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Quest. Define Gift/Hiba. What are the three essentials of Gift? Who can give gift? What are the kinds of, Gift? State the circumstances in which delivery of possession of immovable property is not required in, making a gift. What gifts are void? What is Mushaa? Explain with illustration. What is the difference, between Hiba Bil Iwaz and Hiba Ba Shart ul Iwaz?, Ans: - Introduction, 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., Under English laws, right in property is classified by a division on the basis of immoveable and moveable (real, and personal) property. Rights in 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 or use of the same, Under Hindu Law, 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. But however Mitakshara school of hindu law considers acceptance as an important, ingredient for gift. The donor can divest his interest by renunciation but cannot impose the same on the donee if, he is not ready to accept, "Gift is a transfer of property made immediately without any exchange by one person to the other & accepted, .Mulla, by or on behalf.", "Gift is the transfer of certain existing movable or immovable property made voluntarily & without, consideration by one person called the donor to another called the done and accepted by or on behalf of the, .S.122 T.P Act 1882, donee", Under Muslim Law, the religion of the person to whom gift is made is not relevant. In India, there is a separate, statute that governs the matters related to transfer of property. The Transfer of Property Act, 1882 under, 32, 1
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Chapter VII talks about gifts and the procedure for making the same. Yet as per section 129 of the Act, the, Transfer of Property Act, 1882 does not apply to the Muslims making gift., 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); and The term 'hiba' and 'gift' are often indiscriminately used but the term hiba is only, one of the kinds of transactions which are covered by the general term 'gift'. The other types of gifts include, Ariya (Tamlik al manafe), where only usufruct is transferred and Sadqah where the gift is made by the muslim, with the object of acquiring religious merit., A Man may lawfully make a gift of his property to another during his lifetime; or he may give it away to, someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary, disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered, as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a, man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by, will., 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, Since muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance, (gabul), and transfer (qabza). In Smt Hussenabi v Husensab Hasan[vii, a grandfather made an offer of 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, 33, 2
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or by written means. Under Muslim law, writing and registrations are not necessary. In the famous case, Muslim Law (K-3001), present in the case of the major grandchild, the gift was not yalid, It was valid in regards to the minor, grandchildren., Thus, the following are the essentials of a valid gift-, 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 gint., A declaration can be oral or written. The donor may declare the gift of any kind of property eithner orany, of llahi Samsuddin v. Jaitunbi Maqbul it was held that under Muslim Law, declaration as well as, acceptance of 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. Hesaruddin, where the gift was, made by a Muslim Woman and was not written on a stamp paper, Guahati 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 Mian, it was held that while 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, subject of gift. His intention should be in express and clear words. According to Macnaghten, "A gift cannot be, implie. It must be express and unequivocal, and the intention of 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., 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. Child in the mother's womb is a competent done provided it is born alive, within 6 months from the date of declaration. Juristic person are 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 mentioned, under the provisions of Muslim law can accept that gift. These include:, 3
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Muslim Law (K-3001), Father, Father's Executor, Paternal Grand-Father, Paternal Grand Father's Executor., 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, 1. 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. A, 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. However, in such cases if it, 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., 2. 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., Constitutional Validity of Hiba, 35, 4
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Muslim Law (K-3001), The question of whether the first exemption was constitutionally valid in regards to the right to equality (articie, 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:, (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; and,, (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 favor 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 as:, "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.
