MODULE VIII & IX

HIBA & GIFT

INTRODUCTION

• Hiba – Gift
• Can give entire property also
• Chapter VII of Transfer of Property Act, 1872
• Muslim Gift – Personal Law – Shariat Act, 1937
• Donor - Donee
MEANING & DEFINITION

• When a Muslim transfers his property through gift, without consideration made gratuitously,
the transfer is known as Hiba.
• “Gift is a transfer of property made immediately and without any consideration” - Mulla
• “Hiba is an unconditional transfer of an ownership in an existing property made immediately
and without consideration”.
• Salekath Beevi v. Mumthas Beevi - “Hiba is an immediate and unconditional transfer of the
corpus of the property without any return. Every Muslim, who has attained majority and
has a sound mind can make a gift.”
ESSENTIALS OF A HIBA
• Declaration by the Donor
• oral/written(hibanama)
• express
• unambiguous
• free consent
• bonafide intention
• Acceptance by the Donee
• Express/implied
• Transfer to non-muslims - valid
• Age/sex/religion – not a bar
• Capable of holding the property
• Any legal/juristic person
• May be lunatic or minor or guardian
• Delivery of possession
• actual or constructive delivery of possession
• Delivery of possession is not required –
• Hiba by father to minor or any lunatic person,
• husband to wife or viceversa,
• where donor and donee reside in same house or
• have co-share in the property,

• cases of part delivery or incorporeal property or where the

donee is already in possession,
SUBJECT MATTER
• Tangible
• Intangible
• Movable
• Immovable
• Anything over which dominion/right may be exercised; or
• Anything which can be reduced to possession;
• Anything which exists either in the form of specific entity or enforceable
right.
• Gift of services - Invalid
• Gift of life interest – subject matter
• Musamat Hazara Bai v. MD Aadani Sayed - Court did not
consider gift of life interest to be a valid subject matter.
• Jamila Bibi v. Sheikh Ismail - allowed gift of life interest in
the form of usufruct to be a subject matter of Hiba.
• Amjad Khan v. Ashraf Khan - allowed the gift of life interest
to be treated as a valid gift under Muslim Law
CAPACITY OF DONOR AND DONEE

• Muslim –
• Sound mind
• Age of majority
• Right to transfer the property
• Smt. Aneesa vs Abdul Rehman Rizwi (Imam)-the capacity of the
donor
• he/she should be adult
• sound mind,
• capable of exercise will freely should also be considered.
• Donee can be any person or group/class of persons in whose favour the property is
transferred in the form of Hiba.
• Any juristic person is also a competent donee. Every such person must be a certain person
and consent of every such person is essential for Hiba to be complete.
• There must be a share of donee specified and certain.
• Any unborn person who is in the womb of a women, can be gifted with the property.
• Tagore v Tagore - child in womb to be a c ompetent done - shall be living at the time of
making of such Hiba and shall take birth within six months from the making of such Hiba.
 REVOCATION OF GIFT

• Gift can be revoked before it is complete

• the gift becomes complete only with the delivery of
possession
• gift can be revoked anytime before delivery is affected
• after possession has been taken by the donee, a decree of
court will be required to cancel the gift
•
• Gift becomes irrevocable in the following circumstances:
• the donor or donee is dead
• the gift is made to the husband or the wife as the case may be
• the donor and donee are related within prohibited degree
• the subject matter of the gift cannot be restored in the original form
• The thing is lost
• the subject matter has increased in value
•
• Shia law - a gift to any blood relation is irrevocable after
delivery of possession - relationship may or may not be
within the prohibited degree
• a gift by a husband to a wife or by the wife to the husband is
revocable
• A mere declaration on the part of the donor is sufficient no
court proceeding is required
GIFT OF ACTIONABLE CLAIMS AND
INCORPOREAL PROPERTY

• Subject matter
• Not capable of physical possession
• Debts, negotiable Instruments, govt. promissory notes
• Donor - Transfer – Right
GIFT OF EQUITY OR REDEMPTION

• Delivery of Symbolic possession by handing over the gift

deed – divesting the title by the donor to the done
• Fatima v. Bhasava – It was held that a valid gift of equity or
redemption can be effected by permitting the donee to
exercise all acts of ownership, that may be exercised by the
owner of the equity of redemption.
•
 DOCTRINE OF MUSHAA

• Mushaa – undivided part of share

• A gift of a part of a thing which is capable of 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.
• Khader v. Kunjamina - gift of an undivided share in property
which is capable of division is irregular it can be perfected by
effecting division in which case delivery of possession
becomes possible. There are some exceptions to this general
rule:
• Exceptions to Mushaa:
• By one co-heir to another
• the subject matter is a share in zamindari or taluka
• Absolute property held in large commercial towns
• the reasons for the prohibition of musha of a divisible
property are the following:
• the difficulty in delivery of possession of an undivided share
• confusion in the enjoyment of property
•
 HIBA-BIL-IWAZ
• Special type of gift recognized by Muslim law
• a gift for consideration
• Iwaz means exchange
• includes all elements for a contract of sale
• delivery of possession is not essential
• Becomes irrevocable on completion
• adequacy of consideration is immaterial
• two conditions are to be satisfied:
• actual payment of consideration or exchange that is Iwaz by the donee
• a bonafide intention on the part of the donor to divest himself of the property and to
confer it upon the donee

•
HIBA-BA-SHART-UL-IWAZ

• There is a specific stipulation regarding the return of exchange

• delivery of possession is essential to complete the transaction
• on delivery of the Iwaz by the donee to the donor, the
transaction becomes irrevocable
• Hiba-bil-iwaz – return proceeds voluntarily but in this, there is a
stipulation on return
•
SADAQAH

• Sadaqah is a transfer of property made without consideration

with the object of gaining or acquiring religious merit
• it is not complete unless accompanied by delivery of
possession
• similar to hiba
•
CONTINGENT GIFT

• A gift cannot be made to take effect on the heart pending

offer contingency
• an uncertain future event which is not dependent upon the
will of the parties is a contingency
• it is an uncertain future event
• if a gift is made to take place on the death of a person, it is a
contingent one as the death of a person is not depend on
the will of the parties.
PRE-EMPTION

• Shufa or pre-emption - right which enables a person in

certain circumstances to acquire by compulsory purchase
immovable property in preference to all others
• Mulla - right which the owner of an immovable property
process to acquire by purchase another immovable property
which has been sold to another person
•
•
• Bishan Singh v. Khazan Singh –
• The right of preemption is not a right to the things sold but right to the
ownership of a thing about to be sold.
• this right is called the primary or inherent right
• the preemptor has a secondary right or a remedial right to follow the
things sold
• it is a right of substitution but not of repurchase i.e, the pre-emptor takes
the entire bargain and steps into the shoes of the original vendee
• it is a right to acquire the whole of the property sold and not a share of
the property sold
• preference being the essence of the right, the plaintiff must have a
superior right of that of the vendee or the person substituted in his
place
•
•