Hiba: Gift Under Muslim Law- Questions & Answers By Justice V Ramkumar [Part-I]
While in the case of Hindus, Christians, Parsis etc., we in India have statute law laying down and regulating their marriage, divorce, testamentary and intestate succession etc., in the case of Mahomedans (Muslims), by and large, we do not have any statute law governing the above aspects. Even though gift is a transfer of movable or immovable property with immediate effect and...
While in the case of Hindus, Christians, Parsis etc., we in India have statute law laying down and regulating their marriage, divorce, testamentary and intestate succession etc., in the case of Mahomedans (Muslims), by and large, we do not have any statute law governing the above aspects. Even though gift is a transfer of movable or immovable property with immediate effect and without consideration, the provisions of the Transfer of Property Act, 1882 are not applicable in the case of Muslim gifts. Whether a given transaction is a gift or a Will will have to be gathered from the recitals in the document. But, in the case of Muslims there need not be any written document. If the disposition of the right, title and interest under a particular transaction accrues in praesenti, it cannot be treated as a Will, since in a Will the dispositions thereunder take effect only on the death of the executor of the document known as a testator. In the case of a Muslim gift, the Muslim personal law insists upon a declaration, acceptance and delivery of possession to the extend the property admits. Any law is better understood if applied to concrete facts situations. Hence we will discuss a few questions so that we can have a first hand knowledge about the contours of the Muslim law of gift.
Q.1 “Hiba” is –
- an Arabic word.
- a Persian word.
- an Urdu word.
- a French word ?
Ans. “Hiba” is an Urdu word which means “gift”.
Q.2 What is the word for the “deed of gift” in that language ?
Ans. “Hibanamah”.
Q.3 What is the word for “donee” in that language ?
Ans. “Hibadar” or “Atiyahdar”.
Q.4 What is the definition of “Hiba” ?
Ans. “Hiba” is a voluntary transfer inter vivos (between living persons) without consideration of a property or the substance of a thing by one person (called the donor) to another person (called the donee) so as to constitute that other person the proprietor of the subject-matter of the gift. (Vide Syed Ameer Ali in his “Commentary on Mohammedan Law”; Para 11 of Abdul Rahim v. Abdul Zabar (2009) 6 SCC 160 = AIR 2010 SC 211 – 3 Judges – S. B. Sinha, Asok Kumar Ganguly, R. M. Lodha - JJ).
Q.5 Who are the persons capable of making gifts under the Muslim law ?
Ans.
1. Every Mahomedan of sound mind and not a minor may dispose of his property by gift. (Vide Mohamad Abdul Ghani v. Fakhr Jehan Begum AIR 1922 PC 281 - V Cave, Shaw, J Edge, A Ali - JJ; Amjad Khan v. Ashraf Khan AIR 1929 PC 149 - Shaw, Atkin, Sanderson – JJ ; Sultan Begum v. Ara Begum AIR 1933 PC 164 - Lord Thankerton - J; Para 149 of Principles of Mahomedan Law by Mulla (22nd Edition)
(a Muslim woman who has attained majority and is of sound mind, has the same right to make a gift as a Muslim male and her marriage does not entail any disabilities in this regard. (Vide para 22 of Laila Beevi @ Laila Buhali v. N. Sumina @ Summayya 2009 (3) KHC 661) – V. Ramkumar – J).
2. The donor must be the owner of the property which he is gifting.
(Vide Para 10 of Abdul Rahim v. Abdul Zabar (2009) 6 SCC 160 = AIR 2010 SC 211 – 3 Judges - S. B. Sinha, Asok Kumar Ganguly, R. M. Lodha - JJ ).