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Hiba Under Muslim Law

The concept of gift originated back from 610 AD to 650 AD in Muslim Law. The term Hiba is of Arabic origin and literally means gift. Chapter VII of Transfer of Property Act, 1872 is applicable to all the gifts made in India by any person but it does not apply to Hiba or Muslim gifts. Hiba of Muslim gifts are associated in the Shariat Act, 1937 which is to be regulated by Muslim personal law.

Estimation of importance of Hiba under Muslim Law can be inferred from the very fact that under Muslim law, when a living person voluntarily transfers ownership of property to another living person, it is transferred in absolute interest and any restraining conditions or partial transfer of rights in the gifted property are opposed to the impression of Hiba under Muslim Law. The researcher would be seeking about essential of Hiba such as property transferred as Hiba should be in existence at the time of transfer and any transfer of property which will exist in future is void. Hiba is a transfer inter vivos and is done by the act of parties and not by operation of law.

The conception of the term gift and subject matter of gift has been an age old and traditional issue which has developed into a distinct facet in property law. Certain institutions are recognized under Muslim law that are though distinguishable but to an extent appears like Hiba such as Sadaqa, Aariat, Hiba-bil-iwaz etc. A subsequent conversion of the donor to some other religion will not affect the gift at all as the gift becomes final the moment it has been made. For a valid gift in a Muslim law there must be immediate transfer of the property and therefore if the donor intends that the gift shall take effect on a future date then the gift will be void.

Hiba found its presence in various aspects by the Indian courts and in addition to this the term Hiba, also furthers exclusion of all nature of services and can be only performed after promise is made. Let us investigate these aspects closely.

Tentative Cauterization

Chapter One: Performance of HIBA

As we know that under Hiba there are two parties i.e. donor and done and both should be competent to perform it, so following are the qualifications for the parties:

  1. Capacity for a Donor

    A person shall be a qualified donor to perform Hiba if he fulfills the following conditions:
    1. A donor should be a Muslim i.e. Mohammedan
    2. A donor must be of age of majority
    3. A donor can be a male or female whether married or unmarried.
    4. A donor performing Hiba must be owner of the subject matter of the Hiba i.e. at the time of making gift, donor should have the ownership of the property. However, when a widow having possession of the property of her husband makes a gift then she cannot make gift of such property in lieu of dower.
    5. A donor must perform Hiba voluntarily and with free content and not under fraud, misrepresentation, under influence, compulsion, force or coercion.
       
  2. Capacity for the Donee

    A done shall be a qualified person to perform Hiba under Muslin law if he fulfils the below mentioned conditions:
    1. A donee can either by a Muslim or non-Muslim. In case the donee is not Muslim, then after the completion of Hiba, the subject matter of gift, will be subjected to personal law of the donee.[1]
    2. A donee may or may not be of age of majority.
    3. A donee may be a male or female and married or unmarried.
    4. A unsound person may also become a donee but when gift is made to such a person, then in order to complete that gift, delivery of the possession is made to the guardian of the minor or unsound person.[2]
    5. A Hiba can never be made to a dead person and even when a widow makes Hiba in favor of her dead husband as Mehr, then such would not be within the meaning of Hiba.
    6. A Hiba of future usufruct to unborn person would be valid the donee is in the being at the time when interest opens out of legal heirs.[3]
    7. When Hiba is made jointly in favour of more than one person then that is ipso facto i.e. invalid. However, when the donees by mutual agreement take possession of their respective shares individually, then gift would be valid as Hiba under Muslim law.

Subject Matter of Hiba:

A Muslin can perform Hiba of whole of his property that has some legal value attached to it to be a subject matter of Hiba. Only thing that is essential that the subject matter of Hiab should be transferrable in nature i.e. any property over which ownership can be exercised. In fact whatever mal under Muslim jurisprudence, whether tangible or intangible, can be lawfully the subject matters under Muslim law.

Benefit and Intention theory:

To make the gift valid and immediately effective the gifted property shall be immediately transferred. However, there are cases where the immediate transfer of the subject matter may not be possible to initiate, for instance, when the subject matter under gift is immovable property or some usufruct (benefits). In such cases the intention and benefit theory shall be applicable.

Example: The donor does some conduct by which the intention of the donor to make the transfer is manifested and he may make a declaration in that regard or he may handover the keys of the property or even give necessary instructions to his agents regarding the transfer etc. In the cases of gift of income he may make a directive to the person concerned in that regard and the gift will finally take effect when the income starts accruing to the Donee.

Exceptions to Immediate Transfer:

  1. When the donor and donee are residing in the same house and the house has been gifted property.
  2. The gift by one spouse to another spouse
  3. Gift by the guardian to the ward.
  4. Gift of a property of which the donee is already n possession.
  5. The gift to an unsound person.

Chapter Two: Essentials of Hiba

Essential conditions of Hiba are as follow:

  1. Declaration:
    While making declaration of gift, the intention of the donor should have clarity of thoughts and an ambiguous motive behind such oral or written declaration of transfer ownership of property to the donee. It is not a pre-requisite under Muslim law that the gift made should be registered, attested or stamped as held in the case of Kamarunnissa Bibi v. Hussaini Bibi.[4

    Even if the gift is made in the presence of large gathering and it is well declared and accepted it is valid under Muslim Law.[5]The gift that is made in writing is termed as Hibanama under Muslim law.///

    What if gift is made under the deed?
    Under certain circumstances the registration of gift is essential. However, it must be noted that if gift is not properly declared by the donor and if the words are ambiguous then such a gift would be void.

    The two major essentials of declaration are:
    1. FREE CONSENT i.e. declaration should be made voluntarily by the donor and not under pressure, coercion, force, or any sort of undue influence.
       
    2. BONA FIDE INTENTION i.e. intention should be good because then otherwise it would be ineffective. Similar happened in the case of Hussaina Bai v. Zohra Bai[6], where the court held gift to be void because it was made through coercion and the pardanashin lady had no opportunity to seek any kind of advice to know the truth.
       
  2. Acceptance:
    The second essential element of hiba is acceptance of the gift. The first and foremost bilateral sentence under Muslim law that is made is “Qabul hai”. Under Muslim law, gift is a contract and therefore it is ineffective without other party's acceptance. It is irrelevant as to whether gift is made through registration or not, it would still require acceptance of the done.

    The factum of such a acceptance can be proved through mere possession of the property as one can presume acceptance if possession of interest, benefit or some profit is given or undertaken by the party. Acceptance is well established by the Karnataka HC in the case of Smt Hussenabi v. Husensab Hasan[7] where the court held presence of all three elements is essential for the validity of the gift and since the three elements were not present in the case where grandfather made offer of a gift to his grandchildren and no express or implied acceptance was made by grandson. Ultimately the court held that such a gift could be a valid gift to minor grandchildren but in case of major grandchildren the gift was not valid.

    The delivery of possession: For a Muslim gift it is essential that the property delivered has been transferred to the beneficiary, since without such transfer the Muslim gift does not achieve its legality and purpose. It will be considered null or incomplete. Delivery of possession means complete divest of all ownership or dominion rights over the subject matter of the gift to make a transaction of a valid gift under Muslim law.

    A gift whose possession's reservation by the donor during life would amount to void gift. Delivery of possession can be of movable or immovable property and it may also be actual or constructive. In the case of Mohd. Aslam v. Khailul[8] the court held that mere record of delivery of tangible property in the name of donor and done is not sufficient. When the gift made is a tangible property them delivery shall be complete only after actual delivery of possession, whereas in case of constructive delivery, the delivery completes as soon as the done begins to receive benefits, rights from the gifted property whether directly or indirectly.

    However, there are certain exceptions to the rule of actual or constructive delivery of gifted property:
    1. When donor and done stays jointly in the property gifted then any sort of formal delivery is not required.
    2. When gift is made by a husband to his wife or vice-versa then in such cases mere mutation of name and delivery of deed in favor of done is a complete gift.
    3. When the gift is made by guardian to his/her ward then delivery of possession is not required.
    4. When the gifted property is already in the possession of the done then the formality of delivery of possession is not required.

Chapter Three: Kinds of Gifts

Several variations of Hiba includes:

Hiba-bil-Iwaz
Hiba-bil-Iwaj is like a sale where the vendee (donee) has already made some consideration to the vendor (donor) and in return the vendor (donor) makes a gift to the vendee (donee). In Hiba-bil-Iwaj unlike a normal Hiba there should first be the payment of some consideration without any agreement by the done to the donor and thereafter the donor in lieu of that consideration makes the gift to the done.

Unlike the requirements of an ordinary gift it is not required in the case of Hiba-bil-Iwaz that the donor shall give proof of the gifted property to the donee. The giving of the consideration by the done is must but thereafter the donor may merely promise to give a gift in lieu of the consideration and an actual delivery is not a must. However, such gift needs to be registered and a mere oral promise will not be sufficient. Once the registration has been done it becomes irrevocable. The gift of Musha even in a divisible property is permissible.

Hiba-ba-shart-ul-Iwaz

The donor and the done are under an agreement that the donor will make the gift presently to the done and in return of that as per the agreement the done will give something to the donor in future. In such a gift the donor has to deliver the possession of the property to the done at present. Musha cannot be gifted under Hiba-ba-shart-ul-Iwaz. Initially Hiba-ba-shart-ul-Iwaz is amere gift but later on when the Iwaz is performed it becomes a sale.

Differentiation between Hiba, Hiba-bil-Iwaz and Hiba-ba-shart-ul-Iwaz is as follows:

Hiba Hiba-bil-Iwaz Hiba-ba-shart-ul-Iwaz
Transfer of ownership is without consideration. Transfer of ownership is for consideration but without an express agreement. Transfer of ownership for consideration but with an express agreement.
It is purely a gift. Its more like a contract of sale. It is initially a gift but later on becomes contract for sale when Iwaz is paid.
It is revocable but has certain exceptions. It is totally irrevocable. It is revocable but once Iwaz is paid, it becomes irrevocable.

Sadaqah

It is a gift with the religious motive and the corpus as well as the usufruct gifted by donor. Once the gift has been made and possession has been delivered it becomes irrevocable. The gift of Sadaqah can be made even to poor persons for charity. It can be made jointly to two or more persons as well. The done can use or consume both the corpus and the usufruct.

Unlike a normal gift, in the gift of Sadaqah an express acceptance by the done is not required. The difference between Sadaqah and Waqf is that even though in both the gift is made for religious and charitable purposes however n Waqf the corpus of the gift cannot be consumed whereas in Sadaqah the corpus as well as usufruct both can be consumed.

Ariyat

It is like a gift mainly for charitable purposes. The ownership of the property is not transferred rather only the usufruct i.e. only the right to enjoy the benefits of the property is transferred. Upon the death of the done the property will revert back to the donor or of the donor is dead then to his legal heirs. It is a gift without any consideration and broadly it is like a license. In Ariyat an express acceptance by the done is not required and also t is not essential that the donor should be of the age of majority.

Musha

Musha or Hiba-bil-musha literally means confusion. It is merely an undivided share in property to the donee. Therefore the gift of Musha is a undivided shae in the property. The prohibition against Musha is applicable in the Hanfies (sunni) i.e. if the property is divisible the it must be first divided and then only it shall be transferred.

If without dividing the Musha property is gifted then the gift will be irregular in the Hanafi sunnis. However, if the gifted property is indivisible then the gift can be made and Musha is allowed, for example, the gift of right to use the stairs or the beathing ghat that passes through the property etc.

However, there are certain exceptions to Musha that are as follows:

  1. A gift of Musha can be made even without dividing a divisible property if the gift has been made to co-heir.
  2. When gift is made by a person of his share in the zamindari.
  3. When the gift is of one's share in a limited company.
  4. When the gift is of free hold property in a commercial town.
Even though the prohibition against Musha is applicable in Hanafis the prohibition is not being followed at present in the Hanafis. It is generally considered a person who holds property and has full right to dispose off the property in whatever manner he may want to and the prohibition of Musha goes against the right to dispose off property.

Certain examples of gift are as follows:

  1. The gift of an actionable claim i.e. some money claim, can file a suit
  2. Gift of right to redeem property called equity of redemption like mortgage.
  3. The gift of any property which will arise in future shall be void.
     
  4. The gift of spec successionists i.e. after death the right to property is possible and expected to get to legal heirs. Spec Successionist is a mere chance to succession to some property upon the death of someone or upon partition of some property and presently, the donor is not the owner of that property so it is a mere chance or a speculation that he may succeed to acquire a title to that property. The property does not at present exist in the hands of the donor and hence the gifted property cannot be actually be gifted at present (lack of title) and also it cannot be transferred to the donee and hence the gift is void.
     
  5. The gift of the right to claim dower shall be void as it is a personal claim but if he dies then it can be, while the right to lien can be transferred. The right to claim dower during the continuation of marriage is purely personal claim of the wife and hence she cannot transfer the claim to third person and it is void.
     
  6. Gift of services shall be void.

Chapter Five: Revocation of Gift

All voluntary transactions according to Muslim Law are revocable and so Hiba may also be revoked. However, revocation of gift is possible only through operation of law or by the consent of done. Different schools have different views regarding revocation. Muslim lawmakers classified Hiba from the point of view of revocability in the following categories: Revocation of Hiba before delivery of possession. All gifts are revocable before possession is released to the recipient.

For such revocation, no court orders are needed. As discussed above, under Muslim law, no Hiba is complete until the delivery of the possession is made, and therefore, in all cases where the possession has not been given to the beneficiary, the gift is incomplete and if it is revoked or not, it will not be valid until possession is handed over to the addressee. It implies that the donor has changed his mind and is unwilling to complete the gift by handing over the possession.

Exceptions of revocable gift:

  1. Gifts made between the spouses would be irrevocable when made during subsistence of marriage and even if marriage is not regular and is dissolved later.
  2. In case the donor and donee are related within prohibited degrees then in that case the gift shall be irrevocable.
  3. In case either of the party dies then the right of gift becomes irrevocable as then their legal heirs would not have right of revocation.
  4. Once the gift is complete the donee becomes the absolute owner of the property gifted, however in case the donee transfer's the property to any third party then in that case the interest of third party also gets effected without any fault.
  5. In case after revocation when the property reverts back to donor in a destroyed condition then it would be also irrevocable as there would be nothing remaining to be revert back to the donor.

Brief study of few cases dealing with Hiba under Muslim law

  1. Babu Lal v. Ghansham Das [9]
    Muslim individuals are mainly regulated by there personal laws as under the conception of Hiba and therefore the provisions as under Transfer of Property Act, 1882 do not govern Muslim individuals. The court in this case refers to Section 129 of the Transfer of Property Act, 1882, which states “Nothing in this chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Mohammadan Law.”[10] The court held that transfer of subject matter as gift must be performed during the life of the donor whereby he is capable of such transfer. It was further added that in case donee dies before acceptance of gift takes place, then the gift shall stand void.
     
  2. Mahboob v. Abdul [11]

    This case dealt with the concept of revocation of gifts after the delivery of possession. The court held in this case that in order to revoke a gift, mere declaration by the donee is not sufficient as the donee is eligible to make use of property in whichever manner until a court passes decree of revoking the gift. The donee can even dispose off or alienate the property in such cases.
     
  3. Maimuna Bibi v. Rasool Mian [12]

    As we know that one of the essential element for a valid gift under Muslim Law is that of declaration that can be either oral or written. Declaration is a mere statement that establishes the intention of the donor whose is making the gift. It is expected to be a bona fide intention with clarity of thoughts while making such a gift. Similar was held in the above-mentioned case, wherein the court held that even if oral declaration is sufficient under Muslim law to be a valid gift, but it is necessary for the donor to divest himself of all ownership or dominion rights completely over the subject matter.

Conclusion
The concept of Hiba has been an old and traditional subject matter that developed into various dimensions under Muslin law and property law. The implication of related aspects to gift has been majorly similar except few formalities that we discussed in this paper above. As we saw that the terms “gift” and “Hiba” are different in the sense that under Muslim law, to within Hiba their exists majorly three essentials i.e. declaration, acceptance, and delivery of possession.

However, under English law, right are classified on the basis of nature of property i.e. whether it is a movable or immovable property along with certain essentials that are it should be voluntarily with consideration, two parties i.e. donor and donee, presence of subject matter and transfer and further acceptance.

To conclude the research and understanding or the subject, gift is basically like a contract that involves offer and acceptance conducted between the donor and donee wherein the transfer of property is immediate and without consideration. Apart from this, the intention should be bona fide and not ambiguous. The donor can revoke it.

Bibliography
  1. Poonam Pradhan Saxena, Family Law Lectures
  2. Prof. G.C.V. Subba Rao, Family Law in India
  3. Prof. Kusum, Family Law Lectures
  4. Dr. Paras Diwan, Modern Hindu Law

End-Notes:
  1. Ajagar v. Chadalavada, AIR 1927 Mad 574
  2. Baillie, I, 538, Hedaya, 484
  3. Paras Diwan, Family law lectures, 3rd Edition
  4. (1880) 3 ALL 266
  5. Ilahi Samsuddin v. Jaitunbi Maqbul (1994) 5 SCC 476
  6. AIR 1960 Mad 447
  7. AIR 1989 Kant 218
  8. AIR 1935 BOM 84
  9. 1992 ILR 44 ALL 633
  10. Section 129, Tran
  11. 1964 Raj 250
  12. AIR 1991 Pat 203, 1990 (38) BLJR 1037

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