GIFT OR HIBA UNDER MUSLIM LAW
GIFT IS CALLED HIBA IN MUSLIM LAW
A MUSLIM CAN GIFT ANY PROPERTY SELF AQUIRED ANCESTRAL MOVABLE, IMOVABLE, CORPORAL OR INCORPORAL.
GIFT (HIBA) IN MUSLIM LAW CAN BE CONDITIONAL OR UNCONDITIONAL.
- MUSLIM LAW HAS A DISTANTION ON GIFT IT DIFFERENTIATES BETWEEN THE CORPUS AND USUFRUCT OF THE GIFT
- CORPUS IS THE MAIN BODY OF GIFT USUFRUCT IS THE RIGHT TO ENJOY AND USE OF ANOTHERS PROPERTY
- CORPUS (MAIN BODY OF THE GIFT)
- USUCFRUCT (RIGHT TO ENJOY AND USE OF ANOTHERS PROPERTY)
- THERE CAN BE CONDITION OVER THE USUCFRUCT BUT NOT ON THE CORPUS
CAPACITY TO MAKE HIBA
- MAJOR (18 + RULE OF PUBERTY DOESN’T APPLY UNDER THIS)
- MUSLIM (MALE OR FEMALE)
- SOUND MIND
- Though it is not mandatory in muslim, law to make transection of gift in writing but it is not prohibited also gift can made orally or in writing under Muslim law.
- If gift is not made with Bonafide intention and is made with fraudulent intention to defraud creditors than quzi can declare it void
TYPES OF GIFT (HIBA)
Hiba-bil-iwaz is a peculiar concept of the Muslim personal law. Hiba means gift and Iwaz means consideration or return. Hiba-bil-iwaz, is, therefore, a ‘gift with an exchange’ or a ‘gift for consideration’. Under all the systems of law there cannot be any consideration or exchange in the transaction of gift. But Muslim law recognises a gift with an exchange as a kind of Hiba. If a gift has duly been made and completed, but subsequently the donee also gives something to the donor in lieu of this gift, then the gift is called Hiba-bil-iwaz.
For example, where A makes a gift of his house to B, and subsequently В also makes a gift of a car to A saying that the car was being given in return of the gift made to him, then the gift of the house from A to В is
THERE ARE TWO MAIN ESSENTIALS OF HIBA-BIL-IWAZ
- A VALID AND COMPLETE GIFT BY THE DONER
- ACTUAL PAYMENT CONSIDERATION(IWAZ) BY THE DONEE
A gift with a condition for something in return is called a Hiba-ba-shartul-iwaz. In this transaction the donee does not pay the consideration voluntarily; it is paid by the donee because it is a condition precedent for the gift.
In other words, the gift and the iwaz go hand in hand not one before the other. Payment of consideration is a prior condition (shart) for the gift. Therefore, subsequent gift by donee to donor is the condition precedent for the first gift in favour of the done
The subsequent gift by done to donor is not consideration of the first gift. The result is that in a Hiba-ba-shartul-iwaz the original gift is a pure gift at its inception and the payment of Iwaz is also an independent gift. Accordingly, Hiba-ba-shartul-iwaz is nothing but a set of two independent gifts in which the second gift is condition precedent for the first. Any kind of property may be stipulated as return.
However, it is to be noted that Hiba-ba-shartul-iwaz is only of academic importance. This kind of transaction is not common amongst the Indian Muslims.