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Q: 5 What is the difference between “GIFT” & “WILL”? Describe the necessary ELEMENTS of each one?
A: GIFT: The transfer of existing movable or immovable property made voluntarily and without consideration by one person called donor to another donee.
According to Mohammedan Law, 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.
A Hiba or simple gift inter vivos (between living person) has been variously defined.
ESSENTIALS OF A GIFT: Following are the essentials of a valid gift:
1. Declaration of the gift by the donor
2. Acceptance of the gift, expressly or impliedly, by or on behalf of the donee.
3. Delivery of possession of the subject-matter of the gift to the donee.
If any of the above conditions is missing, the gift is not complete.
1. DECLARATION: Declaration does not mean simply an announcement of the gift but it also entails that the donor should have a real intention of making the gift. Tyabi says: “Where there is no real and bona fide intention to transfer the ownership of the subject of gift, an alleged gift may be of no effect.” Gifts without intention may be Sham gifts, colourable or benami transactions, etc.
2. ACCEPTANCE: The donee must accept the gift. This acceptance may be express or implied (that is, by conduct). But the gift of a debt to a debtor or his heir is valid without acceptance and is not invalidated by his rejection. For example, A owes Rs 100/- to B. B makes a gift of this debt of Rs 100/- to A, which A does not accept and insists on paying the money to B. The gift shall, however, by valid and effective even on A’s refusal to accept it.
3. DELIVERY OF POSSESSION: When the donor makes a declaration of a gift and the donee accepts, then the possession of the thing gifted should also be given to the donee. Such delivery of possession may be actual or constructive.
In case there are more donees than one, possession by one co-sharer is presumed to be in the name and on behalf of other co-sharers. If the co-sharer does not admit claim of a person believing that the real co-sharer is someone else, then he to put up an adverse claim to the whole of the gift property, excluding the claim of any other co-sharer. He should be considered as only expressing his doubt about the title of a particular co-sharer.
Registration of gift-deed could not in any way do away with the need of the delivery of possession. Thus, for example, where A makes a gift of a house belonging to him in favour of B, through a registered deed, but does not deliver the possession to B, the gift is incomplete, and therefore void.
The delivery of possession does not mean that the donor must have physical possession of the property and must hand over that physical possession to the donee. It is enough if he has got legal possession as the matter is susceptible of.
Thus, if A makes a gift of the corpus of a property to B, but reserves the usufruct to himself and continues in physical possession of the property, the payment by B of Government revenue after the date of the gift in respect of the property, amounts to constructive possession of the property by B, and the gift is complete and valid.
If a makes a gift of the corpus of a property to B, but reserves the usufruct to himself and continues in physical possession of the property, the payment by B of government revenue after the date of the gift in respec tof the property, amounts to constructive possession of the property by B, and the gift is complete and valid.
If A makes a gift to B of his landlord rights over lands in the occupation of tenants, the gift is complete as soon as the tenants, by direction of A, have paid, or undertaken to pay, rents to B.
Where A makes a gift to B of a promissory note which becomes payable on delivery and endorsement, the gift is complete as soon as the note has been endorsed and delivered to the donee.
DEFINITION OF WILL: According to Fatawa Almgiri, it is a legal declaration of the intention of a testator with respect to his property which he desires to be after his death.
According to Islam, a bequest is a tamleek (passing of possession) of property from a dying person to any other hiring person. A bequest in Islam is a contract.
A will may be defined as a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
ESSENTIALS OF WILL: The following are the essentials of will:
1. Declaration by testator (free consent)
2. Acceptance of living person (Legatee)
3. Testator must:
a. major (under the majority Act, but not under the Islamic law)
b. Sound mind
c. Possessed with ownership of the property
d. Expression of the clear intention either express or implied.
4. The legatee must be competent to take the legatee.
5. The subject of bequest must be valid one.
Bequest must be within the limit imposed on the testamentary power of a Muslim.