Mussa Miya walad Mahammed Shaffi v. Kadar Bax (1928)

Quick Summary

A grandfather said he gifted all his property to his minor grandsons. He kept control and possession till death. The Privy Council held the gift (hiba) was not complete because there was no delivery of possession. The letters showed only a testamentary intention and worked as a will, not as a present gift.

• Privy Council
• 1928
• AIR 1928 PC 108

Issues

1. Is a gift made by a maternal grandfather to his minor grandsons, represented by their father, valid when the donor keeps possession?

Rules

Under Muslim law, a hiba requires: (1) clear declaration, (2) acceptance, and (3) delivery of possession. If the donor retains control, the gift is incomplete, unless a narrow guardian exception applies (not extended to every grandparent).

Facts (Timeline)

Arguments

Judgment

The Privy Council held there was no valid gift because the donor did not deliver possession or give up control. The letters showed an intent that the grandsons should have the property after his death, so they operated as a will, not a present hiba. The guardian exception did not apply because the donor was not the legal guardian in the required sense.

Ratio Decidendi

For a hiba to be complete, delivery of possession is essential. Mere statements or letters are not enough if the donor keeps possession. A grandparent is not automatically a guardian whose gift is complete without delivery.

Why It Matters

• Clarifies the gift vs will line under Muslim law.
• Highlights the mandatory role of possession in completing a hiba.
• Guides drafting and family planning for minor beneficiaries.

Key Takeaways

• Hiba needs possession — control must pass.
• Letters showing “after death” → act as will, not present gift.
• Grandparent ≠ automatic guardian exception.

Mnemonic + 3-Step Hook

Mnemonic: “G-I-F-T” — Give + Intend + Formal Transfer (possession).

1. Check words: gift now or after death?
2. Check possession: did control move?
3. Classify: if no possession → it’s a will.

IRAC Outline

Glossary

Hiba

A present, unconditional gift under Muslim law requiring delivery of possession.

Delivery of Possession

Handing over control so the donee becomes the real holder of the property.

Guardian Exception

Limited rule allowing gift completion without physical delivery when a legal guardian transfers to a minor in some cases.

FAQs

Related Cases

• Abdul Rahim v. Sk. Abdul Zabar — delivery and intention in Muslim gifts.
• Nawab Jan v. Hamida — requisites of valid hiba to minors.
• Ameena Bi v. Kadar Kutti — distinction between gift and testamentary bequest.