The Arabic term ‘HIBA’ literally means gift. The term “Hiba” and “gift” have a different meaning when taking into consideration the transfer of property act, 1882. Under the Muslim law, a competent person is allowed to make a gift of his property to another during his lifetime, but, it has to be transferred by way of a “will” or “Wasiyat”, provided the male or female is not subject to any force or fraud. If the donor is suffering from death-illness or marz-ul-maut, such a gift is called donation mortis causa. 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. It has been widely construed that the term ‘mal’ has to apply to the object so gifted for the laws of Hiba to apply. It is to noted that in order to constitute the death-illness, it is essential that the illness must cause the death of the ill person, illness must create apprehension of death in the mind of the deceased and there must be some external symptoms of a serious illness.

‘Hiba’ as defined by Abdur Rahim means that a transfer of a determinate property (mal) without an exchange. Interestingly, under jurisprudence, it is considered as a proposal or offer on the part of the donor to give a thing and acceptance of the same by the donee. The acceptance of the gift by the donee must be ither expressed or implied. According to Mulla, gift is a transfer of property, made immediately and without any exchange by one person to another which is accepted only by the latter. If there are more than one donee, then, possession by one co-sharer is presumed to be in the name and on behalf of other co-sharers. There are mainly three conditions which needs to be fulfilled for the successful transfer of property or making of a gift by a Muslim person. The conditions are that the doner must declare the gift & it must be accepted by the donee and the donor must transfer the possession which must be accepted by the donee.

The requisites of a valid gift can be stated as follows:

• Parties to a gift :  There are two parties involved, viz; Donor & Donee. While the former signifies his willingness to transfer the property to another, the latter accepts the gift.
• Subject of the gift : Anything which can be exercised for a right of property possessed by the donor or something which comes within the purview of ‘Mal’.
• Mode : The ability to make & accept the gift by the donor & donee and the existence of a valued subject of gift will not have the effect of completing the transaction, but, certain formalities have to be satisfied to make the transaction a valid one.

KINDS OF GIFTS

• Hiba-il-iwaz : ‘Iwaz’ means consideration. Therefore, Hiba-il-iwaz means, the gift for consideration.
• Hiba-ba-Shartul-iwaz : A gift made with a stipulation for return. The Donee does not pay the consideration of his choice, but, pays it because of the necessity condition attached with the Act.

DECLARATION OF HIBA

The necessary component in Islamic Law is Intention (niya). Hiba without the intention may be benami transaction. An oral declaration may validly create a Hiba. It is not necessary that a written Hiba namah (gift deed) must be executed. Once the Hiba is declared through a written deed, its registration becomes compulsory. The Indian Registration Act, 1908 (Sections 16 and 49) does not require an oral gift to be registered. Validity of  proof of the Hiba is also important. For example, 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 in the above example, the first donee could prove the validity of the oral Hiba, then the second Hiba of the same property effected through registration could not override the first Hiba, even though it was oral[1].

It is not necessary that the donor has the physical possession of the property, but, he must have a legal possession. However, there are some circumstances when physical  possession is not necessary. For example, when both the donor & donee reside in the same house, then the transfer of gift can be completed without physical transfer. In the case of Ibrahim Bivi v K.M.M Pakkir Mohideen Rowther, the court held that if the settler and the settlee reside in house which was to be gifted, then, it was not necessary for the settlor to depart from the house which they intend to gift. Even in case where the married couple lives in a house belonging to the husband, then, the latter may gift the house without any physical delivery. No transfer of possession is necessary where a father or mother makes a gift of immovable property to their minor child[2].

Strictly speaking, a gift to an unborn person is invalid provided that the child is born within six months from the date of the gift as it is presumed that the child was actually existing at the time of transfer. Gifts may be made to juristic persons as mosques, dargahs and charitable institutions like school. Gifts may also be made to a non-Muslim.

CONCLUSION

The concept of gift has been an age-old issue in Muslim law. In considering the law of gifts, it is to be remembered that the English word ‘gift’ is generic and must not be confused with the technical term of Islamic law, Hiba. So, to conclude, it can be said that the gift is a contract consisting of a proposal or offer on the part of the doner and acceptance of it by the donee.

[1] Rohan Priyam -DECLARATION OF HIBA – GIFTS UNDER MUSLIM LAW – 2, Declaration of Hiba – Gifts under Muslim Law – 2 – Aishwarya Sandeep, visited on 26-07-2021 at 15:07hrs.

[2] Rohan Priyam-EXCEPTIONS TO DELIVERY OF POSSESSION RULE – GIFTS UNDER MUSLIM LAW 4, Exceptions to Delivery of Possession Rule – Gifts under Muslim Law 4 – Aishwarya Sandeep, visited on 26-07-2021 at 15:59hrs.

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