Define Gift/Hiba. What are the three essentials of Gift? Who can give gift?



Q. Define Gift/Hiba. What are the three essentials of Gift? Who can give gift? What are the kinds of Gift? State the circumstances in which delivery of possession of immovable property is not required in making a gift. What gifts are void? What is Mushaa? Explain with illustration. What is the difference between Hiba Bil Iwaz and Hiba Ba Shart ul Iwaz? A Hiba is defined as the transfer of the possession of property, movable and immovable, from one person to the other willingly and without any reward or consideration (iwaz). The one who makes this transfer is known as a donor (Wahib), and the thing transferred is known as Mauhubah, and the one who is donated is known as donee (Mauhub lahu).

The act of Hiba is not complete unless the donor surrenders the possession of the thing donated. Moreover, the declaration of donation should be in clear terms without any ambiguity (around them). This act of donation is based on the following hadith of the Holy Prophet (may peace be upon him): "Give presents to one another for this would increase your mutual love."

Section 122 of Transfer Of property Act,1882: “A gift is a transfer of certain moveable or immoveable property made voluntarily and without consideration by one person called the donor to another called the donee, and accepted by or on behalf of the donee”

As per Hedaya, Hiba is defined technically as, "unconditional transfer of 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. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya. Essential Elements of a Gift Since muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance (qabul), and transfer (qabza). In Smt Hussenabi vs Husensab Hasan AIR 1989 Kar, a grandfather made an offer of gift to his grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express of implied acceptance was made by a major grandson. Karnataka HC held that since the three elements of the gift were not present in the case of the major grandchild, the gift was not valid. It was valid in regards to the minor grandchildren. Thus, the following are the essentials of a valid gift -

A declaration by the donor - There must be a clear, unambiguous and bonafide intention of the donor to make a gift. The intention of the donor must be honest and not merely to achieve any ulterior object. A gift will be invalid if it is made to disinherit some of the heirs. But all the cases of disinheritance of some of heirs are not invalid. A gift is invalid only where the disinheritance is the object but not merely the result of the gift. A gift made with the intent to defraud the creditors of the donor is voidable at the option of the creaditors.

Acceptance of the gift express or implied by or on behalf of the donee - A gift is void if the donee has not given his acceptance. The acceptance of the gift must be by a person competent to accept. A gift made in favor of a minor or insane is to be accepted by legal guardian. Thus when a father makes a gift in favor of his minor son, the minor becomes proprietor of the same, though it was not formally handed over to the child, because the possession of the father is tantamount to the possession of the infant by virtue of the gift.

Delivery of possession of the subject matter of the gift by the donor and taking of the possession by the donee. A gift is complete only after the delivery of possession. Such delievery of possession may be actual or constructive. A gift not accompanied by possession is void ab initio. A gift takes effect from the date on which possession of the property is delivered to the done, not from the date on which the declaration was made. For the validity of a gift, delivery of possession is must. But delivery of possession is not necessary in the following cases:

Exception: no delivery needed; a-where the donor and the donee are residing in the same house. For example, A Muslim lady , who had brought up her nephew as her son, executed a deed of gift in favor of her nephew of a house in which they were residing at the time of the gift. The lady never departed from the said house physically, nor was the house formally handed over to the done, but the property was transferred and the rents were recovered in his name. It was held that the gift was valid, although there was no physical delivery of possession.

b- mouhub in possession of other person

c- where donor is husband, donee wife and vice versa. Where a married couple live in a house belonging to the husband, the husband may make a valid gift of the house to the wife, without physical delivery of possession. The same rule is applicable in the case of a wife making a gift to the husband.

d- where guardian(father or mother) is donor and ward(child) is done. Transfer of possession is not necessary where a father or mother makes a gift of immovable property to their minor child. The reason is that the possession of the father is tantamount to the possession of the infant by virtue of the gift.

e- where donee is the Baillie or gift to donee in possession. Where the subject of the gift is in possession of the donee(whatever as a bailee, lessee or mortgagee) at the time of making gift, the gift will be complete on declaration and acceptance without formal delivery of possession. f- where mouhab is not capable of being delivered

The following are the conditions which must be satisfied for a valid gift. 1. Parties - There must be two parties to a gift transaction - the donor(wahib) and the donee(mohub lahu).

Conditions for Donor -  (Who can give)

  1. Every Muslim male or female who have attained the age of majority under the Majority Act 1875 i.e 18 years or 21 years of age if he/ahe is under guardian appointed by court.

  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 transferred by way of gift.

        A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin woman is also valid but in case of a dispute the burden of proof that the transaction was not conducted by coercion or undue influence is on the donee.         Gift by a person in insolvent circumstances is valid provided that it is bona fide and not merely intended to defraud the creditors.

Conditions for Donee (who can receive)

  1. Any person capable of holding property, which includes a juristic person(mosque etc.), 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, a gift to an unborn donee, who is in the womb and is born within six months of the gift, is valid. The argument is that this is the shortest period of gestation. But if a child is born after six months from the date of gift, it is invalid as there is possibility that it was conceived after the gift was made.

  4. It is necessary for the validity of the gift that the donee is to be identified; otherwise, it shall be invalid.

2.  Subject matter(mouhab) of Gift  (What can be gifted) -

  1. It must be anything (moveable or immovable, corporeal or incorporeal) over which the right of property may be exercised or anything which exists either as a specific entity or an enforceable right, or anything designable under the term mal (property).

  2. It must be in existence at the time when the gift is made. Thus, gift of anything that is to be made in future is void. For example, a donor makes a gift the fruits of his mango garden that may be produced this year. This gift is invalid since the mangoes were not in existence at the time of making the gift.

  3. The donor must possess the gift.

  4. 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. For example, A, who owns a house, makes a gift to B of the house and of the right to use a staircase used by him jointly with the owner of an adjoining house. The gift of A’s undivided share in the use of the staircase is not capable of division; therefore it is valid.

  5. According to Hanafi law, the gift of an undivided share in any property capable of division is, with certain exceptions, incomplete and irregular (fasid), although it can be rendered valid by subsequent separation and delivery of possession. For instance, A makes a gift of her undivided share in certain lands to B, and the share is not divided off at the time of the gift but is subsequently separated and possession thereof is delivered to B, the gift although irregular (fasid) in its inception, is deemed valid by subsequent delivery of possession.

Exception: gift of such undivided share is valid which is incapable of division: A. hiba by one co-heir to the other; For instance, A muslim woman died leaving a mother, a son, and a daughter. The mother made a gift of her unrealized one-sixth share jointly to the deceased’s son and daughter. The gift was upheld by Privy Council.

B. hiba of a share in free hold property in a large commercial town; For instance, A wons a house in Dhaka. He make a gift of one third of his house to B. The Property being situated in a large commercial town, the gift is valid.

C. hiba of a share in a zimindari or taluka; According to Ameer Ali the doctrain of Musha was applicable only to small plots of land, and not to specific shares in large landed properties, like zamindaris. Thus, if A and B are co-sharers in a zamindari, each having a well –defined share in the rents of undevided land, and A makes a gift of his share to B, there being no regular partition of the zamindari, the gift is valid.

D. hiba of a share in a land company

Muslim law recognizes the difference between the corpus and the usufructs of a property. Corpus, or Ayn, means the absolute right of ownership of the property which is heritable and is unlimited in point of time, while, usufructs, or Manafi, means the right to use and enjoy the property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya. In Nawazish Ali Khan vs Ali Raza Khan AIR 1984, it was held that gift of usufructs is valid in Muslim law and that the gift of corpus is subject to any such limitations imposed due to usufructs being gifted to someone else. It further held that gift of life interest is valid and it doesn't automatically enlarge into gift of corpus. This ruling is applicable to both Shia and Sunni.    Subject of Gift -  The general principle is that the subject of a gift can be -

  1. anything over which right of property may be exercised.

  2. anything which may be reduced to possession.

  3. anything which exists either as a specific entity or as an enforceable right.

  4. anything which comes within the meaning of the word mal.  

In Rahim Bux vs Mohd. Hasen 1883, it was held that gift of services is not valid because it does not exist at the time of making the gift. 3.  Extent of Donors right to gift - General rule is that a donors right to gift is unrestricted. In Ranee Khajoorunissa vs Mst Roushan Jahan 1876, it was recognized by the privy council that a donor may gift all or any portion of his property even if it adversely affects the expectant heirs. However, there is one exception that the right of gift of a person on death bed (Marz ul maut) is restricted in following ways - He cannot gift more than one third of his property and he cannot gift it to any of his heirs. Kinds of Gift There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Sadkah,  and Ariyat. Hiba Bil Iwaz - Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means gift for consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One gift from donor to donee and one from donee to donor. The gift and return gift are independent transactions. Threrfore, when both i.e., hiba (gift) and iwaz (retarn or consideration) is completed, the transaction is called hiba-bil-iwaz. For example, A make a gift of a cow to S 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, than both are irrevocable.. So a Hiba Bil Iwaz is a gift for consideration and in reality it is a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and prohibition against Mushaa does not exist. The following are requisites of Hiba bil Iwaz -

  1. Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa vs Raushan Begam 1876, held that adequacy of the consideration is not the question. As long is the consideration is bona fide, it is valid no matter even if it is insufficient.

  2. 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 AIR 1951, All HC 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 done through a registered instrument. Hiba ba Shartul 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 preemption (Shufa). As in sale, either party can return the subject of the sale in case of a defect. It has the following requisites -

  1. Delivery of possession is necessary.

  2. It is revocable until the Iwaz is paid.

  3. It becomes irrevocable after the payment of Iwaz.

  4. 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. Differences between Hiba, Hiba bil Iwaz, and Hiba ba Shart ul Iwaz -

Hiba

Hiba bil Iwaz

Hiba ba Shart ul Iwaz

Ownership in property is transferred without consideration.

Ownership in property is transferred for consideration called iwaz. But there is no express agreement for a return. Iwaz is voluntary.

Ownership in property is transferred for consideration called iwaz, with an express agreement for a return.

Delivery of possession is essential.

Delivery of possession is NOT essential.

Delivery of possession is essential.

Gift of mushaa where a property is divisible is invalid.

Gift of mushaa even where a property is divisible is valid.

Gift of mushaa where a property is divisible is invalid.

Barring a few exceptions it is revocable.

It is irrevocable.

It is revocable until the iwaz is paid. Irrevocable after that.

It is a pure gift.

It is like a contract of sale.

In its inception it is a gift but becomes a sale after the iwaz is paid.

Exceptions in delivery of possesssion The following are the cases where deliver of possession by the donor to the donee is not required

  1. Gift by a father to his minor or lunatic son. In Mohd Hesabuddin vs Mohd. Hesaruddin AIR 1984, the donee was looking after the donor, his mother while other sons were neglecting her. The donor gifted the land to the donee and the donee subsequently changed the name on the land records. It was held that it was a valid gift even though there was no delivery of land.

  2. When the donor and the donee reside in the same house which is to be gifted. In such a case, departure of the donor from the house is not required.

  3. Gift by husband to wife or vice versa. The delivery of possession is not required if the donor had a real and bona fide intention of making the gift.

  4. Gift by one co-sharer to other. Bona fide intention to gift is required.

  5. Part delivery - Where there is evidence that some of the properties in a gift were delivered, the delivery of the rest may be inferred.

  6. Zamindari villages - Delivery is not required where the gift includes parcels of land in zamindari if the physical possession is immpossible. Such gift may be completed by mutation of names and transfer of rents and incomes.

  7. Subject matter in occupation of tenant - If a tenant is occupying the property the gift may be affected by change in ownership records and by a request to the tenant to attorn the donee.

  8. Incorporeal rights - The gift may be completed by any appropriate method of transfering all the control that the nature of the gift admits from the donor to the donee. Thus, a gift of govt. promissory note may be affected by endorsement and delivery to the donee.

  9. Where the donee is in possession - Where the donee is already in possession of the property, delivery is not required. However, if the property is in adverse possession of the donee, the gift is not valid unless either the donor recovers the possession and delivers it to donee or does all that is in his power to let the donee take the possession.

Void Gifts The following gifts are void -

  1. Gift to unborn person. But a gift of life interest in favor on a unborn person is valid if he comes into existence when such interest opens out.

  2. Gifts in future - A thing that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in future, is void.

  3. Contingent gift - A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a male heir is void. Gift with a condition  A gift must always be unconditional. When a gift is made with a condition that obstructs its completeness, the gift is valid but the condition becomes void. Thus, if A gifts B his house on a condition that B will not sell it or B will sell it only to C, the condition is void and B takes full rights of the house. Mushaa (Hiba bil mushaa) Mushaa means undivided share in a property. The gift of undivided share in an indivisible property is valid under all schools but there is no unanimity of opinion amongst different schools about gift of undivided share in a property that is divisible. In Shafai and Ithna Asharia laws it is valid if the donor withdraws his control over the property in favor of the donee. But under Hanafi law, such a gift is invalid unless it is separated and delivered to the donee. Illustration - A, B, and C are the co-owners of a house. Since a house cannot be divided, A can give his undivided share of the house to D in gift. A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and Ithna Ahsharia law,  A can give his undivided share of the wheat to D if he withdraws control over it  but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers the possession of 1 ton of wheat to D. In case of Kashim Hussain vs Sharif Unnisa 1883, A gifted his house to B along with the right to use a staircase, which was being used by C as well. This gift was held valid because staircase is indivisible. Revocation of a Gift Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also generally revocable, though it is held to be abominable. In Shia law, a gift can be revoked by mere declaration while in Sunni law, it can be revoked only by the intervention of the court of law or by the consent of the donee. The following gifts, however, are absolutely irrevocable -

  4. When the donor is dead.

  5. When the donee is dead.

  6. When the donee is related to the donor in prohibited degrees on consanguinity. However, in Shia law, a gift to any blood relative is irrevocable.

  7. When donor and the donee stand in marital relationship. However, in Shia law, a gift to husband by wife or vice versa is revocable.

  8. When the subject of the gift has been transfered by the donee through a sale or gift.

  9. When the subject of the gift is lost or destroyed, or so changed as to lose its identity.

  10. When the subject of the gift has increased in value and the increment is inseparable.

  11. When the gift is a sadqa.

  12. When anything as been accepted in return.



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