Distinguish between Hiba and Hiba-bill-iwaz. Illustrate your answer.

Question: Distinguish between Hiba and Hiba-bill-iwaz. Illustrate your answer. [BJS 1975]

Find the question and answer of Muslim Law only on Legal Bites. [Distinguish between Hiba and Hiba-bill-iwaz. Illustrate your answer.]

Answer

Hiba-bil-Iwaz is a peculiar concept of Muslim Personal Law. Hiba means gift and Iwaz means consideration or return. Hiba-bil-iwaz, is, therefore, a gift with an exchange or a gift for consideration. Under all the systems of law, there cannot be any consideration or exchange in the transaction of a gift. But Muslim law recognizes a gift with an exchange as a kind of Hiba.

If a gift has duly been made and completed, but subsequently the donee also gives something to the donor in lieu of this gift, then the gift is called Hiba-bil-Iwaz.

Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means a gift for consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons i.e. one gift from the donor to the donee and one from the donee to the donor. The gift and return gift are independent transactions that together make up Hiba-bil-Iwaz.

Essentials of Hiba-bil-iwaz

The following conditions are necessary to render a transfer as Hiba-bil-Iwaz:

• A valid and complete gift by the donor to the donee. It means the three essentials condition for a valid Hiba are essentials namely, the declaration, acceptance, and delivery of possession. Every Hiba-bil-Iwaz is a pure gift in its inception. But as soon as the donee also makes a gift in return for the original gift, the original gift becomes Hiba-bil-Iwaz.
  
• The donee must may something for the donor after the completion of the gift. If donee pays the consideration, the gift is Hiba-bil-Iwaz. It the donee does not pay, the gift continues to be pure Hiba. Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa v. Raushan Begam, AIR 1939 Lah 292, held that adequacy of the consideration is not the question. As long as the consideration is bona fide, it is valid no matter even if it is insufficient.
  
• It is important here that donee must mention it clearly that he is transferring the property to the donor in return for a gift made to him.
  

Difference between Hiba and Hiba-bil-Iwaz

1. A Hiba is a transfer of some property or right by one person called donor to another called donee, without any consideration. But a Hiba-bil-Iwaz is a Hiba for consideration or in return or Iwaz of something.
2. In Hiba-bil-Iwaz , there are two transactions, one is for a Hiba and the second is for the return or iwaz but in Hiba there is only one transaction. Both these transactions together are known as a Hiba-bil-Iwaz.
3. Indian Hiba-bil-Iwaz is in reality a sale and has all the incidents of a sale whereas this cannot be done in the case of Hiba.
   

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