GIFT/HIBA | Family Law - CLAT PG PDF Download

Introduction 

• In India, a Gift is a legal term that refers to the transfer of property without any consideration or payment in return. While it is similar to the concept of Hiba, Gift has a broader scope and encompasses a wider range of situations.
• The term Hiba specifically refers to the donation of a thing from which the recipient can derive a benefit. Unlike Gift, Hiba requires the transfer to be immediate and complete.
• One of the key elements of Hiba is the declaration of intent, such as saying, "I have given." According to the Hedaya, Hiba is defined as the unconditional and immediate transfer of property from one person to another without any exchange or consideration, and it must be accepted by the recipient or on their behalf.
• Legal scholar Fyzee describes Hiba as the immediate and unqualified transfer of the property without any expectation of return.

Essentials of a Valid Gift 

• Declaration by the Donor:  The donor must clearly and unequivocally express their intention to make a gift.
• Acceptance by the Donee:  The donee's acceptance is crucial; if the donee does not accept the gift, it becomes void. A legal guardian can accept on behalf of a minor.
• Delivery of Possession:  The donor must deliver possession, and the donee must take possession. In Muslim law, possession means what the nature of the subject allows. The real test is who benefits from the property. If the donor is still benefiting, the delivery is not complete, and the gift is invalid.

Conditions for a Valid Gift 

• Parties:  There must be two parties involved in the gift transaction - the donor and the donee.

Conditions for a Donor (Who Can Give) 

• Must have attained the age of majority as per the Indian Majority Act 1875.
• Must be of sound mind and have a clear understanding of the transaction.
• Must be free from fraudulent or coercive advice, as well as undue influence.
• Must have ownership over the property being transferred as a gift.

Gift by Married Woman 

• A gift made by a married woman is valid and subject to the same legal rules and consequences as any other gift.

Gift by Pardanashin Woman 

• A gift made by a pardanashin (veiled) woman is also valid. However, in case of a dispute, the burden of proof lies with the donee to demonstrate that the transaction was not conducted under coercion or undue influence.

Gift by Person in Insolvent Circumstances 

• A gift made by a person in insolvent circumstances is valid as long as it is bona fide and not merely intended to defraud creditors.

Conditions for Donee in a Gift 

• Eligibility:  Any person capable of holding property, including juristic persons, can be a donee. A Muslim can make a lawful gift to a non-Muslim.
• Existence:  The donee must be in existence at the time of giving the gift. In cases involving a minor or lunatic, possession must be given to the legal guardian; otherwise, the gift is void.
• Unborn Persons:  A gift to an unborn person is void. However, a gift of future usufructs to an unborn person is valid, provided the donee is in being when the interest opens out for heirs.

Mental Conditions in Hiba 

Case: Hussaina Bai v. Zohara Bai (1960 MP 60) 

• A parda-nasheen Muslim lady  was brought from Nagpur to Burhampur.
• She experienced a hysterical fit  and shortly after, was made to sign a disputed gift deed.
• The signing occurred without giving her a chance to seek independent advice  or understand the contents of the document.
• The Court determined that the gift deed was signed under compulsion  and not as a voluntary act by the lady.
• As a result, the deed was declared invalid  .

Subject Matter of Gift 

• The subject matter of a gift must be designable  under the term "maal-thing or goods."
• It must be in existence  at the time the gift is made. A gift of something to be created in the future is considered void.
• Thedonor  must have ownership of the gift.
• Muslim law distinguishes between the corpus  and the usufructs  of a property:
• Corpus  : Refers to the absolute right of ownership, which is heritable and unlimited in duration.
• Usufructs  : Refers to the right to use and enjoy the property, which is limited and not heritable.
• A gift of the corpus of a property is called Hiba  , while a gift of only the usufructs is called Areeat  .
• It is not possible to gift an indivisible property to more than one person simultaneously, as physical possession is essential for a gift.
• Gifts of actionable claims or incorporeal property are not possible because they lack physical existence.

Extent of Donor's Right to Gift 

• General Rule:  The donor's right to gift is generally unrestricted.
• In the case of Ranee Khajoorunissa vs Roushan Jahan  , the Privy Council acknowledged that a donor has the right to gift all or any portion of their property, even if it negatively impacts the expectant heirs.
• Exception:  When a person is on their deathbed (Marz ul maut), their right to gift is limited in the following ways:
• Gift Limit:  They cannot gift more than one-third of their property.
• Heirs Restriction:  They cannot gift to any of their heirs.

Types of Gift (Hiba)

There are various forms of Hiba, including:

• Hiba bil Iwaz 
• Hiba ba Shart ul Iwaz 
• Sadaq 
• Areeat 

Hiba Bil Iwaz 

• Hiba  refers to a gift, while Iwaz  denotes consideration. Hiba Bil Iwaz signifies a gift given in exchange for consideration that has already been received.
• This concept involves a reciprocal arrangement where two gifts are exchanged between individuals. One person gives a gift to the other, and vice versa. These gifts are separate transactions that together constitute Hiba Bil Iwaz.
• In the Indian context, Hiba Bil Iwaz was introduced as a means to facilitate a gift of Mushaa  in property that is capable of division. Essentially, Hiba Bil Iwaz is a gift for consideration that functions similarly to a sale. Consequently, the registration of the gift is mandatory, while the delivery of possession is not essential, and the restriction against Mushaa does not apply.
• The following are the essential requisites of Hiba Bil Iwaz:
• Actual payment of consideration  by the donee is crucial. In the case of Khajoorunissa vs Raushan Begam  , it was established that the adequacy of consideration is not the primary concern. As long as the consideration is bona fide  , it is valid regardless of its sufficiency.
• Bona fide intention  on the part of the donor to divest himself of the property is vital.
• Gift in lieu of dower debt  In the case of Gulam Abbas vs Razia AIR 1951, All HC  , it was ruled that an oral transfer of immovable property valued over 100/- cannot be validly executed by a Muslim husband to his wife as a gift in lieu of dower debt, especially when the dower debt exceeds 100/- as well. This scenario does not constitute Hiba or Hiba bil Iwaz; rather, it is a sale and must be conducted through a registered instrument.

Hiba ba Shartul Iwaz

Hiba ba Shart ul Iwaz refers to a gift made with a stipulation for return. Let's break down the key points:

Definition 

• Hiba ba Shartul Iwaz  involves a gift with a condition for return.

Consideration and Possession 

• In this arrangement, the payment of consideration  is not immediate, but the delivery of possession  is essential.

Finality of Transaction 

• The transaction becomes final  immediately upon delivery.

Nature of Consideration 

• When the consideration is paid  , it takes on the character of a sale  and is subject to preemption  (Shufa).

Defects and Returns 

• Similar to a sale, either party can return the subject  of the transaction in case of a defect.

Requisites 

• Delivery of possession is necessary.
• The transaction is revocable until the Iwaz  is paid.
• It becomes irrevocable after the payment of Iwaz  .
• When completed by payment of Iwaz  , the transaction assumes the character of a sale.

Similarity with Hiba bil Iwaz 

• In general, Hiba bil Iwaz  and Hiba ba Shart ul Iwaz  are similar in that they both involve gifts for a return. However, they differ in specific conditions and compliance with rules related to simple gifts.

Exceptions in Delivery of Possession 

Delivery of possession by the donor to the donee is not required in the following cases:

1. Gift by a Father to His Minor or Lunatic Son 

• When a father makes a gift to his minor or lunatic son, delivery of possession is not necessary.

2. Gift Within the Same Household 

• If the donor and the donee reside in the same house that is being gifted, delivery of possession is not required upon the donor's departure from the house.

3. Gift Between Spouses 

• When a husband gifts to his wife or vice versa, delivery of possession is not necessary if the donor genuinely intends to make the gift.

4. Gift Between Co-sharers 

• In the case of a gift from one co-sharer to another, delivery of possession is not required, provided there is a bona fide intention to make the gift.

5. Part Delivery 

• If there is evidence that part of the gifted properties were delivered, the delivery of the remaining properties may be inferred.

6. Zamindari Villages 

• In zamindari villages, delivery of possession is not needed for gifts that include parcels of land if physical possession is impractical. Such gifts can be completed through mutation of names and transfer of rents and incomes.

7. Subject Matter in Occupation of Tenant 

• If a tenant occupies the property being gifted, the gift can be completed by changing ownership records and requesting the tenant to attorn to the donee.

8. Incorporeal Rights 

• Gifts of incorporeal rights can be completed by transferring control from the donor to the donee through appropriate methods, such as endorsing and delivering a government promissory note to the donee.

9. Donee Already in Possession 

• If the donee is already in possession of the property, delivery is not required. However, if the property is in adverse possession of the donee, the gift is invalid unless the donor recovers possession and delivers it to the donee or takes all possible actions to allow the donee to take possession.

Void Gifts 

The following types of gifts are considered void:

1. Gifts in Future 

• A gift of something that is to come into existence in the future is not valid. For example, a gift of a future crop is void.

2. Contingent Gift 

• A gift that becomes effective only upon the occurrence of a contingency is void. For instance, a gift from A to B that depends on A not having a male heir is invalid.

Gift of a Condition

A gift must always be unconditional. When a gift is made with a condition that obstructs its completeness, the gift is valid but the condition becomes void.

Thus, if A gifts B his house on a condition that B will not sell it or B will sell it only to C, the condition is void and B takes full rights of the house.

Doctrine of Mushaa

Mushaa  refers to an undivided share in a property. The validity of gifting an undivided share in a property varies among different legal schools, especially when it comes to divisible versus indivisible properties.

Gift of Undivided Share in Property 

• Indivisible Property:  The gift of an undivided share in an indivisible property is accepted as valid across all legal schools.
• Divisible Property:  There is a lack of consensus among different schools regarding the gift of an undivided share in a divisible property:

Shafai and Ithna Asharia Laws 

• Under these laws, the gift is considered valid if the donor relinquishes control over the property in favor of the donee.

Hanafi Law 

• In Hanafi law, the gift of an undivided share in divisible property is deemed invalid unless the share is separated and delivered to the donee.

Illustration 

Co-Ownership and Gifts 

• A, B, and C  own a house together. Since a house can't be split up, A can legally give his share of the house to D as a gift.
• A, B, and C  also co-own 3 tons of wheat  . According to Shafai and Ithna Ahsharia law, A can give his share of the wheat to D if he stops controlling it. However, under Hanafi law, A can only do this if the wheat is divided and he physically gives 1 ton of wheat to D.

Gift of Mushaa: Indivisible Property 

• A valid gift can be made of an undivided share (mushaa) in property that cannot be divided.

Gift of Mushaa: Divisible Property 

• When the property is divisible, a gift of an undivided share (mushaa) is considered irregular (fasid) but not void (batil).
• The gift can be made valid through subsequent partition and delivery to the donee.
• If possession is taken, the gift is validated.

Exceptions 

• A gift of an undivided share (mushaa) in divisible property is valid from the moment of the gift in specific cases:
• When one co-heir gives a share to another  .
• When the gift is of a share in a zamindari or taluka  .
• When the gift is of a share in freehold property in a large commercial town  .

Understanding Mushaa 

• Mushaa refers to an undivided share in property, whether movable or immovable.
• A valid gift can be made of an undivided share in property that cannot be partitioned.
• A gift of an undivided share in property that can be divided is irregular, not void, except in the three mentioned cases.
• If possession is taken under the gift, it is validated.
• In the three exceptions, the gift is valid from the moment it is made.

Revocation of a Gift 

Revocation of Gifts in Muslim Law 

• Under Muslim law  , all voluntary transactions are revocable, including gifts under Hanafi law  .
• In Shia law  , a gift can be revoked by simple declaration, while in Sunni law  , revocation requires court intervention or the consent of the donee.

Irrevocable Gifts 

• Gifts are irrevocable in the following cases:
• When the donor dies  .
• When the donee dies  .
• When the donee is closely related  to the donor.
• When the donor and donee are married  .
• When the subject of the gift is transferred by the donee.
• When the subject of the gift is lost, destroyed, or changed in identity.
• When the subject of the gift increases in value and the increase is inseparable.
• When the gift is a sadaq  .
• When something is accepted in return.