GIFT

HIBA
GIFT..
Under Muslim Law, the concept of Gift
developed much during the period of
610 AD to 650 AD. In general, Muslim
Law draws no distinction between real
and personal property, and there is no
authoritative work on Muslim law,
which affirms that Muslim Law
recognizes the spitting up of ownership
of land into estates. What Muslim law
does recognize and insist upon, is the
distinction between the corpus of the
property itself (called as Ayn) and the
usufruct in the property (as Manafi).
Over the corpus of property, the law
recognizes only absolute dominion,
heritable and unrestricted in point of time.
Limited interests in respect of property are
not critical with the incidents of estates
under the English law. Under Mohammedan
law, they are only usufructuary interest
(and not rights of ownership of any kind).
Thus, in English law a person having
interest in the immovable property for
limited periods of time is said to be the
“owner” of the property during those
periods and the usufruct is also regarded
as a part of the corpus.
The Transfer of Property Act, 1882
under Chapter VII talks about gifts
and the procedure for making the
same. Yet as per section 129 of the
Act, the Transfer of Property Act,
1882 does not apply to the Muslims
making the gift.
Essentials of HIBA
Since Muslim law views the law of
Gift as a part of the law of contract,
there must be an offer (izab), an
acceptance (qabul), and transfer
(qabza).
In Smt. Hussenabi v Husensab Hasan,
a grandfather made an offer of a gift
to his grandchildren. He also
accepted the offer on behalf of minor
grandchildren. However no express
of implied acceptance was made by a
major grandson. Karnataka HC held
that since the three elements of the
gift were not present in the case of
the major grandchild, the gift was
not valid. It was valid in regards to
the minor grandchildren.
Essentials of a valid gift
A declaration by the donor:
There must be a clear and unambiguous
intention of the donor to make a gift. A
declaration is a statement which signifies
the intention of the transferor that he
intends to make a gift. A declaration can be
oral or written. The donor may declare the
gift of any kind of property either orally or
by written means. Under Muslim law, writing
and registrations are not necessary.
Ilahi Samsuddin v. Jaitunbi Maqbul, it was
held that under Muslim Law, declaration as
well as, acceptance of the gift, may be oral
whatever may be nature of property gifted.
When the gift is made in writing, it is
known as Hibanama. This gift deed not be
on stamp paper and also need not be
arrested or registered.
In the famous case of Md. Hesabuddin v
Md. Hesabuddin, where the gift was made
by a Muslim Woman and was not written on
a stamp paper, Gauhati High Court held
that the gift was valid.
In Maimunna Bibi v. Rasool Mian , it
was held that while the oral gift is
permissible under Muslim Law, to
constitute a valid gift it is necessary
that donor should divest himself
completely of all ownership and
dominion over the subject of the
gift. His intention should be in
express and clear words.
Acceptance by the donee
A gift is void if the donee has not given his
acceptance. The legal guardian may accept on behalf
of a minor. Donee can be a person from any religious
background. Hiba in favour of a minor or a female is
also valid. A child in the mother’s womb is a
competent done provided it is born alive within 6
months from the date of declaration. A juristic person
is also capable of being a donee and a gift can be
made in their favour too. On behalf of a minor or an
insane person, any guardian as authorized under the
provisions of Muslim law can accept that gift. These
authorized people include:
Father
Father’s Executor
Paternal Grand-Father, and
Paternal Grand Father’s Executor.
Delivery of possession by the donor and
taking of the possession by the done
In Muslim law, the term possession means only

such possession as the nature of the subject is
capable of. Thus, the real test of the delivery of
possession is to see who- whether the donor or
the donee-reap the benefits of thee property. If
the donor is reaping the benefit then the delivery
is not done and the gift is invalid.
The mode of delivery of possession depends
completely upon the nature of the property.
Delivery of possession may either be : Actual ,
or Constructive.
Actual Delivery of possession:
Where the property is physically handed over to
the donee, the delivery of possession is actual.
Generally, only tangible properties can be
delivered to the donee. Tangible property may be
movable or immovable. Under Muslim Law, where
the mutation proceedings have started but the
physical possession cannot be given and the donor
dies, the gift fails for the want of delivery of
possession. However in such cases, if it is proved
that although the mutation was not complete and
the done has already taken the possession of the
property the gift was held to be valid.
Constructive Delivery of
Possession:
Constructive delivery of possession is sufficient to
constitute a valid gift in the following two situations:
Where the property is intangible, i.e. It cannot be
perceived through senses.
Where the property is tangible, but its actual or
physical delivery is not possible.
Under Muslim law, Registration is neither necessary
nor sufficient to validate the gifts of immovable
property. A Hiba of movable or immovable property is
valid whether it is oral or in writing; whether it is
attested or registered or not, provided that the
delivery of possession has taken place according to
the rules of Muslim law.
Types of Gifts
There are several variations of Hiba.
These include:
Hiba bil Iwaz
Hiba ba Shart ul Iwaz
Sadaqah
Waqf
Ariyat
HIBA-IL-IWAZ
The gift and return are independent transactions. Therefore, when both i.e. Hiba
(gift) and iwaz (return or consideration) is completed, the transaction is called
hiba-bil-iwaz. For example, A makes a gift of a cow to S and latter B makes a gift
of a house to A. If B says that the house was given to him by A by way of return
of exchange , then both are irrevocable.
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means a gift
for consideration already received. It is a transaction made up of two mutual or
reciprocal gifts between two persons. One gift from a donor to the donee and one
from donee to the donor.
So a Hiba Bil Iwaz is a gift for consideration and in reality , it is a sale. Thus,
registration of the gift is necessary and the delivery of possession is not essential
and the prohibition against Mushaa does not exist. The following are requisites
of Hiba bil Iwaz:
1. Actual payment of consideration on the part of the donee is necessary. In
Khajoorunissa vs. Raushan Begam , it was held that adequacy of the
consideration is not the question. As long as the consideration is bona fide, it
is valid no matter even if it is insufficient.
2. A bona fide intention on the part of the donor to dives himself of the
property is essential.
Gift in lieu of dower debt is example of Hiba Iwaj.
HIBA-BA-SHARUTUL-IWAZ
Hiba ba Shart ul Iwaz means a ‘gift made with a
stipulation for return’.
It has the following requisites-
Delivery of possession is necesary
It is revocable until Iwaz is paid
It becomes irrevocable after the payment of Iwaz
Transaction when completed by payment of Iwaz,
assumes the character of a sale.
In general, Hiba bil Iwaz and Hiba ba Shart are
similar in the sense that are both gifts for a return
and the gifts must be made in compliance with
rules relating to simple gifts.
Sadaqah
‘Sadaqah’ is a gift primarily with religious motive. It is
this specific religious purpose, that makes it different
from a simple gift. Secondly, a simple gift may be revoked
under certain specific circumstances, but Sadaqah is
irrevocable. The consent or express acceptance of the
donees in a Sadaqah is not a mandatory condition for its
validity.
Delivery of possession is a mandatory requirement for the
validity of the Sadaqah and it does not admit of any
exceptions unlike a simple gift, and therefore Sadaqah is
not valid if the subject-matter of gift is an undivided
share in the property, that is capable of division. Sadaqah
can be made to two or more persons jointly with the
incidence of joint tenancy provided they are poor.
Waqf
In case of an ordinary gift, the donees

are mortals or humans. ‘Waqf’ is a
permanent dedication of the property to
God, with the intention that the usufruct
of the property may be utilised for a
religious , pious or charitable purpose.
The corpus belongs to God and
therefore cannot be consumed, it is only
the income coming out of the property
that can be used for the desired
purposes.
Ariyat
‘Ariyat’ is a gift of the right to enjoy
the usufruct in a specific property for
a specific tie period and is revocable
at the pleasure of the granter. In fact
it is more in the nature of a licence.
It is personal in character and is
neither heritable nor transferable.

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HIBA

In Muslim law, the term possession means only

In case of an ordinary gift, the donees

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