Position of the law as regards making a valid gift under Islamic Law
“The central issue in this case was the gift allegedly made to the appellant by one Mairin Gana who died some years after the gift. However three years after her death, the respondent demanded for the division of her inheritance inclusive of the said house but was told that the particular house was given to the appellant as gift.
Under Islamic Law, a person may lawfully make a gift of his property to another during his life time or he may even give it away to someone after his death by will. The first is called a disposition inter vivos, the second is a testamentary disposition. It pertinent to note that disposition inter vivos, is unfettered as to quantum but a testamentary disposition is limited to one third of the net-estate. Thus, a man is allowed under Islamic Law to give away the whole of his property during his life time.
And the essential elements of valid gift are-
(a) A declaration by the donor: there must be a clear, unambiguous intention of the donor to make a gift and this may either be oral or written.
(b) Acceptance by the donee: a gift is void if the donee has not given his acceptance but a guardian may accept on behalf of a minor.
(c) Delivery: this can either be actual or constructive depending upon the nature of the subject matter of the gift.
Under the general principles of Islamic Law, a gift is void if it remained in possession of the donor until his death. However, a gift cannot be void if the donor made a will or a person who is having the care of a child made a gift for such child under his care “Sahifi” and that gift continues to remain in his possession till his death provided he has made it known to the people before his death. Such gift is not void since the donor had been using the gift for the benefit of the donee. See AHMAD V. UMARU (Prt 503) 103 at 112.
In the case of USMAN V. KAREEM (Supra) this Court had inter alia held that even if the donee died before taking possession of the thing donated, his heirs can claim it as part of his estate.
Although there are overwhelming evidence pointing at the gift of the house to the appellant in the present appeal but there is no corresponding evidence of delivery of possession (hauzi) which is also an essential element of a valid gift. The question as to whether the donor was paying rent to the donee before her death was nowhere substantiated. The lower Court was therefore right in affirming the judgment of the trial Court.”
As held in the case of
TALLAHI v. ADABKA (2018) LPELR-44507(CA)
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