The concept of Hiba under Muslim law has existed since 600 A.D. Gift is the transfer of a property from one person to another. Hiba, is a voluntary gift of property without any consideration, deeply rooted and derived from Islamic law. The term gift is known as ‘Hiba’ in Muslim law. Whereas in English, the word ‘gift’ has a much wider expression which applies to every transaction where an individual transfers his or her property to another without any consideration for the same. In contradiction to this, the term ‘Hiba’ in Muslim law has a much narrower connotation. A Muslim is allowed to give away his whole property in his lifetime but he can only give one-third of his property through a will. Also, the religion of the person to whom the gift is made is irrelevant.
In this paper, efforts have been made to present all such relevant legalities in a short but comprehensive manner. The paper deals with various provisions followed by the Indian legal system over a long period. Also, an attempt has been made to study Muslim Law with Indian codified laws to best understand the actual functioning of the laws.
Table of Contents
Introduction
The notion of ‘Gift‘ or ‘Hiba’ persisted in Muslim law from the foundation of the religion. According to the Muslim Law, a gift is termed as ‘Hiba’. Although the words ‘Gift‘ and ‘Hiba‘ are frequently interchanged without drawing the line of differentiation, the term ‘Hiba’ is just one of the forms of transactions which is transferred without any consideration, often addressed under the broader expression of ‘Gift’.Under Muslim law, the expression of ‘gift’ is subjected to certain principles of the contract act as it constitutes an offer (hijab), acceptance (tubular) and transfer (Cabeza). According to Section 122 of the Transfer of Property Act, “a gift is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the done”.
In the Mohammedan law, a gift is a transfer of property or right by one person to another by the provisions given in the Mohammedan law and includes-
A ‘Hiba‘, is an immediate and unconditional transfer of the ownership of some property or some right, without any consideration or with some return. The operation of Hiba starts immediately after the transfer of property by the transferor, disposing of all his possessions and ownership of the property. Moreover, the transferred property must be tangible or have some existence at the time of the transaction. A property gifted without present existence is void.
Modes of Delivery of Possession
The manner of delivering possession is entirely dependent on the nature of the property. To constitute the delivery of the property, the donor is legally obliged to act in a way by which the done is entitled to the physical possession of the property. A donee is said to possess a property in such a way that he may exercise exclusive control over it and benefit from it. The delivery of possession is broadly classified into actual and constructive delivery of possession.
Actual Delivery
Actual delivery involves the physical handing over of the property to the donee. This model is straightforward and applies to tangible movable property, such as money, jewellery, or household items. The donor directly gives the item to the donee, completing the transfer of possession.
Example: A person gifts a car to a friend. Handing over the keys and transferring the car’s documents to the friend constitutes actual delivery.
Constructive Delivery
Constructive delivery occurs when physical possession is not possible or practical. Instead, actions are taken that effectively transfer control over the property to the donee. This is often applicable to intangible or non-physical assets.
Example: In the case of a gift of land or property, registering the property in the donee’s name or handing over the title deeds constitutes constructive delivery.
Symbolic Delivery
Symbolic delivery involves transferring an object that represents the property being gifted. This mode is used when the actual property cannot be physically handed over at the time of the gift.
Example: Gifting a house may involve handing over the keys, which symbolically represent the property, even if the donee does not immediately take physical possession of the house.
Delivery by Declaration
In some cases, the donor may make a public declaration or written statement indicating that the property has been gifted to the donee. This mode is particularly relevant in situations where the donor retains some form of control over the property but intends to transfer ownership.
Example: A parent may publicly declare or document that a particular piece of land is now owned by their child, even if the child does not immediately take physical control.
Legal and Jurisprudential Considerations
Islamic jurisprudence emphasizes the importance of unequivocal delivery of possession to validate a Hiba. The following principles guide the delivery process:
- Intention (Niyyah): The donor must have a clear intention to transfer ownership without any consideration.
- Acceptance (Qabool): The donee must accept the gift, which can be explicit or implied.
- Delivery (Qabza): The delivery of possession must be clear, whether actual, constructive, symbolic, or by declaration.
Latest Data and Trends
With evolving legal and societal norms, the modes of delivery of possession under Hiba have also seen developments:
- Digital Documentation: With advancements in technology, digital documentation and registration of property transfers have become more common, particularly for real estate and significant assets.
- Legal Reforms: Some countries with significant Muslim populations have updated their legal frameworks to simplify and clarify the processes of gift transfer and registration, ensuring alignment with both Islamic principles and contemporary legal standards.
- Increased Awareness: There is growing awareness among Muslims about the importance of proper documentation and registration of gifts to avoid future disputes and ensure legal validity.
Recent Judgements
- Mohd. Ibrahim & Ors. v. Mohd. Kunhi Kutty Haji, AIR 1970 Ker 226- In Mohd. Ibrahim & Ors. v. Mohd. Kunhi Kutty Haji, the court examined the validity of a Hiba made by a husband to his wife. The court held that the gift made by a husband to his wife is valid, as long as it is not made under compulsion or coercion. The court observed that Hiba between spouses is a recognized practice under Muslim Personal Law and highlighted the importance of free and voluntary consent in such transactions. This judgment provided legal recognition and protection to gifts made between spouses through Hiba, affirming their validity and reinforcing the principles of consent and voluntariness.
- Mehraj-ud-Din Dar v. Smt. Munawara Begum, AIR 1986 J&K 25- Mehraj-ud-Din Dar v. Smt. Munawara Begum dealt with the revocation of Hiba based on the subsequent birth of a child. The court held that the subsequent birth of a child does not invalidate a Hiba that was completed before the child’s birth. The court emphasized that once a Hiba is completed by the delivery of possession, it becomes irrevocable, and subsequent events like the birth of a child cannot affect its validity. This judgment provided clarity on the revocability of Hiba and ensured that completed gifts are protected even if subsequent events occur.
- Ameena Begum v. Abdul Khader, AIR 1994 AP 228- Ameena Begum v. Abdul Khader focused on the revocability of Hiba and the impact of the donee’s conduct. The court held that if the donee violates the conditions attached to the gift or acts against the interests of the donor, the Hiba can be revoked. The court emphasized that a Hiba is contingent upon the fulfilment of conditions and that the donor has the right to revoke the gift if the donee breaches those conditions. This judgment recognized the importance of protecting the donor’s interests and ensuring that the donee respects the terms of the Hiba.
- Rizwana Begum v. Abdul Rauf, AIR 1996 MP 116- Rizwana Begum v. Abdul Rauf addressed the issue of Hiba made in favour of minors. The court held that a gift made in favour of a minor through Hiba is valid, and the guardian of the minor can accept the gift on their behalf. The court observed that minors have the capacity to receive gifts through Hiba, and the guardian acts as their representative in accepting the gift. This judgment established the validity of gifts made to minors through Hiba and highlighted the need to protect the rights and interests of minors in such transactions.
- Shahida Begum v. Abdul Sattar, AIR 1997 Raj 171- Shahida Begum v. Abdul Sattar dealt with the requirement of delivery of possession in a Hiba transaction. The court held that for a Hiba to be valid, there must be actual delivery of possession of the gifted property from the donor to the donee. The court emphasized that physical transfer of possession is an essential requirement for the completion of a Hiba. This judgment reaffirmed the importance of the transfer of possession in Hiba transactions and clarified that mere intention or declaration of gift is not sufficient without actual delivery of possession.
- Fathimath Suhara v. Musthafa, AIR 2001 Ker 214-Fathimath Suhara v. Musthafa focused on the issue of conditional gifts in Hiba. The court held that a Hiba can be made subject to conditions, and the fulfilment of those conditions determines the validity and enforceability of the gift. The court observed that conditions attached to a Hiba must be reasonable and not against public policy. This judgment emphasized that the conditions imposed on a Hiba should be lawful and not contrary to the principles of justice and equity. It provided clarity on the validity of conditional gifts made through Hiba and ensured that the conditions imposed were fair and reasonable.
- Sardar Muzahar Ali Khan v. Sardar Saeed Murad Ali Khan, (2010) 1 PLD 475–Sardar Muzahar Ali Khan v. Sardar Saeed Murad Ali Khan addressed the issue of revocability of Hiba based on the misconduct of the donee. The court held that if the donee engages in misconduct or acts against the interests of the donor, the Hiba can be revoked. The court emphasized that the donor has the right to revoke the gift if the donee’s conduct is contrary to the purpose and intent of the Hiba. This judgment highlighted the donor’s right to revoke the gift in cases of misconduct by the donee, ensuring that the donor’s interests are protected.
Rules & Provisions of Inheritance Under Hindu Law
Conclusion
The conception of the term „gift‟ and the subject matter of “gift‟ has been an age-old and traditional issue which has developed into a distinct facet of property law. Different aspects related to gifts in the Property Act and its distinction with the Muslim law and its implications have been the major subject matter of this article. In considering the law of gifts, it is to be remembered that the English word ‘„gift‟’ is generic and must not be confused with the technical term of Islamic law, Hiba. The concept of Hiba and the term “gift‟ as used in the Transfer of Property Act, are different. Hiba under Muslim law is very easy to take into effect while gift under Transfer of Property Law in India is a long procedural matter.