Write a short note on Hiba-bil-iwaz.

Question: Write a short note on Hiba-bil-iwaz. [BJS 1984, HJS 1996, 2009]

Find the question and answer of Muslim Law only on Legal Bites. [Write a short note on Hiba-bil-iwaz.]

Answer

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 donee to the donor. The gift and return gift are independent transactions that makeup Hiba bil Iwaz.

Essentials of Hiba-bil-iwaz:

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

I. A valid and complete gift by the donor to the donee. It means the three essential conditions 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.

II. The donee must do something for the donor after the completion of the gift. If donee pays the consideration, the gift is Hiba-bil-Iwaz. If 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 Bega,  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 even if it is insufficient.

III. It is essential here that the donee must mention clearly that he is transferring the property to the donor in return for a gift made to him.

The consideration (iwaz) paid by the donee to the donor, need not be equal to the value of the property gifted. It may be a nominal consideration or less in value as compared to the subject matter of the gift. In this regard, the Privy Council in Ranee Khujooroonnissa v. Mst. Roushan Jehan, (1876) 3 IA 291, observed:

“Undoubtedly, the adequacy of the consideration is not the question. A consideration may be perfectly valid which is wholly inadequate in amount when compared with the thing given. Some of the cases have gone so far as to say that even a gift of a ring may be sufficient consideration.”