GIFT

OR
HIBA

Under Muslim law

 HIBA
a Hiba or 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.
the transfer of movable or immovable
property with immediate effect and without
consideration by one person called the
donor to another person called the donee
and the acceptance of the same by one
himself or by someone authorized on his
behalf
 ESSENTIALS OF HIBA
offer [Izab] i.e. a declaration of gift by the
donor
[qabul] i.e. acceptance of gift by or on
behalf of the donee, express or implied
transfer [qabza] i.e. delivery of
possession of the gift by the donor to the
donee
In case of minor of insane
Any of the guardians given below can
accept the gift these are;

Father
Fathers Executor
Paternal Grand-Father
Paternal Grand-Fathers Executor
 Actual & Constructive delivery
of possession
Actual delivery of possession: when a
property is physically handed over to the donee

Constructive delivery of possession: in this type

of delivery of possession there are following
two situations
(i)Where the property is intangible, i.e. it cant
be perceived through senses[eg: Touch]
(ii)here the property is tangible but its actual
and physical delivery is not possible.
 Kinds of Hiba
MUSHAA- mushaa is an undivided share in
property either movable or immovable.
It has been held by the High Court of
Allahabad that though a valid gift cannot be
made to an undivided share (mushaa) in
property which is capable of division, the
difficulty may be overcome by the donor
selling the undivided share at a fixed price to
the person to whom the gift is intended to be
made, and then releasing that person from
payment of the debt representing the price.
HIBA-BIL-IWAZ (gift with exchange):

As it is a gift for a consideration. It is in reality of

a sale, and has all the incidents of a contract of
sale.
Accordingly, possession is not required to
complete the transfer
Two conditions, however, must concur to make
the transaction valid, namely,
(i)Actual payment of consideration (iwaz) on the
part of the donee, and
(ii)A bonafide intention on the part of the donor
to divest himself in praesenti of the property an
to confer it upon the donee.
 The High Court of Culcutta, Madras,
Lahore, Allahabad, Patna and Nagpur
have held that a transaction of this
character is nothing but a sale
 HIBA-BA-SHART-UL-IWAZ:

Where a gift is made with a stipulation

(shart) for a return, it is called Hiba-ba-
shart-ul-iwaz.
delivery of possession is necessary to
make the gift valid, and the gift is also
revocable.
But the gift becomes irrevocable on
delivery by the donee of the iwaz (return)
to the donor.
 The main difference between the hiba-bil-
iwaz, of India, and hiba-ba-shart-ul-iwaz,
is that delivery of possession is not
necessary in the former case, while it is
necessary in the latter case.
 AREEAT:

The grant of the license, resumable at the

grantors option, to take and enjoy the
usufruct of a thing, is called areeat.
An areeat is not a transfer of ownership,
but a temporary license to enjoy the
profit so long as the grantor pleases.
An areeat is revocable in every case.
 SADAQAH:

A sadaqah is a gift made with the object

of acquiring religious merit.
it is not valid unless accompanied by
delivery of possession
nor it is valid if it consists of an undivided
share in property capable of division.
a sadaqah, once completed by delivery,
is not revocable
Gift of immovable property by husband to wife

The rule applies to gifts of immovable

property by a wife to the husband, and by
a husband to the wife, whether the
property is used by them or their joint
residence, or is let out to tenants. The fact
that the husband continues to live in the
house or to receive the rents after the date
of the gift will not invalidate the gift, the
presumption in such a case being that the
rents are collected by husband on behalf
of the wife and not on his own account.
Gift to a minor by father or other guardian

In the case of gift by the father or guardian to a

minor, transfer of possession is not required, the
only necessary condition is bonafide intention to
give the gift.
If there are donees other than the minor child this
section will not be applicable and transfer of
property is necessary. For Example: for the benefit
of minor daughter and her adult husband.
The mother is not in law the guardian of the
property of her infant child; therefore in case of gift
by the mother to her infant child transfer of
property to the father of the infant and if the father
is dead to the executor.
Gift to a minor by a person other
than his father or guardian
In case of gift to minor or a lunatic person by a
person other than his father or guardian is
completed by the transfer of possession to the
father or guardian, the gift can also be
completed if the minor to whom the gift is
made has attained discretion, himself takes
possession.
In Gulam Hussain v Abdul Rashid the Supreme
Court of India has concurred that where the
father of a minor is alive the mother of the
minor cannot act as a guardian of her minor
son to accept the gift on his behalf.
Gift through the Medium of Trust

A gift may be made through the medium

of trust and the conditions for such gifts
are same the only difference is that these
gifts should be accepted by the trustees
and the delivery of the possession should
be to the trustees.
Delivery of possession of immovable property

A gift of immovable property of which the donor is in actual

possession is not complete, unless the donor physically
departs from the premises with all his goods, and the donee
formally enters in to possession.
But if a person reserves to himself the right to receive rents
during his lifetime and also undertakes to pay municipal dues,
a mere recital in the deed that delivery of possession has been
given to the donee will not make the gift complete.
No physical departure or formal entry is necessary in the case
of a gift of immovable property in which the donor and the
donee are both residing at the time of the gift. In such a case
the gift may be completed by some overt act by the donor
indicating a clear intention on his part to transfer possession
and to divest himself of all control over the subject of the gift.
Who can challenge the validity of the gift?

The question of the delivery of

possession is relevant only when it has
been raised between donee or those
claiming under him on one side, and
donee and those who claiming under him
on the other.
 REVOCATION OF GIFT

A gift may be revoked even after delivery of possession

except in the following cases:-
I. when the gift is made by a husband to his wife or by wife to
her husband;
II. when the donee is related to the donor within the prohibited
degrees;
III. when the donee is dead;

IV. when the thing given has passed out of the donees
possession by sale, gift or otherwise;
V. when the thing given is lost or destroyed;

VI. when the thing given has increased in value, whatever be

the cause of the increase;
VII. when the thing given is so changed that it cannot be
identified, as when wheat is converted into flour by grinding;
 when the donor has received something
in exchange(iwaz) for the gift
A gift may be revoked by the donor, but
not by his heirs after his death. Its the
donors law that will apply to a revocation
and not that of the donee.
Once the possession is delivered, nothing
short of a decree of the court is sufficient
to revoke the gift.
 Constitutional Validity of Hiba

It is well known that there are

fundamental differences between the
religion and customs of the Mahomedans
and those of others, and, therefore the
rules of Mahomedan law regarding gift are
based on reasonable classification and the
provision of Section 129 of the Transfer of
Property Act exempting Mahomedans from
certain provisions of that Act is not hit by
Article 14 of the Constitution.
Rasheeda khatun vs. Ashiq Ali, s/o lieutenant Abu Mohd., 2009,
deided on October 10, 2014

Held: A gift under the mahommadan law can

be an oral gift and need not be registered; a
written instrument does not, under all
circumstances require registration; to be a
valid gift under mohammadan law three
essential features namely (i) declaration of the
gift by the donor, (ii) acceptance of the gift by
the donee expressly impliedly, and (iii) delivery
of possession either actually or constructively
to the donee , are to be satisfied.
 V. Sreeramachandra Avadhani v. Shaik Abdul Rahim and another
(2014) 9 SCC 350

Held: Under Mahomedan Law, a gift has

to be unconditional. Therefore, conditions
expressed in a gift are to be treated as
void. A conditional gift is valid, but the
conditions are void. So, the right of BB to
enjoy the property is valid but the
conditions not to sell or alienate the
property are invalid. Hence, the sell of
property to the appellant is valid and the
respondent cant claim the property.
 CONCLUSION

All these things have made the procedure

of making gift in a proper way also made
the procedure of making gift to come
under the law. It also makes clear as to
who can make a gift deed in whose
favour clearing all the confusions and
making the procedure smooth.