Wednesday, 29 April 2020

Notes on Gifts(Hiba) under Muslim law

A Hiba or gift under muslim law is transfer of property,made immediately,and without any exchange by one person to another,and accepted by or on behalf of latter. It is thus conferring of property without consideration.

ESSENTIAL OF VALID GIFT
1) The donor must be competent- The donor must have capacity to make a gift that is he must be a major and of sound mind.The donor's intention must not be dishonest, as where a gift is made with intent to defraud creditors.
2) Declaration and acceptance-Acceptance can be express or implied.
3) Delivery of possession of  property is mandatory.
There are four kinds of gifts under muslim law:
1) Sadaquah:- Where the object of the donor is acquire merit in the eyes of lord and a recompense in the next world,the gift is called sadaquah. It is gift with religious motive.It can not be revoked. Sadaquah need not be expressly accepted.
2) Hiba-bil-iwaz:- It is a gift for consideration. It resembles a sale in that (a) transfer of title is complete without delivery of possession,and (b) all the incidents of sale attach to it .

3) 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.Gift is revocable until iwaz is paid.On payment of iwaz by donee,the gift becomes irrevocable.

4) Areeat:- An areeat is the grant of a licence,revocable at the grantor's option,to take and enjoy the usufruct of a thing.

HIBA AND TRANSFER OF PROPERTY ACT

By virtue of S 129 of transfer of property Act, the provisions of that Act except S 53 of Transfer of property Act are not applicable to muslim law. Hence there is no requirement that gift must be in writing or gift must be by registered document.If there is no delivery of possession,there is no valid gift.Even a registered deed of gift is not effectual under muslim law,if it is not accompanied by delivery of possession.

S 53 of Transfer of property Act(dealing with fraudulent transfer) is however,applicable to gift by muslim. Therefore a gift by a muslim with intent to defraud his creditors is voidable at the option of the creditors.

VOID GIFTS UNDER MUSLIM LAW

1)Gifts of future property is void.

2)Contingent gifts:- If gift is made contingent upon the happening or not happening of a future uncertain event,such a gift is void in muslim law.
3) Gifts to unborn persons is void except made by way of wakf.

4) Conditional gifts:- When a gift is made subject to a condition which derogates from the completeness of the grant,the gift is valid,but the condition is void.

5) Gifts of undivided shares( mushaa) :- The term mushaa refers to an undivided share in property -Whether movable or immovable.The rules as regards gifts of mushaa may be stated as under:
1) A valid gift can be made of an undivided share in property which is not capable of partition. The gift of right to use staircase,though it is a gift of mushaa is valid,for a staircase is not capable of division.
2) A gift of an undivided share in property which is capable of division is irregular(fasid),but not void(Batil).As such a gift is merely irregular,it can be perfected and made valid by subsequent partition of the property and delivery of share of donee. Once this is done,it becomes a valid gift.

6) Gifts of property held adversly to the donor:- Donor can not gift a property which is in possession of third party.Donor must obtain possession of that property and possession of that property must be handed over to donee for completion of gift.

REVOCATION OF GIFTS 
A donor can revoke gift at any time before delivery of possession of property. After delivery of possession of property if donor wants to revoke gift,he should obtain decree of court for that purpose.Until decree is passed,donee is entitled to use and dispose of the subject of gift.
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