The Law of Hiba in Muslim Jurisprudence: Essentials and the validity of Hiba

 

Written By: Nadira Islam, A second year law student, UITS

When a Muslim transfers his property through gift, without consideration made gratuitously, the transfer is known as Hiba.[1] According to Hidayat, “Hiba is an unconditional transfer of an ownership in an existing property made immediately and without consideration”.[2] Hon’ble High Court of Kerela speaking through Hon'ble MR. Justice P. BHAVADASAN in the case of Salekath Beevi v. Mumthas Beevi [3] stated, “Hiba is an immediate and unconditional transfer of the corpus of the property without any return.

One of the most eminent definition of Hiba recognised in India is given by Mulla, “A Hiba 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”.[4]

Essential elements of a valid gift

A gift by a Mohammedan must comply with the provisions of Mohammedan law.[5] There are three conditions that need to be fulfilled for a Hiba to be valid. These are as follows–

1. A declaration of gift (Ijab) by the donor
2. Acceptance of the gift (Qubool) by the donee
3. Delivery of possession by the donor and taking of possession by the donee (Qabza)

Hon’ble High Court of Kerela in the case of P. Kunhimma Umma v. Aaisha Umma observed that the foresaid requirements must be completed to make Hiba complete.[6]

1.     Declaration by the Donor

A declaration by the donor with the intention to transfer the subject matter of the gift to the donee in present is an essential formality of gift.[7] In the case of State of U. P. v. Sayed Abdul Jalil, court held that “the declaration is one of the major formalities that have to be fulfilled for a gift to be termed as valid”.[8] Declaration must be express and it must be unambiguous. Implied declarations are not valid. Also, there must be free consent and bona-fide intention.[9] In the case of Sultan Miya vs Ajibakhatoon Bibi,[10] it was held that “the intention must not be ruined with a mala-fide intent to defraud rather it must be real and bonafide.” Further, in the case of Ilahi Samsuddin v Jaitunbi Maqbul,[11] the court held that “under Muslim Law, the declaration and acceptance of gifts are often oral, regardless of the nature of the gift.”

2.     Acceptance by the Donee

In Muslim law, the initial bilateral phrase uttered is "Qabul hai" signifying acceptance.[12] The gift under Muslim Law becomes valid only when the donee accepts it. The gift is considered void if the donee does not accept his acceptance.[13] Such acceptance may either express or implied.[14] Age, sex or religion are no bar on acceptance of Hiba. Transfer to non-muslims is also valid. Donee must be in existence at the time of Hiba. He must exist as a living person.

If a minor is gifted, he may be gifted but only on the consent of legal guardian.[15] In the case of Musa Miya v. Kadar Bux, it was held that “if the father is alive and is the sole legal guardian of the minor, only he can act as a guardian of the property of the minor son, and without his acceptance, the gift would not be valid”.[16] Also in the case of Ghulam Hussain Kututubuddin Maner v. Abdul Rashid Abdulrajak Maner, it was held that “if the gift is accepted by the mother, then also it is considered to be invalid and incomplete”.[17]

So, there are specifically authorized people who can accept the gift on behalf of a minor or insane person. These authorized people include the father, father’s executor, paternal grandfather, and paternal grandfather’s executor.[18]

3.     Delivery of possession

A crucial aspect of a valid gift is the physical delivery of possession by the donor and the acceptance of possession by the donee. In Muslim law, possession means having control and benefiting from property.[19] Such delivery of possession could be either “actual” or “constructive” and the gift becomes valid only after the delivery of possession of it.[20]

Hon’ble court in Maqbool Alam Khan vs Mst. Khodaija & Ors held that writing is not necessary for a valid gift inter vivos (i.e., among living persons) among Muslims, but there must be delivery of possession according to the nature of the property given.[21] However, delivery is not necessary in the following cases –

1. Where the donor and donee reside in the same house;
2. Where the gift is from the husband to the wife or vice-versa;
3. Where the father or mother makes a gift to a child;
4. Where the guardian makes a gift to the ward;
5. Where the subject of the gift is in possession of the done at the time of making the gift.[22]

When all this elements of a gift will remain absent, that gift won’t be fall under the category of a gift.

Void gifts: Gifts that cannot be validly made.

  i.         Gift to unborn person

ii.         Gift to Future

iii.         Gift with a condition

iv.         Contingent gift

v.         Gift of Mushaa

  i.         Gift to unborn person

Imam Sulaiman Al-Jamal, said: "It is a voluntary transfer of ownership during life," implies the impossibility of a gift to a fetus, and this is clear because it is not possible to transfer ownership to it, nor can the guardian take possession on its behalf due to its non-existence' [Hashiyat Al-Jamal 'Ala Sharh Al-Manhaj/Vol.3/P.594]. In addition, Al-Imam Shaykh Zada Al-Hanafi, says: "And a gift to it, meaning to a fetus, is not valid because acceptance is a condition for a gift, and this cannot be conceived from a fetus, nor does anyone have guardianship over it to take possession on its behalf." [Majma' Al-Anhur/Vol.2/P.693].[23] Hence, a gift to an unborn person is considered void. 

ii.         Gift to Future

A gift cannot be made so as to take effect at any future time, whether such time is definite or indefinite.[24] For a gift to be valid in Muslim law, there must be an immediate transfer of property; any intention for the gift to take effect in the future renders it void.[25]

iii.         Gift with a condition

A true gift is given without expecting anything in return. If a return is stipulated, then the return is treated as a sale item. When a gift is made subject to a condition, it is void. ^[26] [27] A gift must always be unconditional. If a gift is made subject to a condition which hampers in the way of full ownership of the gifted property, the gift is valid, but the condition is void.[28]

iv.         Contingent gift

A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a male heir is void.[29] One of the features of a contingent interest is that if a person dies before the contingency disappears and before the vesting occurs, the heirs of such a person do not get the benefit of the gift.[30]

v.   Gift of Mushaa

The term Mushaa comes from the Arabic word ‘saayu’, meaning an “undivided share” in a property. It applies to situations where the property being gifted is not divided into distinct parts, and the gift involves an undivided share in that property. The Doctrine of Mushaa applies when a gift is made of an undivided share of a divisible property. However, the application of this doctrine varies depending on whether the property in question is divisible or indivisible.[31]

·       Divisible Property: If the property is divisible, the gift of an undivided share is permissible only if a partition has taken place before the gift is made.[32]

·       Indivisible Property: On the other hand, if the property is indivisible, the Doctrine of Mushaa does not apply. The gift of an undivided share in indivisible property is considered valid. In such cases, the property can be used in its current undivided state, and the recipient’s rights are recognised despite the lack of partition.[33]