Comparative study of gift and will


Wills and gifts are two examples of specific legal forms that are employed when transferring property from one person to another. Even though each of these documents serves the same functions, they are distinct from one another. A will is more of a thoughtful procedure that takes more time to prepare than a gift, which is more or less an immediate process.

Concept of gift

In the broadest definition, a gift is a reward or a sign of appreciation given during special occasions like weddings and birthday parties. However, a gift is regarded by law as a transfer of property ownership from one person to another.

Guidelines for a legal gift under the 1882 Transfer of Property Act

The Transfer of Property Act of 1882 mentions every aspect of a gift. A gift is a transfer of existing moveable or immovable property, as defined by Section 122 of the Act. These transfers must be voluntary and have a good reason behind them. 

The requirements for a valid gift

The following are the set of requirements that are essential for a gift to be considered valid.

The donor and donee should be identified

The individual who transmits the gift is referred to as the donor, and the recipient is referred to as the donee. The donor should be capable of entering into a contract and should be a competent individual. In contrast, the donee need not be capable of entering into a contract. A minor may also be the donee. Giving to the general public is not acceptable, although there can be several donees.

Transfer in ownership

The donor must possess legal title to the property and must be interested in it. The property ought to be transferable by the donor.

Property that can be movable or not

The asset may be mobile, immobile, or of another nature. The only prerequisite is that, at the time the gift is made, the property must be an existing property and be covered by Section 5 of the Act. Any gift of past or future property is invalid.

Accepting the gift

The donee should accept the gift. Gifts must be accepted to be considered valid. The gift should be accepted on the donee's behalf by someone else, such as a parent if the donee is minor or incapable of entering into a contract.

Transfer without Consideration

The gift must be presented out of gratitude. It ought to be moved without any thought. Any payment made in exchange for the gift will be regarded as an exchange rather than a gift. The court determined in Padam Chand & Anr. v. Lakshmi Devi (2010) that a gift is a voluntary transfer of property and ought to be made without receiving anything in return.

Provisions of a legal gift under the Muslim Law

The term "gift" in Muslim law is "Hiba." The Transfer of Property Act of 1882 does not apply to Hiba; instead, it is controlled by Islamic law. Muslims have a variety of options for dividing their property, and one of them is through a gift called Hiba. Hiba, according to Islamic law, is the direct and unrequited transfer of property from one person to another.

The requirements for a valid gift in Muslim Law

In the case of P. Kunheema Umma v. P. Ayissa Umma (1981), the court ruled that a statement by the donor, acceptance by the donee, and the transfer of possession from the donor to a donee are the necessary conditions for immovable property to be legally recognized.

A statement from the donor

To enter into a gift agreement, the donor must have the intention to do so. The gift may be given orally or in writing. The declaration should not be obtained using threats, coercion, etc.

The donee's acceptance

The failure of the donee to accept a gift renders it void by Islamic law. If the donee is a minor, then the gift is legitimate but it should be accepted by a person who is a guardian of the minor. The guardians listed in the Muslim Law's provisions are:

  • Father
  • Father’s executor
  • Paternal grandfather
  • Paternal grandfather’s executor

Giving possession over from the donor to the donee

Hiba should only be transferred from donor to donee. Under Muslim law, as soon as the gift is transferred to the donee and is acknowledged by the donee, the transfer becomes lawful. Possession can be delivered in a real and positive way. From the time of transfer until the time of receipt of ownership, the gift is still valid. It is not essential to register a transfer under Muslim law.

Types of Gifts

These are the different kinds of gifts:

Void gifts

Void gifts include those that are given for unlawful purposes, are made by someone unable to enter into a contract, include both present and future property, and more.

Inter Vivos

Inter Vivos is a Latin phrase that translates to "while living." As a result, such gifts are made while the donor is still alive.

Onerous gifts

Onerous gifts are those that place an obligation on the recipient.

Direct gifts

Outright gifts are those that have no conditions attached to them.

Concept of Will

In a will, a person specifies how their property will be distributed after death. Wills are legal documents. The provisions relating to a valid will are mentioned in the Indian Succession Act, of 1925.

Guidelines for a legal Will under the Indian Succession Act of 1925

According to Section 2(h) of the Indian Succession Act of 1925, a will is a declaration of a person's intentions about his property and assets. The Act mentions provisions for Jains, Sikhs, Jains, Buddhists, and Hindus. Mohammedan Law is used to regulate Muslims.

A person who is of sound mind and has reached the age of 18 may form a will, according to Section 59 of the Act. A person can form a will while they are in a sound or sober state of mind, according to the section, even if they are occasionally of sound mind or occasionally intoxicated.

According to Section 72 of the Act, the will must be worded so that it is clear what the testator's intentions were.

Requisites for a valid will

These are the requisites for a will to be considered valid:

Legal Statement

A will is a legally binding declaration of how a person wishes to divide their property. It is neither a contract nor a settlement.

Determining the testator's intent

A testator is the one who draughts the will. The will is a statement of the intentions or goals of the person who is writing it. The will ought to be valid. A will should not be forced upon or threatened upon the person writing it. This renders the will invalid and unlawful.

Considering the property

A will can be written by the testator using their possessions. One cannot construct a will based on what one does not own.

Signature and beneficiary information

The testator must sign the will, and it must also include the date of the will. Further, the details of the beneficiaries of the will should also be provided.

It belongings to a minor

If a beneficiary is a minor, the beneficiary must designate a guardian to manage the assets until the beneficiary becomes 18 years old.

The court ruled in Gnanambal Ammal v. T. Raju Ayyar (1950) that the testator's purpose should be the key consideration while writing a will.

A valid will's provisions under the Mohammed Law

Wasiyat is the term used for a will in Islamic law. The requirements of the Indian Succession Act do not apply to it. Making a will is subject to severe regulations under Islamic law. A person is not allowed to make a will that covers all of his assets. A Muslim is only permitted to make a will for one-third of the total estate. Anybody can have a will made for them. To respect the prophet Mohammad's teachings, this regulation was put in place. 

Requisites for a valid will

Here are some additional requisites for the validation of the will:

The legator's capacity

The maker of the will is known as the legator. Consequently, to make a will, the person must be a Muslim, be of sound mind, and have reached the age of majority.

The legator's agreement

The individual writing the will shouldn't be threatened or under any pressure to do so.

Competence of legatee

The person on whose behalf the will is made is known as the legatee. This person must be able to hold the property, may or may not be a Muslim, and must be alive at the time the will is made.

The legatee's acceptance

The person in whose name the will is made must accept it and provide their assent. Acceptance may be explicitly stated or inferred. Expressed acceptance is when a party accepts an offer unambiguously. Implied acceptance is when parties accept an offer even though they have not explicitly stated that they do so.


Making a will doesn't involve any special formality. The will may be expressed orally, in writing, or in another way. According to the court's ruling in the 1990 case of Abdul Manan Khan v. Mirtuza Khan, no procedures are necessary when creating a legal will. 

Types of Wills

These are the several kinds of wills:

Contingency wills

Contingency wills are the kinds of wills that take effect if a specific event or contingency occurs. The non-occurrence of the event renders such void.

Joint wills

Wills that have been written jointly by two or more people are known as such.

Concurrent wills

Concurrent wills are created when a person creates two or more documents, one for the disposition of all immovable property and the other for the disposition of all movable property. 

Comparison Between Gift and Will

What are the differences between a gift and a will in Hindu and Muslim law now that we have studied them?


A Gift

A Will

Registration A gift needs to be registered and stamped. A will does not need to be registered or stamped.
Types A gift is an instantaneous transfer of property. A will is a document that transfers property after the death of the person who created it.
Revocation A gift deed is irrevocable. The recipient of a gift takes on the role of the sole owner. A will does not need to be registered or stamped.
Effect Once prepared, a gift is immediately effective. After the maker of the will passes away, the will takes effect.
Nature Any person who is of sound mind and has reached the age of majority may prepare a gift. A will is drafted taking into account the family since it will be distributed within the family.
Challenged If it can be demonstrated that a gift was not given by the donor's wishes, it may be contested.

If the date of the decedent's death is less than 12 years away, a will may be contested.


A gift deed can be utilized in certain situations where a will might cause conflicts between family members who are not listed in the will. A will is a superior alternative because it is not obtained instantly and can be modified, in contrast to a gift, which can be made immediately and cannot be changed in that situation. As a result, each of these documents has advantages and disadvantages of its own and is equally crucial for the transfer of assets. Therefore, the executor must decide between these two.