Laws For everyday life
How to gift immovable property?
Syed Gouseuzzaman Haideri Ali
Gift is one of the modes of transfer property. In every society and in every legal system there is a provision for making gift. Gift is a transfer of movable or immovable property made voluntarily and without any consideration. In Indian Subcontinent there are provisions of gift in:
(1) Transfer of Property Act 1882
(2) In Muslim Hanafi Law
(3) In Muslim Shia Law
(4) In Hindu Dayabhaga Law
(5) In Hindu Mitakhshara Law
Last week, we discussed the way of gift under Muslim Hanafi law. This week, the rest of the provisions are discussed below:
Gift according to Shia law
Provisions of gift under Shia Law are almost similar to Hanafi law except which are mentioned below.
(1) Revocation of gift
In Hanafi law a gift can be revoked only by the decree of a court but in Shia law the decree of a court is not necessary. A gift can be revoked only by the declaration of revocation by the donor. In Hanafi law gift between husband and wife is irrevocable but in Shia law gift between husband and wife is revocable. In Hanafi law gift is irrevocable when the donee is related to the donor within the prohibited degrees. In Shia law gift to any blood relation is irrevocable whether the donee is within the prohibited degrees or not.
(2) Gift with a condition
In Hanafi Law, when gift is made with condition then the gift will be valid and the condition will be void. Under Shia law if the condition is subsidiary to the gift then both the gift and the condition are valid. If the gift depends upon condition attached then both the gift and the condition will be void.
(3) Gift with life interest
Shia law recognises gift with life interest. In Hanafi law gift of life estate of the corpus of the property is not valid but the gift of life estate of usufruct, profit or interest of the property is valid.
Gift under Hindu law
Hindu law defines gift as the creation of another person's proprietary right after the extinction of one's own proprietary right in the subject matter of the gift. In Hindu Laws the essentials of a valid gift are:
(1) an offer or declaration of gift by the donor,
(2) an acceptance of gift by the donee,
(3) and delivery of possession of the subject matter of gift.
In Hindu personal law writing or registration of gift is not essential. Gift may be completed only by delivery of possession but, at present gift under Hindu Law can be effected only by section-123 of T.P. Act, where registration is compulsory.
Gift under Mitakhshara School of Hindu law
Mitakhshara School is prevalent in the western part of India. According to Mitakhshara School a Hindu may dispose of his separate or self-acquired property by way of gift. But he cannot dispose of his coparcenary interest by way of gift unless he is the sole surviving coparcener.
Gift under Dayabhaga School of Hindu law
Dayabhaga School of Hindu law is prevalent in the eastern part of India and in Bengal. According to Dayabhaga School a Hindu can dispose of his separate and self-acquired property and also his coparcenary interest by way of gift. But his coparcenary interest is subject to the claims of those who are entitled to be maintained by him.
The writer is an Advocate of the Supreme Court of Bangladesh.