باپ کی طرف سے نابالغ بیٹے کے حق میں کیا گیا ہبہ/تملیک منسوخ یا واپس نہ ہو سکتا ہے

باپ یا گارڈین کی طرف سے نابالغ بیٹے کے حق میں ہبہ/تملیک کی صورت میں قبضہ کی منتقلی ضروری نہ ھے

(1) The gift of immovable property by a father under the Muhammadan Law in favour of his minor son could not be revoked.

(2) No transfer of possession is required in case of gift by a father to his minor child or by a guardian to his ward.

(3) Section 123 and 129 of the Transfer of Property Act are not applicable to the hiba envisioned under the Muslim Law.

(4) When the donor and the donee are related within the prohibited degree, a gift made cannot be revoked.

C.P.1647/2018
Abid Hussain and others v. Muhammad Yousaf and others
PLD 2022 SC 395 

The Transfer of Property Act, 1882, has no application to the hiba/gift envisioned and encapsulated under the Muslim Law and for this reason, Section 123 and 129 of the Transfer of Property Act can neither surpass nor outweigh or preponderate the matters of oral gifts contemplated under the Muslim Law for which a registered instrument or indenture is not mandatory. All orthodox and unequivocal annotations and explications based on Islamic Jurisprudence vis-à-vis “Hiba” have unambiguously emphasized and underlined the fact that the donor should be compos mentis, meaning thereby a person who is of sound mind and has the mental capacity to understand the legal implications of his act of making gift and he must be major and the owner of the property which is intended to be gifted; the thing gifted should be in existence at the time of hiba; the thing gifted should be such to benefit from which is lawful under the Shariat; the donor must be free from any coercion/duress or undue influence while making a gift; the thing gifted should come in the possession of the donee himself or through his representative/guardian for an effective hiba. Under the Muslim law, the constituents and components of a valid gift are tender, acceptance and possession of property. A Muslim can devolve his property under Muslim law by means of inter vivos (gift) or through testamentary dispositions (will). Islamic law does not make any distinction between movable or immovable property with regard to the conception of hiba, rather any property may be gifted by any person having ownership and dominion over the property intended to be gifted on fulfilling requisite formalities. It is also obligatory that the donor divest and dissociate himself downrightly from the dominion and ownership over the property of gift and put into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with delivery of possession of the property and ensure that donee has secured physical ascendency over the property in order to constitute the delivery of possession.

CIVIL PETITION No. 1647 OF 2018

Abid Hussain and others VERSUS Muhammad Yousaf and others

PLD 2022 SC 395

Presenting a gift whether grand or tiny is an act of kindness and compassion, and between the parents and children it is somewhat out of love and affection. According to Hedaya, “Hiba”, in its literal sense, signifies the donation of a thing from which the donee may derive a benefit; in the language of the Law it means a transfer of property, made immediately, and without any exchange.” While according to Ameer Ali, “A hiba, pure and simple, is the voluntary transfer, without consideration, of some specific property (whether existing in substance or as a chose in action)”. According to Mulla, “A hiba or gift is “a transfer of property, made immediately and without any exchange,” by one person to another, and accepted by or on behalf of the latter”. Whereas according to Fyzee, “Hiba” is the immediate and unqualified transfer of the corpus of the property without any return”. According to Sir Abdul Raheem, “The Muhammadan law defines hiba or a simple gift inter vivos as a transfer of a determinate property without an exchange”. A similar definition is provided by Baillie “Gift (hibut.), as it is defined in law, is the conferring of a right of property in something specific, without an exchange”. Similarly, according to Sahih Muslim, “A Hiba is defined as the transfer of possession of property, movable and immovable, from one person to the other willingly and without reward”.

CIVIL PETITION No. 1647 OF 2018

Abid Hussain and others VERSUS Muhammad Yousaf and others

PLD 2022 SC 395

If at the time of conveying a gift the donee was minor, the acceptance of gift could be made by his or her guardian and predominantly for the reason of minority of donee alone, the factum of gift made by his natural guardian does not cease to exist but remains valid on fulfillment of all ingredients of valid gift. A minor donee may not have the capacity to understand the legal consequences as in this case where the donee was only five years of age when his father put into words the gift but minor was a person in existence and thus he was a competent donee. According to all schools of thoughts under the Muslim law, a father has been recognized and acknowledged as the natural guardian of his child though, in the case in hand, the donor was father and gift was accepted by real mother of donee on his behalf. Even if the gift was not accepted by the mother, it would not have any adverse impact or effect on the gift made by a father in favour of his minor son. In case a guardian makes a gifts in favour of his ward, he declares the gift as donor and accepts the gift on the part of the donee, the delivery of possession is not compulsory provided that there must be a bona fide intention on the part of the guardian/real father to divest and part from his ownership and pass on it to the donee out of love and affection. According to authoritative and trustworthy texts on Muslim Law, if the donee is minor son of the donor, then delivery of possession itself is not de rigueur or compulsory, as it is foreseeable in case of other donees under a hiba. The possession of the guardian amounts to possession of minor and separately no aliunde evidence is required to prove that the guardian handed over possession of the property to the minor. In this regard, a lucid exposition has been divulged by D. F. Mulla in his book “Principles of Muhammadan Law” in the annotation No.155, that no transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish bona fide intention to give.

CIVIL PETITION No. 1647 OF 2018

Abid Hussain and others VERSUS Muhammad Yousaf and others

PLD 2022 SC 395