MUSLIM LAW 5TH SEM.

Unit 1
HIBA
INTRODUCTION
One of the briefest but most famous sayings of the Prophet is Tahadun Tahabua
(exchange gifts, for it increases mutual love). For more than 14 centuries,
exchanging gifts has become a noble tradition among Muslims all over the world.
Law of hiba has this tradition as its starting point. And Muslim jurists have
evolved a very refined system of hiba law.
But to translate hiba as a gift would not be correct, as done, because in the
English language there is no exact equivalent word for hiba. Unlike “gift” whose
meaning is much more wider, “the word hiba” is a narrow and well defined legal
concept (meaning) the immediate and unqualified transfer of the corpus of the
property without any return” - Fyzee.

DEFENATION OF “HIBA”
Abdur Rahim “A transfer of a determinate property (mal) without an exchange.
Juristically, it is treated as consisting of proposal or offer on the part of
the donor to give a thing and of acceptance of it by the done. Until
acceptance, the gift has no operation.” (p.297)
Mulla “Gift is a transfer of property, made immediately, and without any
exchange, by one person to another, and accepted by or on behalf of the
latter.” (p.150)

THREE ESSENTIALS OF A VALID "HIBA"

The following are the three essentials of a valid hiber,
1. declaration of hiba by the donor,
2. acceptance of hiba, expressly or impliedly, by or on behalf of the donee; and
3. delivery of possession of the subject-matter of hiba to the donee.

1. Declaration
Intention (niya) is a necessary component of every action in Islamic law, be it
Ibadat (religious matters) or Muamalat (worldly matters). An oral declaration may
validly create a hiba. It is not necessary that a written hiba namah (gift deed) must

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be executed. No registration is necessary if hiba is made of even immovable
property like land or house if it is through oral declaration.
Registration of declaration is not mandatory
Registration does not confer any special or preferential status on the registered
hiba. 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 the first done
could prove the validity of the oral hiba, then the second hiba of the same property
effected through the registration could not override the first oral hiba. (Shaik
Avula Mastan v. Shaik Abid, 2006 SCC Online AP890)
In Hafeeza Bibi v. Sk. Farid 2011 SCC 654, the Supreme Court overruled the
judgments of various High Courts and settled the controversy regarding oral and
written gift. It was held that merely because the gif is reduced to writing instead of
making it orally, such writing not becoming the formal instrument of the gift,
registration is not necessary. Form is immaterial and can not become the substance
of the gift.
2. Acceptance of hiba
The donee must accept the gift. This acceptance may be express or implied i.e.
by conduct. The gift to minor can be accepted by his guardian on his behalf.
3. Delivery of possession
When the donor makes a declaration of gift and the donee accepts, then the
possession of the thing gifted should be given to the donee. Suc delivery of
possession may be actual or constructive.
Exceptions-
 Donor and donee reside in the same house.
 Gift by husband to wife and vice-e-versa.
 Gift by father or mother to child or by guardian to ward
 Gift to donee already in possession
WHO CAN MAKE GIFT (DONOR)
Every Muslim male or female who is a major and sane may make a gift provided
he or she is not subject to any force or fraud.
IN WHOSE FAVOUR (DONEE)
A gift may be made in favour of the following:

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 1. Any living person who is capable of holding property: -Thus, strictly
speaking a gift to an unborn person is invalid. Take 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 time of the gift. The gift is invalid.
2. 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 r is
presumed that the child was actually existing as a distinct entity in the
womb.
3. Unborn person: - A gift of a limited interest in the usufruct of property
(arial) may be made to an unborn person provided that the 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, not with-standing the fact that at the time of making the gift B
was non-existent.
4. Juristic persons:-Gifts may be made validly to such juristic persons as
mosques,43 dargahs, and charitable institutions like schools.
5. 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.
6. 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 (discussed later on in this chapter).

WHAT MAY BE GIVEN IN GIFT

All mal or forms of property over which control may be exercised are proper
subjects of gift. These include all mal, whether ancestral or self-acquired, movable
or immovable, corporeal or incorporeal. A corporeal thing means that which exists
in material form; for example, money, house, land, etc.; whereas, incorporeal
property means that which does not exist in material form; for example, debts,
chose in action, a right to receive a specified share that may be made by pilgrims at
a shrine, an insurance policy notwithstanding the fact that the money does not exist
and is to be realized in future, equity of redemption, government promissory notes,
negotiable instruments, etc.
MODE OF CREATION OF GIFT
No particular mode is required for the creation of gift in Muslim Law. It can be
oral or written. Under the Muslim Law, writing is not essential to the validity of a
gift either of movable or of immovable property. Sections 122 to 129 of the
Transfer of Property Act, 1882, deal with gifts. By Section 123 of this Act it is
provided that a gift of immovable property must be affected by a registered

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instrument signed by the donor and attested by at least two witnesses, and that a
gift of movable property may be affected either by a registered instrument signed
as aforesaid or by delivery. But the provisions of Section 123 do not apply to
Muslim gifts. Section 129 of the Transfer of Property Act states, inter alia, that
nothing in the chapter shall be deemed to affect any rule of Mohammedan Law.
Under Section 17 of the Registration Act, gift of immovable property worth
over Rs. 100/- is required to be by registered instrument. Mohammedan law
permits oral gift of immovable property, irrespective of value of the property.
Hence S. 123 of the T.P. Act about the requirement of Registered Instrument does
not apply to gifts covered by Mohammedan Law. Nevertheless Section 17 of the
Registration Act applies to gifts dealt with in Mohammedan la gift is granted not
orally but in writing and if relates to immovable worth Rs. 100/- or above, the
document is compulsorily registrable.79
A gift under the Muslim Law is to be effected in the manner prescribed the
Muslim Law. If the formalities prescribed by that law are complied with the gift is
valid even though it is not effected by a registered instrument a though, where
effected by an instrument, the instrument is not attested But the formalities are not
complied with, the gift is not valid even though it may have been affected in the
manner prescribed by Section 123 of the Transfer of Property Act.

GIFT DURING DEATH ILLNESS (MARZ UAL MAUT- DONATION

MORTIS CAUSA)
If the donor is suffering from death-illness or marz-ul-maut, such a gift is called
donatio 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
1. The illness must cause the death of the ill person;
2. The illness must create apprehension of death in the mind of the deceased 40,
and
3. 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 favour of

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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.
GIFT OF MUSHA
Musha has been defined as an undivided share in an immovable or movable
property, which is divisible. Musha in law denotes the mixing up of the proprietary
rights of more than one person in a thing where each coowner has a right until the
partition of the property. As delivery of possession is one of the essentials of a
valid gift, thus the possession to be delivered must be separate and exclusive.
Hence the gift of an undivided share in a thing capable of division is void.
According to Shafi‟i and Shiite view, however, the gift of musha is valid, provided
the donor, after withdrawing his control from the subject matter of the gift, delivers
it to the donee.
Musha may be of two type- joint properties which are indivisible, and those which
are divisible.
1. Where property is indivisible – A gift may be validly made of an
undivided share in a property which is incapable of being divided, or where
the property can be used to better advantage in an undivided condition. Eg.-
a staircase, small house and small bath etc.

2. Where property is divisible:- The gift of musha of a property which is capable

of being divided is irregular but not void. Subsequent division and delivery of
possession renders the gift as valid.
A. a partner in a firm, makes a gift of his share of the partnership assets to
B. The gift is not valid unless the share is divided off and handed over to B.
There are six exceptions to this general rule.
Exception I: Where the gift is made by one co-heir to another. For exam
Muslim woman dies leaving a mother, a son and a daughter as her only pie." The
mother may make a valid gift of her undivided share in the inheritance to the son,
or the daughter, or jointly to the son and daughter.
Exception II: Where the gift is of a share in a Zamindari or taluka. — For
instance A, B and C are co-sharers in a Zamindari. Each share is separately
assessed by the government and has a separate number in the Collector's book, and
the proprietor of each share is entitled to collect a definite share of rents from the
Zamindari. A makes a gift of his share to Z without a partition of the Zamindari.

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The gift is valid for it is not a gift strictly of musha, the share being definite and
marked off from the rest of the property.
Exception III: When the gift is to two or more persons. — X makes a gift of
a house to A and B in equal shares as tenants-in-common. The property is not
divided off although their shares are clearly defined; possession of their specific
shares is not given to A and B. The gift is valid.
Exception IV: Where the gift is of a share in freehold property in a large
commercial town.-Thus, where A who owns a house in Bombay makes a gift of a
third of the house to B, the gift is valid because the property is situated in a large
commercial town. Exception V: Where the gift is of shares in a land (or real estate)
company.
Exception VI: Where a property is gifted out absolutely to a person with the
condition that he shall make certain periodical payments out of the recurring
income of the property, such payments are not governed by the doctrine of musha.

REVOCATION OF GIFT
According to Muslim law, all voluntary transactions are revocable; hence, gifts
may also be revoked. There is, however, a difference between completed and
incomplete gifts, i.e. after or before the delivery of possession.
1. Before delivery. - A gift may be revoked by the donor at any time before
delivery of possession but not after delivery. The reason that the gift is no gift
before delivery of possession and hence, the rules relating to gifts do not apply
over it.
2. After delivery. - When a gift is made and the subject-matter of the gift is duly
transferred to the possession of the donee, its revocation is only possible 1) by the
intervention of the court of law, or 2) by the consent of the donee; a mere
declaration on the part of the donor is not enough.

Only the donor has the right to revoke a gift, not his heirs after his death. It is the
donor whose law will apply to revocation and not that of the donee.
The following completed gift cannot be revoked even with the consent the donee
or intervention of the court:
1. Where is made by the husband to his wife or vice versa,
2. Where the donor and donee are related to one another within the propitiated
degrees by consanguinity;

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 3. Where the donor or donee dies;
4. Where the thing given is destroyed or lost;
5. Where the thing given has passed out of the donee's possession by sale gift
or otherwise;
6. Where the thing given has increased in value;
7. Where the thing given is so changed that it cannot be identified (for
example, when wheat is grinded into flour);
8. Where the donor has received a return (ewaz) for the gift;
9. Where the motive behind the gift is religious or spiritual, for in this case the
gift amounts to sadaqa.
The Shia law differs from Hanafi law in the following particulars:
1. A gift to any blood relation, whether within the prohibited degrees or not, is
irrevocable after delivery of possession;
2. A gift from a husband to his wife, or from a wife to her husband, is
according to better opinion, revocable.
3. A gift may be revoked by a mere declaration on the part of the donar without
any proceedings in court.

LIFE ESTATE AND LIFE INTEREST

Distinction between life estate and life interest
Tyabji explains the difference between a life estate and life interest through the
following dialogue (condensed by the author) between a layman and an Arab
lawyer, whom he consults regarding the disposition of his property consisting of an
orchard and camel:
Fyzee clarifies this further: "Estate" is a term of art in English law and has a
definite meaning in its technical sense. A "life estate" implies the transfer of the
corpus of the property to a certain person with certain limitations as to its use and
alienations. In this technical sense of the term, a life estate was declared by the
Privy Council in the Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan, 1948
SCC Online PC 17 to be unknown to Muhammadan law as administered in India,
but life interests were well known and would be created. Before coming to that
subject, we may revise the difference between corpus (ayn) and usufruct (manafi);
both can be the subjects of gift.
The ayn is the substance of a thing; for example, a plot of land, a house, a
camel or a book. Manafi (singular, manafaa) is literally the profits or produce. It
means not the thing itself but its use, benefit, produce or profits; for example, the
right to reside in a house, the right to fish in the pond, the right to take the produce,

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fruits of a garden, the recurring income of partnership, dividends on shares,
interests on government loans or stock.
Life interest
In Muslim law, therefore, both the corpus (wyn) and usufruct (munifi) of a property
can be the subject matter of gift. A gift of the usufruct for a definite period is called
life interest. Life interest may be created in the following ways:
1. By family waqfs
2. By will
3. By the rule in the Umjad Ali Khan case
4. By the rule in the Ashraf Khan case
5. By the Nawazish Ali Khan case
6. By family settlements

1. By family waqfs.- A makes a waqf of his property for the benefit of his children
and descendants, and on the extinction of the line of his lineal descendants, to a
school. The children and descendants will have a life interest in the property
generation after generation.
2. By will. A life interest can be created by "will". Thus, if a life interest IS given
by will to A for life and thereafter to B, the life interest in favour of A is valid.
3. By the rule in the “Umjad Ali Khan case”.The point in issue in this case was:
Whether a real transfer of property by a donor in his lifetime under the Muslim law
reserving not the dominion over the corpus of the property, nor any share of
dominion over the corpus, but simply stipulating for and obtaining a rights to the
recurring produce during his lifetime, is an incomplete gift by the Muslim law?
Their Lordships of the Privy Council held both the gift and the condition a valid.
This is a life interest. (Nawab Umjad Ally Khan v. Mohumdee Begum, (1867)
11 Moo IA 517)
4. By the rule in the “Ashraf Khan case” - The decisions of the Privy Council in
Hameeda v. Dublin", Abdul Gafur v. Nizamuddin, and some of the High Courts in
India have expressed the opinion that life interest is nothing more than a gift with
condition. If the condition is repugnant to the gift, the condition is void and the gift
is valid. Thus, it was held that if A gave B a life interest in a certain property, B
took it absolutely. (Amjad Khan v. Ashraf Khan, 1929 SCC Online Cal 224:
(1959-51)
5. By the “Nawazish Ali Khan case” The propositions of law laid down by the
Privy Council in this case are:

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(a) That Muslim law makes no distinction between real and personal property nor
does it recognize the splitting up of ownership of land into estates.
(b)That there is a clear distinction between the corpus of the property and its
usufruct:
(c) That interests for a limited duration can, therefore, be lawfully made. (Sardar
Nawazish Ali Khan v. Sardar Ali Raza Khan, 1948 SCC Online PC 17)
6. By family settlements.-An agreement settling disputes between par ties of a
family and which also involves a transaction for consideration is called "family
settlement". Life interest may be created by such agreements.
Shiite law of life interests
The scope of life interest is somewhat broader in Shiite law, which recognize its
following three forms:
1. Umra, the grant of usufruct for life.
2. Sukna, the right to reside in a house for life.
3. Ruqba, the right to lake usufruct for a fixed period.
Following are the essentials of a life interest in Shiite law:
1. Delivery of possession to the life-tenant.
2. Existence of the grantee. When there are many grants, succeeding grantees
should be in existence at the time when their interest being.
3. The subject matter of life interest should be such as may be used with being
consumed in the process.
The grantor is free to revoke a life-grant at any time before his death where it is for
a religious purpose or for an indeterminate period.

GIFT FOR CONSIDERATION (HIBA-BIL-IWAZ).— Hiba means gift and

iwaz means consideration. Hiba-bil-iwaz means gift for consideration already
received. As it has been already mentioned in the beginning that gift is a "a transfer
of property without consideration". This hiba-bil-iwaz departs from the original
definition. Hiba-bil-iwaz is a transaction, made up for two mutual or reciprocal
gifts between two persons. One gift was from the donor to the donee and the other
from donee to the donor. The gift and the return gift are separate and independent
transactions which together make up hiba-bil-iwaz.
Hiba-bil-iwaz in India.- Hiba-bil-iwaz was introduced in India as a device
for effecting a gift of mushaa in a property capable of division. A hiba bil-iwaz in
India is a gift for consideration (hiba is a transfer of property without

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consideration). It is in reality a sale and has all the incidents and conditions of a
sale. Registration is necessary in case of hiba-bil-iwaz as in case of a sale.91 So the
delivery of possession is not essential for a complete transfer and prohibition
against mushaa does not exist.

•Requisites of a valid hiba-bil-iwaz.- (1) Actual payment of consideration on the

part of the donee is necessary. In Khajuooroonissa v. Raushan Jehar92 Their
Lordships of the Privy Council said "undoubtedly the adequacy of consideration is
not the question. A consideration may be perfectly valid which is wholly
inadequate in amount when compared with the thing given. Some of the case have
gone so far as to say that even a gift of a ring may be a sufficient consideration, but
whatever is amount, it must be actually and bona fide paid.,
(2) A bona fide intention on the part of the donor to divest himself in possession of
the property and to confer it upon the donee.

HIBA-BA-SHARTUL-IWAZ.-„Shart‟ means stipulation, Hiba-ba-shartul iwaz

means a gift made with stipulation (Shart), for a return. Unlike Hiba-bil iwaz, in a
Hiba-ba-shartul-iwaz, the payment of consideration postponed. As. the
consideration is not immediate, the delivery of possession is essential. The
transaction becomes final immediately on the delivery of possession. When the
consideration is paid, it assumes the character of sale and is subject to pre emption
(shufa) Further as in case of a sale, either party can return the subject of sale for a
defect.
Thus it contains the following features:
i. As in the case of hiba, so in this case, delivery of possession is necessary.
ii. It is revocable until the iwaz (Return) is paid.
iii. It becomes irrevocable on the payment of iwaz.
iv. The transaction when completed by payment of iwaz, partakes of the
character of sale.

Distinction between „Hiba‟, „Hiba-bil-iwaz‟ and „Hiba-ba-Shartul-iwaz‟

Hiba Hiba-bil-iwaz Hiba-ba-Shartul-iwaz
Ownership in property is Ownership in property is Ownership in property is
transferred without transferred for consideration transferred for consideration
consideration. called iwaz. But there is no called iwaz. There is an
express agreement for a return express condition with the gift
or iwaz, that is to say, the

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 return is voluntary. for return.
Delivery of possession is a Delivery of possession is not Delivery of possession is
condition precedent for the essential. essential.
validity of the gift.
Gift of mushaa where a Gift of a mushaa is lawful Gift of a mushaa where
property is divisible is invalid. even where the property is property is divisible is invalid.
divisible.
Barring a few exceptions, it is Irrevocable from the moment Irrevocable after the
revocable. of its making. performance of the promised
condition but not before.
It is gift pure and simple. It is like a contract of sale. In its inception it is like a gift,
but operates as a sale when the
promised condition is
performed.

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