18 December 2015
Under Muhammadan Law, a share in the estate of the testator can be transferred by way of a gift (Section 149).
The three (3) essentials of a gift (“hiba“) are:
(a) there should be a declaration of a gift by the donor;
(b) an acceptance of the gift, express or implied, by or on behalf of the donee; and
(c) delivery of possession of the subject of the gift by the donor to the donee (Section 150).
If these conditions are complied with, the gift is complete.
1. The Donor
Any person, who can execute a contract, can make a gift of his property in Islam.
Like the requirements of contract, the conditions to be able to make a gift are that, the donor should be: (a) at the age of majority, (b) of sound mind; (c) by his own free will and without any pressure or coercion to make the gift; and (d) the absolute owner of the property to be gifted.
The declaration, to make a gift, by the donor must be clear and unambiguous and reflect the absolute intention of the donor to gift his property.
A gift by a married woman is valid and is subjected to same legal rules as mentioned above.
A gift by an insolvent person is also valid provided that it is bona fide and not with the intention to defraud the creditors.
2. The Donee
The one who can receives or accepts the gift is known as the donee.
Acceptance may be made expressly or implied by conduct. Any person can receive a gift if he or she is in existence at the time of the gift.
A gift to an unborn child is invalid, unless such child is born within six (6) months of the date of gift. In such case the gift to the unborn child will be valid as it was made on the presumption that the child was actually alive and existing in the womb of the mother.
In the case of a minor, possession of the gift is given to the legal guardian of the minor.
A lawful gift can also be made to non-muslim, so long as the Donee is in existence at the time of giving the gift.
The most important component of a gift is “acceptance” and “delivery”. A gift is void is acceptance has not been given by the Donee. A gift is also invalid if the possession of the property has not passed to the Donee so that the Donee reaps the benefit of the property. If the Donor is still enjoying the benefits of the property then such gift is invalid.
A gift that does not take effect immediately is of no effect whatsoever.
Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.
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