HIBA: ESSENTIAL, MODES AND REVOCATION
The term “Gift” generally means transfer of property from one person to other without expecting or taking something in return. Under Muslim Law, a person has a right to transfer his property during his lifetime by way of gift to other person without taking consideration and this process in legal terms is known disposition inter vivos (between living persons). Technically, Hiba or Gift means “an unconditional transfer of property, made immediately and without exchange or consideration, by one person to another and accepted by or on behalf of latter”.
In India, the term ‘hiba’ is often considered as equivalent to term ‘Gift’ but in literal sense, the term hiba means donation of a thing from which the donee may derive a benefit, the transfer must be immediate and complete (Tamlik-ul-ain) or the most essential ingredient of hiba is the declaration “I have given” whereas the term Gift is of much wider connotations. It may be noted that gift of corpus (body/thing) is known as hiba while gift of usufructs (rights) is known as ariya.
Mulla- “Gift is a transfer of property, made immediately, without any exchange, by one person to the other and accepted by or on behalf of latter”.
Fyzee- “Hiba is the immediate and unqualified transfer of the corpus of the property without any return”.
ESSENTIALS OF HIBA-
For transaction of gift their must be two parties i.e. DONOR and DONEE
a) Donor- the person who transfer the property as gift. A person is competent to become a donor if he satisfies the following conditions-
i. He must be of sound mind.
ii. He must have ownership over the property which is to be given in gift.
iii. He must have attained the age of majority.
iv. If the parties are found to be under fiduciary relationship, then their must NOT be and undue or coercive influence of donee over the donor.
A gift by Pardanashin lady is valid, but if the dispute arises that whether gift executed was free from undue or coercive influence or not, then the burden of proving same is on donee and not on Pardanashin lady. Similarly, the rule regarding Paradanashin women is also equally applicable on ignorant and illiterate women though not Pardanashin.
b) Donee- the person to whom gift is given.
i. Any person can become a donee since, there is no restriction of age, sex, creed or religion. For example, a Muslim (donor) can make a gift to non-Muslim who can be Hindu, Christian etc.
ii. A gift can be made to minor or a lunatic person but in that case the possession of gift must be handed over to their legal guardian.
iii. Donee must be in existence at the time of making gift. This means that gift made to unborn person is void.
2. Subject matter of Gift-
i. The donor must have possession over the property.
ii. It must be in existence at the time of making gift. Thus, gift of anything which is to made be in future is void.
iii. It must be designated under the term mal (property).
iv. It must exist either as specific entity or as an enforceable right.
v. Anything over which dominion or right to property must be exercised.
vi. Anything which can be reduced into possession.
In case of Rahim Bux vs Mohd. Hasen, (1883). 11 All 1, 5
3. Extent of donor’s right
A donor has unrestricted right to dispose his property during his lifetime by way of gift. He can transfer all of his property or any portion as he likes, knowing that it can adversely affect the right of expected heirs. However, this right has one exception that is if the donor makes a gift during death-bed then, firstly, he cannot gift more than 1/3rd of his whole property and secondly, it should not be made in favor of any heir.
FORMALITIES AND MODES OF GIFT-
1. DECLARTION OF GIFT BY DONOR- There must be clear, bona-fide and unambiguous intention of donor to make the gift. If the intention appears not to be real and bona-fide but to defraud the donee then the gift is void.
2. ACCEPTANCE OF GIFT BY DONEE- The acceptance by donee or on his behalf is essential if the same is not made then the gift is void. The acceptance made can either be actual or constructive according to circumstances. Acceptance by legal guardian on behalf of minor or lunatic person is permissible.
3. DELIVERY OF POSSESSION BY DONOR AND TAKING POSSESSION BY DONEE- to complete the transaction of gift, mere declaration and acceptance is not enough, the possession of gift should also be delivered otherwise the gift is incomplete and void. To see possession is delivered or not, one has to ensure whether still donor is reaping benefits of property or now the donee reaps the benefits of property. In former situation, possession is not delivered and in latter, possession is delivered.
The delivery of possession is entirely based on the nature of gift. Possession can be delivered by actual or constructive delivery.
Actual delivery- When the gift is of tangible nature or if can be physically handed over, its possession should be delivered by actual delivery. Actual delivery is only possible in the case of movable goods and not for immovable goods.
Constructive delivery- In case of incorporeal property and immovable property, where property cannot be physically delivered, such property can be delivered by constructive delivery i.e. transfer of title. Here, the intention of donor to transfer possession of property plays vital role.
REVOCATION OF GIFT-
In Muslim law all transactions made voluntarily are revocable. According to traditions of Prophet Mohammed the revocation of gift is abominable. Under Hanafai law, gift is revocable.
In Shia law, gift is revocable by donor by mere declaration of revocation.
In Sunni law, to revoke a gift, either the consent of donee is required or decree from competent Court is necessary by donor.
Gift can be revoked-
1. Before delivery of possession- Since, the transaction of gift is incomplete if possession of gift is not delivered, therefore, donor has unrestricted right to revoke the gift. This clearly means that in this case donor has changed its mind and decided to not to gift his property.
2. After delivery of possession- In Sunni law, donor has right to revoke gift either with consent of donee or with formal decree of Court. But in following certain situation Court cannot grant decree to revoke gift-
a) If parties stand in martial relationship.
b) If donor is dead.
c) If donee is dead.
d) If parties are connected in prohibited degree of consanguinity e.g. brother and sister.
e) If donee had transferred subject matter of gift by sale, gift or otherwise.
f) If subject matter of gift is changed and lose its identity or if it gets lost, or destroyed.
g) Gift is sadaqah.
h) If something in return of gift is accepted.
In Shia law,
a) gift to any blood relation is irrevocable.
b) Gift can be revoked by mere declaration of donor.
c) Gift by husband to wife or by wife to husband is revocable.
Author: kashish gupta,
Invertis University, 4th year