HIBA: A GIFT DEED

Introduction
• In Muslim law, gifts are called “hiba”. The gifts in India are
governed by Transfer of Property Act, 1872. However, the
provision of Transfer of Property Act, 1872 does not apply to
Muslim law. The English term, ‘gift’ is of a wider connotation
and applies to all transactions where one transfer’s one’s
property to another without any consideration. The term hiba
has a narrow meaning.
• According to Ameer Ali, “A hiba is a voluntary gift without
consideration of property or the substance of thing by one
person to another so as to constitute the done the proprietor
of the subject-matter of the gift.” 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. [Abdul vs. Ahmed,
(1881) 8 IA 25]
 Essentials of a Hiba
According to Ameer Ali, a hiba will be valid if the
following conditions are fulfilled:-
• The manifestation of the wish to give on the part
of the donor,
• Acceptance of the gift, express or implied, by the
donee, and
• Taking of possession of the subject-matter of the
gift by the donee, either actually or constructively.
[Jamela vs. Abdul Rahman, 2001 Guj. 175]
 Capacity to make a Hiba
1. Mental capacity – Every Muslim, male or female, married
or unmarried, who has attained the age of majority and
who is of sound mind has the mental capacity to make a
gift.
• The rule of Muslim law of majority, i.e. attainment of
puberty, does not apply to gifts.
• A person of unsound mind can make a valid gift during
lucid intervals.
• The Muslim law-givers recognize the doctrine of ikrash or
compulsion, and a gift-deed executed under compulsion is
not valid. In such a case the gift is voidable, and it can be
avoided by the donor whose consent was so obtained.
• 2. Financial capacity – The Malikis hold the view that a person
under insolvent circumstances or extremely involved
circumstances have no capacity to make a gift.
• On the other hand, the Hanafis hold the view that insolvency
does not create an incapacity to make a gift, but the kazi has
the power to render such gift nugatory if it is made with a
view to defrauding the creditors.
• The Indians court follow the Hanafi view. In every gift, there
must be a bona fide intention on the part of the donor to
transfer property to the donee. And, if a gift is made with an
intention to defraud the creditors, the gift I invalid. [Abdul vs.
Mir Md, (1886) 11 IA 10]
 Subject-matter of Gift
• All forms of property over which dominion
could be exercised, or anything which could be
taken into possession, or which could exist as
a specific entity, or as an enforceable right,
maybe the subject-matter of a valid gift.
Muslim law, in this context, makes no
distinction between ancestral or self-acquired
or between movable and immovable property.
 Gift of Musha
• The word “musha” means an undivided share or part of a property,
movable or immovable. Among the Shafis and Ithana Asharis, the gift of
musha is valid, if the donor withdraws his dominion and allows the donee
to exercise control. [Sadiq vs. Hashim, (1916) 43 IA 212]
• But the rule is otherwise among the Hanafis. The general rule is thus laid
down in the Hedaya, “A gift of a part of a thing which is capable of a
division is not valid unless the said part is divided off and separated
from the property of the donor, but a gift of an indivisible thing is
valid.”
• The doctrine of musha has been subject to much criticism. It has been
said that the doctrine is “wholly unadapted to a progressive society”.
[Sheikh Md. vs. Zabeda, (1889) 16 IA 205] The doctrine has been
confined to within the strictest rules by judicial interpretation and has
been cut-down considerably.
 Donee
• Under the Muslim law, a gift may be made to any
person without any distinction of age, sex or
religion.
• Under the Hanafi law, the donee must be must be
legally in existence at the time of hiba. Thus, a gift
to an unborn person, one not in existence, either
actually or presumably, is invalid.
• Under the Shia law, a gift to an unborn person can
be validly made provided the gift commences with
a person in existence.
Formalities: Delivery of Possession
• Under Muslim law, a gift may be made orally
or in writing, irrespective of the fact whether
the property is movable or immovable.
[Ibrahim vs. Noor Ahmed, 1984 Guj. 126] The
only formality that is essential for the validity
of a Muslim gift is “taking a possession of the
subject-matter of gift by the done either
actually or constructively”. [Mohammed vs.
Fakr, (1922) 49 IA 195]
Who can Challenge a Hiba or Gift
• A stranger cannot challenge the validity of a
gift on the ground that the gift is bad as no
delivery of possession has been made.
• A gift on this ground can be challenged only
when the issue is raised between the donor or
those claiming under him on one side and the
done and those claiming under him on the
other.
Conditional or Contingent Hiba or Gifts
• The contingent or conditional gifts are those which are
made dependent for their operation upon the
occurrence of a contingency. A contingency is a
possibility, a chance, an event, which may or may not
happen. In Muslim law, contingent or conditional gifts
are void.

• In Muslim law, a gift is not rendered invalid, by involving

an invalid condition. Hanafi law clearly lays down that in
such a case the gift is valid and the condition is valid.
 Revocation of Gifts
• Although there is a tradition which indicates
that the Prophet was against the revocation of
gifts, it is a well-established rule of Muslim law
that all voluntary transactions, including gifts,
are revocable.
 Modes of Revocation
• Revocation of gifts before the delivery of
possession

• Revocation of gifts after the delivery of

possession
 Revocation of gifts before the delivery of
possession
• Under Muslim law, all gifts are revocable before
the delivery of possession is given to the done. The
fact of the matter is that under Muslim law no gift
is complete till the delivery of possession is made,
and therefore, in all those cases where possession
has not been transferred, the gift is incomplete.
The revocation of such a gift, therefore, merely
means that the donor has changed his mind and
does not want to complete it by the delivery of
possession.
 Revocation of gifts after the delivery of
possession
• Mere declaration of revocation by the donor, or
institution of a suit, or any other action, is not sufficient
to revoke a gift. Until a decree of the court is passed
revoking the gift, the donee is entitled to use the
property in any manner, he can also alienate it.
[Mahboob vs. Abdul, 1964 Raj 250]
• The revocation of a gift is a personal right of the donor,
and, therefore, a gift cannot be revoked by his heirs
after his death. A gift can also not be revoked after the
death of the donee. (There are some exceptions in
Hanafi School)