CHAPTER
GIFT (HIBA)
According to Mulla “Gift is a transfer of property, made immediately, and without any exchange, by one person to the other and accepted by or on behalf of the latter”.
Under Mohammedan law, the concept of Hiba (a gift under Muslim law) has been in existence since 600 A.D.
A ‘Hiba’ or a disposition inter vivos (between living people) is defined as the donation of a thing from which the donee may derive benefit.
It is an unconditional transfer of property, made immediately and without any exchange or consideration, by one person to another and accepted by or on behalf of the latter.
According to the Mohammedan Law, the transfer of property as a gift is not regulated by the Transfer of Property Act, 1882. It is instead regulated by the Mohammedan Law.
It allows an individual to donate their entire property during their lifetime.
Muslims have various modes of transferring their property, one of which is “Hiba.”
In India, it is often considered that the term ‘gift’ is similar to ‘Hiba’ and both are understood to connote all transfers of property without consideration.
Whereas in English law, ‘gift’ has a much wider expression that 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 Mohammedan law has a much narrower connotation.
According to Mulla “Gift is a transfer of property, made immediately, and without any exchange, by one person to the other and accepted by or on behalf of the latter”.
Under Mohammedan law, the concept of Hiba (a gift under Muslim law) has been in existence since 600 A.D.
DEFINITION OF HIBA (GIFT) UNDER MUSLIM LAW
According to the Mohammedan law, a Hiba or simple gift inter vivos, is the donation of an item from one living person to another, allowing the donee to derive certain benefits.
In other words, it can also be defined as an unconditional transfer of property, executed instantly and without any exchange of consideration (something in return), from one individual to another, with acceptance by or on behalf of the recipient. In this type of unrestricted transfer, payment of consideration is not necessary.
According to Mulla’s definition, a gift is made immediately, with no exchange involved, and is accepted by or on behalf of the recipient.
A person has the legal right to give their property to another individual during their lifetime or to transfer it through a will, which takes effect after their death.
When a gift is made between two living beings, it is referred to as a disposition inter vivos (between living people), and when the gift is made by way of will, it is known as a testamentary disposition.
NOTE: The difference between a disposition inter vivos and a testamentary disposition is that in the case of a disposition inter vivos, a person is not restricted from giving away the whole of his property, while in the case of a testamentary disposition, the right is limited to transferring one-third of the net estate.
ESSENTIALS OF HIBA (GIFT)
Three things are necessary for a valid Hiba, i.e.,
I. it must be immediate and
II. complete and
III. there must be a declaration for the same.
The Hon’ble Kerala High Court in P. Kunheema Umma vs. Ayissa Umma (1981) held that under Muslim law, the following are the essentials for a transfer of immovable property by way of gift:
1. The donor must make a gift’s declaration;
2. The done must receive the gift’s acceptance, and
3. The done must get possession of the gift from the donor.
There are four key conditions that must be met by a Muslim person to make a gift.
The following are the essentials for a valid transfer of property by way of gift:
1. Parties to a gift;
2. Subject-matter of a gift;
3. Extent of the gift; and
4. Mode of transfer of the gift.
1. PARTIES TO A GIFT
At the time of making a valid transfer of a gift, two parties are involved.
The person who expresses his or her willingness to transfer property to another person is called the donor.
Conversely, the person who gives his or her consent to accept the gift from the donor is referred to as the donee.
DONOR
To make a valid gift, the following conditions must be met by the donor:
Firstly, the donor of the gift must be a Muslim. A Hiba can only be made by a Muslim.
Secondly, the person must be of legal age, meaning they must have attained the age of majority.
It is important to note that the age of majority for the purpose of gifting shall be governed by the Indian Majority Act, 1875. A person is considered to have reached the age of majority for the purpose of making a valid gift if they have attained eighteen years of age, according to Section 3 of the said Act.
Thirdly, the donor’s consent must be given freely. If consent is obtained through force, coercion, or undue influence, the gift transaction will not have legal enforcement.
Fourthly, it is necessary that the donor be of a sound mind at the time of making the gift. If the gift is made by a person of unsound mind, it is considered an invalid gift.
Fifthly, the donor must have ownership of the property they intend to give as a gift.
A Pardanashin Muslim lady is also capable of being a competent donor. But it is necessary that the gift by her be made voluntarily and should be legally operative.
In the case of Mt. Hussaina Bai W/O Mohammad Hussain vs. Mt. Zohra Bai W/O Taherali (1960),
the Hon’ble Madhya Pradesh High Court was of the opinion that in the case of a pardanashin Muslim lady being the donor of the gift, she should have a full understanding of the gift execution, its nature and its effect.
The Court shall, in each case, carefully examine the gift transaction, whether it is a fair one or not.
In cases where the gift deed is not in her mother tongue, it is a legal requirement to ensure she understands the content of the gift deed rather than merely hearing it read aloud.
The protection granted to the pardanashin Muslim lady by the said rule applies equally to women who are unable to read and write and are ignorant of its contents.
An insolvent person is also capable of making a valid gift. The donor should have a true and real intent to give the gift and it should not be done to defraud the creditors.
The intention of the donor is determined by his or her declaration to make a gift.
It must be made clearly and without any ambiguity.
The declaration can be made in two ways by the donor, either orally or in writing.
IN ILAHI SHAMSUDDIN VS. JAITUNBI MAKBUL (1994),
the Hon’ble Supreme Court held that under Mohammedan law, both the donor’s declaration and the donee’s acceptance can be expressed orally, whether the property is movable or immovable.
If the declaration and acceptance of the gift are made in written form by way of a gift deed, under Mohammedan law, it is called a Hibanama.
It need not be on the stamp paper or registered.
THE HON’BLE GUWAHATI HIGH COURT IN MD. HESABUDDIN VS. MD. HESARUDDIN (1983) HELD THAT
where a Muslim woman transfers her property by way of gift or Hiba and the gift-deed was not on the stamp paper, it was still valid.
The declaration must be in express form. A gift made in an ambiguous manner is null and void.
DONEE
The person who accepts the gift is referred to as a donee.
The following points should be taken into account when donee gets the gift:
Firstly, religion does not restrict the acceptance of a gift made by a Muslim. The donee can belong to any religion, Muslim or non-Muslim.
Secondly, age is not a barrier for a donee; they can be of any age, whether of the majority or minority.
If a gift is made in favour of a minor by someone other than the father or guardian, it must include the delivery of possession to the father or guardian of the minor.
Thirdly, a gift cannot be made in favour of an unborn child.
However, a gift of future usufructs (the right to use and enjoy the property) to an unborn person is valid as long as the donee is born and exists when the interest becomes effective.
The provisions mentioned below of the Transfer of Property Act, 1882 are important points to be taken into consideration in this connection:
1. SECTION 13
Section 13 of the Transfer of Property Act, 1882, provides for the transfer of property for the benefit of an unborn person.
According to this provision, the transfer must establish an interest for the unborn person that is subject to any prior interests created by the same transfer, and this interest must encompass the entire remaining interest of the transferor in the property.
The intent of this section is to prevent the transferor from hindering the free disposition of the property by future generations.
2. THE RULE AGAINST PERPETUITY UNDER SECTION 14 OF THE TRANSFER OF PROPERTY ACT, 1882,
The rule against perpetuity under Section 14 of the Transfer of Property Act, 1882, should be followed, i.e., a property cannot be transferred in a way that makes it inalienable for an indefinite period.
In cases where the transferor has restricted the transferee’s ability to transfer the property or has established interests that are too remote, it can result in a perpetual disposition of the property, which is not permissible.
3. SECTION 15 OF THE TRANSFER OF PROPERTY ACT, 1882,
provides that if the gift is made for a class of persons and is void under Sections 13 or 14 of the said Act, it will only fail for those specific persons, not for the whole class;
4. SECTION 16 OF THE TRANSFER OF PROPERTY ACT, 1882,
provides that if a gift to an unborn person is considered void under Section 13 or 14 of the said Act, any subsequent gift intended to take effect after that will also be void.
Fourthly, for a religious entity, the transfer of property can also be made, i.e., a mosque or other institution. For this purpose, they are considered both juristic persons and competent donees
For a gift to be valid, it must be accepted by the donee. If there are multiple donees, each must accept the gift individually and separately.
2. SUBJECT-MATTER OF A GIFT
For a property to be a valid subject of a gift, it must fulfil the following conditions:
Anything over which property rights can be exercised;
Any property that can be taken into possession;
Anything that exists as a separate entity or as an enforceable right;
Anything that falls under the definition of “Mal”.
In Arabic, “Mal” refers to anything that one can acquire and possess, whether it is tangible (such as gold, silver, animals, and plants) or involves the use and enjoyment of something (like using vehicles, wearing clothes, or living in houses);
The property must exist at the time the gift is made;
any gift of something to be created in the future (future goods) is considered void.
The donor must possess the subject matter of the gift.
If the gift is made by a trespasser and the donee does not gain possession, the gift is regarded as void.
REQUISITES OF A VALID GIFT
The most important requisite of Hiba is that it must fulfil the rules laid down under the Mohammedan law for making a valid gift.
The presence of the donor and donee, their ability to make and accept the gift and the existence of a valid subject matter of the gift.
It is important that certain formalities and tests of the validity of a gift transaction are satisfied. The following three conditions must be fulfilled to make a valid gift:
DECLARATION OF GIFT BY DONOR
To make a valid gift, it is necessary that there be a clear and unambiguous intention of the donor to make the gift.
If there is an absence of real or bona fide intent on the donor’s part, the alleged gift is considered void.
The declaration of the gift must be made voluntarily.
The donor must give free consent before making the gift.
If the declaration of the gift has been made under coercion, fraud, misrepresentation or undue influence, such a gift will be considered a void gift.
ACCEPTANCE OF A GIFT
A gift is a bilateral transaction.
For a valid gift, it is also necessary that it be accepted by the donee.
Acceptance signifies the intention of the donee to take the property and become its owner.
Without acceptance, a gift is not complete.
Under Mohammedan law, acceptance of a gift on behalf of a minor or a person of unsound mind can be given by the guardian of his property.
A gift made in favour of two or more donees must be accepted by all of them separately.
If the share of each donee is clearly defined, the donor need not separate or divide these shares and give possession to each of them.
However, a gift of two or more donee without specifying their respective shares and without giving them separate possession has also been held to be valid.
In such cases, the donees take the property as a tenant-in-common.
DELIVERY OF POSSESSION
The declaration of a gift and its acceptance must be followed by the delivery of actual possession.
Under Mohammedan law, a gift is complete only after the delivery of possession.
The gift comes into effect on the date on which possession of the property is delivered to the donee, not on the date on which the declaration was made.
Mohammedan law does not recognise the transfer of ownership rights from donor to donee until the delivery of possession of the property takes place.
Delivery of possession is so important in the Mohammedan law of gifts that without delivery of possession to the donee, the gift is void even if it has been made through a registered document.
The mode of delivery of possession is dependent upon the nature of the property gifted.
To legally transfer possession to a donee, a donor must take an action that allows the donee to gain physical control of the property.
A donee is said to be in possession of a property when he can exercise exclusive control over it for the purpose of deriving from it such benefit as it is capable of rendering or as is usually derived from it.
The term possession means only such possession as the nature of the subject matter of the gift is capable of giving. The mode of delivery of possession of property can be either actual or constructive.
ACTUAL DELIVERY:
In actual delivery, the gift that is being made is physically transferred to the donee. Actual delivery of the possession is possible when the gift that is being transferred is of a tangible nature. Tangible means something that we can feel, see and touch. But in the case of tangible goods, they can be both movable and immovable. Actual delivery can be done in the case of only movable goods. For example, if a person wants to gift a laptop to another person, he can make his actual delivery tangible and movable in nature.
The transfer of immovable and intangible property is not possible so it is just a symbolic transfer of property. For example, if a 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.
CONSTRUCTIVE DELIVERY:
The transfer of immovable and intangible property is not possible so it is just a symbolic transfer of property. For example, if a 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.
WHEN THE DELIVERY OF POSSESSION NOT AN ESSENTIAL
Under Mohammedan law, the general rule is that a gift is invalid without a delivery of possession. The Mohammedan law of gift attaches great importance to possession of property, especially immovable property. The other elements of Hiba will have no legal effect unless they are accompanied by the delivery of possession. However, there are certain exceptions to this general rule. In the following cases, a gift is considered valid even without the actual or constructive delivery of property:
Donor and donee living in the same property.
Gift by the spouses to each other
Gift by one co-sharer to another
PART DELIVERY OF GIFT:
If there is sufficient evidence to prove that some of the gifted properties have been delivered, the delivery of possession for the remaining properties may be inferred.
Gift of property already in possession of the donee
HIBA-BIL-IWAZ
Under Islamic law, ‘Hiba’ means gift and ‘iwaz’ means ‘consideration’
Hiba-bil-iwaz, thus, means the gift for the consideration already given.
Under all the laws, there is no system where there is consideration for the gift.
But under Muslim law, there is a system of gifts with an exchange.
It involves two mutual or reciprocal gifts exchanged between two individuals.
In other words, when one gift is given by the donor to the donee and the other gift is given from the side of the donee to the donor, it constitutes Hiba-bil-iwaz.
The gift given by the donor to the donee is a separate and independent transaction from the gift made by the donee to the donor. For instance, if A gifts his bungalow to his friend B, and in return, B gifts his car to A, it is referred to as Hiba-bil-iwaz. The second gift from B to A is known as iwaz, meaning “return.”
it must be carried out in accordance with the rules governing simple gifts. it was held that the registration of hiba-bil-iwaz is mandatory, as in the case of a sale.
REQUISITES OF A VALID HIBA-BIL-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.
HIBA-BA-SHART-UL-IWAZ
The term ‘Shart’ means stipulation.
Hiba-ba-Shart-ul-Iwaz means a gift made with a stipulation for return.
The transaction is finalised upon the delivery of possession.
When the donee pays the consideration, the gift takes on the nature of a sale.
Either party has the right to return the subject of the sale if any defects are discovered.
REQUISITES OF A VALID HIBA-BA-SHART-UL-IWAZ
Firstly, the delivery of possession is important;
Secondly, it can be revoked anytime until the iwaz (return) is paid;
Thirdly, as soon as the iwaz is paid, it becomes irrevocable; and
Fourthly, a transaction, when completed by payment of Iwaz, assumes the character of a sale.
It is important to note here that the point of similarity between these two types of gifts is that they are given on the basis of reciprocity. The Mohammedan law of Hiba applies to both of these two types of gifts. It must be executed in accordance with the rules governing simple gifts.
SADAQAH (CHARITABLE GIFT)
The term ‘Sadaqah’ comes from the Arabic word “sadq” or “sidq,” which literally means “to tell the truth or to be sincere”. In the context of Islamic jurisprudence, however, ‘Sadaqah’ is specifically defined as a charitable gift given to the poor for the sake of God or to seek rewards from him.
GIFT OF ‘MUSHA’ (HIBA-BIL-MUSHA)
‘Musha” has been derived from the Arabic word meaning ‘saayu,’ which refers to “an undivided share in the property”.
It is the ‘undivided part’ or share in the property, which could also be a common building or land.
The gift of a divisible part of an item is only valid if that specific part is physically separated from the donor’s ownership.
In contrast, the gift of an indivisible item is always considered valid. Musha is thus a co-owned property, which is also a joint property.
Moreover, if one of the several owners of that particular property makes a gift of their own share, there may be confusion regarding 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 joint property that is made by a donor without partition of that gifted share.
Under the Hanafi Law, a gift of Musha is considered irregular but can be validated through separation and delivery of possession.
The Shafei and Ithna Ashari Schools accept a gift of Musha only if the donor relinquishes control of the subject matter in favour of the donee.
Except for the Hanafi School, all other schools of Muslim law view the gift of an undivided share in indivisible property as valid and lawful.
According to Shia Law, a gift of Musha is regarded as valid in all cases, whether the property is movable or immovable, provided the donor transfers possession by vacating and allowing the donee to take control.
KINDS OF MUSHA
A gift of Musha or an undivided share in a joint (immovable or movable) property, is of the following two kinds:
MUSHA INDIVISIBLE
The gift of Musha, which is indivisible, is valid.
There are some properties that are, by their very nature, indivisible.
The physical partition or 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 retain the same properties that 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 that is in the co-ownership of two or more persons, then each of the owners has the 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 be 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 cases, the staircase would become useless for both of them and also for the donee as well.
MUSHA DIVISIBLE
In Hanafi law, the gift of Musha of the divisible property is termed irregular (fasid) if made without partition.
however, a co-owned piece of land, house or garden is Musha, which is divisible.
The land can be divided and a specific share can be separated by a visible mark of identification.
Similarly, a house that 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 are not void ab initio; they are merely irregular, which means fasid.
The result is that where such a gift has been made, it may be regularised by the successive partition and by giving to the donee the actual possession of the specified share of the property.
There are certain instances where a gift of Musha, even if divisible, is considered valid. These cases include:
Gift from one heir to another
Gift of a share by a co-sharer in a Zamindari or Talauqa
Gift of a share in a company
Gift of an undivided but divisible property
VOID GIFTS
The following types of gifts mentioned below are considered void gifts, i.e., not legally enforceable:
GIFT TO AN UNBORN PERSON
A gift cannot be made in favour of a person who does not exist at the time when the gift is made.
The reason for it being a void gift is because the donee’s acceptance is the prerequisite for the validity of a gift. If the donee is not yet born to accept the gift, his or her consent cannot be received.
It is important to note that a gift made in favour of an unborn person is considered void from the outset. However, a life interest can be granted to an unborn person if they come into existence when that interest takes effect.
FUTURE GIFT
A gift cannot include something that will only come into existence in the future.
For instance, a gift of the crop harvest expected to be produced in the following year from the donor’s field is not valid.
CONTINGENT GIFT
A gift that is receivable upon the occurrence or non-occurrence of a future uncertain event is known as a contingent gift. It is not a valid gift because contingency is a mere chance for something to happen or not happen.
ORAL GIFTS
According to the Mohammedan Law, a gift made of movable or immovable property need not be made in writing to be valid.
The Transfer of Property Act, 1882, under Sections 122 to 129 provides provisions relating to gifts. It is provided in Section 123 of the said Act that when a gift of immovable property is made, it shall be enforceable through a registered deed signed by the donor.
It should be signed and attested to by at least two witnesses.
On the contrary, when a gift of movable property is made, it becomes enforceable either through a registered instrument signed or by delivering that movable property.
However, the gifts made by Muslims are not governed by the provisions of Section 123 of the said Act. Section 129 of the said Act states that Sections 122 to 129 of the Transfer of Property Act, 1882, do not apply to Mohammedans.
It is provided under Section 17 of the Registration Act, 1908, that any gift of immovable property valued over one hundred rupees is to be made by a registered instrument.
Mohammedan law allows one to make an oral gift of immovable property, regardless of its value.
A gift made under Mohammedan law takes effect if executed according to the procedures prescribed.
If the legal obligations are fulfilled, it is regarded as a valid gift, even if it is not registered or attested.
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 a well-established principle of Muslim law that all the gifts that are made voluntarily can be revoked.
Under Shia law, revocation of a gift takes place by a mere declaration and there is no need to obtain a court’s decree or the consent of the donee.
Gifts made to parents under this law cannot be revoked and gifts made to other relations by consanguinity, whether within the prohibited degree of relationship or not, are irrevocable.
Under the Sunni Law, revocation of a gift takes place by the court’s intervention or by the donee’s consent.
It is not sufficient that the donor declare the gift to be revoked.
The Mohammedan law classifies the revocation of a gift into two categories:
REVOCATION OF GIFTS PRIOR TO THE DELIVERY OF POSSESSION:
A gift is considered incomplete until the delivery of possession of the subject matter of the gift is made. It is an unimpeded right of the donor to revoke a gift before the gift is delivered to the donee.
REVOCATION OF GIFTS AFTER DELIVERY OF POSSESSION:
After the delivery of possession of the gift, the donor possesses the right to revoke the gift. It could be done with the donee’s consent or by obtaining a formal court’s decree.
1. The Court can issue a decree to revoke a gift except in the following circumstances. Therefore, the gifts mentioned below are completely irrevocable:
2. In case the donor dies, no decree can be passed by the court to revoke the gift;
3. Similarly, in case of the death of the donee and the delivery of possession of the gifted property, it could be revoked;
4. Where there exists a prohibited degree of relationship (consanguinity) between the donor and donee (i.e., brother and sister), it cannot be revoked;
5. Where there exists a marital relationship between the donor and the donee (i.e., husband and wife), the gift could not be revoked;
6. Where the donee has transferred the subject matter of the gift through sale, gift, or any other means, the gift could not be revoked;
7. Where the gift is a ‘sadaqah’ then also a gift cannot be revoked. A ‘sadaqah’ is an act of giving without receiving anything in return and done with the intention to please God.
