GIFTS
What is a Gift?“A Gift is transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person called the donor, to another called the done, and accepted by or on behalf of the done”
Such acceptance must be made;
• During the lifetime of the donor
• While he is still capable of giving
If the done dies before acceptance, the gift is void.
A gift made in death-illness would be governed by law of Will.
What can be Gifted?
A gift may be made of anything over which right of property may be exercised or anything which can be reduced into possession or may be exercised as an enforceable right.
Essential qualifications of subject matter of Gift
• It must exist at the time the gift is made of anything which is to be produced in future is void.
• The donor must possess and down it. If it is not owned and possessed by the donor it cannot be gifted.
Parties to a Gift
The Donor must
• Be of the age of majority
• Be of sound mind
• Have the requisite freedom
• Have ownership of the subject matter of the disposition
The Donee:
Must be in existence at the time of gift. It includes child in a womb.
Can be any person without distinction of gender, age creed or religious faith.
Can be non-Muslim
Can be a mosque or place of religious practice as the same is a juristic person
Pre-requisites of a valid Gift
• The Donor must be an adult and sound mind and free agent.
• The subject of the gift must belong to the donor and must be in existence at the time of the gift.
• Done must be in existence at the time of the gift (including a child in womb).
Essentials of a valid Gift
• A declaration of gift by the donor
• An acceptance of gift, express or implied, by or on behalf of the done
• Delivery of possession of the donor, actual or constructive, of the subject of the gift by the donor to the donee.
Possession-fundamental element of Gifts under the Mohammedan Law
Immovable Property
• In the possession of the donor: for completion of gift requires actual physical possession
• In occupation of tenants: for completion of gift by delivery of title deeds or by requesting tenant to have all subsequent dealings with the donee.
Move able Property
• For completion of gift actual physical delivery is essential
Money
• For completion of gift actual delivery either by cash or pay order. Entry in books of accounts that’s money has been paid to donee is insufficient.
Possession
• Can be actual or constructive
• When donee is minor or a lunatic, the guardian of property of such minor or lunatic must take possession of the subject of the gift.
• There is no need for actual delivery of possession when is by parents to children or by spouses to each other.
Constructive possession shall suffice.
Is there a prescribed form for Gifts?
• There is no Mohammedan rule that a gift must be in writing.
• Oral gifts are equally.
• Oral gifts are not vitiated because of absence of a registered instrument signed by the donor and attested by at least two witnesses.
• It is advisable and strongly recommended that gift of immovable property be effected through a registered document duly registered under the Registration Act, 1908.
• If a donor imposes any condition or restriction inconsistent with full ownership, the gift is valid but the condition is invalid.
When can a gift be revoked?
• Before delivery of possession, a gift is not complete and can be easily revoked.
