Difference between Gift and Will
1. Introduction:
A gift is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of another. A Muhmmadan may dispose of his whole property. the person who makes the gift is called the donor and to whom the gift is made is called donee.
2. Meaning:
Gift or Hiba means a donation of a thing from which the donee may get the benefit.
3. Definition of gift:
Hedaya:
A Hiba is a transfer of Tangible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.
4. Kinds of gift:
Following are the kinds of gifts.
- Hiba
- Hiba bil iwaz.
- Habi-be-Shart ul iwaz.
- A Sadaqah
- Areet.
5. Persons who can make gifts:
Every Muslim of sound mind and age of majority is entitled to make a gift.
Disqualifications:
- Minor
- Unsound mind.
6. Difference between gift and will:
I. As to limitation:
In will the right of making a will is limited in two ways.
In gift the right of donor to gift is unrestricted.
II. As to acceptance:
In-will acceptance by the legatee is not necessary.
In gift acceptance by the legatee is necessary.
III. As to delivery of possession:
Delivery of possession is not required in the will.
In a gift, there must be delivery of the possession of the property to the donee.
IV. As to the doctrine of mushaa:
The doctrine of Mushaa has no application in the case of will.
The doctrine of Mushaa is applicable in the case of gifts.
V. As to the existence of the subject matter:
It is not necessary that the subject matter of the will must exist at the time of making will.
The subject of a gift must be in existence at the time of making a gift.
VI. As to registration:
Registration of will is optional.
The gift must be registered under the Registration Act.
VII. As to completion:
Will is executed after the death of the testator.
Gift is completed during the lifetime of the donor.
VIII. As to condition:
Will is dependent upon a condition i.e. the death of the testator.
The gift is operated immediately.
IX. As to consideration:
A will is always without consideration.
In some cases, there is a consideration in a gift.
X. As to revocation:
Will can be revoked at any time before the death of the testator.
The gift after the delivery of the possession is usually irrevocable.
XI. As to insanity:
The subsequent insanity of the testator makes the will void.
Gift after the delivery of the possession is irrevocable on the grounds of insanity.
7. Conclusion:
To conclude I can say that, a gift is a contract consisting of a proposal or offer on the part of the donor to give a thing and acceptance of it by the donee. so it is a transfer of property immediately and without any exchange. there must be a clear intention by the doner to transfer the possession to the doner for a valid gift if can be revoked by the doner.
Ikyan Shah (Advocate High Court)
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Muslim Personal Law