ISLAMA BAD:
The Supreme Court has ruled that under Islamic law, a father’s gift of immovable property to his minor son cannot be revoked.
The court also found that in the case of a gift by a father to his minor child or by a guardian to his ward, no transfer of ownership is required, while arguing that Sections 123 and 129 of the Property Transfer Act do not apply to the Hiba (gift) envisaged by Muslim law.
A three-judge chamber of the Supreme Court, headed by Judge Sajjad Ali Shah, ruled on a question as to whether a gift of immovable property from a donor (father/biological guardian) in favor of a minor child (donee) in the des 1952 could be revoked by the father in 1970 (almost after 18 years) despite handing over the property assumed by the biological mother for this minor.
Judge Muhammad Ali Mazhar, writing the 12-page ruling, noted that a gift cannot be revoked if the donor and recipient are related within the prohibited degree.
The judgment also stated that if the donee was underage at the time a gift was given, the gift could be accepted by his guardian and predominantly solely on grounds of the donee’s underage, the fact of a gift made by him The natural guardian does not hear to exist, but remains valid when all the elements of a valid gift are fulfilled.
“An underage gift recipient may not be able to understand the legal ramifications because in this case, where the recipient was only five years old when his father worded the gift, but a minor gift recipient was an existing person and he was therefore a competent gift giver. ”
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“According to all schools of thought of Muslim law, a father was recognized and recognized as the natural guardian of his child, although in the present case the donor was the father and the gift was accepted by the real mother of the recipient on his behalf. Even if the gift were not accepted by the mother, it would have no adverse effect or affect a father’s gift in favor of his minor son.”
In the event that a guardian makes a gift for the benefit of his ward, declares the gift as a donor and accepts the gift from the donee, the transfer of property is not mandatory provided there must be a liberal faith intention of the guardian/proper father to break away from his/her ward To separate property and pass it on to the recipient out of love and affection.
If the donee is a minor son of the donor, then according to authoritative and trusted texts on Muslim law, the surrender of the property itself is not mandatory or obligatory, as is foreseeable with other doneees under a hiba, the order said.
The court also said that the guardian’s possession is equivalent to the minor’s possession and separately no evidence is required to prove that the guardian passed possession of the property to the minor. In this regard, a clear statement was published by DF Mulla in his book “Principles of Muhammadan Law” in Note No. 155 that in the case of a gift from a father to his minor child, no transfer of ownership is required from a guardian to his ward. All it takes is an honest intention to give, it adds.
The court said it was on record and an undisputed fact that Makhdoom Haider Bakhsh (deceased) had two wives, Iqbal Begum and Dolat Begum. By Mst. Iqbal Begum has a daughter, Zahida Parveen, and a son, Muhammad Yousaf (the beneficiary of the gift mutation in the present list). While Begum of Dolat has two daughters namely Sajida Parveen and Khalida Parveen and five sons namely Alamdar Hussain, Sajid Hussain, Shoukat Hussain, Abid Hussain and Sabir Hussain. The current petitioners are from the second wife (Dolat Begum), but only three of the second wife’s seven legal heirs have challenged the Supreme Court’s second appeal order. The second marriage was concluded after the donation on January 19, 1952 and the donation was revoked by a registered contract on January 25, 1970, after almost 18 years without the consent of the recipient and without a court order.
The revocation under the pretext of not handing over the property was unlawful, while in the mutation registered on January 19, 1952, the donor expressly stated that he had handed over the property to the recipient at the time, who was obviously a minor, so that the property was in his name was adopted by his real mother, therefore any subsequent proceedings or steps taken under the guise or guise of revocation of the gift were unlawful as the annulment certificate was not est. in the eye of the law and void.
The court referred to a hidayah which states: “If a person makes a gift to his relatives on a forbidden scale, it is not lawful for him to resume doing so, because the Prophet said: ‘If a gift is made to a forbidden one relationship, it must not be resumed;” and also because the object of the gift is an increase in the ties of kinship thereby obtained”
The court said that giving a gift, large or small, is an act of kindness and compassion, and between parents and children it is something of love and affection. According to Hedaya, “hiba” literally means the gift of something from which the recipient can benefit; in the language of the law, this means a transfer of ownership that is instantaneous and without exchange.” While according to Ameer Ali, “a hiba is, plain and simple, the voluntary, unrequited transfer of a particular property (whether existing in substance or as an election in action stands)”.
According to Mulla, “a hiba, or gift, is ‘a transfer of property, made immediately and without exchange’, from one person to another and accepted by or on behalf of the latter”. While according to Fyzee, “Hiba” is the immediate and unrestricted transfer of the corpus of property without consideration”. According to Sir Abdul Raheem, “Mohammedan law defines hiba, or simple inter vivos donation, as a transfer of a specified property without exchange”. A similar definition is found in Baillie “Gift (hibut.), as defined by law, is the transfer, without consideration, of a title to something particular”. Similarly, according to Sahih Muslim, “a hiba is defined as the transfer of possession of movable and immovable property from one person to another voluntarily and without consideration.”
The ruling said that the Transfer of Ownership Act 1882 does not apply to the Hiba/gift provided for and encapsulated under Muslim law and therefore Sections 123 and 129 of the Transfer of Ownership Act cannot supersede, outweigh or outweigh matters of oral gifts covered by Muslim law be considered for which a registered deed or contract is not mandatory.
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All the orthodox and unambiguous remarks and explanations based on Islamic jurisprudence towards “Hiba” have unequivocally emphasized and underlined that the donor should be compos mentis, that is, a person who is in their right mind and has the mental capacity to understand the legal ones effects of his act of donation and he must be of legal age and the owner of the property to be donated; the gifted thing should exist at the time of the Hiba; the gift should be such as to benefit from what is lawful under Sharia; the donor must be free from coercion/coercion or undue influence while giving a gift; the gifted item should come into the possession of the recipient himself or through his agent/guardian for effective Hiba.
“According to Muslim law, the ingredients and constituents of a valid gift are offering, accepting and possessing property. A Muslim can transfer his property under Muslim law by subliving (donation) or by testamentary disposition (testament).
Islamic law makes no distinction between movable or immovable property in relation to the notion of Hiba, rather any property can be donated by any person who has ownership and dominion over the property to be donated after completing the necessary formalities.
“It is also obligatory that the donor expressly separates himself from the control and ownership of the donated property and expressly dissociates himself from it and expresses his unconditional will to clearly and unambiguously transfer ownership to the recipient with the transfer of possession of the property and to ensure that the donee has secured physical superiority over the property to justify the transfer of ownership.
