https://t.
me/apurva252
( Apurva Sharma official)
Instagram.com/apurvasharma252
HIBA UNDER MUSLIM LAW
INTRODUCTION
One of the briefest but most famous sayings of the Prophet is
Tahadun Tahabua (exchange gifts, for it increases mutual love).
For more than 14 centuries, exchanging gifts has become a noble
tradition among Muslims all over the world. Law of hiba has this
tradition as its starting point. And Muslim jurists have evolved a
very refined system of hiba law.
DEFENATION OF “HIBA”
Abdur Rahim “A transfer of a determinate property (mal) without an
exchange. Juristically, it is treated as consisting of proposal or offer on
the part of the donor to give a thing and of acceptance of it by the
done. Until acceptance, the gift has no operation.”
Mulla “Gift 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.”
WHO CAN MAKE GIFT (DONOR)
Donor – (Who can give)
1. Must have attained the age of majority – Governed by Indian Majority
Act 1875.
2. Must be of sound mind and have understanding of the transaction.
3. Must be free of any fraudulent or coercive advice as well as undue
influence.
4. Must have ownership over the property to be transfered by way of gift.
Conditions for Donee (who can receive)
1. Any person capable of holding property, which includes a juristic
person, may be the donee of a gift. A muslim may also make a lawful
gift to a non-muslim.
2. Donee must be in existence at the time of giving the gift. In case of
a minor or lunatic, the possession must be given to the legal guardian
otherwise the gift is void.
3. Gift to an unborn person is void. However, gift of future usufructs to
an unborn person is valid provided that the donee is in being when the
interest opens out for heirs.
THREE ESSENTIALS OF A VALID “HIBA”
The following are the three essentials of a valid
1. Declaration of Hiba by the donor,
2. Acceptance of hiba, expressly or impliedly, by or on behalf of the
donee; and
3. Delivery of possession of the subject-matter of hiba to the donee.
1. Declaration
Intention (niya) is a necessary component of every action in
Islamic law, be it Ibadat (religious matters) or Muamalat
(worldly matters). An oral declaration may validly create a
hiba. It is not necessary that a written hiba namah (gift deed)
must be executed. No registration is necessary if hiba is made
of even immovable property like land or house if it is through
oral declaration.
1. Oral
2. Writing
3. Express
4. Free Consent
5. Bonafide Intention
6. Competency of doner
A). Muslim b). Major
c). Sound Mind d) Right to make gift.
Registration of declaration is not mandatory
Registration does not confer any special or preferential status on the registered
hiba. If someone claims to have received a land through an oral hiba, while
another person counterclaims to have received the hiba of the same land
through a written hiba which he got registered, then if the first person is unable
to prove the oral hiba to him, the second hiba with registration would take
effect. But if the first done could prove the validity of the oral hiba, then the
second hiba of the same property effected through the registration could not
override the first oral hiba.
2. Acceptance of hiba
The donee must accept the gift. This acceptance may be express or
implied i.e. by conduct. The gift to minor can be accepted by his
guardian on his behalf.
1. Minor:- Valid gift
2. Any living person who is capable of holding property.
3. Child in the womb:- Valid, but born in six months.
4. Juristic persons.
5. Non-Muslims :- Valid
6. Two or more persons.
7. Insane person.
3. Delivery of possession
When the donor makes a declaration of gift and the donee accepts, then the possession of the
thing gifted should be given to the donee. Such delivery of possession may be actual or
constructive.
Exceptions-
1. Donor and donee reside in the same house.
2. Gift by husband to wife and vice-e-versa.
3. Gift by father or mother to child or by guardian to ward
4. Gift to donee already in possession
GIFT DURING DEATH ILLNESS (MARZ UAL
MAUT- DONATION MORTIS CAUSA)
If the donor is suffering from death-illness or marz-ul-maut, such a gift is called
donatio mortis causa. Strictly, it is neither exactly a gift, nor exactly a legacy (will),
but a mixture of both. In order to constitute the death-illness, it is essential that
1. The illness must cause the death of the ill person;
2. The illness must create apprehension of death in the mind of the deceased , and
3. There must be some external symptoms of a serious illness.
A gift made during marz-ul-maut cannot take effect
beyond one-third of the estate of the donor, after paying
funeral expenses and debts, unless the heirs give their
consent after the donor's death. Such a gift is subject to
all the conditions necessary for the validity of a simple
gift, including delivery of possession by the donor to
the donee.
REVOCATION OF GIFT
According to Muslim law, all voluntary transactions are revocable;
hence, gifts may also be revoked. There is, however, a difference
between completed and incomplete gifts, i.e. after or before the
delivery of possession.
1. Before delivery. - A gift may be revoked by the donor at any time
before delivery of possession but not after delivery. The reason that the
gift is no gift before delivery of possession and hence, the rules
relating to gifts do not apply over it.
2. After delivery. –
When a gift is made and the subject-matter of the gift is duly
transferred to the possession of the donee, its revocation is only
possible
1) by the intervention of the court of law, or
2) by the consent of the donee; a mere declaration on the part of the
donor is not enough.
https://t.me/apurva252
( Apurva Sharma official)
Instagram.com/apurvasharma252
