Kinds of Gift (Hiba)

Introduction

Under Muslim law, a gift (Hiba) has several variations depending on whether there is consideration (return) or conditions attached. These types help in understanding how ownership and possession are transferred in different situations.

Meaning / Definition

Kinds of gift refer to different forms of Hiba based on the presence of consideration, conditions, or nature of rights transferred. Each type has its own legal rules.

Modes or Types

Hiba bil Iwaz (Gift for Consideration)

• "Iwaz" means consideration (something given in return)

• It is a gift made for consideration already received

• It involves two separate but related transactions:

  • Gift by donor to donee
  • Return gift by donee to donor

• In practice, it is similar to a sale

Essentials

• Actual payment of consideration is necessary

• The consideration need not be equal but must be genuine

• Donor must have real intention to transfer ownership

• Registration is required

• Delivery of possession is not essential

• Rules relating to Mushaa (undivided share) do not apply

Hiba ba Shart ul Iwaz (Gift with Condition of Return)

• "Shart" means condition

• It is a gift made with a condition that something will be given in return

• The return (iwaz) is not immediate

Features

• Delivery of possession is necessary

• Gift becomes complete on delivery

• It is revocable (can be cancelled) until return is given

• After return is given, it becomes irrevocable

• After completion, it takes the nature of a sale

Sadaq

• A gift made for religious or charitable purposes
• Given without expectation of return
• Once made, it is generally irrevocable

Areeat

• Gift of usufruct (right to use and enjoy property)
• Ownership of property is not transferred
• Only limited right is given for use

Exceptions to Delivery of Possession

Delivery of possession is not required in certain cases:

• Gift by father to minor or mentally unsound child

• Donor and donee living in same house

• Gift between husband and wife with clear intention

• Gift between co-owners (co-sharers)

• Part delivery where some property is already transferred

• Zamindari property where physical delivery is not possible

• If donee is already in possession, delivery is not required

Special Rules on Subject Matter

Property in Possession of Tenant

• Gift can be made by changing ownership records
• Tenant must be informed to recognize the donee as new owner

Incorporeal Property (no physical form)

• Gift can be made by transfer methods suitable to the property
• Example: endorsement of government notes

Void Gifts

The following gifts are void:

• Gift of future property
• Gift dependent on a condition that may or may not happen (contingent gift)

Gift with Conditions

• A gift must be unconditional
• If a condition restricts full ownership, the condition is void
• The gift remains valid

Doctrine of Mushaa (Undivided Share)

• Mushaa means undivided share in property

Rules

• Gift of undivided share in indivisible property is valid
• Gift of undivided share in divisible property:
  • Under Hanafi law: invalid unless divided and possession given
  • Under other schools: valid if donor gives up control

Exceptions (Valid even if not divided)

• Gift between co-heirs

• Gift of share in zamindari property

• Gift of share in large commercial property

• Such gifts may become valid after division and delivery of possession

Important Case Law

Khajoorunissa v. Raushan Begam

• Held: Adequacy of consideration is not important in Hiba bil Iwaz
• Principle: Even small but genuine consideration is valid

Gulam Abbas v. Razia (AIR 1951 All)

• Held: Gift in lieu of dower debt is treated as a sale
• Must be done through registered document if value exceeds legal limit

Distinction / Comparison

Hiba vs Hiba bil Iwaz vs Hiba ba Shart ul Iwaz

• Hiba: No consideration, pure gift

• Hiba bil Iwaz: Consideration already given, similar to sale

• Hiba ba Shart ul Iwaz: Consideration promised, becomes sale later

• Delivery of possession:

  • Required in Hiba and Hiba ba Shart ul Iwaz
  • Not required in Hiba bil Iwaz

• Revocability:

  • Hiba: Generally revocable
  • Hiba bil Iwaz: Irrevocable
  • Hiba ba Shart ul Iwaz: Revocable until consideration is paid

Practical Example

A person gifts his property to another and receives money in return. This is Hiba bil Iwaz and is treated like a sale. If he gifts property with a condition that the donee will pay later, it is Hiba ba Shart ul Iwaz.

Summary

• Hiba has different types based on consideration and conditions
• Hiba bil Iwaz is a gift with consideration and works like a sale
• Hiba ba Shart ul Iwaz is a conditional gift that later becomes a sale
• Sadaq is a charitable gift and Areeat is gift of use only
• Delivery of possession is essential in most cases
• Some exceptions exist where delivery is not required
• Gift of future property and contingent gifts are void
• Mushaa rules apply to undivided share in property