WHO CAN MAKE A “HIBA”
Every Muslim male or female who is major and sane may make a gift, provided he or she is not subject to any force or fraud. A married Muslim female can also make a gift. Where the female is a pardanashin lady, she is presumed to be ignorant of the result of her acts. Thus, where a pardanashin lady signed a gift deed believing that it was to take effect only after death, it was held that the transaction was not voluntary and the deed was void.
If the donor is suffering from death-illness or marz-ul-maut, such a gift is called donation 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
- The illness must cause the death of the ill person
- The illness must create apprehension of death in the mind of the deceased and
- 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. Nor such a gift can take effect if made in favor of an heir, unless the other heirs give their consent, after the donor’s death.
A gift in death-illness takes place only when the donor dies. 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.
An insolvent may also make a hiba with bona fide intention, but a gift to defraud the creditors is voidable at their option. The mere fact that the maker of the hiba owed some debts does not raise a presumption that the hiba was made to defraud the creditors. Thus, rushd (sanity), bulugh (majority), maliki (ownership) and free mind or no undue influence-are the ingredients to make hiba
A gift may be made in favor of the following
- Any living person who is capable of holding property- Thus, strictly speaking, a gift to an unborn person is invalid. Taking the example of A who makes a gift to B, and after B’s death to his male heirs. B has got no male heirs at the time of the gift. The gift is invalid
- Child in the womb- A gift to an unborn person may be made provided the child is born within six months from the date of the gift because in that case it is presumed that the child was actually existing as a distinct entity in womb
- Unborn person- A gift of a limited interest in the usufruct of property (ariat) may be made to an unborn person is in existence when the interest opens out for him. Thus, if a life interest is granted to A and thereafter to B, it is sufficient if B is in existence at the death of A, notwithstanding the fact that at the time of making the gift B was non-existent
- Juristic Persons- Gifts may be made validly to such juristic persons as mosques, dargahs and charitable institutions like school
- Non Muslims- A gift may be made to a non-Muslim. The gift property will be subject to the personal law of the donee, once he gets possession of it.
- Two or more persons- Where a gift is made to two or more donees without dividing the property, its validity is governed by the provisions of the doctrine of musha
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