The Kerala High Court stated on Tuesday that based on Supreme Court precedents, a partition deed signed by a Muslim mother acting as the guardian of her minor children is invalid.
According to the Division Bench of Justices P. B. Suresh Kumar and C. S. Sudha, even though there is nothing in personal law that forbids it, the Muslim mother cannot be the guardian of her minor child’s person or property, with the exception of movable property. It has been established by the various precedents.
CONTENTIONS OF APPELLANT
Invoking the Hadiths, the appellants made the case that a woman has been acknowledged as the guardian of both her husband’s home and his wards. These Hadiths were never taken into account in any of the rulings that found that a mother cannot serve as a minor’s guardian. Furthermore, there is nothing in the Quran that prevents a mother from serving as a guardian
CONTENTIONS OF RESPONDENTS
The renowned attorney for the respondents, however, stated that neither the Quran nor the Hadith mentions a mother becoming a guardian. She holds that one cannot infer something from the Quran or Hadith that is not there. The Quran and the Hadith both permit widows to remarry after the “iddah” time if they so choose and demand that the man bequeaths for the widow a year’s maintenance and residence without turning them out, therefore the mother was never supposed to be a guardian. Further, she made reference to Sita Ram v. Amir Begam (1886) ILR 8 All 324 case, wherein it has been decided that even though the appellant’s children were minors, she was ineligible to act as their guardian in these situations and hence could not exercise any power of disposition over their property.
JUDGEMENT
The Kerala High court stated that “There is nothing in the Qur’an or the Hadith prohibiting or barring women from being considered as guardians of their minor offsprings…Be that as it may, this court is bound by the decisions of the Hon’ble Supreme Court.”
The court further observed that it is undoubtedly true that the arguments put out by the knowledgeable appellants’ attorney, in this case, were never brought before the Hon’ble Supreme Court in any of the rulings. But According to the ruling in Ballabhadas Mathurdas Lakhani, the High Court cannot disregard a ruling by the Supreme Court if it believes that “the relevant clauses were not brought to the Court’s attention.” In the Shayara Bano case, it was decided that the Muslim personal law system, or Shariat, cannot be forced to comply with the laws outlined in Part III of the Indian Constitution, in accordance with Article 13 of the Constitution. Similar to this, the Apex Court has ruled in a number of decisions that Muslim mothers are not permitted to act as guardians of their underage children or property. The Court ruled that, in conformity with Article 14 of the Constitution, it is bound by past rulings.
This article has been authored by Ritesha Das, pursuing BBA LLB from Symbiosis Law School Hyderabad. It aims to analyse the Concept, Formalities, Capacity and Revocability of Hiba.
INTRODUCTION
The notion of ‘Gift‘ or ‘Hiba’ persisted in Muslim law from the foundation of the religion. While the acknowledgement of the distinction of land into property or estates is subjected to authentication, the Muslim Law does acknowledge the variance between ownership of the land and its right to enjoy it. The term gift denotes a transfer of the benefit and interest of a property from one person to another without consideration. It’s gratuitous and inter-vivo in nature. This is the general concept that all religions acknowledge including Muslim law. According to the Muslim Law, a gift is termed as ‘Hiba’. Although the word ‘Gift‘ and ‘Hiba‘ are frequently interchanged without drawing the line of differentiation, but the term ‘Hiba’ is just one of the forms of transactions which is transferred without any consideration, often addressed under the broader expression of ‘Gift‘. The ambit of ‘Hiba‘ often forbids all kinds of services as they do not occur at the time of the promise, rather they are only rendered after the promise has been made. The sphere of ‘Hiba‘ mandates the physical existence of the object at the time of the gifting. This has been widely interpreted that the expression of ‘mal’ must refer to the gifted object for the applicability of the rules of ‘Hiba‘ under Muslim Law. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law. Under Muslim law, the expression of ‘gift’ is subjected to certain principles of the contract act as it constitutes an offer (ijab), acceptance (qubul) and transfer (qabza)
One of the primary essentials of gift constitutes the reciprocal actions of giving or taking. According to Section 122 of the Transfer of Property Act, “a gift is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the done”. The essential elements of a gift are composed of: The donor, The donee, Subject matter, Absence of consideration, Transfer and the acceptance.
In order to constitute a valid gift, acceptance of the donor is a necessary attribute. There are various circumstances shedding light on the dimension of the absence of any specific style of acceptance. The matter of acceptance may be determined by various circumstances, such as taking possession of a property or being in possession of a gift deed alone. If a gift document is handed over after being executed or registered in the favour of donee by the donor, the acceptance of the document leads to a valid acceptance of the gift in law. The precise recital in the act that the grant of possession gives rise to a presumption of acceptance.
CONCEPT OF HIBA
In the Mohammedan law, a gift is a transfer of property or right by one person to another in accordance with the provisions given in the Mohammedan law and includes-
a) A ‘Hiba‘, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return and
b) An Shariat, the grant of some limited interest in respect of the use or usufruct of some property or right.
Where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called Sadaqah.
Hiba is a transfer of property by the action of both the parties. It is neither operated nor intervened by law; hence any transfer of property done by the intervention court of law or any transfer of ownership by the implementation of Muslim law of inheritance will not fall under the purview of Hiba. The ownership of any property is transferred voluntarily by a living Mulsim to another and hence, it is also referred as a transfer inter-vivos. The transfer of the possession of the property by the transferor must be in absolute interest and the transferee must be entitled to receive the full title in respect of the property granted to him. The elements of conditions, constraints or limited rights in gifted properties are contradictory to the principle of Hiba under Islamic law. The operation of Hiba starts immediately after the transfer of property by the transferor, disposing of all his possession and ownership of the property. Moreover, the transferred property must be tangible or have some existence at the time of the transaction. A property gifted without present existence is void.
FORMALITIES OF HIBA
The Muslim Law provides a discretion to grant a ‘Hiba‘ either orally or in writing, irrespective of the fact of tangibility or movability of the property. The only mandatory formality for the validity of a Muslim gift is taking the ownership or possession of the subject-matter of gift by the doner either actually or constructively.
Delivery of Possession
Formalities set down for gifts under Section 123, Transfer of Property Act, 1882, shall not extend to Muslim gifts. Under Islamic law, a gift is complete only after the donee has been granted the possession through the delivery of the possession by the donor. It is also compulsory for the declaration and approval to be followed by the delivery of the possession of the property. The gift shall take effect from the date on which the ownership of the property is granted to the donee, not from the date on which the declaration was made by the donor. The significance of overriding facet in Islamic law is such a degree that without giving the gift of possession to the donee, the gift is invalid even though it has been rendered by means of a registered deed. The significance of overriding facet in Islamic law is such a degree that without giving the gift of possession to the donee, the gift is invalid even though it has been rendered by means of a registered deed. For a donation to be complete, the donor must dispose of not only possession but also the property in favour of the donor. In the Noorjahan v. Muftakhor, a donor made a gift of certain property to the donee, but the donor continued to manage the properties and takes the profit himself. Till the death of the donor, no mutation was made in the name of the donee. It was held by the court that since no delivery of possession was made, the gift was incomplete and ineffective in nature.
Modes of Delivery of Possession
The manner of delivering possession is entirely dependent on the nature of the property. To constitute the delivery of the property, the donor is legally obliged to act in a way by which the done is entitled to the physical possession of the property. A donee is said to possess a property in such a way that he may exercise exclusive control over it and benefit from it. The delivery of possession is broadly classified into actual and constructive delivery of possession.
Actual Delivery of Possession
Actual delivery refers to the physical transfer of the property to the donee. The tangible properties or the properties that can be physically owned irrespective of movable or immovable, are supported under this form of delivery. The donee must be actually transferred and handed over the movable property. The actual delivery of possession is mandatory in case of immovable property. However, since the immovable property can’t be collected or handed over, the donor may deliver the property by providing all the documents relating to the property to the donee so that it can be used according to the discretion of the donee.
Constructive Delivery of Possession
Constructive delivery of possession or ownership denotes to the symbolic transfer of the property. Through this mode of delivery, the donor does any act on the grounds of which it is legitimately assumed that the possession has been handed over to the donee. Such a form of transfer of ownership occurs only when the nature of the property forbids it’s the delivery through actual mode. The constructive delivery of possession is enough to constitute a valid gift when either the property is intangible, or the given circumstances doesn’t support the actual delivery of ownership property of the tangible property.
ELIGIBILITY OR CAPACITY
The concept of capacity is broadly divided into two categories:
Mental capacity: A sound-minded person having the ability to assess the legal implications and repercussions of his action is eligible to grant ‘Hiba’. However, a ‘Hiba’ offered by a person of unsound mind during lucid intervals is considered valid. In addition, the decision of donor or the transferor must not be influenced or altered through the elements coercion or fraudulent influence while making a gift. The courts ruled that the gift by the Parda-nasheen women was valid in the case of Hussaina Bai v. Zohara Bai. The court stated that it is important to determine that the gift is given by a Parda-nasheen lady involved her free consent and she made the gift on her own discretion. The burden of proving the absence of compulsion of the gift lies with the donee.
Financial Capacity: A person under insolvent circumstances can make a gift or ‘Hiba‘ in accord to the Hanafi School. If the gift or ‘Hiba‘ is rendered to defraud the donee, Kazi has the power to announce it void. The Indian courts accepted Hanafi ‘s view that the donor ‘s fraudulent intentions cannot be deduced from the fact of piled debt or the ambiguous financial conditions of the donor. With each gift, the donor must have a true intention of transferring property to the donee. If the primary intent to swindle the donor is evident from making a gift, the gift would be invalid.
The mere ability to make a gift is not enough as the question of the right to render a Hiba arises while transferring the property. A Muslim doesn’t have the right to give away the property in the absence of his ownership. For instance, if he’s just a tenant or guest, he’s not allowed to give the building to anyone because he’s not the owner of the property. Such a gift shall be considered as null. Nevertheless, a Muslim has the right to give away all his properties which he possesses at the time of the announcement of the gift. The transfer of the property by the donor must be in the absolute interest of the donee. It is also imperative that the donor owns the property that he wants to pass on to the donee.
CONCEPT OF REVOCATION
Though the prophet ‘s notion is against the revocation of gifts or Hiba, all voluntary transactions including gifts can be revoked under the well-defined Muslim law.
Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a well-established rule of Muslim law that all voluntary transactions, including gifts, are revocable. The topic of the revocability of gifts was addressed from different perspectives by the Muslim lawmakers. From one perspective, all gifts are revocable except those made in the grades by one spouse to another, or to a person related to the donor within the degrees of prohibited relationship.
A long list of irrevocable gifts is set forth in the text of Muslim law. There are not only variations between schools but also the Shia and Sunnis differ in the list of contents. On the point of view of revocability, the Muslim lawmakers also classify gifts under the two main heads:
• Revocation of gifts prior to the delivery of possession
• Revocation after the delivery of possession
Revocation of gifts before the delivery of possession:
According to Muslim law, all donations shall be revocable before the donee is granted the possession. The withdrawal is valid. The revocation will not alter the fact that the gift is rendered to a spouse, or to a person related to the donor within the degrees of prohibited relationship. The fact is that under the Muslim law no gift is complete until the delivery of the property has been made, therefore the transfer of gift to the donee is incomplete until the donor has delivered the property.
Thus, revocation of such gifts merely infers the mind change of the donor resulting in the reluctance of the delivery of ownership of the property to the donee. The court order is not essential for the revocation of these gifts.
Revocation after the delivery of possession:
The simple assertion of revocation by the donor, or the institution of a lawsuit, or any other action, is not enough to revoke a gift. Until the order of the court to revoke the gift is taken, the donee shall have the complete right over the property in any manner including the right to devolve or dispose of the property. The Shia law of the revocation of gifts varies in the following ways from the Sunni law: firstly, a gift may be revoked without proceedings by a mere declaration by the Donor, secondly, a gift given to a spouse is revocable, thirdly a gift to a relation, whether within the prohibited degrees or not, is revocable.
Although it may indicate that all gifts after the transfer of possession can be revoked with the consent of the donee but the revocation can be enforced only by an order of the court.
The revocation of a gift is a personal privilege of the donor, and the gift can neither be revoked by his descendants after his death nor be withdrawn after the death of the donee, subjected to the following exceptions stated in the Hanafi School, according to which a gift can also be revoked even after the delivery of the possession:
The link of donor and the donee within the forbidden degrees.
Increase in the value of the subject matter.
The loss of identity of the subject-matter of the gift.
Receipt of something in return (iwaz) by the donor.
Gift received by one spouse to another.
Death of the donor or donee.
Absence of the gift or property in the hands of the donee, i.e. when it has been disposed of by sale or consumed in its entirety or has been lost.
CONCLUSION
The subject and the concept of the word gift is an age-old, conventional issue that has become a distinct feature of property law. The key goal of this analysis has been various aspects of the gift of property and its contrast and effects with the Mohammedan Law.
It should be noted when considering the law of gifts that the word ‘gift’ is common and should not be confused with Islamic technical term, ‘Hiba’. Hiba is the genus whereas gift is the species. The term gift denotes a transfer of the benefit and interest of a property from one person to another without consideration. In this article, the author has covered the aspects of the concept, capacity, formalities and revocation of gifts which included Hiba under its purview.
