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Concept of Gift Under Muslim Law


Authored by - Prachi Ganeriwala

Keywords - Hiba, Aria, Donor, Donee.


Abstract


The concept of gift in Muslim law has existed since its inception. According to He daya and Ameer Ali[1], Hiba may be defined as, "an unconditional transfer of property, done immediately and without any consideration or exchange, by one person to another person and accepted by or on behalf of the donee".[2] As per the Muslim Law, when a Muslim transfers his property via gift, the transfer is known as Hiba, notwithstanding the religion of the person to whom the gift is made. In India, the concept of gifts is governed by the Transfer of Property Act, 1872, but it does not apply to Hiba.


Introduction


The connotation of the phrase ‘gift’ embodied in the Transfer of Property Act is distinct from the practice under the Muslim Law. Under the Muslim Law, a ‘gift’ is a transfer of property or right by one person to another per the provisions provided under Muslim Law i.e. Hiba and Aria. Hiba (Tamlik al ain), is an immediate and unconditional transfer of the ownership of some property or some right, without any consideration whereas Aria (Tamlik al manafe) the grant of some limited interest in respect of the use or usufruct of some property or right. [3]

A Muslim can only gift one-third of his property through Hiba and that too to a stranger and not an heir, although he may give heirs, the whole or a part of the property subject to certain conditions.


A person may lawfully gift his property to another person during his lifetime or he may give it to a person after he dies, by the way of a will. The first transfer is known as disposition inter vivos and the other transfer is known as testamentary disposition. Muslim law allows both kinds of transfers but a disposition inter vivos is unlimited, whereas a testamentary disposition is limited to one-third of the net estate of the donor. Muslim law permits a man to give away the whole of his property during his lifetime, but only one-third of property can be bequeathed by the way of a will.

Kinds of Gifts


· HibabilIwaz


The term Hiba means gift and Iwaz means consideration. Therefore, HibaBilIwaz means a gift for which consideration is already received.

· HibabaShartulIwaz


Shart means stipulation and HibabaShart ul Iwaz means a gift made with a stipulation for return. Unlike in HibabilIwaz, the payment of consideration is postponed here. Since the payment of consideration is not made immediately, the delivery of possession becomes essential.

· Mushaa (Hibabilmushaa)


Mushaa means undivided share in a property. The gift of undivided share in an indivisible property is valid under all schools but the unanimity of opinion lacksin the case of a divisible property.

Essentials of a Valid Hiba


1. Qualifications for the Parties:


Donor


The donor has to essentially be a Muslim of a sound mind and must have attained majority. There is no defect for a woman to send a gift. The presumption in both cases is that the person knows and understands what they are doing. However, the doubt of the court arises in cases of a pardanash in woman.[4]


Donee


The most necessary in a Muslim gift is that the donee has to be a juristic person.[5] The gift can be given to any person without any embargo of age, religion or sex. When a gift is given to a minor or someone of an unsound mind, then the gift will be completed by the delivery of possession of the gift to the guardian of the person of the unsound mind or the minor.[6] The general rule is that Hiba to an unborn person is valid. A Hiba to a child in the womb is valid if the child is born within six months of the Hiba. In such cases, the motive is to ascertain that the child is in existence as a separate entity inside the womb of the mother.[7]


2. Subject-Matter of a Hiba


A Muslim can make a Hiba of the whole of their property. However, the property must be transferable under Section 6 of the Transfer of Property Act, 1882.


3. Formalities of a Hiba


i. Clear and Unequivocal Declaration by the Donor : A clear and unequivocal declaration of intention of making a gift by the donor is an essential element of the validity of a gift irrespective of the form of declaration, provided the declaration is bona fide.


ii. Acceptance by the Donee : The next necessary condition for the validity of a gift is acceptance by the donee or his agent. Such acceptance may be expressed or implied.[8]


Acceptance is not Required When:


a. the gift is made by the guardian to his ward.

b. the gift of debt is made to the debtor.

iii. Delivery of Possession:


The third and most essential condition required for the validity of a gift is delivery of possession of the property of the gift whether movable or immovable. [9] A gift not accompanied by possession is void ab initio.


Exceptions


a. Joint Residence of the Donor and the Donee : When both the donor and the donee reside in the house, which is the subject-matter of the gift, the actual or physical delivery of possession is not necessary, in such a case the gift will be deemed to be completed by some overact by the donor indicating a clear intention on his part to transfer possession and to dispossess himself of all control over the property.[10]


b. Property in Possession of other Persons : The property of gift may not be in the possession of the donor himself but may be held adversely by other persons or under attachment of arrears of revenue. A valid gift may be made of the possession of a mortgagee, even if the donor makes a constructive delivery of possession. When the property is in the occupation of tenants, a valid gift may be made without giving physical delivery of possession but by delivering title-deeds or by a mutation in the revenue records.[11]


c. A Gift between Spouses : When a husband or a wife makes gifts to each other of some property in their joint possession, then the physical delivery of possession is not necessary.


d. Gift by a Guardian to his Ward : In the case where a guardian makes a gift to his ward,the actual delivery of possession is not mandatory, only an indication of a bona fide intention to stand in loco parentis to the donee or is in the lawful custody of donee.[12]


Revocation of a Gift


Under Islamic law all voluntary transactions are revocable, therefore it is also attributed to Gift. Revocation before delivery of possession: a gift is completed on after the delivery of its possession, so a gift may be revoked by the donor at any time prior it. A mere declaration of the same is sufficient.


Revocation after Delivery of Possession : A gift, after the delivery of possession cannot be revoked by the donor through mere declaration however there exists certain exceptions such as: A gift between the spouses is irrevocable if made during the subsistence of their marriage, even though the marriage is irregular and is dissolved afterwards.[13]

  • When the donor and the donee are related within prohibited degrees, by consanguinity, the gifts are irrevocable.

  • The right of the gift is personal and so if either the donor or the donee dies, the gift is irrevocable, their heirs have no right of revocation.[14]

  • After completion of the gift, the donee becomes an absolute owner of the gifted property and the donee may transfer that property further.

  • After the revocation of a gift, the property should revert to the donor.

Conclusion


To conclude it can be said that, while considering the law of gifts, it is noteworthy to mention that the English term ‘gift’ is generic and should not be confounded with its meaning under Islamic law. The concept of ‘Hiba’ and the term ‘gift’ as used in the transfer of property Act, are distinct.


[1]Ammer Ali, I, 40-41. [2] The Hedeya, 482. [3]India, legal. 2020. "Gift As Under The Transfer Of Property Act And Mohemmedan Law". Legalserviceindia.Com. https://legalserviceindia.com/articles/transfer.htm. [4] A.A.A. Fyzee, Outlines of Muhammedan Law, 225 (4th Ed., 2005) [5] Id. [6]Ameroonissa v Abadoonnissa (1875) 2 IA 87 [7] Paras Diwan, Muslim Law in Modern India, 192 (9th Ed., 2004) [8]Munni Bai v. Abdul Gani, AIR 1959 MP 226 [9]The Hedaya 482 [10]Mohd. Ibrahim Khan v. LRs. Of Azad Rasul & others, AIR 2008 (NOC) 187 (Raj); Mst. Husaina Bai v. Mst. Zohara Bai, AIR 1960 MP 63; Mohd. Saleem v. Abdul, AIR 1972 Pat 279 [11]M.M.Quasim v. Manoharlal Sharma, AIR 1981 SC 113; Gaui v. Wajid, AIR 1935 Cal 393, Ibrahim v. Noor Ahmed, AIR 1984 Guj 126 [12]Mohd. Sadiq v. Fakhr Jahan, AIR 1932 PC 13 [13]Sadiq Ali v. Amiran, AIR 1927 Oudh 439 [14]Mohboob v. Abdul, AIR 1964 Raj 250

References


1.https://legalserviceindia.com/articles/transfer.htm

2.https://www.lkouniv.ac.in/site/writereaddata/siteContent/202004021930365160rksingh_LAW_OF_HIBA.pdf

3.https://www.researchgate.net/publication/228228161_Comparative_study_of_Gift_under_Islamic_Law_and_Transfer_of_Property_Law_Indian_perspective

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