Hiba Defined:
A hiba (or gift) is a transfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter. It is thus the conferring of property without consideration.
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Who can make a Gift?
Every Muslim who is of sound mind and is not a minor may dispose of his property by gift. A Muslim, whether a male or female, may dispose of the whole of his property, and his power of disposition by gift is not restricted, as in the case of his testamentary power of disposition, which is restricted to one-third of his property.
Thus, the Muslim law, which allows a testator only restricted powers of disposition over his property, contains no such restriction as regards gifts inter vivos, but does not recognise such gifts as valid, unless possession is given to the donee.
ADVERTISEMENTS:
The policy of the Muhammadan law appears to prevent a testator from interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as one-third, to a stranger.
But it also appears that a holder of property may, to a certain extent, defeat the policy of the law by giving, in his lifetime, the whole or any part of his property to any person, including only one of his sons, provided he complies with certain formalities. (Khajooroonissa v. Rawshan Jehan, (1876) 3 I. 291, 2 Cal. 184, P. C.)
Incidents of a Gift:
A gift is a transfer of determinate property made immediately and without any exchange. It is essential to its validity that the thing gifted should be in existence at the date of the gift, the donee should also be in existence, that he should accept the declaration of the gift by the donor, and the donor should divest himself completely of all ownership and dominion over the subject of the gift and deliver possession of the property to the donee.
Under Muslim law, a gift can be revoked at any time before delivery of possession. This is so, because before delivery, there is no completed gift at all. However, once possession is delivered, the decree of a court is necessary to revoke the gift. Until such a decree is passed, the donee is entitled to use and dispose of the subject- matter of the gift.
ADVERTISEMENTS:
(Someshwar v. Barkat Ullah, AIR 1963 Mad 469) However, in some cases, a gift cannot be revoked at all, as for instance, a gift made by a husband to his wife or by a wife to her husband, or when the thing gifted is no more in the possession of the donee (as when he has sold or gifted it).
Although a gift can, in certain cases, be revoked by the donor, this cannot be done by his heirs after the death of the owner.