Gifts (Hiba) under Muslim Law: Essentials and Revocation

Introduction: Historical and Legal Background of Hiba

In Muslim personal law, Hiba (gift) occupies a significant place in matters of property transfer. Rooted deeply in the principles of generosity and charity encouraged by Islam, Hiba is a voluntary transfer of property from one person to another without any consideration. The concept is supported by various Qur'anic injunctions and Hadith traditions that emphasize acts of kindness, mutual help, and strengthening social bonds.

The Qur'an in Surah Al-Baqarah (2:177) highlights the virtue of giving, stating:

"It is righteousness... to give away wealth out of love for Him to relatives, orphans, the needy, the wayfarer..."

This spirit of generosity is embedded in the institution of Hiba, which serves not only as a means of wealth distribution but also as an act of worship in itself. Unlike transfers for consideration, a gift is purely gratuitous and is complete only when certain legal requirements are fulfilled.

To understand Hiba, one must also look at its application in Indian Muslim law, where it is governed primarily by Shariat principles, as interpreted by Indian courts, and in certain aspects by statutory provisions like the Transfer of Property Act, 1882, provided they do not conflict with Islamic law.

Meaning of Hiba under Muslim Law

The term "Hiba" in Islamic jurisprudence is defined as "the transfer of property made immediately, without any exchange, and with free consent". Classical jurists such as Abu Hanifa have elaborated that Hiba is an unconditional transfer of ownership of tangible property from one person (the donor) to another (the donee).

Under Muslim law, a Hiba is complete only when three essentials are satisfied:

A clear declaration of the gift by the donor
Acceptance of the gift by the donee
Delivery of possession of the gifted property

Without these elements, the gift remains incomplete and unenforceable.

Essentials of a Valid Hiba

1. Declaration of Gift by the Donor

The first and foremost requirement is an explicit declaration by the donor indicating their intention to make a gift. This can be oral or written, but in Muslim law, unlike under the Transfer of Property Act, a written instrument is not mandatory unless the gift is registered under statute.

The declaration must be unambiguous and immediate, meaning the donor must not attach any future conditions that postpone the transfer of ownership. For example, saying, "I will gift this land to you after my death" is not a valid Hiba, as it resembles a will (Wasiyat) and takes effect only upon death.

In Rashid Ahmad v. Anisa Khatun (1932), the Privy Council held that a clear declaration coupled with delivery of possession is sufficient to validate a gift even without a written deed.

2. Acceptance of Gift by the Donee

The donee must accept the gift during the lifetime of the donor and while the donor is capable of making the gift. Acceptance can be express or implied — for example, taking possession or making use of the gifted property constitutes implied acceptance.

In Abdul Rahim v. Sk. Abdul Zabar (2009), the Supreme Court reiterated that acceptance must occur before the donor's death; otherwise, the gift is void.

3. Delivery of Possession

The delivery of possession is considered the most critical element of a valid Hiba. In Islamic law, mere execution of a deed without handing over possession is insufficient unless the donor and donee already share possession (as in the case of a husband and wife residing together).

Possession can be actual or constructive:

Actual possession means physical handover of the property.
Constructive possession applies when physical transfer is not possible (for example, if the property is rented out, handing over the rent agreement to the donee).

In Amir Bibi v. Abdul Rahman (1917), the court held that without delivery of possession, the gift is incomplete and invalid.

Capacity of the Donor and Donee

Under Muslim law, the donor must:

Be a major (above the age of majority — 18 years, or 21 if under a guardian appointed by court)
Be of sound mind
Be the owner of the property being gifted

The donee must:

Be in existence at the time of the gift
Be capable of holding property (including minors, represented by guardians)

Subject Matter of Hiba

The subject matter must:

Exist at the time of the gift
Be tangible property (movable or immovable)
Be transferable under law
Be owned by the donor at the time of making the gift

A donor cannot gift future property or something they do not own.

Revocation of Hiba

Muslim law recognizes that a gift, once validly made, is generally irrevocable, except under certain circumstances. The Prophet Muhammad (peace be upon him) discouraged taking back gifts, stating in a Hadith recorded in Sahih al-Bukhari:

"The one who takes back his gift is like a dog who swallows its vomit."

However, the Hanafi school allows revocation before delivery of possession, and even after delivery under certain conditions, except when:

The gift is from husband to wife or vice versa
The donee has died
The property has been transferred to a third party
The property has been altered in form
The gift was made for charitable purposes

The process of revocation generally requires court intervention to avoid disputes.

Case Laws on Revocation

Hedaya Principle — Recognizes donor’s right to revoke before possession.
Abdul Rahman v. Sk. Abdul Zabar (2009) — Once possession is delivered, revocation is not permissible without legal grounds.
Gulam Mustafa v. Mst. Rahat Jahan (1998) — Husband’s gift to wife held irrevocable due to marital exception.

Hiba and the Transfer of Property Act, 1882

While the Transfer of Property Act requires registration of gifts of immovable property, Muslim personal law overrides this in the case of oral Hiba, provided all essentials are fulfilled. This was reaffirmed in Mahboob Sahab v. Syed Ismail (1995), where the Supreme Court held that oral gifts under Muslim law remain valid without registration if possession is delivered.

Interlink to Related Topics

Understanding Hiba becomes easier when read in conjunction with Wills (Wasiyat) under Muslim Law: Essentials and Limitations because both deal with voluntary transfer, but differ in their operative time — Hiba operates inter vivos (during lifetime), while Wasiyat operates posthumously.

Similarly, for property transfer principles within family relationships, see Disqualification from Inheritance in Muslim Law to understand how certain factors may prevent a person from receiving property, even through gift or inheritance.

Hiba Compared with Other Transfers

Hiba vs. Wasiyat (Will) — Hiba is immediate; Wasiyat is post-death.
Hiba vs. Sale — Sale requires consideration; Hiba does not.
Hiba vs. Waqf — Waqf dedicates property to God’s ownership; Hiba transfers it to an individual.

Conclusion

Hiba under Muslim law is a unique legal and moral institution that facilitates voluntary, unconditional property transfer based on Islamic values of generosity. It is distinguished by its three-fold requirement of declaration, acceptance, and delivery of possession. While revocation is permissible under certain conditions, it is generally discouraged both legally and morally.

In the Indian context, Hiba continues to operate predominantly under Shariat principles, with the courts ensuring that its essentials are strictly met to avoid disputes.

In our next blog, we will explore Waqf: Meaning, Kinds, Creation and Legal Effects, another important aspect of Muslim property law, which shares similarities with Hiba in its charitable dimension but differs in legal operation and permanency.