Gift under

Islamic Law
Hiba
CONCEPT OF GIFT (Hiba)

The term ‘Gift’ is often understood as a synonym of ‘Hiba’ or an English

equivalent of Hiba, but has a wider connotation than Hiba. Hiba is defined as
‘the donation of a thing from which the donee may derive a benefit’.

It is also explained as an unconditional transfer of property made

immediately without any exchange or consideration by one person to another
and accepted by or on behalf of the later.

Fyzee defines it as an immediate transfer of the corpus of the property

without a return. Baillie defines it as the conferring of a right of something
specific without an exchange.
REQUIREMENTS OF A
VALID GIFT
There are three basic requirements for the validity of a gift:
1. Parties to the gift:
a) The donor b)The donee
2. Subject matter of gift
3. Extent
4. Formalities
A)Declaration (Ijab) by the donor (b) Acceptance (Qubool) by
the donee (c) Immediate delivery of possession (Qabza)
 1. Donor- Any Muslim, who is major and of
sound mind i.e competent to contract can
make a gift of his property.
Donor must have Ownership in the Property
2. Donee- A donee can be a minor or even a
Parties to person of unsound mind. The only
requirement is that he should be a juristic
the Gift person, capable of holding property. A
mosque is a juristic person and competent to
be a donee.
The donee can be of any sex, any age and
even of any religion. He can be a relative or
even a stranger.
• Gift to Unborn Person- The donee can be a minor or a major but he must be in
existence. A gift to an unborn person is void.
• Gift to a Child in Womb- A valid gift can be made to a child in the womb of his
mother, provided it is born within six months of the date of the making of gift. In
such cases the child is treated as a separate entity.
• Gift to a Non-Muslim- The religion of the donee is immaterial. The donee may be
Muslim or even a non-Muslim. A Muslim can make a valid gift in favour of a Hindu
or a Christian.
• Property must be in Existence - The subject-matter of a gift must be in existence.
A gift cannot be made of property that would come in existence in future.
The Supreme court laid down six criterions for the validity of a gift under Muslim law ( Abdul
Rahim v. Sk Abdul Zabar, AIR 2010 SC 211):
(i) Donor should be sane and major and must be the owner of the property which he is gifting

Ii)The thing gifted should be in existence at the time of Hiba;

(iii) If the thing gifted is divisible, it should be separated and made distinct;

(iv) The thing gifted should be such property to benefit from which is lawful under the shariat;

(v) The thing gifted should not be accompanied by things not gifted, i.e., should be free from
things which have not been gifted;
(vi) The thing gifted should come in possession of the donee himself or of his representatives,
guardian or executor.
Subject-matter of Gift
• The subject-matter of gift can be property that is capable of being
owned. It can be movable as well as immovable property, ancestral or
self-acquired, corporeal or even incorporeal property.
• Corporeal property is one that has actual physical existence. It is
tangible, such as land, a house etc.
• Incorporeal property on the other hand, has no physical existence but
it can be owned, such as a copyright or a goodwill. Its actual physical
possession cannot be delivered but it can be assigned.
Exceptions to the Rule of Delivery of Physical
Possession
• : There are three exceptions to the rule that in order to be complete and valid, the offer
and acceptance must be followed by immediate delivery of physical possession of the
property ie physical departure of donor and formal entry of donee.
• These exceptions are:
• (i) where the gift is by the husband to the wife or vice versa;
• (ii) where the gift is by the father to the minor child or by guardian to the ward; or
• (iii) where the donor and donee reside in the same property which is the subject matter
of gift.
 Hiba

Classification Hiba bil iwaz (Gift for

of Hiba Consideration)

Hiba ba shartul iwaz (Gift with

condition for something in return)
Musha
• ‘Mushaa’ is an Arabic word derived from ‘saayu’ that
signifies confusion. It refers to an undivided share in the
property.
• Property may be in the nature of independent unit, that
can be ascertained, specified and identified
independently or it may be part of an independent unit,
which is yet to be specified. The term ‘property’ includes
an undivided share in a property which can be the
subject matter of a valid gift.
• For example, a person A is the owner of a land X. This piece of land is ascertainable as an
independent unit, and is capable of delivery of possession by itself without effecting the
rights of anyone else. Suppose A had three sons B, C and D. On the death of A all these
sons together inherit the property.
• The share of each of them will be one-third, but which one-third of the land will go to the
share of which son can be ascertained or specified only by a formal demarcation or
partition or actual division of the property. Till that is done, each will have an undivided
share in the land.
With respect of Mushaa or undivided share,
two situations are possible:

I) undivided share can be in a property, which is capable of division without

effecting its value or character substantially;

(ii) undivided share is in a property that is incapable of being divided. In trying to

divide it, either the property will be destroyed or its intrinsic value will be lost or
it will be rendered useless, e.g. two brothers inherit a house that has a common
entrance, staircase or a right of way, a utensil, a carriage, tapestries, artefacts,
well, clothes, ornaments etc.
 Gift of Mushaa
Where the Undivided Share is Incapable of Division
- Where the property (the undivided share) is not
capable of division and admits only common
enjoyment, In such cases the donor should by some
act clearly demonstrate his intention to put the
donee in possession of the property .
Where the property is capable of division, it should
be divided and its possession handed over to the
donee. However, even if it is not partitioned and
delivered to the donee it is merely irregular and not
void and can be validated subsequently.
 Sadaqah (Gift with religious motive)

The purpose of Gift in certain situations can also be to obtain

religious merit or simply to confer a benefit on the public at
large. ‘Sadaqah’ is a gift primarily with religious motive.

It is this specific religious purpose, that makes it different from

a simple gift. Secondly, a simple gift may be revoked under
certain specific circumstances, but Sadaqah is irrevocable.
 • ‘Ariyat’ is a gift of the right to enjoy the usufruct in a
specific property for a specific time period and is revocable
at the pleasure of the granter. In fact it is more in the
nature of a licence.
• It is personal in character and is neither heritable nor
Ariyat transferable. It is revocable and does not confer on the
grantee any right in the corpus, but only in the income
coming out of the property or the profits. In case of a
simple gift, it is the transfer of property itself with all
incidents of ownership of property that is transferred.
REVOCATION OF
GIFTS
• Ordinarily, till the gift is complete, it is revocable. In
other words till all the essentials of gift are
complied with, it is open to the donor to withdraw
his offer. Where the possession of the property has
been delivered, the gift becomes complete.
• Revocation of gift can be with the consent of the
donee or in the absence of his consent, by a decree
of the court. The right of revocation is only with the
donor and can never be exercised by his heirs.
• A gift which has been completed in the manner specified by law would be
absolutely irrevocable in the following cases:
I)when either the donor or the donee is dead;
(ii) where the donor and the donee are husband and wife or vice versa; (iii) where the donor and
donee are within prohibited degrees of relationship.
(iv) where the donor has received a return for the gift;
(v) where the subject-matter of the gift has been lost, destroyed or has been converted in such a
manner that it has lost its identity;
(vi) where the subject-matter has passed out of the hands of the donee by a transfer such as by way
of a sale, gift etc.;
(vii) where the gift has substantially increased in value;
(viii) where the gift was for obtaining religious merit (Sadaqah).