What are the essentials of a valid Hiba under Muslim Law? Discuss the validity of gifts in Muslim Law: Rahim hands over to his wife a non-transferable fixed deposit receipt which he received from a bank and says," After taking a bath, I will go to the bank and transfer the paper in your name." He died while Bathing.

Question: What are the essentials of a valid Hiba under Muslim Law? Discuss the validity of gifts in Muslim Law: Rahim hands over to his wife a non-transferable fixed deposit receipt which he received from a bank and says," After taking a bath, I will go to the bank and transfer the paper in your name." He died while Bathing. [Punj JS 2001]

Find the question and answer of Muslim Law only on Legal Bites. [What are the essentials of a valid Hiba under Muslim Law? Discuss the validity of gifts in Muslim Law: Rahim hands over to his wife a non-transferable fixed deposit receipt which he received from a bank and says," After taking a bath, I will go to the bank and transfer the paper in your name." He died while Bathing.]

Answer

The Muhammadan Law defines the Hiba or gift as a transfer of a determinate (amount of) property without any exchange from one person to another and accepted by or on behalf of the latter. It is clear that under Muslim law, a gift is called Hiba. When a Muslim transfers his property through a gift, the transfer is called Hiba. The religion of the person to whom the gift is made is irrelevant.

Essentials of Hiba

There are mainly three conditions that need to be fulfilled for the successful transfer of property or the making of a gift by a Muslim person. These conditions are as follows:

1. Declaration of gift by the donor.
   
2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and its acceptance by the donee.

Before proceeding further let us first understand the meaning of the terms donor and donee.

The person who signifies his willingness to another person for transferring his property is known as a Donor. On the other hand, the person who expresses his consent for the acceptance of the gift made by the donor is known as the Donee.

a. The Requisites of the Donor are as follows:

• Firstly, the person who is giving the property or making the gift i.e Donor, he/she must be a Muslim. Any other person in place of a Muslim cannot make Hiba.
  
• Secondly, the person should be of a competent age i.e he/she must be a major.
• Thirdly, the consent of the donor must be free. If the person's consent is obtained by force, coercion, or undue influence then it will not be any more free consent and such a gift is not a valid gift.
• Fourthly, the person must be of sound mind. Any gift made by a person of unsound mind is not a valid gift.
• And lastly, the donor should be having ownership of the property that he is going to give away in the form of a gift.

b. The Requisites of the Donee

• Firstly, religion is no bar to accepting the gift which has to be mandatorily made by a Muslim. The donee can be of any religion, Muslim or non-muslim.
• Secondly, age is again not a bar for a donee. He/she can be of any age i.e. major or minor.
• Thirdly, a gift can be made to an unborn child, but it must be in the womb of her mother. This is so because of the Transfer of Property Act, of 1882 which talks about the benefit for the unborn person.
• Fourthly, the transfer of property can also be made to a religious entity.

Declaration

Without any haziness, the offer to make a gift must be clearly consensual and expressed deliberately. For a gift to be termed valid, the declaration is one of the prerequisites. One of the critical aspects is that this declaration, from the point of view of the donor, must not be ruined with a mala-fide intent to defraud rather it must be real and bonafide.

The declaration requires some witnesses or statements stating the gifting of the property by the donor to the donee, without which it cannot be made in segregation.

Acceptance

Another requisite is to accept the gift by a competent donee or a competent person on his behalf. In Musa Miya v. Kadar Bux, AIR 1928 PC 108, the donor declared the gift to his grandchildren in front of his friends. Nonetheless, as there was no acceptance by the father for the delivery of possession of the property, it was held that if the father is alive and the sole legal guardian, only he can act as a guardian of the property of his minor sons and without his acceptance, the gift would be invalid and therefore, the gift was held to be incomplete and invalid. If the gift is accepted by the mother, then also it is considered to be invalid and incomplete.

If the minor is under the care and protection of a person other than the guardian, he can only validly accept the donation on behalf of the minor because there is no guardian. But in the case of a younger girl married to her husband after having obtained puberty, the husband may, even with his father's presence, validly accept the gift for her.

Delivery of Possession

The Delivery of Possession must complete the other two requisites. It could be either actual or constructive. Here, there is a distinction in the understanding of a gift from The Transfer of Property Act, of 1882. In this, there is no discussion of urgent delivery of possession and it can be done at a later stage physically depending upon the agreement without altering the authenticity of the gift. However, in Muslim law, the delivery of possession is an important aspect of a gift.

Therefore, considering the aforesaid legal position of a valid gift to the present scenario at hand, where Rahim hands over to his wife a non-transferable fixed deposit receipt that he received from a bank and says," After taking a bath, I will go to the bank and transfer the paper in your name." and he died while Bathing, the transfer of gift is not complete. Since there was no delivery of possession of the gift which is a very essential criteria for a valid gift.

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