Under Islamic Law, gift in written form is not necessary but there must be a delivery of possession and if the three essentials of a valid gift are proved from a document, such document is a gift deed
By Malik Nousherwan Awan
xchanging gifts is one of the prime acts that maintain and strengthen relationships. Prophet Muhammad (Peace be upon him) has also enjoined Muslims to exchange gifts. Al-Bukhaari narrated that ‘Aa’ishah said: “The Messenger of Allah (Peace be Upon Him) used to accept gifts and reward people for giving them.”
In Islamic Law gift means a transfer of property made with free will and without exchange. He who makes the gift is called ‘wahib’ or donor. The thing gifted as ‘Mauhub’ and the person to whom, gift is made is ‘Mauhub lahu’.
A gift in the law has a very specific meaning. In order for a gift to be legally effective, the donor must have intended to give the gift to the donee (recipient).
The gift must actually be delivered to and accepted by the recipient. Gift is defined in Transfer of Property Act, 1882 as the transfer of existing movable or immovable property made voluntary and without consideration by the donor to the recipient. Following are the three factors which must be established for a valid gift. A declaration of gift by the donor; Acceptance of the gift, express or implied, by or on behalf of the recipient; and Delivery of possession of the subject matter of the gift by the donor to the recipient under Islamic Law proof of these three essentials of gift is necessary and in their absence, gift transaction cannot be held as complete. Gifts can be inter vivos – during the life of the donor – or causa mortis – made by the donor in anticipation of their own death. A gift made by donor in anticipation of their death is not effective unless the donor actually dies of the impending peril that he or she had contemplated when giving the gift.
The donor must act voluntarily and not under the influence of someone otherwise gift made becomes voidable in the eye of law which means the gift can be validated only if the donor shows his free will to make a gift. The donor of the gift must have a present intent to make a gift of the property to the recipient. A promise to make a gift in the future is unenforceable, and legally meaningless. Once a voluntary offer is made by a donor, the recipient must accept the gift. However, because people generally accept gifts and acceptance will be presumed so long as the recipient does not expressly reject the gift. A rejection of the gift rescinds the gift so that a recipient cannot revive a once rejected gift by later accepting it. In order for such an acceptance to be effective, the donor would have to extend the offer of the gift again.
Under Islamic Law, gift in written form is not necessary but there must be a delivery of possession and if the three essentials of a valid gift are proved from a document, such document is gift deed. However the law of property requires a registered instrument for giving effect to the transfer by way of gift of immovable property which must be signed by the donor or any person on his behalf. This instrument called the gift deed is duly attested by two witnesses. Gift of movable property can be made either by a signed registered instrument or by delivery. The intention of the donor must be demonstrated by his entire relinquishment of the gifted property. Gift is not proper if the donor continues any act of ownership over the gift property. The Holy Prophet (Peace be Upon Him) said, “A gift is not valid unless possessed.”
If the gift property is occupied by the tenants, Superior Courts of Pakistan has laid down that a request to the tenant by the donor to hand over to the done is the only possession that the donor can give of the property in order to complete a proposed gift and such possession is sufficient.
Where a gift is made to a minor, father of minor has first right to take possession on behalf of the minor. The second right is of the grandfather of the minor. If a gift made by a husband to his wife, possession can be transferred constructively and same can be ascertained from the conduct of the donor whereas if a gift is made in favor of Sister’s son or daughter, actual delivery of possession is necessary. If a co-sharer makes a gift of his property to other co-sharer there is no need for actual delivery of possession. Gift of a share in a joint property can also be made but with a condition that the donor divests all the rights possessed by him in that property for completion of gift.
Prophet Muhammad (Peace be upon him) sanctioned the retraction of gift when he said, “A donor preserves right to his gift, so long as he does not obtain a return for it.” Although there is another tradition which says; “Let not a donor retract his gift; but let a father if he pleases retract his gift to his son.” Ash-Shafri maintains that it is not lawful to retract a gift, except it be from a father to a son. The general opinion is that a gift to a stranger may be retracted but not a gift to a kinsman. All agree that to retract a gift is an abomination, for Muhammad (Peace be upon him) said; “The retraction of gift is like eating one’s spittle.”
A concept of universal recipient is provided in Transfer of Property Act, 1882 which makes it clear that where a donor gifts his whole property to recipient with the intention to avoid his liabilities, the debts and liabilities are transferred with the gifted property. The intention behind the concept is restricting people from running away from their liabilities. Also gift is differentiated from the charity as charity is given to the poor and the needy to meet their needs. Charity is given for the sake of God as an act of worship, without intending to give it to a specific person and without seeking anything in return.
On the other hand, a gift is not necessarily given to a poor person, rather it may be given to rich or poor; the intention is to show friendship and to honor the recipient and gifts which a person gives to a brother in Islam or relative in order to uphold the ties of kinship, it may be better than charity. The Prophet (Peace be upon him) said: “Exchange gifts, as that will lead to increasing your love to one another.” [Al-Bukhaari] ■
Malik Nousherwan Awan is a practicing lawyer with specialization in property laws. He is based in Lahore and can be reached at: email@example.com
This article was originally published in the print edition of “Valuemag”, issue 13, August 2009