In Muslim law, gifts are called “hiba”. The gifts in India are governed by Transfer of Property Act, 1872. However, the provision of Transfer of Property Act, 1872 does not apply to Muslim law. The English term, ‘gift’ is of a wider connotation and applies to all transactions where one transfer’s one’s property to another without any consideration. The term hiba has a narrow meaning.
According to Ameer Ali, “A hiba is a voluntary gift without consideration of property or the substance of thing by one person to another so as to constitute the done the proprietor of the subject-matter of the gift.” 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. [Abdul vs. Ahmed, (1881) 8 IA 25]
Essentials of a Hiba
According to Ameer Ali, a hiba will be valid if the following conditions are fulfilled:-
- The manifestation of the wish to give on the part of the donor,
- Acceptance of the gift, express or implied, by the done, and
- Taking of possession of the subject-matter of the gift by the donee, either actually or constructively. [Jamela vs. Abdul Rahman, 2001 Guj. 175]
Capacity to make a Hiba
Mental capacity – Every Muslim, male or female, married or unmarried, who has attained the age of majority and who is of sound mind has the mental capacity to make a gift. The rule of Muslim law of majority, i.e. attainment of puberty, does not apply to gifts. A person of unsound mind can make a valid gift during lucid intervals. The Muslim law-givers recognize the doctrine of ikrash or compulsion, and a gift-deed executed under compulsion is not valid. In such a case the gift is voidable, and it can be avoided by the donor whose consent was so obtained.
Financial capacity – The Malikis hold the view that a person under insolvent circumstances or extremely involved circumstances have no capacity to make a gift. On the other hand, the Hanafis hold the view that insolvency does not create an incapacity to make a gift, but the kazi has the power to render such gift nugatory if it is made with a view to defrauding the creditors. The Indians court follow the Hanafi view. In every gift, there must be a bona fide intention on the part of the donor to transfer property to the donee. And, if a gift is made with an intention to defraud the creditors, the gift I invalid. [Abdul vs. Mir Md, (1886) 11 IA 10]
Subject-matter of Gift
All forms of property over which dominion could be exercised, or anything which could be taken into possession, or which could exist as a specific entity, or as an enforceable right, maybe the subject-matter of a valid gift. Muslim law, in this context, makes no distinction between ancestral or self-acquired or between movable and immovable property.
Gift of Musha
The word “musha” means an undivided share or part of a property, movable or immovable. Among the Shafis and Ithana Asharis, the gift of musha is valid, if the donor withdraws his dominion and allows the donee to exercise control. [Sadiq vs. Hashim, (1916) 43 IA 212]
But the rule is otherwise among the Hanafis. The general rule is thus laid down in the Hedaya, “A gift of a part of a thing which is capable of a division is not valid unless the said part is divided off and separated from the property of the donor, but a gift of an indivisible thing is valid.”
The doctrine of musha has been subject to much criticism. It has been said that the doctrine is “wholly unadapted to a progressive society”. [Sheikh Md. vs. Zabeda, (1889) 16 IA 205] The doctrine has been confined to within the strictest rules by judicial interpretation and has been cut-down considerably.
Under the Muslim law, a gift may be made to any person without any distinction of age, sex or religion. Under the Hanafi law, the donee must be must be legally in existence at the time of hiba. Thus, a gift to an unborn person, one not in existence, either actually or presumably, is invalid. Under the Shia law, a gift to an unborn person can be validly made provided the gift commences with a person in existence.
Formalities: Delivery of Possession
Under Muslim law, a gift may be made orally or in writing, irrespective of the fact whether the property is movable or immovable. [Ibrahim vs. Noor Ahmed, 1984 Guj. 126] The only formality that is essential for the validity of a Muslim gift is “taking a possession of the subject-matter of gift by the done either actually or constructively”. [Mohammed vs. Fakr, (1922) 49 IA 195]
Who can Challenge a Hiba or Gift
A stranger cannot challenge the validity of a gift on the ground that the gift is bad as no delivery of possession has been made. A gift on this ground can be challenged only when the issue is raised between the donor or those claiming under him on one side and the done and those claiming under him on the other.
Conditional or Contingent Hiba or Gifts
The contingent or conditional gifts are those which are made dependent for their operation upon the occurrence of a consistency. A contingency is a possibility, a chance, an event, which may or may not happen. In Muslim law, contingent or conditional gifts are void.
In Muslim law, a gift is not rendered invalid, by involving an invalid condition. Hanafi law clearly lays down that in such a case the gift is valid and the condition is valid.
Under Shia law, if the conditions attached to a gift is subsidiary, then both the gift and the condition are valid.
Revocation of Gifts
Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a well-established rule of Muslim law that all voluntary transactions, including gifts, are revocable.
Modes of Revocation
- Revocation of gifts before the delivery of possession
- Revocation of gifts after the delivery of possession
Revocation of gifts before the delivery of possession
Under Muslim law, all gifts are revocable before the delivery of possession is given to the done. The fact of the matter is that under Muslim law no gift is complete till the delivery of possession is made, and therefore, in all those cases where possession has not been transferred, the gift is incomplete. The revocation of such a gift, therefore, merely means that the donor has changed his mind and does not want to complete it by the delivery of possession.
Revocation of gifts after the delivery of possession
Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient to revoke a gift. Until a decree of the court is passed revoking the gift, the donee is entitled to use the property in any manner, he can also alienate it. [Mahboob vs. Abdul, 1964 Raj 250]
The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his heirs after his death. A gift can also not be revoked after the death of the donee. (There are some exceptions in Hanafi School)A
- Aqil Ahmad, Mohammedan Law, 23rd Edition
- Dr. Paras Diwan, Muslim law in Modern India, 12th Edition
- M. Hidayatullah, Mulla Principle of Mohammedan Law, 19th Edition
- SCC Online
- Supreme Court Words and Phrases, 3rd Edition, Eastern Book Company