‘Hiba’ and ‘Gift’ both describe the act of one person giving property to another without expecting money in return, but the way they are treated under the law is different. A gift under Indian law means a person gives movable or immovable property freely to someone else without payment, and for land or buildings, this usually needs a written gift deed and registration to be legally valid according to the Transfer of Property Act. In contrast, Hiba is the term used in Muslim personal law for a gift made by a Muslim person, where the property must be given immediately and without payment, and the person receiving it must accept it for ownership to pass. Under Muslim law, a valid Hiba is governed by personal law principles and focuses on declaration, acceptance, and delivery of possession rather than the formalities of the general gift rules under Indian law.
You Will Learn in This Blog:
- Meaning of Gift under Indian Law
- Meaning of Hiba under Muslim law
- Key differences between Hiba and Gift
- Legal sections that apply to both
- Requirements for a valid gift or Hiba
- Important FAQs people often search online
What is Hiba?
Hiba is an Arabic term used in Muslim law, meaning "gift" or "donation.” It refers specifically to the voluntary and immediate transfer of ownership of property or assets from one person (the donor) to another (the donee) without any exchange or consideration.
Key Features of Hiba:
- It is a voluntary and unconditional gift.
- The transfer of ownership is immediate and complete.
- The donee becomes the absolute owner as soon as the gift is made.
- Typically applies to movable and immovable property.
- Governed under Muslim Personal Law.
Legal Provision
Hiba is not defined in any Indian law because it is governed by Islamic personal law. However, Indian courts consistently recognize the validity of Hiba based on traditional principles of Mohammedan Law (Muslim personal law).
| A Hiba (gift) is the immediate and unconditional transfer of property from one person to another, made voluntarily and without any consideration, and accepted by or on behalf of the donee. |
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Books Used by Courts for Muslim Law:
- Hedaya (Hanafi Law): An old Muslim law book explaining Hiba rules.
- Fyzee’s Outlines of Mohammedan Law: A simple book that explains Muslim law ideas.
- Mulla’s Principles of Mohammedan Law: A common reference book on Muslim law for courts and students.
Hiba is made valid when?
- The donor must clearly declare the gift.
- The donee must accept the gift.
- There must be delivery of the property (possession) to the donee.
These are the basic essentials for a valid Hiba.
What is Gift?
The term "gift” is a broader legal concept under Indian law that means the transfer of property voluntarily without consideration by the donor to the donee.
Legal Provision
Section 122 of the Transfer of Property Act, 1882, sets out the legal framework for gifts in India. According to Section 122, the law defines a gift as follows:
| A gift means that one person gives something they own to another person without asking for anything in return, and the other person accepts it. The property given must already exist, and the giver (donor) must freely choose to give it, and the receiver (donee) must accept it. |
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Key Features of Gift:
- It can be made by anyone (not restricted by religion).
- The transfer may be immediate or executed later (in case of conditional gifts).
- Governed by the Transfer of Property Act, 1882 (Sections 122 to 129).
- Applicable to both movable and immovable property.
- Requires acceptance by the donee for the gift to be valid.
Comparison Table: Hiba vs Gift
This table helps you easily understand the key differences between Hiba (Muslim Gift) and a regular Gift under Indian law. It compares important points like how they are given, legal rules, and conditions.
| Point | Hiba (Muslim Gift) | Gift (Under Indian Law) |
|---|---|---|
Meaning | Giving property instantly and willingly by a Muslim to another Muslim without anything in return. | Giving any property to someone without expecting anything in return. |
Law Applicable | Governed by Muslim Personal Law (not the Transfer of Property Act). | Governed by Sections 122–129 of the Transfer of Property Act, 1882. |
Religion Requirement | Mostly applies to Muslims, but the donor and donee can be of any religion if they follow Muslim law for the gift. | Applies to everyone, regardless of religion. |
When it becomes valid | Becomes valid only when possession is handed over. | It becomes valid when the gift deed is executed and accepted. |
Formality Needed | Can be oral; no written deed required. | Usually requires a written gift deed, especially for immovable property. |
Time of Transfer | Transfer must be immediate. Future or conditional transfer is NOT valid. | Transfer can be immediate or conditional (based on terms). |
Delivery of Possession | Mandatory - without giving possession, Hiba is not valid. | Possession is not compulsory at the time of making the gift. |
Revocation | It can sometimes be revoked, except in specific cases (e.g., between spouses, after death). | Once accepted, a gift is usually not revocable, except under Section 126 TPA. |
Types | Hiba, Hiba-bil-Iwaz, Hiba-ba-Shart-ul-Iwaz, etc. | No special types under the TPA. |
Practical Examples
The following example shows how a gift works under both Muslim law and general property law in India. It helps illustrate the difference between a Hiba and a standard legal gift by using a simple real-life scenario.
Example 1:
Imagine a father tells his son, “I am giving you my house.” The son agrees, and the father hands over the keys.
- Under Muslim law, this is treated as a valid Hiba once the gift is declared and accepted by the son. Hiba does not need a written document or registration to be valid if these steps are met.
- Under the General Law of Gifts (Transfer of Property Act), the gift can still be valid, but if it is immovable property (like a house), it must be registered to be legally effective.
Conclusion
While Hiba and Gift both mean transferring property without payment, they differ mainly in the legal system governing them, formalities, and revocability. Understanding these differences is crucial, especially in inheritance and property disputes. If you are dealing with such matters, consult a legal expert for guidance based on your personal law and property type.
Frequently Asked Questions
Q1. Can Hiba be cancelled?
No, under Muslim law, once the Hiba is complete, it is generally irrevocable unless there is fraud or coercion.
Q2. Is acceptance necessary for a gift to be valid?
Yes, under the Transfer of Property Act, acceptance by the donee is mandatory for the gift to be valid.
Q3. Can a gift be made through a will?
No, a gift is an immediate transfer, while a will takes effect after death.
Q4. What happens if a gift deed is not registered?
For immovable property, registration of the gift deed is mandatory under the Registration Act, 1908.
Q5. Can a Muslim make a gift according to the Transfer of Property Act?
Yes, Muslims can make gifts under the Transfer of Property Act, but Hiba is governed by Muslim law and has specific rules.
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