GIFT OR HIBA UNDER MUSLIM LAW: ESSENTIALS, MODES, REVOCATION
The policy of both Hindu law and Muslim law forbids interfering with how a person’s property naturally passes from one generation to the next after his or her death. The Hindus followed this policy approach to the logical conclusion and did not include any testamentary powers of disposal. Muslim jurisprudence has recognized the idea of hiba from 600 A.D. The Muslim only stipulated that a Muslim might leave one-third of his possessions to his heirs in a testament, refraining from going farther. In India, the Transfer of Property Act, 1872, mostly regulates transfer of property. However, Muslims are exempt from the Chapter 7 of Transfer of Property Act’s gift-related regulations. Thus, transfer of property received from a Muslim are still subject to Islamic law.
The definition of a hiba or gift is “an unconditional transfer of property, done immediately and without any exchange or consideration, and accepted on behalf of the recipient.
DIFFERENCE BETWEEN HIBA AND GIFT
In India it is often assumed that the term ‘Gift’ is the exact equivalent of ‘Hiba’ and both are understood to connote all transfers of property without consideration. However, in English the Gift is an expression of much wider connotations than Hiba. Gift is applicable to every transaction and is defined as a process where one person transfers his property to another without any consideration. The term “Hiba” in Muslim law, however, has a far more restricted meaning. A Muslim is permitted to give away all of his possessions during his lifetime, but he is only permitted to leave one-third of them to others through as a Hiba. The word Hiba literally means donation of a thing from which the done may derive a benefit, the transfer must be immediate and complete (Tamlik-ul-ain) and the most essential ingredient of Hiba is the declaration.
KINDS OF GIFTS
Hiba-bil-iwaz is a gift for consideration (hiba is a transfer of property without consideration). It is in reality a sale and has all the incidents and conditions of a sale. Registration is necessary in case of hiba-bil-iwaz as in case of a sale. So, the delivery of possession is not essential for a complete transfer and prohibition against musha does not exist.
REQUISITES OF A VALID HIBA-BIL-IWAZ
- . It is important for the donee to really pay the consideration.
- A bona fide intention on the part of the donor to divest himself in possession of the property and to confer it upon the done.
A gift made with a condition (shart) for a reward is known as a hiba-ba-shartul-iwaz. In contrast to Hiba-bil-iwaz, a Hiba-ba-shartul-iwaz delays the payment of consideration. The conveyance of possession is crucial since the consideration won’t be given right away. When possession is delivered, the deal is considered closed. Once the consideration has been paid, it takes on the characteristics of a sale and becomes preemptible. Additionally, much like in a sale, any party may return the item for a flaw.
FEATURES OF HIBA-BA-SHARTUL-IWAZ
- As in the case of hiba, delivery of possession is necessary.
- It is revocable up until the payment of the iwaz (return).
- Upon the payment of iwaz, it becomes irreversible.
- The transaction assumes the characteristics of a sale once the iwaz has been paid.
ESSENTIALS OF GIFT
The following three criteria should be met by the act of gift. These are also known as ‘Essentials of Gift’ which are as follows:
- Declaration of gift by the Donor
- Acceptance of gift by the Donee
- Delivery of possession by the donor and taking of possession by the done; and
- Delivery affected movable property.
Before proceeding further let us understand the meaning of donor and done.
A donor is a person who expresses to another person his readiness for transfer of his property. The donee, on the other hand, is the individual who affirms his approval for accepting the gift given by the donor.
REQUISITES OF THE DONOR ARE AS FOLLOW
- The donor, under Muslim law, must be Muslim.
- He must have reached the legal majority age.
- He must be of sound mind and have understanding of the transaction
- The property must be free from any fraudulent or coercive influence.
- The donor must have ownership over the property to be transferred as a gift.
GIFT BY PARDANASHIN LADY
A gift from a pardanashin woman is legitimate, but in the event of a disagreement, it is the donee’s responsibility to demonstrate that it was not the result of undue influence and that the donor was aware of the nature of the transaction before making the present. The condition is predicated on the extra protection provided by the law to the helpless, uneducated, and disabled.
In Mst. Hussaina Bai vs Mst Zohra Bai, a pardanashin Muslim lady brought from Nagpur on a false pretext that her sister’s husband was ill. She was not allowed to take independent advice and was made to affix her signature on the document of misrepresentation that she was making a gift of the Burhumpur House alone to the Plaintiff, which was to take effect only after her death. The Madhya Pradesh High Court observed that it is necessary to satisfy the court that she executed the document with full understanding of the transaction and of the nature and effect of the transaction, and even in cases where she had independent advice. The court will scrutinize the transaction very closely to see that it is fair one. It was held that the gift in question was not a voluntary transaction and was inoperative in law.
DECLARATION OF GIFT BY DONOR
There must be a clear and unambiguous intention to make a gift. The purported gift will be invalid if the person making it has no actual or bona fide intention to do so. It is necessary that the donor must be a free agent in making a gift. If the declaration of gift has been made under coercion, fraud, misrepresentation or undue influence such a gift is void. The declaration can be made verbally or in writing by the donor.
In the case of Mahboob Sahab vs Syed Ismail, the Supreme court held that though gift by a Mohammedan is not required to be in writing and consequently need to not to be registered under the registration Act; a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property or the subject matter of the gift by the donor to the done.
In Md. Hesabuddin vs Md. Hesaruddin, the Guwahati High Court upheld the validity of a Muslim women’s gift or Hiba transfer of property even though it was not recorded on stamp paper.
REQUISITES OF A DONEE
- Any person capable of holding property, which includes a juristic person, may be donee of the gift.
- A done is not restricted by sex, age, creed or religion.
- The Donee must be in existence at the time of making the gift.
GIFT TO UNBORN PERSON
A gift given to an unborn person is void. However, a gift may be made in favour of a child in the mother’s womb, provided that it is born alive within six months from the date of gift. A child in the mother’s womb is regarded in law as a person in existence. But it is necessary that the child must be born alive otherwise the gift would be void.
Mosque or any other institution, being juristic people are competent donees.
In cases of disagreement, the presumption of undue influence arises when the donee has a fiduciary relationship with the donor or when the relationship between the parties is such that the donee is in a position to control the donor’s will. As a result, the gift may be declared void. In these situations, the donee must persuade the court that the donor received competent and independent advice prior to making the gift.
ACCEPTANCE OF GIFT BY DONEE
Gifts must be accepted by the donee or on their behalf. It might be either actual or constructive. If the recipient of the present is a child or someone who is mentally ill, his guardians may receive it on his behalf. These are his/her people.
- Father’s Executor
- Paternal Grand-Father
- Paternal Grand Father’s Executor
DELIVERY OF POSSESSION
The third essential for the validity of a gift is delivery of possession. The other elements of Hiba will have no legal effects unless they are accompanied by delivery of possession. One point to be noted here, is that the term ‘possession’ under Mohammedan law means, “only such possession as the nature of the subject is capable of. Thus, the real test of the delivery of possession is to see, whether the donor or the done reaps the benefit of the property.
The mode of delivery of property depends upon the nature of the property. The mode of delivery can be Constructive or Actual.
In actual delivery, the gift which is made must be physically transferred to him. Actual delivery is only possible when the subject to transfer is of tangible nature. Tangible means something which we can see, touch and feel. But in case of tangible property, it can be both movable and immovable and actual delivery can be only of movable property.
The transfer of immovable property or intangible property is not possible so it is just a symbolic transfer of property.
Example – If A wants to transfer his property to B, then he can only hand over the keys and the documents related to property. He cannot pick up the house in hands and hand over to him. So, in this case, the delivery made is of constructive nature.
In accordance with Muslim law, it is not necessary to register a transfer the only requirement is that it be carried out in accordance with Muslim legal law. As already stated in the article, a Hiba can be either verbal or written, and written transfer is known as a Hibanama. A stamp is not required for the registration or permission of Hiba.
DELIVERY HOW AFFECTED OF MOVABLE PROPERTY
The gift is not complete unless the property is actually delivered. It implies transfer of possession physically.
Money- Mere entry in the books of account to the effect that the amount has been paid to the donee will not complete the gift. Money can be actually transferred to the donee.
Immovable property- (a) General Rule- For completing the gift of any immovable property, two things are essential:
- That the donor must physically from the premises, and
- That the done formally enters into possession
In cases where the donor reserves to himself the right to receive rents during his lif-time and also undertakes to pay taxes the mere recital in the deed of gifts that the delivery of possession has been given will not constitute sufficient delivery of possession.
EXCEPTIONS-GIFT WITHOUT ACTUAL DELIVERY OF POSSESSION
1-Gift by a father to his minor or lunatic son (or daughter) or by a guardian to his ward-
No transfer of possession is required in case of gift by father to his minor or lunatic child or by guardian to his ward. In Mohammad Hesabuddin vs Mohammad Hesaruddin, it was held that all requisite ingredients for valid gift under Muslim law were satisfied, namely, (a) declaration, (b) acceptance, and (c) delivery of possession. In the circumstances, the gift was held as valid.
2-Gift by one co-sharer to another
It is valid even without actual delivery of possession provided that in all the above case a real and bona fide intention to make a gift can be inferred.
Where the subject-matter consists of zamindari villages and parcels of land in the case of which physical possession is impossible. The gift can be finalized by changing names and transferring rent and income.
When there is evidence that some of the properties in gift have been delivered, the delivery of possession of the rest may be inferred.
5-When donor and donee reside in the same house which is to be gifted
It was observed in Hayatuddin vs Abdul Gani and others, that where the donor and the donee both reside in the property the physical departure or formal entry is not necessary. In this situation, the gift may be finalized by the giver taking an overt action that makes it evident that he intends to relinquish ownership of the gift’s object and transfer it to the recipient.
6-Gift by husband to wife or vice versa
The delivery of possession and the formalities regarding it, viz., those of vacating the house or removing the goods of the donor from it are not essential when the gift is made by the husband to the wife and vice-versa, provided it can be inferred from the surrounding circumstances that he had real and bona fide intention to make gift. In case of gift of immovable property, no physical departure or formal entry is required, where the property is held by the husband and wife for their joint residence or is let out to tenants.
The gift may be completed by the donor by any appropriate method of transferring all the control that the nature of the property admits of any by the donor divesting himself of all his rights in the property. Thus, a gift of the government promissory notes may be affected by endorsement and delivery of the done.
8-Where the donee is in possession
Where the dones is already in possession of the property to be gifted, delivery of possession by the donor after taking it from the done is necessary. Donor’s mere declaration of having gifted it to the done will suffice.
REVOCATION OF GIFTS
Under the Shai law a gift can be revoked by a mere declaration and no decree of court or donee’s consent is necessary. In Sunni law, revocation of a gift is possible only by the intervention of a court of law or by the consent of the donor; a mere declaration on the part of the donor is not enough.
Before delivery of possession- Before the delivery of possession, the gift is not complete, and the donor has unrestricted right to revoke it. Strictly speaking, this is not revocation of a gift in the sense of talking back about the subject of the gift for the gift before the delivery of possession is not complete.
After delivery of possession- Even after the delivery of possession the donor has a right to revoke the gift either with the consent of the done or by a formal decree of court. The court will grant a decree except in the following cases. Thus, the following gifts are absolutely irrevocable:
- When the donor is dead
- When the donee is dead
- When the donee and donor are consanguineous to an unlawful degree.
- When there is a marriage between the donor and the recipient.
- After the gift’s topic has been transferred by action, gift, sale, or another method.
- 6- When the gift’s intended recipient has been eliminated, destroyed, or irreparably altered.
- 7- When the present’s target has increased in value and the growth is integral to the gift.
- When the gift is sadaqah.
- When anything has been accepted in return.
The idea of a gift is one that has been around for a while but is now returning. When the transfer of property act, 1882 is taken into mind, the terms “Hiba” and “gift” have different meanings. Muslim law is applied to rule Hiba. Consequently, the three requirements of a valid donation are as follows:
- Declaration of gift by the donor.
- Acceptance of gift by the donee.
- Transfer of possession by the donor and its acceptance by the donee.
- Delivery affected movable property.
A donor cannot transfer property without having a legitimate intention to do so. Once a revocation decree has been issued by a court of law, the donor may cancel the gift. Finally, we can conclude that a gift is an invitation extended by the giver to the recipient, also referred to as the donee. In other words, the word “gift” as it is used in English is generic and should not be confused with the term “Hiba” as it is used in Islamic law.
Author: Animesh Nagvanshi,
ICFAI, Dehradun and 3rd Year