“Gift is the transfer of certain movable or immovable property made voluntarily and without consideration, by one person called the donor to another, called the done and accepted by or on behalf of the done. Such acceptance must be during the lifetime of the donor and while he is still capable of giving. If the done dies before accepting the gift will be regarded as void”[1]. However, the concept of gift under Mohammad Law is different from that of Gift defined under the Transfer of Property act, 1882. According to Mohammad Law, the gift is the transfer of property or right from one person to another person in accordance with the provisions of Mohammad Law which includes:
- “Hiba, which is an immediate and unconditional transfer of ownership of any property or of certain right, without any consideration or with some return (ewaz);
- An ariat, the grant of some limited interest in respect of the use or usufruct of some property or right”[2].
However, where the ownership of any property or right is transferred without any consideration in order to acquire the object of religious merit, it is called as sadaqah. ‘Hiba’ and ‘gift’ are the terms that are used quite indiscriminately. Hiba is a kind of transaction that is covered by a general term gift. A transfer of property or any kind of ownership without consideration is known as Hiba. A gift is not considered as a contract, however, in Muslim Law, it is known as a contract.
Concept of Hiba under Mohammedan Law
The concept of ‘gift’ as laid down in the Transfer Property Act, 1882 is quite different from Mohammed Law. “Under the Muslim Law, a gift is a transfer of property or right by one person to another in accordance with the provisions provided under Muslim law. Hiba (Tamlik al ain), is an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and the term ‘Hiba’ and ‘gift’ are often indiscriminately used but the term Hiba is only one of the kinds of transactions which are covered by the general term ‘gift’. The other types of gifts include Ariya (Tamlik al manafe), where the only usufruct is transferred and Sadqah where the gift is made by the Muslim with the object of acquiring religious merit.[3]”
According to Muslim Law, both inter vivos and testamentary disposition of gifts has been permitted. However, inter vivos disposition of gift is unfettered as to quantum but the testamentary disposition is limited to one-third of the whole property. Muslim law permits a person to give away his property during his lifetime but only one-third of it can be bequeathed by will.
“The Hanafi lawyers define Hiba as an act of bounty by which a right of property is conferred in something specific without an exchange. The Shias hold that a Hiba is an obligation by which property in a specific object is transferred immediately and unconditionally without any exchange and free from any pious or religious purpose on the part of the donor. Muslim law allows a Muslim to give away his entire property by a gift inter vivos, even with the specific object of disinheriting his heirs”[4].
Essentials of Hiba
- A declaration by the donor:
To gift under Mohammad Law, there has to be a clear and unambiguous intent of the donor who is supposed to present the gift. However, the declaration made can be either in oral or written form. Under the concept of Mohammad Law, it is not necessary that the gift should be written and registered.
- Acceptance by the done:
“A gift is void if the donee has not given his acceptance. The legal guardian may accept on behalf of a minor. Donee can be a person from any religious background. Hiba in favor of a minor or a female is also valid. A child in the mother’s womb is a competent done provided it is born alive within 6 months from the date of declaration. A juristic person is also capable of being a donee and a gift can be made in their favor too. On behalf of a minor or an insane person, any guardian as mentioned under the provisions of Muslim law can accept that gift. These authorized people include: Father, Father’s executor, Paternal Grand-Father and Paternal Grand Father’s executor”[5].
- Delivery of possession by the donor and taking the possession by the done:
Actual Delivery of Possession: “Where the property is physically handed over to the donee, the delivery of possession is actual. Generally, only tangible properties can be delivered to the done. Tangible property may be movable or immovable. Under Muslim law, where the mutation proceedings have started but the physical possession cannot be given and the donor dies, the gift fails for the want of delivery of possession”[6]. “However, in such cases, if it is proved that although the mutation was not complete and the done has already taken the possession of the property, the gift was held to be valid”[7].
“Constructive Delivery of Possession: Constructive delivery of possession is sufficient to constitute a valid gift in the following two situations:
- Where the Property is intangible, i.e. it cannot be perceived through senses.
- Where the property is tangible, but its actual or physical delivery is not possible”[8].
- Hiba a share in a land company.
“In Nawazish Ali Khan vs Ali Raza Khan, it was held that gift of usufructs is valid in Muslim law and that the gift of the corpus is subject to any such limitations imposed due to usufructs being gifted to someone else. It further held that gift of a life interest is valid and it doesn’t automatically enlarge into the gift of the corpus. This ruling is applicable to both Shia and Sunni”[9].
“Hence critical scrutiny of the concept of Gift under Muslim law gives us the following instances regarding what can be the subject matter of Hiba:
- anything over which the right of property may be exercised;
- anything which may be reduced to possession;
- anything which exists either as a specific entity or as an enforceable right; or
- anything which comes within the meaning of the word mal in Rahim Bux vs Mohd. Hasen, it was held that gift of services is not valid because it does not exist at the time of making the gift”[10].
References:
[1] Section-122 of The Transfer of Property Act, 1882
[2]Gift As Under the Transfer of Property Act and Mohemmedan Law, ,
http://www.legalserviceindia.com/articles/transfer.htm (last visited Jun 1, 2020).
[3] ‘Hiba’ or ‘Gifts’ under Muslim Law in India, , https://www.shareyouressays.com/knowledge/hiba-or-gifts-under-muslim-law-in-india/117612 (last visited Jun 1, 2020).
[4] Ibid no. 3
[5] Sinha, R.K. ‘Muslim Law’, Central Law Agency, Allahabad, 2006, p176.
[6] Noor Jahan v. Muftkhan, AIR (1970) All 170
[7] Alimonassa v. Sudhir Chandra De, AIR (1991), Gauhati 13
[8] Ilahi Samsuddin v Jaitunbi Makbul. (1994) 5 SCC 476
[9] 30 AIR 1943 Oudh 243
[10] AIR 1883
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