Concept of Hiba under Muslim law

This article on “Concept of Hiba under Muslim law” was written by Mahek Patel, a student of Lovely Professional University,

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 is applicable to each and 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 of time. Also, an attempt has been made to study Muslim Law with Indian codified laws so as to best understand the actual functioning of the laws.

Key Words

Hiba,Transfer of property act,Muslim,Consideration

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 word ‘Gift‘ and ‘Hiba‘ are frequently interchanged without drawing the line of differentiation, but 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 (ijab), acceptance (qubul) and transfer (qabza).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 in accordance with the provisions given in the Mohammedan law and includes-

A ‘Hiba‘, an immediate and unconditional transfer of the ownership of some property or of 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 possession 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 of Possession

Actual delivery refers to the physical transfer of the property to the donee. The tangible properties or the properties that can be physically owned irrespective of movable or immovable, are supported under this form of delivery. The donee must be actually transferred and handed over the movable property. The actual delivery of possession is mandatory in case of immovable property. However, since the immovable property can’t be collected or handed over, the donor may deliver the property by providing all the documents relating to the property to the donee so that it can be used according to the discretion of the donee.

Constructive Delivery of Possession

Constructive delivery of possession or ownership denotes to the symbolic transfer of the property. Through this mode of delivery, the donor does any act on the grounds of which it is legitimately assumed that the possession has been handed over to the donee. Such a form of transfer of ownership occurs only when the nature of the property forbids it’s the delivery through actual mode. The constructive delivery of possession is enough to constitute a valid gift when either the property is intangible, or the given circumstances doesn’t support the actual delivery of ownership property of the tangible property.

Declaration: The donor must make a clear and unambiguous declaration of gift, expressing his or her intention to transfer the property as a gift. There must be a clear declaration of Hiba by the donor. This declaration signifies the intention to transfer ownership of the property to the recipient as a gift. The declaration can be made orally or in writing, but it must be made with the intention of gifting the property. It is essential for the donor to have legal capacity and be of sound mind at the time of making the Hiba. This ensures that the donor is aware of the consequences of the gift and is capable of making an informed decision.
Acceptance: The recipient must accept the gift willingly and voluntarily. The acceptance of the Hiba by the recipient is a crucial formality. The acceptance should be express and unequivocal, demonstrating the recipient’s willingness to receive the gifted property. Mere silence or ambiguous responses do not constitute a valid acceptance. The acceptance must be made during the donor’s lifetime and in accordance with the provisions of Islamic law.
Delivery of Possession: The donor must physically deliver the possession of the gifted property to the recipient. The delivery of possession is an essential formality in Hiba. Actual and physical delivery of the gifted property to the recipient is required to complete the transfer. The donor must relinquish control and the recipient must take possession of the property in a manner that reflects ownership. It is important to note that symbolic delivery, such as the handing over of keys or title deeds, may be acceptable in certain circumstances, as long as it reflects the intention to transfer possession.

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 fulfillment 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 favor of minors. The court held that a gift made in favor 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 fulfillment 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 are 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.

References