Definition of Gift and its Essentials:
Definition of Gift is that it is a transfer of property made immediately and without any exchange or consideration, by one person to another (Donor) and accepted by or on behalf of the later (Donee).
Meaning of Gift:
According to Merriam Webster Dictionary:
“Something voluntarily transferred to one person by another without any compensation”.
Literally, it means, “The donation of a thing from which the donee may derive benefit”.
Definition of Gift:
According to the Transfer of Property Act;
“The transfer of certain existing movable or immovable 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”.
Essentials of Gift:
There are certain essentials of a valid gift under Islamic Law:
- Subject matter
- Form of gift
- Extent of gift
There are two parties in the transaction of a gift.
- Donor – the maker of a gift
- Donee – the taker of something as a gift
Qualification of Parties:
Qualifications for Donor:
There are certain conditions for a person to be a donor which are following;
- Must be adult
- Must have an understanding
- Must be free
- Must be the owner of the property being gift out.
So, it shows that a gift is made by a deaf, dumb person or a blind person or a pardanashin lady is valid too if it fulfils all other requirements of a valid gift.
Qualifications for Donee:
The donee may be any person capable of holding property. It also includes a juristic person. So, age, religion, sex and race are not a bar to the taking or holding of the gift.
Even if the donee is incompetent to give consent, another person on his behalf can give acceptance.
A gift in favour of an unborn child is invalid, except where such child is born within six months of the date of gift as the law presumes a child in the womb to be in existence and anybody who is in existence is treated as competent donee.
All things which are legal for Muslims can be a valid subject matter of gift. Following rules are prescribed in this regard:
- Anything over which dominion or right of property can be exercised or
- Anything which can be reduced to possession or
- Anything which exists either as a specific entity or an enforceable right or
- Anything which comes under the definition of mal having some value can be a valid subject matter of the gift under pure Islamic law.
Form of Gift:
A gift has two forms under Islamic Law:
The oral gift is as effective as a written one provided that it fulfils all requirements of a valid gift.
Extent of Gift:
It is a general rule that the donor can gift out the whole of his property to anybody during his lifetime. This may be in favour of any person, whether his legal heir or a stranger. However, there are two exceptions to this rule:
- A gift during marz-ul-maut (deathbed illness)
- A gift through a will (testamentary gift)
Gift during Marz-ul-maut:
There are certain restrictions to the gift made during marz-ul-maut. It is essential that such a gift must fulfil all the requirements of a valid gift. According to Hanafis and Shias, such gifts are valid to the extent of 1/3rd unless heirs’ consent but according to Malikis such gifts are void.
Gift through Will:
Islamic laws provide a policy to prevent testator interfering by will. Although he may gift out a specified portion up to 1/3rd to a stranger.
Under Islamic Law, the gift must fulfil certain formalities other than the presence of the donor, done and subject matter. These formalities are called, “three conditions”.
These three conditions are also known as the essentials of a gift.
The declaration must be clear and unambiguous in the intention of the donor for making a gift. As the gift is not valid without intention.
So, such intention must be real and bona fide.
2). Delivery of Possession:
Delivery of Possession is the most important ingredient in the completion of the gift. As there is no consideration in gift, so it doesn’t complete merely with offer and acceptance. There must be a delivery of possession so that donee can benefit from it.
However, there is no delivery of Possession if the donor and donee are living together.
Acceptance of a gift is essential for a valid gift. The acceptance must be from the side of donee himself or if he is incompetent any other person can give acceptance on behalf of him. There is no acceptance is necessary if the donor is the father of the minor son.
There are certain gifts which are void under Islamic Law: –
- A gift to Unborn child which is not born within six months from date of the gift
- Future gifts
- Contingent gifts
- Gift of life interest under Sunni Law
- Conditional gifts
- Gift of illegal thing
- Gift of Musha
Kinds of Gift:
There are certain kinds of gift:
- Hiba-bil-iwaz (Gift for consideration)
Sadaqa is a gift with a religious motive. It differs in the following points from Hiba.
- The motive here is religious, which is not essential in hiba.
- It is always irrevocable, whereas Hiba is revocable in some conditions.
Aariat is the granting of permission or licenses to use usufruct of the property. It is a right to enjoy the benefits of the property, not the gift of property which is transferred.
There are certain points which must be kept in mind:
- It is revocable
- Ownership of property is never transferred
- The heirs of donee don’t get any right over the subject matter after his death.
Hiba-bil-Iwaz is simply known as a gift with consideration. It consists of two separate, mutual and reciprocal transactions of gifts, one from donor to done and the other from donee to the donor.
Both transactions must separately satisfy the essentials of a valid gift. To make a valid gift through hiba-bil-Iwaz two conditions must be fulfilled: –
- Actual payment of consideration on part of the donee
- A bona fide intention on part of the donor to divest himself from the possession of the property and to consider it upon the donee.
Hiba-bil-Shart-ul-Iwaz means a gift with a stipulation for a return. Here the payment of consideration is postponed. As the consideration is postponed, the delivery of possession is essential. It has the following features: –
i). Delivery is must
ii). After completion it takes the character of sale.
iii). Before payment of iwaz it is revocable and after that it becomes irrevocable.
Revocation of Gift:
Every gift is revocable before delivery of possession as it is not completed yet. It can be revoked with mutual consent of donee and donor or through a decree of the court after the delivery of possession. Following gifts can never be revoked: –
i). Where either of the parties to the gift is dead.
ii). Where parties are related in prohibited degrees
iii). Spousal gifts
iv). Where subject matter is further transferred by done to somebody else.
v). Where subject matter is lost, destroyed or otherwise disposed of.
vi). Where value of subject matter is increased and increment is inseparable.
vi). Where donor got something in return from the done.
vii). Where gift was a sadqa or having religious objects.
It is concluded that the definition of gift is the transfer of ownership of some existing property, without consideration. It is always due to love and affection. Under pure Islamic law, no registration is necessary, however, Pakistani law requires registration of certain gifts under Registration Act, 1908. For the completion of gift declaration, delivery of possession and acceptance are the most important elements and these are three must co-exist, else gift will not be complete. Gifts can be further classified into many types, as per the nature of transaction and property involved. A gift once completed cannot be revoked except in some circumstances.