kalu Beg v. Gulzarbeg, AIR 1946 Nag 375 .
107 Baillie, Digest of Moohummedan Law, Part II, 1869, p. 205.
108 Wahibunnisa v. Mushaj Hussain, AIR 1927 Oudh 328 ; however see also Nawozish Ali Khan v. Ali Raza Khan, AIR
1948 PC 134, which indicates that this condition of survivorship would be void.
109 Sadik Hussain v. Hashim Ali, (1916) 43 IA 212; Ashraf Ali v. Mahomed Ali, AIR 1947 Bom 122 ; Cassamally v.
Currimbhoy, (1911) 36 Bom 214.
110 Mohammed Ibrahim v. Abdul Latif, (1913) 37 Bom 447; Abdul Gafur v. Nizamuddin, (1892) 17 Bom 1; Ma Hmyin v.
Chettyar, AIR 1935 Rang 318 .
111 Jameela Beeviu v. Sheik Ismail, 1979 Mad 193 .
112 Hazara Bai v. Mohamed Adam Sait, (1977) 1 MJL 291. See also Mundayat Vedake v. Chiru Kandan, 1971 KLJ 796; M.
Ali v. State of Uttar Pradesh, (1975) 2 SCWR 511.
113 Even among the Shafe’ is, (of Sunni sect) the gift of a life estate is valid. See Mohammed Ibrahim v. Abdul Latif, (1913)
37 Bom 447.
114 Siraj Husain v. Mustaf Hussain, (1921) OC 321; Bano Begum v. Mir Abed Ali, (1908) 32 Bom 172. See also Nisar Ali
Khan v. Mahomed Ali Khan, AIR 1932 PC 172 .
115 Mohammed v. Fakhr Jahan, AIR 1922 PC 281 ; Nawab Umjad Ally v. Mohumdee Begum, (1867) 11 MIA 517; Lali Jan
v. Muhammad, (1912) 34 All 478; Zohara Khatun v. Mahaboob Bi, 1943 Mad 677 ; Anjumanara Begum v. Asif Kadar,
(1955) 2 Cal 109; Tavakalbhai v. Imtiyaj Begam, (1916) 41 Bom 372.
116 See C. Duriesh Mohideen v. State of Madras, 1957 Mad 577 .
117 See ‘Revocation of gifts’, infra.
118 Sarifuddin v. Mohiuddin, AIR 1927 Cal 808 .
119 Krishna Behari v. Ahmadi, AIR 1935 Oudh 432 .
120 Bashiran v. Mohammad Hussain, AIR 1941 Oudh 284 ; Khairunnissa v. Karamtulla, AIR 1933 Oudh 99 .
121 Mehdi Hasan v. Muhammad Hasan, (1906) 28 All 439; Mohan Lal v. Mahmud, AIR 1922 All 347 ; Muhammad Faiz v.
Ghulam Ahmad, (1881) 3 All 490.
122 Tajunnissa Bibi v. Rahmath Bibi, 1959 Mad 630 ; Ismail Beevi v. Sulaikkal Beevi, 1967 Mad 630 .
123 Mohammad Esuph v. Pattamsa Ammal, (1889) 23 Mad 70.
124 AIR 1927 Cal 808 .
125 Mohammad Faiz v. Ghulam Ahmad, (1881) 3 All 490.
126 Mahabir Prasad v. Mustafa Hussain, AIR 1937 PC 174 ; Ghulam Abbas v. Razia Begum, AIR 1951 All 86 [LNIND 1950
ALL 300]; Mohammad Hashim v. Amina Bai, AIR 1952 Hyd 3 .
127 Gopal Das v. Sakina Bibi, AIR 1936 Lah 307 ; Ghulam Abbas v. Razia Begum, AIR 1951 All 86 [LNIND 1950 ALL 300];
Mohammad Usman v. Amir Mian, AIR 1949 Pat 237 ; Saburannessa v. Sabdu Shaikh, AIR 1934 Cal 693 .
128 Khajooroonissa v. Rowshan Jahan, (1876) 2 Cal 184.
129 Abbas Ali v. Karam Baskh, (1909) 13 CWN 160.
130 Mahmood Khan v. Abdul Rahim, AIR 1964 Raj 250 [LNIND 1964 RAJ 66].
131 Maqbool v. Ghafur-un-nissa, (1914) 36 All 333.
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132 Mulani v. Maula Baksh, AIR 1924 All 307 .

133 See infra under ‘Sadaqah’.
134 Abu Khan v. Mariam Bibi, (1974) 40 CLT 1306.
135 Karim Bi v. Mariam Bi, 1960 Mad 447 ; Masoon Sab v. Madan, (1973) 1 APLJ 97.

End of Document