HIBA

1. HIBA: A GIFT DEED

2. Introduction
• 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]

3. 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
donee, 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]

4. Capacity to make a Hiba
1. 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.

5. • 2. 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]

6. 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.

7. 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.

8. Donee
• 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.

9. 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]

10. 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.

11. 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 contingency. 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.

12. 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.

13. Modes of Revocation
• Revocation of gifts before the delivery of
possession
• Revocation of gifts after the delivery of
possession

14. 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.

15. 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)