Comparative Analysis Of Hiba And Gift Under Hindu And Muslim Laws

Author(s): Gunda Dinesh

Paper Details: Volume 4, Issue 4

Citation: IJLSSS 4(4) 05

Page No: 42 – 46

INTRODUCTION

The anticipation and wonder when a person receives a gift cannot be recreated. When people give gifts they experience a sense of fulfilment and giving gifts strengthens person’s social and intellectual abilities and when someone receives a gift the receiver feels compelled to return the favour in some other way, which keeps everything in balance and harmonious. The legalities involved while transferring a gift are completely different “Gift under Hindu and Muslim law” and now focus is on the legal aspects governing the transfer of gifts. Gift is an example of transfer inter vivos(transfer between two living persons), sometimes a transfer through will is referred as a gift but the main difference between the two is that gift takes place immediately.

GIFT UNDER MUSLIM LAW

Gift under Muslim law is known as Hiba. The term Hiba has originated from the Arabic language and is derived from the ancient semitic word Haba, meaning gift. Hiba is defined as an unconditional transfer of property made immediately and without any exchange or consideration, by one person to another and accepted by or on behalf of the second person. A Muslim can gift any property (Self acquired, ancestral, movable, immovable, corporeal and incorporeal) and Essential requirements of a valid Hiba are as follows:

1. Competent parties (Two parties donor and donee)
2. Rushd (Major, 18 years above)
3. Akl (Soundness of mind)
4. Mukhtar (Free agent)
5. Ownership of the mouhoob ( Subject matter of the gift)

2. Subject matter (Mouhoob – The subject of the gift)
3. Extent of donor’s power: and
4. Formalities

In The case of P. Kunheema Umma vs. Aayssa Umma^[1] the Kerala high court has laid down three conditions for a valid Hiba under Muslim law:

1. Declaration by donor (Ijab)
2. Acceptance by the done (Qubool)
3. Delivery of the possession (Kabza)

Gift is generally divisible under 3 heads:

1. Hiba
2. Hiba-bil-ewaz
3. Hiba-ba-shart-ul-ewaz

Hiba-bil-ewaz – It is a gift for a consideration and it is more in the nature of an exchange than a gift.

Hiba-ba-Shart-ul-ewaz – It is a gift made under consideration that the donee should return some determinate thing to the donor in the future in return for a gift by the donor.

Hiba is considered as a proper gift without any obligations between donor and donee because gift is an act of only one party where the other party acts according to their interest without any consideration.

Under Muslim law the transfer of Hiba cab be oral and written though it is not mandatory to make the transaction of the gift in writing  but it is not prohibited also and it should follow the three conditions (i.e. Declaration by the donor, acceptance by the donee, and delivery of possession) if all these three conditions are satisfied then the Hiba is considered as valid as mentioned in the case of Hafeeza Bibi & Ors vs Shaikh Farid By Lrs. & Ors ^[2], If the donor transfers the immovable property to the donee under transfer of immovable property act, 1882 as a form of gift it doesn’t fall under Muslim law and it cannot be considered as Hiba.

Void gifts under Muslim law:

1. Gifts to unborn person (Unless the person is in the womb of the mother and is born within 6 months)
2. Gifts in future
3. Conditional Gifts (Gift is valid but the condition is. Not valid)
4. Contingent gift
5. Gift of Mushaa (Hiba-bil-Mushaa)

GIFT UNDER HINDU LAW

Gifts under Hindu law are governed by the transfer of property act, 1882. Gift is defined under Section 122 of  transfer of property act,1882^[3] and it is applicable for Hindu law.

122. “Gift” defined.—

“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving, If the donee dies before acceptance, the gift is void.

Under Mitakshara law separate and self-acquired property can be gifted and ancestral property cannot b gifted and in Dayabhaga law both the separate and ancestral property can be gifted there is no restriction on gifting on gifting a property. Gift to an unborn person is allowed in Hindu law unless it doesn’t break the rule of perpetuity. Actionable claims can also be gifted under Hindu law. In a coparcenary a person can also gift  full share of his/her property. A widow can gift small portion of her property inherited by her from her husband. Conditions for a valid under Hindu law are as follows:

1. The person should be a Hindu (Male or Female)
2. The person should be a major.
3. The person should be of sound mind

In case of transfer of  immovable property the transfer must be effected by registered instruments signed by or on behalf of donor, attested by two witnesses and in case of movable property transfer can be effected by either by registered document or by delivery under Section 123 of Transfer of Property Act.^[4]

VOID AND VOIDABLE GIFTS UNDER HINDU LAW

1. Restriction on alienation of the property (Section 10 of T.P. Act)^[5]
2. Transfer in respect of immovable property to defraud the creditors is voidable.
3. Conditional and contingent gifts are void if they are illegal in nature, or if they are opposing to the public policy.
4. If the donee obtains the gift by any means of fraud or coercion the gift is not valid and it can be revoked by the donor.

COMPARATIVE ANALYSIS

Both Hiba and Gift under Muslim and Hindu law have different approaches and conditions while transferring a gift to another person, Muslim law focuses on oral transfers and Hindu law focuses on registration with proper witnesses and follows a codified law (Transfer of property act 1882).

CONCLUSION AND RECOMMENDATION

The governing laws for both the religions are different but the main aim of the law is to remove ambiguity while making a transfer, by comparing and analysing both the laws. A codified and registration of immovable property in Muslim law would reduce the conflicts and will provide a clarity because the legal aspect the rights of widow in both Hindu law and Muslim law are equally benefitting the widow, the scope for transfer of gift to the unborn child should be expanded in the Muslim law. In Hindu law, gifts are regulated by certain provisions in the Transfer of Property Act, requiring immovable property to be registered. In contrast to Hindu gifts, where immovable property can only be registered, Hiba is not required to be registered, despite both shares voluntary intent and acceptance. Muslim law classifies the gifts under three heads which was more practical the conditional transfer, and the condition to enjoy the profits over a property is a realistic approach because a gift cannot be always voluntary and unconditional it can be sometimes beneficial for both donor and donee. A registered Hindu gift provides greater legal security than a Hiba, which is faster but riskier. Both Hiba and Gift are transfers of property for non-consideration, they have distinct legal consequences and procedural requirement.

[1]  P. Kunheema Umma vs. Aayssa Umma, AIR 1981 KERALA 176

[2] Hafeeza Bibi & Ors vs Shaikh Farid By Lrs. & Ors, AIR 2011 SUPREME COURT 1695

[3] Section 122 of Transfer of Property Act, 1882

[4] Section 123 of Transfer of Property Act, 1882

[5] Section 10 of Transfer of Property Act, 1882