Transfer of Property Act (TPA)
Gifts under the Transfer of Property Act and Gifts under Muhammadan Law: The Two Regimes Compared
Section 129 saves the rules of Muhammadan law from the operation of the gift chapter, and the two regimes differ at the point that matters most — what completes the gift. Under the Act it is a registered instrument, attested by two witnesses, with acceptance; delivery of possession is not required. Under Muhammadan law it is declaration, acceptance and delivery of possession; no writing, registration or attestation is needed at all. A student who applies the wrong set of requirements to a hiba will reach the wrong answer every time.
1. The Saving
Section 129, TPA 'Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law.' The saving is of the rules of Muhammadan law, and it means that a gift by a Muslim is tested by those rules and not by sections 122 to 128. The general provisions of Chapter II of the Act, so far as they are not inconsistent, are not displaced by the section. |
2. The Essentials of a Hiba
- Declaration by the donor — an unequivocal expression of the intention to give, made with a free and voluntary mind.
- Acceptance by the donee, express or implied, made in the donor's lifetime.
- Delivery of possession — qabza — actual or constructive, according to the nature of the property. This is the element the Act does not require and Muhammadan law does.
No writing is necessary. Where the parties do reduce a completed hiba to writing, the document is a record of what has already taken place, and it does not require registration on that account. It is otherwise where the document is itself the instrument by which the gift is made.
3. The Comparison
Point | Gift under the Act — ss. 122 to 128 | Hiba under Muhammadan law |
|---|---|---|
Governing law | Sections 122 to 128 of the Act | The personal law, saved by section 129 |
Formalities for immoveable property | A registered instrument, signed by or on behalf of the donor and attested by two witnesses — section 123 | No writing, registration or attestation is required |
Delivery of possession | Not essential. The gift is complete on registration, attestation and acceptance | Essential. Declaration and acceptance without delivery of possession do not complete the gift |
Acceptance | Essential, during the donor's lifetime and while he is capable of giving | Essential, in the donor's lifetime |
Future property | A gift of future property is void — section 124 | A gift of what does not exist is likewise invalid; but a gift of the corpus with a grant of the usufruct to another is recognised |
Gift of an undivided share | A gift of an undivided share in property is valid, the donee taking the share | The doctrine of musha — a gift of an undivided share in property capable of division is irregular unless the share is separated and possession delivered, though the doctrine has been confined by the courts and does not apply in several recognised situations |
Revocation | Irrevocable once complete, save by agreement on a specified event not depending on the donor's will, or on a ground on which a contract might be rescinded — section 126 | Revocable before delivery of possession at the donor's will; after delivery, only by a decree of the court, and never in the excepted cases |
Conditional gift | A condition that the property shall revert at the donor's mere will makes the gift void; other conditions may operate under section 126 | A gift with a condition that derogates from the grant is valid as a gift, and the condition is void — the gift takes effect absolutely |
Life interest and usufruct | A donor may reserve a life interest or a right of residence; the gift of the property subject to it is valid | A grant of the usufruct alone is an ariyat, a licence to use, and not a hiba of the corpus |
4. The Cases Where Delivery Is Not Required
Muhammadan law itself relaxes the requirement of delivery of possession where possession in the ordinary sense is impossible or would be meaningless.
- Where the donor and the donee live together in the property gifted, and the donor has done all he can to divest himself and to put the donee in possession.
- Where the donor is the guardian of the minor donee, whether father or other legal guardian — a declaration and a bona fide intention to transfer suffice, since the same person holds in both capacities.
- Where the property is already in the donee's possession, as tenant or bailee; a declaration then completes the gift.
- Where the property is incapable of physical possession, and constructive delivery — handing over documents, directing tenants to attorn, mutation of the records — is the most that can be done.
- And a gift by a husband to his wife, or between persons in a like relation, is treated indulgently on the question of possession.
5. Revocation Compared
Under the Act | Under Muhammadan law | |
|---|---|---|
Before the gift is complete | There is no gift to revoke; the transfer is not made until the requirements of section 123 and acceptance are satisfied | Freely revocable before delivery of possession, by the donor's own act |
After completion | Irrevocable, except by agreement on a specified event not depending on the donor's will, or on a ground on which a contract might be rescinded | Revocable only by a decree of the court, and the donee remains owner until the decree |
Cases where revocation is barred | — | Where the donor or donee has died; where the donee is related to the donor within the prohibited degrees; where the gift is to a spouse; where the thing has been transferred by the donee, is lost or destroyed, or has increased in value so as to be unrecognisable; and where the gift was a sadaqah or made for a religious purpose |
6. What This Means in Practice
- Ask first whose law applies. A gift by a Muslim of immoveable property is a hiba, and section 123 has nothing to do with it.
- Then look for the three essentials of a hiba — declaration, acceptance and delivery of possession, with the recognised relaxations.
- Do not ask whether the deed was registered. A hiba is good without a deed; and where a deed exists, ask whether it records a completed gift or is the gift.
- And remember the conditional gift. A condition repugnant to the grant is void under Muhammadan law and the gift stands absolutely, which is the opposite of the result section 126 would produce for a gift revocable at the donor's will.
7. Landmark Cases
📖 Hafeeza Bibi v. Shaikh Farid, (2011) 5 SCC 654 Held: The Court held that the three essentials of a valid gift under Muhammadan law are declaration, acceptance and delivery of possession, and that a hiba is not required to be in writing or registered. Where the parties reduce a gift to writing, the question is whether the document merely evidences a gift already completed by the three essentials, or is itself the instrument by which the gift is made. A writing of the former kind does not require registration; section 129 preserves the rule of Muhammadan law against the requirements of section 123. Ratio: A hiba needs no writing or registration; a deed that merely records a completed gift is not the instrument of transfer. |
📖 Renikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445 Held: Under the Act, delivery of possession is not a condition precedent to a valid gift of immoveable property. A registered instrument attested by two witnesses, together with acceptance by the donee in the donor's lifetime, completes the gift, and the donor may reserve to himself the enjoyment of the property during his life. Ratio: The contrast with a hiba: under the Act it is registration and acceptance that complete the gift, and not possession. |
8. Related Topics and Provisions
- Gifts, Sections 122 to 129 — the chapter in full
- Section 129, TPA — the saving, and donatio mortis causa
- Section 2, TPA — the wider saving of rules of personal law
- Application of the Act, Extent and Personal Laws — the general position
- Section 123, TPA — the formalities that a hiba does not attract
- Section 126, TPA — revocation, and the contrast with revocation of a hiba