Gift and its importance in Islamic law
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. Extent of doner's power:
A person under Islamic law may dispose of his whole property in favor of a stranger or to any heirs.
7. Persons in whose favor Hiba or gift can be made:
A Hiba can lawfully be made in favor of any of the following.
- Natural persons.
- Artificial persons.
- Heirs
- Insane persons
- Any person
8. Persons in whose favor Hiba or gift cannot be made:
Hiba or gift cannot be made in favor of the following.
- Unborn child.
- Dead person.
Exception:
A widow can make Hiba of her dower in favor of her deceased husband.
9. Essentials of a valid gift:
- The subject of a gift must belong to the doner.
- The subject of a gift must be in existence.
- Doner must make by his free will.
- Acceptance by donee.
- Delivery of possession of the subject matter.
10. Three conditions for the validity of a gift:
The following are the three conditions for the validity of a gift.
I. Declaration:
There should be a declaration of a gift by the donor.
II. Acceptance:
There should be an acceptance of the gift, express or implied by or on behalf of the donee.
III. Delivery:
There should be delivery of possession of the gift subject by the donor to the donee.
11. Fift of Mushaa:
A valid gift may be made of an undivided share in property either moveable or immovable.
Mushaa
Mushaa is an undivided share of the property.
12. Registration of gift:
Registration of the deed of the gift does not cure the want of delivery of possession. it is evidence of the execution.
13. Cases where transfer of possession of gift is not necessary:
Following are the cases when the transfer of possession of gift property is not necessary.
- No transfer of possession is required when the father gifts his property to his minor child.
- No transfer is required when the guardian gifts to his ward.
- Where the gift is already in the possession of donee.
- Where the property is not rented or leased and by transfer of title deed of such property.
14. Revocation of gift:
The gift can be revoked by the donor in the following way.
I. Before delivery of the possession:
A gift may be revoked by the doner at any time before delivery of the possession because before delivery there is no gift at all.
II. After delivery of the possession:
A donor can even after the delivery of the possession of the property revoke the gift.
The following’s ways can revoke it.
(i) With the mutual consent of the parties.
(ii) By a decree of the competent court.
15. Circumstances when a gift cannot be revoked:
Under the following circumstances, the gift cannot be revoked.
- Death of the donor.
- Death of the donee.
- Where a gift is made to a person related to the donor within a prohibited degree.
- Gift between spouse.
- Increase in value of the gift.
- Destruction of the subject matter of the gift.
- Destruction of the identity of the gift.
- Where the donor has received consideration for the gift.
- Where the purpose of the gift is Sadqa.
16. 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 donor to transfer the possession to the doner for a valid gift if can be revoked by the donor.