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“Law Master’s” Publication
“Gift / Hiba”
Prof. S.D. Bhosale
(..9..)
Gift / Hiba
QUESTION BANK
Q.1
Q3
Explain Hiba and its nature. What is a conditional and future gift?
Explain the deathbed 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
I. Introduction-
II. Definition of gift (Hiba)-
1. According to Mulla-
2. According to Fyzee-
III.
Features or Essentials of Hiba-
1. Declaration of gift by the Donor-
2. Acceptance of gift by the donee-
3. Delivery of possession-
IV. Registration of gifts-
V. Conditional, contingent, future gift and a gift of mushaa-
a) Conditional gift-
b) Contingent gift-
c) Future gift-
d) gift of mushaa-
VI. Revocation of gift-
a) Before delivery of possession-
b) After delivery of possession-
VI. Gift of death bead-
To be a valid death bed gift-
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“Law Master’s” Publication
“Gift / Hiba”
Prof. S.D. Bhosale
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) 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 a major, of sound mind, etc., and he must be the owner of
the property he is gifting.
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“Law Master’s” Publication
“Gift / Hiba”
Prof. S.D. Bhosale
document of 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.
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.
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
1 AIR 1960 MP 60
2 Woman by Muslim tradition always wearing Burkha or veil.
3 AIR 1976 Bom 23
4 (2011) 5 SCC 654
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“Law Master’s” Publication
“Gift / Hiba”
Prof. S.D. Bhosale
void. However, some of them can be validated by actual delivery. We will discuss them
as follows-
a) Conditional gift-
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-
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-
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.
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“Law Master’s” Publication
“Gift / Hiba”
Prof. S.D. Bhosale
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-
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 a 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 decreased.
(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-
“Donatio mortis causa,” i.e. gift on deathbed, 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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