All mal or forms of property over which control may be exercised are proper subjects of gift. These include all mal, whether ancestral or self-acquired, movable or immovable, corporeal or incorporeal
A corporeal thing means that which exists in material form; for example, money, house, land, etc., whereas incorporeal property means that which does not exist in material form; for example debts, chose in action, a right to receive a specified share that may be made by pilgrims at a shrine, an insurance policy notwithstanding the fact that the money does not exist and is to be realized in future, equity of redemption, government promissory notes, negotiable instruments etc.
Gift of Musha
Musha has been defined as an undivided share in an immovable or movable property, which is divisible. As the delivery of possession is one of the essentials of a valid gift; thus, the possession to be delivered must be separate and exclusive. Hence, gift of an undivided share (musha) in a thing capable of division is void, according to Hanafi Law. According to Shafi’I and Shiite view, however, the gift of musha is valid, provided the donor, after withdrawing his control from the subject- matter of gift delivers it to done.
- Where Property is Indivisible- A gift may be validly made of an undivided share (musha) in a property which is incapable of being divided; or when the property can be used to better advantage in an undivided condition.
Such indivisible things may be a staircase, small house or small bath. Thus, A who owns a house, makes a gift to B of the house and of the right to use a staircase used by him jointly with the owner of an adjoining house. The gift of A’s undivided share in the use of the staircase is not capable of division; therefore it is valid. And a gift of a share in the business of a Turkish Bath is valid, for the bath is not capable of division and would be ruined if it were divided by metes and bounds.
Where Property is Divisible- The gift of musha of a property which is capable of being divided is irregular but not void. Subsequent division and delivery of possession renders the gift as valid. A, a partner in a firm makes a gift of his share of the partnership assets to B. The gift is not valid unless the share is divided off and handed over to B.
The conception of the term gift and subject matter of gift has been an age-old and traditional issue which has developed into a distinct facet in property law. Different aspects related to gift in property act and its distinction with the Mohammedan law and its implications has been the major subject matter of this article.
In considering the law of gifts, it is to be remembered that the English word ‘gift’ is generic and must not be confused with the technical term of Islamic law, hiba. The concept of ‘hiba’ and the term ‘gift’ as used in the transfer of property act, are different. As we have seen in the project that Under Mohammedan law, to be a valid gift, three essentials are required to exist:
- Declaration of gift by the donor.
- Acceptance of the gift, express or implied, by or on behalf of the done.
- Delivery of possession of the subject of the gift.
The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. The essential elements of a gift are:
- The absence of consideration.
- The donor.
- The done.
- The subject-matter.
- The transfer; and the acceptance.
Thus this striking difference between the two laws relating to gift forms the base of this project in understanding its underlying implications.
To conclude the researcher can say that, the gift is a contract consisting of a proposal or offer on the part of the doner to give a thing and acceptance of it by the donee. So it is a transfer of property immediately and without any exchange. There must be a clear intention by the donor to transfer the possession to the doner for a valid gift. It can be revoked by the doner. And the provisions for the same have also been mentioned.
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