Dr. Nasreen Taj
Professor of Law Saveetha University, Saveetha School of Law, Chennai
Gift is a transfer of property where interest is transferred from one living person to another, without any consideration. It is a gratuitous and inter vivos in nature. This is the general definition that is accepted by all the religions, including Muslim law. As per the Muslim Law, a gift is called as Hiba.
Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650 AD. In general, Muslim law draws no distinction between real and personal property, and there is no authoritative work on Muslim law, which affirms that Muslim law recognizes the splitting up of ownership of land into estates. What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (called as Ayn) and the usufruct in the property (as Manafi). Over the corpus of property the law recognizes only absolute dominion, heritable and unrestricted in point of time. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Mohammedan law they are only usufructuary interest (and not rights of ownership of any kind). Thus, in English law a person having interest in immoveable property for limited periods of time is said to be the “owner” of the property during those periods and the usufruct is also regarded as a part of the corpus. On the other hand, in Muslim law, a person can be said to be an “owner” only if he has full and absolute ownership. If the use or enjoyment of property is granted to a person for life or other limited period such person cannot be said to be an “owner” during that period. The English law thus recognizes ownership of the land limited in duration while Muslim law admits only ownership unlimited in duration but recognizes interests of limited duration in the use of property. This basically differentiates Muslim Law’s concept of property and gift from that of English Law.
Under Muslim Law, the religion of the person to whom gift is made is not relevant. In India, there is a separate statute that governs the matters related to transfer of property. The Transfer of Property Act, 1882 under Chapter VII talks about gifts and the procedure for making the same. Yet as per section 129 of the Act, the Transfer of Property Act, 1882 does not apply to the Muslims making gift.
- To know about the gift under Muslim law
- To know what are the Characteristics of Widow’s Right of Retention under Muslim Law
- To analyze the concept of HIBA under Muslim Law
Concept of Gift under Muslim Law
The concept of Gift or Hiba in Muslim law has existed from the very inception of the religion, circa. 600 A.D. While Muslim Law has not been shown to recognize the differentiation of land into estates, it does recognize the difference between the ownership of the land and the right to enjoy it.
Unlike English Law, ownership comes only with the full deed of the land and not with the simple possession or temporary tenancy. Hiba is only one of the aspects covered by the Transfer of Property Act under the term ‘gift’. It is the transfer of the property and all rights along with it, without expectation of any compensation.
The term Hiba has been defined in several aspects by the courts of India and, pursuant to this, the term has also been seen to exclude all nature of services, for services do not exist at the time of the promise- they can only be performed after the promise to perform is made, which implies that the same cannot fall under the definition of Hiba which requires the object to be in physical existence at the time of the gifting. It has been widely construed that the term mal has to apply to the object so gifted for the laws of Hiba to apply.
Surprisingly enough, all gifts are revocable before the actual transfer of property is made (i.e.) any person can unilaterally revoke his or her promise to gift before the promise is fulfilled. After possession, the laws of revocation differ between Sunni and Shia laws.
CONCEPT OF HIBA UNDER MUSLIM 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. Under the Muslim Law a gift is a transfer of property or right by one person to another in accordance with the provisions provided under Muslim law. Hiba (Tamlik 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 (ewaz); and The term ‘hiba’ and ‘gift’ are often indiscriminately used but the term hiba is only one of the kinds of transactions which are covered by the general term ‘gift’. The other types of gifts include Ariya (Tamlik al manafe), where only usufruct is transferred and Sadqah where the gift is made by the Muslim with the object of acquiring religious merit.
A Man may lawfully make a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will.
The Hanafi lawyers define hiba as ‘an act of bounty by which a right of property is conferred in something specific without an exchange’. The Shias 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 give away his entire property by a gift inter vivos, even with the specific object of disinheriting his heirs.
ESSENTIALS OF HIBA
Since Muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance (qabul), and transfer (qabza). In Smt Hussenabi v Husensab Hasan , a grandfather made an offer of gift to his grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express of implied acceptance was made by a major grandson. Karnataka HC held that since the three elements of the gift were not present in the case of the major grandchild, the gift was not valid. It was valid in regards to the minor grandchildren.
Thus, the following are the essentials of a valid gift-
A declaration by the donor: There must be a clear and unambiguous intention of the donor to make a gift. Declaration is a statement which signifies the intention of transferor that he intends to make a gift. A declaration can be oral or written. The donor may declare the gift of any kind of property either orally or by written means. Under Muslim law, writing and registrations are not necessary. In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul it was held that under Muslim Law, declaration as well as acceptance of gift may be oral whatever may be nature of property gifted. When the gift is made in writing, it is known as Hibanama. This gift deed need not be on stamp paper and also need not be attested or registered. In the famous case of Md. Hesabuddin v Md. Hesaruddin, where the gift was made by a Muslim Woman and was not written on a stamp paper, Guahati High Court held that the gift was valid.
The declaration made by the donor should be clear. A declaration of Gift in ambiguous words is void. In Maimuna Bibi v. Rasool Mian, it was held that while oral gift is permissible under Muslim law, to constitute a valid gift it is necessary that donor should divest himself completely of all ownership and dominion over subject of gift. His intention should be in express and clear words. According to McNaughton, “A gift cannot be implied. It must be express and unequivocal, and the intention of donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void when he continues to exercise any act of ownership over it.” The declaration should be free from all the impediments such as inducement, threat, coercion, duress or promise and should be made with a bona fide intention.
Acceptance by the donee: A gift is void if the donee has not given his acceptance. Legal guardian may accept on behalf of a minor. Donee can be a person from any religious background. Hiba in favor of a minor or a female is also valid. Child in the mother’s womb is a competent done provided it is born alive within 6 months from the date of declaration. Juristic person are also capable of being a donee and a gift can be made in their favor too. On behalf of a minor or an insane person, any guardian as mentioned under the provisions of Muslim law can accept that gift. These include: Father Father’s Executor Paternal Grand-Father Paternal Grand Father’s Executor. Delivery of possession by the donor and taking of the possession by the done: In Muslim law the term possession means only such possession as the nature of the subject is capable of. Thus, the real test of the delivery of possession is to see who – whether the donor or the donee – reaps the benefits of the property. If the donor is reaping the benefit then the delivery is not done and the gift is invalid.
The mode of delivery of possession depends completely upon the nature of property.
A delivery of possession may either be:
Actual Constructive Actual Delivery of Possession: Where the property is physically handed over to the donee, the delivery of possession is actual. Generally, only tangible properties can be delivered to the done. A tangible property may be movable or immovable. Under Muslim law, where the mutation proceedings have started but the physical possession cannot be given and the donor dies, the gift fails for the want of delivery of possession. However, in such cases if it is proved that although, the mutation was not complete and the done has already taken the possession of the property, the gift was held to be valid. Constructive Delivery of Possession: Constructive delivery of possession is sufficient to constitute a valid gift in the following two situations: Where the Property is intangible, i.e. it cannot be perceived through senses. Where the property is tangible, but it’s actual or physical delivery is not possible.
Under Muslim law, Registration is neither necessary, nor sufficient to validate the gifts of immovable property. A hiba of movable or immovable property is valid whether it is oral or in writing; whether it is attested or registered or not, provided that the delivery of possession has taken place according to the rules of Muslim Law.
CONSTITUTIONAL VALIDITY OF HIBA
The question of whether the first exemption was constitutionally valid in regards to the right to equality (article 14 of the Indian Constitution) was rather rapidly solved by the Courts, validating the disposition on the grounds of ‘reasonable classification.
It is enough to say that it is now well settled by a series of decisions of this Court that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation, and in order to pass the test of permissible classification, two conditions must be fulfilled, namely[xxi]:
(1) That the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and,
(2) That differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases such as, geographical, or according to objects or occupations and the like. The decisions of this Court further establish that there is a presumption in favor of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and further that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.
It is well known that there are fundamental differences between the religion and customs of the Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding gift are based on reasonable classification and the provision of Section 129 of the Transfer of Property Act exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the Constitution.
The most essential element of Hiba is the declaration, “I have given”. As per Hedaya, Hiba is defined technically as:
“Unconditional transfer of existing property made immediately and without any exchange or consideration, by one person to another and accepted by or on behalf of the latter“.
According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the property without any return.
Gift of such undivided share is valid which is incapable of division:
- a) Hiba by one co-heir to the other; For instance, A Muslim woman died leaving a mother, a son, and a daughter. The mother made a gift of her unrealized one-sixth share jointly to the deceased’s son and daughter. The gift was upheld by Privy Council.
- b) Hiba of a share in free holds property in a large commercial town; For instance, A owns a house in Dhaka. He makes a gift of one third of his house to B. The Property being situated in a large commercial town, the gift is valid.
- c) Hiba of a share in a zimindari or taluka; According to Ameer Ali the doctrine of Musha was applicable only to small plots of land, and not to specific shares in large landed properties, like zamindaris. Thus, if A and B are co-sharers in a zamindari, each having a well –defined share in the rents of undivided land, and A makes a gift of his share to B, there being no regular partition of the zamindari, the gift is valid.
- d) Hiba of a share in a land company
Muslim law recognizes the difference between the corpus and the usufructs of a property. Corpus, or Ayn, means the absolute right of ownership of the property which is heritable and is unlimited in point of time, while, usufructs, or Manafi, means the right to use and enjoy the property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.
In Nawazish Ali Khan vs. Ali Raza Khan, it was held that gift of usufructs is valid in Muslim law and that the gift of corpus is subject to any such limitations imposed due to usufructs being gifted to someone else. It further held that gift of life interest is valid and it doesn’t automatically enlarge into gift of corpus. This ruling is applicable to both Shia and Sunni.
Hence a critical scrutiny of concept of Gift under Muslim law, gives us the following instances regarding what can be subject matter of Hiba:
Anything over which right of property may be exercised. Anything which may be reduced to possession. Anything which exists either as a specific entity or as an enforceable right. Anything which comes within the meaning of the word mal.
In Rahim Bux vs. Mohd. Hasen, it was held that gift of services is not valid because it does not exist at the time of making the gift.
KINDS OF GIFTS:
There are several variations of Hiba. These include:
- Hiba bil Iwaz
- Hiba ba Shart ul Iwaz
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means gift for consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One gift from donor to donee and one from donee to donor. The gift and return gift are independent transactions. Therefore, when both i.e., hiba (gift) and iwaz (return or consideration) is completed, the transaction is called hiba-bil-iwaz. For example, A makes a gift of a cow to S and later B makes a gift of a house to A. If B says that the house was given to him by A by way of return of exchange, than both are irrevocable.
So a Hiba Bil Iwaz is a gift for consideration and in reality it is a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and prohibition against Mushaa does not exist. The following are requisites of Hiba bil Iwaz:
Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa vs. Raushan Begam, it was held that adequacy of the consideration is not the question. As long is the consideration is bona fide, it is valid no matter even if it is insufficient. A bona fide intention on the part of the donor to divest himself of the property is essential
Gift in lieu of dower debt – In Gulam Abbas vs. Razia, the hon’ble High Court at Allahabad held that an oral transfer of immovable property worth more than 100/- cannot be validly made by a Muslim husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must be done through a registered instrument.
‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with a stipulation for return’. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the payment of consideration is not immediate the delivery of possession is essential. The transaction becomes final immediately upon delivery. When the consideration is paid, it assumes the character of a sale and is subject to preemption (Shufa). As in sale, either party can return the subject of the sale in case of a defect.
It has the following requisites –
Delivery of possession is necessary. It is revocable until the Iwaz is paid. It becomes irrevocable after the payment of Iwaz. Transaction when completed by payment of Iwaz, assumes the character of a sale.
In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both gifts for a return and the gifts must be made in compliance with all the rules relating to simple gifts.
REVOCATION OF GIFT:
Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a well established rule of Muslim law that all voluntary transactions, including gifts, are revocable. The Muslim law-givers have approached the subject of revocability of gift from several angles.
From one aspect, they hold that all gifts except those which are made by one spouse to another, or to a person related to the donor within the degrees or prohibited relationship, are revocable.
The Hedaya gives the reasons thus: “The object of a gift to a stranger is a return for it is custom to send presents to a person of high rank that he may protect the donor; to a person of inferior rank that the donor may obtain his services; and to person of equal rank that the donor may obtain an equivalent 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”.
The texts of Muslim law lay down a long list of gifts which are irrevocable. The contents of the list differ from school to school, and the Shias and the Sunnis have the usual differences. The Muslim law-givers also classify gifts from the point of view of revocability under the following two heads:
Revocation of gifts before the delivery of possession Revocation of gifts after the delivery of possession.
The conception of the term gift and subject matter of gift has been an age old and traditional issue which has developed into a distinct facet in property law. Different aspects related to gift in property act and its distinction with the Mohammedan law and its implications has been the major subject matter of this article. In considering the law of gifts, it is to be remembered that the English word ‘gift’ is generic and must not be confused with the technical term of Islamic law, hiba. The concept of ‘hiba’ and the term ‘gift’ as used in the transfer of property act are different. As we have seen in the project that Under Mohammedan law, to be a valid gift, three essentials are required to exist:
Declaration of gift by the donor. An acceptance of the gift, express or implied, by or on behalf of the done. Delivery of possession of the subject of gift.
The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. The essential elements of a gift are:
Thus this striking difference between the two laws relating to gift forms the base of this project in understanding its underlying implications.
To conclude, the gift is a contract consisting of a proposal or offers on the part of the doner to give a thing and acceptance of it by the donee. So it is a transfer of property immediately and without any exchange. There must be clear intention by the doner to transfer the possession to the doner for a valid gift. It can be revoked by the doner. And the provisions for the same have also been mentioned.