While the concept of gift and its subject matter have been longstanding issues in property law, certain institutions recognized under Muslim law, such as Sadaqa, Aariat, and Hiba-bil-iwaz, bear similarities to Hiba. Once a gift is made, subsequent conversion of the donor to another religion does not affect its validity. For a gift to be valid in Muslim law, there must be an immediate transfer of property; any intention for the gift to take effect in the future renders it void.

Indian courts have acknowledged the presence of Hiba in various aspects. Moreover, Hiba excludes any form of services and can only be performed after a promise is made.

Performance of Hiba

In adherence to the principles of Hiba, it is imperative to acknowledge the involvement of two parties, namely the donor and the donee, both of whom must possess the requisite competence for execution. The qualifications for these parties are delineated as follows:

Donor's Qualifications:

I. The donor must adhere to the faith of Islam.

II. The donor must have attained the age of majority.

III. The donor, irrespective of gender or marital status, may perform Hiba.

IV. The donor must hold rightful ownership of the subject matter of the Hiba at the time of its bestowal. However, in the scenario where a widow possesses her deceased husband's property, such property cannot be gifted in lieu of dower.

V. The donor's execution of Hiba must be voluntary, free from any form of fraud, misrepresentation, undue influence, compulsion, force, or coercion.

Donee’s Qualifications:

I. The donee may be either Muslim or non-Muslim. In the latter case, upon completion of Hiba, the subject matter of the gift shall be subject to the personal law of the donee.

II. The age of majority is not a prerequisite for the donee.

III. The donee, regardless of gender or marital status, may receive Hiba.

IV. A mentally unsound individual may also act as a donee; however, in such cases, delivery of possession must be made to the guardian of the minor or unsound person to validate the gift.

V. Hiba cannot be bestowed upon a deceased individual. Even if a widow bestows Hiba in favor of her deceased husband as Mehr, it does not qualify as Hiba.

VI. Hiba of future usufruct to an unborn person shall be valid if the donee exists at the time when interest arises out of legal heirs.

VII. Joint Hiba in favor of multiple individuals is inherently invalid. Nonetheless, if the donees, through mutual agreement, individually take possession of their respective shares, the gift shall be considered valid as Hiba under Muslim law.

Subject Matter of Hiba:

Under Muslim law, a Muslim has the authority to perform Hiba, transferring the entirety of their property with legal value as the subject matter. The key requirement is that the subject matter of Hiba must be transferable, allowing ownership to be exercised over it. In Muslim jurisprudence, any property, tangible or intangible, can lawfully serve as the subject matter of Hiba.

Benefit and Intention Theory:

For a gift to be valid and immediately effective, the gifted property must undergo immediate transfer. However, there are scenarios where immediate transfer may not be feasible, such as when the subject matter of the gift is immovable property or yields some form of benefit (usufruct). In such cases, the intention and benefit theory come into play.

Example: The donor may manifest their intention to transfer the property through certain actions, such as making a declaration or handing over the keys of the property, or by providing instructions to their agents regarding the transfer. In cases involving the gift of income, the donor may direct the concerned person accordingly, and the gift becomes effective when the income begins accruing to the Donee.

Exceptions to Immediate Transfer:

There are exceptions to the requirement of immediate transfer, including:

- When the donor and donee reside in the same house, and the house is the gifted property.
- The gift from one spouse to another.
- A gift from a guardian to a ward.
- The gift of property already in the possession of the donee.
- A gift to an unsound person.

Essentials of Hiba

The fundamental requirements governing the act of Hiba are outlined as follows:

1. Declaration:

In making a gift, the donor must clearly express their intent to transfer ownership of the property to the donee, whether verbally or in writing. It is not obligatory under Muslim law for the gift to be registered, attested, or stamped, as emphasized in the case of Kamarunnissa Bibi v. Hussaini Bibi.

Even if the gift is made publicly and accepted without reservation, it remains legally valid under Muslim Law. A written gift is referred to as Hibanama under Muslim law.

Gift Deed:

In certain circumstances, the registration of a gift deed is necessary. However, it should be noted that a gift would be rendered void if not properly declared by the donor or if the language used is ambiguous.

The key prerequisites for declaration are:

FREE CONSENT, meaning the declaration must be made voluntarily by the donor, without any form of coercion, force, or undue influence.

BONA FIDE INTENTION, indicating that the donor's intention must be genuine, as any contrary intent would nullify the gift. An illustrative example is seen in the case of Hussaina Bai v. Zohra Bai, where a gift was invalidated due to coercion, depriving the pardanashin lady of the opportunity to seek advice or ascertain the truth.

Acceptance:

The second crucial aspect of Hiba is the acceptance of the gift. In Muslim law, the initial bilateral phrase uttered is "Qabul hai," signifying acceptance. As a contractual agreement under Muslim law, a gift is rendered ineffective without the acceptance of the other party. Regardless of whether the gift is registered, acceptance by the donee is imperative.

Acceptance can be inferred through mere possession of the property, as possession implies acceptance if the party receives interest, benefit, or profit from it. The Karnataka High Court, in the case of Smt Hussenabi v. Husensab Hasan, underscored the necessity of three elements for a valid gift. When a grandfather offered a gift to his grandchildren without express or implied acceptance by the grandson, the court ruled the gift valid for minor grandchildren but not for major grandchildren due to the absence of these elements.

Delivery of Possession:

In Muslim gift transactions, it is indispensable that the property is effectively transferred to the beneficiary. Without such transfer, the gift lacks legality and purpose, rendering it null or incomplete. Delivery of possession entails a complete divestment of all ownership or dominion rights over the gifted property to validate a Muslim gift.

Reserving possession of the gifted property by the donor during their lifetime renders the gift void. Delivery of possession can pertain to movable or immovable property, and it may be actual or constructive. In Mohd. Aslam v. Khailul, the court emphasized that the mere recording of delivery in the name of the donor and donee is insufficient. For tangible property, actual delivery is necessary, while constructive delivery occurs when the donee begins to receive benefits or rights from the property, directly or indirectly.

Exceptions to the requirement of actual or constructive delivery include situations where the donor and donee reside jointly in the gifted property, or when a husband gifts to his wife or vice versa, where mere mutation of name and delivery of the deed suffices. Similarly, when a guardian gifts to their ward or when the donee already possesses the gifted property, the formality of delivery of possession is waived.

Types of Gifts

Various forms of Hiba encompass:

I. Hiba-bil-Iwaz: - Hiba-bil-Iwaz resembles a sale transaction, wherein the donee (vendee) has already provided some consideration to the donor (vendor), and in return, the donor makes a gift to the donee. In Hiba-bil-Iwaz, unlike a standard Hiba, it is essential for the donee to first furnish some consideration to the donor, without any explicit agreement from the donor. Subsequently, the donor, in exchange for that consideration, bestows the gift upon the donee. Contrary to the requisites of a conventional gift, in the case of Hiba-bil-Iwaz, it is not mandatory for the donor to provide evidence of the gifted property to the donee. While the provision of consideration by the donee is requisite, the donor may merely commit to gifting in exchange for the consideration, without actual delivery being imperative. However, such a gift necessitates registration, as a mere oral promise is insufficient. Once registration is completed, the gift becomes irrevocable. Even the gift of Musha, in a divisible property, is permissible under this arrangement.

II. Hiba-ba-shart-ul-Iwaz: - In Hiba-ba-shart-ul-Iwaz, the donor and the donee agree that the donor will bestow the gift immediately upon the donee, and in return, as per the agreement, the donee will provide something to the donor in the future. In such a gift, the donor must transfer possession of the property to the donee presently. However, Musha cannot be gifted under Hiba-ba-shart-ul-Iwaz. Initially, Hiba-ba-shart-ul-Iwaz constitutes a mere gift, but upon fulfillment of the Iwaz, it transforms into a sale.

III. Sadaqah: - Sadaqah represents a charitable gift motivated by religious beliefs, comprising both the principal amount and any benefits conferred by the donor. Once the gift is finalized and possession is transferred, it becomes irrevocable. Sadaqah may extend to individuals in need for charitable purposes, and it can also be jointly given to multiple recipients. Recipients are entitled to utilize both the principal and its benefits. Unlike traditional gifts, Sadaqah does not require explicit acceptance by the recipient. The key difference between Sadaqah and Waqf lies in their treatment of the principal amount: in Waqf, the principal cannot be consumed, while in Sadaqah, both the principal and its benefits can be used.

IV. Ariyat: - Ariyat resembles a charitable gift, focusing on providing benefits rather than transferring ownership. The donor only transfers the right to enjoy the property's benefits, with ownership reverting to the donor or their heirs upon the recipient's death. This type of gift is made without expecting anything in return and does not necessitate the recipient's explicit acceptance. Additionally, the donor does not need to be of legal age.

V. Musha: - Musha, also known as Hiba-bil-musha, refers to a gift where the donor gives an undivided share of property to the recipient. This type of gift is subject to specific rules, particularly within the Hanafi (Sunni) school of thought. If the property is divisible, it must be divided before transfer. However, if the property is indivisible, such as rights of passage through the property, the gift is permissible without prior division.

Revocation a Gift

While historical records suggest the Prophet's disapproval of gift revocation, it is now a firmly established principle in Muslim law that voluntarily made gifts can indeed be revoked. The rules for revoking gifts vary between the different schools of thought within Islam, such as Shia and Sunni. Muslim legal scholars have categorized gift revocation into two main types:

1. Revocation before Delivery of Possession.
2. Revocation after Delivery of Possession.

According to Muslim law, revoking gifts before delivery of possession is allowed. For instance, if Party A executes a gift deed transferring property to Party B and then decides to revoke the gift before any delivery of possession occurs, this revocation holds legal validity.

On the other hand, a declaration of revocation made by the donor after delivery of possession is insufficient to revoke a gift. The donee retains the right to use the property unless and until a competent court order otherwise.

Exceptions to Revocable Gifts:

I. Gifts exchanged between spouses during their marriage, whether regular or dissolved, are considered irrevocable.

II. If the donor and donee are within prohibited degrees of relation, the gift cannot be revoked.

III. Once either the donor or the donee passes away, the gift becomes irrevocable, preventing legal heirs from revoking it.

IV. Upon completion of the gift, the donee gains absolute ownership of the property. If the donee later transfers the property to a third party, their interest is affected, without their fault.

V. If the property, after revocation, is destroyed before returning to the donor, the gift remains irrevocable, as nothing is left to revert.

Cases Where Delivery of Possession is Not Required

Certain scenarios do not require delivery of possession, such as in the case of a gift between spouses or from a guardian to a ward.

When Donor and Donee Reside Together:

In situations where the donor and donee share the same property, such as a house, and live together, delivery of possession is not essential. However, there must be a genuine intention on the part of the donor to transfer the property.

For instance, in the case of Humera Bibi v. Najmunnissa, an elderly lady transferred property to her nephew, with whom she lived in the same house. Despite no formal delivery of possession, when the property was rented out, rent was collected in the donee's name, confirming the validity of the gift.

Gift Between Spouses:

When one spouse gifts immovable property to the other, delivery of possession is not obligatory.

For example, in Fatma Bibi v. Abdul Rehman, the husband orally declared the transfer of property to his wife. Although no delivery of possession occurred, the court upheld the validity of the gift.

Gift of Property Already in Donee's Possession:

In cases where the donee already possesses the property, a declaration by the donor and acceptance by the donee suffice to validate the gift.

For instance, if Party A owns a car and uses it, and Party A's father transfers ownership to Party A, a declaration by the father and acceptance by Party A make the gift valid.