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FIQH AL-WASSIYYAH: HIBAH

Cases

Mohammad Hairul Hafizan bin Hanape

13B0234

Fakulti Shariah dan Undang-undang

University Islam Sultan Sharif Ali
Negara Brunei Darussalam

2015M/1436H

Abd Razak bin Abd Ghani v Abd Rahim bin Othman [2013] 4 ShLR 14
Facts: the appellant was appealing against the entire decision of the Shariah
High Court which held that the 5,750 acres of land was a gift (hibah) during
the lifetime of the deceased, Ghani bin Sulong, to Chik bt Mahmud, the
deceased. In this case, the respondent filed a claim in the Shariah High Court
and named the four defendants as follows; Abdul Razak (the appellant),
Noriza bt Othman (D2), Alias bin Othman (D3) and Ahmad Nazir bin Othman
(D4). The respondent had sought a court order to declare that the said
property was an inter vivos gift to the deceased (Chik bt Mahmood) and
accordingly that the property be transferred to the plaintiff, as the rightful
heirs to the deceased. [inter vivos gift meant something you give that you
cant reclaim back in the future.]
During the trial, Norliza, Alias and Ahmad Nazir had agreed with the claim of
the respondent, while Abdul Razak contested the claim. On 13 March 1995,
Ghani bin Sulong, the appellants father, was alleged to have made a gift of
the disputed land to Chik bt Mahmood. Chik was the stepchild of Ghani and
stepsister of the appellant. The land was obtained by the trial in the Shariah
High Court, both Ghani and Chik died. The appellant (defendant) dissatisfied
with the decision of the trial judge appealed to the court against the said
decision.
Issue:

whether

there

was

in

existence,

qabd@possession

(by

plaintiff) in the alleged hibah transaction.

In Syafie Mazhab, its a condition (qabd) for hibah to be effective; where the
recipient must receive the property and has control over it.
the deceased Ghani was still taking benefits from the said land so that
the learned judge was erred in facts and law regarding validity of hibah when
there is no qabd by the deceased Chik, when this condition is against the
pillars of hibah: all this taken place after the hibah has been made.

Held: the words of the deceased Ghani in document P4 (the agreement) was
al-takhliah ie he let go his possession towards the land. The words were as
follows: it is up to Chik to administer this land and regarding the
acquirement of grant [refer: conditions for taking possession of the
property.]
With that document, enables deceased Chik to do acts which signified her
possession of the land. Even though in the facts the deceased still taking
benefits from the said land during his lifetime after making the hibah.
The court referred to Kitab al-Fiqh al-Manhaji vol. 3 p. 16: with regards to
immovable property like house and land, qabd can happen with the way of
al-takhliah between the seller and the buyer. The seller makes the buyer to
possess it. The seller remove obstacles which may render acceptance by the
buyer. The seller turn in the key (to buyer) if it is a house and etc.
Al-takhliah means to abandon, to leave, or to let go. It was in the hands of
the hibah giver whom let to his possession to the hibah receiver.
Rentah@qabd means the actions from the recepient; and rentah would not
happen if the hibah giver doesnt give al-takhliah (pelepasaan hak milik).
The appellant failed on his appeal.

Raihanah bt Mohd Ali v Kamaruddin bin Mohd Nor & Ors [2011] 2 ShLR 35
The plaintiff claimed that the deceased, Samirah bt Mohd Ali, made hibah of
a house which was under construction in the Mukim Cenering, Kuala
Terengganu. The house (HS(M) 1625 Lot No PT2288P) was still under
construction was purchased by the deceased in July 1999, and acquired
through government loan.
Issues

So, whether the deceased had fulfilled the conditions of al-waahib:

Ownership of the subject matter

Has full authority over his property

Has attained puberty and of sound mind

Whether the plaintiff had during her lifetime made gifts of the said
properties to her, and that she accepts and takes possesion of the
hibah. Ie rukn al-hibah

Hibah provider (al-wahib)

Hibah recipient (al-Mawhub lahu) [the recipient must receive the

property and has control over it.]

Property for hibah (al-Mawhu)

Contract of hibah (al-sighah) : ijab from donor and qabul from the
recipient

1st issue: no evidence adduced: tatkala syarat sah pemberi hibah (waahib)
untuk membuat hibah telah tidak berjaya dibuktikan maka jelaslah bahawa
waahib di dalam tuntutan ini, iaitu Samirah bt Mohd Ali, tidak berkeupayaan
untuk membuat hibah ke atas harta ie hartanah sebuah rumah yang di
dalam proses pembinaanterletak di Mukim Cenering, Daerah Kuala
Terengganu.
[The plaintiff failed to give evidence to show that the deceased was in fact
fulfilled the conditions for al-waahib.]
2nd issue: sighah, ijab & qabul.

The plaintiff failed to adduce evidence to show that the deceased made such
ijab to her during her lifetime.
The court referred to the kitab Kifayatul Akhyar fi Hilly Ghayatil Ikhtisar by
Imam Taqiuddin Abu Bakar bin Muhammad al-Husainy, a scholar of Syafiiah
9 AH (Juz 1, published by Darul Ihyaail Kutub al-Arabiyyah, Indonesia, pp.
324-25):
Hibah tidak sempurna dan tidak dapat berkuatkuasa melainkan orang yang
menerima hibah menerima barang yang dihibah itu.
The court referred: Dr Wahbah az-Zuhaili, in Al-Muaamalaat al-Maliyah alMuaasirah, published by Darul Fikri Beirut, Lebanon, 1st edition 2002, at
p.40:
The acceptance from the al-mauhuh lahu for immovable property is when the
waahib allows the hibah property to be used by the recipient, ie to take
benefits from it. For example the recipient grow plantations on it, or he is
building structures on it or that he collects fruits from that land.
Possession: as according to Syafie mazhab, this is a condition for the hibah
to be effective.

Conditions for taking possession of the property:

With the explicit permission from the donor; by expression or by

handing over he property to the recipient.

The subject matter of hibah is not mixed with other property, and

The recipient is an adult of sound mind.

In this claim, the plaintiff again failed to adduce such evidence as is

necessary to convince the court. She failed to show to the court that
she has used the land for plantations, or building structures or she
collects fruits from the said land.