A gift is a move of property where interest is transferred from one person to another, without any consideration. This is the universal definition that is accepted by all the religions, including Muslim law. In the Muslim Law, a gift is called as Hiba. As per the Mohammedan law, they are only usufructuary interest (and not rights of ownership of any kind). In English law a person having interest in the immoveable property for limited periods of time is said to be the “owner” of the possessions during those periods and the usufruct is also regarded as a part of the quantity.
CONCEPT OF HIBA UNDER MUSLIM LAW
As per the Muslim Law, a gift is a transfer of possessions or right by one person to another in accordance with the provisions provided under Muslim law. Hiba, is an direct transfer of the ownership of some property, devoid of any thought or with some return (ewaz); and the term ‘hiba’ and ‘gift’ are often indiscriminately used but the word hiba is only one of the kinds of transactions which are covered by the general term ‘gift’. The gifts include Ariya (Tamlik al manafe), where the only usufruct is transferred and Sadqah where the gift is made by the Muslim with the object of acquiring religious merit.
ESSENTIALS OF HIBA
A declaration by the donor:
There must be a clear and unmistakable intention of the donor to make a gift. A declaration is a statement which signifies the meaning of the transferor that he intends to make a gift. A declaration can be oral or written. The donor may announce the gift of any kind of property either orally or by written means. As per the Muslim law, writing and registrations are not necessary.
Acceptance by the donee
A gift is annulled if the donee has not given his acceptance. The legal custodian may accept on behalf of a minor. Donee can be a person from any spiritual background. Hiba in favor of female is also valid. A juridical person is also able of being a donee and a gift can be made in their act of kindness too. On behalf of a minor person, any custodian as mentioned under the provisions of Muslim law can accept that gift. As per the Muslim law, the term possession means only such possession as the nature of the subject is capable of. If the giver is reaping the profit then the delivery is not done and the gift is invalid.
The nature of the property may either be: Actual, or Constructive.
- Actual Delivery of Possession: Where the property is physically handed over to the donee, the delivery of ownership is actual. Usually only tangible properties can be delivered to the done. Tangible property may be movable or immovable. The alteration procedures have started but the physical possession cannot be given and the giver dies, the gift fails for the want of delivery of possession as per the Muslim law. In such cases, if it is proved that although the transformation was not complete and the done has already taken the possession of the property, the gift was held to be valid.
- Constructive Delivery of Possession: Constructive delivery of possession is enough to constitute a official gift in the following two situations:
- Where the Property is intangible, i.e. it cannot be perceived through senses.
- Where the possessions are tangible, but it’s actual or physical delivery is not possible.
In making an allowance for the rule of gifts, it is to be remembered that the English word ‘gift’ is general and must not be confused with the technical term of Islamic law, hiba. The idea of ‘hiba’ and the term ‘gift’ as used in the transfer of property act, are different. We have seen in the project that Under Mohammedan law, to be a valid gift, three basics are required to exist: - Declaration of gift by the donor.
- Receiving of the gift, express or implied, by or on behalf of the done.
- Release of possession of the topic of the gift.
It is important to seek advice of lawyers when executing documents which can later become an issue amongst the family. The team at Legal Help NRI can assist in advising on matters which pertain to property issues of your family and can ensure that your actions fall within the parameters of the personal law.