JAMIA MILLIA ISLAMIA

FACULTY OF LAW

FAMILY LAW

Law of Gifts (HIBA)

SUBMITTED BY:
KHUSHBU GUPTA
B. A. LL.B. (Hons.) SELF-FINANCE 2nd YEAR

SUBMITTED TO:
DR. KEHKASHAN Y. DANYAL

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 ACKNOWLEDEMENT
I have taken efforts in this project however it would not
have been possible without the kind support and help of
many individuals, websites and books. I would like to
extend my sincere thanks to all of them.

I am highly indebted to Dr. Kehkashan Y. Danyal for

guidance and constant supervision as well as for providing
necessary information regarding the project and also for his
support in completing the project.

Khushbu Gupta
B. A. LL.B. (Hons.) Self-Finance
Class: 2nd yr

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 TABLE OF CONTENT

1. Introduction
2. Definitions
3. Essentials of Hiba
4. Constitutional validity of Hiba
5. Kinds of Gifts
6. In whose favour a gift can be made
7. Capacity to make Gift
8. Revocation of Gift
9. Registration
10. Conclusion
11. References 


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 INTRODUCTION

A 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. When a muslim transfers his property through a gift, the transfer is called a Hiba or a
muslim gift.
Under English laws, right in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. Rights in the land described as “estate” under English Law
do not always imply only absolute ownership but it also includes rights which fall short of it and are
limited to the life of the grantee or in respect of time and duration of use of the same.1
Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650 AD. In
general, Muslim law draws no distinction between real and personal property, and there is no
authoritative work on Muslim law, which affirms that Muslim law recognizes the splitting up of
ownership of land into estates. What Muslim law does recognize and insist upon, is the distinction
between the corpus of the property itself (called as Ayn) and the usufruct in the property (as
Manafi).
Under Hindu Law, a gift is regarded as the renunciation of the property right by the owner in the
favor of donee. According to Jimutvahana, under Hindu law’s concept of gift, ownership is not
created by acceptance but by renunciation of the donor. The donor can divest his interest by
renunciation but cannot impose the same on the donee if he is not ready to accept.2
Under the Mohammedan law, they is usufructuary interest. , in Muslim law, a person can be said to
be an “owner” only if he has full and absolute ownership. If the use or enjoyment of property is
granted to a person for life or another limited period such person cannot be said to be an “owner”
during that period. Muslim law admits only ownership unlimited in duration but recognizes
interests of limited duration in the use of the property.
Under Muslim Law, the religion of the person to whom a gift is made is not relevant. In India, there
is a separate statute that governs the matters related to the transfer of property. The Transfer of
Property Act, 1882 under Chapter VII talks about gifts and the procedure for making the same. Yet

1 http://www.legalserviceindia.com/articles/transfer.htm, accessed on 12/04/2014

2 Kesari, U.P.D., ‘Modern Hindu Law’, Central Law Publications, Allahabad, 2007, p431
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as per section 129 of the Act, the Transfer of Property Act, 1882 does not apply to the Muslims
making the gift.

DEFINATIONS

Ameer Ali: “A hiba is a voluntary gift without consideration of property or the substance of thing
by one person to another so as to constitute the done the proprietor of the subject-matter of the gift.”
Abdur Rahim: “A transfer of a determinate property without an exchange. Juristically it is treated
as consisting of proposal or offer on part of the donor to give a thing and a acceptance of it by the
donee. Until acceptance, the gift has no operation.”3
Mulla: “Gift is a transfer of a property, made immediately, and without any exchange, by one
person to another, and accepted by on or behalf of the latter.”4
Fyzee: “Hiba is the immediate and unqualified transfer of the corpus of the property without any
return.”5
Baillie: “The conferring of a right in something specific without an exchange.”

ESSENTIALS OF HIBA

Since Muslim law views the law of Gift as a part of the law of contract, there must be an offer
(izab), an acceptance (qabul), and transfer (qabza).
In Smt Hussenabi v Husensab Hasan,6 a grandfather made an offer of a gift to his grandchildren. He
also accepted the offer on behalf of minor grandchildren. However, no express of implied
acceptance was made by a major grandson. Karnataka HC held that since the three elements of the
gift were not present in the case of the major grandchild, the gift was not valid. It was valid in
regards to the minor grandchildren.

3 Abdur Rahim, at p. 297

4 Mulla, at p. 150
5 Fyzee, at p. 218
6 Smt Hussenabi v Husensab Hasan AIR 1989
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Thus, the following are the essentials of a valid gift-

A declaration by the donor:


There must be a clear and unambiguous intention of the donor to make a gift. A declaration is a
statement which signifies the intention of the transferor that he intends to make a gift. A declaration
can be oral or written. The donor may declare the gift of any kind of property either orally or by
written means. Under Muslim law, writing and registrations are not necessary.

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul7 it was held that under Muslim Law,
declaration, as well as acceptance of the gift, may be oral whatever may be nature of property
gifted. When the gift is made in writing, it is known as Hibanama. This gift deed need not be on
stamp paper and also need not be attested or registered. In the famous case of Md. Hesabuddin v
Md. Hesaruddin8, where the gift was made by a Muslim Woman and was not written on a stamp
paper, Gauhati High Court held that the gift was valid.

The declaration made by the donor should be clear. A declaration of Gift in ambiguous words is
void. In Maimuna Bibi v. Rasool Mian9 , it was held that while the oral gift is permissible under
Muslim law, to constitute a valid gift it is necessary that donor should divest himself completely of
all ownership and dominion over the subject of the gift. His intention should be in express and clear
words. According to Macnaghten, “A gift cannot be implied. It must be express and unequivocal,
and the intention of the donor must be demonstrated by his entire relinquishment of the thing given,
and the gift is null and void when he continues to exercise any act of ownership over it.”

The declaration should be free from all the impediments such as inducement, threat, coercion,
duress or promise and should be made with a bona fide intention.

Acceptance by the donee


A gift is void if the donee has not given his acceptance. The legal guardian may accept on behalf of
a minor. Donee can be a person from any religious background. Hiba in favour of a minor or a
female is also valid. A child in the mother’s womb is a competent done provided it is born alive
within 6 months from the date of declaration. A juristic person is also capable of being a donee and
a gift can be made in their favor too. On behalf of a minor or an insane person, any guardian as

7 Ilahi Samsuddin v. Jaitunbi Maqbul, 1994 SCC (5) 476

8 Md. Hesabuddin v Md. Hesaruddin, 1983
9 Maimuna Bibi v. Rasool Mian, AIR 1991 Pat 203
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mentioned under the provisions of Muslim law can accept that gift. These authorized people
include:
a) Father,
b) Father’s Executor,
c) Paternal Grand-Father, and
d) Paternal Grand Father’s Executor.

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 – reap 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 the property. Delivery of
possession may either be: Actual, or Constructive.
Actual Delivery of Possession: Where the property is physically handed over to the donee, the
delivery of possession is actual. Generally, only tangible properties can be delivered to the done.
Tangible property may be movable or immovable. Under Muslim law, where the mutation
proceedings have started but the physical possession cannot be given and the donor dies, the gift
fails for the want of delivery of possession[xviii]. However, in such cases, if it is proved that
although the mutation was not complete and the done has already taken the possession of the
property, the gift was held to be valid.10
Constructive Delivery of Possession: Constructive delivery of possession is sufficient to constitute
a valid gift in the following two situations:
Where the Property is intangible, i.e. it cannot be perceived through senses.
Where the property is tangible, but its actual or physical delivery is not possible.
Under Muslim law, Registration is neither necessary nor sufficient to validate the gifts of
immovable property. A hiba of movable or immovable property is valid whether it is oral or in
writing; whether it is attested or registered or not, provided that the delivery of possession has taken
place according to the rules of Muslim Law.

10 Alimonassa v. Sudhir Chandra De, AIR (1991)

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 CONSTITUTIONAL VALIDITY OF HIBA

The question of whether the first exemption was constitutionally valid in regards to the right to
equality (article 14 of the Indian Constitution) was rather rapidly solved by the Courts, validating
the disposition on the grounds of ‘reasonable classification.
It is enough to say that it is now well settled by a series of decisions of this Court that while Article
14 forbids class legislation, it does not forbid reasonable classification for the purposes of
legislation, and in order to pass the test of permissible classification, two conditions must be
fulfilled, namely:11
(1) That the classification must be founded on an intelligible differentia which distinguishes persons
or things that are grouped together from others left out of the group;
(2) That differentia must have a rational relation to the object sought to be achieved by the statute in
question.
The classification may be founded on different bases such as geographical, or according to objects
or occupations and the like. The decisions of this Court further establish that there is a presumption
in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show
that there has been a clear transgression of the constitutional guarantee; that it must be presumed
that the legislature understands and correctly appreciates the needs of its own people and that its
laws are directed to problems made manifest by experience and that its discriminations are based on
adequate grounds; and further that the legislature is free to recognise degrees of harm and may
confine its restrictions to those cases where the need is deemed to be the clearest.
It is well known that there are fundamental differences between the religion and customs of the
Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding gift are
based on reasonable classification and the provision of Section 129 of the Transfer of Property Act
exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the
Constitution.
The most essential element of Hiba is the declaration, “I have given”. As per Hedaya, Hiba is
defined technically as12 :
“Unconditional transfer of existing property made immediately and without any exchange or
consideration, by one person to another and accepted by or on behalf of the latter“.

11 http://www.scribd.com/doc/126718471/LAW-OF-GIFT-Muslim-LAw
12 http://wahabohidlegalaid.blogspot.in/2013/03/hiba-gift.html
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The courts have held that the rules of Muslim law regarding gifts are based on reasonable
classification and there is no discrimination in allowing a separate law for gifts made by Muslims.
The Kerala High Court has also held that section 129 of the TPA, read with Article 14 of the
Constitution of India, exempts only religious gifts. It does not protect a non-religious, i.e., secular
gift made by a Muslim. In Bibi Maniran v. Mohd. Ishaque13 , court now made it clear that this
exemption is constitutional and lawful.

Kinds of Gifts

There are several variations of Hiba. These include[xxviii]:

a) Hiba bil Iwaz

b) Hiba ba Shart ul Iwaz

c) Sadkah

d) Ariyat

HIBA- IL-IWAZ

‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means a gift for consideration
already received. It is thus a transaction made up of two mutual or reciprocal gifts between two
persons. One gift from a donor to the donee and one from donee to the donor.

The gift and return gift are independent transactions. Therefore, when both i.e., hiba (gift) and iwaz
(return or consideration) is completed, the transaction is called hiba-bil-iwaz. For example, A makes
a gift of a cow to S and later B makes a gift of a house to A. If B says that the house was given to
him by A by way of return of exchange, then both are irrevocable.

So a Hiba Bil Iwaz is a gift for consideration and in reality, it is a sale. Thus, registration of the gift
is necessary and the delivery of possession is not essential and the prohibition against Mushaa does
not exist. The following are requisites of Hiba bil Iwaz:

13 AIR 1963 Pat 229

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 1. Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa
vs Raushan Begam14, it was held that adequacy of the consideration is not the question.
As long as the consideration is bona fide, it is valid no matter even if it is insufficient.

2. A bona fide intention on the part of the donor to divest himself of the property is
essential.

Gift in lieu of dower debt –

In Gulam Abbas vs Razia15, the Hon’ble High Court at Allahabad held that an oral transfer of
immovable property worth more than 100/- cannot be validly made by a Muslim husband to his
wife by way of gift in lieu of dower debt which is also more than 100/-. It is neither Hiba nor Hiba
bil Iwaz. It is a sale and must be done through a registered instrument.

HIBA-BA-SHARTUL-IWAZ

‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with a stipulation for
return’. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the payment of
consideration is not immediate the delivery of possession is essential. The transaction becomes final
immediately upon delivery. When the consideration is paid, it assumes the character of a sale and is
subject to preemption (Shufa). As in sale, either party can return the subject of the sale in case of a
defect.

a) It has the following requisites –

b) Delivery of possession is necessary.

c) It is revocable until the Iwaz is paid.

d) It becomes irrevocable after the payment of Iwaz.

e) Transaction when completed by payment of Iwaz, assumes the character of a sale.

In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both gifts
for a return and the gifts must be made in compliance with all the rules relating to simple gifts.

14 MANU/UP/0224/1944
15 Gulam Abbas vs Razia, AIR 1951 All 86
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Sadaqah

It is a gift with religious motive. It differs from hiba in that (i) the motive of hiba is secular while
the motive of sadaqah is religious, (ii) a hiba is revocable in certain circumstances. A Sadaqah is
irrevocable when possession is once delivered.

Sadaqah and Hiba compared.—l. Like hiba, saclaqah, is not valid unless the delivery of possession
is made.

Like hiba, it is not valid if it consists of an undivided share in property capable of division.

There is a desire to get religious merit in Sadaqah; there is no such motive in a gift except affection.

Sadaqah is not revocable if once completed by delivery; gift is revocable in certain cases.

Express acceptance is not necessary which is necessary in a gift.

6. Unlike hiba, Sadaqah is valid even though made to two or more persons jointly, provided the
donees are poor persons.

Ariyat

The grant of a licence, resumable at the grantor’s option to take and enjoy the usufruct of a thing is
called Ariyat” (Mulla). It is to transfer the right to enjoy the use of profits without any return.
According to Durral Mukhtar ‘to make a person the owner of the substance of a thing without
consideration is a hiba, while to make him the owner of the profits only without consideration is an
ariyat.6 In hiba the donee gets the ownership in the gifted property, but in ariyat, he only obtains the
use or beneficial enjoyment for a limited period, and the ownership in the property does not pass to
him.

Essentials of Ariyat:

a) It can be revoked.

b) Ownership of property is not transferred.

c) It must be for a definite period.

d) 4. It does not devolve upon the heir of the donee on his death.

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 IN WHOSE FAVOUR A GIFT CAN BE MADE

A gift may be made in favour of the following16 :-

1. Any living person who is capable of holding property: Thus, strictly speaking, a gift to an
unborn person 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 case, it is presumed that the child was
actually existing as a distinct womb in the entity.

3. Unborn Person: A gist of a limited interest in the usufruct to the property may be made to an
unborn person provided that the person is in existence when the interest opens ou for him.

4. Juristic Persons: A gift may be made to a non-muslim. The gift property will be subject to
personal law, once he gets possession of it.

5. Two or more persons: Where a gist is made to two or more donees without dividing the
property, its validity is governed by the provision of the doctrine of mush.

CAPACITY TO MAKE A GIFT

Mental capacity – Every Muslim, male or female, married or unmarried, who has attained the age of
majority and who is of sound mind has the mental capacity to make a gift. The rule of Muslim law
of majority, i.e. attainment of puberty, does not apply to gifts. A person of unsound mind can make a
valid gift during lucid intervals. The Muslim law-givers recognize the doctrine of ikrash or
compulsion, and a gift-deed executed under compulsion is not valid. In such a case the gift is
voidable, and it can be avoided by the donor whose consent was so obtained.

Financial capacity – The Malikis hold the view that a person under insolvent circumstances or
extremely involved circumstances have no capacity to make a gift. On the other hand, the Hanafis

16 Verma at pp. 535-36

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hold the view that insolvency does not create an incapacity to make a gift, but the kazi has the
power to render such gift nugatory if it is made with a view to defrauding the creditors. The Indians
court follow the Hanafi view. In every gift, there must be a bona fide intention on the part of the
donor to transfer property to the donee. And, if a gift is made with an intention to defraud the
creditors, the gift I invalid.

REVOCATION OF GIFT

Under Islamic law all voluntary transactions are revocable, therefore this revocability should also
be attributed to Gift.1 Gift is a voluntary and gratuitous transfer of property. The donor makes a gift
of the properties of his own free Will and the transfer without any consideration or exchange. In the
transfer of property by way of gift, there are three stages: Declaration, Acceptance and the delivery
of possession. As we have discussed earlier that without the delivery of possession there is no gift at
all.

Revocation before delivery of possession: Delivery of possession makes a gift complete, so before
the delivery of possession all gifts are revocable. A gift may be revoked by the donor at any time
before the delivery of possession. A mere declaration by the donor that he has revoked the gift is
sufficient.

Revocation after delivery of possession: When delivery of possession is made by the donor, the
gift becomes complete. After the delivery of possession, the gift cannot be revoked by donor
through mere declaration. For the revocation of such a gift, there are two ways: 

(i) With the mutual consent of the parties, and 

(ii) By a decree of the court.

A donor can revoke the gift after the delivery of possession in the abovementioned ways, but after
his death, his heirs cannot revoke it or a gift can also not be revoked after the death of the donee.

Shia Law: Under the Shia law, even after the delivery of possession, a gift may be revoked by the
donor merely by declaration. There is no need of getting a decree from the court. But, under the
Shia law too, if the gift is irrevocable, it cannot be revoked after the delivery of possession even by
the court.

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 REGISTRATION

No need to register property gifted by Muslims: SC

‘Such Assets Exempted From Transfer Of Property Act’

PRESS TRUST OF INDIA

New Delhi, May 5: A gift of immovable property made by a Muslim is valid even if it is not
registered under the Transfer of Property Act or the Stamps and Registration Act, the Supreme
Court Thursday ruled.

The apex court said though the TP Act mandates registration of a gift, the same would not apply to a
Muslim donor as the community has been exempted from the provision.

A Bench of Justices R M Lodha and S S Nijjar in a judgement quashed a ruling of the Andhra
Pradesh High Court that the property gifted by late Shaik Dawood to one of his sons Muhammad
Yakub was not valid as it was not registered under the law.

The Bench said the three essentials of a gift under Muhammadan Law are (i) declaration of the gift
by the donor (2) acceptance of the gift by the donee and (3) delivery of possession. "Though the
rules of Muhammadan Law do not make writing essential to the validity of a gift, an oral gift
fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may
record the transaction of gift in writing.

"In our opinion, merely because the gift is reduced to writing by a Muhammadan instead of it
having been made orally, such writing does not become a formal document or instrument of gift.

"When a gift could be made by Mohammadan orally, its nature and character is not changed
because of it having been made by a written document. What is important for a valid gift under
Muhammadan Law is that three essential requisites must be fulfilled," Justice Lodha writing the
judgement said.

The apex court passed the judgement while upholding the appeal filed by Yakub challenging the
High Court's ruling which had set aside a Visakhapatnam trial court decree that no such registration
was required.


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In the instant case, Shaikh Dawood had gifted (hiba) his properties to one of his sons Yakub on
February 5, 1968, by way of an unregistered written document.

The validity of the gift was challenged by his other son Shaikh Farid and family members. Though
the trial court rejected their plea, the High Court took the contrary view that the gift was invalid as it
was not registered.

Aggrieved Yakub appealed in the apex court.


The apex court said Section 17(1)(a)of the Registration Act leaves no manner of doubt that an
instrument of gift of immoveable property requires registration irrespective of the value of the
property.

However, the Bench said it was not applicable to a Muslim in the light of Section 129 of the T.P.
Act and the rule of Mohammadan Law relating to gifts.

"The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the
transaction of gift would not be rendered invalid because it has been written on a plain piece of
paper," the Bench said.

The apex court said Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes
the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan.

"The gift was made by Shaikh Dawood by a written deed dated February 5, 1968, in favour of his
son Muhammad Yakub in respect of the properties ‘A' schedule and ‘B’ schedule appended thereto.

The gift – as is recited in the deed – was based on love and affection for Muhammad Yakub as after
the death of donor’s wife, he has been looking after and helping him.

"Can it be said that because a declaration is reduced to writing, it must have been registered? We
think not. The acceptance of the gift by Muhammad Yakub is also evidenced as he signed the deed,"
the Bench said while quashing the High Court ruling and restoring the decree passed by the trial
court in favour of Yakub.

CONCLUSION

The conception of the term gift and subject matter of gift has been an age old and
traditional issue which has developed into a distinct facet in property law. Different
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aspects related to gift in property act and its distinction with the Mohammedan law
and its implications has been the major subject matter of this article. 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. The
concept of hiba and the term "gift as used in the transfer of property act, are
different. As we have seen in the project that Under Mohammedan law, to be a
valid gift, three essentials are required to exist: (a) declaration of gift by the donor
(b) an acceptance of the gift, express or implied, by or on behalf of the donee,
and (c) delivery of possession of the subject of gift. The English law as to rights
in property is classified by a division on the basis of immoveable and moveable
(real and personal) property. The essential elements of a gift are (a) The absence
of consideration; (b) the donor; (c) the donee ;(d) the subject-matter; (e) the
transfer; and the acceptance Thus this striking difference between the two laws
relating to gift forms the base of this project in understanding its underlying
implications.


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 REFRENCES

1. www.legalserviceindia.com

2. www.legalbites.in

3. www.lawoctopus.com

4. www.indiankanoon.org

5. Khalid Rashid, Muslim Law, 5th Edition

6. Aqil Ahmad, Mohammedan Law, 26yh Edition

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