Gift under Muslim Law: The law revisited

In a recently reported decision, the Supreme Court has revisited the law relating to gifts under Muslim law and has explained the principles relevant therein. The Court referred to its earlier decisions in the issue and also various religious texts discussing the legal scenario [Mulla's Principles of Mohammadan Law; A.A. Faizee's `Outlines of Mohammedan Law'; Syed Ameer Ali's `Commentary on Mohammedan Law'] to declared the settled legal position in the following terms;

10. A gift indisputably becomes complete when a person transfers with immediate effect the ownership of his movable or immovable property to another person, and that other person himself or someone else with his consent takes possession of the property gifted. Under Mohammadan Law it is a contract which takes effect through offer and acceptance. The conditions to make a valid and complete gift under the Mohammadan Law are as under:

(a) The donor should be sane and major and must be the owner of the property which he is gifting. 

(b) The thing gifted should be in existence at the time of hiba.

(c) If the thing gifted is divisible, it should be separated and made distinct.

(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.

(e) The thing gifted should not be accompanied by things not gifted; i.e. should be free from things which have not been gifted.

(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.

It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee's ownership, the same cannot be revoked. The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.

Have a look at the decision.