Name : Surya Srivastava

Program : LLB SEM III

Roll no :
En.no : A70656118002
Subject : Family Law - II
Topic : Hiba (Gifts)
By : Asst. Prof. Zaman Fatima

Table of contents:
SR.NO TOPIC
1. Introduction
2. Prominent Features of Hiba
3. Kinds of Gifts
4. Competency of the Donor
5. Competency of the Donee
6. Gift to Minor
7. Constitutional Validity of Hiba
8. Revocation of Hiba
9. Conclusion
Introduction
A gift is a transfer of property where interest is transferred from one living person to another,
without any consideration. It is a gratuitous and inter vivos in nature. This is the general
definition that is accepted by all the religions, including Muslim law. As per the Muslim Law,
a gift is called as Hiba.

Under Hindu Law, a gift is regarded as the renunciation of the property right by the owner in
the favour of donee. According to Jimutvahana, under Hindu law’s concept of gift, ownership
is not created by acceptance but by renunciation of the donor. But however, the Mitakshara
school of Hindu law considers acceptance as an important ingredient for a gift. The donor can
divest his interest by renunciation but cannot impose the same on the donee if he is not ready
to accept.

Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650
AD. In general, Muslim law draws no distinction between real and personal property, and there
is no authoritative work on Muslim law, which affirms that Muslim law recognizes the splitting
up of ownership of land into estates. What Muslim law does recognize and insist upon, is the
distinction between the corpus of the property itself and the usufruct in the property.

Under Muslim Law, the religion of the person to whom a gift is made is not relevant. In India,
there is a separate statute that governs the matters related to the transfer of property. The
Transfer of Property Act, 1882 under Chapter VII talks about gifts and the procedure for
making the same. Yet as per section 129 of the Act, the Transfer of Property Act, 1882 does
not apply to the Muslims making the gift.

According to Hedaya -“Hiba is an unconditional transfer of ownership in an existing property,

made immediately without any consideration.”

Ameer Ali defines hiba as -“A Hiba is a voluntary gift without consideration of property by one
person to another so as to constitute the donee the proprietor of the subject-matter of the gift.”

As per Mulla -“A Hiba is a transfer of property, made immediately and without any exchange
by one person to another and accepted by or on behalf of the latter.”

According to Fyzee -“Hiba is the immediate and unqualified transfer of the corpus of the
property without any return.”
Prominent Features of Hiba
I. Hiba is a transfer of property by act of the parties and not by operation of law. It means
that any transfer of property done by the court of law or any transfer of ownership by
the Muslim law of inheritance will not be considered as Hiba.
II. Under Hiba, a living Muslim voluntarily transfers the ownership of any property to
another living person. Hence, it is a transfer inter vivos.
III. The transferor transfers ownership of the property in absolute interest and the transferee
gets the complete title in respect of the property given to him. Conditions, restrictions
or partial rights in the gifted property are averse to the concept of Hiba under Islamic
law.
IV. Hiba is operative with immediate effect and deprives the transferor of his control and
ownership over the property. Moreover, as the property is passed immediately to the
transferee, the property must be in existence at the time when the gift is made. A gift
made for a property which will exist is future is termed as void.
V. A Hiba is a transfer of property without any consideration. If anything of any value is
taken by the transferor in return or exchange, such a transfer of property is not a gift.

Kinds of Gifts
There are several variations of Hiba. These include-
1. Hiba bil Iwaz
2. Hiba ba Shart ul Iwaz
3. Sadaqa
4. Aariat

Hiba bil Iwaz: Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means a
gift for consideration already received. It is thus a transaction made up of two mutual or
reciprocal gifts between two persons. One gift from a donor to the donee and one from donee
to the donor.
The gift and return gift are independent transactions. Therefore, when both i.e., hiba (gift) and
iwaz (return or consideration) is completed, the transaction is called hiba-bil-iwaz. For
example, A makes a gift of a cow to B and later B makes a gift of a house to A. If B says that
the house was given to him by A by way of return of exchange, then both are irrevocable.

Case law:
 Actual payment of consideration on the part of the donee is necessary:
In Khajoorunissa vs Raushan Begam, it was held that adequacy of the consideration
is not the question. As long as the consideration is bona fide, it is valid no matter even
if it is insufficient.
  A bona fide intention on the part of the donor to divest himself of the property is
essential.
 Gift in lieu of dower debt:
In Gulam Abbas vs Razia, the Hon’ble High Court at Allahabad held that an oral
transfer of immovable property worth more than 100/- cannot be validly made by a
Muslim husband to his wife by way of gift in lieu of dower debt which is also more
than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must be done through a
registered instrument.
Hiba ba Shart ul Iwaz: ‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift
made with a stipulation for return’. Unlike in Hiba bil Iwaz, the payment of consideration is
postponed. Since the payment of consideration is not immediate the delivery of possession is
essential. The transaction becomes final immediately upon delivery. When the consideration is
paid, it assumes the character of a sale and is subject to pre-emption (Shufa). As in sale, either
party can return the subject of the sale in case of a defect.

It has the following requisites:

 Delivery of possession is necessary.
 It is revocable until the Iwaz is paid.
 It becomes irrevocable after the payment of Iwaz.
 Transaction when completed by payment of Iwaz, assumes the character of a sale.

In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both
gifts for a return and the gifts must be made in compliance with all the rules relating to simple
gifts.

Sadaqa: Practically, in all essentials, the hiba and sadaqa are similar. What distinguishes them
from each other is their objective. When a person makes a gift of some property with the object
of acquiring some religious or spiritual benefit or merit, it is called sadaqa or sadaqah. Just as
a hiba so in sadaqa, the gift is not valid unless accompanied by the delivery of possession. All
requirements of hiba regarding capacity and certainty of subject matter are applicable to
sadaqa. But, unlike hiba, sadaqa is irrevocable once it is completed by the delivery of
possession. A sadaqa can also be made to a rich person provided the object is acquiring
religious merit of spiritual benefit.

Aariat: The Fatwai Alamgiri defines it as "the giving of the usufruct without any return." The
Durr-ul-Muhtar defines it as "making another owner of the usufruct without any consideration.
In other words, when a person grants another a licence or right of use or enjoyment of a property
or right to the usufruct without any consideration, then the transaction is called aariat or areeat.
In hiba, the transferee acquires a right to the property while in aariat the transferee obtains its
use or beneficial enjoyment for a limited period, and the property does not pass on to him.
Thus, aariat is not a transfer of ownership, but only transfer of a right to the usufruct or fruits
or profit of property, temporarily, depending upon the will of the transferor who may terminate
it at any time.
Since in aariat the ownership is not transferred to the donee, some of the requirements of
material validity of hiba, such as the age of the donor, or the subject matter (prohibition of
musa i.e.,of gift of undivided portion of property) do not apply. Thus, when a person says to
another, "I have given you the use of this garment or horse" or "My house is in your residence",
the transaction is aariat. An aariat has the following characteristic features:
 it is a transfer of usufruct, without consideration,
 it is a temporary transfer of usufruct, and
 it is revocable at any time at the will of the transfer.

Competency of the Donor – Capacity and Rights

A person who makes the declaration of a gift is called a donor. A donor must be a competent
person to make a gift. Every Muslim, male or female, married or unmarried, who has attained
the age of majority and has a sound mind is a competent donor. For the purpose of making a
gift, the age of majority is the attainment of 18 years and 21 years if he is under a certificated
guardian.

Mental capacity: A person who is of sound mind and has the mental capacity to understand
the legal implications of his act is eligible to make a gift. However, a gift made by a person of
unsound mind during lucid intervals is a valid gift. Also, the donor must be free from any
coercive or fraudulent influence while making a gift.

Case Law:
In the case of Hussaina Bai v. Zohara Bai, the validity of a gift made by parda-nasheen ladies
was declared by the court. In this case, a parda-nasheen Muslim lady was brought from Nagpur
to Burhanpur on an excuse that her brother-in-law was seriously ill. After reaching the place,
she had a fit of hysteria, and soon after it, she was made to sign a gift deed without informing
her the content of the deed and no opportunity was given to her to take an independent decision.

The court held that- “When a gift is made by a parda-nasheen lady, it is important to establish
that the consent of the lady was free and she made the gift on her independent advice. The
burden to prove that the gift was made free from compulsion lies on the donee. In this case, the
deed was executed from the lady under compulsion, it was not her voluntary act, and hence,
the deed was held invalid.”
Financial Capacity: According to the Hanafi view, if a person is under insolvent
circumstances, he is allowed to make a gift. However, the Kazi has the power to declare any
gift as void if it is made with a view to defraud the donee. The Indian courts have accepted the
view of the Hanafi school that from the fact of indebtedness or embarrassing financial
circumstances of the donor, it cannot be inferred that the donor has fraudulent intentions.

So, in every gift, there must be a bona fide intention on the part of the donor to transfer property
to the donee. Evidently, if a gift is made with a malafide intention to defraud the donee, the gift
is invalid.

Right to make a Hiba: Capacity to make a gift is not solely enough. The donor must also have
a right to make a Hiba. A Muslim has a right to gift only those properties of which he has the
ownership. If he is simply a tenant in a house, he is not allowed to gift that house to someone
because he does not have the ownership of that house. Such a gift is considered as invalid.

However, a Muslim has a right to gift away all his properties which are under his ownership at
the time of declaration of the gift. The transfer of the property by the donor must be in the
absolute interest of the donee. Therefore, it is imperative that the donor himself has the
ownership of that property which he intends to pass on to the donee.

Competency of the Donee

The person in whose favour the gift is made is known as the donee. For being a competent
donee, the only essential requirement is that a donee must be any person in existence at the
time of the making of a gift. He may be a person of any religion, sex, or state of mind. Thus, a
Muslim can make a lawful Hiba in favour of a non-muslim, female, minor or an insane person.

Child in Womb: A child in the mother’s womb is a competent donee provided that it is born
alive within six months from the date on which the gift was made. If after the declaration of
the gift the child dies in the womb or an abortion takes place, the gift becomes void. Also, the
child must be in existence in the mother’s womb at the time of the making of the gift. If a child
is not in the mother’s womb or the conception takes place after the declaration of the gift, such
a gift is void ab initio.

Juristic Person: A juristic person includes a firm, corporation, company, association, union,
university or any other organization. A juristic person is presumed to be an adult of sound mind
like a human being in the eyes of law and hence, is a competent donee in whose favour a gift
can be made. A gift in favour of a mosque, temple or a school is valid.
Two or more Donees: A donee may be an individual or a class of persons. In case the donee
is a group of people, all the people in that particular group must be ascertainable.

Gift to Minor
Any gift made in favour of a minor or insane person is valid. They may not have the capacity
to understand the legal consequences but they are persons in existence and thus, are competent
donee. But such gifts are valid only if accepted by the guardian of the minor or insane donee.
A gift is void without the acceptance by the guardian.
For the purpose of acceptance of the gift, the guardian of a minor or insane donee are as under
in the order of priority:
 Father
 Father’s executor
 Paternal grandfather
 Paternal grandfather’s executor

Therefore, in the presence of the father, the paternal grandfather is not allowed to accept the
gift on behalf of the minor or insane and so on. If all the above-mentioned guardians are not
present, then the gift is accepted by the ‘guardian of the property of minor or insane’. If a
guardian himself makes a gift in favour of his ward, he will declare the gift acting as a donor
and has the capacity to accept the gift as the guardian of the minor or insane.

It is to be noted here that the mother is not recognized as the guardian of the property of her
minor child. Hence, she is not entitled to accept the gift on behalf of her minor child.

Where a gift is made to a minor or lunatic, the gift is complete only if the guardian has taken
the actual or constructive delivery of possession of the property on behalf of such persons. If
the possession is taken by any other person who is neither a legal guardian nor a de facto
guardian, the gift becomes ineffective and void.

Case Law:
In the case of Katheessa Ummand v. Naravanath Kumhamuand, a Muslim husband made a
registered gift to his wife who was a minor. The gift was accepted by the donee’s mother.
Unfortunately, after two years, the husband died and soon after it the donee (wife) also died.
The validity of the gift was challenged by the elder brother of the donor (husband) on the
ground that there was no delivery of possession as a gift to the minor was accepted by her
mother who is not a legal guardian according to the Islamic law. The question before the court
was whether a gift by a Muslim husband to his minor wife and accepted by the mother on
behalf of the minor wife, is valid?
The court, in this case, held that it is a well-established rule under Islamic law that mother is
not a legal guardian of the minor’s property, therefore, she is incompetent to take the delivery
of the possession on behalf of the minor donee. But, in case there is no legal guardian to accept
the gift, the completion of the gift for the benefit of the minor has the utmost significance.

If the donee had already attained the age of puberty, the gift is valid even if it is accepted by a
person who has no authority to accept the gift on behalf of a minor. In this case, the gift was
held to be valid although the delivery of possession was not accepted by any competent
guardian on behalf of minor but since the minor had reached the age of discretion (fifteen years)
and was competent to accept the gift herself.

Constitutional Validity of Hiba

The question of whether the first exemption was constitutionally valid in regards to the right to
equality article 14 of the Indian Constitution was rather rapidly solved by the Courts, validating
the disposition on the grounds of ‘reasonable classification. It is enough to say that it is now
well settled by a series of decisions of this Court that while Article 14 forbids class legislation,
it does not forbid reasonable classification for the purposes of legislation, and in order to pass
the test of permissible classification, two conditions must be fulfilled, namely:

1. That the classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from others left out of the
group and
2. That differentia must have a rational relation to the object sought to be achieved by the
statute in question.

The classification may be founded on different bases such as geographical, or according to

objects or occupations and the like. The decisions of this Court further establish that there is a
presumption in favour of the constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the constitutional guarantee; that
it must be presumed that the legislature understands and correctly appreciates the needs of its
own people and that its laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds and further that the legislature is free to
recognize degrees of harm and may confine its restrictions to those cases where the need is
deemed to be the clearest.

It is well known that there are fundamental differences between the religion and customs of the
Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding gift
are based on reasonable classification and the provision of Section 129 of the Transfer of
Property Act exempting Mahomedans from certain provisions of that Act is not hit by Article
14 of the Constitution.
The most essential element of Hiba is the declaration, “I have given”. As per Hedaya, Hiba is
defined technically as: “Unconditional transfer of existing property made immediately and
without any exchange or consideration, by one person to another and accepted by or on behalf
of the latter“.

According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the
property without any return.

Revocation of Hiba
Although Prophet was against the revocation of gifts, it is a well-established rule of the Islamic
law that all voluntary transactions, including Hiba, are revocable. Different schools have
different views with regard to revocation. The Muslim law-givers classified the Hiba from the
point of view of revocability under the following categories:

1. Revocation of Hiba before the delivery of possession: All gifts are revocable before
the delivery of possession is given to the donee. For such revocation, no orders of the
court are necessary. As discussed above that under Muslim law, no Hiba is complete
till the delivery of the possession is made, and therefore, in all those cases where
possession has not been given to the donee, the gift is incomplete and whether it is
revoked or not, it will not be valid till the delivery of possession is made to the donee.
It implies that the donor has changed its mind and not willing to complete the gift by
delivery of possession.

Illustration: X, a Muslim, makes a gift of his car to Y through a gift deed and no delivery of
possession has been made to Y. X revokes the gift. The revocation is valid.

2. Revocation after the delivery of possession: In this situation, a Hiba can be revoked
in either of the following ways:
 With the consent of the donee
 By a decree of the court.
Mere declaration of revocation by the donor or filing a suit in the court or any other action is
not enough to revoke a gift. The donee is entitled to use the property in any manner until a
decree is passed by the court revoking the gift.

Conclusion
The conception of the term gift has been an age-old and traditional issue which has developed
into a distinct facet in property law. Different aspects related to gift in property act and its
distinction with the Mohammedan law and its implications has been the major subject matter
of Hiba. 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. As we have seen
in the project that Under Mohammedan law, to be a valid gift, three essentials are required to
exist:
 Declaration of gift by the donor.
 Acceptance of the gift, express or implied, by or on behalf of the done.
 Delivery of possession of the subject of the gift.

The English law as to rights in property is classified by a division on the basis of immoveable
and moveable (real and personal) property. The essential elements of a gift are:
 The absence of consideration.
 The donor.
 The donee.
 The subject-matter.
 The transfer; and the acceptance.
Thus this striking difference between the two laws relating to gift forms the base in
understanding its underlying implications.

To conclude, the gift is a contract consisting of a proposal or offer on the part of the doner to
give a thing and acceptance of it by the donee. So it is a transfer of property immediately and
without any exchange. There must be a clear intention by the donor to transfer the possession
to the doner for a valid gift. It can be revoked by the doner. And the provisions for the same
have also been mentioned.

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