1. The concept of gift takes a center stage in Islamic faith. Muslims are required to believe that the powers of sight, thought and hearing are gifts from Allah. Indeed, in the Quran, Allah says – “[God is] He who has brought you [all] into being, and has endowed you with hearing, and sight, and hearts: [yet] how seldom are you grateful!”.1 In Hadith context, the Prophet Muhammad (SAW) encouraged gift giving and it has been narrated by Abu Huraira (RA) that the Prophet Muhammad (SAW) said “I shall accept the gift even if it were an arm or a trotter of a sheep.”2
2. With such importance of the concept of gift in the foundational documents of Islam, its practice has been developed by eminent Islamic jurists over time to detailed workings and mechanisms. It is without doubt that in Islam, broadly speaking, for a gift to be valid, three conditions must be satisfied – namely – (1) a manifestation of the wish to give on the part of the donor; (2) the acceptance of the donee, either impliedly or expressly; and (3) the taking possession of the subject-matter of the gift by the donee, either actually or constructively.
3. The recent (and ongoing) debate about the amendment to the Transfer of Property Act 1882 (TP Act) by the new addition of Section 122A has given rise to a fundamental question of validity of gift under the prevailing Islamic laws. Section 122A in short stipulates that a transfer of movable or immovable property by way of gift reserving the right of lifetime enjoyment (lifetime usufruct rights) of the property by the donor shall be valid.3 The new Section also states that this type of transfer by way of gift shall constitute a distinct mode of transfer and shall not be construed as limiting, derogating from, or otherwise affecting the validity of any gift or Heba.4
4. To put it mildly (and colloquially), the new Section 122A of the TP Act has thrown a spanner in the works because the expression “reserving the right of lifetime enjoyment (lifetime usufruct rights) of the property by the donor” challenges the mandatory requirement of taking actual or constructive possession of the subject-matter of the gift by the donee. The problem can be illustrated by some examples.
Example 1: A father donates his flat to his son who lives in the same flat. The son accepts the flat as gift. The father stipulates in the gift deed that he shall have the right to live in the flat or enjoy the rents if the flat is let out during his lifetime. The son accepts the flat as gift under these conditions.
Example 2: A father donates his flat to his daughter who lives in another flat. The father stipulates in the gift deed that he shall have the right to live in the flat or enjoy the rents if the flat is let out during his lifetime. The daughter accepts the flat as gift under these conditions.
5. Is there any fundamental difference between the two examples above and would Section 122A of the TP Act react the same for these two situations? To put it in another way, has the requirement of passing possession of the subject-matter of the gift (here, the flat) to the donee (the son or the daughter) been satisfied in both the examples? To answer these questions, let us begin with the law first. In the celebrated case of Controller Of Estate Duty v. Jameela Begum,5 it was held that the reservation of a right to the usufruct in favour of the donor in a gift deed is valid even under the Mohammedan law. The word “usufruct” means the right to use and enjoy the fruits of another’s property.6 At first glance, it may appear that in both examples above, the expression “right of lifetime enjoyment (lifetime usufruct rights) of the property” in Section 122A(1) of the TP Act satisfies the requirement of the holding of Jameela Begum case. But it is not because of two reasons. Firstly, Jameela Begum case does not deal with usufructuary possessory rights (lifetime enjoyment of the flat in our examples) but only deals with usufructuary rights over income (rent in our examples) from the gifted property. Secondly, as a matter of Islamic doctrine, a Muslim donor reserving to himself a usufruct on the gifted property for life manifests an intention not to give possession. Under the Islamic doctrine, the reservation in the form of any interest similar to a “life interest” or the reservation of any effective control over the corpus of the gift will invalidate the gift; but the reservation of the annual fruits of the property, without control of the corpus, is permissible. The expression “life interest” has been held to mean holding lifetime enjoyment of a property.7 So, it follows that any reservation in the form of a “life interest” or lifetime enjoyment of the gifted property will not satisfy the requirement of passing possession of the subject-matter of the gift to the donee and will invalidate the gift under Islamic law.
6. Based on the above principles, Example 2 will not satisfy the possession requirement for a valid gift. For Example 1, it could be argued that since the father and son are residing in the same premises, on this basis the possessory usufruct (father’s right to live in the flat or enjoy the rents during his lifetime) may survive since on the execution of the deed there would be no change in the occupancy of the flat to denote that the donees had come into possession as a result of the gift. In other words, it could be argued that where the donor and the donee are present on the same premises which form the subject of the gift, an appropriate intention may put the donor out of possession and the donee into it without any actual physical departure or formal entry. This proposition becomes more forceful when there is a gift of immovable property by a parent to his or her minor child. The parent will probably in all such cases remain in possession since the donee is a minor, and in those cases the possession requirement of the gift is complete on the parent’s declaration that a gift has been made, and thereafter his or her possession is the possession of the minor donee. But for an adult child, it could still be argued that in Example 1, any reservation in the form of a “life interest” or lifetime enjoyment of the gifted property without exhibiting any act of possession handover of gifted property to the donee will not satisfy the requirement of possession handover and will invalidate the gift under Islamic law.
7. It has been clarified by the Law Minister during Parliamentary debate that Section 122A(1) is a secular provision and applies to people of all religion in Bangladesh and that Section 122A(4) makes it clear that the Islamic methods of Heba will not be affected by Section 122A of the TP Act.8 However, the Law Minister’s explanation has not answered the questions stemming from the newly inserted section. Does it mean that Muslims in Bangladesh can opt for gift under Section 122A(1) or 122A(4) alternatively, when under Islamic law, Muslims cannot gift away property in non-Islamic manner? Does it also mean that Section 122A(1) of the TP Act stipulates to validate a type of usufruct (lifetime enjoyment of the property by the donor) for which under Islamic law there appears to be serious restriction?
8. It must be remembered that in Islamic law, exceptions to general principle are construed strictly in jealous regard for safety of those general principles and divine commandments from Allah. The above discussion shows that the newly inserted Section 122A of the TP Act has raised serious doubts about whether the exception to the general principles of gifts under Islamic law has been stretched beyond the permissible limit.
Written By: Junayed Chowdhury, Managing Partner.
1.Surah Al-Mulk (67:23 Quran)
2.Sahih al-Bukhari, The Book of Gifts, [3:742-O.B]
3.Section 122A(1).
4.Section 122A(4).
5.101 ITR 165 (Mad)
6.Black’s Law Dictionary, Eighth edn.
7.Kundan Singh v. Jadon Prasad, Allahabad High Court, Jul 8, 1919
8.https://en.prothomalo.com/opinion/interview/2r03hcq3w1 accessed on 12.09.2026
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