Aishah (R.A) reported: “Give gifts to one another, for gifts take away rancour.”
According to Hedaya: “Hiba in its literal sense signifies the donation of a thing from which the donee may derive a benefit. In the language of law, Hiba means the transfer of property made immediately and without any exchange.”
There are several variations of Hiba. For example: i. Hiba bil Iwaz ii. Hiba ba Shart ul Iwaz (conditional gift) iii. Sadqah iv. Ariyat
The intended property to be given in gift must be recognized as mal; it must exist at the time when the gift is made. The subject matter of the gift must be certain existing movable or immovable property. It may be land, goods, or actionable claims. It must be transferable.
Muslim law views the law of gift as a part of contract law without consideration. Therefore, there must be an offer (ijab), an acceptance (qabul), and transfer of possession (qabza).
1. DECLARATION BY THE DONOR (OFFER)
There must be a clear and unambiguous intention of the donor to make a gift. Such declaration can be oral or in writing.
i. Donor's powers are unrestricted in Muslim law:
a) Disposition inter vivos: A person may lawfully make a gift of his property during his lifetime. This right is unrestricted in terms of the quantum.
b) Testamentary disposition: A person may also give property by will after death. Muslim law permits both forms, but testamentary gifts are limited to one-third of the net estate.
ii. Capacity of the Donor: a) Must have attained the age of majority b) Must be a Muslim c) Must be of sound mind and understand the transaction d) Must be free from fraud, coercion, or undue influence e) Must have ownership over the property to be gifted
iii. Extent of Donor’s Right to Gift: Generally, the donor’s right to gift is unrestricted, and the donor may gift any part or all of his property, even if it adversely affects expectant heirs.
Exception – Marz ul Maut (Deathbed Illness): A person on their deathbed cannot gift more than one-third of their property and cannot gift it to any of their legal heirs.
iv. Conditions for Donee (Who Can Receive a Gift):
Any person capable of holding property, including: a) Juristic Person: A legal entity may receive a gift. b) Non-Muslim: A Muslim may lawfully gift to a non-Muslim. c) Minor or Lunatic: Gift must be accepted by their legal guardian. d) Unborn Child: A gift to an unborn person is void unless the child is born within six months of the gift.
However, a gift of future usufructs is valid if the donee exists when the interest opens. A Hiba or Aria in favour of a child in the womb is valid if the child is born within six months, as it is presumed the child existed in the mother’s womb.
Acceptance may be express or implied through conduct. Acceptance is unnecessary where the gift is made by a guardian to his ward.
A gift can be made to a child en ventre sa mere (in the womb) and accepted on their behalf. Even for a registered gift, it must be accepted by or on behalf of the donee.
Delivery of possession is essential to the validity of a gift. It may be actual or constructive. Under Muslim law, it is not necessary for physical delivery—possession means the type the property is capable of being given.
The donor must be aware of the nature and consequence of the transaction, and the consent must be free from pressure or undue influence.
A Hiba is an absolute transfer of a determinate thing or incorporeal right; such a thing or right must exist and be transferable immediately.
A gift involves no monetary consideration. This distinguishes it from sales, grants, or exchanges. A gift may be motivated by love, affection, or spiritual reasons.
1. UNDER TRANSFER OF PROPERTY ACT (T.P. Act), Section 126
A gift may be revoked: I. By mutual agreement on the happening of a specified event not dependent on the donor’s will. II. If the condition is illegal, immoral, or repugnant to the estate. The condition must exist at the time of acceptance and be lawful.
2. UNDER MUSLIM LAW
A Muslim may revoke a gift after delivery of possession, except in the following cases:
Between spouses
Between relatives within prohibited degrees
When the gift is Sadqah
If the donor or donee has died
If the property is lost, destroyed, or transferred
If the gift has increased in value
If the gift has changed beyond recognition
If consideration was received
In Shia law, revocation can be by declaration. In Sunni law, revocation requires court intervention or donee’s consent.
An oral gift of immovable property is not valid under Section 123 of the T.P. Act without a written instrument. However, under Islamic law, oral gifts are permissible if:
The donor fully relinquishes ownership.
The donee proves offer, acceptance, and delivery of possession.
The following gifts are void:
Gift to unborn person (unless born within six months).
Gift of future property.
Contingent gifts dependent on future uncertain events.
A gift must be unconditional. If a condition obstructs the gift's completeness, the gift remains valid but the condition becomes void. For example:
“A gifts B his house on the condition that B will not sell it”—the condition is void; the gift is valid.
Assignment or nomination of insurance policy by a Muslim to a spouse or others is valid under Section 38 of the Insurance Act, 1938.
The concept of gift in property law, particularly under Muslim law (Hiba), is distinct from the definition in the Transfer of Property Act. Hiba is simple and informal, while the statutory process of gifting under general law is procedural and rigid. The word gift in English law is generic and must not be confused with the technical term Hiba in Islamic jurisprudence.
A gift is an immediate transfer of property without consideration, whereas a will is dependent on the death of the testator. Islamic law treats the two differently, each governed by distinct rules and limitations.
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