Gift deed in muslim law
Mohamed Ali
(Querist) 10 October 2013
This query is : Resolved
Our grandmother XYZ is inheriting some property from her mother ABC, She is entitle for 1/3 rd share in her mothers property which amounts to 19 Acres, But the issue here is the property in question is still in pendency in Final decree proceedings.which was decreed in 1960 in which our great grandmother is entitle for 1/17th share, further in 1/17th share our grandmother XYZ is entitle for 1/3 rd share which amounts to 6.55 acres of land.
Grandmother XYZ had 2 sons, and She wants to divide this undivided 6.55 Acres of property among uncle and orphaned grand children euqally.
In meanwhile her eldest is expired recently, now She wants to make a will /Gift deed that properties inherited by her which are Still pending in Suit No FDP /123.. must be equally divided among her surviving son and her grandchildrens.
The question here is the properties are not yet in physical possession of our grandmother,
Question: Can the undivided properties can be gifted as there is no physical possession of properties they are still in dispute only we know that our grand mother will get 6.55 acres out of 19 Acres of land which has to be eually divided i.e 3.275 acres to Uncle and 3.275 acres to oprhaned grandchildren. In what way it can be done. Can grandmother gift half of the property to orphaned grandchildren if there is no objection from uncle...
Thanks and Regards
Ali
Raj Kumar Makkad
(Expert) 10 October 2013
There is no legal problem to make registered gift deed even for those properties which still are not in the possession of the testator but in the given case the real problem is that a Muslim cannot make will for more than 1/3 share of the property as per Muslim law and as such the remaining 2/3 shall have to be divided as per Muslim law of inheritance.
Ms.Nirmala P.Rao
(Expert) 10 October 2013
Under Muslim law gift or Hiba is not complete without handing over possession. Hence, without the completion of delivery of possession of the gifted property to the donee it's not a valid gift under Muslim Law.
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Rajendra K Goyal
(Expert) 11 October 2013
Well advised by the experts, nothing more to add.
Raj Kumar Makkad
(Expert) 11 October 2013
Under Hanafi law, the undivisible property without actual possession do permit the gift in Muslims.
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http://books.google.co.in/books?id=hovn_tcB5XkC&pg=PA229&lpg=PA229&dq=whether+gift+under+Muslim+law+without+actual+possession+of+the+property+is+valid+or+not?&source=bl&ots=tLItO8xrCZ&sig=CYdpsIiTWlS4OnRe7MA6LsmcY9o&hl=en&sa=X&ei=sRZYUoDwCcOLrQfkt4HQCg&ved=0CC0Q6AEwAA#v=onepage&q=whether%20gift%20under%20Muslim%20law%20without%20actual%20possession%20of%20the%20property%20is%20valid%20or%20not%3F&f=false