Introduction 

• A Gift or Hiba is a transfer of property made immediately, without any exchange, by one person to another and accepted by or on behalf of the latter. 
• The rules governing Hiba are derived from the Quran, Hadith (sayings of Prophet Muhammad), and various schools of Islamic thought. 
• The basis of the principle of gift is the prophet’s saying, “Exchange gifts among yourselves so that love may increase”. 
• The definition of Hiba or Gift has been given in Kanz al Daquiq 

Essentials of a valid Gift 

• Declaration of Gift by the Donor: 
  • The donor must make a clear and unequivocal declaration of the gift.  
  • The intention to transfer the ownership of the property must be evident and must be communicated to the donee. 
• Acceptance of the Gift by the Donee: 
  • The donee must accept the gift during the lifetime of the donor.  
  • If the donee is a minor or incapable of accepting the gift, their guardian may accept it on their behalf. 
• Delivery of Possession: 
  • Actual or constructive delivery of possession must take place to complete the gift.  
  • The donor must divest themselves of ownership and the donee must take control of the property. 

Requisites and Restrictions 

• Competence of Donor: 
  • The donor must be of sound mind and not a minor.  
  • They must have the legal capacity to transfer the property. 
• Competence of Donee: 
  • The donee must be capable of holding and owning the property.  
  • Minors and persons of unsound mind can receive gifts through their guardians. 
• Property Must Exist: 
  • The subject matter of the gift must exist at the time of the Hiba, future properties cannot be given as a Hiba. 
• Lawful Object: 
  • The object of the gift must be lawful under Muslim law.  
  • Any property that is prohibited (haram) cannot be given as a gift. 

Kinds of Gift under Muslim Law 

• Hiba-bil-iwaz (gift with exchange): 
  • This is a gift made with a return.  
  • In this gift, the donor gives something to the donee and, in return, receives something of approximately equal value. 
  • Such a gift must be registered, and an oral promise is not sufficient. 
• Hiba-ba-shart-ul-iwaz: 
  • This type of gift is made with a condition of receiving something in return, if the condition is not fulfilled, the gift may be revoked. 
  • Delivery of possession is necessary to make the gift valid. 
  • The gift becomes irrevocable on delivery by the donee of the iwaz(return) to the donor. 
• Areeat: 
  • An Areeat is not a transfer of ownership, but a temporary license to enjoy the profits so long as the grantor pleases. 
  • Upon the death of donee, the property will be reverted to the donor. 
• Sadaqah: 
  • A Sadaqah is a gift made with the object of acquiring religious merit. 
  • Once the gift of Sadaqah has been made and possession has been delivered, it becomes irrevocable. 
  • Sadaqah is not valid if it consists of an undivided share in property. 

Revocation of Gift 

• A gift may be revoked by the donor at any time before delivery of possession. 
• A gift may be revoked even after delivery of possession except in the following cases: 
  • When the gift is made by a husband to his wife or by wife to her husband 
  • When the donee is related to the donor within the prohibited degrees 
  • When the donee is dead 
  • When the thing given has passed out of the donee’s possession by sale, gift or otherwise 
  • When the thing given is lost or destroyed  
  • When the thing given has increased in value, whatever be the cause of the increase  
  • When the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding 
  • When the donor has received something in exchange(iwaz) for the gift. 

Case Laws 

• Hafiza Bibi v. Shaikh Farid (2011): 
  • The Supreme Court held that an oral gift fulfilling all three essentials of a valid gift will be considered as complete and irrevocable gift. 
• Mahboob Sahab v. Syed Ismail (1995) 
  • The Supreme Court held that gift under Muslim law is not required to be in writing and consequently need not be registered under the Registration Act, 1908.  
• Abdul Rahim v. Abdul Zabar (2009)  
  • The Supreme Court held that if by reason of a valid gift, the thing gifted has gone out of the donee’s ownership, the same cannot be revoked. 

Conclusion 

Hiba is a significant aspect of Muslim personal law, emphasizing the principles of generosity and support within the community. Understanding its essentials and legal requirements is crucial for both donors and donees to ensure that the gift is valid and enforceable. The principles governing Hiba reflect the broader values of Islamic jurisprudence, promoting kindness and welfare.