CONCEPT OF GIFT UNDER TRANSFER OF PROPERTY ACT, 1872 AND MUSLIM LAW

Provisions under Transfer of Property Act, 1872

The Act defines the concept of “gift” as the transfer of certain existing movable or immovable property made violently and without consideration, by one person, called donor, to another, called the donee and accepted by and behalf of the donee under Section 122. The Act deals with the provisions related to gift including the rights of the donee, revocation of gift etc. under Section 122 to Section 129. The registration deed is necessary for making a gift under the Act.

Following are the essentials of gift according to the Transfer of Property Act, 1872:

1. There must be two parties i.e. donor and donee.
2. Gift must be made voluntarily.
3. The property must be certain and existing at the time of making of the gift.
4. The gift must be transferred without consideration.
5. The gift must be transferred during the lifetime of the donor.

Provisions under Muslim Law

A gift is called Hiba under Muslim law and the definition given by Ameer Ali states that a Hiba is a voluntary gift without consideration of property by one person to another so as to constitute the donee the proprietor of the subject-matter of the gift. The gift must be certain and existing under the Muslim law as well. Unlike the Transfer of Property Act, the gift deed by a Mohammadan is not a document of title but is a piece of evidence.[1]

Following are the essentials under the Muslim law:

1. The donor must make a declaration of the gift.
2. The acceptance of such gift must be made by the donee.
3. Delivery and taking of possession by the donor and donee respectively.

[1] Nasib Ali v. Wajid Ali, AIR 1927 Cal. P. 197.