This article is written by Abhinav Rana, from University School of Law and Legal Studies, GGSIPU Dwarka. This article deals with Hiba.
Table of Contents
Introduction
The concept of Hiba under Muslim law has existed from 600 A.D. Gift is the transfer of a property from one person to another. Under Muslim law, the Gift transfer is not controlled by the Transfer of Property Act, 1882 but is governed by Muslim law itself. Muslims can divide their property in many ways out of which one is “Hiba” which is discussed in the paper. The delivery of gift in Muslim law can be actual or constructive. in actual delivery, the gift which is being made is physically transferred to the donee, and in case of constructive delivery it is just a symbolic transfer of property. Also, there are some instances where the delivery of the possession of the property is not necessary. In this paper, we have discussed about the essentials of Hiba, kinds of gift under Muslim law, how the gift can be revoked and also about the gift of Musha.
Under Muslim law, Muslims can divide their property in many ways. It could be through Gift which is known as Hiba in Muslim law and through a will which is known as Wasiyat in Muslim law. The term gift is known as ‘Hiba’ in Muslim law. Whereas in English, the word ‘gift’ has a much wider expression which is applicable to each and every transaction where an individual transfers his or her property to another without any consideration for the same. In contradiction to this, the term ‘Hiba’ in Muslim law has a much narrower connotation. A Muslim is allowed to give away his whole property in his lifetime but he can only give one-third of his property through a will. Also, the religion of the person to whom the gift is made is irrelevant. The transfer of property through the way of gift is immediate and without consideration. It is an unconditional transfer of property. Although the gift being a property has to be governed by the Transfer of property act, 1882. But Chapter 7 of Transfer of Property Act 1882 does not cover the gift under Muslim law. So, the Muslim Personal law governs the Muslim gift or “Hiba”.
Essentials of Hiba
There are mainly three conditions which need to be fulfilled for the successful transfer of property or making of a gift by a Muslim person. These conditions are as follow:
- Declaration of gift by the donor.
- Acceptance of gift by the donee.
- Transfer of possession by the donor and it’s acceptance by the donee.
Before proceeding further let us first understand the meaning of terms donor and donee.
The person who signifies his willingness to the other person for transferring his property is known as a Donor. On the other hand, the person who expresses his consent for the acceptance of the gift made by the donor is known as the Donee.
The requisites of the donor are as follow:
- Firstly, the person who is giving the property or making the gift i.e Donor, he/she must be a Muslim. Any other person in place of Muslim cannot make Hiba.
- Secondly, the person should be of the competent age i.e he/she must be major.
- Thirdly, the consent of the donor must be free. If the consent of the person is obtained by force, coercion, undue influence is no consent and such a gift is no gift.
- Fourthly, the person must be of sound mind. Any gift made by a person of unsound mind is not a valid gift.
- And lastly, the donor should be having the ownership of the property which he is going to give away in the form of a gift.
Declaration of gift by the donor
Declaration of gift by the donor represents his/her willingness to make a gift. The declaration made should be clear and not ambiguous. A donor can make the declaration in two ways that are oral or written.
In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul, it was held by the apex court that under Muslim laws the declaration made by the donor and the acceptance made by the donee can be oral irrespective of the nature of the property. The declaration and acceptance made in the form of writing are through the way of gift-deed. In Muslim law, the gift deed is known as Hibanama. The Hibanama may not be on the stamp paper and is not compulsory to be registered.
In the case of Md. Hesabuddin v Md. Hesaruddin, where Muslim women transferred her property by the way of Gift or Hiba and the gift-deed was not on the stamp paper it was held to be valid by the Gauhati High Court.
The declaration should also be expressed. A gift made in an unambiguous manner is null and void.
The requisites of the donee
- Firstly, religion is no bar for accepting the gift which has to be mandatorily made by a Muslim. The donee can be of any religion, Muslim or non-muslim.
- Secondly, the age is again not a bar for a donee. He/she can be of any age i.e. major or minor.
- Thirdly, a gift can be made to an unborn child, but it must be in the womb of her mother. This is so because of the Transfer of property act, 1882 which talks about the benefit for the unborn person.
- Fourthly, the transfer of property can also be made to a religious entity.
Acceptance of gift by the donee
For the valid gift, it must be accepted by the donee. If there are more than one or two donee, then it must be accepted by both the donee’s and it must be accepted separately. Since in Islamic law the Hiba is treated as a bilateral transaction i.e the donor makes the transfer and it must be accepted by the donee. If the acceptor of the gift is minor or any person of unsound mind then it can be accepted by his guardians. These people are his/her-
- Father
- Father’s Executor
- Paternal Grand-Father
- Paternal Grand Father’s Executor
Transfer of possession by the donor and its acceptance by the donee
After the transfer proposed by the donor and its acceptance by the donee is complete the next important condition which needs to be fulfilled for a valid gift is the transfer of possession by the donor and its acceptance by the donee. As the formalities of a gift are mentioned under Section 123 of Transfer of property act, 1882 but these are not applicable in case of “Hiba”. In Hiba, the transfer is complete as soon as the possession is transferred from the donor to the donee. The valid effect of the gift is from the date of transfer and acceptance of the possession and not from the date of declaration.
In the case of Noorjahan v. Muftakhar, the court held that where the declaration of the gift is made by the donor but afterwards till his death all the profits made out of the property is taken by the donor himself the gift is invalid and not effective in nature since the transfer of possession has not taken place.
The mode of delivery of possession is dependent upon the nature of the property. The mode of delivery can be Actual or Constructive.
Actual Delivery: In actual delivery, the gift which is being made is physically transferred to the donee. Actual delivery of the possession is possible when the gift which is being transferred is of tangible nature. Tangible means something which we can feel, see and touch. But further in case of tangible goods, it can be movable and immovable. Actual delivery can be done in case of only movable goods.
For example- If a person wants to gift a laptop to the other he can make his actual delivery as it is tangible and is movable in nature.
Constructive Delivery: The transfer of immovable property and intangible property is not possible so it is just a symbolic transfer of property.
For example- If the man wants to gift a house to someone, he can just hand over the keys and the related documents to the donee. He cannot pick up the house and hand it over to the donee. So, in this case, the delivery made is constructive in nature.
Under Muslim law, the registration of the transfer is not important, the condition which needs to be fulfilled for this is that the transfer must be made according to the rules of Muslim law. As it has already been mentioned in this paper that the Hiba can be oral or written and written transfer is known as Hibanama and its registration or authorization by way of the stamp is not necessary.
Kinds of Gifts
- Hiba-il-iwaz
- Hiba ba Shart ul Iwaz
Hiba-il-iwaz
Under Islamic law, Hiba means gift and iwaz means consideration. Hiba-il-iwaz thus means, the gift for the consideration already given. Under all the laws, there is no system where there is a consideration for the gift. But under Muslim law, there is a system of gift with an exchange.
For example- If A makes a gift of his bungalow in favor of his friend B, and in return, B makes a gift of his car to A, then it is known as Hiba-il-iwaz. The second gift made by B to A is iwaz i.e. return.
Requisites of a valid Hiba-il-iwaz:
- Firstly, there must be a complete and valid gift made by the donor to the donee. If the gift made is not according to the rule of Muslim law then it is no gift.
- Secondly, there must be a payment consideration made by the donee. In the case of Khajoorunissa vs Raushan Begam, the facts were that the father gave one-third of his property to his eldest son in return of Rs.10,000 but the consideration was never paid. It was held that the quantum of consideration is not important, the only thing important is that the consideration must be bona fide.
Hiba-ba-Shart-ul-Iwaz
It means a gift made with a stipulation for return. In this case, the consideration is not paid by the donee by his own choice but it is paid because it is a necessary condition here.
Requisites of a valid Hiba-ba-Shart-ul-Iwaz:
- Firstly, the delivery of possession is important; it is revocable until the iwaz is paid.
- Secondly, as soon as the iwaz is paid it becomes irrevocable.
- Thirdly, a transaction when completed by payment of Iwaz, assumes the character of a sale.
Revocation of gift
Although old traditions show us that the prophet was against the system of revocation of gifts. Today, it can be seen that it is the well-established principle of Muslim law that all the gifts which are made voluntarily can be revoked. The revocation of the gift of different kinds depends upon the different schools and Shia’s and Sunni’s. The Muslim lawgiver categorised the types of revocation under two different types:
- Revocation of gifts before the delivery of possession
- Revocation of gifts after the delivery of possession.
Under Muslim law, the revocation of gifts before the delivery of possession is allowed. Suppose A has transferred the property to B by the way of gift-deed. Now, if A revokes his gift and no delivery of possession has taken place, this revocation is valid.
One the other hand, declaration of revocation of gifts by the donor after the delivery of possession is not sufficient to revoke a gift. Until and unless the decree of a competent court is passed, the donee can use the property in any manner he wishes to.
When the delivery of possession is not necessary:
There are some cases where the delivery of possession is not necessary. Like, a gift from one spouse to another, or say guardian to the ward.
- Donor and donee living in the same property:
In a case where the subject matter of the gift is a house in which both the donor and donee are living together, any delivery of possession is not important. But there must be the bona fide intention of the donor for the transfer of property.
In the case of Humera Bibi v. Najmunnissa, in this case, was an old lady who used to live with his nephew. She transferred the property to his nephew who was living with her in the same house. However, when the property was given on rent, the rent was collected in the name of the donee. The court held the gift valid.
- Gift by the spouses to each other:
Where a gift of immovable property is made by one spouse to the other the delivery of possession is not mandatory.
In the case of Fatma Bibi v. Abdul Rehman, the husband made an oral declaration of transfer of property in the name of his wife. The stepson who was living with the mother challenged the validity of the gift as no delivery of possession was made. The court held that the gift was valid.
- Gift of property already in possession of donee:
In the cases where the possession of the property is already with the donee, only the declaration by the donor and acceptance by the donee is enough to make this gift as a valid gift.
For example- If A is having a car and he is using it for his own use and now his father transfers it to his name, the declaration by the father and the acceptance by the son is enough to make this gift as a valid gift.
Gift of Musha
The term Musha has been derived from the Arabic word which refers to Shuyua which actually means ‘confusion’. It means Musha the ‘undivided part’ or share, which could also be a common building or land. As a gift of a part of a thing which is capable of division is not valid unless that particular part is divided off and separated from the property of the donor, however, the gift of an indivisible thing is absolutely valid. In Muslim law, Musha signifies an undivided share in joint property. Musha is thus, a co-owned which is also the joint property. Moreover, if one of the several owners of that particular property makes a gift of their own share, there may be a confusion regarding the matter that which part of the property has to be given to the donee. In other words, there could be a real difficulty in delivering the possession of the gift if it is of a joint property which is made by a donor without partition of that gifted share. In order to avoid such confusions and difficulties in the stage of delivery of possession, the jurists pertaining to the Hanafi law have evolved the principle of Musha where the matter of a gift is co-owned or joint property, the doctrine of Musha becomes applicable for examining the validity of that particular gift. The doctrine is strictly confined to the rules by the interpretation of judiciary and has been cut down in a considerable manner.
Musha which is indivisible:
The Gift of Musha indivisible is valid. There are some of the properties which are by its very nature indivisible. The physical partition or the division of those properties is not practical. Moreover, if it is against the nature of such properties, their partition or division is affected at all and hence their identity is lost entirely, they do not remain the same properties which they were before the partition. For instance; a bathing ghat, a staircase or the cinema house cannot be divided as Musha properties. However, if on the bank of a river or a tank, there is a bathing ghat which is in the co-ownership of two or more persons, then each of the owner has right to deal with his share as he deems fit including the right to make a gift of his share, however, if a sharer has attempted to separate his share, the utility of the ghat will get completely finished. Where a staircase is jointly owned by, for instance, two persons, then each being the owner of half of the stair-case, is entirely entitled to make a gift of his or her share, but, if the stair-case is divided into two parts, it would either be too narrow to be used by anyone, or the upper half may come in the share of one and the other lower half is in the other’s share hence, in both the cases the staircase would become useless for both of them and also for the donee as well. It has also been provided that to every Hiba the doctrine of Musha applies, except insofar as it must be taken that the creators of the doctrine could not have contemplated that it should be applied to the subject-matter of any particular gift.
Musha which is divisible:
In the Hanafi law, the gift of Musha of the divisible property is termed to be irregular that is fasid if made without partition, however, a co-owned piece of land, house or a garden, is Musha which is divisible. The land can be divided and the specific share can be separated by a visible mark of identification. Similarly, a house which is jointly owned may be divided by a partition wall without changing its entire identity. However, under the Hanafi doctrine of Musha, the gift without partition and the actual delivery of possession is not void ab initio; it is merely irregular which means fasid. The result is that where such a gift has been made, it may be regularized by the successive partition and by giving to the donee the actual possession of the specified share of the property. It is clearly evident that the doctrine of Musha is limited, both in its application as well as in its effects.
Conclusion
The concept of gift is a long due process which is coming over from our past. The term “Hiba” and “gift” have a different meaning when taking into consideration the transfer of property act, 1882. Hiba is governed according to the Muslim Law. So as we have discussed in this paper the three conditions of a valid gift that are:
- Declaration of gift by the donor.
- Acceptance of gift by the donee.
- Transfer of possession by the donor and its acceptance by the donee.
There must be a bona fide intention of the donor to transfer the property. The gift can be revoked by the donor after a decree of revocation has been passed by the court of law. While concluding we can say that gift is an offer made by the donor to a person who accepts the offer, known as donee. So, the term “gift” used in English is generic and should not be confused with that of Muslim law known as “Hiba”.
References
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