GIFT OR HIBA

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 Key Points of Presentation

 Concept of Gift or Hiba

 Essentials of a valid gift
 Conditional Gift
 Void Gifts
 Gift during Marz-ul-Maut

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
Concept of Gift
Gift, a generic term that includes all transfers
of property without consideration.
 In Bangladesh, Gift is considered equivalent
to Hiba but technically, Gift has a much
wider scope than Hiba.
 The word Hiba literally means, the donation
of a thing from which the donee may derive a
benefit. It must be immediate and complete.
 The most essential element of Hiba is the
declaration, “I have given”.
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
Concept (Contd.)
Hedaya:
“unconditional transfer of property, made
immediately and without any exchange or
consideration, by one person to another and
accepted by or on behalf of the latter”.

 Every Muslim of sound mind and not a

minor may dispose of his property by gift.

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 Concept (Contd.)
 Love, affection, spiritual benefit and many
other factors may enter in the intention of the
donor to make a gift.
 Gift must be made during the lifetime of
the donor and while he is still capable of
giving. If the donee dies before acceptance,
the gift is void.

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 Three essential requisites of a valid
Essentials of a Valid Gift
gift:
I. Offer or Declaration of gift by the
donor;
II. Acceptance of the gift by the donee;
and
III. Delivery of possession to the donee.

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Condition of Writing and Registration
 written document of gift not necessary under
Muslim law.
 Transfer of Property Act, 1882 (amended in
2004) requires gift of immovable property to be
in written instrument and to be registered and
also attestation by at least two witnesses.
 Registration Act, 1908 requires instrument of
heba of immovable property to be registered.

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 Conditional Gift
 Generally a gift with a condition
restricting or prescribing some
definite use of property, like the donee
cannot sell it, the gift is valid, but
condition is void.
 However, a gift with reservation for
life is generally valid.

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 Hiba Bil Iwaz
 Hiba means Gift and Iwaz means
consideration. Hiba bil Iwaz means gift
for consideration already received.
 Gift in exchange of an earlier gift.
 Mutual or reciprocal gifts between two
persons-one gift from donor to donee and
one from donee to donor.
 The gift and return gift are independent
transactions.
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 Hiba bil Iwaz (Contd.)
 It is a gift for consideration and in reality a
sale.
 Free consent and payment of consideration
needed, but delivery of possession not.

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 Hiba ba Shart ul Iwaz
 Shart means stipulation and means a gift made
with a stipulation for return.
 Gift made with the condition that the donee will
make another gift to the donor of the first gift.
 Delivery of possession is necessary.
 It is revocable until the consideration is paid
and it becomes irrevocable after the payment of
consideration.
 It becomes analogous to sale when transaction
completed .
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 Void Gifts
 Some gifts are considered to be void
like,
i. Gift in favour of unborn child
ii. Gift of Mushaa
iii. Gift in Future
iv. Contingent or conditional gift

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 Gift during Marz-ul-maut
 Marz-ul-maut means death sickness. A
sickness in which there is reasonable
apprehension of death of a person.
 If the donor makes the gift during
death sickness, the gift treated as a
‘Will’ or Wasiyyat.
 There will be no ‘will’ in favour of any
heir and no ‘will’ for more than one-
third of the total property.
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