UncategorizedGIFT DEED OR HIBA ہبہ

Gift.

The term gift is known as ‘Hiba’ in Muslim law. Whereas in English, the word ‘gift’ has a much wider expression which is applicable to each and every transaction where an individual transfers his or her property to another without or with any consideration for the same.

Definition of Gift under SECITON 122 OF Transfer of Properties Act 1882

“’Gift’ is the  transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor,  to another, called the donee, and accepted by or on behalf of the done”

Essentials Gift /Hiba

There are mainly three conditions which need to be fulfilled for the successful transfer of property or making of a gift by a Muslim person. These conditions are as follow:

1. Offer/Declaration of gift by the donor.
2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and it’s acceptance by the donee.

• Meaning of Donor

A person who donates something

• Meaning of Donee

A person who receives a gift.

 

The requisites of the donor are as follow:

• Firstly, the person who is giving the property or making the gift i.e Donor, he/she must be a Muslim. Any other person in place of  Muslim cannot make Hiba.
• Secondly, the person should be major.
• Thirdly, the consent of the donor must be free. If the consent of the person is obtained by force, coercion, undue influence is no consent and such a gift is no gift.
• Fourthly, the person must be of sound mind. Any gift made by a person of unsound mind is not a valid gift.
• And lastly, the donor should be having the ownership of the property which he is going to give away in the form of a gift.

 

Declaration of gift by the donor

Declaration of gift by the donor represents his/her willingness to make a gift. The declaration made should be clear and not ambiguous. A donor can make the declaration in two ways that are oral or written.

The requisites of the donee

• Firstly, religion is no bar for accepting the gift which has to be mandatorily made by a Muslim. The donee can be of any religion, Muslim or non-muslim.
• Secondly, the age is again not a bar for a donee. He/she can be of any age i.e. major or minor.
• Thirdly, a gift can be made to an unborn child, but it must be in the womb of her mother. This is so because of the Transfer of property act, 1882 which talks about the benefit for the unborn person.
• Fourthly, the transfer of property can also be made to a religious entity.

Acceptance of gift by the donee

For the valid gift, it must be accepted by the donee. If there are more than one or two donee, then it must be accepted by both the donee’s and it must be accepted separately. Since in Islamic law the Hiba is treated as a bilateral transaction i.e the donor makes the transfer and it must be accepted by the donee.

• If the acceptor of the gift is minor or any person of unsound mind then it can be accepted by his guardians. These people are his/her-

1. Father
2. Father’s Executor
3. Paternal Grand-Father
4. Paternal Grand Father’s Executor

 

Transfer how effected Under Section 123 of Transfer of Properties Act 1882

For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of   the donor, and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

 

• But These Conditions are not not applicable in case of “Hiba”. In Hiba, the transfer is complete as soon as the possession is transferred from the donor to the donee. The valid effect of the gift is from the date of transfer and acceptance of the possession and not from the date of declaration.
• Under Muslim law, the registration of the transfer is not important,
• the condition which needs to be fulfilled for this is that the transfer must be made according to the rules of Muslim law.
• the Hiba can be oral or written and written
• Transfer is known as Hibanama and its registration or authorization by way of the stamp is not necessary.
• Kinds of Delivery.

1. Actual Delivery:In actual delivery, the gift which is being made is physically transferred to the donee. Actual delivery of the possession is possible when the gift which is being transferred is of tangible nature. Tangible means something which we can feel, see and touch. But further in case of tangible goods, it can be movable and immovable. Actual delivery can be done in case of only movable goods.
2. Constructive Delivery:The transfer of immovable property and intangible property is not possible so it is just a symbolic transfer of property.

For example- If the man wants to gift a house to someone, he can just hand over the keys and the related documents to the donee. He cannot pick up the house and hand it over to the donee. So, in this case, the delivery made is constructive in nature.

 

• When gift may be suspended or revoked Under Section 126 of Transfer of Properties Act

When gift may be suspended or revoked. The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked;  but a gift which the  parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescind ded. Save      as      aforesaid      a      gift      cannot      be       revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

Illustrations

• A gives a field to B, reserving to himself, with B’s assent, the right to take back the field incase B and his descendants dies before A. B dies without descendants in A’s lifetime. A may take back the field.
• A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds good as to Rs. 90, 000, but is void as to Rs. 10,000, which continue to belong to A.

v Meaning of Hiba- Bil-Iwaz

“Hiba” means Gift and “Iwaz” means consideration or return. Therefore Hiba- bil-iwaz means gift for consideration or something in lieu of gift. If a gift has been made and completed subsequently donee also gives something to donor in lieu of the gift.

i.       Essentials of valid Hiba- Bil-Iwaz.

For a valid Hiba- bil-Iwaz following two essentials are necessary.
a- a valid  and complete gift by the donor.
b- and actual payment of consideration by donee.

In other words we can say that it is Hiba for Hiba.

Meaning of Hiba-Bil-Shartul-Iwaz

 

It is a form of Hiba-bil-iwaz with a condition (shart). In this transaction donee does not pay the consideration voluntarily but it is paid to fulfill the condition imposed by donor. The subsequent gift by the donor to donee is the condition precedent. The subsequent gift is not consideration of first gift but it is given in the compliance of condition precedent.

Difference between Hiba- bil-iwaz and Hiba-ba-Shartul-iwaz.

1. In Hiba- bill-iwaz the consideration is paid by donee voluntarily whereas in Hiba-ba-Shartul-iwaz its payment is a condition precedent.
2. In Hiba- bil-iwaz the consideration is at the will of donee but in Hiba-ba-shartul- iwaz the value and kinds of consideration is at the discretion of the donor.
3. Hiba- bil-Iwaz is not a Hiba; it is either sale or exchange whereas Hiba-ba-shartul-iwaz is treated as Hiba.
4. Doctrine of Musha is not applicable to Hiba- bill-iwaz whereas this doctrine is applicable to Hiba-ba-shartul-Iwaz.
5. Since Hiba- bil-iwaz is not gift, it is either sale or exchange , therefore it must be in writing and registered. Whereas in Hiba-ba-Shartul-iwaz writing and registration is neither necessary nor sufficient.
6. In Hiba- bil-Iwaz, the delivery of possession is not necessary whereas it is necessary in Hiba-ba-Shartul-iwaz.
7. The Hiba-bil-Iwaz becomes irrevocable as soon as made. Whereas Hiba-ba-Shaatul-iwaz is revocable and becomes irrevocable only after the payment of iwaz by the donee.

 

• Important points Gift/hibba

1. According to section 131 of Muhmedan law, By D.F Mulla , A Muslim during his lifetime has unfettered powers to deal with his properties as he deems fit.
2. A muslim owner can dispose of his entire property by way of gift but his testamentary powers donot exceeds one third, Muhammad Bibi vs abdul ghani, PLD 1975 KAR 979, Atta Muhammad versus Jan Muhammad 1980 CLC 872
3. According to section 140 of Muhmedan law, By D.F Mulla, A gift may be made through mdium of Trust, same conditions are necessary for the validity of gift as those for done, with the difference gift should be accepted by trust.

• Revocation of gift

1. Revocation of gifts before the delivery of possession, Under Muslim law, the revocation of gifts before the delivery of possession is allowed.
2. Revocation of gifts after the delivery of possession, One the other hand, declaration of revocation of gifts by the donor after the delivery of possession is not sufficient to revoke a gift. Until and unless the decree of a competent court is passed, the donee can use the property in any manner he wishes to.

• When the delivery of possession is not necessary:

There are some cases where the delivery of possession is not necessary. Like, a gift from one spouse to another, or say guardian to the ward.

1. Donor and donee living in the same property:

In a case where the subject matter of the gift is a house in which both the donor and donee are living together, any delivery of possession is not important. But there must be the bona fide intention of the donor for the transfer of property.

2. Gift by the spouses to each other:

Where a gift of immovable property is made by one spouse to the other the delivery of possession is not mandatory.

3. Gift of property already in possession of donee:

In the cases where the possession of the property is already with the donee, only the declaration by the donor and acceptance by the donee is enough to make this gift as a valid gift.

• Death Bed Gift or mortal sickenss Gift

According to Section  123 of Muhamedan Law, By D.F Mulla.

A gift made by Muslim during Mar ul Maut or  Death illness cannot take effect beyond a third of his estatate after payment of funeral expenses and debts, unless the heirs gives the consent, after the death of the donor, to the excess taking effect.

Marzul Maut. مرض الموت

Is malady which includes an apprehension of death in the person from it, which eventually results in his death.

Necessary conditions for validity of gift made during marz ul maut.

According to Section  124 of Muhamedan Law, By D.F Mulla A gift made during marz ul Maut is subject to all the conditions necessary for the validity of hiba or gift. Including delievery of possession by the donor to done.

Gift of Musha

It means Musha the ‘undivided part’ or share, which could also be a common building or land. As a gift of a part of a thing which is capable of division is not valid unless that particular part is divided off and separated from the property of the donor, however, the gift of an indivisible thing is absolutely valid. In Muslim law, Musha signifies an undivided share in joint property. Musha is thus, a co-owned which is also the joint property. Moreover, if one of the several owners of that particular property makes a gift of their own share, there may be a confusion regarding the matter that which part of the property has to be given to the donee. In other words, there could be a real difficulty in delivering the possession of the gift if it is of a joint property which is made by a donor without partition of that gifted share. In order to avoid such confusions and difficulties in the stage of delivery of possession, the jurists pertaining to the Hanafi law have evolved the principle of Musha where the matter of a gift is co-owned or joint property, the doctrine of Musha becomes applicable for examining the validity of that particular gift. The doctrine is strictly confined to the rules by the interpretation of judiciary and has been cut down in a considerable manner.

Musha which is indivisible:

The Gift of Musha indivisible is valid. There are some of the properties which are by its very nature indivisible. The physical partition or the division of those properties is not practical. Moreover, if it is against the nature of such properties, their partition or division is affected at all and hence their identity is lost entirely, they do not remain the same properties which they were before the partition.

It has also been provided that to every Hiba the doctrine of Musha applies, except insofar as it must be taken that the creators of the doctrine could not have contemplated that it should be applied to the subject-matter of any particular gift.

Musha which is divisible:

In the Hanafi law, the gift of Musha of the divisible property is termed to be irregular that is fasid if made without partition, however, a co-owned piece of land, house or a garden, is Musha which is divisible. The land can be divided and the specific share can be separated by a visible mark of identification. Similarly, a house which is jointly owned may be divided by a partition wall without changing its entire identity. However, under the Hanafi doctrine of Musha, the gift without partition and the actual delivery of possession is not void ab initio; it is merely irregular which means fasid. The result is that where such a gift has been made, it may be regularized by the successive partition and by giving to the donee the actual possession of the specified share of the property. It is clearly evident that the doctrine of Musha is limited, both in its application as well as in its effects.

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