Answer By law4u team
Hiba (gift) under Muslim law refers to the voluntary and immediate transfer of property from one person (the donor) to another (the donee) without any exchange or compensation. It is a form of charitable act or gift, often given for religious, familial, or charitable purposes. The concept of Hiba is governed by the Shari'a (Islamic law) and is recognized as a legitimate form of transferring ownership, as long as certain conditions are met. Key Elements of Hiba under Muslim Law: Voluntary Transfer: Hiba is a voluntary act of giving, and it must be done without any compulsion or coercion from the recipient or third parties. The donor must give the property willingly and out of free will, with the intention of transferring ownership to the recipient. Immediate and Unconditional Transfer: For a gift to qualify as Hiba, the transfer of property must be immediate and unconditional. Unlike a will, a Hiba takes effect immediately and does not require any future event for its validity. Recipient's Acceptance: The gift is only valid if the donee (recipient) accepts the gift. Acceptance can be expressed verbally or through conduct, such as taking possession of the gift. In case the donee is minor or legally incapacitated, acceptance can be done by a guardian on their behalf. Legal Capacity: The donor must have full legal capacity to make the gift, meaning they must be an adult and mentally sound. The donee must also have the capacity to accept the gift. This means the donee should be alive at the time of the gift. A gift cannot be made to a person who is deceased at the time the gift is made. Subject Matter of Hiba: The gifted property can be movable or immovable, such as money, land, or other assets. The property must be legally owned by the donor, and they must have the right to transfer it. A gift of property that does not exist or is incapable of being transferred is not valid. No Consideration: A Hiba is not a transaction involving consideration. The donor does not receive anything in return for the gift, as opposed to a sale or exchange. The gift is made out of love, affection, or charity. Revocability: Generally, Hiba is irrevocable once the gift has been completed and possession has been transferred to the donee. However, in certain circumstances, a gift can be revoked, such as if it was made under duress, or if the donor and donee agree to revoke the gift. Some schools of Islamic jurisprudence (e.g., Hanafi) allow the revocation of a gift if it was made in favor of a close relative, but the donor must retain possession of the property until it is transferred. Formalities: While a Hiba does not require a written document for its validity, it is recommended to have a written deed to avoid future disputes. If the gift involves immovable property, the transfer must be done in compliance with the law of the land, including registration if necessary. Hiba During Lifetime (Hiba inter Vivos): A Hiba made during the lifetime of the donor is known as Hiba inter vivos. This is a common form of gift and is not dependent on the donor's death. Hiba by Will: A Hiba by will (Hiba bil-will) refers to a gift made by the donor during their lifetime but to take effect only upon their death. However, such a gift is treated more like a will and is governed by different principles. The gift must be within the permissible limits of inheritance law, as the donor cannot give away more than one-third of their estate by way of a will. Conditions for Valid Hiba: Intention: The donor must have a clear intention to make the gift. Possession: If the property is movable, it must be handed over to the donee, or if immovable, the donor must take steps to transfer possession (such as executing a deed). No Undue Influence: The gift must not be the result of undue influence, coercion, or fraud. Rights of the Donee: Once the gift is validly made, the donee acquires full ownership of the gifted property, and the donor cannot revoke the gift unless under specific circumstances. The donee may sell, transfer, or dispose of the property as they see fit, subject to the rights of any other parties involved. Summary: In Muslim law, Hiba is a gift made voluntarily by a person to another, transferring ownership of property without any consideration. The gift must be immediate, unconditional, and accepted by the recipient. While Hiba is generally irrevocable once possession is transferred, there are exceptions, particularly when the gift is made under duress or in favor of close relatives. It is important for the donor and donee to comply with the legal requirements for the gift to be valid and for the transaction to be recognized under Muslim law.
