Concept of Hiba Under Muslim Law

CONCEPT OF HIBA UNDER MUSLIM MUS LIM LAW The conception of the term ‘gift’ as used in the Transfer of Property Act, 1882 is somewhat different from the practice under the Muslim Law !nder the Muslim Law a gift is a transfer of   property or right "y one person to another in accordance with the pro#isions pro#ided under  Muslim law $i"a %Tamli& al ain' , is an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return %ewa(') and The term ‘hi"a’ and ‘gift’ are often indiscriminately used "ut the term ‘hi"a’ is only one of the &inds of transactions which are co#ered "y the general term ‘gift’ The other types of gifts include* • •

Ariya %Tamli& %Tamli& al manafe', where only usufruct is transferred and an d +adah where the gift is made "y the muslim with the o"-ect of acuiring religious merit

 A Man may lawfully ma&e a gift of his property to another during his lifetime) or he may gi#e it away to someone after his death "y will The first is called a disposition inter #i#os) the second, a testam testamenta entary ry dispos dispositi ition on Muhamm Muhammadan adan law permit permitss "oth "oth &inds &inds of transf transfers ers)) "ut while while a disposition inter #i#os is unfettered as to uantum, a testamentary disposition is limited to one. third of the net estate Muhammadan law allows a man to gi#e away the whole of his property during his lifetime, "ut only one.third of it can "e "eueathed "y will The $anafi lawyers define hi"a as * ‘an act of bounty by which a right of property is conferred in something specific without an exchange’ exchange’  The +hias hold that * ‘a hiba is an obligation by which property in a specific object is transferred immediately and  unconditionally without any exchange and free from any pious or religious purpose on the part  of the donor’  Muslim law allows a Muslim to gi#e away his entire property "y a gift inter #i#os, e#en with the specific o"-ect of disinheriting his heirs

ESSENTIALS OF HIBA +ince muslim law #iews the law of /ift as a part of law of contract, there must "e an offer %i(a"', an accepta acceptance nce %a"ul' %a"ul',, and transf transfer er %a"(a' %a"(a' 0n Smt Hussen Hussenabi abi v Husens Husensab ab Hasan[ Hasan[vii vii]], a grandfather made an offer of gift to his grandchildren $e also accepted the offer on "ehalf of  mino minorr gran grandch dchil ildr dren en $owe $owe#er #er,, no epr epres esss of impl implie ied d acce accepta ptanc ncee was was made made "y a ma-o ma-or  r  grandson arnata&a $3 held that since the three elements of the gift were not present in the case of the ma-or grandchild, the gift was not #alid 0t was #alid in regards to the minor grandchildren Thus, the following are the essentials of a #alid gift4#iii5. 1 A declaration by te Donor * There must "e a clear and unam"iguous intention of the donor to ma&e a gift 6eclaration is a statement which signifies the intention of transferor that he intends to ma&e a gift A declaration can "e oral or written The donor may declare the gift of any &ind of property either orally or "y written means !nder Muslim law, writing and registrations are not necessary 0n the famous case of Ilahi of Ilahi Samsuddin v. aitunbi !a"bul it was held that under Muslim Law, declaration as well as acceptance of gift may "e oral whate#er may  "e nature n ature of property gifted 7hen the gift is made in writing, it is &nown as Hibanama as Hibanama This gift deed need not "e on stamp paper and also need not "e attested attested or registered registered 0n the famous case of !d. of !d. Hesabuddin v !d. Hesaruddin# where the gift was made "y a Muslim 7oman and was not written on a stamp paper, /uahati $igh 3ourt held that the gift was #alid The declaration made "y the donor should "e clear A declaration of /ift in am"iguous words is #oid 0n !aimuna 0n !aimuna $ibi v. %asool !ian# it was held that while oral gift is permissi"le under  Muslim law, to constitute a #alid gift it is necessary that donor should di#est himself completely of all ownership and dominion o#er su"-ect of gift $is intention should "e in epress and clear  words  According to Macnaghten,  & gift cannot be implied. It must be b e express and une"uivocal# and  the intention of donor must be demonstrated by his entire relin"uishment of the thing given# and  the gift is null and void when he continues to exercise any act of ownership over it.9

The declaration should "e free from all the impediments such as inducement, threat, coercion, duress or promise and should "e made with a "ona fide intention

!" Acce#t Acce#tan ance ce by by te te Donee Donee  A gift is #oid if the donee has not gi#en his acceptance Legal guardian may accept on "ehalf of  a minor 6onee can "e a person from any religious "ac&ground $i"a in fa#or of a minor or a female is also #alid 3hild in the mother’s wom" is a competent done pro#ided it is "orn ali#e within : months from the date of declaration ;uristic person are also capa"le of "eing a donee and a gift can "e made in their fa#or too