Submitted by Rohini Kamble
Transfer of property by way of gifts is dealt by the Transfer Of Property Act, 1882. But this does not apply to Muslim Law. Hiba is a gift under Muslim Law but it is not governed by the Transfer Of Property Act. Gift in simple terms is transfer of property made voluntarily by one person called donor to another person called donee.
Gift is also understood as the English equivalent of 'Hiba'. Hiba is nothing but a Gift. It can be defined as 'the donation of a thing from which the donee may derive a benefit.' It can also be termed as transfer of property without any consideration. Fyzee defines it as an immediate and unqualified transfer of the corpus of the property without a return. According to Baillie its conferring of a right of something specific without an exchange.
Any Muslim can make a gift of his property or dispose of the whole of his property, but he must be a major and of sound mind. In ordinary cases, 18 is the competent age to make a gift but in cases where the guardian has been appointed by the court, 21 is the competent age.
A female is also competent to make a gift as there is no discrimination on grounds of sex. Her marital status is immaterial. In order to make a valid gift the donor must be the owner of the property and subsequently he must divest himself of the ownership and must deliver the property to the donee. One of the essentials conditions of a valid gift is the immediate delivery of the possession of the property. It would be void if it is operative on some future date.
A gift can also be revoked either with the consent of the donee or in the absence of his consent or by decree of the court. Only the donor has the right to revoke and it cannot be exercised by his heirs.
III] KINDS OF GIFTS (HIBA)
There are four kinds of gifts under Muslim Law.
Unlike simple gifts Sadaqah is a gift with a religious motive and is irrevocable. It need not be expressly accepted by the donee. One of the mandatory requirements of a valid Sadaqah is delivery of possession. Sadaqah can be made to two or more persons jointly.
Hiba-bil-iwaz has two basic elements;
(a) A bona fide and voluntary intention on the part of the donor to make the gift and to divest himself of the complete rights over the property and vest it in the donee.
(b) Payment of consideration by the donee.
Hiba-bil-iwaz consists of an element called 'iwaz' or exchange. Its an independent gift in return of the first gift. Therefore, these are two different gifts wherein the parties are same but the donor in one gift becomes the donee in another. Hiba-bil-iwaz also has elements of contract of sale because the requirements are such that the parties to the contract must be competent, there should be offer and acceptance and there must be consideration as well. Hiba-bil-iwaz has to be effected with the help of a written, attested and registered document, where the consideration is more than Rs. 10/-.
Hiba-ba-shart-ul-iwaz is a gift which is made with a stipulation (shart) for a return from side of the donee. It includes all the essentials of a valid gift and once the stipulation is fulfilled by the donee it takes the character of Hiba-ba-shart-ul-iwaz. Until the stipulation is fulfilled the gift is revocable. Payment of iwaz makes thee gift irrevocable.
There are 4 essentials of Airyat
i) It can be revocable
ii) It must be transfer of ownership in the property
iii) It must be for a definite period.
iv) It does not devolve on the heirs of the donee on his death Airyat is nothing but the grant of a licence, right to enjoy the usufruct in a specific time or period and it is revocable at the option of the granter.
IV] ESSENTIALS OF GIFT
The gift to be valid and complete three conditions are to be fulfilled. The very first condition being; the donor must make an offer i.e ijab, the same must be accepted by the donee i.e qubool and the possession of the property must be subsequently delivered i.e qabza. If these conditions are fulfilled then it is a valid gift. Following are the essentials of a valid gift.
1) Declaration by the donor.
2) Acceptance by thee donee
3) Delivery of the possession.
According to the Supreme Court 'declaration' is precondition of the validity of a gift. The donor must voluntarily declare the offer to make a gift. The gift would be voidable at the option of the creditors if the declaration is tainted with a fraudulent motive on the part of the donor. There has to be real and bona fide intention. The declaration has to be made in presence of some witness.
The offer to make a gift must be accepted by or on behalf of the donee. Under Muslim Law the Guardian is entitled to give acceptance on behalf of a minor or a person of unsound mind. He can even appoint a guardian. If the father is alive, he happens to be the sole guardian of the property of the minor; after the father comes the executor appointed under his will, parental grandfather, his executor appointed under his will.
In certain cases, where there are no guardians and the minor is under the care and protection of a person other than guardian such person can accept the gift on behalf of the minor. In case of a minor girl who is married and has been living with her husband after obtaining puberty then the husband can validly accept the gift on behalf of her even in thee presence of her father.
3) DELIVERY OF POSSESSION
One of the essentials of a valid gift is that it should be subsequently delivered to the donee. The gift is not valid unless accompanied by the delivery of possession. This is how it differentiates the gift Under Muslim Law and the gift under Transfer Of Property Act,1882. No emphasis is laid on immediate delivery of possession Under The Transfer Of Property Act.
The owner should thereby divest himself of the ownership and give complete control of the property to the donee. If it is a movable property then he must deliver the possession and if it is an immovable property then he should:
a) Vacate the possession along with all his belongings that would signify his relenquishment of total control and
b) Put the donee in possession.
Submitted by Rohini Kamble