A gift with a condition for something in return is called a Hiba-ba-shartul-iwaz. In this transaction the donee does not pay the consideration voluntarily; it is paid by the donee because it is a condition precedent for the gift.
In other words, the gift and the iwaz go hand in hand not one before the other. Payment of consideration is a prior condition (shart) for the gift. Therefore, subsequent gift by donee to donor is the condition precedent for the first gift in favour of the donee.
The subsequent gift by donee to donor is not consideration of the first gift. The result is that in a Hiba-ba-shartul-iwaz the original gift is a pure gift at its inception and the payment of Iwaz is also an independent gift. Accordingly, Hiba-ba-shartul-iwaz is nothing but a set of two independent gifts in which the second gift is condition precedent for the first. Any kind of property may be stipulated as return.
Image Source: cdn.shareyouressays.com
Legal Incidents of Hiba-ba-shartul-iwaz:
ADVERTISEMENTS:
The legal incidents of a Hiba-ba-shartul-iwaz are given below:
(1) As the whole transaction is a set of two independent gifts, therefore, it must be completed by declaration, acceptance and delivery of possession. Registration is neither necessary nor sufficient for any of the two gifts.
(2) It is revocable in the beginning (i.e. when only the original gift, has been made by donor to donee). But, as soon as the donee makes the gift of his property in furtherance of fulfilment of condition, the transaction becomes irrevocable.
ADVERTISEMENTS:
(3) Since Hiba-ba-shartul-iwaz is legally a set of two independent gifts therefore, the right of pre-emption is exercisable in it. But the doctrine of Mushaa may be made applicable to the transaction of Hiba-ba-shartul-iwaz.
However, it is to be noted that Hiba-ba-shartul-iwaz is only of academic importance. This kind of transaction is not common amongst the Indian Muslims.