Basic concept of gift under muslim law
"(1) a declaration of gift by the donor
(2) an acceptance of the gift, express or implied, by or on behalf of the donee, and
(3) delivery of possession of the subject of the gift by the donor to the donee."
"One of the essential ingredients of a gift is voluntary transfer of a property by one person in favour of another without any consideration. A dower debt being a debt payable by husband to his wife, a gift in lieu of dower debt cannot be held to be valid, inasmuch as, repayment of a dower debt being a consideration, no property can be transferred by way of a gift in lieu thereof"In another decision reported in MANU/TN/0159/1974 : AIR 1974 Madras 54 (V 61 C 19) in the case of Amina Bi and others V. Khamurunnissa, it is held as follows:--
7. The learned counsel for the appellants, however, contends that the oral gift as stated in Ex. A-2 is inadmissible in evidence. Section 129 of the Transfer of Property Act saves Mohammedan gifts from the application of the provisions of Chapter VII of the Transfer of Property Act. The result is that the oral gift made by Mahommed Jaffar in favour of his wife Fathima Bi in lieu of her dower debt is valid."
"(1) A hiba, pure and simple;
(2) A hiba-bil-ewaz (a grant or gift for a consideration) which is more in the nature of an exchange than a gift; and
(3) A hiba ba-shart-ul-ewaz, or a grant made on the condition that the donee or transferee should pay to the donor at some future time or periodically some determinate thing in return for the grant." (Syed Ameer Ali's Mahommedan Law, Vol. I, p. 34, 4th Edn., 1912).
12. Syed Ameer Ali, in his commentary on Mahommedan Law, at p. 40, has amplified the definition in these terms:
"In other words a hiba is a voluntary gift without consideration of property or the substance of a thing by one person to another so as constitute the donee, the proprietor of the subject-matter of the gift. It requires for its validity three conditions: (a) a manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly; and (e) the taking possession of the subject matter of the gift by the donee either actually or constructively."13. Admittedly, the transfer in the presents case was made bil-ewaz-den-mehr (in lieu of dower); consequently, it cannot be regarded as a voluntary gift without consideration, such as has been defined above. It has, however, been argued on behalf of the plaintiff-respondent that the transfer is a combination of gifts, viz., a gift of immoveable property by the husband in favour of his wife and another gift of dower-debt by the wife to the husband, either of which could be made orally.
14. It is, however, not possible to treat the transaction as a combination of gifts. Obviously, it was a single transaction-a transfer of property by the husband in favour of the wife in consideration of the latter relinquishing an ascertained amount-Rs. 2500 to be exact - out of the amount of dower-debt due to her. As owner of the property, the husband was entitled to transfer, and admittedly transferred, the same to his wife. Such a transfer in whole or in part satisfaction of a debt is recognised by law and is not uncommon. The transfer as well as the liquidation of dower debt to the extent of Rs. 2,500 took place simultaneously in one and the same transaction; the two things were so interconnected that one could not stand without the other. Consequently, the argument that the husband made a gift of property and the wife made a gift of a portion of dower-debt is unsound. The transfer in question is, therefore, not a combination of gifts.
15. Under the Mahommedan Law, writing is not essential to the validity of a gift, either of movable property or of immovable property, which is complete and valid on proof of a declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession over the subject of the gift by the donor to the donee; but whether a gift for considerations (hiba-bil-ewaz) can be made orally depends upon the answer to the question whether it does or does not amount to a sale, as defined in Section 54, T P. Act.
16. The transfer in the present case not being a hiba or gift pure and simple or a combination of such gifts, it has to be determined whether it is a hiba-bil-ewaz, a grant or gift for consideration, recognised by the Mahommedan Law, and also whether it amounts to a "sale" within the meaning of the term as defined in Section 54, T P. Act. Syed Ameer Ali has, in his commentary on Mahommedan Law, at p. 158, thus explained ewaz or consideration and the hiba-bil-ewaz or gifts for consideration in the earlier and modern times:
"According to the original conception, which in itself was a development of the earlier rules, 'ewaz' or consideration was of two kinds; one which was subsequent to the contract (of gift), the other which was conditioned in it. (Fatwai Alamgiri, Vol. 4, p. 549). In other words, in the first case the consideration was delivered to the donor after his gift, and the transaction was treated as a case of mutual gift. There was no stipulation regarding the giving of ewaz, but the moment it was received by the donor his right of revocation dropped.
This evidently was the earliest form of a gift for a consideration. The hiba-bil-ewaz of later times is clearly a development of this kind of gift.
In the other kind, the consideration was expressly stipulated in the contract, and when once it was received the transaction acquired the legal character of a sale. The modern hiba-ba-shart-ul-ewaz has unquestionably sprung from the above."
"In all these cases the consideration is not a part of the contract. And the rules stated above do not, therefore, apply to what in modem times is called a hiba-bil-ewaz, which is a transaction of quite a different nature, and partakes to a certain extent of the second kind of ewaz mentioned in the Fatwai Alamgiri, viz., where it is stipulated in the contract. In this kind of hiba-bil-ewaz the consideration directly opposed to the object of the gift both being in essence; there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction. A hiba-bil-ewaz, therefore, is a sale in all its legal incidents. In sale, mutual seisin is not requisite to render the contract valid and the terms in which a contract of this kind is entered into imply, 'that the articles opposed to each other are present,' and that there is no danger of either party suffering from the other's fraud. 'I have given you this for that' implies that the consideration is present, and that the person will take care to receive it before parting with his property, and the law therefore annexes to it the quality of a sale both with regard to the condition and the effect."
""Hiba-bil-ewaz" means, literraly, gift for an exchange and it is of two kinds, according as the ewaz or exchange, or not, stipulated for at the time of the gift. In both kinds there are two distinct acts; first, the original gift, and second, the ewaz or exchange. But in the Hiba-bil-ewaz of India, there is only one act, i.e., ewaz, or exchange, being involved in the contract of gift as it is a direct consideration. The transaction which goes by the name of Hiba-bil-ewaz in India is, therefore, in reality not a proper Hiba-bil-ewaz of either kind, but a sale; and has all the incidence of a consequence. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and what is of great importance in India, an undivided share in property capable of division may be lawfully transferred by it, thought that cannot be done by either of the forms of the true Hiba-bil-ewaz. Hibas or gift under the Mohammadan Law is transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter."
"122. "Gift" defined. "Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void."
Respondent: Jameela Begum and Ors.