A Muslim’s property can be devolved in a variety of ways. Property can be transferred inter vivos (gifted) or through testamentary dispositions under Muslim law (will). A disposition inter vivos is unconstrained in terms of quantum, and a Muslim can gift his entire estate during his lifetime, but only one-third of the total estate can be bequeathed by will. A gift, as a transfer of property, is traditionally controlled by the Transfer of Property Act of 1882.
Gift’s Definition and Meaning
A gift is a transfer of property ownership from one live person to another living person for no monetary payment. Gifts are referred to as ‘Hiba’ in Islamic law. To be more specific, the term “gift” has a broad connotation and refers to all types of non-monetary transfers of ownership. The term ‘Hiba,’ on the other hand, has a limited meaning. It is primarily transmitted inter vivos, or between living individuals.
Characteristics of a Hiba
Following an examination of the definitions and meanings, the following notable elements of Hiba emerge:
1. Hiba is a property transfer that occurs as a result of the parties’ actions rather than by operation of law. It means that any property transfer made by a court of law or any transfer of ownership made under Islamic law will not be considered Hiba.
2. A living Muslim can willingly transfer ownership of any property to another living individual under Hiba. As a result, it is an inter vivos transfer.
3. The transferor conveys absolute ownership of the property to the transferee, who receives full title to the property. Under Islamic law, the notion of Hiba is opposed to conditions, restrictions, or partial rights in a bestowed property.
4. Hiba goes into effect right away and takes away the transferor’s control and ownership of the property. Furthermore, because the property is instantly transferred to the transferee, it must exist at the time of the gift. The phrase “void” refers to a donation made for a future property.
5. A Hiba is a property transfer that takes place without any consideration. A transfer of property is not a gift if the transferor receives something of value in return or exchange.
Donor Competency: Capacity and Authority
The person who declares a donation is referred to as a donor. To make a gift, a person must be competent. A competent donor is any Muslim, male or female, married or single, who has reached the age of majority and is of sound mind. The age of majority for the purpose of making a gift is 18 years old, or 21 years old if he is under a certificated guardian.
Hiba ba Shart ul Iwaz
Hiba refers to a gift, while iwaz refers to a consideration in Islamic law. As a result, hiba-il-iwaz refers to a present offered in exchange for a previously provided consideration. There is no system in place under any of the laws that provides for a reward for a gift. However, there is a gift-exchange system in Muslim law.
It refers to a gift that is given with the expectation of a return. In this situation, the donee does not pay the consideration of his own volition; rather, it is paid since it is a necessary requirement.
The following are the requirements for a valid Hiba-ba-Shart-ul-Iwaz:
1.First and foremost, the transfer of ownership is crucial; it is revocable until the iwaz is paid.
2.Second, once the iwaz is paid, it is no longer reversible.
3.Finally, when an Iwaz transaction is finalised, it takes on the character of a sale.
The concept of gifting is a long-standing tradition that dates back to our forefathers. When considering the 1882 Transfer of Property Act, the terms “Hiba” and “gift” have various meanings. Hiba is controlled by Islamic law. So, as we’ve established in this paper, there are three requirements for a legitimate gift:
The donor makes a gift declaration.
The donee’s acceptance of the gift.
The donor’s transfer of ownership and the donee’s acceptance of it.
The donor’s purpose to transmit the property must be genuine.