Hiba is the unrestricted and unconditional transfer of ownership of a property or right for no monetary payment. The terms Hiba and gift are frequently used interchangeably, however Hiba is simply one of the types of transactions included by the broad word gift. Ariya and Sadqah are two more forms of gifts. A man can legally transfer his property to another person during his lifetime or leave it to someone after his death through a will.
Since the law of gift is considered an element of the law of contract in Muslim law, there must be an offer, acceptance, and transfer. A grandpa made a present offer to his grandkids in SMT. Hussainabi (v) Hussensabi Hassan. He also accepted the offer on behalf of his younger grandkids, but a significant grandson did not outright or impliedly accept. The Karnataka High Court 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 regard to the minor grandchildren.
The donor’s motivation for making a donation must be clear and unmistakable. A declaration can be made orally or in writing. In Muslim law, there is no requirement for writing or registration. Whatever the nature of the property donated, the famous decision of Ilahi Samsuddin v Jaitunbi Maqbul determined that under Muslim law, both the announcement and acceptance of the gift can be made orally. The donation was made by a Muslim lady and was not inscribed on stamp paper in the case of MD Hesabuddin v MD Hesaruddin, which was upheld by the Guwahatti High Court. All obstacles, such as enticement, threat, coercion, and duress, should be removed from the statement. It must also be done with the best of intentions.
If the donee does not accept the gift, it is invalid. On behalf of a juvenile, the legal guardian may accept. A person from any religious background can be a Donee. He can also bow in favour of a minor or a girl. A competent donee is a kid in the mother’s chamber who is born alive within six months of the declaration. In Muslim law the term possession means only such possession as the nature of the subject is capable of.
As a result, the true test of possession delivery is to establish who got the advantages of the property, whether the donor or the donee. If the donor is reaping, the gift has not been delivered and is thus void. The manner of delivery is entirely dependent on the property’s nature. Possession can be delivered in two ways: real or constructive.
The property is physically handed over to the donee at actual delivery. In most cases, only physical assets can be given to the donee. In the following instances, constructive conveyance of possession is sufficient to establish a legal gift:
- Where the property is intangible and cannot be perceived through senses.
- Where the property is tangible but its actual or physical delivery is not possible.
As a result, the primary requirements must be completed as required by law in order to create a legitimate Hiba. These include the donor’s offer, the donee’s acceptance, and the transfer of ownership.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
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