ASSIGNMENT

HIBA

SUBJECT-FAMILY LAW-II

ASSIGNMENT SUBMITTED TO FACULTY OF LAW,

UNIVERSITY OF LUCKNOW

For the Partial Fulfilment of the Requirement in

B.A.LL.B.(Hons.)-IV SEM. (SECTION -A)

Under Guidance of:- Submitted By:-

MR. ASHISH SHAHI ADARSH GAUTAM
FACULTY OF LAW, ROLL NO:- 200013015058
UNIVERSITY OF LUCKNOW SEC-A

UNIVERSITY OF LUCKNOW (2021-2022)

ACKNOWLEDGEMENT
In preparation of my assignment, I had to take the help and guidance of some re-
spected persons, who deserve my deepest gratitude. As the completion of this as-
signment gave me much pleasure, I would like to show my gratitude Mr. Ashish
Shahi Sir, subject teacher(guest faculty), on Lucknow University for giving me a
good guidelines for assignment throughout numerous consultations. I would also
like to expand my gratitude to all those who have directly and indirectly guided
me in writing this assignment.

Many people, especially my classmates have made valuable comment suggestions

on my assignment which gave me an inspiration to improve the quality of the as-
signment.
Table of Contents
Introduction
Essentials of Hiba
Declaration of gift by the donor
The requisites of the donee
Acceptance of gift by the donee
Transfer of possession by the donor and its acceptance by the donee
Kinds of Gifts
Hiba-il-iwaz
Hiba-ba-Shart-ul-Iwaz
Revocation of gift
Conclusion
INTRODUCTION

The concept of Hiba under Muslim law has existed from 600 A.D. Gift is the trans-
fer of a property from one person to another. Under Muslim law, the Gift transfer
is not controlled by the Transfer of Property Act, 1882 but is governed by Muslim
law itself. Muslims can divide their property in many ways out of which one is
“Hiba” which is discussed in the paper. The delivery of gift in Muslim law can be
actual or constructive. In actual delivery, the gift which is being made is physically
transferred to the donee, and in case of constructive delivery it is just a symbolic
transfer of property. Also, there are some instances where the delivery of the pos-
session of the property is not necessary. In this paper, we have discussed about
the essentials of Hiba, kinds of gift under Muslim law, how the gift can be re-
voked.

Under Muslim law, Muslims can divide their property in many ways. It could be
through Gift which is known as Hiba in Muslim law and through a will which is
known as Wasiyat in Muslim law. The term gift is known as ‘Hiba’ in Muslim law.
Whereas in English, the word ‘gift’ has a much wider expression which is applic-
able to each and every transaction where an individual transfers his or her proper-
ty to another without any consideration for the same. In contradiction to this, the
term ‘Hiba’ in Muslim law has a much narrower connotation. A Muslim is allowed
to give away his whole property in his lifetime but he can only give one-third of his
property through a will. Also, the religion of the person to whom the gift is made
is irrelevant. The transfer of property through the way of gift is immediate and
without consideration. It is an unconditional transfer of property. Although the gift
being a property has to be governed by the Transfer of property act, 1882. But
Chapter 7 of Transfer of Property Act 1882 does not cover the gift under Muslim
law. So, the Muslim Personal law governs the Muslim gift or “Hiba”.
Essentials of Hiba

There are mainly three conditions which need to be fulfilled for the successful
transfer of property or making of a gift by a Muslim person. These conditions are
as follow:

1. Declaration of gift by the donor.

2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and it’s acceptance by the donee.
The person who signifies his willingness to the other person for transferring his
property is known as a Donor. On the other hand, the person who expresses his
consent for the acceptance of the gift made by the donor is known as the Donee.

The requisites of the donor are as follow:

Firstly, the person who is giving the property or making the gift i.e Donor,
he/she must be a Muslim. Any other person in place of Muslim cannot make
Hiba.

Secondly, the person should be of the competent age i.e he/she must be
major.

Thirdly, the consent of the donor must be free. If the consent of the person
is obtained by force, coercion, undue influence is no consent and such a gift
is no gift.
 Fourthly, the person must be of sound mind. Any gift made by a person of
unsound mind is not a valid gift.

And lastly, the donor should be having the ownership of the property which
he is going to give away in the form of a gift.

Declaration of gift by the donor

Declaration of gift by the donor represents his/her willingness to make a gift. The
declaration made should be clear and not ambiguous. A donor can make the de-
claration in two ways that are oral or written.

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul, it was held by the apex
court that under Muslim laws the declaration made by the donor and the accep-
tance made by the donee can be oral irrespective of the nature of the property.
The declaration and acceptance made in the form of writing are through the way
of gift-deed. In Muslim law, the gift deed is known as Hibanama. The Hibanama
may not be on the stamp paper and is not compulsory to be registered.

In the case of Md. Hesabuddin v Md. Hesaruddin, where Muslim women transfer-
red her property by the way of Gift or Hiba and the gift-deed was not on the
stamp paper it was held to be valid by the Gauhati High Court.

The declaration should also be expressed. A gift made in an unambiguous manner

is null and void.
The requisites of the donee

Firstly, religion is no bar for accepting the gift which has to be mandatorily
made by a Muslim. The donee can be of any religion, Muslim or non-mus-
lim.

Secondly, the age is again not a bar for a donee. He/she can be of any age
i.e. major or minor.

Thirdly, a gift can be made to an unborn child, but it must be in the womb of
her mother. This is so because of the Transfer of property act, 1882 which
talks about the benefit for the unborn person.

Fourthly, the transfer of property can also be made to a religious entity.

Acceptance of gift by the donee

For the valid gift, it must be accepted by the donee. If there are more than one or
two donee, then it must be accepted by both the donee’s and it must be accepted
separately. Since in Islamic law the Hiba is treated as a bilateral transaction i.e the
donor makes the transfer and it must be accepted by the donee. If the acceptor of
the gift is minor or any person of unsound mind then it can be accepted by his
guardians. These people are his/her-

Father
 Father’s Executor

Paternal Grand-Father

Paternal Grand Father’s Executor

Transfer of possession by the donor and its acceptance by the donee

After the transfer proposed by the donor and its acceptance by the donee is com-
plete the next important condition which needs to be fulfilled for a valid gift is the
transfer of possession by the donor and its acceptance by the donee. As the form-
alities of a gift are mentioned under Section 123 of Transfer of property act, 1882
but these are not applicable in case of “Hiba”. In Hiba, the transfer is complete as
soon as the possession is transferred from the donor to the donee. The valid ef-
fect of the gift is from the date of transfer and acceptance of the possession and
not from the date of declaration.

In the case of Noorjahan v. Muftakhar, the court held that where the declaration
of the gift is made by the donor but afterwards till his death all the profits made
out of the property is taken by the donor himself the gift is invalid and not effec-
tive in nature since the transfer of possession has not taken place.

The mode of delivery of possession is dependent upon the nature of the property.
The mode of delivery can be Actual or Constructive.
Actual Delivery: In actual delivery, the gift which is being made is physically trans-
ferred to the donee. Actual delivery of the possession is possible when the gift
which is being transferred is of tangible nature. Tangible means something which
we can feel, see and touch. But further in case of tangible goods, it can be mova-
ble and immovable. Actual delivery can be done in case of only movable goods.

For example- If a person wants to gift a laptop to the other he can make his actual
delivery as it is tangible and is movable in nature.

Constructive Delivery: The transfer of immovable property and intangible proper-

ty is not possible so it is just a symbolic transfer of property.

For example- If the man wants to gift a house to someone, he can just hand over
the keys and the related documents to the donee. He cannot pick up the house
and hand it over to the donee. So, in this case, the delivery made is constructive in
nature.

Under Muslim law, the registration of the transfer is not important, the condition
which needs to be fulfilled for this is that the transfer must be made according to
the rules of Muslim law. As it has already been mentioned in this paper that the
Hiba can be oral or written and written transfer is known as Hibanama and its re-
gistration or authorization by way of the stamp is not necessary.

Kinds of Gifts
 1. Hiba-il-iwaz
2. Hiba ba Shart ul Iwaz

Hiba-il-iwaz

Under Islamic law, Hiba means gift and iwaz means consideration. Hiba-il-iwaz
thus means, the gift for the consideration already given. Under all the laws, there
is no system where there is a consideration for the gift. But under Muslim law,
there is a system of gift with an exchange.

For example- If A makes a gift of his bungalow in favor of his friend B, and in re-
turn, B makes a gift of his car to A, then it is known as Hiba-il-iwaz. The second gift
made by B to A is iwaz i.e. return.

Requisites of a valid Hiba-il-iwaz:

Firstly, there must be a complete and valid gift made by the donor to the do-
nee. If the gift made is not according to the rule of Muslim law then it is no
gift.

Secondly, there must be a payment consideration made by the donee. In

the case of Khajoorunissa vs Raushan Begam, the facts were that the father
gave one-third of his property to his eldest son in return of Rs.10,000 but
the consideration was never paid. It was held that the quantum of consid-
eration is not important, the only thing important is that the consideration
must be bona fide.
Hiba-ba-Shart-ul-Iwaz

It means a gift made with a stipulation for return. In this case, the consideration is
not paid by the donee by his own choice but it is paid because it is a necessary
condition here.

Requisites of a valid Hiba-ba-Shart-ul-Iwaz:

Firstly, the delivery of possession is important; it is revocable until the iwaz

is paid.

Secondly, as soon as the iwaz is paid it becomes irrevocable.

Thirdly, a transaction when completed by payment of Iwaz, assumes the

character of a sale.

Revocation of gift
Although old traditions show us that the prophet was against the system of revo-
cation of gifts. Today, it can be seen that it is the well-established principle of Mus-
lim law that all the gifts which are made voluntarily can be revoked. The revoca-
tion of the gift of different kinds depends upon the different schools and Shia’s
and Sunni’s. The Muslim lawgiver categorised the types of revocation under two
different types:

Revocation of gifts before the delivery of possession

 Revocation of gifts after the delivery of possession.

Under Muslim law, the revocation of gifts before the delivery of possession is al-
lowed. Suppose A has transferred the property to B by the way of gift-deed. Now,
if A revokes his gift and no delivery of possession has taken place, this revocation
is valid.

One the other hand, declaration of revocation of gifts by the donor after the deliv-
ery of possession is not sufficient to revoke a gift. Until and unless the decree of a
competent court is passed, the donee can use the property in any manner he
wishes to.

When the delivery of possession is not necessary:

There are some cases where the delivery of possession is not necessary. Like, a gift
from one spouse to another, or say guardian to the ward.

Donor and donee living in the same property:

In a case where the subject matter of the gift is a house in which both the donor
and donee are living together, any delivery of possession is not important. But
there must be the bona fide intention of the donor for the transfer of property.
In the case of Humera Bibi v. Najmunnissa, in this case, was an old lady who used
to live with his nephew. She transferred the property to his nephew who was liv-
ing with her in the same house. However, when the property was given on rent,
the rent was collected in the name of the donee. The court held the gift valid.

Gift by the spouses to each other:

Where a gift of immovable property is made by one spouse to the other the deliv-
ery of possession is not mandatory.

In the case of Fatma Bibi v. Abdul Rehman, the husband made an oral declaration
of transfer of property in the name of his wife. The stepson who was living with
the mother challenged the validity of the gift as no delivery of possession was
made. The court held that the gift was valid.

Gift of property already in possession of donee:

In the cases where the possession of the property is already with the donee, only
the declaration by the donor and acceptance by the donee is enough to make this
gift as a valid gift.

For example- If A is having a car and he is using it for his own use and now his fa-
ther transfers it to his name, the declaration by the father and the acceptance by
the son is enough to make this gift as a valid gift.
Conclusion
The concept of gift is a long due process which is coming over from our past. The
term “Hiba” and “gift” have a different meaning when taking into consideration
the transfer of property act, 1882. Hiba is governed according to the Muslim Law.
So as we have discussed in this paper the three conditions of a valid gift that are:

1. Declaration of gift by the donor.

2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and its acceptance by the donee.
There must be a bona fide intention of the donor to transfer the property. The gift
can be revoked by the donor after a decree of revocation has been passed by the
court of law. While concluding we can say that gift is an offer made by the donor
to a person who accepts the offer, known as donee. So, the term “gift” used in
English is generic and should not be confused with that of Muslim law known as
“Hiba”.

......................................................THANK YOU.......................................................