The concept of Gift or Hiba in Muslim law has existed from the very inception
of the religion, circa. 600 A.D. While Muslim Law has not been shown to
recognise the differentiation of land into estates, it does recognise the
difference between the ownership of the land and the right to enjoy it.
Unlike English Law, ownership comes only with the full deed of the land and not
with the simple possession or temporary tenancy. Hiba is only one of the aspects
covered by the Transfer of Property Act under the term 'gift'. It is the
transfer of the property and all rights along with it, without the expectation
of any compensation.
The term Hiba has been defined in several aspects by the courts of India and,
according to this, the term has also been seen to exclude all nature of
services, for services do not exist at the time of the promise- they can only be
performed after the promise to perform is made, which implies that the same
cannot fall under the definition of Hiba which requires the object to be in
physical existence at the time of the gifting. It has been widely construed that
the term mal has to apply to the object so gifted for the laws of Hiba to apply.
Surprisingly enough, all gifts are revocable before the actual transfer of
property is made (i.e.) any person can unilaterally revoke his or her promise to
gift before the promise is fulfilled. After possession, the laws of revocation
differ between Sunni and Shi'a laws.
A gift is a transfer of property where interest is transferred from one living
person to another, without any consideration. It is gratuitous and inter vivos in
nature. This is the general definition that is accepted by all religions,
including Muslim law. As per Muslim Law, a gift is called a Hiba.
Under English laws, the right in property is classified by a division based on
immovable and moveable (real and personal) property. Rights in the land
described as "estate" under English Law do not always imply only absolute
ownership but it also includes rights which fall short of it and are limited to
the life of the grantee or in respect of time and duration of use of the
Under Hindu Law, a gift is regarded as the renunciation of the property right by
the owner in the favour of the donee. According to Jimutvahana, under Hindu
law's concept of gift, ownership is not created by acceptance but by
renunciation of the donor. However, the Mitakshara School of Hindu law considers
acceptance as an important ingredient for a gift. The donor can divest his
interest by renunciation but cannot impose the same on the donee if he is not
ready to accept [ii].
Under Muslim Law, the concept of Gift developed much during the period of 610 AD
to 650 AD. In general, Muslim law does not distinguish between real and personal
property, and there is no authoritative work on Muslim law, which affirms that
Muslim law recognizes the splitting 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 Ayn) and the usufruct in the property (as
Over the corpus of property, the law recognizes only absolute dominion,
heritable and unrestricted in point of time. Limited interests in respect of the
property are not identical to the incidents of estates under English law. Under
the Mohammedan law, they are only usufructuary interest (and not rights of
ownership of any kind). Thus, in English law a person having an interest in the
immovable property for limited periods is said to be the "owner" of the property
during those periods and the usufruct is also regarded as a part of the corpus.
On the other hand, in Muslim law, a person can be said to be an "owner" only if
he has full and absolute ownership. If the use or enjoyment of property is
granted to a person for life or another limited period such person cannot be
said to be an "owner" during that period. The English law thus recognizes
ownership of the land limited in duration while Muslim law admits only ownership
unlimited in duration but recognizes interests of limited duration in the use of
the property. This differentiates Muslim Law's concept of property and gift from
that of English Law[iii].
Under Muslim Law, the religion of the person to whom a gift is made is not
relevant. In India, there is a separate statute that governs the matters related
to the transfer of property. 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.
Concept Of Hiba Under Muslim Law
The conception of the term 'gift' as used in the Transfer of Property Act, 1882
is somewhat different from the practice under Muslim Law. Under Muslim Law, a
gift is a transfer of property or right by one person to another following the
provisions provided under Muslim law. Hiba (Tamlik al ain), is an immediate and
unconditional transfer of the ownership of some property or some right, without
any consideration or with some return and the term 'Hiba' and 'gift' are often
indiscriminately used but the term Hiba is only one of the kinds of transactions
which are covered by the general term 'gift'. The other types of gifts include
Ariya (Tamlik al manage), where the only usufruct is transferred and Sadaqah
where the gift is made by the Muslim with the object of acquiring religious
A man may lawfully make a gift of his property to another during his lifetime,
or he may give it away to someone after his death by will. The first is called a
disposition inter vivos; the second is a testamentary disposition. Muhammadan
law permits both kinds of transfers; but while a disposition inter vivos is
unfettered as to quantum, a testamentary disposition is limited to one-third of
the net estate. Muhammadan law allows a man to give away the whole of his
property during his lifetime, but only one-third of it can be bequeathed by
The Hanafi lawyers define Hiba as 'an act of bounty by which a right of property
is conferred in something specific without an exchange'. The Shias hold that 'a
Hiba is an obligation by which property in a specific object is transferred
immediately and unconditionally without any exchange and free from any pious or
religious purpose on the part of the donor'. Muslim law allows a Muslim to give
away his entire property by a gift inter vivos, even with the specific object of
disinheriting his heirs.
Revocation of gifts before the delivery of possession:
Under Muslim law, all gifts are revocable before the delivery of possession is
given to the donee. Thus, P makes a gift of his motor car to Q by a gift deed.
No delivery of possession has been made to Q. P revokes the gift.
The revocation is valid. In this case, it will not make any difference that the
gift is made to a spouse or a person related to the donor within the degrees of
the prohibited relationship. The fact of the matter is that under Muslim law no
gift is complete till the delivery of possession is made, and therefore, in all
those cases where possession has not been transferred the gift is incomplete,
and whether or not it is revoked, it will not be valid till the delivery of
possession is made to the donee.
The revocation of such a gift, therefore, merely means that the donor has
changed his mind and does not want to complete it by the delivery of possession.
For the revocation of such gifts, no order of the court is necessary. Fyzee
rightly says that this is a case of inchoate gift and it is not proper to apply
the term revocation to such a gift.
Revocation after the delivery of possession:
Mere declaration of revocation by the donor, institution of a suit, or any other
action, is not sufficient to revoke a gift. Till a decree of the court is passed
revoking the gift, the donee is entitled to use the property in any manner; he
can also alienate it.
It seems that:
- all gifts after the delivery of possession can be revoked with the
consent of the donee,
- revocation can be made only by a decree of the court.
The revocation of a gift is a personal right of the donor, and, therefore, a
gift cannot be revoked by his heirs after his death. A gift can also not be
revoked after the death of the donee.
According to the Hanafi School except for the following cases, a gift can be
revoked even after the death of the donee.
According to the Hanafi School, except for the following cases, a gift can be
revoked even after the delivery of possession.
The exceptions to the same are:
- When a gift is made by one spouse to another.
- When the donor and the donee are related within the prohibited degrees.
- When the donee or the donor is dead.
- When the subject matter of the gift is no longer in the possession of
the donee, i.e., when he had disposed of it by sale, gift or otherwise, where he
had consumed it, or where it had been lost or destroyed.
- When the value of the subject matter has increased.
- When the identity of the subject matter of the gift has been completely
lost, just as wheat, the subject matter of the gift, is converted into
- When the donor has received something in return.
- When the object of the gift is to receive the religious or spiritual
benefit or merit, such as sadaqah.
The Shia law of revocation of gifts differs from the Sunni law in the following
respects: First, a gift can be revoked by a mere declaration on the part of the
donor without any proceedings in a court of law; secondly, a gift made to a
spouse is revocable; and thirdly, a gift to a relation, whether within the
prohibited degrees or not, is revocable.
The conception of the term gift and the subject matter of gift has been an
age-old and traditional issue which has developed into a distinct facet in
property law. Different aspects related to the gift in property act and its
distinction with the Mohammedan law and its implications have been the major
subject matter of this article.
In considering the law of gifts, it is to be remembered that the English word
'gift' is generic and must not be confused with the technical term of Islamic
law, Hiba. The concept of 'Hiba' and the term 'gift' as used in the transfer of
property act, are different.
As we have seen in the project Under Mohammedan
law, to be a valid gift, three essentials are required to exist:
- Declaration of gift by the donor.
- Acceptance of the gift, express or implied, by or on behalf of the done.
- Delivery of possession of the subject of the gift.
The English law as to rights in property is classified by a division based on
immovable and moveable (real and personal) property.
The essential elements of a
- The absence of consideration
- The donor.
- The done.
- The subject matter.
- The transfer; and the acceptance.
Thus, this striking difference between the two laws relating to gifts forms the
base of this project in understanding its underlying implications.
To conclude the researcher can say that, the gift is a contract consisting of a
proposal or offer on the part of the donor to give a thing and acceptance of it
by the donee. So, it is a transfer of property immediately and without any
exchange. There must be a clear intention by the donor to transfer the
possession to the donor for a valid gift. It can be revoked by the donor. And
the provisions for the same have also been mentioned.