Comparative study of Gift under Islamic Law and Transfer of Property Law: Indian perspective
15 Pages Posted: 13 Sep 2009 Last revised: 18 Sep 2009
Date Written: September 11, 2009
Section 122 of the Transfer of Property Act provides that a ‘gift’ is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. In general, Islamic law draws no distinction between real and personal property, what Islamic law does recognize and insist upon, is the distinction between the corpus of the property itself and the usufruct in the property. Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a ‘gift’ of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Muslim law they are only usufructuary interest (and not rights of ownership of any kind). There is no difference between the several schools of Islamic law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools. There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Hiba bil mushaa, Sadkah, and Ariya.
As in India uniform civil code is not applied so which law will govern the gifts of property. We have transfer of property Act, Indian Succession Act, Registration Act, Indian Majority Act, and Guardianship Act, Civil procedure code. There are personal laws of various communities. So in the moment of conflict of laws Hiba, which law will prevail‘
The paper is divided into V Parts; Part I deals with the capacity to give and receive the gifts, Part II deals with different kinds of gifts, Part III deals with the transfer of possession, Part IV deals with requirement of writing and registration, Part V deals with contingent and conditional gifts.
The paper compares Hiba under Islamic law and transfer of Property Law of India and concludes that Islamic law is more futuristic and easily applicable have less procedural requirements. While transfer of property law requires lot of procedures and poses difficulties in providing gifts.
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