Adv. Zahid Ahmed Hero

Gratuitous transfer of ownership in a property may be made in two ways. Firstly, transfer may be made inter vivos between living persons without any consideration, then it is called gift and secondly, transfer of ownership may be made testamentary, which in common parlance is called will. Testamentary transfer is executed under a will which is a gratuitous transfer of one’s ownership in property. But will takes effect only after the death of testator. On the other hand a gift takes effect immediately after its completion whereas; a will operates only after the death of the transferor. The legal consequence is that in a gift, the transferee or done gets the property as soon as its legal formalities are completed but under a will, the person who is the transferee gets nothing before the death of the transferor or testator. A will signifies the last desire of the person regarding the distribution of his properties after his death.
Gift under Muslim law is a transfer of property in which ownership is transferred by one living person to another living person and the transfer is made without any sort of consideration. Under Muslim law, where ownership in a property is transferred in return of some consideration, the transfer is not gift; it is either sale or exchange. As per Muslim Sharia law, a gift is called Hiba. When a Muslim transfers a property through gift, the transfer is called Hiba. Gift is an unconditional transfer. Gift or Hiba signifies an act by which a person confers his rights of ownership in a property upon another person. Under Muslim law a person can make a gift of his whole property to anyone during his life time, and under pure sharia law gift can be made orally. But under the prevailing law of the land, a gift now must be in writing and registered for its absolute validity and enforceability. There are three essential elements of a making a valid gift i.e. declaration, acceptance and delivery of possession and the donor must be adult, person of sound mind and Muslim. Regarding revocation of a gift, the law is once delivery of possession is completed, gift cannot be revoked, but before the delivery of possession gift can be revoked at any time by the donor. Because Under Muslim law a gift is completed only after the delivery of possession.
Will under Muslim Law is called wasiyyat. There is some restriction upon a Muslim will in terms of quantum of land as well as in terms of its effects being taking place. As per Muslim sharia Law, one cannot make a will validly more than one third of his whole property and a will becomes effective only after the death of the testator and necessary probate or letter of administration must be taken in due process of law to make a will completely and legally effective in the eyes of law. The person who executes the will is called legator and the person in whose favour the will has been made is called the legatee. In common popular language a will is also called testament. The person who makes a will is also called the testator and the person who gets properties through will is called testatrix. One of the essential characteristics of will is that the legatee must be in existence at the time of the death of the legator. Where a legatee dies before the legato’s death, the will fails. Interestingly, if the testator executes a will before attempting to commit suicide, the will is valid under Muslim Sharia law.
The basic difference between gift and will is that a Muslim can transfer his entire property through gift but, he has no right to make a will of his whole property except one third and a gift takes effect immediately but, a will takes its effect only after the death of testator.
Gift and will under Hindu Law perspective is little bit different from Muslim Law’s concept. The nature of gift, its effectiveness and the other legal formalities are almost same with that of Muslim law, only the difference is a gift under Hindu law is once completed, it cannot be revoked unless obtained by practicing fraud and undue influence but, The concept of will in Hindu Law is different in terms of quantity of property i.e. A Hindu can bequeath or make a will the whole of his property to anyone, there is no restriction like one third in Hindu orthodox law of will. But here also will takes effect after the death of the legator and at that time the legatee must be in existence. And probate is must to be taken for legalization of a Hindu will by filing a probate case in the civil court and having a decree thereby.
The Indian nationals have come apart from their orthodox shasriya Law regarding will or gift. They have passed separate and distinct legislations through their parliament to deal with the matter of will, Gifts and succession. There are in India several distinct legislations i.e.
Hindu Wills Act, 1870
Probate and Administration Act, 1881
The Succession Act, 1925 and all these legislations thoroughly provides procedure and laws regarding the execution and validity of a will and gift made by a Hindu but, in our country there is no such Act or legislation to deal with these above mentioned matters for Hindu Community.

LL.B (Hon’s) 1ST Class
LL.M 1ST Class
Dhaka University
Advocate , Supreme Court of Bangladesh