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Gift / Hiba[1]
QUESTION BANK
Q.1 Explain Hiba and its nature. What is a conditional and future gift?
Q3 Explain the death bed gift and explain the revocation of the gift.
Q.4. What are the essentials of a valid gift (Hiba)?
Q.5 Explain the Marz-ul-Maut. What is the difference between Marz-ul-Maut and Donatio Mortis Causa?
SYNOPSIS
- Introduction-
- Definition of gift (Hiba)-
- According to Mulla-
- According to Fyzee-
III. Features or Essentials of Hiba-
- Declaration of gift by the Donor-
- Acceptance of gift by the donee-
- Delivery of possession-
- Registration of gifts-
- Conditional, contingent, future gift and a gift of mushaa–
- a) Conditional gift-
- b) Contingent gift-
- c) Future gift-
- d) gift of mushaa–
- Revocation of gift-
- a) Before delivery of possession-
- b) After delivery of possession-
- Gift of death bead-
To be a valid death bed gift-
I. Introduction-
Muslims are allowed to make a gift known as ‘Hiba’ in Arabic. He may gift his property (i) during his lifetime (inter vivos[2]) or (ii) by making a will (to take transfer effect after his death). Disposition of property by making a will is also called ‘testamentary disposition’. A Muslim can transfer the whole of his property through a gift during his lifetime to another living person. However, he can only transfer 1/3rd of his property through a will.
II. Definition of gift (Hiba)-
1. According to Mulla-
A gift is- a) a transfer of property
- b) made immediately, and
- c) without any exchange,
- d) by one person to another, and
- e) accepted by or on behalf of the latter.
2. According to Fyzee-
Hiba is a) the immediate and unqualified,
- b) transfer of the corpus of the property,
- c) without any return.
III. Features or Essentials of Hiba-
From the above definitions and the interpretations of judgments by various courts, the gift has the following essentials namely-
1. Declaration of gift by the Donor-
The donor must declare a gift. A Donor is a person who makes the gift. The Donor must be capable of giving the property. He is capable if he fulfils the requirements of the contract Act, i.e., he must be major, of sound mind, etc., and he must be the owner of the property he is gifting.
In Hussaina Bai v. Zohra Bai[3] Madhya Pradesh High Court held that- In the case of a gift by pardanashin,[4] it is necessary to satisfy the court that she executed the document with her free will and with the full understanding of executing documents.
2. Acceptance of gift by the donee-
The donee must accept the gift. The donee is the person who receives the gift. A donee can be any person who is capable of having property. A juristic person, such as a Mosque or registered organisation, may also be a donee. A Muslim can even give a gift to a non-Muslim. However, the donee must be in existence at the time of making the gift.
A minor, lunatic, etc., can also be a donee, provided the guardian must accept the gift. Similarly, a gift cannot be made to an unborn person. However, the property can be gifted by the will to an unborn person, provided he must have taken birth while opening the succession.
3. Delivery of possession-
Delivery of possession of the subject matter of the gift by the Donor to the donee is also a very important feature of the gift. Delivery of subject matter may be actual or constructive.
However, a father can gift his minor or lunatic child a property even without delivery. Similarly, delivery is unnecessary when the Donor and the donee reside in the same house to be gifted. Likewise, a gift by the husband to wife and vice versa also needs no transfer of actual delivery. Similarly, the transfer is presumed to have occurred when the donee already possesses the gifted property.
In Hayatuddin v. Abdul Gani,[5] The Bombay High Court held that a physical departure is not necessary where the Donor and the donee both reside in the property.
IV. Registration of gifts-
Gifts under Muslim law may be made orally or in writing. Writing is not necessary for a valid gift of immovable and immovable property of any amount as per Muslim law. Its registration is also not necessary. It is because S. 123 of the Transfer of Property Act of 1882 exempts Muslims from the compulsion of registration of a gift.
Hafeeza Bibi v. Shaikh Farid[6], the Supreme Court held that the Muslim gift deed is a simple document requiring no registration.
V. Conditional, contingent, future gift and a gift of mushaa–
Conditional, contingent, future gifts and a gift of mushaa are generally considered void. However, some of them can be validated by actual delivery. We will discuss them as follows-
a) Conditional gift[7]–
In the case of a gift with a condition which restricts full ownership of the property, the condition becomes void, but the gift becomes valid. In other words, the condition of the gift is ignored, and the gift becomes valid. Thus, where the power of alienation of the donee as to the gifted property is restricted, such restriction becomes invalid, and the donee is free to alienate the property.
Illustrations
(i) A house is given on condition that it shall not be sold. The restraint on alienation is void, and the house belongs absolutely to the donee.
(ii) A house is given to a person for life, on condition that it shall be returned to the Donor or his heirs, as the case may be, on the death of the donee. The donee takes an absolute interest, notwithstanding the condition.
b) Contingent gift[8]–
Contingency means ‘future uncertain event’. A gift cannot be made to take effect on the happening or non-happening of a contingency.
Illustration
The gift by A to B for life, and in the event of the death of B without leaving the male issue to C, is as regards C a contingent gift and, therefore, void.
However, the gift of an insurance policy is effective, though it is contingent.
c) Future gift-
A gift cannot be made to take effect at any future time. In other words, a gift, the ownership of which would pass in future, is a “future gift”. A future gift is not a valid gift. Immediate transfer of property of gift is an important feature of the gift. In ‘future gift’, the property does not pass immediately. Therefore, it is not considered a valid gift under Muslim law. Thus, a “gift to ‘A’ when he marries” is a contingent gift, therefore void. This is because the vesting of property is to take place in the future. According to Muslim law, the property gifted must vest immediately in the donee for a valid gift.
d) Gift of mushaa[9]–
The gift of mushaa means the gift of an undivided share in a property. As has already been discussed, delivery of possession of a property in donee is essential for a gift to be valid. Such possession must be separate and exclusive. Therefore, a gift of an undivided share (musha) in a property which is divisible is void, according to the Hanafi School. However, according to the Shafei and Ithna Ashari School, it is valid if the Donor at the time of the gift withdraws his control over the property in favour of the donee.
A gift of an undivided share in a property which is not divisible is valid. Thus, for the sake of validity, the property to be gifted is divided into two categories viz (i) divisible and (ii) non-divisible. A gift of the former is void, but the latter’s gift is valid.
VI. Revocation of gift[10]–
All voluntary transactions under Mulsim law are revocable. Therefore, the gift is also revocable. However, the formalities for revocation are different in different circumstances as follows-
a) Before delivery of possession-
Before delivery of possession, a gift is not complete. Therefore, the Donor can revoke it.
b) After delivery of possession-
After delivery of possession, the Donor has the right to revoke it (i) with the consent of the donee or (ii) with the formal decree of the court.
However, the following gifts are irrevocable even for court, viz-
(1) When the Donor and the donee are dead.
(2) When the Donor and the donee are in prohibited degree, i.e. brother, sister, etc.
(3) When the gift is from one spouse to another.
(4) When the subject matter of the gift is no longer in possession of the donee.
(5) When the value of the subject matter has either increased or lost.
(6) When the Donor has received some consideration in return for the gift.
(7) When the gift is made with the object of receiving religious or spiritual benefits.
VI. Gift on deathbed[11]–
“Donatio mortis causa,” i.e. gift on death bed, means a gift made by a person (the Donor) in contemplation of impending death. When the Donor dies, the subject matter of the gift passes to the donee.
To be a valid deathbed gift-
(i) The Donor must make the gift in contemplation of his impending death.
(ii) The gift must be contingent on the Donor’s dying.
(iii) The Donor must deliver the gift in some way to the donee.
(iv) The subject matter of a gift must be capable of being given in this manner.
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[1] भेट [ मुलाकात ]
[2] एका हयात व्यकतीने दुस-या हयात व्यक्तीस केलेले संपत्तीचे हस्तांतरण
[3] AIR 1960 MP 60
[4] Woman by Muslim tradition always wearing Burkha or veil.
[5] AIR 1976 Bom 23
[6] (2011) 5 SCC 654
[7] अटीसह भेट [ शर्तों के साथ उपहार ]
[8] “भेट’’ की जीचे हस्तांतरण एखादया घटणेच्या घडण्यावर अथवा न घडण्यावर अवलंबुन असते [ “उपहार” का हस्तांतरण किसी घटना के घटित होने या न होने पर निर्भर करता है]
[9] वाटप न झालेलया मिळकतीची भेट [ अवितरित आय का उपहार]
[10] भेट- रदद् करने [ नियुक्ति – रद्दीकरण ]
[11] मृत्युष्य्येवरून भेट [मृत्युष्य्य]