Kinds of gifts under Muslim Law
Introduction: Under Muslim Law, a person is entitled to make a gift of his property to another during his lifetime or he may transfer it by way of ‘will’ which takes effect after his death.
The first one is called a disposition inter vivos and the latter is a testamentary disposition.
By ‘will’ a Muslim can give only 1/3 of his property while in the gift he is entitled to give away the whole of his property.
Definitions:
According to Mulla, A gift (Hiba) is a transfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter. It is conferring property without consideration.
According to Hedaya, Hiba is an unconditional transfer of ownership in an existing property, made immediately and without any consideration.
The word Hiba, in a real sense, implies the gift of a thing from which the donee may determine an advantage, the exchange should be prompt and complete.
A gift under Muslim law is a-
(a) Voluntary, unconditional and immediate transfer of,
(b) Certain specified existing property (movable or immovable).
(c) Without any exchange or consideration (Nawaz)
(d) Acknowledged or on the behalf of the donee.
Kinds of gifts under Muslim Law
1.Hiba-il-iwaz
2.Hiba ba Shart ul Iwaz
Hiba-il-iwaz:
- Hiba means gift and iwaz means consideration.
- So, it means a gift for consideration.
- The adequacy of consideration is not material.
- It’s anything but an exchange comprised of two shared or complementary gifts between two people. One present from a donor to the donee and one from donee to the donor.
- The gift and return gifts are independent transactions. Thusly, when both i.e., Hiba (blessing) and iwaz (return or thought) are finished, the exchange is called Hiba-bil-iwaz.
- For instance, A makes a gift of a cow to B, and later B makes a gift of a house to A. If B says that the house was given to him by the return or exchange, then both are irrevocable.
- It can be revoked by the donor even after the delivery of possession of Hiba before the delivery of iwaz.
- It becomes irrevocable when Hiba is delivered and the donor has accepted the iwaz.
Hiba ba Shart ul Iwaz:
- Shart means stipulation, it is a gift made with an express stipulation (shart) for return or consideration voluntarily. The transaction is completed by payment of iwaz.
- It is paid by the donee because payment of consideration is a prior condition (shart) for the gift whereas, In Hiba-bil-iwaz, there is no such express stipulation.
- Not at all like in Hiba bil Iwaz, the installment of thought is deferred. Though the payment of consideration is not immediate, the delivery of possession is essential.
- It is revocable, but it becomes irrevocable on delivery by the donee of the iwaz (consideration) to the donor.
Marz-ul-Maut (Death Illness)
Marz-ul-maut or passing sickness is comprised of two words.,
1.marz (malady or illness)
2.maut (death).
- When a person is suffering from a marz and is under the apprehension of death shortly, and which actually results in his death, he is said to be suffering from marz-ul-maut.
- A case in which the patient has a mild illness does not cover the expression of marz-ul-maut.
- A gift during marz-ul-maut or a passing bed blessing is basically a blessing subject to all states of a blessing.
- However, the power of a donor to dispose of his property by way of gift during marz-ul-maut is limited.
A death bed gift:
1.When Made to Non-Heir cannot take effect beyond one-third of his estate after payment of funeral expenses and debts, unless his heirs give their consent to the excess taking effect.
2.At the point when Made to an Heir is altogether invalid, except if different heirs consent thereto.
Under the Shia law, a death bed gift holds good to extent of only one-third of the donor’s estate inspite of delivery of possession before his death.
Void Gifts
The accompanying gifts can’t be validly made, they are void–
(i)Gift to unborn person.
(ii)Gift to a dead person.
(iii)Gift in future
(iv)Contingent gift
(v) Gift with a condition.
Conclusion
The origination of the term gift and the topic of gift has been a well-established and customary issue that to formed into a particular feature in property law. Various viewpoints identified with the gift in property act and its differentiation with the Mohammedan law and its suggestions have been the significant topic of this article.
The idea of a gift is a long process that is coming over from quite a while ago. The expression “Hiba” and “gift” have alternate importance when contemplating the exchange of property act, 1882. Hiba is administered by Muslim Law. So as we have talked about in this paper the three states of a valid gift are:
- Statement of gift by the giver.
- Acknowledgment of gift by the donee.
- Move of ownership by the donor and its acceptance by the donee.
There should be a bona fide intention of the donor to move the property. The gift can be repudiated by the donor after a pronouncement of renouncement has been passed by the court of law. While closing we can say that gift is an offer made by the contributor to an offer, a known individual acknowledges the offer, known as donee. Along these lines, the expression “gift” used in English is conventional and it should not be mistaken for that of Muslim law known as “Hiba”.
To conclude the analyst can say that, the gift is an agreement comprising of proposition or offer for the doner to give a thing and acknowledgment of it by the donee. So it’s anything but an exchange of property quickly and with no exchange. There should be a reasonable expectation by a contributor to moving the belonging to the doner for the valid gift. It tends to be revoked by the donor. The provisions for the equivalent have additionally been referenced.
Author: Vyshnavi Bojja,
Pendekanti law college/3rd year /Law student