The unconditional transfer of certain property without consideration is known as a gift. The concept of gift is different in India based on the personal law of the person. Except for Muslim all the person in India are governed by the Transfer of Property Act, 1882 (TPA) and Muslims have different somewhat concept when it comes to gift. In Muslim law, the gift is also known as Hiba.
- TPA, 1882
Section 122 defines gift which is the transfer of movable or immovable property by the donor to donee is known as a gift. The essentials are:-
- absence of consideration
- the parties i.e. donor and done
- subject-matter of transfer
under section 123 it can be done by a registered instrument signed by two witnesses and movable property can be transferred by simple the delivery of possession. the gift can be revoked under section 126 by the donor at any time and must be agreed upon by them. Section 127 talks about onerous gift and the done have to take the gift as a whole he/she cannot take the benefit and leave the liability; such conditions are prohibited and the donee has to take as a whole gift. The gift should be existing property and not of future property and through gift a person cannot create life-intertest and such gifts are void. Under section 129 death bed gift can be made but only of movable property and if persons cure from illness it gets revoked.
- Under Muslim Law-
The gift can be made inter-vivos of the whole property during the lifetime of a person whether movable or immovable. Essentials: –
- parties i.e. donor and done
- Subject matter – movable or immovable.
- declaration by donor
- acceptance by done
- immediate delivery of possession.
One of the most important differences in Muslim is that there is immediate delivery of possession to the done and if done is minor or unsound person then to his guardian.
The donor must be of 18 years of age and have a sound mind. A gift to an unborn person can be made only when the person is in the womb and born alive. Gift with contingency, to a dead person and gift in future, are void and cannot be given.
However, the gift with the condition if given then under Sunni law he/she can take it validly and any condition imposed is considered as void when the gift is given absolutely of the corpus but not of usufruct.
Musha or irregular gift can be made and it is under two condition – a. when the property is indivisible then it can be validly made and can, later on, separate it or do whatever it wants and, b. when it of divisible nature for the joint property then it should be given after division otherwise it will be an invalid gift.
Gift can be revoked by the done before the transfer of possession and after that, if both donor and done agree then can be revoked. The last resort is through court only it can be revoked.
In Muslim law gift can be made in return for consideration also which is known as Hiba-bil-iwaz and consideration can be anything decided upon between the parties to the gift.
The gift in deathbed is also recognised under Muslim law which is a combination of gift and will all the condition of gift must be satisfied and also only 1/3rd immovable property is only given. If the person recovers then also it cannot be revoked under Shai law but can be revoked under Sunni if heirs do not consent to it.