Theoretical overview
Hiba is considered as a gift under Muslim law. Generally, gifts are governed under Transfer of Properties Act,1872 but these provisions of gift does not apply in Muslim justice system. Under Muslim law, gifts are called as Hiba which means transfer of rights of property in substance to another without anything in return. This gift can be any property either acquired or inherited and can be made with or without condition.
Gifts can be given in Corpus which means a body of gift, where no condition applies. It can also be given in Usufruct, which means giving right to enjoy the use and advantages of the property and this can be made with a condition.
Essentials for a valid gift
- donors declaration with real and bonafide intention – to understand this essential, it is first important to understand what is the capacity of a donor. A donor must be a Muslim who is of sound mind and has attained the age of majority. He can be any male or female, married or unmarried. Moreover, in case of a guardian of the minor, he must have attained the age of 21. Clear and unambiguous intention must be there to make the gift. The declaration can be made oral or written. Under Muslim law, registration is not necessary for the gift.
This gift need not to be registered or attested or to be stamped. It should be free from all impediments like coercion or fraud.
- Donee’s acceptance – if the gift is not accepted by the Donee, then it becomes void in itself. A legal guardian can accept the gift on behalf of any insane person or a minor. A child in womb is also eligible to be a donee but he must be produced alive within 6 months of the acceptance.
- Delivery of possession by the donor and taking of the possession by the donee – that delivery of possession must be made to the Donee. The process will be complete only when it is transferred to the Donee. The valid effect will commence from the date of the transfer and acceptance and not from the date of declaration. Delivery of possession can be made in any mode depending on the nature of the property.
Conditional gift and future gift
conditional gift is made with some conditions. for example – A will sell to be B, a house only when B won’t transfer it to a particular person. Here he has made a conditional gift
future gift – the object of the future gift must be in existence at the time of the gift is made. Anything to be performed in future is void. for example, A promises B to give mangos of his trees to B. here the object of the future gift is in existence, so it is a valid future gift.
Kinds of Hiba
there are some institutions which appears to be similar to the Hiba but they are clearly distinct from it. these are as follows: –
Ariat
It means the giving of the usufruct without anything in return. When someone grants another person liscence or a right of use or enjoyment of a property without any consideration is said to performed ariat.
Sadaqa
The the gift of some property is made with the objective of acquiring some religious or spiritual benefit.
Hiba-bil-iwaz
Here the word iwaz means return. It is a type of gift where gift is made in return of something. The return is not contemplated. The transaction is complete when something was given in return unintentionally.
Hiba-ba-sharat-ul-iwaz
It is a gift made with consideration or stipulation(sharat). Here, stipulation is put to make iwaz. The contemplation is intentionally.
Revocation of the gift
Revocation of the gift made before the delivery of possession
Under muslim law, all gifts are revocable before the transfer of possession. From this act, it is contemplated that donor has changed his mind and does not want Hiba. No order of court is necessary.
Revocation of the gift made after the delivery of possession
Mere declaration of revocation by the donor is not sufficient till a decree of court is passed revoking the gift, the donee is entitled to use the property in any manner. The decree of court is a requisite for this type of revocation.
Relevant section
It is governed under shariat act which is not codified in itself
Important case laws
Illahi Samsuddin vs. Jaitunbi Maqbul – it was held that under Muslim law, declaration as well as acceptance of the gift may be oral or written or whatever may be the nature of the property gifted. Where gift is made in writing, it is known as Hibanama.
Points to remember
- Hiba is considered as a gift under Muslim law
- Under Muslim law, gifts are called as Hiba which means transfer of rights of property in substance to another without anything in return.
- This gift need not to be registered or attested or to be stamped. It should be free from all impediments like coercion or fraud.
- if the gift is not accepted by the Donee, then it becomes void in itself
- The valid effect of gift will commence from the date of the transfer and acceptance and not from the date of declaration
- Under Muslim law, all gifts are revocable before the transfer of possession
