Definition and Essentials of Hiba (Gift)
Meaning of Hiba
Transfer of property without consideration
Hiba in Muslim Law is defined as the voluntary transfer of property or ownership by one person (donor) to another (donee) without any consideration.
It is a form of gift recognized under Islamic law and is governed by principles derived from the Quran, Hadith, and juristic interpretations.
The purpose of a Hiba may be affection, charity, or social obligation, and it can apply to both movable and immovable properties.
Example: Is giving land to a relative out of love and affection without demanding anything in return considered a Hiba?
Answer:
Yes, such a transfer qualifies as a Hiba if the essential conditions—offer, acceptance, and delivery of possession—are fulfilled.
Essential Conditions of Hiba
Declaration of Gift by Donor
Acceptance by Donee
Delivery of Possession (Actual or Constructive)
Absence of Consideration (except in Hiba-bil-Iwaz)
1. Declaration of Gift by Donor
There must be a clear, unequivocal intention and expression of the donor to make a gift. This can be oral or in writing and must indicate the donor's willingness to part with ownership.
2. Acceptance by Donee
The gift must be accepted by the donee (or their guardian if a minor) during the lifetime of the donor. Acceptance may be oral or implied through conduct.
3. Delivery of Possession
Delivery of possession is essential to complete the Hiba. It can be:
- Actual possession – Physical handing over of property.
- Constructive possession – Symbolic transfer (e.g., handing over keys or documents).
If the donor continues to retain control, the Hiba is not valid unless donor and donee reside together and the donee is aware and in control of the property.
4. Absence of Consideration
In a Hiba, no return or consideration is given. If consideration is involved, it may amount to Hiba-bil-Iwaz (gift for return).
Example: Is delivery of possession necessary if the gift deed is registered?
Answer:
Under Muslim law, registration alone does not validate Hiba unless accompanied by delivery of possession. However, courts have sometimes relaxed this rule in cases of registered Hiba between close relations.
Types of Gifts
Hiba-bil-Iwaz
Gift with return
Hiba-bil-Iwaz refers to a gift made in return for something. Although it appears like a sale, the two transactions (gift and return) are treated separately in law. This form is valid under Sunni law but not recognized in Shia law.
Essentials of Hiba-bil-Iwaz:
- There must be a bona fide gift by the donor.
- There must be a bona fide return (iwaz) by the donee.
- Delivery of possession is not essential if the gift is executed and consideration is paid.
Example: A gives his land to B as a gift, and B gives his car in return. Is this Hiba-bil-Iwaz?
Answer:
Yes. Since there is a voluntary gift followed by a return, this qualifies as Hiba-bil-Iwaz under Sunni law.
Hiba-ba-Shart-ul-Iwaz
Gift made with a condition to return
Hiba-ba-Shart-ul-Iwaz is a gift made with an express or implied condition that something will be given in return. This condition is made at the time of the gift.
Distinction from Hiba-bil-Iwaz:
- In Hiba-ba-Shart-ul-Iwaz, the return is a condition at the time of gift.
- In Hiba-bil-Iwaz, the return is voluntary and separate after the gift is made.
If the iwaz (return) is not given, the donor can revoke the gift.
Example: A gifts a house to B on the condition that B will gift him a shop. Is this valid?
Answer:
Yes, this is a valid Hiba-ba-Shart-ul-Iwaz. If B fails to return the shop, A may revoke the gift.
Conditional Gifts
Conditional gifts are those in which the donor imposes a condition on the donee. The validity depends on the nature of the condition:
- If the condition is lawful and not against Islamic principles, the gift is valid with the condition.
- If the condition is unlawful or void, the condition is ignored and the gift may still be valid.
Examples of valid conditions: The donee must use the property only for educational purposes.
Examples of invalid conditions: The donee must not marry or must convert religion — such gifts are void or revocable.
Oral vs. Written Gifts
In Muslim Law, oral gifts are fully valid if the three essentials — offer, acceptance, and delivery of possession — are satisfied.
While written instruments (gift deeds) are used for formal documentation and legal proof, registration is not mandatory unless required by secular laws like the Registration Act, 1908.
Key Point: A gift is valid even if oral and unregistered, provided it satisfies the core conditions of Hiba.
Example: A makes an oral gift of his house to B and hands over the keys. Is this valid?
Answer:
Yes, since there was a declaration, acceptance, and delivery of possession, the oral gift is valid in Muslim law.
Revocation of Gifts
When can a gift be revoked?
Before completion of delivery of possession
Under Muslim Law, a gift (Hiba) can be revoked by the donor before the delivery of possession has taken place. Until possession is delivered, the gift is considered incomplete and revocable, even if there has been a declaration and acceptance.
Illustration: If A gifts a house to B but has not yet handed over the keys or physical control, A may revoke the gift.
Example: A makes a gift of land to B and both sign a deed, but B never takes possession. Can A revoke it?
Answer:
Yes. As per Muslim law, since delivery of possession is essential, the gift can be revoked before B takes possession.
When can a gift NOT be revoked?
When possession has been delivered
When the gift is by husband to wife or vice versa
When the gift is made by a relative within prohibited degrees
When the donee has sold the subject matter of the gift
When the subject matter has been consumed or lost
When the gift is Hiba-bil-Iwaz or Hiba-ba-Shart-ul-Iwaz
Once a gift has been completed by delivery of possession, it becomes irrevocable under most circumstances. Muslim law recognizes certain specific instances where revocation is not permitted:
- Possession has been delivered: Completion of possession finalizes the gift.
- Spousal gifts: Gifts between husband and wife are irrevocable due to special relationship and presumed affection.
- Gifts to blood relatives within prohibited degrees: Such gifts are irrevocable under Islamic ethics and jurisprudence.
- Donee has sold the property: If the donee transfers the gift, the donor loses the right to revoke.
- Subject matter is destroyed or consumed: Revocation is not possible as the asset no longer exists.
- Hiba-bil-Iwaz or Hiba-ba-Shart-ul-Iwaz: These are considered binding transactions due to the presence of return (iwaz).
Example: A gifts his car to his daughter and delivers it. Can A revoke the gift later?
Answer:
No. Since possession has been delivered and the daughter is a close blood relative, the gift cannot be revoked.
Example: A gifts land to B through Hiba-bil-Iwaz and B pays the return amount. Can A revoke it?
Answer:
No. Hiba-bil-Iwaz is irrevocable once the return (iwaz) has been given. It is treated similarly to a sale.