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A STUDY ON

GIFTS UNDER MUSLIM LAW

SUBJECT
FAMILY LAW II
SLOT 2

AUTHOR
CHITRA C
III Year BBA LL.B (HONS)
Reg.No: 131502002

CO-AUTHOR
Mr.SHAJI M
Assistant Professor of Law

SAVEETHA SCHOOL OF LAW

SAVEETHA INSTITUTE OF MEDICAL AND TECHNICAL SCIENCE

CHENNAI
A STUDY ON GIFTS UNDER MUSLIM LAW

C.Chitra1
Shaji Muthappan2

ABSTRACT:
Gift could be a transfer of property wherever interest is transferred from one living person to a
different, with none thought. it's a gratuitous and entomb vivos in nature. This can be the final
definition that's accepted by all the religions, together with Muslim law. As per the Muslim
Law, a present is named as Hiba. Under Hindu Law, gift is considered the renunciation of the
ownership by the owner within the favor of recipient. in keeping with Jimutvahana, underneath
Hindu law’s idea of gift, possession isn't created by acceptance however by renunciation of the
donor. However but Mitakshara college of hindu law considers acceptance as a very important
ingredient for gift. The donor will divest his interest by renunciation however cannot impose
an equivalent on the recipient if he's not able to accept. This paper deals about the essential and
kinds of Hiba. The Hanafi lawyers outline hiba as ‘an act of bounty by that a right of property
is presented in one thing specific while not Associate in Nursing exchange’. The Shias hold
that ‘a hiba is Associate in Nursing obligation by that property in an exceedingly specific object
is transferred straightaway and categorically with none exchange and free from any pious or
spiritual purpose on the a part of the donor’. Muslim law permits a Muslim to administer away
his entire property by a present put down vivos, even with the precise object of disinheriting
his heirs. This paper deals in detail about the gifts and essentials under muslim law.
Keywords :hiba, muslim law,mitakshara,gifts,essential elements.

1
IIIrd Year,BBA.LL.B.,Saveetha School of Law, Saveetha University, Tamil
Nadu,India.(chitrac11898.cc@gmail.com)
2
Asst.Prof, Saveetha School of Law, Saveetha University, Tamil Nadu, India
(shajihnlu@gmail.com)
INTRODUCTION
Under English laws, right in property is classed by a division on the premise of immobile and
transferrable (real and personal) property. Rights in land delineate as “estate” underneath
English Law don't forever imply solely absolute3 possession however it conjointly includes
rights that let down of it and are restricted to the lifetime of the recipient or in respect of your
time and length or use of the same.4
Under Muslim Law, the idea of Gift developed a lot of throughout the amount of 610 AD to
650 AD. Over the corpus of property the law recognises solely absolute dominion, hereditary
and unrestricted in purpose of your time. restricted interests in respect of property aren't
identical with the incidents of estates underneath nation law. underneath the Mohammedan law
they're solely usufructuary interest (and not rights of possession of any kind).
Under Muslim Law, the faith of the person to whom gift is created isn't relevant. In India,
there's a separate statute that governs the matters associated with transfer of property. The
Transfer of Property Act, 1882 underneath Chapter VII talks regarding gifts and therefore the
procedure for creating an equivalent. nonetheless as per section 129 of the Act, the Transfer of
Property Act, 1882 doesn't apply to the Muslims creating gift.

AIM OF THE STUDY


 To study about the essentials of Hiba.
 To know about the kinds of Hiba.

RESEARCH METHODOLOGY
The present research is descriptive, conclusive. The study was concluded on secondary source
of data books, articles, journals, e-sources and the relevant cases

3
https://www.lawctopus.com/academike/concept-of-gift-under-muslim-law/
4
http://bvpnlcpune.org/Article/GIFTS%20UNDER%20MUSLIM%20LAW.pdf
CONCEPT OF HIBA UNDER MUSLIM LAW
The conception of the term ‘gift’ as utilized in the Transfer of Property Act, 1882 is somewhat
totally different from the observe underneath the Muslim Law. underneath the Muslim Law a
present could be a transfer of property or right by one person to a different in accordance with
the provisions provided underneath Muslim law. Hiba (Tamlik al ain) ,5 is a right away and
unconditional transfer of the possession of some property or of some right, with none thought
or with some come (ewaz); and therefore the term ‘hiba’ and ‘gift’ area unit usually
indiscriminately used however the term hiba is just one in every of the forms of transactions
that area unit coated by the final term ‘gift’. the opposite sorts of gifts embrace Ariya (Tamlik
al manafe), wherever solely legal right is transferred and Sadqah wherever the gift is created
by the muslim with the thing of effort spiritual merit.
A person could lawfully build a present of his property to a different throughout his lifetime;
or he could provides it away to somebody once his death by can. the primary is named a
disposition put down vivos; the second, a official document disposition. Muhammadan law
permits each forms of transfers; however whereas a disposition put down vivos is unshackled
on quantum, a official document disposition is restricted to simple fraction of information
superhighway estate. Muhammadan law permits a person to administer away the full of his
property throughout his period, however solely simple fraction of it are often bequeathed by
can.

ESSENTIALS OF HIBA
Since muslim law views the law of Gift as an area of law of contract, there should be a proposal
(izab), Associate in Nursing acceptance (qabul), and transfer 6 (qabza). In Smt Hussenabi v
Husensab Hasan, a grandpa created a proposal of gift to his grandchildren. He conjointly
accepted the provide on behalf of minor grandchildren. However, no specific of tacit
acceptance was created by a significant grandchild. state HC command that since the 3 parts of
the gift weren't gift within the case of the most important progeny, the gift wasn't valid. it had
been valid with reference to the minor grandchildren.
Thus, the subsequent are the necessities of a legitimate gift
A declaration by the donor: There should be a transparent and unambiguous intention of the
donor to form a present. Declaration could be a statement that signifies the intention of

5
https://www.scribd.com/document/311452252/HIBA-UNDER-MUSLIM-LAW-pdf
6
https://www.scribd.com/document/145687022/Gifts-Under-Muslim-Law
transferer that he intends to form a present. A declaration are often oral or written. The donor
could declare the gift of any quite property either orally 7or by written suggests that. beneath
Muslim law, writing and registrations don't seem to be necessary. within the famed case of
Ilahi Samsuddin v. Jaitunbi Maqbulit had been command that beneath Muslim Law, declaration
furthermore as acceptance of gift could also be oral no matter could also be nature of property
precocious. once the gift is formed in writing, it's referred to as Hibanama. This gift deed
needn't get on stamp paper and conjointly needn't be genuine or registered. within the famed
case of Md. Hesabuddin v Md. Hesaruddin, wherever the gift was created by a Muslim lady
and wasn't written on a stamp paper, Guahati state supreme court command that the gift was
valid.
The declaration created by the donor ought to be clear. A declaration of Gift in ambiguous
words is void. In Maimuna Bibi v. Rasool Mian, it had been command that whereas oral gift
is permissible beneath Muslim law, to represent a legitimate gift it's necessary that donor ought
to divest himself utterly of all possession and dominion over subject of gift. His intention ought
to be in specific and clear words. in step with Macnaghten, “A gift can not be implie. It should
be specific and unequivocal, and therefore the intention of donor should be incontestable by
his entire relinquishment of the issue given, and therefore the gift is null and void once he
continues to exercise any act of possession over it.”The declaration ought to be free from all
the impediments like inducement, threat, coercion, force or promise and may be created with a
factual intention.
Acceptance by the recipient:a present is void if the donee has not given his acceptance. trustee
could settle for on behalf of a minor. recipient are often an individual from any non secular
background. Hiba in favor of a minor or a feminine is additionally 8 valid. kid within the
mother’s uterus could be a competent done provided it's born alive among six months from the
date of declaration. jural person are capable of being a recipient and a present are often created
in their favor too. On behalf of a minor or Associate in Nursing insane person, any guardian as
mentioned beneath the provisions of Muslim law will settle for that gift. These include
Father
Father’s fiduciary

https://www.researchgate.net/publication/228228161_Comparative_study_of_Gift_under_Isl
amic_Law_and_Transfer_of_Property_Law_Indian_perspective
8
http://www.shareyouressays.com/knowledge/3-essential-conditions-for-a-valid-gift-hiba-
under-muslim-law/117490
Paternal Grand-Father
Paternal Grand Father’s fiduciary.
Delivery of possession by the donor and taking of the possession by the done:In Muslim law
the term possession suggests that solely such possession because the nature of the topic is
capable of. Thus, the important take a look at of the delivery of possession is to ascertain United
Nations agency – whether or not the donor or the recipient – 9 reaps the advantages of the
property. If the donor is reaping the profit then the delivery isn't done and therefore the gift is
invalid.The mode of delivery of possession depends utterly upon the character of property. A
delivery of possession could either be:
Actual
Constructive
Actual Delivery of Possession: wherever the property is physically handed over to the
recipient, the delivery of possession is actual. Generally, solely tangible properties are often
delivered to the done. A tangible property could also be movable or immobile. beneath Muslim
law, wherever the mutation proceedings have started however the physical possession can not
be given and therefore the donor dies, the gift fails for the wish of delivery of possession.
However, in such cases if it's tried that though, the mutation wasn't complete and therefore the
done has already taken the possession of the property, the gift was command to be valid.
Constructive Delivery of Possession: Constructive delivery of possession is decent to represent
a legitimate gift within the following 2 situations:Where the Property is intangible, i.e. it can
not be perceived through senses.Where the property is tangible, however its actual or physical
delivery isn't doable.Under Muslim law, Registration is neither necessary, nor decent to
10
validate the gifts of immobile property. A hiba of movable or immobile property is valid
whether or not it's oral or in writing; whether or not it's genuine or registered or not, only if
the delivery of possession has taken place in step with the principles of Muslim Law.
KINDS OF GIFTThere are several variations of Hiba. These include

 Hiba bil Iwaz


 Hiba ba Shart ul Iwaz
 Sadkah
 Ariyat

9
https://www.legistify.com/QnA/answer/2468-what-are-different-types-of-gifts-under-
muslim-law-can-i-give-future-gifts-to-my-heirs
10

http://14.139.60.114:8080/jspui/bitstream/123456789/2938/1/146_1975_Muslim%20Law.pdf
HIBA- IL-IWAZ

‘Hiba’ means that ‘gift’ and ‘Iwaz’ means that ‘consideration’. Hiba Bil Iwaz means that gift
for thought already received. it's so a dealings created of 2 mutual or reciprocal gifts between
2 persons. One gift from donor to beneficiary and one from beneficiary to donor. The gift and
come gift area unit freelance transactions. Threrfore, once each i.e 11 ., hiba (gift) and iwaz
(retarn or consideration) is completed, the dealings is named hiba-bil-iwaz. for instance, A
create a present of a cow to S and later B makes a present of a house to A. If B says that the
house was given to him by A by approach of come of exchange, than each area unit irrevocable.
So a Hiba Bil Iwaz may be a gift for thought and actually it's a buying deal. Thus, registration
of the gift is important and therefore the delivery of possession isn't essential and prohibition
against Mushaa doesn't exist. the subsequent area unit requisites of Hiba bil Iwaz. Actual
payment of thought on the a part of the beneficiary is important. In Khajoorunissa vs Raushan
Begam, it absolutely was control that adequacy of the thought isn't the question. As long is that
the thought is factual, it's valid in spite of even though it's light.A factual intention on the a part
of the donor to divest himself of the property is important.

Gift in function of dower debt – In Gulam Abbas vs Razia, the hon’ble judicature at Allahabad
control that Associate in Nursing oral transfer of stabile property price over 100/- can't be with
validity created by a muslim husband to his better half by approach of gift in function of dower
debt that is additionally over 100/-. it's neither Hiba nor Hiba bil Iwaz. it's a buying 12deal and
should be done through a registered instrument.

HIBA-BA-SHARTUL-IWAZ
‘Shart’ means that ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means that a ‘gift created with a
stipulation for return’. not like in Hiba bil Iwaz, the payment of thought is deferred. Since the
payment of thought isn't immediate the delivery of possession is important. The dealings
becomes final like a shot upon delivery. once the thought is paid, it assumes the character13 of

11
https://www.legistify.com/QnA/answer/2468-what-are-different-types-of-gifts-under-
muslim-law-can-i-give-future-gifts-to-my-heirs
12
https://www.legistify.com/QnA/answer/2468-what-are-different-types-of-gifts-under-
muslim-law-can-i-give-future-gifts-to-my-heirs
13
https://www.legistify.com/QnA/answer/2468-what-are-different-types-of-gifts-under-
muslim-law-can-i-give-future-gifts-to-my-heirs
a buying deal and is subject to preemption (Shufa). As in sale, either party will come the topic
of the sale just in case of a defect.
 It has the subsequent requisites –
 Delivery of possession is important.
 It is voidable till the Iwaz is paid.
 It becomes irreversible when the payment of Iwaz.
 Transaction once completed by payment of Iwaz, assumes the character of a buying
deal.
 In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz area unit similar within the sense
that they're each gifts for a come and therefore the gifts should be created in compliance
with all the foundations with reference to easy gifts.

REVOCATION OF GIFT
From one side, they hold that each one gifts except those that area unit created by one spouse
equivalent to a different, or to someone associated with the donor inside the degrees or
prohibited relationship, area unit voidable.
The Hedaya provides the explanations thus, “The object of a present to a unknown may be a
come for it's custom to send presents to someone of high rank that he could defend the donor;
to someone of inferior rank that the donor could acquire his services 14; and to person of equal
rank that the donor could acquire a similar and such being the case it follows that the donor has
the ability of annulment, see you later because the object of the deed isn't answered, since a
present is capable of annulment”.
The texts of Muslim law lay down an extended list of gifts that area unit irreversible. The
contents of the list dissent from faculty to highschool, and therefore the Shias and therefore the
Sunnis have the same old variations.

Revocation of gifts before the possession is delivered


Under Muslim law, all gifts area unit voidable before the delivery of possession is given to the
recipient. Thus, P makes a present of his motor-car to Q by a present deed. No delivery of
possession has been created to Q. P revokes the gift.15

14
http://www.observerbd.com/2015/11/19/121579.php
15
http://www.lawyersclubindia.com/forum/Basic-concept-of-gift-under-muslim-law-
139618.asp
The revocation is valid. during this case, it'll not build any distinction that the gift is formed to
a married person, or to someone associated with the donor inside the degrees of prohibited
relationship. the actual fact of the matter is that underneath Muslim law no gift is complete
until the delivery of possession is formed, and so, all told those cases wherever possession has
not been transferred the gift is incomplete, and whether or not or not it's revoked, it'll not be
valid until the delivery of possession is formed to the recipient.
The revocation of such a present, therefore, simply implies that the donor has modified his
mind and doesn't need to complete it by the delivery of possession. For the revocation of such
gifts, no order of the court is critical. Fyzee justly says that this is often a case of incipient gift
and it's not correct to use the term revocation to such a present.

Revocation when the delivery of possession


Mere declaration of revocation by the donor, or establishment of a suit, or the other action, isn't
ample to revoke a present. until a decree of the court is passed revoking the gift, the recipient
is entitled to use the property in any manner; he also can alienate it.16
It appears that:all gifts when the delivery of possession are often revoked with the consent of
the recipient,revocation are often created solely by a decree of the court.
The revocation of a present may be a personal right of the donor, and, therefore, a present can't
be revoked by his heirs when his death. a present also can not be revoked when the death of
the recipient.According to the Hanafi college with the exception of the subsequent cases, a
present are often revoked even when the death of the recipient.According to the Hanafi college,
with the exception of the subsequent cases, a present are often revoked even when the delivery
of possession. The exceptions to a similar are,
When a present is formed by one married person to a different.
When the donor and also the recipient area unit connected inside the prohibited degrees.
When the recipient or the donor is dead.
When the subject-matter of the gift isn't any longer within the possession of the recipient, i.e.,
once he had disposed it off by sale, gift or otherwise or, wherever he had consumed it, or
wherever it had been lost or destroyed.When the worth of the subject-matter has augmented.
When the identity of the subject-matter of the gift has been utterly lost, 17even as wheat, the
subject-matter of gift, is born-again into flour.When the donor has received one thing

16
https://www.scribd.com/doc/78383878/Different-Kinds-of-Gifts
17
https://www.makaan.com/iq/real-estate-faqs/gifts/what-is-the-law-for-gifts-under-muslim-
law
reciprocally (iwaz).When the item of gift is to receive non secular or non secular profit or
advantage, like sadaqa.The Shiah Islam law of revocation of gifts f18differs from the Sunni law
within the following respects: 1st, gift are often revoked by a mere declaration on the a part of
the donor with none proceedings in a very court of law; second, a present created to a married
person is voidable; and third, a present to a relation, whether or not inside the prohibited degrees
or not, is revocable.

CONCLUSION
The conception of the term gift associate degreed material of gift has been an age recent and
ancient issue that has developed into a definite side in property law. totally different aspects
associated with gift in property act and its distinction with the Mohammedan law and its
implications has been the key material of this text. In considering the law of gifts, it's to be
remembered that nation word ‘gift’ is generic and should not be confused with the technical
term of shariah law, hiba. The construct of ‘hiba’ and also the term ‘gift’ as19 utilized in the
transfer of property act, area unit totally different. As we've seen within the project that
underneath Mohammedan law, to be a sound gift, 3 necessities area unit needed to exist.
To conclude the man of science will say that, the gift may be a contract consisting of a proposal
or provide on the a part of the donor to relinquish a issue and acceptance of it by the recipient.
thus it's a transfer of property directly and with none exchange 20 . There should be clear
intention by the donor to transfer the possession to the donor for a sound gift. It are often
revoked by the donor. and therefore the the provisions for a similar have also been mentioned.

18
1. G.C.VSubbaRao, Family Law in India,Narendra Gogia and Company, Updated
Tenth Edition.

19
https://www.makaan.com/iq/real-estate-faqs/gifts/what-is-the-law-for-gifts-under-muslim-
law
20
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1471926
REFERENCES
1. https://www.lawctopus.com/academike/concept-of-gift-under-muslim-law/
2. http://bvpnlcpune.org/Article/GIFTS%20UNDER%20MUSLIM%20LAW.pdf
3. https://www.scribd.com/document/311452252/HIBA-UNDER-MUSLIM-LAW-pdf
4. https://www.scribd.com/document/145687022/Gifts-Under-Muslim-Law
5. https://www.researchgate.net/publication/228228161_Comparative_study_of_Gift_un
der_Islamic_Law_and_Transfer_of_Property_Law_Indian_perspective
6. http://www.legalserviceindia.com/articles/transfer.htm
7. http://www.shareyouressays.com/knowledge/3-essential-conditions-for-a-valid-gift-
hiba-under-muslim-law/117490
8. http://www.legalblog.in/2011/05/gift-under-muslim-law-concept.html
9. http://womenproperty.hypotheses.org/346
10. http://14.139.60.114:8080/jspui/bitstream/123456789/2938/1/146_1975_Muslim%20
Law.pdf
11. http://www.shareyouressays.com/knowledge/what-are-the-different-kinds-of-gifts-
under-muslim-law/117417
12. https://www.legistify.com/QnA/answer/2468-what-are-different-types-of-gifts-under-
muslim-law-can-i-give-future-gifts-to-my-heirs
13. http://hanumant.com/Hiba.html
14. http://www.lawyersclubindia.com/forum/Basic-concept-of-gift-under-muslim-law-
139618.asp
15. https://www.scribd.com/doc/78383878/Different-Kinds-of-Gifts
16. https://www.scribd.com/document/346604302/Concept-of-Hiba-Under-Muslim-Law
17. http://www.observerbd.com/2015/11/19/121579.php
18. https://www.makaan.com/iq/real-estate-faqs/gifts/what-is-the-law-for-gifts-under-
muslim-law
19. G.C.VSubbaRao, Family Law in India,Narendra Gogia and Company, Updated Tenth
Edition.
20. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1471926