Cocept of Gift (Hiba) under Muslim Law

 

Q. 10 (a). What is a gift (Hiba)? What are the kinds of Hiba? What are the essential conditions of a valid gift under Muslim Law? When can a gift be revoked?

 

Ans. Definition of gift (Hiba).-

The term 'gift' is generic and it is applied to all groups of transfers according to English law. The English term 'gift' is much wider than the Islamic word 'hiba', and the two must not be confused. The word 'Hiba' however, is a narrow and well-defined legal concept, Hiba is the immediate and unqualified transfer of the corpus of the property without any return.

 

According to Durr-al-Mukhtar-Hiba is the transfer of the right of the property in the substance (tamlik-al-ayn) by one person to another without return (iwad).

 

According to Mulla - A hiba or a 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.

A Hiba or gift is "a transfer of property made immediately, without any exchange" by one person to another and accepted by or on behalf of the latter.

Explanation. (1) The person making the gift is called 'donor' and the person in whose favour the gift is made is called the 'donee'.

The donor must be of sound mind and must have attained majority under the provisions of the Indian Majority Act. [i.e., he must have attained the age of 18 years or 21 years where he is under the supervision of the Court of Wards.]

(2) Donee may be any person, whether a major or a minor, male of female, Muslim or non-Muslim, sane or insane. But a gift to a minor or an insane person must be accepted by the guardian of such a person. The donee must be capable of holding property and must be in existence at the time of gift.

(3) Gift is a gratuitous transfer of property, i.e. a transfer of property made without any consideration.

(4) The subject matter of the gift must be in existence at the time of the gift. It is immaterial whether the subject matter of the gift is movable or acquired. immovable, corporeal or incorporeal, ancestral or self

 

(5) It is necessary that the donor must divest himself of all ownership and dominion over the subject of the gift and deliver the possession to the donee.

(6) The word 'immediately' in the definition given above indicates that the gift must be intended to take effect in praesenti.

 

Essentials of a gift

 

(A) According to Asaf A A Fayzee, the essentials of a gift are:

1. Declaration of the gift by the donor (ijab)

2. Acceptance of the gift by the donee (qubul)

 3. Delivery of possession (qabja).

 

(B) According to the leading case Mohammad Abdul Ghani v. Fakhr Jaha Begum, (1922) 49 1A 195, the essentials of a gift are:

 

1. Manifestation of a wish to give on the part of donor.

 2. The acceptance of donee either impliedly or expressly.

3. The taking possession of the subject-matter of the gift by the donee, either actually or constructively.

In Maqbool Alam Khan v. Khuteja Bee, [AIR 1966 SC 1194], the Supreme Court has held that "The three pillars of a valid gift under Mohammedan Law are:

(i)                 Declaration;

(ii)               Acceptance; and

(iii)              Delivery of Possession." It has further held that a gift is not valid without seisin. gifts are valid by tender acceptance, and delivery of seisin (possession). Tender and acceptance are necessary to establish a right of property in the gift because a gift is a contract and tender and acceptance, are requisite in the formation of a contract and seisin is necessary in order to establish a right of property in the gift.

(C) According to Section 122 of the Transfer of Property Act, 1882, the essentials of a gift are

(1) Parties

(2) Subject-matter

(3) Transfer

(4) Acceptance

(5) Absence of consideration

(6) Voluntarily

 

To conclude, there are three essentials of a valid gift.

 

1.      Declaration of gift-There must be a clear and unambiguous intention to make a gift by the donor. When there is no bona fide intention to make a gift, the gift will be void. A gift, that was made with the intention to defraud the creditors of the donor is voidable at the option of the creditors; Sultan Miya v. Ajboo Khatoon Bibi, AIR 1932 Cal 497.

In Qamarunnisa Begum v. Fazal Afsar, [1997 (1) ALT 152], it has been observed that "the declaration of the gift by the donor to the donee may either be in writing or orally or may be gathered from the conduct of the parties, the possession of the gifted, property, the change of patta payment of assessment, mode of enjoyment etc."

 

In Ratanlal v. Md. Navinuddin, [1984 (2) APLJ (SN) 2] it has been observed that "In order that a declaration of gift is established it must be shown that the donor either in the presence of witness or otherwise made a public statement that he gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering such possession as the property is capable of to the donee who accepted the gift."

2.      Acceptance by donee-There should be an acceptance of the gift, express or implied, by or on behalf of the donee. The acceptance may be given at any time subsequent to the gift. A donee may be any person but he or she must be in existence at the time of declaration of the gift. A gift to unborn person is void.

In the absence of evidence of acceptance, the Hiba is incomplete. But the acceptance is not required in the following two cases, viz.

 

i) where the gift is made by a guardian to his ward;

 

ii) where the gift of debt is made to the Debtor.

 

Acceptance (except in the above two cases) is essential in every case, even where the donee is a minor. The proof of acceptance by a minor has to be taken through evidence, having regard to the fact of minority, but it would not mean that the requirement of the fact of acceptance by the minor is not necessary. A minor may refuse to accept the gift or he may accept it when he has attained the age of discretion even if after it has been rejected.

The acceptance may be given at any time subsequent to the gift. The donee may be any person Muslim or non-Muslim, male or female, sane or insane, minor or major, biological or legal person. But he or she must be in existence at the time of declaration of the gift. A gift to an unborn person is void. If a gift is made in favour of living persons and also in favour of unborn persons, it is void only to the extent to which interest is created in favour of unborn persons and is valid to the extent to which it is made in favour of living persons. [Mrs. Khalida Adih Begum v. S.A. Bashirunissa Begum, (1970) II MLJ 98].

3.      Delivery of possession.-

The third and most essential ingredient to validate the hiba under Muslim Law is the delivery of possession of the subject-matter of Hiba. Non-compliance with this condition would render it ineffective, inoperative and void.

 

In the Hidaya ( P .482) it is stated that gifts are rendered valid by tender, acceptance and seisin.

 

The Prophet has said, "A hiba is not valid without seisin." This command of the Prophet is followed by all Sunnis and Shiatis.

There must be the delivery of possession of the subject of the gift from the donor to the donee. In Mohammad v. Fakar Jahan, AIR 1922 PC 281, it has been held by the Privy Council, that under Mohammedan law, it is absolutely essential for a valid gift that there should be a delivery of such possession as the subject of the gift is susceptible of.

 

The real test of the delivery of the possession is whether the donor or donee reaps the benefit. If former is the case, possession is not transferred, and if the latter, it is transferred.

 

Other observations.-(1) Writing is not necessary for the validity of a gift. A gift may be made orally, oral gift is as effectual as a written one.

Registration is not necessary.- The deed of the gift under Mohammedan Law does not require registration even though the subject of the gift may be immovable property. Under Muslim Law, registration is neither necessary nor sufficient to validate a gift. [Mohboob Saheb v. Syed Ismail, AIR 1995 SC 1205].

Delivery of possession.-

A gift of property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels and delivers possession to the donee.

 

Exceptions.-(1) Gift of immovable property by husband to the wife or vice-versa.-Delivery of possession is not necessary, where the gift is made by the husband to the wife or vice versa, provided it can be inferred from the surrounding circumstances that there is real and bona fide intention to make the gift If the husband after making the gift in favour of the wife continues to live in the gifted house and receives the rent thereafter, it will not invalidate the gift because it is presumed that such acts of the husband after the gift are on behalf of his wife and not on his own account. [Ma Mi v. Kallander Ammal, (1926) 54 1 A 23].

No mutation of names is necessary if the deed of gift declares that possession has been transferred and the deed is handed over to the wife and is retained by her.

 

(ii) Gift to minor by a father or other guardian.-Transfer of possession in not required in case of a gift by a father to his minor child or by a guardian to his ward. What in such cases is necessary is to establish a bona fide intention to give.

The guardian referred to in the above paragraph is the guardian of the property of the minor, namely, (i) father, (ii) his executor, (iii) father's father, (iv) executor of father's father,

 

(a) Gift by father (or his executor) to his minor son.-Where the gift is made by father to his minor son, delivery of possession is not necessary, for the father himself is the person to receive possession as the guardian of his son.

 

(b) Gift by a grandfather to his minor grandson, provided the father is dead. In this case also no delivery of possession is necessary as in the absence of a father.

grandfather is authorized to receive property on behalf of the minor grandson as a guardian.

But if a gift is made by a grandfather to his minor grandson when the father is alive and has not been deprived of his rights and power as guardian there must be the delivery of possession by the grandfather to the father as guardian of the minor son, otherwise, the gift is not complete even though the minor and his parents are living with the grandfather. [Musa Miya v. Kadar Bux, (1928) 55 I. A. 171].

 

(iii) Where donor and donee both reside in the subject-matter of the gift.-No physical departure or formal entry is necessary in case of a gift of immovable property in which the donor and donee both reside at the time of gift. In such case, only a clear intention to make gift is enough.

In Humeera Bibi v. Najmunnissa. [(1905) 28 All. 147] a Muslim lady executed a deed of gift of her house in favour of her nephew who was living with her in the same house. The donor never departed from the house physically, nor was the house formally handed over to the donee, but the property was transferred, and the rents were recovered in his name. Held, that the gift was valid, although there was no physical delivery of possession.

(iv) A gift by one co-sharer to another. -A gift of a house by one co-sharer in favour of another co-sharer who is already in possession of the house on behalf of all the co-sharers is valid, there being a constructive transfer of possession.

(v) When the property is in possession of the donee as bailee or trustee or mortgagee,-In such case, the gift may be completed by declaration and acceptance without formal delivery of possession.

(vi) A gift to a minor or lunatic by a person other than his father or guardian.-In such case the gift may be completed by the delivery of possession to the father or guardian. [S. N. Usman ACDB v. Kubondha Bai, AIR 1973 Mad 280.]

(vii) When the property is in the occupation of tenant.-A gift of immovable property, which is in the occupation of tenants, may be completed in the following circumstances only:

(i) by a request to the tenants by the donor to attorn to the donee, or

(ii) by delivery of the title deed, or

(iii) by mutation in the Revenue Register,

(viii) Gift of a property held in adverse possession by another. Where the subject-matter of the gift is in the possession of a person holding the property adversely to the donor the gift is not valid, unless the donor either recovers possession and puts the donee in possession or does everything possible in order to enable the donee to obtain possession.

 

Where the property is in the adverse possession, there must be some 'overt act', on the part of the donor to indicate his intention of parting with the possession. If, apart from making a declaration, the donor does nothing else, the gift is invalid.

(ix) A gift of which physical possession is impossible.-Where the subject-matter of a gift consists of shares in Zamindari, villages and parcels of land in the case of which physical possession is impossible, the gift may be completed by Mutation of names and transfer of rent and income arising out of the property. Delivery of actual possession is not necessary

Effect of the Transfer of Property Act.-Section 129 of the Transfer of Property Act reads as "Nothing in this Chapter (of gift). ...shall be deemed to affect any rule of Mohammedan Law".

As Mohammedan Law of gift is not affected by the Transfer of Property Act, a Mohammedan may make valid gift without a registered instrument provided he gives delivery of possession inasmuch a delivery is an essential condition of valid gift under Muslim Law, and conversely, mere execution and registration of a deed (which is essential in Transfer of Property Act) will not validate Mohammedan gift unaccompanied by the delivery of possession. In other words for the purpose of making a gift of immovable property, under the Transfer of Property Act, registration is essential, not delivery (Section 123 of the T.P. Act), while under the Muslim Law delivery, no registration, is essential.

 

Illustration

 

A executes a deed of gift of his house in favour of B. The deed is duly registered but possession is not delivered to B. The gift is incomplete and therefore void.

.

Revocation of Gift

According to Ameer Ali, a gift once completed can only be revoked by the intervention of the court of law or by consent of donee. A mere declaration by or on the part of the donor is not enough.

A. When can a gift be revoked ?

(i) Before delivery of possession. A gift may be revoked by the donor at any time before delivery of possession The reason is that before delivery there in no complete gift at all.

Every gift can be revoked under Muslim law, if the delivery of possession of the gift property has not been given to the donee. The reason is that under Muslim law, a gift is not complete till delivery of possession is made. Therefore, the revocation of such gift merely means that the donor has changed his mind and he does not want to complete it by the delivery of possession. The order of a court is not necessary for such revocation. Asaf A A Fyzee in this connection said that in such cases, a gift becomes inchoate gift and it is not proper to apply the term 'revocation' to such gifts.

 

(ii) After delivery of possession.-After the delivery of possession certain kinds of gift (given below in B) cannot be revoked while others can be revoked under the decree of the Court.

A gift cannot easily be revoked after the delivery of possession to donee. Once the possession of a gift-property has been given to donee by a donor such gift cannot subsequently be revoked merely by (a) declaration of revocation, or (b) instituting a suit, or (c) by any other action. It is possible only when the decree of a court is passed. Discussing the right of donee in such circumstances, it has been held in Mahboob v. Abdul, AIR 1964 Raj 250, that till a decree of the court is passed for revoking the gift, the donee is entitled to use the property in any manner. He can also alienate it. It seems that; (a) a gift can be revoked after delivery of possession if donee gives consent for the same, or (b) revocation can be done by a decree of the court. Since the gift is given by donor, the right of its vacation confines within him only being his personal right, heirs of a donor afterwards or at any time cannot revoke it.

 

B. Gift when cannot be revoked.- The following are the circumstances under which a gift is irrevocable:

1. When the donor is dead. It is only a donor who can revoke a gift. If he dies without revocation, his heir cannot do so.

2. When the donee is dead.

3. When the donee is related to the donor within the prohibited degree e.g. a gift in favour of a sister or son in-law.

4. When the gift is made by the husband to his wife or vice versa.

5. When the thing given

 

(i) has been transferred by the donee by sale, gift or otherwise;

 

(ii) when the thing given is lost or destroyed;

(iii) the thing given has been changed in substance in the possession of the donee and cannot be identified, e.g., when wheat is converted into flour or when timber is converted into furniture;

(iv) the thing given has increased in value whatever be the cause of the increase.

6. When the donor has received something in exchange (iwaz) for the gift.

7. When the gift in Sadaqa (religious gift).

Kinds of Hiba

 

The Hiba is classified under the following heads:

 

i) Pure and simple hiba (donatio inter vivos)

 

ii) A hiba-bil-Iwaz

 

iii) A hiba-ba-shart-ul-Iwaz.

 

A hiba, pure and simple is an absolute gift of property which is unqualified and  transferor does not receive of any consideration.

 

A hiba-bil-Iwaz is a grant or gift for a consideration which is more in the nature of an exchange than a gift; and

 

A hiba-ba-shart-ul-Iwaz is a grant mode on the condition that the donee or transferee should pay to the donor at some future time or periodically some determinate thing in return for the grant.

'GIFT' AND 'HIBA-BIL-IWAJ

 

Hiba----A hiba or 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. There is no consideration for hibu Delivery of possession is essential. It is revocable in certain cases. A valid gift cannot be made of property which is capable of division.

 

Hiba bil-iwaz---Hiba-bil-iwaz is a gift for consideration. It has almost all the incidents of a contract of sale. Hiba-bil-iwaz, as per Asaf A A Fyzee has two separate parts; i...

 (a) hiba (original gift by the donor to the donee) and

 (b) an iwaz (return gift by the donee to the donor). In short, the hiba bil-iwaz means a gift with return. Therefore, when both Le, hiba (gift) and inuz (return) 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. The law requires the completion of all the formalities of a valid hiba in such transaction. In Rohini Bukhish v. Muhammad Hassan, (1888) 11 All 1 (5), it has been held by the court that the fundamental conception of hiba-bil-iwaz in Mohammedan law is that it is a transaction made of two separate acts of the donation ie it is a transaction made up of mutual or reciprocal gifts between two persons, each of whom is alternatively the donor of one gift and the donee of the other. The matter was described by Bailee in these words, "The transaction which goes by the name of hiba bil-az in India is therefore in reality not a proper hiba-bil-iwaz of either kind but a sale and has all incidents of the latter contract. There are two conditions for a valid 'hiba-bil-iwaz

 

(1) actual payment of consideration iwaz on the part of donee; and

(2) bona fide intention on the part of donor to divest himself in present of the property and to confer it upon donee.

 

Therefore, the absence of consideration is not necessary in such hiba but the amount, whatever it is, must be actually and bona fidely paid.

 

In India, the High Courts of Calcutta, Madras, Allahabad and Patna have held such transactions as sale. Therefore, if the property is immovable and of worth more than Rs. 100, it should be effected by a registered instrument. It is an essential requirement of section 54 of the Transfer of Property Act. 1882, which relates to sale.

 

Hiba-ba-shart-ul-Iwaz---- When a gift (hiba) is made by some one with a stipulation (shart) for return (az), such transaction is called hiba-ba-shart-ul-iwaz [Ameer Ali]. In hiba-ba-shart-ul-iwaz a gift is not followed by a voluntary return but it is made with stipulation. Tyabji said that in such hiba the two (gift and return) go hand-in-hand, not one before the other and the return is in completion by both parties. He said that the kind of property that can also be given by way of return gift (iwaz) and the return gift must be made with all the formalities necessary for a hiba. Once, hiba-ba-shari-ul-iwaz is completed, by delivery of possession, neither of the party to it can; afterwards, revoke it.

 

For example, A made gift of his house to B and put him in possession, B then gives a horse in an oz and A accepted it. After sometime A purports to sell the house to someone. Such shart-ul-iwaz will not be effective because gift with condition of return completed cannot be revoked in any circumstances. Hiba-ba-shart-ul-iwaz is also subject to the right of pre-emption .

 A sadaqah is a gift made with the object of acquiring religious merit. Like hiba, it is not valid unless accompanied by delivery of possession; nor it is valid if it consists of an undivided share in capable of division. But unlike hiba, a sadaqah, once completed by delivery, is not revocable; nor it is invalid if made to two or more persons all of whom are poor.

The distinction between hiba and sadaqah lies in the object with which it is made. In the case of hiba the object is to manifest affection towards the donee, or to win his regard or esteem; in the case of sadaqah, the object is "to acquire merit in the right of the Lord." A gift of property even to the rich would be a sadaqah if made with the object of acquiring religious merit.

 

 

Sadaqah and wakf are two different concepts. In a sadaqah, the corpus of the gift may be consumed but in a wakf only the usufruct can be used. A sadaqah is not complete without delivery of possession but a wakf can be completed by a declaration only; Nabi Hassan v. Gajadhar Singh, AIR 1974 Pat 141.

 

Marz-ul-Maut (Death Bed Gift)

Meaning of Marz-ul-Maut or Death illness

 

'Marz-ul-maut' means 'the disease which causes death' or it creates a proximate danger in the mind of ailing person of apprehension of death and he believes that death is approaching. But during such illness if death is caused by any other cause, the consequences will be the same as of death-illness.

According to Hedaya [684, 685] a marz-ul-maut is a malady which induces an apprehension of death in the persons suffering from it, and which eventually results in his death.

 Gift or HIBA literally means donation of a thing from which donee may derive a benefit. It is the conferring of property without consideration. During the life time of a Mohammdan he can make gift of all or any part of his property but his right to do so by way of will or while on the death bed is subject to some restrictions.

 

Death Bed Illness (MARZULMAUT); When a person is suffering from 'Marz' (Illness) and is under the apprehension of his 'Maut' (death) he is said to be suffering from 'MarzulMaut'. In Safia Begum v. Abdul Rayaz, AIR 1945 Bom. 538, it was held that crucial test of 'MarzulMaut, is the subjective appre hension of death in the mind of the donor i.e. apprehension derived from his own consciousness as distinguished from the apprehension caused in the mind by others of other symptoms or physical incapacities are only indications but infallible signs of 'MarzulMaut'.

 

Essentials of Death bed Gift; A gift that is made during death illness is

 

A gift that is made during death illness is called a death bed gift and it subject to certain restrictions. Death bed illness gift transaction essentially and basically being gift must satisfy all the formalities that are essential for making gift which are:

(a) Declaration of gift by donor

 (b) acceptance of gift and

 (c) delivery of subject matter of gift from donor to donee. It is important to point out that death bed gift is operative as such after the donor's death.

 

In Mumtaz Ahmad v. Wasiunnesa, AIR 1948 Oudh. 301., it was held that doctrine of Marzulmaut applies to cases where the gift is made under pressure of sense of imminence of death.

 

Though a Muslim has unlimited power to dispose of his property by way of gift but donor's power to dispose of his property by gift during death illness is subject to following restriction:

 

(i) Gift to non-heir - He cannot make gift of more than 1/3 of his property in favour of non-heir unless the other heirs give consent to the excess taking effect.

 

(ii) Gift to an heir The gift to an heir made during death illness is altogether invalid unless the other heirs consent to it.

 

(iv)             A gift made during death illness is subject to all conditions and for malities necessary to constitute a gift inter vivos so there must be declaration, acceptance and actual or constructive delivery of possession.

 

 Gift in favour of an unborn person. –

 Gift in favour of an unborn person is void. But a father can lawfully made gift in respect of his minor son. This principle was again repeated by Gujarat High Court in Ibrahim Shah Mohammad v. Noor Ahmad Noor Mohammad, AIR 1984 Guj. 126. In this case the Court held that a father can lawfully make a gift to his minor son. In the present case the boy's grandfather, next entitled after the father to be the legal guardian of the minor's property was still alive. The court held that even though under the Muslim law, the mother is not the natural guardian of the property of her minor son. When the father and grandfather are both alive, she had the capacity, with the consent of the legal guardian to take symbolic possession of the property on behalf of the minor.

 

 Gift by a mother to an infant child without delivery of possession

 The general rule that the donor must physically depart and that the donee must formally enter has certain exceptions and the gift by a mother to an infant child without delivery of possession is one of the exception. No transfer of possession is required in case of gift by father to his minor or lunatic child or by a guardian to his ward. It was observed by the Court in a case that parting of possession is not necessary when father makes gift of the dwelling house to his sons and donor and the donees are residing therein. Where a Muslim gifts certain funds to his minor daughter and grand daughters, and not only make book entries in the account books to that effect but also makes a clear and unequivocal declaration of divesting himself of all interests in the funds in favour of donee and recognising the interests of donee in the funds, there is such relinquishment of ownership and domain to constitute a valid transfer of possession.

 

In Mohammad Hesabuddin v. Mohammad Hesaruddin, the donee was main taining and looking after the donor. The other children of the donor were neglecting her. The gift was made from a mother to a son and it was based on love and affection. The donce was in possession of the land and got his name mutated in the revenue records with respect to the land. The Gauhati High Court made the following observations:

 

It cannot be taken as a sine qua non in all cases that wherever there is a writing about a Mohammedan gift of immovable property, there must be registration thereof. The facts and circumstances of each case have to be taken into consideration before finding whether the writing requires registration or not. In every case, the intention of the donor, background of the alleged gift, and the relation of the donor and the donee as well as the purpose or motive of the gift all have to be taken into consideration.

 

However, the mother is not in law the guardian of the property of her infant child; therefore, a gift by a mother to her infant child does require transfer of possession from her to the child's father, and if the father be dead, to his executor, and if there be no executor, to the child's father's father, and if he be dead, to his executor. But if there be none of these, no change of possession is necessary in the case of a gift by a mother to her infant child, or in the case of a gift by any other person to a minor under his care. Where delivery and possession of a gift to a minor is effected to a person specified by the donor as guardian (other than the father) and the father accepts, or acquiesces in, such an arrange ment, the gift is valid.