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Gift

1. Under Muslim law, a gift (hiba) is defined as the immediate and unconditional transfer of ownership of property from one person to another without consideration. 2. For a gift to be valid under Muslim law, there must be a clear declaration of intent to gift by the donor, acceptance of the gift by the donee, and delivery of possession of the gifted property from the donor to the donee. 3. Gifts can be revoked by the donor before delivery of possession but require consent of the donee and a court decree to revoke after delivery unless under specific exceptions defined by Hanafi law.

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128 views

Gift

1. Under Muslim law, a gift (hiba) is defined as the immediate and unconditional transfer of ownership of property from one person to another without consideration. 2. For a gift to be valid under Muslim law, there must be a clear declaration of intent to gift by the donor, acceptance of the gift by the donee, and delivery of possession of the gifted property from the donor to the donee. 3. Gifts can be revoked by the donor before delivery of possession but require consent of the donee and a court decree to revoke after delivery unless under specific exceptions defined by Hanafi law.

Uploaded by

Pallavi U
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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GIFT

Gift is a transfer of property where interest is transferred from one living person to another, without any
consideration. It is a gratuitous and inter vivos in nature. This is the general definition that is accepted by all the
religions, including Muslim law. As per the Muslim Law, a gift is called as Hiba.

Concept of hiba under muslim 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. Under the Muslim Law a gift is a transfer of property or right by one
person to another in accordance with the provisions provided under Muslim law. Hiba (Tamlik 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 (ewaz).

The Hanafi lawyers define hiba as ‘an act of bounty by which a right of property is conferred in
something specific without an exchange’. The Shias 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 give away his entire property by a
gift inter vivos, even with the specific object of disinheriting his heirs.

Essentials of hiba

1.A declaration by the donor: There must be a clear and unambiguous intention of the donor to make a gift.
Declaration is a statement which signifies the intention of transferor that he intends to make a gift. A
declaration can be oral or written..

Case Law: Ilahi Samsuddin v. Jaitunbi Maqbul


Md. Hesabuddin v Md. Hesaruddin
Maimuna Bibi v. Rasool Mian

2. Acceptance by the donee: A gift is void if the donee has not given his acceptance. Legal guardian may accept
on behalf of a minor. Donee can be a person from any religious background. Hiba in favor of a minor or a
female is also valid.

3.Delivery of possession by the donor and taking of the possession by the done: In Muslim law the term
possession means only such possession as the nature of the subject is capable of. Thus, the real test of the
delivery of possession is to see who – whether the donor or the donee – reaps the benefits of the property. If the
donor is reaping the benefit then the delivery is not done and the gift is invalid.

The mode of delivery of possession depends completely upon the nature of property. A delivery of possession
may either be:

 Actual
 Constructive

SUBJECT MATTER OF GIFT UNDER MUSLIM LAW

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.
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.
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.

Kinds of Gift

1. Hiba
2. Hiba bil Iwaz
3. Hiba ba Shart ul Iwaz

REVOCATION OF GIFT

1.Revocation of gifts before the delivery of possession - Under Muslim law, all gifts are revocable before the
delivery of possession is given to the donee.

2. Revocation of gifts after the delivery of possession- . It seems that:

 all gifts after the delivery of possession can be revoked with the consent of the donee,
 revocation can be made only by a decree of the court.

The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his heirs
after his death. A gift can also not be revoked after the death of the donee.

According to the Hanafi School, with the exception of the following cases, a gift can be revoked even after the
delivery of possession. The exceptions to the same are:

 When a gift is made by one spouse to another.


 When the donor and the donee are related within the prohibited degrees.
 When the donee or the donor is dead.
 When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he had
disposed it off by sale, gift or otherwise or, where he had consumed it, or where it had been lost or
destroyed.
 When the value of the subject-matter has increased.
 When the identity of the subject-matter of the gift has been completely lost, just as wheat, the subject-
matter of gift, is converted into flour.
 When the donor has received something in return (iwaz).
 When the object of gift is to receive religious or spiritual benefit or merit, such as sadaqa.

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