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

Q.11.4 What is the classical requirement of Muslim Law regarding the handing over of the property gifted ? Ans. The classical requirement is that the donor should physically depart from the premises with all his goods and chattels and the donee should formally enter into possession. (Vide Macnaghten - page 231). The donor must completely divest himself of the ownership. (Vide Ismail Rawther v. Kunju Rawther 1964 (1) KLR 326 (DB) - T. K. Joseph, T. C. Raghavan - JJ.) Q.11.5 Are there exceptions to the above classical requirement of Muslim Gifts regarding delivery of possessions of the subject-matter of gift and what are they ? Ans. Yes. There are exceptions to the classical requirement of Muslim Law. The following are those exceptions:- Where the donor and donee are residing together in the gifted property. Where the donor and donee are both residing in the property which is the subject matter of gift. In such cases no physical departure by the donor or formal entry by the donee is necessary to complete the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. (Vide – Mulla Para.152(3); Dr. Tahir Mohammed page 203 point No. 9;Shaik Ibrahim v. Shaik Suleman (1884) 9 Bom. 146 - West, N Haridas - JJ; Abdul Majidkhan v. Husseinbu (1920) 22 Bom. L.R. 229; Jamil - un - nissa v. Mohammad Zia AIR 1937 All. 547 ;Mt. Naurozi v. Najaf Ali Shah AIR 1939 Pat. 321 – James - J; Mst. Azizi v. Sona AIR 1962 J & K 4 - S Bashir-Ud-Din - JJ; Ashia Ummal v. Vasanthi 1964 KLT 844 (DB) – T. K. Joseph, T. C. Raghavan - JJ;Ayeeshee Bivi v. Mohd. Alim AIR 1964 Mad. 309 (donor – donee living together) – Veeraswami - J; C.T.D.A. Pathumma v. Pokku AIR 1998 Ker. 134 – T. V. Ramakrishnan, K. S. Radhakrishnan - JJ).Abdul Razak Saheb v. Zainab Bi, AIR 1933 Mad. 86 – Madhavan Nair - J;Shaik Ibrahim v. Shaik Suleman, (1885) ILR 9 Bombay 146 - West, N Haridas - JJ; Humera Bibi v. Najm-un-Nissa Bibi, (1906) 28 Allahabad 147 – Stanley - CJ; Ma Mi and Another v. Kallander Ammal, AIR 1927 PC 22 - Atkinson, Carson, J Wallis - JJ; Baldeo Prasad Balgovind v. Shubbratan, 1936 Allahabad L J 590 ; Kandath Veettil Bava v. Musaliam Veettil Pakrukutty and Others, (1907) 30 Madras 305;Maitheen Beevi Umma v. Ithappiri Varkey, 1956 KLT 444 - Varadharaja Iyengar - J;Rahmat Ali v. Mt. Daulat, AIR 1925 Lahore 501; AbduI Razak Saib v. Zainab Bi, 1932 Mad. WN 1178 – Madhavan Nair - J).Umma v. Varkey 1956 KLT 444 = AIR 1956 TC 268 (DB) - Koshy- C.J, Iyengar – J). In all the above cases it has been held that the mere fact that the donor continues to reside with the donee will not constitute non delivery of possession so as to invalidate the gift. Humera Bibi v. Najm - un - nissa (1906) 28 All. 147 (aunt to nephew both residing together); Bibi Khaver v. Bibi Rukhia (1905) 29 Bom. 468 (gift to daughter-in-law and her children); Kandath v. Musalium (1907) 30 Mad. 305 (Mother to daughter). Even where the donee reside with the donor in the gifted property, if there is a stipulation in the deed that the donor and donee shall be in joint possession, it will not satisfy the requirement of delivery of possession. (Vide Pichakkannu v. Aliyarkunju 1963 KLT 226 - Velu Pillai – J)Where the gift is by a father or by a guardian to a minor. Where the gift is by a father or guardian in favour of minors, no transfer of possession is necessary to the donee. (See – Ahmedkutty v. Ismalu, 1981 KLT 918 – Chandrashekhara Menon - J, Valia Peedikakkandi Katheesa Umma and Others v. Pathakkalan Narayanath Kunhamu, AIR 1964 SC 275 – M. Hidayatullah – J and The Official Receiver, Kozhikode v. T. Moideen Koya and Others, 1969 KLR 508 - Sadasivan - J;G. Abdul Rahim Sahib v. Zeenath Bi and Others, AIR 1963 Mad. 186 – Ramakrishnan - J.Paragraph 155 of Mulla's Principles of Mohammedan Law reads as follows: “155. Gift to a minor by father or other guardian. -- No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give.” In Muhammed Sadiq Ali Khan v. Fakr Juhan Beegmn, AIR 1932 PC 13, following an earlier decision of the Privy Council in Ameeroonissa Khatoon v. Abedoonissa Khatoon - 2 Indian Appeals 87 - the Privy Council observed as follows: “In the case of a gift by a Mohammedan father to his infant child no transfer of possession is required; it is only necessary to establish a bona fide intention to give.” Where there is on the part of a father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of possession, and...

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

Justice V Ramkumar

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