In this blog, we shall explore the concept of Hiba under Muslim law, a practice that dates back to 600 A.D. Governed by Muslim personal law and exempted from the Transfer of Property Act, 1882, Hiba holds its own legal validity. This blog explores the essentials of Hiba, its constitutional support, modes of transfer, kinds of gifts, the validity of Muslim gifts without registration, and revocation of Hiba. Additionally, it examines the Supreme Court’s rulings on the validity of oral and written gifts, emphasizing the significance of fulfilling essential requirements over formalities in Muslim law.
Definition of Hiba
Hiba, within the context of Muslim law, refers to the voluntary and unconditional transfer of property or substance from one living person, known as the donor, to another person, known as the donee, without any consideration. This transfer, known as Hiba, establishes the donee as the rightful owner of the gifted property. A written document that represents a gift made under Muslim law is known as Hibanama.
The Constitutionality of Hiba
Hiba, the act of gift-giving under Muslim law, finds constitutional support in India through Section 129 of the Transfer of Property Act, 1882. This provision recognizes the unique nature of Hiba and exempts it from the Act’s provisions. By including Hiba in the Shariat Act, 1937, governed by Muslim personal law, the constitutionality of this exemption is upheld. It upholds religious freedom and respects the significance of religious practices in individuals’ personal lives. This legal framework allows Muslims in India to engage in Hiba without interference from general property laws, creating space for religious diversity and accommodating their beliefs.
Essentials of Hiba
Hiba necessitates three essential elements:
- Declaration by the donor
- Acceptance by the donee
- Declaration of Possession
The donor must clearly express their intention to give the property, which can be done orally or in writing. The donee must accept the gift, either explicitly or implicitly. The donor then needs to transfer the possession of the gifted property to the donee, either physically or symbolically.
Modes of Transfer
- Actual delivery: It involves the physical transfer of the gifted property from the donor to the donee. It signifies a tangible act of giving, where the property is handed over or physically placed in the possession of the recipient. This mode of delivery is typically employed when the property being gifted is tangible in nature, such as land, cash, or movable assets.
- Constructive delivery: It is a symbolic form of transferring possession. It involves actions or gestures that symbolize the intention to gift the property, rather than a physical transfer. This mode of delivery is commonly used when the property being gifted is immovable, such as a house or an estate. Examples of constructive delivery include handing over the keys to the property or transferring the relevant documents that signify ownership.
Kinds of Gift
In the fascinating realm of Hiba, the concept of gift-giving takes on various forms, each with its own distinct characteristics. Let’s embark on a journey to explore the different kinds of Hiba under Muslim law.
First, we have the Hiba-il-iwaz, where a gift is bestowed upon the donee with an accompanying consideration. This kind of Hiba entails a mutual exchange, where the donor offers the gift in return for something of value from the donee. It’s a delightful dance of reciprocity that adds a touch of intrigue to the act of giving.
Next, we encounter the Hiba-ba-Shart-ul-Iwaz, a gift that comes with a condition attached. Here, the donor imparts the property to the donee with specific terms or requirements. It’s like a beautifully wrapped present with a hidden surprise, unveiling its true essence only when the conditions are met.
Disposition of property through gift
A Muslim can gift their entire property during their lifetime, subject to certain restrictions. While the entire property can be gifted, only one-third of the property can be bequeathed through a will, with the remaining two-thirds reserved for legal heirs. This ensures that the rights of the heirs are protected.
Gifts under Muslim law can be made to anyone, including strangers, without the need to provide a share to the legal heirs. This flexibility allows individuals to distribute their property according to their wishes while adhering to the principles of Islamic law.
Validity of Muslim Gift without Registration
In the realm of Muslim law, the validity of a gift of immovable property does not hinge upon written documentation or registration. Contrary to Section 123 of the Transfer of Property Act, 1882, which necessitates written and registered instruments, Muslim gifts operate under a different legal framework. Section 129 of the Transfer of Property Act clearly exempts Muslim gifts from the Act’s provisions. The landmark judgment of Hafeeza Bibi v. Shaikh Farid (2011) reaffirmed this principle, emphasizing that oral Muslim gifts hold their own legal validity, independent of registration requirements.
Revocation of Hiba
As stated above, the essential elements of a gift highlight the pivotal role played by the delivery of possession. Before this pivotal act takes place, all gifts retain the potential for revocation. The donor possesses the authority to revoke a gift at any time, simply through a declaration of intent. However, once the delivery of possession occurs, the gift enters a state of permanence, rendering revocation by mere declaration ineffectual.
Thus, while the donor holds the power to revoke a gift prior to the delivery of possession, once this threshold is crossed, the gift assumes an irrevocable nature. It exemplifies the delicate balance between freedom of choice and the irreversible consequences of transferring ownership through the art of gifting.
However, it is important to note that under certain circumstances, a Hiba can be revoked. There are two conditions in which revocation is permissible:
- By the order of the court
- With the consent of donee
Ruling of Supreme Court
In the case of Hafeeza Bibi and Ors. v. Farid (Dead) by L.Rs. and Ors. (AIR 2011 SC 1695), the Supreme Court emphasized that the form of a gift under Mohammadan Law is immaterial. Whether it is made orally or reduced to writing, the essential requisites of a valid gift must be fulfilled. The court dismissed the notion that a written document automatically transforms the gift into a formal instrument, stating that the nature and character of the gift remain unchanged. The judgment clarified that a gift written on a plain piece of paper is valid if it satisfies all essential requirements, irrespective of registration. This ruling reinforces the principle that the focus should be on fulfilling the necessary elements rather than the form of the gift in Mohammadan Law.
Conclusion
In conclusion, Hiba, the act of gift-giving under Muslim law, holds significant importance in the realm of property transfer. It allows for the voluntary and unconditional transfer of property from a donor to a donee. The essentials of Hiba, including declaration, acceptance, and delivery of possession, establish the validity of the gift. With the constitutionality of Hiba supported by Indian law, Muslims can engage in gift-giving freely, guided by their religious principles.