Define the term “hiba” and explain the requisites or essentials of a valid gift.
In our legal system, if a person acquires an ownership of a property then along with ownership, he also acquires the right to dispose off that property. He can dispose off that property either by sale, will or gift.
In general sense, a gift is a transaction in which one person transfers his property to another person without any consideration. So, it is a transaction without consideration. It is also called a disposition inter vivos because a gift is made by person to another person during his lifetime.
In Muslim law, a Muslim person can dispose off his property by gift i.e. in this religion, a Muslim person has right to make a gift and he can make a gift of all or any part of his property. In Muslim religion, there is no restriction that he can make a gift upto a particular quantum. He can make a gift of his whole property.
But, if a Muslim person wants to give his property in gift i.e. if he wants to make a gift then he has to fulfill certain conditions which have been prescribed by the Muslim law and these conditions are related to
• Competency of parties
• Subject matter of the gift
• Extent of the gift
• Formalities or Mode of the gift
According to Muslim law, if a Muslim person wants to make a gift then it is essential that he must be major and of sound mind. Moreover, the property which he wants to gift must be owned by him. Basically, it means that he must be capable to gift the particular property. He must have title of that property. In Muslim religion, the age of majority for the purposes of gift is governed by Indian Majority Act, 1875. So, here, the person will be considered major only if he has attained the age of 18 years.
Moreover, according to Muslim law, the person in whose favour a gift has been made must be capable of holding the property and here, the person also includes juristic person. In Muslim religion, age, sex, creed or religion are no bar to the taking of gift. It means a Muslim person can make a gift in favour of a non Muslim also. But, it is essential that the person in whose favour the gift has been made must be in existence at the time of making the gift.
According to Muslim law, if a person wants to make a gift of a property that property must be capable of giving to another person. It means that the possession of that property must be given to another person and it must be in existence at the time of making the gift and moreover, it must come within the meaning of word “Mal”. According to Muslim law, donor must have title of that property.
In Muslim religion, the fulfilment of these conditions is not enough until the donor clearly shows his intention to make the gift and until the gift is accepted by the donee. If a donor has a clear and unambiguous intention to make a gift and donee accepts the gift then it is also necessary to transfer the possession of property from a donor to donee. The delivery of possession is the most important requisite of a valid gift. According to Muslim religion, the other elements of gift will have no legal effect unless they are accompanied by delivery of possession.