Delivery of Hiba – Gifts in Muslim Law 3

Delivery of Possession

When the donor makes a declaration of a gift and the donee accepts, then the possession of the thing gifted should also be given to the donee. Such delivery of possession may be actual or constructive

Normally, the question as to whether possession has been delivered to make the gift complete is considered relevant only when such an issue is raised between the donor on the one hand and those claiming under him on the other. Once the donee accepts the gift and was also specifically found to have been, even on the date of the gift deed, in possession of the property, it is not given to persons other than the donor, who was alive, to challenge the validity of the gift on the ground of want of delivery of possession.

If there are more donees than one, possession by one co-sharer is presumed to be in the name and on behalf of other co-sharers. If the co-sharer does not admit the claim of a person believing that the real co-sharer is someone else, then he cannot be held to put up an adverse claim to the whole of the gift property, excluding the claim of any other co-sharer. He should be considered as only expressing his doubt about the title of a particular co-sharer. According to the Supreme Court, the donor may lawfully make a gift of a property in possession of a lessee or mortgagee. It will be case of transfer of constructive possession

The delivery of possession does not mean that the donor must have physical possession of the property and must hand over that physical possession to the donee. It is enough if he has legal possession as the matter is susceptible of. Thus, if A makes a gift of the corpus of a property to the donee it is enough if he has legal possession as the matter is susceptible of

Thus, if A makes a gift of the corpus of a property to B but reserves the usufruct to himself and continues in physical possession of the property, the payment by B of government revenue after the date of the gift in respect of the property amounts to constructive possession of the property by B, and gift is complete and valid. Or, if A makes a gift to B of his landlord rights over lands in the occupation of tenants, the gift is complete as soon as the tenants, by the direction of A has paid, or undertaken to pay, rents to B

Or, where A makes a gift to B of a promissory note which becomes payable on delivery and endorsement, the gift is complete as soon as the note has been endorsed and delivered to the donee. But if A, having a deposit account at a bank, hands over to B the bank’s receipt for the same and says, “After taking a bath, I will go to the bank and transfer the papers to your name.”, and dies before accomplishing his promise. This is not a valid gift of A’s claim upon the bank, and B takes nothing by it.

A gift of immovable property of which the done is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession


 

Aishwarya Says:

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