Hiba In Muslim Law

Hiba in Muslim Law, commonly referred to as a gift, holds significant importance as an act of generosity and goodwill. It represents a voluntary transfer of property or possessions from one individual to another, showcasing affection, care, and respect. Governed by specific rules and formalities, Hiba in Muslim Law encompasses essential features, types, and limitations that distinguish it from other forms of property transfers. This article delves into the concept of Hiba, its features, essentials, formalities, and kinds, providing clarity on its application and significance in Muslim personal law.

Concept Of Hiba In Muslim Law

In Muslim law, a gift is called hiba. When one person gives or donates something to another, it is called hiba. This shows affection and care for the other person.

Features Of Hiba

The following are some of the features of a hiba:

1. It is voluntary. So, no party is forced to give or take a gift.
2. It is unconditional, meaning there is no condition attached to a gift. For example, if A gives his watch to B and puts a condition that he can use it only on Sundays. It is a void gift.
3. A gift can be made of any movable or immovable property.
4. It immediately transfers the property from one person to the next.

Essentials Of A Hiba

For a valid hiba in Muslim law, the following essentials must be fulfilled:

Donor

The person who is giving the gift is called the donor. The donor must be of sound mind and major age and must give away his property independently without force or fraud..

Donee

The person who received the gift is called the donee. The donee can be anyone, a Muslim or non-Muslim person, a minor or insane person. There is no restriction based on sex, age, or religion on who can receive a gift. However, the donee must be living at the time of the gift. If a gift is made to an unborn person or a dead person, it is void.

Subject Matter Of A Hiba

Any property that can be possessed is the subject matter of hiba. So, money, land, jewelry, goodwill, etc., can be given as a gift. However, there is no gift of services as they are not possessed and cannot be delivered.

Extent Of Right To Hiba

In Muslim law, the rule is that the donor can give away any part of his property to the donee. There is no limitation on how much he is allowed to provide. In the case of Muslim law on wills, a restriction is imposed according to which no one is allowed to offer more than 1/3rd of his property.

Formalities Of Hiba

The above-mentioned essentials of hiba are required to be accompanied by these formalities:

1. Declaration by the donor: There should be a clear declaration on the donor's part. It should be done in the presence of witnesses or in public.
2. Acceptance by the donee: The donee must accept the gift voluntarily. It can either be actual or constructive acceptance or express or implied acceptance.
3. Delivery of possession: The property must be delivered to the donee. Without delivery of property, the hiba is void.

Also Read : Comparative study of gift and will

Kinds Of Hiba

Hiba is of the following types:

Mushaa

Mushaa is also called irregular hiba. Mushaa means an undivided share in a property, whether movable or immovable. When a property cannot be divided, a gift of its undivided share is valid. But if the property can be divided, a gift of its undivided share is invalid. Such gifts become irregular and can be corrected by separating the property.

Sadaquah

It is a gift made with religious motives. It requires fulfilling all the essentials of a hiba to be valid. However, it need not be expressly accepted and can't be revoked like a normal gift.

Hiba-bil-iwaz

It means a gift for an exchange. For this to be valid, something is given in consideration for the gift. For example, if T tells V that he will give him his watch for Rs. 100. It is a Hiba-bil-iwaz.

Hiba-ba-shart-ul-iwaz

It is a gift made with the express promise of consideration. In the above, Hiba-bil-was, there is no express stipulation for consideration.

Aariat

It is a type of gift where a license is granted for a certain period and revocable at the grantor's option.

Also Read : Gift under transfer of property act

Revocation Of A Hiba

As a general rule, when a gift is once made, it cannot be revoked. However, a gift can be revoked in some cases:

Revocation of hiba before delivery: When the gift is incomplete, and the delivery has not been made, the gift can be canceled.

Revocation of hiba after delivery: A gift can be canceled even after the delivery if the donor has the right to revoke it. For example, they can revoke a gift on the consent of the donee or the court's orders.

However, some gifts can never be revoked. These include the following:

1. In case the donor dies, the gift cannot be canceled.
2. If donee dies, then also gifts, once made, cannot be canceled.
3. The gift cannot be canceled if the parties involved in a gift are within degrees of a prohibited relationship. For example, a gift from a father to his daughter cannot be canceled.
4. When the donee has already transferred the gift to some other person through sale or lease.
5. When a gift is given to the god, it cannot be revoked.
6. If the subject matter of the gift is lost or destroyed, it cannot be canceled.

Void Hiba In Muslim Law

The following gifts cannot be made:

1. Gifts to unborn persons: A hiba cannot be given to a person who is not in existence, as acceptance of a donee is essential for a hiba.
2. A gift to a dead person: Similar to above, a gift to an unborn person is also void.
3. Contingent gift: A gift that takes effect on the happening or non-happening of an uncertain future event is also void. For example, Z gives his property to Y for his life, and if Y dies without a son, the property will go to W. Whether or not a gift will be given to W is based on an uncertain event, hence void.
4. Future gifts: A gift cannot be made for anything that will happen in the future, as it is also uncertain. For example, the crop that farmers will produce next season is a future gift, and it is void.
5. Conditional gifts: When gifts are made with a condition, the condition becomes void, and the gift takes effect without it. For example, if R gifts his house to P on the condition that he shall not sell it to anyone ever. The condition is void, and P can sell the house how he likes.

Cases law on Hiba

Here are some relevant case laws on Hiba in Muslim law:

Hafiza Bibi Vs. Shaikh Farid (2011)

The Supreme Court held that an oral gift that fulfills the formalities of a gift is considered final and irrevocable once completed.

Mahboob Sahab Vs. Syed Ismail (1995)

The Apex Court held that a hiba in Muslim law does not need to be made in writing. There is no condition that it is required to be registered under the Registration Act of 1908. It is still valid.

Abdul Rahim Vs. Abdul Zabar (2009)

It was held that if the donee loses possession of the gifted property, the gift cannot be canceled. The court reiterated that declaration, acceptance, and delivery are important for a valid hiba.

Conclusion

Hiba in Muslim Law is a unique and essential concept that reflects the values of generosity and voluntary gifting. With clear rules and formalities, it ensures the smooth and legitimate transfer of property while maintaining the rights and responsibilities of both the donor and the donee. Understanding the essentials, features, and types of Hiba is crucial for navigating its legal and social implications. By adhering to the prescribed formalities and principles, Hiba in Muslim Law continues to uphold its significance as a meaningful act of affection and goodwill within the Muslim community.

FAQs On Gift Under Muslim Law

Here is an introduction to the frequently asked questions (FAQs) regarding hiba in Muslim law, which will provide a deeper understanding of the concept, its requirements, and its implications for both the donor and the donee.

Q1.What is the concept of hiba in Muslim law?

Hiba refers to a voluntary gift made by a donor to a donee, transferring ownership of property without any consideration or condition attached. It is a way of showing affection and care for the recipient.

Q2.Can a hiba be revoked once made?

As a general rule, a hiba cannot be revoked once it is completed, but it can be revoked before delivery or under specific circumstances, such as mutual consent or court orders.

Q3.What are the essential requirements for a valid hiba?

For a hiba to be valid, it must meet certain requirements, including the donor being of sound mind, the donee accepting the gift, and the delivery of possession of the gift to the donee.

Q4.Is there any restriction on the type of property that can be given as hiba?

A hiba can be made of any property that can be possessed, such as money, land, or jewelry. However, gifts of services are not permissible under Muslim law as they cannot be possessed or delivered.

Q5.What happens if the donee sells or transfers a gifted property?

Once a gift is made and possession is transferred, the donee can sell or transfer the gifted property to others. If the donee sells the property, the gift cannot be revoked, even if the donor later changes their mind.

Ref:

https://blog.ipleaders.in/hiba-gift-muslim-law/

https://www.drishtijudiciary.com/to-the-point/ttp-muslim-law/gift-under-muslim-law

https://www.legalserviceindia.com/legal/article-4560-hiba-under-muslim-law.html

https://lawcrust.com/hiba-under-muslim-law/

https://lawbhoomi.com/gift-under-muslim-law/