CONCEPT OF HIBA UNDER MUSLIM

MUS LIM LAW

The conception of the term ‘gift’ as used in the Transfer of Property Act, 1882 is somewhat
different from the practice under the Muslim Law !nder the Muslim Law a gift is a transfer of 
 property or right "y one person to another in accordance with the pro#isions pro#ided under 
Muslim law $i"a %Tamli& al ain' , is an immediate and unconditional transfer of the ownership
of some property or of some right, without any consideration or with some return %ewa(') and
The term ‘hi"a’ and ‘gift’ are often indiscriminately used "ut the term ‘hi"a’ is only one of the
&inds of transactions which are co#ered "y the general term ‘gift’ The other types of gifts
include*

• Ariya %Tamli&
%Tamli& al manafe', where only usufruct is transferred and
an d
• +adah where the gift is made "y the muslim with the o"-ect of acuiring religious merit

 A Man may lawfully ma&e a gift of his property to another during his lifetime) or he may gi#e it
away to someone after his death "y will The first is called a disposition inter #i#os) the second, a
testam
testamenta
entary
ry dispos
dispositi
ition
on Muhamm
Muhammadan
adan law permit
permitss "oth
"oth &inds
&inds of transf
transfers
ers)) "ut while
while a
disposition inter #i#os is unfettered as to uantum, a testamentary disposition is limited to one.
third of the net estate Muhammadan law allows a man to gi#e away the whole of his property
during his lifetime, "ut only one.third of it can "e "eueathed "y will

The $anafi lawyers define hi"a as *

‘an act of bounty by which a right of property is conferred in something specific without an
exchange’
exchange’

 The +hias hold that *

‘a hiba is an obligation by which property in a specific object is transferred immediately and 

unconditionally without any exchange and free from any pious or religious purpose on the part 
of the donor’ 

Muslim law allows a Muslim to gi#e away his entire property "y a gift inter #i#os, e#en with the
specific o"-ect of disinheriting his heirs
 ESSENTIALS OF HIBA

+ince muslim law #iews the law of /ift as a part of law of contract, there must "e an offer %i(a"',
an accepta
acceptance
nce %a"ul'
%a"ul',, and transf
transfer
er %a"(a'
%a"(a' 0n Smt Hussen
Hussenabi
abi v Husens
Husensab
ab Hasan[
Hasan[vii
vii]], a
grandfather made an offer of gift to his grandchildren $e also accepted the offer on "ehalf of 
mino
minorr gran
grandch
dchil
ildr
dren
en $owe
$owe#er
#er,, no epr
epres
esss of impl
implie
ied
d acce
accepta
ptanc
ncee was
was made
made "y a ma-o
ma-or 
r 
grandson arnata&a $3 held that since the three elements of the gift were not present in the case
of the ma-or grandchild, the gift was not #alid 0t was #alid in regards to the minor grandchildren

Thus, the following are the essentials of a #alid gift4#iii5.

1 A declaration by te Donor *

There must "e a clear and unam"iguous intention of the donor to ma&e a gift 6eclaration
is a statement which signifies the intention of transferor that he intends to ma&e a gift A
declaration can "e oral or written The donor may declare the gift of any &ind of property
either orally or "y written means !nder Muslim law, writing and registrations are not
necessary 0n the famous case of Ilahi
of Ilahi Samsuddin v. aitunbi !a"bul it was held that
under Muslim Law, declaration as well as acceptance of gift may "e oral whate#er may
 "e nature
n ature of property gifted 7hen the gift is made in writing, it is &nown as Hibanama
as Hibanama
This gift deed need not "e on stamp paper and also need not "e attested
attested or registered
registered 0n
the famous case of !d.
of !d. Hesabuddin v !d. Hesaruddin# where the gift was made "y a
Muslim 7oman and was not written on a stamp paper, /uahati $igh 3ourt held that the
gift was #alid

The declaration made "y the donor should "e clear A declaration of /ift in am"iguous words is
#oid 0n !aimuna
0n !aimuna $ibi v. %asool !ian# it was held that while oral gift is permissi"le under 
Muslim law, to constitute a #alid gift it is necessary that donor should di#est himself completely
of all ownership and dominion o#er su"-ect of gift $is intention should "e in epress and clear 
words

 According to Macnaghten,  & gift cannot be implied. It must be

b e express and une"uivocal# and 
the intention of donor must be demonstrated by his entire relin"uishment of the thing given# and 
the gift is null and void when he continues to exercise any act of ownership over it.9
The declaration should "e free from all the impediments such as inducement, threat, coercion,
duress or promise and should "e made with a "ona fide intention

!" Acce#t
Acce#tan
ance
ce by
by te
te Donee
Donee

 A gift is #oid if the donee has not gi#en his acceptance Legal guardian may accept on "ehalf of 
a minor 6onee can "e a person from any religious "ac&ground $i"a in fa#or of a minor or a
female is also #alid 3hild in the mother’s wom" is a competent done pro#ided it is "orn ali#e
within : months from the date of declaration ;uristic person are also capa"le of "eing a donee
and a gift can "e made in their fa#or too <n "ehalf of a minor or an insane person, any guardian
as mentioned under the pro#isions of Muslim law can accept that gift These include4#i5*

• =ather 

• =ather’s >ecutor 

• Paternal /rand.=ather 

• Paternal /rand =ather’s >ecutor

? 6eli#e
6eli#ery
ry of possess
possession
ion "y the donor and ta&ing
ta&ing of the possess
possession
ion "y the done4
done4#ii
#ii5*
5* 0n
Muslim law the term possession means only such possession as the nature of the su"-ect
is capa"le of Thus, the real test of the deli#ery of possession is to see who @ whether the
donor or the donee @ reaps the "enefits of the property 0f the donor is reaping the "enefit
then the deli#ery is not done and the gift is in#alid

The mode of deli#ery of possession depends completely upon the nature of property A deli#ery
of possession may either "e*

Act$al

Con%tr$cti&e

1 Act$al Deli&ery o' Po%%e%%ion * 7here the property is physically handed o#er to the
donee, the deli#ery of possession is actual /enerally, only tangi"le properties can "e
 deli#ered to the done A tangi"le property may "e mo#a"le or immo#a"le !nder Muslim
law, where the mutation proceedings ha#e started "ut the physical possession cannot "e
gi#en and the donor dies, the gift fails for the want of deli#ery of possession $owe#er, in
such cases if it is pro#ed that although,
although, the mutation was not complete and the done has
already ta&en the possession of the property, the gift was held to "e #alid

2 Con%tr$cti&e Deli&ery o'  Po%%e%%ion * 3onstructi#e deli#ery of possession is sufficient to

constitute a #alid gift in the following two situations*

• 7here the Property is intangi"le, ie it cannot "e percei#ed through senses

• 7here the property is tangi"le, "ut its actual o r physical deli#ery is not possi"le

!nder Muslim law, egistration is neither necessary, nor sufficient to #alidate the gifts of 
immo#a"le property A hi"a of mo#a"le or immo#a"le property is #alid whether it is oral or in
writing) whether it is attested or registered or not, pro#ided that the deli#ery of possession has
ta&en place according to the rules of Muslim Law45

SUB(ECT MATTER OF )IFT UNDER MUSLIM LAW

 Bow the uestion which we ha#e

h a#e in mind is what can "e su"-ect matter of $i"a, under Muslim
law As per the pro#isions of Transfer of Property Act, 1882, the su"-ect matter of the gift must
 "e certain eisting mo#a"le or immo#a"le property 0t may "e land, goods, or actiona"le claims
0t must
must "e trans
transfe
fera
ra"l
"lee under
under s : Cut
Cut it cann
cannot
ot "e futu
future
re prope
propert
rty
y A gift
gift of a righ
rightt of 
management is #alid) "ut a gift of future re#enue of a #illage is in#alid These cases were
decided under $indu and Mohammedan law respecti#ely "ut they illustrate the principle 0n a
3alcutta case, it was said that the release of a de"t is not a gift, as a gift must "e of tangi"le
 property 0t is su"mitted that the release of a de"t is not
no t a gift as it does not in#ol#e a transfer of 
 property "ut is merely a renunciation of a right of action 0t is uite clear that an actiona"le claim
such as a policy of insurance may "e the su"-ect of a gift 0t is su"mitted that in a deed of gift the
meaning of the word ‘money’ should not "e restricted "y any hard and fast rule "ut should "e
interpreted
interpreted ha#ing regard to the contet properly construed
construed in the light of all the rele#ant
rele#ant facts
Therefore in order to constitute a #alid gift, there must "e an eisting property 0n Mohammedan
law any property or right which has some legal #alue may "e the su"-ect of a gift
!nder the Muslim law, following constitute the su"-ect matter of $i"a*

1 0t must "e anything

anything %mo#ea"
%mo#ea"le
le or immo#a"
immo#a"le,
le, corpore
corporeal
al or incorp
incorpore
oreal'
al' o#er which
which the
right of property may "e eercised or anything which eists either as a specific entity or 
an enforcea"le right, or anything designa"le under the term mal %property'

2 0t must "e
"e in eistence
eistence at the time
time when the
the gift is made Thus,
Thus, gift
gift of anything
anything that is
is to
 "e made in future is #oid =or eample, a donor ma&es a gift the fruits of his mango
garden that may "e produced this year This gift is in#alid since the mangoes were not in
eistence at the time of ma&ing the gift

? The donor
donor must
must posses
possesss the
the gift
gift

D A gift
gift of a part of a thing
thing which
which is capa"le
capa"le of di#ision
di#ision is not
not #alid unless
unless the
the said part
part is
di#ided off and separated from the property of the donor) "ut a gift of an indi#isi"le thing
is #alid =or eample, A, who owns a house, ma&es a gift to C of the house and of the
right to use a staircase used "y him -ointly with the owner of an ad-oining house The gift
of A’s undi#ided share in the use of the staircase is not capa"le of di#ision) therefore it is
#alid

E Accor
Accordi
ding
ng to $anafi
$anafi law,
law, the gift
gift of an undi
undi#i
#ided
ded share
share in any prope
property
rty capa"l
capa"lee of 
di#ision is, with certain eceptions, incomplete and irregular %fasid', although it can "e
rendered #alid "y su"seuent separation and deli#ery of possession =or instance, A
ma&es a gift of her undi#ided share in certain lands to C, and the share is not di#ided off 
at the time of the gift "ut is su"seuently separated and possession thereof is deli#ered to
C, the gift although irregular %fasid' in its inception, is deemed #alid "y su"seuent
deli#ery of possession

E*ce
E*ce#t
#tio
ion%
n%++ )i't
)i't o' %$c
%$c $n
$ndi
di&i
&ide
ded
d %ar
%aree i% &ali
&alid
d ,ic
,ic
 i% inca
inca#a
#abl
blee o' 
di&i%ion+

a' Hiba by one co-eir to te oter ) =or instance, A muslim woman died lea#ing a mother, a
son, and a daughter The mother made a gift of her unreali(ed one.sith share -ointly to the
deceased’s son and daughter The gift was upheld " y Pri#y 3ouncil
 "' Hiba o' a %are in 'ree old #ro#erty in a lar.e co//ercial to,n ) =or instance, A wons
a house in 6ha&a $e ma&e a gift of one third of his house to C The Property "eing situated in a
large commercial town, the gift is #alid

c0 1i/indari or tal$2a ) According to Ameer Ali the doctrain of Musha

Hiba o' a %are in a 1i/indari
was applica"le only to small plots of land, and not to specific shares in large landed properties,
li&e (amindaris Thus, if A and C are co.sharers in a (amindari, each ha#ing a well @defined
share in the rents of unde#ided land, and A ma&es a gift of his share to C, there "eing no regular 
 partition of the (amindari, the gift is #alid

d' Hiba o' a %are in a land co/#any 3 Muslim law recogni(es the difference "etween the
corpus and the usufructs of a property 3orpus, or Ayn, means the a"solute right of ownership of 
the property which is herita"le and is unlimited in point of time, while, usufructs, or Manafi,
means the right to use and en-oy the property 0t is limited and is not herita"le The gift of the
corpus of a thing is called $i"a and the gift of only the usufructs of a property is called Ariya

0n 'awa(ish
0n 'awa(ish &li )han vs
v s &li %a(a )han
)ha n, it was held that gift of usufructs is #alid in Muslim law
and that the gift of corpus is su"-ect to any such limitations imposed due to usufructs "eing gifted
to someone else 0t further held that gift of life interest is #alid and it doesn’t automatically
enlarge into gift of corpus This ruling is applica"le to "oth +hia and +unni

$ence a critical scrutiny of concept of /ift under Muslim law, gi#es us the following instances
regarding what can "e su"-ect matter of $i"a*

• anything o#er which right of property may "e eercised

• anything which may "e reduced to possession

• anything which eists either as a specific entity or as an enforcea"le right

• anything which comes within the meaning of the word mal

0n %ahim
0n %ahim $ux vs !ohd. Hasen,
Hasen, it was held that gift of ser#ices is not #alid "ecause it does not
eist at the time of ma&ing the gift
g ift
 4INDS OF )IFTS

There are se#eral #ariations of $i"a These include*

Hiba bil I,a1

Hiba ba Sart $l I,a1

Sad2a

Ariyat

HIBA- IL-IWA5

‘$i"a’ means ‘gift’ and ‘0wa(’ means ‘consideration’ $i"a Cil 0wa( means gift for consideration
already recei#ed 0t is thus a transaction made up of two mutual or reciprocal gifts "etween two
 persons <ne gift from donor
dono r to donee and one from donee to donor The gift and return gift are
independent transactions Threrfore, when "oth ie, hi"a %gift' and iwa( %retarn or consideration'
is completed, the transaction is called hi"a."il.iwa( =or eample, A ma&e a gift of a cow to +
and later C ma&es a gift of a house to A 0f C says that the house was gi#en to him "y A "y way
of return of echange, than "oth are irre#oca"le4i5

+o a $i"a Cil 0wa( is a gift for consideration and in reality it is a sale Thus, registration of the
gift is necessary and the deli#ery of possession
possession is not essential
essential and prohi"ition
prohi"ition against Mushaa
does not eist The following are reuisites of $i"a "il 0wa(*

1 Actual payment
payment of considera
consideration
tion on the part
part of the
the donee is
is necessary
necessary 0n )hajoorunissa
0n )hajoorunissa
vs %aushan
%aushan $egam[xxx]
$egam[xxx],, it was held that adeuacy of the consideration is not the
uestion As long is the consideration is "ona fide, it is #alid no matter e#en if it is
insufficient

2 A "ona
"ona fide
fide intent
intentio
ion
n on the part of the
the donor
donor to di#es
di#estt hims
himsel
elff of the proper
property
ty is
essential
/ift in lieu of dower de"t @ 0n *ulam &bbas vs %a(ia[xxxi],
%a(ia[xxxi], the hon’"le $igh 3ourt at Allaha"ad
held that an oral transfer of immo#a"le property worth more than 1FFG. cannot "e #alidly made
 "y a muslim hus"and to his wife "y way of gift in lieu of dower de"t which is also more than
1FFG. 0t is neither $i"a nor $i"a "il 0wa( 0t is a sale and must "e done through a registered
instrument

HIBA-BA-SHARTUL-IWA5

‘+hart’ means ‘stipulation’ and ‘$i"a "a +hart ul 0wa(’ means a ‘gift made with a stipulation for 
return’
return’ !nli&e in $i"a "il 0wa(, the payment of considerati
consideration
on is postponed
postponed +ince the payment
payment
of consid
considerat
eration
ion is not immedi
immediate
ate the deli#e
deli#ery
ry of posse
possessi
ssion
on is essent
essential
ial The trans
transact
action
ion
 "ecomes final immediately upon deli#ery 7hen the consideration is paid, it assumes the
character of a sale and is su"-ect to preemption %+hufa' As in sale, either party can return the
su"-ect of the sale in case of a defect

0t has the following reuisites @ 

• 6eli#ery of possession is necessary

• 0t is re#oca"le until the 0wa( is paid

• 0t "ecomes irre#oca"le after the payment of 0wa(

• Transaction when completed "y payment of 0wa(, assumes the character of a sale

0n general, $i"a "il 0wa( and $i"a "a +hart ul 0wa( are similar in the sense that they are "oth
gifts for a return and the gifts must "e made in compliance with all the rules relating to simple
gifts

RE6OCATION OF )IFT

Although there is a tradition which indicates that the Prophet was against the re#ocation of gifts,
it is a well esta"lished rule of Muslim law that all #oluntary transactions, including gifts, are
re#oca"le The Muslim law.gi#ers ha#e approached the su"-ect of re#oca"ility of gift from
se#eral angles
=rom one aspect, they hold that all gifts ecept those which are made "y one spouse to another,
or to a person related to the donor within the degrees or prohi"ited relationship, are re#oca"le

The $edaya gi#es the reasons thus4ii5* +he

+he object of a gift to a stranger is a return for it is
custom to send presents to a person of high ran, that he may protect the donor- to a person of 
inferior ran, that the donor may obtain his services- and to person of e"ual ran, that the donor 
may obtain an e"uivalent and such being the case it follows that the donor has the power of 
annulment# so long as the object of the deed is not answered# since a gift is capable of 
annulment
annulment

The tets of Muslim law lay down a long list of gifts which are irre#oca"le The contents of the
list differ from school to school, and the +hias and the +unnis ha#e the usual differences The
Muslim law.gi#ers also classify gifts from the point of #iew of re#oca"ility under the following
two heads4iii5*

• e#ocation of gifts "efore the deli#ery of possession

• e#ocation of gifts after the deli#ery of possession

Re&ocation o' .i't% be'ore te deli&ery o' #o%%e%%ion *

!nder Muslim law, all gifts are re#oca"le "efore the de li#ery of possession is gi#en to the donee
Thus, P ma&es a gift of his motor.car to H "y a gift deed Bo deli#ery of possession has "een
made to H P re#o&es the gift

The re#ocation is #alid 0n this case, it will not ma&e any difference that the gift is made to a
spouse, or to a person related to the donor within the degrees of prohi"ited relationship The fact
of the matter is that under Muslim law no gift is complete till the deli#ery of possession is made,
and therefore, in all those cases where possession has not "een transferred the gift is incomplete,
and whether or not it is re#o&ed, it will not "e #alid till the deli#ery of possession is made to the
donee

The re#ocation of such a gift, therefore, merely means that the donor has changed his mind and
does not want to complete it "y the deli#ery of possession =or the re#ocation of such gifts, no
order of the court is necessary =y(ee rightly says that this is a case of inchoate gift and it is not
 proper to apply the term re#ocation to such a gift
Re&ocation a'ter te deli&ery o' #o%%e%%ion *

Mere declaration of re#ocation "y the donor, or institution of a suit, or any other action, is not
sufficient to re#o&e a gift Till a decree of the court is passed re#o&ing the gift, the donee is
entitled to use the property in any
an y manner) he can also alienate it

0t seems that*

• all gifts after the deli#ery of possession can "e re#o&ed with the consent of the donee,

• re#ocation can "e made only "y a decree of the court

According to the $anafi +chool, with the eception of the following cases, a gift can "e re#o&ed
e#en after the deli#ery of possession The eceptions to the same are*

• 7hen a gift is made "y one

o ne spouse to another

• 7hen the donor and the donee are related within the prohi"ited degrees

• 7hen the donee or the donor is dead

• 7hen the su"-ect.matter of the gift is no longer in the possession of the donee, ie, when
he had disposed it off "y sale, gift or otherwise or, where he had consumed it, or where it
had "een lost or destroyed

• 7hen the #alue of the su"-ect.matter has increased

• 7hen the identity of the su"-ect.matter of the gift has "een completely
co mpletely lost, -ust as wheat,
the su"-ect.matter of gift, is con#erted into flour

• 7hen the donor has recei#ed something in return %iwa('

• 7hen the o"-ect of gift is to recei#e religious or spiritual "enefit or merit, such as sadaa
The +hia law of re#ocation of gifts differs from the +unni law in the following respects* =irst,
gift can "e re#o&ed "y a mere declaration
declaration on the part of the donor without
without any proceedings in a
court of law) secondly, a gift made to a spouse is re#oca"le) and thirdly, a gift to a relation,
whether within the prohi"ited degrees or not, is re#oca "le