This Article is written by Vanshika Sahu (BALLB), 4th-year Law student, Satpura Law College Dr.Hari Singh Gaur University
The expression “gift” refers to an uncompensated transfer of property interest from one living person to another. It is inter vivos in nature and gratis. This is the accepted universal definition across all faiths, including Muslim law. According to Islamic law, a gift is known as “Hiba.” Through “an act of generosity by which a right of property is bestowed in something specified without a transaction,” the Hanafi attorneys describe it. According to Shia Muslims, “a Hiba is an obligation by which property in a particular object is handed instantaneously and unconditionally without any exchange and free from any pious or religious motive on the side of the giver.”
Islamic law requires an offer (izab), an acceptance (qabul), and a transfer since the law of gifts are viewed as a component of the law of contracts (qabza). Muslim law has long held that all voluntary transactions, including gifts, are subject to cancellation, notwithstanding a legend that the Prophet was opposed to this practice. The issue of the revocability of gifts has been tackled by Muslim law-givers from a variety of
perspectives. Before delivery of possession, a hiba may be revoked at any time by the donor making a simple declaration; however, after delivery of possession, a hiba may only be revoked in full or in part in express terms by court order or with the parties’ consent, with the exception of the following circumstances:
- When one spouse gives another a present.
- When there are forbidden degrees of relationship between the donor and the donee.
- When the giver or recipient has passed away.
- When the gift’s object is no longer in the donee’s possession, i.e., when he has sold,
given, or otherwise disposed of it, or when he has devoured it, or when it has been
misplaced or destroyed.
- When the subject matter’s worth has risen.
- When the present’s object has entirely lost its identity, similar to how flour is made
from wheat, the object of the gift.
- When the recipient has given something in exchange (iwaz).
- When the purpose of the gift, as as with a sadaqa, is to get a religious or spiritual
benefit or merit.
- From one perspective, they maintain that all gifts are revocable, with the exception of
those given by a husband to another spouse or to a person connected to the donor
within the banned connection.
In this case, the relevant concerns of gift revocation are discussed, as well as the interpretation of the questions of whether a present made to the donor’s brother may be withdrawn and how the banned degree of ties should be read when donors are of the same sex but share the same blood.
Facts of the case:
On January 25, 1941, Mazhar Khan, the defendant, and brother of the plaintiff Tajju Khan received a gift deed from Tajju Khan, who also gave the donee ownership of the land. The plaintiff then filed the lawsuit from which this appeal stems in order to take ownership of the provided property, among other things, by having the gift deed revoked. According to the defendant, the gift could not be revoked. The lawsuit was settled after the trial court acknowledged the plaintiff’s claim. On appeal, the learned Civil Judge of Fyzabad ruled that the gift could not be withdrawn since the parties were within the forbidden degrees
of kinship. As a result, he dismissed the lawsuit and granted the appeal. The plaintiff has now been mentioned in the Supreme Court’s second appeal.
Legal question raised:
The concern that evolved from the case was: Whether a gift granted under Islamic law by a donor to a donee—whom they are both brothers—can be rescinded after the donee has possession ?
According to Mr. Hyder Husain (Appellants’ Attorney), revocation is only banned if the parties are related to the “prohibited degrees,” or to the extent that marriage between them is prohibited by Islamic law. He said that everything “connected by blood & banned in marriage” is actually forbidden by Arabic terms. Therefore, there is no bar against revocation when the donor and the donee are of the same sex because there is no question of marriage between people of the same sex.
In its ruling, the Court rejected this argument. However, the context in which the words are used reveals 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. If the literal meaning of the words quoted is the only consideration, then there is no doubt that Mr. Hyder Husain’s contention would prevail.
One term is used to encompass all the different degrees of kinship rather than listing them all. There shouldn’t be any issues deciphering the true meaning of the Arabic writings because that language uses a distinct form of the verb when a subject is a man as opposed to when the subject is a woman. As a result, the verb’s form indicates that a masculine present is being discussed. Since the legislation is the same for men and women and says that a gift to the brother is irrevocable, it follows that the same norm also applies to women.
There is a “ramification” that follows the passage of the Durr-ul-Mukhtar that has previously been cited. This is what it is: A man delivers something undivided and in his possession to his brother and a stranger as a gift. Since there is no obstacle, there can be a recovery in terms of the stranger. After establishing the concept in the terms that have previously been given, the same chapter of the Fatawa-i-Alamgiri that deals with the revocation of gifts goes on to explain the ban and provides some examples, one of which is worded as follows: It is claimed that if a foreigner (male) who entered our nation legally and who has a Muslim brother there offers a present to one of them, none of them can take back that gift.
It must be upheld that a gift given by one person to another who is so closely related that, even if it were physically possible, a marriage between the two (i.e. if they belonged to different sexes) would be unlawful, cannot be cancelled.
This appeal is unsuccessful and is rejected with costs as a result.
Under Sunni law, interspousal gifts are irrevocable, while under Shia law, they are. Under Shia law, gifts between blood relatives are always irrevocable, and under Sunni law, if the donor and the donee are within the range of the prohibited degree in marriage—if they share the same gender, this can be determined by assuming one of them is a woman—if they are of the same gender, they are also irrevocable. Therefore, the gift cannot be cancelled if the giver and donee are brothers. Even though the donor and the donee are of the same sex, a gift would be irreversible if the two are so closely related that a marriage between them would be prohibited if they were of different sexes. Therefore, a gift to a brother is final.
In this instance, a comprehensive interpretation that took into account the law’s aim and goals were chosen over a literal one. The main aspect of this case stands entirely on the basis of purposive interpretation.
The views expressed in this article are solely that of the writer and do not necessarily represent the views of theLawmatics.
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