Islamic-Law-Law-of-the-Muslim-World-eJournal.-June-14

This article is written by Harshita Agrawal. The case of Smt. Hussenabi vs. Husensab Hasan Sab, 1989, is an important legal judgement passed by Karnataka High Court that deals with issues related to inheritance and the validity of gifts under Islamic law. Along with setting a precedent on how Islamic legal principles should be applied in estate distribution, the case is a landmark judgement as it clearly outlines what makes a gift legally valid and makes sure everyone gets their fair share.

This article has been published by Shashwat Kaushik.

Introduction 

The case of Smt. Hussenabi vs. Husensab Hasan Sab and Ors. (1989) addresses the key aspects of Islamic legal principles regarding gifts and inheritance. The case examines the role of a guardian in making a gift and its acceptance properly under Islamic law, especially on behalf of the minors and ensures that the legal principles involved to make the gift valid are necessitated in a proper manner. 

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Along with the validity of the gift deed made to minor grandchildren, the Court also reviewed in this case how the remaining estate should be divided as per the Islamic inheritance laws. The ruling emphasises the need to properly follow these principles and to make sure that everyone receives their rightful share and that the gift is legally valid. The case shows how important it is to follow Islamic legal principles for making gifts and sharing an estate, especially focusing on how guardians should handle gifts for minors and the requirements for valid acceptance of gifts. 

Details of the case

 Name of the case: Smt Hussenabi vs. Husensab Hasan Sab and Ors.

Name of the court: Karnataka High Court

Date of judgement: 1 March, 1988

Equivalent Citations: AIR 1989 KARNATAKA 218

Bench: Justice M.P. Chandrakanta Raj

Judgement and decree passed by: Munsiff Navalgund

Petitioner: Hussenabi

Respondent: Husensab Hasan Sab and Ors.

Concept of Hiba in Muslim Law 

The concept of Hiba or gift-giving has been an integral part of Muslim Law since 600 A.D. The word Hiba originates from Arabic and literally means “gift.” It is not governed by the Transfer of Property Act, 1882, instead, it is regulated by the Shariat Act, 1937 and falls under the jurisdiction of Muslim personal law. It involves a voluntary transfer of ownership from one person to another without any consideration. This transfer can be actual, where the property is physically handed over to the recipient, or constructive, involving a symbolic transfer. There are some instances where the delivery of the possession of the property is not necessary as per specific rules within Muslim law. The concept of Musha, an undivided property, has specific regulations under Hiba. The principles of Hiba have been adopted in various precedent judgments by the Court.

The notion of gifts and their legal implications has a long history, evolving into a distinct area within property law. There are certain institutions that are recognised under Muslim law, such as Sadaqa (charitable gifts), Aariat (loans of property) and Hiba-bil-iwaz (gifts with consideration), which, although distinct, share some characteristics with Hiba. A subsequent conversion of the donor to another religion will not affect the gift at all, as the gift becomes final the moment it has been made. For a gift to be valid under Muslim law, there must be an immediate transfer of the property and any intention to delay the gift renders it void.

Essentials of Hiba 

There are mainly three conditions that need to be fulfilled for the successful transfer or making of a gift under Muslim law:

Declaration of gift by the donor

As per Muslim law, a gift is valid only if three conditions are met. The intention of the donor must be clear to make the gift either in a verbal way or in a physical way. In the case of Ilahi Samsuddin vs. Jaitunbi Maqbul (1994), the Supreme Court held that the declaration and acceptance of the gift can be made orally, irrespective of the nature of the property. Hibanama is known as the written declaration, which is often made through a document and does not need to be registered. The acceptance of the donee can either be verbally or in writing. The possession of the property must be transferred by the donor to the donee. In the case of Md. Hesabuddin vs. Md. Hesaruddin (1983), the validity of the gift deed that was not registered was upheld by the Gauhati High Court. The declaration of the gift is essential and must be made in a clear and ambiguous manner; otherwise, it will not be considered valid.

Acceptance of gift by the donee 

The donee must receive the gift to consider it as valid and if there is more than one donee, then they should accept the gift separately. Hiba is considered a bilateral transaction in Muslim law and both the donor and donee should be equally involved, as the transfer must be done by the donor and acceptance by the donee. A baby in the mother’s womb can receive a gift if it is born alive within six months of declaration. In case of a minor or someone incapable, the gift can be accepted by the legal guardian, which include father, paternal grandfather and their respective executors.

Transfer of possession by the donor and its acceptance by the donee

As per Muslim law, the gift is valid only after the donor has cleared his intention of giving a gift and the donee has accepted it. After this process, the next important step is the transfer of possession by the donor to the donee to complete the gift. Section 123 of the Transfer of Property Act, 1882, required many formalities to be completed and Hiba is not applied under this Section as the transfer in Hiba is effective as soon as possession is given to the donee. The possession of the gift was concluded when it was transferred or accepted, not when it was declared.

In the case of Noor Jahan Begum vs. Muftakhar Dad Khan and Ors. (1969), the Court held that the gift would be considered invalid if the donor used it after declaring and collecting the profit until death, as the possession was never really transferred. Under Muslim law, the transfer of property is not required to be registered but following the rules of the Muslim law is necessary. Hibanama need not be registered to be considered valid, as gifts can be made orally or in writing.

Facts of Smt Hussenabi vs. Husensab Hasan (1989) 

A lawsuit was filed by the plaintiff, claiming that the gift deed dated 29 May, 1972 and the Mahr deed dated 8 August, 1952 are false, fraudulent and invalid against her share. The sale transaction on 8 October, 1955, was a benami transaction and for partition and actual possession, the plaintiff sought to have her 9/32 share of the property divided and given to her. She also requested that if the property cannot be divided then she should be given her possession of 9/32 share along with the cost of the court. 

The plaintiff was granted the right to divide and separately possess a 4/27th share of the properties listed in items (c) to (g) by metes and bounds. It shall be accordingly partitioned and handed over to the plaintiff. The defendants should be entitled to receive their shares as mentioned in the judgement after paying the necessary court fees. If dividing the property physically was not possible, then the shares should be allocated either by equitable partition or by selling the properties and distributing the proceeds according to the share.

Issues involved 

  • Whether the plaintiff proved that the gift deed dated 29/5/1972 by Imamsab was fake and fraudulent?
  • Whether the plaintiff proved that the Mahr deed dated 8/8/1952 by Imamsab in favour of defendant 2 was fraudulent?
  • Whether the plaintiff proved that the sale transaction dated 8/10/1955 in favour of defendant 1 was a benami transaction and not binding?
  • Whether the plaintiff proved that he had a 9/32 share in the disputed properties?
  • Whether the plaintiff proved that he was entitled to a partition and separate possession of share?
  • Whether respondents proved that the lawsuit was barred by limitation?
  • Whether respondents proved that this Court had no jurisdiction to try the suit?
  • Whether respondents proved that the Court fee paid was not sufficient?

Arguments by parties

Arguments by appellants  

The learned counsel for the appellant stated that Imamsab was the guardian for the three minor grandchildren, who were also his daughter’s children in the gift deed. The gift deed was available for review and was also written and registered properly. Imamsab gifted properties listed in items (c) to (g) to his four grandchildren who were living with him, of whom one was 19 and the rest were minors. 

He also clarified that while the gift deed included an offer, the acceptance for the three minor grandchildren was done by the donor himself, which was implied rather than directly stated. For the adult grandchild, there was no acceptance noted in the deed and since it is a crucial part of a valid gift under Mohammadan law, the gift was considered incomplete. It was also highlighted that the three minor grandchildren were living with the donor even before the gift was made and their names were also on the property records, which showed that the gift was carried out. 

In support of his statement, the case of Azeshabi vs. Saprakara Kathoonbi, (1964) was mentioned by the petitioner, where it was held that if a donor and donee live together, there is no need for formal delivery of possession. This principle should apply here even if the donees were minors.

Arguments by respondent 

The respondent denied all the accusations made against them and stated that the plaintiff’s lawsuit was invalid because the plaintiff had no ownership in the properties.

Judgement in Smt Hussenabi vs. Husensab Hasan (1989)

The Chief Justice Magistrate Dharwad, after hearing both parties, allowed the appeal in part and passed the decree stating that the plaintiff is entitled to a partition and separate possession of a 4/27th share in suit properties (c) to (g). These properties should be divided accordingly and given to the plaintiff. The defendants should be entitled to receive their shares as detailed in the judgement after payment of the necessary court fees. It was also stated by the Court that if dividing the property was not possible, then the shares were to be allotted either by assigning the whole property to one share or by selling the property or dividing the money. 

Rationale behind the judgement

The Court, in its reasoning, first clarified the family tree of Hasansab Gonaganur, who was also known as Mujavar. He had four sons: Imamsab, Dadasab (Defendant 8), Fakrusab (Defendant 7) and Hussainsab (plaintiff). Imamsab was the eldest son and he died on 25 July, 1973 leaving behind his wife (Defendant 1) and daughter, Khatunbi (Defendant 2). As per the Mohammedan law, his wife would get 1/8th of the property and his daughter would get half of the remaining property. Khatunbi had four children – Rajesha (Defendant 3), Bawasha (Defendant 4), Husensha (Defendant 5) and Mahabubsha (Defendant 6). The remaining properties were to be divided among the residuaries, who were Imamsab’s brothers. Since the closest relative, i.e. the brothers of the Imamsab, were already alive, the grandchildren did not inherit any property. Therefore, the property would be divided equally between Dadasab, Fakrusab and Hussain Sab. For the properties listed in items (c) to (g) of the schedule, the valid gift must be deducted first and then the remaining property will be divided among the brothers. The decision of the Trial Court for properties (a) and (b) would be confirmed, while the decision for properties (c) to (g) would be replaced by the order and it would be divided accordingly.

Analysis of Smt Hussenabi vs. Husensab Hasan (1989)

The grandfather, who was also the donor of the children, was the guardian of the minor children. Since the donor offered the gift, it was considered that the gift was accepted too, and the property records also showed the minor children’s names. The argument of the petitioner seems valid, clarifying that the gift deed was valid for the minor children. However, the gift to the adult son, Rajesha, was invalid and the findings in respect of the gift deed in favour of the three other minor children were upheld. The Court recognised in the case law that implied acceptance might be acceptable in some cases but the facts must clearly show the acceptance, as the implied acceptance herewith should not be held for an adult grandson. The case is equally important in view of Muslim law for understanding the better way of handling gifts and preventing any kinds of disputes related to gifts.

Conclusion 

The decision of the case law provided  better clarity and legal certainty, along with protecting the interests of the donor with effect on the transfer of property. The decision of the Court passed by the Munsiff, Navalgund, was upheld for properties listed as (a) and (b). However, the decision is changed for properties (c) to (g), as mentioned above in the reasoning of the court. As a result, the appeal was partially allowed.

Frequently Asked Questions (FAQs) 

What are the requisites of a donor?

The requisites of a donor are as follows:

The donor must be a Muslim, as a Hiba can only be made by a Muslim. He must be an adult. The gift should be given willingly to be valid and not in any kind of pressure. The donor must be of sound mind and should not be mentally unstable to consider it valid. The property should be owned by donor to be considered a gift

What are the requisites of a donee?

The requisites of a donee are as follows:

There is no compulsion for a donee to be a Muslim, as anyone can accept a gift, regardless of their religion. The donee can be of any age, either a minor or an adult. A gift can be made to an unborn child even if the unborn one is in its mother’s womb. The property can also be  transferred to any religious entity.

Who is a minor in the context of a Muslim gift?

Under Muslim law, a person who has not attained the age of 15 is generally considered a minor. However, according to Islamic law, puberty is generally around 15 years old but it can vary from person to person.

What do you mean by Mahr in Islamic law?

The word Mahr derives from the Arabic term, which means dower. It is an amount of money payable by the husband to the wife upon marriage. The mahr can be decided either by mutual agreement or by law. In the Baal form of marriage, mahr was a gift or compensation that was given to the parents of the wife or guardian.

What rules can be followed to understand the subject matter of Hiba?

There are three rules that can be followed categorically under the subject matter of Hiba:

  • Anything over the right and control may be exercised.
  • Anything that can be taken possession of.
  • Anything that is either a specific entity or has enforceable rights.

References 

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