By Siddharth Dalabehera
The ‘gift’ is a transfer of property where interest is transferred from one living person to another, without any consideration. It is a gratuitous and inter vivos in nature. This is the general definition that is accepted by all the religions, including Muslim law.
As per the Muslim Law, a gift is called as ‘Hiba.’ The Hanafi lawyers define it as ‘an act of bounty by which a right of property is conferred in something specific without an exchange’. The Shias hold that ‘a hiba is an obligation by which property in a specific object is transferred immediately and unconditionally without any exchange and free from any pious or religious purpose on the part of the donor’. Since Muslim law views the law of Gift as a part of the law of contract, there must be an offer (izab), an acceptance (qabul), and transfer (qabza).
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 Muslim law-givers have approached the subject of revocability of gift from several angles. A hiba may be revoked at any time by a mere declaration by the donor before delivery of possession but after the delivery of possession, a hiba may be revoked, wholly or in part in express terms only through Court or by consent of the parties except in the following cases:
1. When a gift is made by one spouse to another.
2. When the donor and the donee are related within the prohibited degrees.
3. When the donee or the donor is dead.
4. When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he had disposed of it by sale, gift or otherwise or, where he had consumed it, or where it had been lost or destroyed.
5. When the value of the subject-matter has increased.
6. When the identity of the subject-matter of the gift has been completely lost, just as wheat, the subject-matter of gift, is converted into flour.
7. When the donor has received something in return (iwaz).
8. When the object of the gift is to receive a religious or spiritual benefit or merit, such as sadaqa.
9. From one aspect, they hold that all gifts except those which are made by one spouse to another, or to a person related to the donor within the degrees of prohibited relationship, are revocable.
This case this discusses this pertinent issue of revocation of gifts and the interpretation of the question that can a gift be revoked given to the donor’s brother and how can prohibited degree of relations be interpreted in the case where donors share the same blood but are the same sex.
FACTS OF THE CASE
On 25-1-1941, Tajju Khan, the plaintiff executed a deed of gift in favor of Mazhar Khan, the defendant, also his own brother & delivered possession of the property to the donee. Subsequently the plaintiff. instituted the suit out of which this appeal arises to obtain possession of the gifted property by, among other things, revocation of the deed of gift.
The defendant pleaded that the gift was not revocable. The trial Court accepted the plaintiff’s, claim & decreed the suit. On appeal, the learned Civil Judge of Fyzabad held that the parties were within the prohibited degrees of relationship & that, consequently, the gift could not be revoked. He accordingly allowed the appeal & dismissed the suit. The plaintiff. has now come up in the second appeal before the Supreme Court.
The issue which arose out of the case :
Whether a gift given under Mohammedan Law by a donor to a donee both being brothers, be revoked back after delivery of possession to the donee?
Mr. Hyder Husain (Advocate for Appellants) contended relying upon various authorities prohibit revocation only if the parties are related within the prohibited degrees, that is to say, are so related that marriage between them is not allowed by the Islamic law. He contended that Arabic words, literally prohibit anything “related by blood & forbidden in marriage.” Consequently, since no question of marriage arises between persons of the same sex, there is no prohibition of revocation when the donor & the donee belong to the same sex.
The Court’s judgment rejected this contention. If the literal meaning of the words quoted is alone considered then no doubt the contention of Mr. Hyder Husain would prevail but the context in which the words are used shows that they are not used in their literal sense: they are used compendiously to describe the degree of relationship which should be such as to exclude the legality of marriage between the two where such a marriage is physically possible.
Instead of reciting the numerous degrees of relationship, one phrase is used which would cover them all. No difficulty in understanding the real significance could arise on the Arabic texts because, in that language, the form of the verb as used is different if the subject of that verb is a male from what it would be if the subject is a female. Thus, the form of the verb used shows that a gift by a male is being dealt with. And of course, the same rule will apply to females since the law is not different for males & females, and it mentions a gift to the brother as being irrevocable.
Following the text of the Durr-ul-Mukhtar which has already been quoted, there is what is known as a “ramification.” This is as follows: A man makes a gift to his brother & a stranger of something which is undivided & gives possession of it. There may be a recovery so far as the stranger is concerned because there is no impediment. The same chapter of the Fatawa-i-Alamgiri relating to the revocation of gifts, after stating the principle in the words which have already been quoted, proceeds to elucidate the prohibition & gives certain examples, one of which is stated as follows : It is said if a foreigner (male) came to our country as a permitted visitor & he has a brother in our country who is a Muslim, & either of them makes a gift of something to the other, then that gift cannot be revoked.
It must be held that a gift by one person to another who is so closely related that a marriage between the two, if it could physically take place, (i.e. if the two belonged to opposite sexes), would be illegal, cannot be revoked.
The result is that this appeal fails & is dismissed with costs.9
Inter-spousal gifts are irrevocable under Sunni law but revocable in Shia law. Gifts between blood relatives are irrevocable under Shia law in all cases, and under the Sunni law if the donor and the donee are within the net of the prohibited degree in marriage- if they belong to the same gender this is to be ascertained by presuming one of them to be a female. So, if the donor and donee are brothers the gift cannot be revoked. A gift would be irrevocable even if the door and the donee are of the same sex but are so related that a marriage between the two would be illegal if the two belonged to opposite sexes. A gift to a brother is therefore irrevocable.
So this case rather than going for a literal interpretation went for a compendious one taking care of the intention and the purpose of the law. This case is solely on basis of purposive interpretation and is the major highlight of this case.
Formatted on February 14th, 2019.
BR VERMA’S Commentaries on Mohammedan Law, Law Publishers (India) Pvt. Ltd., 10th edition, 2007
TAHIR MAHMOOD & SAIF MAHMOOD, Muslim Law in India and Abroad, Universal Law Publishing Co., 1st edition,2012
SINHA, R.K., ‘Muslim Law’, Central Law Agency, Allahabad, 2006
KUSUM, Cases, and Materials on Family Law, 2007, Universal Law Publishing Co.