Under Muslim law, A Muslim is not allowed to give away his whole property in his lifetime but he is allowed to give only one-third of his property through a will. So, the best way to transfer property is through the gift which in terms of police law called Hiba. The Gift called Hiba transfer is not controlled by the Transfer of Property Act, 1882 but it is governed by Muslim law itself. There are mainly three conditions that need to be fulfilled in order to successfully transfer the property or making of a Hiba by a Muslim person. These conditions are as follow:
Declaration of gift by the donor
Declaration of gift by the donor is the most essential ingredient which represents his/her willingness to make a gift. The declaration of gift should be clear and not ambiguous. A donor can make the declaration in two ways either in oral or written form. In Muslim law, the gift deed is known as Hibanama. The Hibanama may not be on the stamp paper and is not compulsory to be registered
In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul, the apex court held that under Muslim laws the declaration made by the donor and the acceptance made by the donee can be oral without considering the nature of the property. The declaration and acceptance made in the form of writing are through the way of gift-deed, not the way Hibba.
In the case of Md. Hesabuddin v Md. Hesaruddin, here Muslim woman transferred her property through Hibanama, and it was not on the stamp paper but it was held valid by the Gauhati High Court.
Acceptance of gift by the donee
For the valid gift(HIBA), it must be accepted by the done person to whom the gift is made. If there are more than one or two donee, then it must be accepted by both the done. The gift must be accepted separately because in Islamic law the Hiba is treated as a bilateral transaction i.e the donor makes the transfer and it must be accepted by the donee. If the acceptor of the gift is any person of unsound mind or a minor then it can be accepted by his guardians.
Transfer of possession
After the transfer is proposed by the donor and it is accepted by the donee. The next important step which needs to be fulfilled for a valid gift (HIBA) is the transfer of possession by the donor and its acceptance by the donee. In Hiba, the transfer is complete as soon as the possession is transferred from the donor to the done and The valid effect of the gift starts not from the date of the declaration but from the date of transfer and acceptance of the possession.
In the case of Noorjahan v. Muftakhar, the court held that where the declaration of the gift is made by the donor but till his death all the profits made out of the property is taken by the donor himself. In such a case, the gift is invalid and not effective in nature since the transfer of possession has not taken place.
The term “Hiba” and “gift” have different meanings when we consider the transfer of property act, 1882. Hiba is governed according to the Muslim Law So, the term “gift” used in English is not applicable here and should not be confused with that of Muslim law known as “Hiba”.
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