A muslim can transfer his/her property in various ways. Under muslim law, a person can transfer his/her property by a way of gift or through will. The term gift is known as “Hiba” under Muslim Law. A muslim can transfer his/her whole property by way of gift but he/she can only transfer one-third of the property through a will. The person to whom the gift is given is irrelevant. Transfer of property through gift is not covered by Transfer of Property Act, 1882 but it is governed by Muslim Law.
Essentials of Hiba
There are three conditions which needs to be fulfilled for successful transfer of property as a gift by a muslim person:
- Declaration of gift by the donor.
- Acceptance of gift by the donee.
- Transfer/Delivery of possession by the donor and it’s acceptance by the donee.
Requisites of Donor
Donor is the person who gives the property as a gift. The following are the requisites of Donor:
- A person who is giving the property should be a Muslim. Any person who is not a muslim cannot make Hiba.
- Donor should have attained the age of majority (i.e.) 18 years.
- Donors should be of sound mind. Any gift which is given by a person of unsound mind is not a valid gift.
- The consent of the donor should be free. If the consent is obtained by force, coercion, undue influence etc. then it cannot be considered as a valid consent and it will not be considered as a valid gift.
- The donor should have the ownership of the property which is to be given as a gift.
Requisites of Donee
Donee is the person who receives property as a gift. The following are the requisites of donee:
- Gift can be given to a person of any religion (i.e.) Muslim or Non-Muslim.
- Age is not a bar for donee. He/she can be of any age (i.e.) major or minor.
- A gift can also be given to a child in the mother’s womb provided that child is born alive within six months from the date on which the gift is made.
- Gifts can also be given to a religious entity.
- In case there are 2 donees, then it must be accepted by both the donees separately.
Kinds of Hiba
Under Muslim law, there are two kinds of Hiba:
In Muslim law, Hiba means gift and Iwaz means consideration. It means gift for the consideration already given.
For eg. If X gives his flat as a gift to his friend Y, and in return, Y gives his car as a gift to X, it is known as Hiba-il-iwaz.
It means a gift made with a condition in return. The consideration is not paid by the donee on his own but because of necessary conditions.
For eg. If A gives his car as a gift to his friend B, with a condition that B, in return, will pay Rs. 1,00,000 then it is known as Hiba-ba-Shart-ul-Iwaz.
Transfer of Possession by the Donor
There are two ways in which a person can transfer the property (i.e.) it can be done by Actual Delivery or by Constructive Delivery.
- Actual Delivery
Under actual delivery, the gift is physically transferred by the donor to the donee. It is possible only when the goods are tangible in nature.
For eg. If A gives his laptop to B, A can make the actual delivery of the laptop which is tangible.
- Constructive Delivery
It means a symbolic transfer of property. Such type of delivery can only happen when it is not possible to make actual delivery of property.
For eg. If a person wants to give his/her house to someone, then he can just give the related documents and keys to the donee. So, this is known as constructive delivery of goods.
Revocation of Gift
There is an old tradition which shows that the Prophet was against the revocation of gifts. But under Muslim Law, all voluntary transactions, including gifts, can be revoked.
There are 2 modes of Revocation under Muslim Law:
- Revocation of Gift before the delivery of possession
Under Muslim Law, gifts can be revoked before delivery of possession. Under Muslim Law, no gift is complete till the goods are delivered to the donee and therefore, if goods have not been delivered by the donor it means that donor has changed his mind and not willing to complete the gift by delivery of possession.
- Revocation of Gift after delivery of possession
Donors by mere declaration, or filing of suit in the court or by any other action cannot revoke the gift. The only way to revoke the gift is to get a decree of the court until then the donee is entitled to use the property in any manner.
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