The concept of Gift, or Hiba in Muslim law has existed from the very inception of the religion, circa. 600 A.D. While Muslim Law has not been shown to recognise the differentiation of land into estates, it does recognise the difference between the ownership of the land and the right to enjoy it.
Unlike English Law, ownership comes only with the full deed of the land and not with the simple possession or temporary tenancy. Hiba is only one of the aspects covered by the Transfer of Property Act under the term ‘gift’. It is the transfer of the property and all rights along with it, without expectation of any compensation.
The term Hiba has been defined in several aspects by the courts of India and, pursuant to this, the term has also been seen to exclude all nature of services, for services do not exist at the time of the promise- they can only be performed after the promise to perform is made, which implies that the same cannot fall under the definition of Hiba which requires the object to be in physical existence at the time of the gifting. It has been widely construed that the term mal has to apply to the object so gifted for the laws of Hiba to apply. We shall be studying more about the Hiba in detail with the help of important facts and case laws.
One of the briefest but most famous sayings of the Prophet is Tahadua Tahabua (exchange gifts, for it increases mutual love). For more than 14 centuries, exchanging gifts has become a noble tradition among Muslims all over the world. Law of hiba has this tradition as its starting point. And Muslim Jurists have evolved a very refined system of hiba law.
But to translate hiba as a gift would not be correct, as done, because in the English Language there is no exact equivalent word for hiba. Unlike “gift” whose meaning is much is much wider, “the word ‘hiba’ is narrow and well defined legal concept (meaning) the immediate and unqualified transfer of the corpus of the property without any return.”
The meaning of the word “gift” gives a broad spectrum of its meaning. For example, it means a “a present” (the watch was a gift from my mother), a natural talent or ability (she has a great gift for music; he has a gift of making friends) an easy to do or cheap to buy (at Rs 100 it is a gift; their second goal was an absolute gift), gift voucher, gift token, gift certificate, (a piece of paper that is worth a particular amount of money that can be exchanged for goods in a shop or store) etc. So while using “gift” for “hiba”, these constraints must be kept in mind.
DEFINITIONS OF “HIBA”
Abdur Rahim- “A transfer of a determinate property (mal) without an exchange. Juristically, it is treated as consisting of proposal or offer on the part of the donor to give a thing and of acceptance of it by the donee. Until acceptance, the gift has no operation.”
Mulla- “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” (p.150)
The following are the three essentials of a valid Hiba
- Declaration of hiba by the donor
- Acceptance of hiba, expressly or impliedly, by or on behalf of the done;
- Delivery of possession of the subject-matter of hiba to the done
If any of the above three conditions is missing, hiba is incomplete and void.
Read the Second Part of Gifts under Muslim Law.
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