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| Gift Law in Pakistan - Hiba Law in Pakistan |
In the name of ALLAH, the most beneficent, the most merciful
1.
What is gift?
2.
Does an Oral Gift Valid? or Only Written
Gift Deed (Hiba Nama-ہبہ نامہ ) is valid?
3.
What
is Mutation of Oral Gift (ہبہ انتقال زبانی )?
4.
How to write a Gift Deed?
5.
Registration of Gift Deed?
6.
Registration charges on gift deed?
7.
Can a gift deed be challenged in
court?
8.
Cancellation of Gift Deed?
1. What is gift?
The definition of gift (also called Hiba) is provided in
section 122 of “The Transfer of Property Act 1882”, which speaks as under:-
122. “Gift” defined.– “Gift” is
the transfer of certain existing movable or immovable property made voluntarily
and without consideration, by one person, called the donor, to another, called
the donee, and accepted by or on behalf of the donee
Acceptance when to be
made.– Such acceptance must be made during the lifetime of the donor and while
he is still capable of giving. If the donee dies before acceptance, the gift is
void.
Before
explaining many other things in this section, I would like explain three terms (1)
Donor (2) Donee (3) Gifted property. The Donor is a person, who gifts out his
property. The donee is the person in whose favour property is gifted out (3) Gifted
Property is the property, which the donor gifts-out to the donee.
Other
six things which are mentioned in section 122 of transfer of Property Act (TPA),
and require clarification are as under:- first thing, a gift is the transfer
of property either movable or immovable by the donor to the donee, second thing,
this transfer must be made voluntarily means without any pressure or coercion
on the donor, third thing, the gift should be without consideration, fourth
thing, the gift should be accepted by the donee himself/ herself or through
his/her representative, fifth thing, the acceptance of gift by the donee
must be made during the life time of donor and at that time the donor must also
be capable of gifting out the property, sixth / last thing, if
the donee dies before he accepts the gift, the gift is void. Means, the acceptance
of gift by the donee is also mandatory during his life time and the gift will
not be considered valid if only donor offers about gift and donee dies before
acceptance.
2. Does an Oral Gift Valid? or Only Written Gift
Deed (Hiba Nama-ہبہ نامہ ) is valid?
Though, a gift can be made orally but it is not the
recommended way especially for immovable property because the Oral Gift cannot be proved easily in the court. An Oral
Gift, without writing a Gift Deed, paying Stamp Duty and other taxes, is not itself
a proof of ownership in the name of donee and in such case, the donee has to file
a suit in the competent court of law and has to establish that the property was
gifted to him by the donor, and after following other legal formalities, the donee
can get title document (ownership document).
So, I recommend you to always
write a Gift Deed, pay the Stamp Duty and other taxes and also get it
registered with Sub Registrar concerned.
Because, in the process of
gift, the ownership rights are intended to be transferred in the name of donee,
therefore, its registration is mandatory under section 17 of THE REGISTRATION ACT 1908.
3. What is Mutation of Oral Gift (ہبہ انتقال زبانی )?
Mutation (Inteqal) of Oral Gift, also called (ہبہ انتقال
زبانی ) is another way, by which the
property in Rural Areas can be gifted out.
During the process of mutation of oral gift, neither any Gift
Deed is drafted nor gets registered. In this case, the donor has to appear before
the Patwari concerned and then Revenue Officer (Usually Tehsildar), and after
recording of statements of the parties, the Mutation of Gift is entered and
then sanctioned. This process also involves payment of different fees/ taxes.
Be Aware,
Mutation of oral gift as stated above is not the recommended way for transferring
the property because it does not create any title as held by the Supreme Courts
of Pakistan in number of cases. The courts say that the mutation is not a
document of title and meant for fiscal purpose only.
If at any stage, the Mutation of oral
gift is challenged before the
However, if the mutation is sanctioned on
the basis of registered Gift Deed, then its ok but only Mutation of Gift
without being followed by registered Gift Deed, is not the safe way to transfer
the property.
On the other hand, a registered Gift
Deed is a title document and even if it is challenged before Civil Court, it
is not very much easy to get it cancelled because the court give more
importance to a registered document as
compare to only mutation.
4. How
to write a Gift Deed?
Writing a Gift Deed is tricky
but not difficult task. To avoid any future disputes, the Gift Deed should be
drafted with great care and by taking all precautionary measures. Three
ingredients of Gift should also be considered when writing a Gift Deed. These
three ingredients are (1) Offer (2) Acceptance (3) Delivery of possession.
How
to write a Gift Deed, you can download formats from the links given below:-
Click
here to download Gift Deed in English
Click here to download Gift Deed (Hiba Nama) in Urdu
5. Registration
of Gift Deed?
As stated above, the registration of Gift Deed is mandatory under section 17 of THE REGISTRATION ACT 1908.
The registration of Gift Deed,
involves various steps for example, like Arranging various
documents like Record of rights (FARD) and Mutation (if applicable) from
Patwari or Arazi Record Centre (Land Record Centre), previous Registry, CNICs
of donor and donee etc, CNICs of witnesses, Purchasing Stamp
Papers from Bank of Punjab by filing out E-Challan online, Drafting
Gift Deed, Paying various taxes like Stamp Duty, Registration
Fee, Transfer of Immovable Property Tax (TIP) etc, Making statements before
the Sub Registrar concerned
6. Registration charges on gift deed?
The expenses on registration
of Gift Deed are not fixed and may vary depends on number of things for example,
where property is situated either in Rural Area or Urban Area, within limits of
Metropolitan Corporation or Cantonment area?, What is DC (Deputy Commissioner) rate
of that property? In whose favour (legal
heir or not) property is gifted out.
In
As far as Registration Fee is
concerned, same is fixed and is to be paid along with Stamp Duty, when filling E-Challan
online for obtaining Stamp
Papers.
In Punjab, the registration
fee of Gift Deed is only Rs. 500/- if the value/ price / DC Rate of the property does
not exceeds Rs. 5,00,000/-. On the other hand, if the DC rate of the property exceeds
5,00,000/-, then Rs. 1000/- is required
to be paid as registration fee for Gift Deed.
7. Can
a gift deed be challenged in court?
The validity of any Gift,
made either through mutation of gift (oral) or through registered Gift Deed can
be called in question in court but the thing which is to be proved by the challenging
person is that the gift was not made by the donor voluntarily or there was some
pressure on the donor, and some fraud or misrepresentation was done.
8. Cancellation
of Gift Deed?
The Question is to whether (1)
Cancellation of Mutation of Gift or (2) cancellation of registered
Gift Deed, because these two things are different from each other, the
detail of which has already been described earlier.
If a registered Gift Deed is
required to be cancelled, only Civil
Court can be approached by way of filing a suit for declaration,
cancellation and seeking other relief.
If a mutation of Gift is required
to be cancelled, that too containing long standing entries or mutation of gift
is alleged to have been sanctioned by committing fraud or misrepresentation, in this case too, only
Many applications regarding Cancellation
of mutation of gift, wherein it is alleged that the mutation is outcome of
fraud, are filed before Revenue Officers but these applications are some time rejected
by the Revenue Officers themselves and sometime their decisions about cancellation
of mutations are set aside by the Civil Courts or High Courts, because the Revenue
Officer has no authority/ jurisdiction to cancel any mutation entered and
sanctioned on the basis of fraud. The power of cancellation of mutation
of gift, sanctioned on the basis of fraud lies with only
However, if there are some apparent
clerical mistakes in the entries of Revenue Record and there is no element
of fraud in it, such entries can be rectified by Revenue Officer. So, the correction
of clerical mistakes is something different from cancellation of gift mutation,
which is outcome of fraud.