Hiba — Capacity for Making a Gift

Dubai Raj / 23 November 2009

A s in all religions, Islam too attaches great value to the performance of charity and to the act of giving. In the Holy Quran, it is laid down that the act of spending out of love for God, your kin, for orphans, for the poor, for the wayfarers, for those who ask, and to be steadfast in prayer and to practice regular charity, are all held to be acts of righteousness.

Gift is a generic term that includes all transfers of property without consideration. In India, Gift is considered equivalent to Hiba but technically, Gift has a much wider scope than Hiba. The word Hiba literally means, the donation of a thing from which the donee may derive a benefit. It must be immediate and complete. The most essential element of Hiba is the declaration, “I have given”.

As per Hedaya, Hiba is defined technically as, “unconditional transfer of property, made immediately and without any exchange or consideration, by one person to another and accepted by or on behalf of the latter”.

Under Muslim Law, where one Muslim signifies his willingness to make to another an immediate and unconditional transfer without consideration of the ownership of an existing and definite piece of property, and if the other accepts that transfer of ownership and if possession of the property is transferred thereupon, then a valid gift (or “Hiba” as it is called) takes place in respect of such property.

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). The transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void

The donor (the person who gives). Any person who is sui juris can make a gift of his property. Like any other contract, the requisite conditions are [the age of] majority, understanding, freedom and ownership of the subject matter of the disposition. A person must be major, able to understand the nature of the act, be subject to no undue influence, coercion or duress and must be the owner of the property to be gifted. A declaration by the donor therefore must be clear and unambiguous intention of the donor to make a gift. Further Conditions for donor would be that he must be free of any fraudulent or coercive advice as well as undue influence & of course he must have ownership over the property to be transferred by way of gift.

A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin woman is also valid but in case of a dispute the burden of proof that the transaction was not conducted by coercion or undue influence is on the donee. A person in insolvent circumstances is also valid provided that it is bona fide and not merely intended to defraud the creditors.

Acceptance – The one who can receive is known as the donee. Acceptance may be made expressly or implied by conduct. Any person can receive a gift if he or she is in existence at the time of the gift. An absolute gift to an unborn child is invalid, but if the child is born within six months of the date of gift, it will be valid on the presumption that the child was actually existing in the womb of the mother. A muslim may also make a lawful gift to a non-muslim. The Donee must be in existence at the time of giving the gift, & In case of a minor or lunatic, the possession must be given to the legal guardian otherwise the gift is void.

A Gift to an unborn person is void. However, gift of future usufructs to an unborn person is valid provided that the donee is in being when the interest opens out for heirs.

A gift is void is the donee has not given his acceptance. The real test of the delivery of possession is to see who (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.

Muslim law recognises 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.

A Hiba, once validly created cannot be revoked. No receiver of a gift under a Hiba can also be compelled to give anything in exchange. Of course, it is quite common that the donor and receiver agree that something will be done or given in exchange for the gift, and such gifts fall under a different category altogether, known as Hiba bil Iwaz or gifts for return.

A Hiba which does not take effect immediately is of no effect whatsoever. Finally, a Hiba which is purported to be made by a person who is on his death-bed, cannot operate on a greater piece of property than his will (or Wasiyat) would, if he had left behind a will. Such gifts in contemplation of death are known as donatio mortis causa and can operate to the extent of one-third of the donor’s estate only. As distinguished from a Will, a gift may be made of the whole property of the donor, even to an heir. It can be made in favour of a stranger to the exclusion of his heir. The only restriction is the rule which invalidates death-bed gifts.

Having regard to all of the above, it is clear that a Muslim gentleman who wants to provide for his son or daughter like his Hindu or Christian brethren, would, instead of executing a Settlement Deed, make a Hiba of his property in such manner and form as he thought fit, and thereby, ensure that the son or daughter in question had a piece of property which they could then utilise for their maintenance and upkeep. 




(published in Khaleej Times
http://www.khaleejtimes.com/darticle...ction=business )