Hiba (Gift) under Muslim Law
HIBA (GIFT) – MUSLIM LAW (SHORT NOTES)
Meaning of Hiba
Hiba means gift under Muslim law.
It is an immediate and unconditional transfer of ownership of property:
- Without consideration
- Made voluntarily
It is a transfer inter vivos (during lifetime), not by operation of law.
Key Features
No requirement of writing or registration (can be oral).
Governed by Muslim law, not Transfer of Property Act, 1882.
A Muslim can gift:
- Entire property during lifetime
- Any type: movable, immovable, corporeal, incorporeal
Essentials of Valid Hiba
A valid gift requires:
1. Declaration (Ijab)
- Clear intention by donor
- Must be voluntary and bona fide
2. Acceptance (Qabul)
- By donee (express/implied)
- Must be during donor’s lifetime
3. Delivery of Possession (Qabza)
Gift is complete only after possession
Can be:
- Actual
- Constructive (e.g., handing over keys)
Capacity of Parties
Donor
- Muslim
- Major (18+)
- Sound mind
Donee
- Any person (even minor or non-Muslim)
- Acceptance by guardian if incompetent
Important Rules
- Gift must be immediate and unconditional
- Condition allowed only on usufruct, not corpus
- Gift to unborn person → void (except child in womb born within 6 months)
- Fraudulent gifts → void
Types of Hiba
1. Hiba-bil-Iwaz
- Gift for consideration
- Equivalent to sale
- Registration required
2. Hiba-ba-Shart-ul-Iwaz
- Gift with condition of return
- Revocable until consideration paid
3. Sadaqah
- Gift for religious purposes
4. Ariyat
- Transfer of usufruct only, not ownership
Doctrine of Mushaa (Co-owned Property)
- Refers to undivided share in joint property
Types:
Mushaa Indivisible
- Valid without partition
Mushaa Divisible
Requires:
- Partition
- Delivery of possession
Otherwise → irregular (not void)
- Not recognized under Shia law
Delivery of Possession – Exceptions
Not required when:
- Donor & donee live together
- Husband-wife gifts
- Guardian to ward
- Donee already in possession
Revocation of Gift
Before possession
- Freely revocable
After possession
Only:
- With donee’s consent, OR
- By court decree
Cannot be revoked when:
- Donor or donee dies
- Property transferred further
- Consideration received
- Gift for religious purpose
Important Case
Here is a clear, exam-ready case summary of:
Abdul Rahim & Ors v. Sk. Abdul Zabar & Ors
Court & Bench
- Supreme Court of India
- Judges: S. B. Sinha, R. M. Lodha, Asok Kumar Ganguly
1. Facts of the Case
One Haji Sk. Abdullah owned property and had:
- Two sons (including plaintiff and Razak)
- Four daughters
In 1973, he executed a registered gift deed (hiba) in favour of his younger son Abdul Razak.
Property was tenanted (given on rent).
Donor:
- Applied for mutation in Razak’s name
- Stated he had no claim over property
Razak:
- Collected rent
- Managed property
👉 Later, the elder son (plaintiff) challenged the gift claiming:
- Gift was invalid
- Possession was not delivered
2. Issues
- Whether the gift (hiba) was valid under Muslim law?
- Whether delivery of possession (essential for hiba) was completed?
- Whether the suit was barred by limitation?
3. Arguments
Plaintiff (Respondent)
- No actual delivery of possession
- Rent collection alone ≠ proof of possession
- Gift should be declared void
Defendants (Appellants)
- Property was tenanted → constructive possession sufficient
- Mutation + rent collection = proof of ownership transfer
- Suit filed too late
4. Judgment (Supreme Court)
✔ Gift held VALID ✔ Constructive possession is sufficient ✔ Suit barred by limitation
5. Key Legal Principles
(A) Essentials of Valid Hiba (Reaffirmed)
The Court reiterated:
- Declaration of gift
- Acceptance by donee
- Delivery of possession (actual or constructive)
(B) Constructive Possession is Sufficient
When property is in possession of tenants, physical delivery is not possible
Therefore:
- Control over property
- Right to collect rent
- Mutation in records = Valid constructive delivery
👉 Important principle:
“Delivery of possession depends on the nature of the property.”
(C) Registered Gift Deed Presumption
- A registered gift deed carries presumption of validity
- Burden lies on challenger to prove invalidity
(D) Limitation (Article 59, Limitation Act)
- Suit to cancel gift must be filed within 3 years from knowledge
- Plaintiff knew earlier → suit time-barred
6. Ratio Decidendi (Core Holding)
✔ Constructive possession fulfills requirement of delivery in Muslim law ✔ Gift of tenanted property is valid without physical delivery ✔ Mutation + rent control = evidence of possession transfer
