Hiba (Gift) is a transfer of ownership in a property intervivos. Intervivos means living person. Gift is transfer of property in which ownership is transferred by one living person to another living person without consideration of existing property. Gift made by Muslim is called Hiba. Gift is the subject matter of transfer of property Act 1882, Section 122 to 129 of the Act deal with Gift while Hiba is governed by muslim personal law. The Transfer of property Act 1882 does not apply on Hiba . The shariat Act 1937 also includes gift as one of the matter to be regulated by muslim personal law If the parties are muslim.
Definition of Hiba
According to Mulla “ A hiba or gift is a transfer of property, made immediately, and without any exchange , by one person to another, and accepted by or on behalf of the latter. ”
According to Hidaya ” Hiba is an unconditional transfer of ownership in an existing property, made immediately and without any consideration.”
On the basis of above definition following are the features of Gift–
(a) Gift is an inter vivos transfer.
(b) Gift is the transfer of absolute interest ( ownership) of property.
(c) Gift is transfer of property without any consideration.
Essential conditions of Hiba.
Following are the essential of a valid Hiba.
3. The delivery of possession
the declaration of intention is essential for the hiba. A muslim person who is of sound mind and have attained the age of majority may declare to make a hiba of his property. This declaration may either be in oral or writting. The only condition is that the declaration must be made in clear words it should not be ambiguous.
Who can make Hiba ?
Hiba Can be made by a person who fulfills the following criteria –
(iii) Sound mind
(iv) right to make gift
The doner of hiba must be a muslim Gift made by non muslim is not hiba that will be gift .
He must be the adult person means he must have attained the age 18 years . Minor can not make gift. He must be sound mind .
Along with the above conditions the donor must also have the right to make gift. Here right refers that the donor must be the owner of the property and property must be transferable property.
Acceptance of Gift (Hiba)
The second essential of hiba is the acceptance of the gift. It is donee who accepts the gift. Donee may be any person only requirement is that he or she must be in existence at the time of declaration . Donee may be a Hindu , Christian or any non- muslim or minor or insane person or a juristic person .
position of minor / Unsound mind
Gift to minor or unsound mind is valid. Gift made to minor or Insane person is accepted by their guardians.
Position of child in womb
A child in mother’s womb is presumed to be in existence , so a gift can be made to child in womb but it is subject to two
(a) At the time of declaration he must be in existence in womb.
(b) and he must born alive within six months from the date on which gift was made.
Delivery of possession.
For a Muslim gift it is essential that the property gifted should have been transferred to the donee as without such transfer the Muslim gift does not attain its legality and finality. It will be considered to be void or incomplete. If the possession of property has not been delivered to the donee, the donor may revoke the gift befibe the actual delivery has been made. It is only with the transfer that the gift becomes final.
Modes of delivery
Delivery of possession of gifted property is sine quo non for the validity of hiba. Without delivery of possession muslim gift is void. Delivery of possession may be made by two modes either actual or constructive depending on the nature of gifted property.
Actual delivery of possession
Actual delivery means physical handing over of gifted property to donee. Actual delivery is possible only in properties of tangible nature , this can be movable or immovable. In case of movable property it can be actually delivered to donee. For example watch , table , van etc. In case of immovable properties the actual delivery can be done by giving up all the dealings with gifted property .
Constructive Delivery of possession.
Constructive delivery of possession means a symbolic transfer of property. In constructive delivery of possession some act is done towards the donee in such way which has the effect of delivery. It is a legal presumption of delivery of possession.
Constructive delivery of possession apply in two cases namely –
- In case of intangible properties
- And in case of where the property is tangible but there is such a situation in which actual delivery of possession is not possible.
When does the delivery of property completes ?
There are two theories regarding the completion of delivery of possession of property namely itention theory and benefit theory.
If the property is movable it can be transferred by actual handing over the property to the donee, but there may be properties which actually may not be transferable like movable property. For instance in immovable property all the cases of gift of usufructuary rights. In such cases actual delivery of property is not possible. The test for finality of gift will relate the circumstances of the gift, any kind of conduct on the part of donor which manifest his intention to transfer will be sufficient to prove the transfer. For example if a house has been gifted the handing over the keys of house is sufficient delivery. Similarly if the usufructuary rights (i.e rent of gifted house) has been gifted then any conduct ( example instructions by the donor to tenants of the gifted house to pay the rents to new owner of the house) on the part of the donor is manifest of his intention to transfer the right and that is point of time when it can be said that transfer has been made this is called intention theory.
However there may be circumstances particularly in case of gift of usufructuary right that there is no such conduct on the part of donor to manifest his intention then the actual delivery be deemed only when the actual benefit starts accruing to the donee. This is called benefit theory.
Exception to actual delivery of possession.
There are certain circumstances when the actual delivery of possession is not required. These are –
- When the donor and the donee are living in the same house and house has been gifted to done, therefore actual transfer is not required.
- Gift by one spouse to another.
- Gift by guardian to wards.
- Gift of property to done of which the donee is already in possession.
- Gift by a guardian to unsound person.