Gifts under Mahommedan Law

Transfer of immovable property made in consideration of a part of an existing dower debt is a sale. An oral transfer of immovable property worth more than Rs. 100 cannot be made by a Muslim husband to his wife by way of gift in lieu of dower-debt which also exceeds Rs. 100. Such a transaction is neither a gift nor a combination of gifts which can be made orally; it is a sale which can be effected by means of a registered instrument only.

Ghulam Abbas vs Mt. Razia Begum And Ors AIR 1951 All 86
http://indiankanoon.org/doc/301560/

Characteristics of Gift under Mohemmadan Law was considered in this case to determine whether the transaction was a sale or gift simpliciter.

10. Gifts under Mahommedan Law may be classified under three heads :

"(1) A hiba, pure and simple ;

(2) A hiba-bil-ewaz (a grant or gift for a consideration) which is more in the nature of an exchange than a gift; and 

(3) A hiba ba-shart-ul-ewaz, or a grant made on the condition that the donee or transferee should pay to the donor at some future time or periodically some determinate thing in return for the grant." (Syed Ameer Ali's Mahommedan Law, Vol. I, p. 34, 4th Edn., 1912).

11. In Durr-ul-Mukhtar, a hiba, or gift, pure and simple, is defined as "the transfer of the right of property in the substance?-(tamlik-ul-ain) by one person to another without consideration (ewaz) but the absence of consideration is not a condition in it."

12. Syed Ameer Ali, in his commentary on Mahommedan Law, at p. 40, has amplified the definition in these terms :

"In other words a hiba is a voluntary gift without consideration of property or the substance of a thing by one person to another so as constitute the donee, the proprietor of the subject-matter of the gift. It requires for its validity three conditions: (a) a manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly; and (e) the taking possession of the subject matter of the gift by the donee either actually or constructively."

15. Under the Mahommedan Law, writing is not essential to the validity of a gift, either of movable property or of immovable property, which is complete and valid on proof of a declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession over the subject of the gift by the donor to the donee ; but whether a gift for considerations (hiba-bil-ewaz) can be made orally depends upon the answer to the question whether it does or does not amount to a sale, as defined in Section 54, T. P. Act.

In this case the transaction not being a hiba or gift pure and simple or a combination of such gifts, court had to determine whether it is a hiba-bil-ewaz, a grant or gift for consideration, recognised by the Mahommedan Law, and also whether it amounts to a "sale" within the meaning of the term as defined in Section 54, T. P. Act. 

Syed Ameer Ali has, in his commentary on Mahommedan Law, at p. 158, thus explained ewaz or consideration and the hiba-bil-ewaz or gifts for consideration in the earlier and modern times :

"According to the original conception, which in itself was a development of the earlier rules, 'ewaz' or consideration was of two kinds ; one which was subsequent to the contract (of gift), the other which was conditioned in it. (Fatwai Alamgiri, Vol. 4, p. 549). In other words, in the first case the consideration was delivered to the donor after his gift, and the transaction was treated as a case of mutual gift. There was no stipulation regarding the giving of ewaz, but the moment it was received by the donor his right of revocation dropped.

This evidently was the earliest form of a gift for a consideration. The hiba-bil-ewaz of later times is clearly a development of this kind of gift.

In the other kind, the consideration was expressly stipulated in the contract, and when once it was received the transaction acquired the legal character of a sale. The modern hiba-ba-shart-ul-ewaz has unquestionably sprung from the above."

Then the court looked further at p. 162, where the learned author has further observed :

"In air these cases the consideration is not a part of the contract. And the rules stated above do not, therefore, apply to what in modern times is called a hiba-bil-ewaz, which is a transaction of quite a different nature, and partakes to a certain extent of the second kind of ewaz mentioned in the Fatwai Alamgiri, viz., where it is stipulated in the contract. In tins kind of hiba-bil-ewaz the consideration directly opposed to the object of the gift both being in esse; there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction. A hiba-bil-ewaz, therefore, is a sale in all its legal incidents. In sale, mutual seisin is not requisite to render the contract valid and the terms in which a contract of this kind is entered into imply, 'that the articles opposed to each other are present,' and that there is no danger of either party suffering from the other's fraud. 'I have given you this for that' implies that the consideration is present, and that the person will take care to receive it before parting with his property, and the law therefore annexes to it the quality of a sale both with regard to the condition and the effect."

The court looked at the distinction between the earliest and the modern form of hiba-bil-ewaz is important and has to be borne in mind in considering the nature of the transfer as has been clearly brought out in Baillie's Digest of Mahommedan Law, (Edn. 2, p. 122) :

" Hiba-bil-Iwaz means, literally, gift for an exchange; and it is of two kinds, according as the Iwaz, or exchange, is, or is not, stipulated for at the time of the gift. In both kinds there are two distinct acts ; first, the original gift, and second, the Iwaz, or exchange, But in the Hiba-bil-Iwaz of India, there is only one act--the Iwaz, or exchange, being involved in the contract of gift as its direct consideration. 'And all are agreed that if a person should say, 'I have given this to thee for so much,' it would be a sale; for the definition of sale is an exchange of property for property, and the exchange may be effected by the word 'give,' as well as by the 'sell.' The transaction which; goes by the name of Hiba-bil-Iwaz is, therefore, in reality not a proper Hiba-bil-Iwaz of either kind, but a sale, and has all the incidents of the latter contract. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and, what is of great importance in India, an undivided share in property capable of division may be lawfully 1 transferred by it, though that cannot be done by either of the forms of the true Hiba-bil-Iwaz."

The court held that as it was expressly stipulated in .the contract,--the grant and the consideration are admittedly parts of one and the same transaction. The husband transferred his property--and purported to do so by way of gift--for a consideration of Rs. 2,500, part of the dower-debt-due from the husband to the wife, the transferee. The transfer was not made in consideration of any earlier gift or consideration. Consequently, it was not hiba-bil-ewaz recognised by the Mahommedan law in its early and undeveloped form; but it is hiba-bil-ewaz of modern times having "the legal character of a sale"--"hiba-bil-ewaz ..... a sale in all its legal incidents."

Further looking at the definition of sale the court held :

20. "Sale," as defined in Section 54, T. P. Act, "is a-transfer of ownership in exchange for a price paid or promised or part-paid and part-promised." It is true that in some cases the word "price" has been interpreted to mean "money;" but in Saiful Bibi v. Abdul Aziz Khan, 1931 A. L. J. 951 : (133 I. C. 901) it has been held that "a transfer of property in lieu of an existing debt in cash would be a transfer for a price so as to bring it within Section 54, T. P. Act."

The use of the word "price" instead of "money" in the section signifies that the word is wide enough to include any amount which can be definitely ascertained and worked out in terms of money, such as outstanding debts. An owner of property may transfer the same in lieu of outstanding debts--and there is no legal bar against his doing so. Although debts are not "money" in the ordinary sense of the term, yet they can be worked out in terms of "money." The dower is a debt--it has been so regarded even under the Mahommedan law; consequently, if the amount of dower is ascertained and the transfer is made in lieu thereof the transfer would be for a price. The transfer in question which is a hiba-bil-ewaz, under the Mahommedan law, having all the legal incidents of a sale, falls within the purview of Section 54, T. P. Act.

21. It follows, therefore, that the transfer in the present case is a hiba-bil-ewaz, a gift for consideration, having all the legal characteristics of a sale; and, inasmuch as the provisions of Section 54, T. P. Act, apply even to a sale transaction between Muslims, the transfer must be deemed to be a sale within the meaning of the said section. 

After considering numerous earlier decisions, the court held :

42. A transfer may have all the attributes of a true 'hiba-bil-iwaz' known to Mahommedan law, and it may also be treated as such; but if it falls within the purview of Section 54, T. P. Act, and is not effected in the manner provided therein, it will be inoperative and ineffectual in law. The delivery of possession under such a, transfer will also be ineffectual as against the real owner of the property.

43. If there is a transfer for consideration and the consideration is such which can be considered price within the meaning of Section 54 of the Act, the transfer would fall within the purview of the said section. Under Section 129, T. P. Act, the rules of Mahommedan law are not affected by the provisions relating to gifts in that Act; but there is nothing in the Act which exempts transactions in the nature of a sale-from the operation of Section 54 of the Act. The obvious reason why two Muslims cannot by an oral, transaction transfer to each other two properties in exchange for a price is that, such, a transaction would be governed by the provisions of Section 54, T. P. Act, which also govern sale transactions between Muslims.