GIFT-

MUSLIM LAW
HIBA
GIFT/HIBA
 Muslim is allowed to gift during lifetime or by will
 Disposition by intervivos-whole of property
 Testamentary disposition-1/3 part of property
 Hiba is a transfer of determinate property, made
without any exchange
 Hiba as‘the conferring of a right of property in
something specific without an exchange”
 Transferring ownership of a property to other without
any consideration is hiba.

 Sec.122 of T.P.Act,1882-Gift is the transfer of certain

existing movable or immovable property made
voluntarily and without any consideration,by one
person called the donor,to another,called the donee,
and accepted by or on behalf of the donee.
GIFT
1. Unconditional transfer
2. Made w/o exchange
3. w/o consideration
4. By one person to another
5. Accepted by or behalf of later
ESSENTIALS OF GIFT
 PARTIES
 SUBJECT

 FORMALITIES
PARTIES
 DONOR: makes gift,
major,muslim
sound mind-not in drunken condition
owner-full capacity to transfer
 DONEE:

Accepts gift,
must be in existence,
age,sex,creed,religion-no bar
lunatic-handed over to guardian
gift to unborn is void
SUBJECT MATTER
 Any property or right belonging to donor
 Thing over which right is exercised and reduced
into possession
 Things termed under “mal”(goods)-property
which has some value
 Property must be in existence at time of gift

 Gifts which produced in future is void

 subject may be corporeal(seen/touched) or

incorporeal(no physical existence) e.g.rights
 Gifts may be corpus(things itself) or
usufruct(benefit of things)
FORMALITIES
1. Declaration by Donor
2. Acceptance by donee
3. Delivery of possession
DONOR

declaration must be
clear,unambigous,bonafied,
voluntarily
intention

if declaration is u/fraud,coercion void

DELIVERY OF POSSESSION
 Possession such as the nature of the subject is
capable of
 Must be actual possession

 Physically depart it with all belongings

 Formal entry by donee

 Clear intention to transfer

 Two things-1.must depart from premises

2.formally enters into possession.
 Noncompliance would render it
ineffective,inoperative and void.
EXCEPTION TO RULE
 Gift by father to child
 Doner,donee resides in same property

 Gift from husband to wife or vise versa

 Co-sharer to another

 Part delivery ,rest may be inferred

 Donee in possession
VOID GIFT
 Unborn person
 Gift in future

 Contigent gift

 Gift with condition

 Gift for temporary period

FORMALITIES

 Writing not essential

 Gift made u/muslim law is valid though not
registered,not attested
 Sec 123 transfer of property Act
HIBA-BIL-MUSHAA
 Doctrine of mushaa-confusion
 Undivided share in property

 Mixing of proprietary rights of more than one

person in a things when each co-owner has right
until partition of property
 Gift of a part of a things which is capable of
division. it is not valid unless said part is divided
off and separated from property of donor
 Gift of undivided share in property not capable of
division is valid
EXCEPTION-
Gift of mushaa (gift of undivided share of property
capable of division is valid even if share is not
divided off) -except
 Gift by one heir to another

 Gift of share in a zamindari land

 Gift of share in a freehold property in large

commercial town
REVOCATION OF GIFT
 Before delivery-gift not complete
donor right to revoke
 After delivery-
hanafi law-revoke by consent of donee or
decree of court
shia law-revoke by declaration or consent
decree not neccessary
IRREVOCABLE GIFTS
 Donor or donee dead
 Donee related to donor in prohibited degrees

 Donor and donee in marital relationship

 Subject transfer by donee by sale,gift

 Subject lost,destroyed,lost indentity

 Subject of gift increased in value & not separable

 Sadaqah

 Shia law-after delivery

gift to blood relation –irrevocable
husband to wife -revocable
KINDS OF HIBA
•Hiba-bil-iwaz
1 •(gift for consideration)

•Hiba-ba-shartul-iwaz
2 •(gift with condition)

•sadaqah
3
4
•ariyat
HIBA-BIL-IWAZ
 Person makes gift in return for something
 Two separate transaction

 1-hiba 2-iwaz
 Two mutual,reciprocal gifts

 Gift + return gift are independent transactions

which together make up hiba-bil-iwaz
 Not practice in India

 Iwaz direct consideration for hiba-resale

 Actual payment is necessary

 Delivery of possession is necessary

 Registration is neccessary
HIBA-BA-SHARTUL-IWAZ
 Gift with condition
 Shart-stipulation

 Gift with stipulation

 Payment on consideration postponed

 Consideration is not immediate

 Delivery of possession is necessary

 It is revocable until iwaz is paid

SADAQAH

 Gift for religious motive

 Not revocable

 To get religious benefit/merit

 Can be made to two or more persons

 Donee must be poor

 Delivery is necessary

 Express acceptance not necessary

ARIYAT
 Corpus can be gifted
 Usufruct cab be gifted
 The grant of licence by the grantor to take and enjoy
the usufruct of the thing
 Gift by transfer of corpus of immovable property has
to be absolute. Such gift would be valid while any
condition attached thereto which derogates from
absolute dominion over property gifted would be void.
But gift of usufruct of property with conditions, is
permissible. Whether gift contemplated transfer of
corpus or gift of usufruct is to be determined on
consideration of text of gift deed. [V.
Sreeramachandra Avadhani v. Shaik Abdul
Rahim]
(2014) 9 SCC 350
DEATH - BED - GIFT :
(MARZ-UL-MAUT)
 When a person creates/makes a gift out of an
apprehension (fear) of imminent death and dies
later, it is called "Death-Bed-Gift“
 if a person makes a gift during illness and dies
later, it is called Death-Bed-Gift or Matz-UI-
Maut.

 It is subject to two restrictions:

(i) disqualification of heir; and
(ii) property disposed of should not exceed 1 /3 of
the net assets
MARZ-UL-MAUT/DEATH BED GIFT
 Disease which causes death
 It creates proximate danger in mind of death

 Gift made during marz-ul-maut=death bed gift

 Movable /immovable can be gifted

 No gift for more than 1/3

DONATIO MORTIS CAUSA
 Sec 191 of Indian Succession Act,1925 only
movable property can be subject matter of gift

 No limitation as to persons to whom/extent to

which property can be disposed of

 If donor recovered from illness gift fails but under

muslim law it operates as ordinary gift.