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Q. Define Gift/Hiba. What are the three essentials of Gift? Who can give gift? What are the kinds of Gift? State the circumstances in which delivery of possession of immovable property is not required in making a gift. What gifts are void? What is Mushaa? Explain with illustration. What is the difference between Hiba Bil Iwaz and Hiba Ba Shart ul Iwaz? 

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".

According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the property without any return.

The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.

Essential Elements of a Gift

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 vs Husensab Hasan AIR 1989 Kar, 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 -
  1. A declaration by the donor - There must be a clear and unambiguous intention of the donor to make a gift.
  2. 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.
  3. Delivery of possession by the donor and taking of the possession by the donee. 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 following are the conditions which must be satisfied for a valid gift.

1. Parties - There must be two parties to a gift transaction - the donor and the donee.
        Conditions for Donor -  (Who can give)
  1. Must have attained the age of majority - Governed by Indian Majority Act 1875.
  2. Must be of sound mind and have understanding of the transaction.
  3. Must be free of any fraudulent or coercive advice as well as undue influence.
  4. Must have ownership over the property to be transfered 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.

        Gift by a person in insolvent circumstances is valid provided that it is bona fide and not merely intended to defraud the creditors.

        Conditions for Donee (who can receive)
  1. Any person capable of holding property, which includes a juristic person, may be the donee of a gift. A muslim may also make a lawful gift to a non-muslim.
  2. 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.
  3. 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.

2.  Conditions for Gift  (What can be gifted) -
  1. It must be designable under the term mal.
  2. It must be in existence at the time when the gift is made. Thus, gift of anything that is to be made in future is void.
  3. The donor must possess the gift.
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 AIR 1984, 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.

   Subject of Gift -  The general principle is that the subject of a gift can be -
  1. anything over which dominion or right of property may be exercised.
  2. anything which may be reduced to possession.
  3. anything which exists either as a specific entity or as an enforceable right.
  4. anything which comes within the meaning of the word mal.  
In Rahim Bux vs Mohd. Hasen 1883, it was held that gift of services is not valid because it does not exist at the time of making the gift.

Gift of an indivisible property can be made to more than one persons.

3.  Extent of Donors right to gift - General rule is that a donors right to gift is unrestricted. In Ranee Khajoorunissa vs Mst Roushan Jahan 1876, it was recognized by the privy council that a donor may gift all or any portion of his property even if it adversely affects the expectant heirs. However, there is one exception that the right of gift of a person on death bed (Marz ul maut) is restricted in following ways - He cannot gift more than one third of his property and he cannot gift it to any of his heirs.

Kinds of Gift
There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Sadkah,  and Ariyat.

Hiba Bil 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 which together make up Hiba bil Iwaz.

In India, it was introduced as a device for effecting a gift of Mushaa in a property capable of division. 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 -
  1. Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa vs Raushan Begam 1876, 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.
  2. 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 AIR 1951, All HC 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 done through a registered instrument.

Hiba ba Shartul Iwaz - 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 presumption (Shufa). As in sale, either party can return the subject of the sale in case of a defect. It has the following requisites -
  1. Delivery of possession is necessary.
  2. It is revocable until the Iwaz is paid.
  3. It becomes irrevocable after the payment of Iwaz.
  4. 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.

Differences between Hiba, Hiba bil Iwaz, and Hiba ba Shart ul Iwaz -
Hiba Hiba bil Iwaz Hiba ba Shart ul Iwaz
Ownership in property is transfered without consideration. Ownership in property is transferred for consideration called iwaz. But there is no express agreement for a return. Iwaz is voluntary. Ownership in property is transferred for consideration called iwaz, with an express agreement for a return.
Delivery of possession is essential. Delivery of possession is NOT essential. Delivery of possession is essential.
Gift of mushaa where a property is divisible is invalid. Gift of mushaa even where a property is divisible is valid. Gift of mushaa where a property is divisible is invalid.
Barring a few exceptions it is revocable. It is irrevocable. It is revocable until the iwaz is paid. Irrevocable after that.
It is a pure gift. It is like a contract of sale. In its inception it is a gift but becomes a sale after the iwaz is paid.

Exceptions in delivery of possesssion
The following are the cases where deliver of possession by the donor to the donee is not required -
  1. Gift by a father to his minor or lunatic son. In Mohd Hesabuddin vs Mohd. Hesaruddin AIR 1984, the donee was looking after the donor, his mother while other sons were neglecting her. The donor gifted the land to the donee and the donee subsequently changed the name on the land records. It was held that it was a valid gift even though there was no delivery of land.
  2. When the donor and the donee reside in the same house which is to be gifted. In such a case, departure of the donor from the house is not required.
  3. Gift by husband to wife or vice versa. The delivery of possession is not required if the donor had a real and bona fide intention of making the gift.
  4. Gift by one co-sharer to other. Bona fide intention to gift is required.
  5. Part delivery - Where there is evidence that some of the properties in a gift were delivered, the delivery of the rest may be inferred.
  6. Zamindari villages - Delivery is not required where the gift includes parcels of land in zamindari if the physical possession is immpossible. Such gift may be completed by mutation of names and transfer of rents and incomes.
  7. Subject matter in occupation of tenant - If a tenant is occupying the property the gift may be affected by change in ownership records and by a request to the tenant to attorn the donee.
  8. Incorporeal rights - The gift may be completed by any appropriate method of transfering all the control that the nature of the gift admits from the donor to the donee. Thus, a gift of govt. promissory note may be affected by endorsement and delivery to the donee.
  9. Where the donee is in possession - Where the donee is already in possession of the property, delivery is not required. However, if the property is in adverse possession of the donee, the gift is not valid unless either the donor recovers the possession and delivers it to donee or does all that is in his power to let the donee take the possession.

Void Gifts
The following gifts are void -
  1. Gift to unborn person. But a gift of life interest in favor on a unborn person is valid if he comes into existence when such interest opens out.
  2. Gifts in future - A thing that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in future, is void.
  3. Contingent gift - A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a male heir is void.

Gift with a condition 
A gift must always be unconditional. When a gift is made with a condition that obstructs its completeness, the gift is valid but the condition becomes void. Thus, if A gifts B his house on a condition that B will not sell it or B will sell it only to C, the condition is void and B takes full rights of the house.

Mushaa (Hiba bil mushaa)
Mushaa means undivided share in a property. The gift of undivided share in an indivisible property is valid under all schools but there is no unanimity of opinion amongst different schools about gift of undivided share in a property that is divisible. In Shafai and Ithna Asharia laws it is valid if the donor withdraws his control over the property in favor of the donee. But under Hanafi law, such a gift is invalid unless it is separated and delivered to the donee.

Illustration -
A, B, and C are the co-owners of a house. Since a house cannot be divided, A can give his undivided share of the house to D in gift.
A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and Ithna Ahsharia law,  A can give his undivided share of the wheat to D if he withdraws control over it  but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers the possession of 1 ton of wheat to D.

In case of Kashim Hussain vs Sharif Unnisa 1883, A gifted his house to B along with the right to use a staircase, which was being used by C as well. This gift was held valid because staircase is indivisible.

Revocation of a Gift
Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also generally revocable, though it is held to be abominable. In Shia law, a gift can be revoked by mere declaration while in Sunni law, it can be revoked only by the intervention of the court of law or by the consent of the donee.

The following gifts, however, are absolutely irrevocable -
  1. When the donor is dead.
  2. When the donee is dead.
  3. When the donee is related to the donor in prohibited degrees on consanguinity. However, in Shia law, a gift to any blood relative is irrevocable.
  4. When donor and the donee stand in marital relationship. However, in Shia law, a gift to husband by wife or vice versa is revocable.
  5. when the subject of the gift has been transfered by the donee through a sale or gift.
  6. when the subject of the gift is lost or destroyed, or so changed as to lose its identity.
  7. when the subject of the gift has increased in value and the increment is inseparable.
  8. when the gift is a sadqa.
  9. when anything as been accepted in return.