Gift/Hiba under Muslim Law – Definition and nature, elements, subject-matter and revocation

In this article we have discussed about the concept of Gift/Hiba under Muslim Law including its meaning, elements, subject matter and revocation of gift.

 

Definition and nature

 

GIFT 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 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.

 

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 Asaf A A Fayzee - A man may lawfully make a gift of his property to another during his life time or he may give it to someone after his death by will.

 

According to section 122 of Transfer of Property Act, 1882.-"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without any consideration, by one person called "Donor" to another called the "Donee" and accepted by or on behalf of the donee.

 

Essential elements 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.

(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.

 

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.

 

3. Delivery of possession - There must be 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 the 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.

 

Gift and Hiba

 

Hiba does not mean the same as 'simple gift. Gift is a wide term, applicable to all transfers without consideration: hiba is much narrower. The connotation of hiba includes within its scope only transfers (without consideration) of the full ownership of determinate objects of the ayn. Hence, once a person makes a hiba, the property passes out of his control, he cannot exercise any further control over it. He cannot lay down how property, which he has placed beyond his own control, shall be utilized. He cannot provide for a succession of transfer commencing with a hiba because by the first transfer he parts with all his power and control over the subject of transfer. From this, it does not follow that in no way can interest limited in duration, be created. Subject to what is stated below such interest can, under the principles of Muslim law, be created by grants of the usufruct for successive periods under a grant of the usufruct for life, the same rights may be given to the grantee as are enjoyed by a life tenant.

 

Subject-Matter of Gift

 

The Mohammedan law does not make any distinction between above mentioned properties. Anything over which dominion or the right of property may be exercised, or anything which can be reduced into possession or which exists as a specific entity or as an enforceable right, may form the subject of a gift. Thus, actionable claims and incorporeal rights may form the subject of gifts equally with corporeal property. A gift as distinguished from a will, may be made of the whole of the donor's property.

 

Revocability 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.

 

The revocation of gift can be

 

(a) before delivery of possession,

 

(b) after delivery of possession.

 

Revocation of gift before delivery of possession

 

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.

 

Revocation of gift after delivery of possession

 

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.

 

The difference between Sunni law and Shia law in respect of revocation of gifts are as follows: -

 

 

1. In Sunni Law Gift between husband and wife is irrevocable. Whereas in Shia Law Gift between husband and wife is according to the better opinion revocable.

 

2. In Sunni Law A gift must be revoked by the consent of the donee or the decree of a court. Whereas in Shia Law A gift can be revoked by a mere declaration on the part of the donor and without a decree.

 

In conclusion, Gift/Hiba under Muslim law is a unique and flexible form of property transfer governed by clear yet humane principles. It integrates personal wishes with religious duties, ensures fairness, and provides a legal mechanism for Muslims to share wealth within and beyond their community.​