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Concept of Hiba


Authored by - Ashish Nagpal

Keywords - Hiba, Islamic law, legal principles, legality, conditions, revocability, property.


Abstract


Human beings are endowed with the instinct to desire and possess the property and to regulate this need and control, the human urge for property Islamic law identifies two basic ways of acquisition of property; the acquisition through one’s own efforts and acquisition through the inheritance. However, a person can dispose of his/her property in any way he wishes to do so, provided that it does not further violate any of the legal principles and the transaction is given effect during his lifetime. Hiba is one of the meritorious ways of disposal of property. Therefore, this paper attempts to present an analysis of the structural elements of Hiba, its, legality, and its conditions. It also delineates the revocability or otherwise of the Hiba contract.


Introduction


The concept of gift in Muslims is called as Hibah. The concept of inheritance is not valid under Muslim law. It further means that a person cannot leave his property for someone specific by his choice. He can only donate a part of 1/3 of it to a stranger because already the division of property between the different heirs has been depicted in the Quran. However, a Muslim person can gift his property to anyone however he may like which can be anyone.


This gift is different from the concept of inheritance as it is inter vivos i.e it can be transferred only from one living person to another person who is also living while the inheritance is the distribution of property after he is dead and this concept of gift in Muslim law is called Hiba.

Hiba as defined by “Mullah” is that the gift is a transfer of property which can be either movable or immovable which is done without any exchange or consideration of goods in return.


Essentials of Hiba


The three main essentials of this Hiba or gift are defined as under:


1. The Declaration of the gift which is also called “Ijab”.

2. Acceptance also knew as “qubool” one has offered and the other one has accepted the declaration of the gift.

3. Delivery of possession which means that the property gifted has been transferred.

The main thing missing here is the consideration, that is the involvement of a monetary transaction in this process and if the consideration of money was accepted here then it would be considered as sale and not a gift.


Concept of Oral Gift


The most important thing is that under the Muslim Law, an oral gift can be constituted without any written document, or without any proof delivered by any of the parties and only three conditions must be satisfied to constitute the oral gift.


One important case to understand the concept of oral gift in the case of G Mujeer Ahmed v. Mohd. Zafurullah, where the oral gift was totally accepted by the court. One person, in this case, has done ijaabi.e declaration that he wants to give a gift to another person and the other person accepted his offer.


Detail of Essential Condition of Hiba


In the case of M Rother v. Charahil along with the three conditions of the valid Hiba, the Constitution of a registered “Hibanama” is also proof of completion of the gift. However, this registration is not deemed to be important as to the court and only the three important conditions must be followed and it should be the only condition that should be valid for the acceptance and as a shred of evidence in the court too, It further overcomes the Section 16 and 49 of Indian Registration Act, 1908 and has no effect.


Declaration here means that the one gifting his property must have the intention to do so too and if it is done without intention then it would be a sham gift or a Benami transaction. There can also be a case where one individual in order to fool its creditors gifts his property to the other person. In this case, this is a voidable gift on the option of creditors.


Acceptance here means that it should be legal and a competent person here can only accept the gift. A minor here cannot accept the gift. An interesting thing to note here is that in case of a debt if the debtor wishes to give the money which he owes to the other person or the creditor as a gift then the creditor here although not wishing to accept the gift cannot say that the gift wasn't completed and it is considered as Hibah here.


Delivery of possession is a very important characteristic i.e there should be a transfer of property to the donor to the donee and if the delivery is not done than the gift cannot be said to be completed. Although delivery of possession here doesn't necessarily mean that the done should get the complete possession of the gift or that the donor himself should hand out the delivery of goods, he wishes to gift by himself. For example, keys given of a house can be considered as the delivery of possession too.


Exceptions Where Delivery of Goods is not Necessary


1. Where the donor and donee are living in the same house or under the same roof:- This case can be properly understood with the example of the following case between Begum Ruzan v. Junaid Sulimani. In this case, an aunt gives the house as a gift to his niece who has living with her and this was considered as a gift as they were living under the same roof.


2. Where a husband gifts his wife something:- This can be properly understood with a situation where a husband gifts her wife home, he left the home, and after that lived under the home for a short period of time and died there. The gift here would be considered as a valid one.


3. In case of other family relations like a father to son, mother to daughter, or guardian to ward i.e the relations in which there is a degree of closeness.

Registration of Hiba


It does not prescribe a registered instrument for a valid gift but if a gift is in the form of 'hibanama' then registration of such gift is necessary. In the case of Kamrunisa Bibi v.Hussani Bibi, one person gifted his land to another person and after that, later on, delivered the same to him too but it was an oral agreement. The Court here ruled that no registration is necessary if the 3 essential conditions are followed.


Although Section 123 of the Transfer of Property (TPA) Act, which says that if there is a transfer of immovable property as a gift then it should be signed by the donor and attested by two witnesses for a valid transfer of gift, Section 129 of the TPA exempts the gift under Muslim law and hence Section 123 would not be applicable.


However, the important thing to note here is that the Section 129 hereof TPA here tells a general rule under Muslim law but if there is a special law created by the Parliament or the State Legislature like the Bihar Tenancy Act under which the occupancy of tenancy should be compulsory registered then in those cases where a certain thing is made compulsory then the Section 129 would not be applicable here and the procedure laid down in the Act should be followed.

Constitutional Validity of Oral Agreement


Justice Krishna Iyer in the case of M Rother v. Charahil which has been already discussed earlier has formed a long discussion and termed that the gift under Muslim law is of 2 types:


Religious and secular. If it of religious nature, then the conditions of Section 123 need not be followed. However, it is of secular nature then the requirements of Section 123 need to be followed. Various authors and jurists have confirmed this viewpoint, but it has been criticized by many too upon the fact that how the two distinguished forms can be distinguished from each other and it can be easily fooled here from one form to other too. The viewpoint of other jurists here is that the gift deed can be done orally, and it can be registered. If registered, then it would not be against the religion and it is only by the choice.

Who can give Hibah ?


Any man or woman who is major and is sane can gift his property by the medium of Hibah. However, in some cases, the gift when done should have proof that the one who has gifted his property has done it with his will, and if it is proved that it is against the will of that person, then the gift is considered as void. In Muslim law, it is generally considered that the women who do Burqah or Niqab are unaware about the consequences of the gift deed and it should be proved in the court of law that their consent was obtained freely. In the case of Farah Hussain v. Akbar Hussaini, the women were told to sign a gift deed, and at the time she was told that the gift deed is of a certain time after her death but the gift deed was of immediate nature and the matter was challenged in the court and the court here held that it was against the wish of the woman and hence it is not a gift.


HIBAH MARZ-UL-MAUT


This type of gift arises in the situation where the person is on his death bed. The term here marz-ul-maut simply means on his death bed. As we already know that the concept of inheritance is not applicable among Muslims. Hence, the person here who is on his death bed cannot gift more than 1/3 of his share and if he does want to share more than 1/3rd of his share then all the inheritors of that property must give their consent for the same being done. It can be in favor of any person and “unborn child” can also be considered under the persons who can receive his or her share condition being that he or she should be born within 6 months of the gift deed thus signed or made. This gift can also be made to juristic persons such as any mosque, dargah, etc. and also to any non-Muslim person.


Revocation of Hiba

Cancellation of Hiba can be referred to as revocation here and it can be further studied under 2 aspects:


1. Before delivery of possession


Before the delivery of possession, Hibah can be revoked easily as all the conditions of the valid gift here are not considered and the gift is not completed, and hence if the delivery of possession is not done than the person can revoke the gift any time he wants.

2. After delivery of possession


After delivery of possession, the gift is completed and the person to whom it is gifted becomes its owner and the gift here cannot be revoked easily. The only two conditions where it is possible is when the court comes in the matter between the parties or if the donee gives his consent for the reversal of the process of gift then the only gift can be revoked. However, there are certain conditions where even after the involvement of the Court, the gift cannot be reversed, and even if the party consents for the reversal of the procedure of gift is not considered. The conditions being: -


1) The gift is given by a husband to wife or vice versa

2) Where they are connected within the prohibited degree

3) Where the Donor or the Donee dies

4) Where the thing given in Hibah is Destroyed

5) Where the value of the thing given in Hiba increases after a certain period

6) Where the condition of the thing has been so changed or destroyed as it cannot be identified


Types of Hibah


Generally, there are two types of Hibah, as discussed below: -


1) Hibah-ba-iwaz


The type of gift in which there is a return involved. The return here can be of anything and any value and it is not specific. For example: - If A gifted his car to B and on receiving the car B was so happy and he decides to gift A some land he has in his possession. The car here, in this case, is purely a case of Hibah and the gift of land is Hibah-bid-iwaaz. This return of gift cannot be considered as a sale however the legal effect and recognition of Hibah-bid-iwaaz in India are of either sale or exchange and further it is governed by Section 54 of the TPA and if there is an immovable property involved in return to the Hibah then it would be governed by Section 118 of TPA. It is not considered as a pure form of Hibah. The value of the gift here which is returned by one receiving Hibah is not of much matter and it can be anything.

2) Hibah-ba-shartul-iwaz


There is a condition on giving Hibah. The basic difference between the two is there is no intention in returning anything after Hibah is given but in Hiba-ba-shartul-iwaz a condition is formally instituted that on the completion of which Hibah will be completed.


References


1. PARAS DIWAN, Muslim Law in Modern India, (3d ed. 2016).

2. DR. SAIF MAHMOOD, Introduction to Muslim Law, (4d ed. 2013).

3. ‘Gift’- Transfer of Property Act, 1882, Section 122 of TP Act, 1882.

4. HayatullahLaluddin, Mohd. Nasran, MohomadZainiNasoha&Shotian Ahmed, Advances in Natural and Applied Sciences, Vol.6 (7): 1080-1085 (2012).

http://www.aensiweb.com/old/anas/2012/1080-1085.pdf.

5. Khairiah Ahmad, Rozaiha Ab Majid, Zaharah Abdulla, Siti Fatimah Noor Minhad, Shafinan Ismail, Acceptance of Hiba as an Alternative Mechanism in Muslim Asset Management, Shs web of conferences 36, 00030 (2017).

https://www.shs-conferences.org/articles/shsconf/pdf/2017/04/shsconf_icga2017_00030.pdf.

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