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An Analysis of Hiba and Its Types under Muslim Law

According to the Muhammadan Law, a gift, or hiba, is the transfer of a certain amount or of property from one person to another without any kind of exchange; the recipient must accept the present on their own behalf. It is made clear that any transfer made by a Muslim, regardless of the recipient's religion, is referred to as Hiba under Muslim law. While gifts are generally governed by the Transfer of Property Act in India, Muslim gifts and Hiba aren't regulated by Chapter VII of this Act.

This exemption would seem to constitute religious discrimination, which is prohibited by Article 14 of the Indian Constitution, which guarantees everyone the right to equality. However, the court now made it apparent that this exemption is legitimate and constitutional in Bibi Maniran v. Mohd. The Hiba, or Muslim gift, has been linked to and recognized by the Shariat Act of 1937 as being subject to only Muslim personal law. Consequently, Article 14 of the Indian Constitution is not violated by the exception granted by Section 129 of the Transfer of Property Act.

Muslim law acknowledges and validates the Hiba. However, there are a number of restrictions and requirements. To be legally able to make the donation, the donor must be of sound mind and hold ownership rights over the item being transferred. Additionally, the present must be accepted freely and without coercion by the recipient. Unless specific circumstances allow for revocation, a hiba permanently transfers ownership of the property to the recipient after it is executed. Because of this, careful preparation and documentation are necessary when completing a Hiba transaction. Another area where Hiba is crucial is in succession and inheritance planning.

It is essential for people to comprehend what Hiba in Islamic law means in order to transfer property, demonstrate charity, and fulfill social and religious obligations. By learning about the many aspects of Hiba, such as its legal validity, limitations, and consequences, people can make informed decisions and promote the well-being of their communities in accordance with Islamic teachings.

Nature And Scope Of Hiba:

The essence of Islamic law's Hiba and its application are based on the idea of voluntary property transfer. Hiba is the act of giving something to another person without anticipating payment or other kind of reward. It is a voluntary act of kindness and compassion that allows people to distribute their wealth and belongings however they see fit. Given that it addresses a wide range of property transfers, Hiba has a wide use. It might also involve the transfer of movable things like money, jewelry, or cars in addition to immovable assets like land or buildings. Hiba permits the transfer of both material and immaterial assets, enabling the gifting of not just material goods but also rights, advantages, or claims. What sets Hiba apart is that it is transferred without any consideration or condition.

The property is the sole property of the recipient following the submission and approval of the donation. All rights, titles, and control over the transferred property are relinquished by the giver, and the recipient assumes complete ownership and responsibility for it. Giving hika while one is still alive enables the giver to witness the recipient's joy and gains as a result of their generosity. Furthermore, a will (Hiba bil Wasaya) can be drafted to take effect following the donor's death, ensuring a just distribution of assets and honoring racial and familial obligations.

The Hiba concept promotes social welfare by encouraging the equitable distribution of income and helping those in need. It can be used to donate to charitable causes, assist family members, and support dependents. By freely transferring property through Hiba, people show compassion, generosity, and social responsibility. In short, under Muslim law, hiba is the voluntary surrender of property without the expectation of recompense. It can be executed during the person's lifetime or directly through a will, and it covers both moveable and immovable assets. In Islamic thought, Hiba promotes almsgiving, social welfare, and equitable economic distribution.
 

Essentials Of A Valid Hiba

Capacity of Donor:
  • Mohammedan: The giver needs to be an adherent of Islam.
  • Sex: Both men and women can be the donors.
  • Status: The donor's marital status is unknown.
  • Age of Majority: In accordance with the Indian Majority Act of 1875, the donor must have become eighteen years old in order to qualify as a donor.
  • Ownership of Property: The gift giver needs to be the legitimate owner of the item(s) they plan to give. Stated differently, the asset must be the donor's at the moment of the donation. For instance, a widow cannot substitute her own property for her husband's dower.
  • Free Consent: The donation needs to be given voluntarily. A gift that is given under duress is voidable but is not recognized as such. When dealing with a pardanasheen lady, or a solitary woman, it's critical to confirm that the present was given voluntarily. To demonstrate that the donation was made voluntarily, it is frequently required to present documentation of the donor receiving independent counsel from sources other than their family. A pardanasheen lady's donation is deemed legitimate if she gets independent counsel and comprehends the terms of the gift deed in its entirety.
Capacity of a Donee:
  • Mohammedan: A donee could be a follower of Mohammed or not. Property is governed by the donee's personal law following the gift.
  • Sex: Either a man or a woman may be the donee.
  • Status of the donee: Either single or married.
  • Majority's Age: The donee may be a minor or a major.
  • Mental health: A gift can be given to a minor or someone who is mentally ill, and it is considered complete when the guardian receives ownership of the item.
  • Existence of a Donee or Child in Womb: An unborn child cannot receive a gift unless they are born within six months of the day the gift was given.
  • Joint donees: A gift jointly to two or more persons is not automatically invalid, but shares of each must be clearly specified. If not, the gift is not valid unless donees mutually arrange and take possession of their individual shares.
Subject matter must be valid:
  • Through Hiba, a Muslim can give up all of their possessions.
  • Any legally enforceable right or property may be the focus of a Hiba.
  • According to Section 6 of the Transfer of Property Act of 1882, the property must be transferred.
  • A gift can be made on any kind of property over which ownership is enforceable.
  • A gift can be made on both tangible and intangible property.
  • Any property that Muslim jurisprudence recognizes as "mal" (property) may legitimately be subject to gifts.
Other Essentials and Formalities:
  • Unequivocal and unambiguous declaration by the donor: The donor's declaration of purpose is the first requirement needed for a gift to be legitimate. It is possible to make this proclamation verbally or in writing. A gift's validity must first be established by the donor or his agent with a clear and unequivocal declaration of their desire to make a gift. It matters not how the proclamation is made. Such an intention proclamation needs to be sincere.15 This proclamation may be expressed verbally or in a written deed. A gift given with the goal to deceive the donor's creditors will be deemed void because there was never a sincere desire to give the property and it remains in ownership. The donor themselves may make such a declaration, or their agent may make the declaration.
  • Acceptance by the donee: The donee's or his agent's acceptance is the second requirement needed for a gift to be considered legitimate. This consent may be given explicitly or subtly.
Doctrine of Mushaa:
In terms of jointly owned property or undivided shares, the Muslim law of gift gives rise to the application of Doctrine of Mushaa. Each co-owner in Mushaa owns an undivided piece of the property; no individual is given a larger share than the others. This doctrine affects gift-giving since, in order for a gift of Mushaa property to be recognized, there must be a real division or specification of shares. The gift is deemed null and void in the absence of such a split because it is not explicit about the share being given.

Therefore, in accordance with the Mushaa theory, a gift's legality in Muslim law depends on the split of jointly owned property or shares. However, where the property is indivisible, the application of the Doctrine of Mushaa may be exempted. Such as in case of a movable property, the different beneficiaries may be allotted a time during which they can use the property distinctly. Conditions When Gift Is Invalid
  • Non-Existent Property: It is intrinsically invalid to give gifts of property that does not exist.
  • Conditional Gifts: Presents that are dependent on a future event that is not yet known are void until that time.
  • Donatio Mortis Causa: A gift that exceeds one-third of the giver's inheritance is deemed invalid if it is given in anticipation of death.
  • Unfulfillable Conditions: A gift is void if it has requirements that the sender cannot complete.
  • Transfer Restrictions: Gifts that forbid the receiver from transferring ownership or a stake are void.

Modes Of Making Hiba

Inter Vivos Hiba: A donation made while the donor is still alive is referred to as an intervios hiba. It entails the voluntarily giving of property to another individual without expecting anything in return. When distributing money or assets to friends, relatives, or charity organizations, inter vivos hiba is frequently utilized. Under Islamic law, it is subject to particular guidelines and precepts and necessitates that both the giver and the recipient be of legal age to make and accept gifts.

Hiba Marz ul Maut: A present given in contemplation of death, or Hiba Marz ul Maut, is when someone gives something to someone else knowing they will die soon from a disease or an upcoming threat. Certain requirements must be met for this kind of donation, such as the recipient's acceptance of the gift and the donor's impending death. It's thought of as a means for people to divide their possessions prior to passing away, frequently to guarantee that their desires are carried out and to avert possible inheritance conflicts. Only 1/3rd of the propert can be transferred through this mode of Hiba.

Hiba bil Wasiyat, also known as Hiba through Will, is a testamentary document that allows people to designate certain beneficiaries to receive assets or property after their death. Hiba bil Wasiyat is effective only after the donor passes away, in contrast to other types of Hiba prepared while the donor is still alive. It gives people the freedom to allocate wealth in accordance with their tastes, commitments to their families, and charitable aspirations.

To create a valid will, the testator, or donor, must meet legal requirements and possess testamentary ability. The assets included in the will can be both financial and real estate, guaranteeing that the beneficiaries listed in the will get their allotted shares following the donor's death. Seeking legal advice is essential to ensuring adherence to pertinent regulations, reducing the likelihood of litigation, and respecting the donor's desires.

Types Of Hiba

  1. Pure/Simple Hiba: Sadqah: In Islam, voluntary charitable donation is referred to as sadqah, sometimes spelled sadaqah. Sadqah is a voluntary act of kindness or generosity toward others, in contrast to Zakat, which is obligatory. It can come in many different ways, such as giving money, distributing food, or lending a hand to somebody in need. In Islam, sadqah is seen as a good deed and is thought to bestow blessings and spiritual rewards upon the giver. The purpose is to gain religious merit.
     
  2. Ariyat: Ariyat is a form of Hiba in which the donor gives property to a recipient on the understanding that the recipient will take care of or support the donor for the duration of the donor's life. This type of donation frequently entails the recipient´┐Żusually a family member´┐Żtaking on duties like giving the donor food, housing, or medical attention. Ariyat enables people to make sure that they will be taken care of in their old age while also deciding the beneficiary for their property.
     
  3. Hiba through Waqf: In Hiba through Waqf, property is transferred through charitable trusts or endowments. With this kind of contribution, the giver irreversibly dedicates their assets to a particular charity, educational, or religious endeavor. The property that is donated gets included in a Waqf and is overseen by trustees that are chosen by the donor or another authorized authority. In Islam, hiba through Waqf is considered a great deed of charity and is a way to continuously help society.
     
  4. Hiba Bil Iwaz:
    • A unique idea in Muslim personal law called hiba-bil-Iwaz refers to the reciprocal giving and receiving of gifts between two people. First, the donee receives a gift from the donor, and then the donee gives a gift to the giver. The legal system of Islam recognizes Hiba-bil-Iwaz as a legitimate exchange, even if it differs from other legal systems' customs of gift-giving. This unusual arrangement emphasizes the obligation and respect that Muslims place on reciprocal acts of giving, particularly when it comes to gift-giving between individuals.
    • Essentials of Hiba Bil Iwaz:
      • The three components of a legitimate Hiba (gift) are the delivery of possession, acceptance, and declaration.
      • Hiba-bil-Iwaz is a pure gift that becomes Hiba-bil-Iwaz when the donee returns the favor by giving the giver a gift of their own.
      • For a gift to be deemed Hiba-bil-Iwaz, the donee needs to provide the donor with something after receiving it.
      • For a gift to be considered Hiba-bil-Iwaz, the donee must actually pay the consideration. It must be genuine; sufficiency of consideration is not the question.
      • In exchange for the gift received, the donee must expressly state that they are giving the donor the property.
      • It is not necessary for the consideration given by the donee to the donor to match the worth of the property bestowed; it can be minimal or less. The amount of thought is not in doubt; a small present, such as a ring, may be adequate.
      • As this type of Hiba fulfills the conditions of a sale, hence the nature of Hiba Bil Iwaz is considered as a sale and has to be registered under the Transfer of Property Act.
         
  5. Hiba Shart-ul-Iwaz: In contrast to Hiba-bil-Iwaz, a gift in Hiba-Shart-ul Iwaz is given with a condition for return and the payment of consideration is postponed. Due to the delayed consideration, immediate handover of possession is essential. The gift is revocable until the payment (Iwaz) is paid, but the transaction is final once possession is delivered. Subject to Shufa's presupposition, the gift becomes irreversible and has the characteristics of a sale upon payment.
Conditions:
  • It is essential to deliver possession.
  • Up until the Iwaz is paid, the gift is revocable.
  • Once the Iwaz is paid, it becomes final.
  • After Iwaz is paid, the transaction is completed and looks like a sale.
Difference between Hiba-Bil-Iwaz and Hiba-Shart-ul-Iwaz:
  • In Hiba-bil-Iwaz, the donee pays the consideration voluntarily, but in Hiba-ba-Shart-ul-Iwaz, payment or fulfilment of a condition is required before the transaction can proceed further.
  • In a Hiba-ba Sart-ul-Iwaz, the donor determines the sort and value of consideration, whereas in a Hiba-bil-Iwaz, the donee determines the consideration.
  • In contrast to Hiba-ba-Shartul-Iwaz, which is regarded as Hiba, Hiba-bil-iwaz is either a sale or an exchange.
  • While this teaching is applicable to Hiba-ba-Shart-ul-Iwaz, the doctrine of Musha does not apply to Hiba-bil-Iwaz.
  • Hiba-bil-Iwaz is a sale or trade; as such, it needs to be documented in writing and registered. It is not a gift. However, for Hiba-ba-Shart-ul-Iwaz, writing and registration are neither required nor sufficient.

Revocation Of Gift
Since all voluntary transactions are changeable under Islamic law, Gift should also be given credit for this revocability. A gift is an unpaid, voluntary transfer of property. The properties are given by the donor of his own free will, with no payment or exchange required. When property is transferred through a gift, the handover of possession, acceptance, and declaration are the three phases. As we've just covered, a gift is nothing at all if possession is not delivered.
  • Revocation prior to delivery of possession: Since the transfer of possession completes a gift, all gifts are reversible prior to that transfer. The donor has the right to withdraw a gift at any point prior to the transfer of ownership. It is sufficient for the giver to simply state that he has canceled the donation.
     
  • Revocation following delivery of possession: The gift is considered completed when the donor delivers possession. The donor cannot withdraw the gift by simple statement once possession has been delivered.
     
  • Exceptions to Revocation: A gift may not be withdrawn in some circumstances after possession has been delivered.

The Hanafi law states that these kinds of exceptions:
  • Present between spouses: If given solely to one another, a gift between spouses is irreversible even though their marriage is irregular and ends in divorce later, throughout the duration of their union
  • Relationship by prohibited Degrees: Gifts are irreversible when donee and donor are related by consanguinity within banned degrees. A gift made in support of someone who is not a blood relative is not refundable. A gift made in the name of a brother, for instance, is irreversible, while one made in the name of a son-in-law, who is not related by blood, is revocable.
Shia Law:
  • A present or gift to a relative, whether or not it falls within the forbidden ranges, is irreversible and not subject to cancellation under Shia law.
  • Death of either party: Since a gift is an irreversible right, it cannot be revoked by the heirs of the donor or donee. This is because a gift is a personal right.
  • In cases where the donee has given the property to another individual: Following the completion of the gift, the donee acquires complete ownership of the bestowed asset. Therefore, the donee may assign that property to another individual. In these situations, the third party's interests would be impacted, and he would suffer a loss without any fault of his own.
  • In cases where the property is lost or destroyed: In the event that a gift is revoked, the giver should receive the item back; nevertheless, if it is lost or destroyed, nothing would remain to give back to the donor.
Case Laws
Kamarunnissa Bibi v. Hussaini Bibi
While making a declaration of gift, the donor's intention should be clear, with an unambiguous motive behind such an oral or written declaration of transferring ownership of property to the done. It is not necessary under Muslim law for the gift to be recorded, attested, or stamped.

Mahboob vs. Abdul
This case addressed the issue of revocation of gifts after receipt of possession. In this instance, the court ruled that a mere declaration by the donee is insufficient to revoke a gift since the donee has the right to utilise the property in any way until a court issues a decision withdrawing the gift. In such instances, the donee may dispose of or alienate the property.

Maimuna Bibi vs Rasool Mian
As we know, one of the requirements for a legitimate gift under Muslim Law is a statement, which can be oral or written. A declaration is just a statement that establishes the donor's intention for making the donation. When giving such a present, it is anticipated that you have a genuine intention and clear thoughts. Similarly, in the aforementioned instance, the court ruled that, while a spoken declaration is sufficient under Muslim law to be a lawful gift, the donor must totally relinquish all ownership or dominion rights over the subject matter.

Conclusion
To sum up, Hiba is a fundamental component of Muslim law that supports a variety of legal and private goals while enabling the transfer of property and fair distribution of wealth. It is important because it allows people to give presents to others while they are still living, which guarantees both equitable asset distribution and support for the well-being of cherished ones. Furthermore, the Mushaa concept emphasizes the necessity of precisely defining shares in jointly owned property in order for Hiba transactions to be recognized, placing a premium on clarity and accuracy in property transfers. Knowing the several kinds of Hiba, including Hiba-bil-Iwaz and Hiba-ba-Shart-ul Iwaz, gives people a variety of ways to accomplish their goals while abiding by the law.

To successfully handle any potential difficulties, people should proceed with caution and seek professional help while engaging in Hiba transactions. To make sure that Hiba transactions respect Islamic law and safeguard the interests of all parties involved, compliance with legal requirements and expert consultation are essential. In addition, knowing the grounds for revocation of Hiba enables people to protect their rights and property, which emphasizes how crucial it is to fully comprehend and give serious thought to gift-giving customs. Going ahead, in accordance with Islamic principles, people might be better equipped to manage their wealth and plan for the future by receiving ongoing education and understanding regarding Hiba and its ramifications.

References:
  • All About Hiba Under Muslim Law (lawyersclubindia.com)
  • Meaning of Hiba, Kinds of Hiba/Gift And its difference from Sadkah, Ariyat & more (lawnn.com)
  • 202004021930365160rksingh_LAW_OF_HIBA.pdf (lkouniv.ac.in)
  • Hiba - gift under Muslim law - iPleaders
  • Hiba Under Muslim Law (legalserviceindia.com)
  • Muslim Law, 6th Edition, Sayed Khalid Rashid (Book)

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