Comparison between Gift under TPA and Islamic Law

Propdox
Uncategorized
June 16, 2023

A gift is the uncompensated transfer of property ownership. Gifts or hiba are subject to personal law in Islam and are not required to be in writing or registered. However, the gift of real estate must be made in writing and registered in accordance with the Transfer of Property Act (TPA), 1882. A gift, or hiba, is the uncompensated and willing transfer of property from one person, known as the donor, to another, known as the donee.
A gift is subject to Muslim law’s own regulations rather than the Transfer of Property Act of 1882. Any mobile or immovable property may be given as a gift, but it must already exist and be unconditional. During the donor’s lifetime, a gift must also be accepted by the donee or someone acting on his behalf. The transfer of possession, whether actual or constructive, from the donor to the donee is the primary prerequisite for a gift. These donations’ legality and revocability are subject to a number of limitations and restrictions.
Using a number of legal rulings and scholarly perspectives, this essay seeks to examine and contrast the notion of gift within Muslim law and under the Transfer of Property Act, 1882. The benefits and drawbacks of both methods are also examined in the article.

Introduction:

To set rules for property transfers in India, the Transfer of Property Act (TPA), 1882 was passed on July 1st, 1882. It covers a range of transfers, like as sales, leases, mortgages, and gifts. However, it only applies to inter vivos transfers, or transfers between living people.

Under the TPA, leases, gifts, and sales of real estate are a few examples of inter vivos transfers. Transfers made as a result of execution, insolvency, forfeiture, or succession are not regarded as inter vivos transfers under the TPA. It’s crucial to remember that Section 5 of the TPA only deals with intravivos transfers; it does not handle testamentary transfers or transfers made by will.

Their personal law is Islamic Law, which is applicable to those who live by Islamic principles. It addresses a variety of topics, including inter vivos gifts, inheritance, and divorce.

Research Problem:

1. In accordance with Islamic Law and TPA, what prerequisites and repercussions exist for cancelling a gift?
2. How do Islamic Law and TPA’s definitions on gifts to minors differ?

Research Objectives:

1. To comprehend the requirements and repercussions of cancelling a donation in accordance with Islamic law and TPA.
2. To comprehend how Islamic Law and TPA differ in their treatment of the concept of gift to minor

Hypothesis:

1. It is assumed that both TP and Islamic Law have the same requirements and penalties for revocation of a gift.
2. It is hypothesised that under Islamic Law and TPA, the concept of a gift to a minor is the same.

Research Methodology:

For this study, the author used the doctrinal approach of research. In order to obtain information and carry out the research, the writers have read through a variety of materials that are available.

Gift under Islamic Law?

In Islamic law, gifts are known as ‘Hiba’. To be more precise, the term “gift” refers to all kinds of non-financial transfers of ownership and has a broad sense. The term “Hiba,” on the other hand, has a defined meaning. In essence, it is communicated inter vivos, or between living individuals.

Thus the following are the features of Hiba, that is gift under Islamic Law:

1.Hiba is a property transfer made by agreement between the parties rather than by operation of law. It denotes that neither a property transfer conducted by a court of law nor an ownership transfer made in accordance with Islamic law of inheritance would be regarded as Hiba.
2. Inter Vivos: When a Muslim who is alive freely transfers ownership of any property to another Muslim who is alive.
3. Absolute Interest: The transferor transfers full ownership of the asset, giving the transferee full ownership of the property. Islamic law forbids placing restrictions, limitations, or limited rights on the property that has been given to you.
4. Immediate Effect: The transferor loses ownership and control of the property immediately as a result of Hiba. In addition, the asset must exist at the moment the gift is made because it is given directly to the transferee. A donation made for a future piece of real estate is considered empty.
5.No Consideration: The transfer of property is not a gift if the transferor accepts something of value in exchange or return.

Capacity to gift

1. Competency of Donor

The ability to give is a requirement for a giver. Every Muslim who is over the age of majority and of sound mind, whether they are male or female, married or single, is a qualified donor. The age of majority for gift-making is 18 years old, or 21 years if the recipient is being looked after by a recognised guardian.

2. Competency of Donee

Any person who is alive at the time of the contribution meets the only requirement for being a competent donee. He might belong to any racial or ethnic group and be any gender. Therefore, a Muslim is permitted to perform a legitimate Hiba in favour of a non-Muslim, female, child, or insane person.

3. Subject Matter of Hiba:

Hiba, a kind of gift, can be used to refer to any kind of property that can be controlled and possessed. Both physical and intangible assets may be involved. In addition, you can give away assets that are leased, attached, or even the subject of a lawsuit.

Essentials of a valid gift under the Transfer of Property Act:

1. Transfer of Ownership:

2. Existing Property:

Any sort of property, including both moveable and immovable assets, tangible or intangible, may be included in a donation. It must, however, be transferable as defined in Section 5[5] of the Transfer of Property Act and exist at the time of the gift. Any gift of property that will become yours in the future is void. As a result, gifts that are merel modivated by the prospect of inheriting property, the mere ability to bring a lawsuit, or the anticipation of succession are likewise regarded as illegal.

3. Transfer without consideration:

A gift must be given freely and without expectation of return, signifying that ownership must be transferred without payment or other consideration. Consideration for a sale or exchange could include even a small or negligible sum of money or property given by the recipient in exchange for the transfer of a substantial asset. Within the meaning of this section, “consideration” has the same meaning as in Section 2(d)[6] of the Indian Contract Act. Consideration is a term for a monetary or financial value. The display of shared love and affection, however, has no monetary worth.

4. Voluntary Transfer with Free Consent:

The contribution must be given voluntarily by the donor, free from outside pressure, coercion, fraud, or improper influence. This alludes to the idea of free consent, in which the donor is completely free to provide without being held back. When performing the gift deed, it is crucial that the donor’s will be impartial and uninfluenced by other forces. Additionally, the fact that the donation was made voluntarily suggests that the donor was aware of the details and the nature of the transaction at the time it was made. The donee is required to provide proof that the gift was provided voluntarily and with the donor’s free permission.

5. Acceptance of Gift:

The donee must accept the gift in order for it to be effective. Even when given as a gift, property cannot be transferred to a person without that person’s consent. In the same way that they would with unfavourable or burdensome property, the donee has the right to refuse the gift. When the obligations or liabilities attached to a gift outweigh its actual market value, it becomes burdensome. Therefore, it is essential that the donee accepts the gift, whether openly or tacitly. From the donee’s behaviour and environment, implied acceptance can be deduced. When the donee receives the title deeds or takes possession of the assets, that is often considered acceptance of the gift.

Conclusion:

A transfer without regard is what a gift is. Although they have some variances, gifts under TPA and under Muslim/Islamic law share the same definition and are extremely similar. Thus, the following conclusions have been drawn by the author:
1. There are differences between hiba and TPA’s criteria and revocation of a gift under those two legal systems.
2. The idea of a gift under TPA and a hiba in Muslim law are same, as are the rules governing both.
Hiba and gift are thus examples of gratuitous transfers. Both are consideration-free transactions. Although they are quite similar in terms of their fundamentals and how presents to minors are handled, they differ greatly in terms of how gifts are cancelled.