What are the three essentials of a gift under the Mohammedan Law? Distinguish between hiba-bil-iwaz and hiba-ba-shart-ul-iwaz?

Question: What are the three essentials of a gift under the Mohammedan Law? Distinguish between hiba-bil-iwaz and hiba-ba-shart-ul-iwaz? [BJS 1980]

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Answer

Under the Muslim law, for the validity of a gift, the following formalities must be complied with:

i. Clear and unequivocal declaration by the donor

ii. Acceptance by the donee

iii. Delivery of possession.

i. Clear and unequivocal declaration by the donor :

The first condition required for the validity of a gift is the declaration of intention. Such declaration may be made orally or in writing. A clear and unequivocal declaration of intention of making a gift by the donor or his agent the first is an essential element of the validity of a gift. The form of declaration is not immaterial. Such declaration of intention must be bona fide. Such declaration may be made orally or by writing a deed.

ii. Acceptance by the donee:

The second condition necessary for the validity of a gift is acceptance by the donee or his agent. Such acceptance may be made expressly or impliedly.

iii. Delivery of Possession:

A gift is complete only after the delivery of the possession. So the third and most essential condition required for the validity of a gift is delivery of possession of the property whether movable or immovable of gift. A gift not accompanied by possession is void ab initio. Under Muslim law, a gift is complete only after the delivery of the possession.

There are several variations of Hiba. These include:

1. Hiba bil Iwaz

2. Hiba ba Shart ul Iwaz

3. Sadkah

4. Ariyat

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 a donor to the donee and one from donee to the donor.

The gift and return gift are independent transactions. Therefore, when both i.e., hiba (gift) and iwaz (return or consideration) is completed, the transaction is called hiba-bil-iwaz. For example, A makes a gift of a cow to S and later B makes a gift of a house to A. If B says that the house was given to him by A by way of return or exchange, then both are irrevocable.

So a Hiba-Bil-Iwaz is a gift for consideration and in reality, it is a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and the prohibition against Mushaa does not exist. The following are the requisites of Hiba-bil-Iwaz:

1. Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa v. Raushan Begam, [AIR 1939 Lah 292], it was 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.

2. A bona fide intention on the part of the donor to divest himself of the property is essential.

Gift in lieu of dower debt –

In Gulam Abbas v. Razia, AIR 1951 All 86., the Hon’ble High Court at Allahabad held that an oral transfer of immovable property worth more than 100/- cannot be validly made by a Muslim husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must be done through a registered instrument.

HIBA-BA-SHART-UL-IWAZ

‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with a stipulation for return’. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the payment of consideration is not immediate the delivery of possession is essential. The transaction becomes final immediately upon delivery. When the consideration is paid, it assumes the character of a sale and is subject to preemption (Shufa). As in a sale, either party can return the subject of the sale in case of a defect.

It has the following requisites –

• Delivery of possession is necessary.
  
• It is revocable until the Iwaz is paid.
• It becomes irrevocable after the payment of Iwaz.
• Transaction when completed by payment of Iwaz, assumes the character of a sale.

In general, Hiba-bil-Iwaz and Hiba-ba-Shart-ul-Iwaz are similar in the sense that they are both gifts for a return and the gifts must be made in compliance with all the rules relating to simple gifts.