Hiba (Gift) under Muslim Law

Introduction

In Islamic jurisprudence, the concept of Hiba — meaning gift — occupies a significant place in personal law. It represents a voluntary transfer of property by one person to another without consideration, done out of affection, love, or generosity.

Under Muslim law, Hiba is not merely a civil transaction but also a moral act of virtue, encouraged by the Quran and Prophet Muhammad (peace be upon him). Islam regards the distribution of wealth by way of gift as an act of charity and social justice, ensuring that resources circulate and are not hoarded by a few. A gift made out of love (mahabba), affection (uns), or compassion (rahma) reflects a believer’s intention to earn spiritual reward and social goodwill.

Meaning and Definition of Hiba

The word Hiba comes from the Arabic word “Habba”, which means “to give” or “to bestow.”

Legally, Hiba denotes a voluntary and immediate transfer of ownership of property without consideration by one person (the donor) to another (the donee).

Definitions:

• According to Hedaya:
  “A Hiba is the unconditional transfer of ownership in some property, made immediately, and without any consideration.”
• Fyzee defines it as:
  “A transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter.”

In short, Hiba is a pure gift, complete only when possession is transferred.

Hiba = Intention + Acceptance + Delivery of Possession.

3. Nature and Characteristics of Hiba

1. Voluntary Act: It must be made with the donor’s free consent, not under compulsion or fraud.
2. Immediate Effect: Hiba must take effect immediately, not at a future date.
3. Without Consideration: It is gratuitous — no return or payment is involved.
4. Transfer of Ownership: The donee becomes the owner of the property once possession is delivered.
5. Irrevocable (in most cases): Once complete, Hiba cannot generally be revoked, except under special conditions.

4. Essentials (Requisites) of a Valid Hiba

A Hiba under Muslim law is valid only if the following essentials are fulfilled:

(1) Parties:

1. Donor:

The Donor i.e., The person who makes the gift.

Competency of Donor

A valid Hiba requires that the donor possess legal capacity.

The donor must:

• Be a Muslim (of any sect).
• Be of sound mind.
• Donor must attained the age of majority (18 years).
• Be the owner of the property gifted.
• must be free of any fraudulent, coercion or coercive influence.

2. Donee:

The Donee i.e., the person who takes something as a gift.

Competency of Donee

The donee must:

• Be in existence (living person) at the time of the gift.
• Any person capable of owning property, which includes a juristic person, may be the donee of a gift.
• Be any person — Muslim, non-Muslim, or even an institution. Thus, sex, age, creed or religion are no bar to the taking of a gift.
• If the donee is a minor or insane, acceptance can be made by a guardian on their behalf.

(2) Subject Matter of Hiba:

It can be anything :-

Over which right of property may be exercised.

Which can be reduced to possession.

Which exists either as specific entity.

Anything which comes within the meaning of the word ‘MAL’.

The property gifted must fulfill certain conditions:

1. It must be in existence at the time of the gift.
2. It must be transferable (movable or immovable, corporeal or incorporeal).
3. It must be owned by the donor.
4. It must be specific and certain — a vague or uncertain description makes the gift void.

(3) Extent of donor’s right to gift:

Donor’s power to gift his property is unrestricted. He may not only give, the whole of his property but also any portion he likes irrespective of the fact that disposition of property will adversely affect on the heirs right to inherit the property.

(4) Formalities:

The most important requisite of hiba is that it must satisfy the rules said down by muslim law for making gift.

Conditions of valid gift:

The act of making a gift should fulfill the following 3 conditions:-

1. Declaration by the Donor (IJAB)

There must be a clear and bona fide intention to make a gift, the alleged gift will be void.
The declaration can be oral or written, but it must indicate that the donor is transferring ownership immediately.

The declaration of the gift must be made voluntarily. It is necessary that the donor must be a free agent in making the gift.
If the donor promises a future gift (“I will give you this next month”), it is invalid, as Muslim law does not recognize Hiba in futuro (future gifts), because a Hiba must be present and immediate.

2. Acceptance by the Donee (QABOOL)

The donee must accept the gift by or on behalf of the done, during the lifetime of the donor and while the donor is competent to gift.

Acceptance can be express (by words) or implied (by conduct, possession, or enjoyment).

If the donee refuses or dies before accepting, the Hiba is void.

If the donee is a minor or insane, acceptance may be made on his or her behalf by a legal guardian (father, grandfather, or executor).

3. Delivery of Possession (QABZA)

Delivery of possession is the most essential condition for the validity of Hiba.
Without delivery /possession, a Hiba remains incomplete and unenforceable.

‘Possession’ means only such possession as nature of the subject is capable of.

Types of Possession:

1. Actual Possession: Physical handover of the property (e.g., keys of a house, deed, or symbolic handover).
2. Constructive Possession: In cases where actual delivery is not possible (e.g., co-owned property, house already in occupation of donee), any clear act showing intention to transfer control suffices.

Thus, delivery is the heart of Hiba, distinguishing it from mere promises or intentions.

Exception: Gift Without Actual Delivery Of Possession.

1. Gift by a father to his minor or lunatic son/daughter:

 A Muslim father can make a valid gift to his minor or insane child, even if the child cannot personally accept it.

No transfer of possession is required in case of gift by father to his minor lunatic child or by a guardian to his word.

2. Donor and Donee reside on the same house which is to be gifted:

Where the Donor and Donee are living in a house, donor need not necessarily depart from the house in order to make gift effective.

There must be clear intention to make gift and to part with possession of property.

3. Gift by husband to wife and vice-versa:

The delivery of possession and the formalities regarding it are not essential when the gift is made by the husband to the wife and vice-versa, provided it can be inferred from the surroundings circumstances that he had real and bona-fide intention to make the gift.

4. Gift by one co-sharer to another:

When the intention of making gift is real and bonafide, then it will be considered valid even without delivery of possession.

5. Part delivery:

When there is an evidence that some of the possession in gift have been delivered, the delivery of possession of the rest may be inferred.

6. Where Donee is in Possession:

Where done is already in possession of property to be gifted, delivery of possession by the donor after it is not necessary.

Hiba in Lieu of Dower (Mehr)

A husband may gift property to his wife in satisfaction of her unpaid dower.

• It is valid if the wife accepts the gift voluntarily.
• Possession must be delivered unless the wife already possesses the property.

Similarly, a wife may gift her property to her husband in discharge of dower — provided it is done freely and without coercion.

Oral Gifts and Void Gifts :

Oral Gifts

Oral gift is as effective as one in writing, provided that it fulfills the conditions of valid gift under muslim law.

Under muslim law, a gift or immovable properties can be made verbally without recourse to written and registered documents.

Here, to constitute gift, the donor should divest himself completely of a ownership and dominion over the subject of gift.

Void Gifts:

Gift to unborn child:

A gift to a person not yet in existence the time of making it is void. The reason is that donee’s acceptance is one of the essentials of validity of a gift and if the done is not in existence, his consent cannot be obtained.

Gift in Future:

A gift cannot be made of anything to be produced in future such as a gift of the crop which may be produced next year in the donor’s field.

Thus, the subject matter of the gift must be actually in existence at the time of making gift.

Contingent Gift:

A gift cannot be made to take effect on the happening of contingency i.e., happening or non-happening of a future uncertain event.

Gift with a Condition:

When a gift is made subject to a condition, it is void.

Gift of musha:

Musha means undivided share in a property. Gift of an undivided share in a divisible property is under Hanafi Law, generally irregular but can be validated by separation & delivery of possession.

Doctrine of Musha:

Musha is an Arabic word derived from ‘Saayu’ meaning, “ undivided share” in the property.

It means ‘a gift of a part of the thing which is capable of division is not valid unless the said part is divided off and separated from the property of donor.

Kinds of Musha:

Musha in a property incapable of division:

A gift of an undivided share in a property which is not capable of division is valid.

Musha in property capable of division:

If the property is capable of division, the gift of musha will be irregular though not void under Hanafi law. It means that it can be rendered valid by subsequent partition and delivery.

Classification of Hiba

Muslim law recognizes several types of Hiba depending on conditions and purpose:

(a) Simple Hiba

A pure, unconditional gift made out of love or generosity.
Example: “I give you this house.”

(b) Hiba-bil-Iwaz (Gift for Consideration)

A gift made in return for some consideration.
Although Hiba is generally without consideration, Hiba-bil-Iwaz is an exception.

• It is essentially a gift in exchange for another gift or payment.
• Legally resembles a sale, but rooted in the concept of mutual generosity.
• Delivery of possession is essential for both gifts.

Example: A gifts a house to B, and B in return gifts a car — both are Hiba-bil-Iwaz.

(c) Hiba-ba-Shart-ul-Iwaz (Gift with a Condition of Return)

Here, the donor gifts property on the condition that the donee gives something in return (either immediately or later).

• It is initially a Hiba, but becomes irrevocable once donee fulfills the condition.
• Here, delivery of possession is necessary.

This form is common in commercial or trust-related transactions.

(d) Sadaqah

A gift made with religious or charitable intent, seeking spiritual reward from Allah.
For example, donating land for a mosque or feeding the poor.

(e) Ariyat (Loan of Use)

Ariyat is a gift where person is made the owner of the profits without consideration. In Ariyat, he only obtains the use or beneficial enjoyment for a limited period and the ownership in the property doesn’t pass to him.
For instance, lending a car or house without transferring ownership rights.

Registration

Under Muslim personal law, a Hiba does not require registration or writing if:

• It is oral, and
• The gift is immediate, and
• Possession has been delivered.

However, if a written instrument is executed to record the gift, Section 123 of the Transfer of Property Act, 1882 applies — and registration becomes mandatory.

Hence, while oral gifts are valid under Muslim law, registered written deeds provide stronger legal proof, especially in property disputes.

Judicial View:

In Hafeeza Bibi v. Shaikh Farid (2011) 5 SCC 654, the Supreme Court reaffirmed that oral Hiba accompanied by delivery of possession is valid under Muslim law, and no registration is necessary.

Revocation of Hiba

Muslim law generally allows revocation before delivery, but once possession is transferred, the gift becomes binding and irrevocable, except in limited cases.

Revocation Before Delivery:

• The donor may revoke the gift anytime before possession is given.
• Example: If A declares a gift to B but does not deliver possession, A can withdraw it.

Revocation After Delivery:

• Once the donee has taken possession, the donor cannot revoke it without court permission.
• According to the Hanafi School, revocation is possible only by a decree of court and under reasonable grounds.

Exceptions — Irrevocable Hiba:

A gift cannot be revoked if:

1. The donee is related within prohibited degrees (e.g., spouse, parents, children).
2. The gift is made in return for consideration (Hiba-bil-Iwaz).
3. The donee has transferred the gifted property.
4. The donor or donee dies before revocation.
5. The gift is made for charitable or religious purpose (Sadaqah).

Hence, once a Hiba is completed, it is almost final and absolute in nature.

Judicial Interpretation and Case Law

Indian courts have frequently interpreted the law of Hiba to harmonize personal law with statutory principles.

Key Cases:

13. Abdul Rahim v. Sk. Abdul Zabar (2009) 6 SCC 160
    – The Supreme Court held that a valid Hiba requires three essentials: declaration, acceptance, and delivery of possession.
14. Mst. Hussenbibi v. Syed Saheb (1910) 32 All 410
    – It was observed that oral gifts are valid if accompanied by delivery of possession, even without registration.
15. Nasib Ali v. Wajed Ali (1927) 54 Cal 1021
    – The court emphasized that delivery of possession is the “essence of a gift” under Muslim law.
16. Hafeeza Bibi v. Shaikh Farid (2011) 5 SCC 654 – Oral Hiba is valid without registration if possession is delivered.

Differences Between Sunni and Shia Law on Hiba

 Death-Bed Gift (Marz-ul-Maut)

One of the most distinctive features of Muslim law on gifts is the concept of Marz-ul-Maut — a gift made during death illness.

Meaning:

Marz-ul-Maut literally means “disease of death” — an illness that eventually leads to the person’s death, and during which the person fears death and acts under that apprehension.

A death-bed gift is treated differently from ordinary gifts, as it closely resembles a will (wasiyat) in its effect.

Conditions of Marz-ul-Maut:

A gift made during death illness is valid only if:

1. The donor is suffering from a disease that causes reasonable fear of death.
2. The disease continues till death.
3. The donor dies from that disease.
4. The donee accepts the gift during the donor’s lifetime.

Legal Effects:

1. The gift operates like a will, taking effect only to the extent of one-third of the donor’s property, unless the heirs consent to more.
2. The donor must be competent to make a will.
3. Possession must be delivered during the donor’s lifetime; otherwise, it remains incomplete.
4. If the donor recovers from illness, the gift becomes an ordinary Hiba, valid for the whole property.

Rationale:

The rule prevents abuse of inheritance law — ensuring that one heir is not unfairly favored on the donor’s deathbed, thereby safeguarding the rights of other heirs.

Case Example:

• Ameerunissa Begum v. Mahboob Begum (1953 SCR 404) — The Supreme Court held that a death-bed gift is valid only to the extent of one-third of the donor’s estate unless the heirs give consent.

Thus, Marz-ul-Maut is a blend of Hiba and testamentary disposition, controlled to ensure fairness.

Conclusion

The doctrine of Hiba under Muslim law is a perfect blend of legal principle and moral virtue.
It ensures that wealth circulates with compassion, love, and fairness.

Whether it is a simple gift of affection or a death-bed gift (Marz-ul-Maut) made in the face of mortality, Muslim law upholds the sanctity of intention, possession, and equity.

Ultimately, Hiba stands as a timeless symbol of generosity, faith, and justice, encouraging Muslims to share what they love and to do so in accordance with divine principles.

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