A Gift (Hiba) under Muslim Law is the voluntary transfer of property from a donor to a donee without any consideration. It requires three essentials: declaration by the donor, acceptance by the donee, and delivery of possession to be legally valid and enforceable.

Gifts, or Hiba, form an essential part of Muslim personal law, representing a voluntary transfer of ownership of property from one person (the donor) to another (the donee) without any consideration. Rooted deeply in Islamic tradition and jurisprudence, the concept of Hiba not only serves legal functions but also reflects moral and social values such as charity, goodwill, and familial duty.

Meaning and Origin of Hiba

In Islamic law, Hiba means “a gift made immediately and without consideration.” It is derived from the Arabic word ‘Hibah’, which translates to “a gift or donation.” A valid Hiba requires three essential components:

• Declaration of the gift by the donor
• Acceptance of the gift by the donee
• Delivery of possession to the donee

These three conditions were provided in the case of Abdul Rahim v. Sk. Abdul Zabar (AIR 1933 Cal 891), where the Calcutta High Court held that a valid gift under Muslim law is completed only upon delivery of possession, and mere registration without delivery is insufficient.

Historically, the practice of gifting was promoted in early Islamic communities as a means of strengthening social ties, redistributing wealth, and fulfilling religious duties. Prophet Muhammad (PBUH) encouraged Muslims to give gifts and even stated that “gifts remove malice from the heart.”

The principles of Hiba have been recognized in various modern legal systems, particularly in countries with significant Muslim populations. In India, Muslim personal law continues to govern matters relating to Hiba, and it operates independently of the Transfer of Property Act, 1882. Therefore, no written document or registration is required for a valid gift under Muslim law, provided the conditions of declaration, acceptance, and delivery are met.

Features:

• Hiba is governed by personal law, not the general property law statutes.
• Registration is not mandatory unless required under specific state laws or property type.
• Muslim law allows oral gifts if the three essential components are satisfied.

In Mohammad Hesabuddin v. Mohammad Hesaruddin (AIR 1984 Gau 41), the Gauhati High Court reiterated that an oral gift of immovable property is valid under Muslim law as long as the essential requisites are fulfilled, emphasizing that Muslim law stands apart from the statutory requirement of registration under the Transfer of Property Act.

Importance of Gifts in Islamic Tradition

Gifts (Hiba) hold profound spiritual, moral, and social significance in Islamic culture and law. While modern legal systems often view gifts merely as transactions involving the transfer of property without consideration, Islam perceives gifting as an act of devotion, compassion, and ethical duty. The tradition of giving is deeply rooted in the teachings of the Qur’an and Hadith, and it is considered a virtuous deed that brings both spiritual rewards and social harmony.

The act of gifting is encouraged as a form of worship and as a means to cultivate love and brotherhood among individuals. Unlike contractual exchanges, gifts in Islam are meant to be acts of selflessness and generosity that strengthen interpersonal relationships and foster community well-being.

Religious and Ethical Importance:

• Strengthens family bonds and friendships: Gifting within families and among friends is encouraged as a way to build affection, gratitude, and mutual respect. It is often used to celebrate significant occasions such as marriages, childbirth, Eid, and other religious or cultural milestones.
• Fulfills religious obligations and earns divine reward: Islam places a strong emphasis on generosity. The Qur’an and Hadith consistently highlight the spiritual merit of giving without expecting anything in return. It is believed that such selfless acts earn immense rewards in the Hereafter.
• Encourages charity (Sadaqah), especially among the needy: While Hiba may be directed at anyone, Islam strongly promotes gifting to the poor, orphans, and vulnerable groups as a means of achieving social justice. Charitable gifts (Sadaqah) are seen as a way to purify one’s wealth and gain spiritual elevation.
• Acts as a means to support dependents and relatives: Providing for one’s relatives, especially those in financial need, through gifting is considered both a moral responsibility and a way to fulfill family duties. It prevents relatives from falling into poverty and maintains familial solidarity.

One of the most often cited Hadiths on this topic is: “Give gifts, for gifts take away malice from the heart.”

This statement by the Prophet Muhammad (PBUH) reflects the broader spiritual aim of gifting, to cleanse hearts, eliminate envy, and promote peace and affection among individuals.

Moreover, in Islamic jurisprudence, the concept of gifting is not restricted to material benefit. It symbolizes trust, goodwill, and the intention to do good for others. It is a small token of appreciation or the transfer of significant property; the essence of Hiba lies in its sincerity and the absence of self-interest.

Thus, in Islamic tradition, the institution of gift serves not only as a mechanism for transferring ownership but also as a powerful tool for promoting unity, compassion, and moral integrity in society.

Legal Definition of Gift under Muslim Law

In Islamic law, a gift is commonly referred to as Hiba and is a voluntary transfer of property or possession without any consideration. Unlike contractual transactions, Hiba is rooted in personal intention (niyyah) and immediate transfer. The traditional understanding of Hiba under Muslim law differs slightly from the statutory definitions found in modern legal systems.

Under traditional Islamic jurisprudence, a Hiba is defined as:

“A transfer of property made immediately and without any exchange or return, by one person to another, and accepted by or on behalf of the latter.”

Whereas under statutory law in countries like India (where Muslim Personal Law still governs Muslims), Hiba is not codified under any specific statute like the Transfer of Property Act, 1882. However, Section 129 of the Act explicitly states that the general rules of the Act do not apply to Muslim gifts (Hiba), thereby preserving the sanctity and flexibility of Islamic personal law.

In Abdul Rahim v. Sk. Abdul Zabar (AIR 2009 SC 2403), the Supreme Court reaffirmed that the requirements of a valid gift under Muslim law are independent of the statutory provisions of the Transfer of Property Act.

Terminologies Relating to Gift Under Muslim Law (Donor, Donee, Possession)

To understand the legal mechanism of Hiba, it’s crucial to familiarize oneself with the essential parties and concepts involved. These terms also influence the validity of the gift.

#1 Donor

The person who makes the gift:

• Must be of sound mind.
• Must be a Muslim (in case of Hiba under Muslim Law).
• Must have ownership of the property being gifted.

#2 Donee

The recipient of the gift:

• Can be any person, including a minor or even an unborn person (under specific conditions).
• Acceptance by the donee or their guardian is mandatory.

#3 Possession (Qabza)

Delivery of possession is a key element in Hiba:

• Actual possession must be handed over unless exempted.
• Symbolic delivery is acceptable under certain circumstances.

In Mohammad Hesabuddin v. Mohammad Hesaruddin (1984 AIR 1262), the court held that mere declaration and acceptance of a gift are not sufficient unless possession is delivered to the donee. In this case, the gift was declared invalid as the donor retained control over the property.

Additional Notes:

• If the donee is a minor, a guardian can accept the gift on their behalf.
• Oral gifts are valid under Muslim law provided all essential elements, offer, acceptance, and delivery, are fulfilled.

Essential Conditions for a Valid Gift (Hiba) under Muslim Law 

Under Islamic jurisprudence, the term Hiba refers to a form of gift where a person voluntarily gives away a portion or the entirety of their property to another without expecting anything in return. While the concept is spiritual in its origin, having strong roots in the Quran and Hadith, it also forms a crucial part of personal law with direct legal implications. Hiba is recognized and enforced in Indian law under Muslim Personal Law, separate from the secular Transfer of Property Act, 1882.

For a Hiba to be legally valid, three fundamental elements are essential:

1. A declaration by the donor,
2. Acceptance by the donee, and
3. Delivery of possession.

However, many finer nuances, such as the legal capacity of the donor and donee, the eligibility of the subject matter, and delivery exceptions, must also be understood in detail.

#1 Who Can Make a Gift? (Donor)

The donor is the central figure in the transaction of a gift (Hiba) under Muslim law. The legitimacy and enforceability of a gift begin with the legal competence of the donor. If the donor does not meet the legal criteria prescribed under Islamic jurisprudence and relevant statutory laws, the gift will be considered invalid or void ab initio (void from the beginning). The following conditions must be strictly satisfied:

Religion

Under Muslim personal law, only a Muslim can make a gift (Hiba) governed by this legal system. The rules of Hiba do not apply to non-Muslims, who must instead adhere to the general law of transfer, such as the Transfer of Property Act, 1882.

• A Muslim of any sect, Sunni or Shia, may make a Hiba.
• The religious affiliation of the donee is irrelevant; a Muslim may gift property to a non-Muslim.

However, the law does not extend Hiba to non-Muslim donors. Therefore, even if a non-Muslim attempts to structure a gift following Hiba principles, it will not be considered a valid Hiba under Muslim law and would need to comply with general property law.

Age (Attainment of Majority)

The donor must have attained legal majority to possess the legal capacity to make a valid gift. The age of majority is governed by the Indian Majority Act, 1875, which sets out two critical thresholds:

• 18 years for individuals not under court-appointed guardianship.
• 21 years for individuals under the care of a guardian appointed by the Court of Wards.

A minor cannot make a valid Hiba, even with the assistance or consent of a guardian. The rationale is that a minor lacks the legal discretion and understanding required to divest oneself of property permanently.

Section 3, Indian Majority Act, 1875, clarifies the specific ages at which legal majority is attained, forming a crucial benchmark for determining the competence of a donor.

If a 17-year-old Muslim girl attempts to gift a piece of land to her friend, the gift would be void, as she has not yet attained the age of majority, even if all other requirements (declaration, acceptance, possession) are fulfilled.

Mental Soundness

A sound mind is another essential precondition. The donor must be capable of understanding the nature, scope, and consequences of the gift at the time of making it. Under both Muslim law and general jurisprudence:

• A person who is of unsound mind at the time of making the gift cannot make a valid gift.
• Temporary insanity or intoxication at the moment of the declaration also invalidates the gift.

The rationale here is self-evident: a gift results in the irrevocable loss of ownership, and hence, it must be an act of conscious volition.

Soundness of mind includes not only the absence of mental illness but also the presence of deliberate, rational understanding.

Ownership and Title

The donor must be the lawful owner of the property at the time of making the gift. This includes:

• Legal ownership with full title and rights.
• Possession is not necessarily required but ownership must be indisputable.

A donor cannot gift property they do not own, such as:

• Property still under dispute or litigation.
• Property for which the donor has only temporary or possessory rights.
• Property that the donor is holding as a trustee or bailee for another person.

Gifts of future property, that is, property not yet acquired or in existence, are invalid under Muslim law.

Note: Muslim law does not recognize gifts made of expected inheritances or hypothetical properties.

Free Consent

One of the most vital elements of a valid gift is voluntariness. A gift must be made freely, without coercion, force, fraud, or undue influence. This is particularly significant in familial or close relational contexts, where dominant influence may be exerted covertly.

• Duress (threat of harm), fraud (intentional deceit), or misrepresentation renders the gift void.
• Even subtle pressure from close relatives (spouse, parents, children) can raise doubts over the donor’s free will.

In Mt. Hussaina Bai v. Mt. Zohra Bai (1960), the Madhya Pradesh High Court laid down that when a pardanashin woman (a secluded Muslim woman) makes a gift, courts must rigorously evaluate whether she fully understood the document and its implications. If the deed was not in her mother tongue or was merely read aloud without explanation, it would not be considered valid.

This case is significant because it highlighted the protective interpretation of consent where parties may be inherently vulnerable due to social or linguistic barriers.

Insolvency

Interestingly, an insolvent donor is not automatically disqualified from making a gift. Muslim law recognizes the principle that a person may make a gift despite being in financial difficulty. However, certain critical limitations apply:

• The donor must not intend to defraud creditors or escape debt obligations.
• If a gift is made immediately prior to insolvency or with the intent of reducing the estate to avoid liability, the gift may be voided by creditors.

Courts typically examine the timing, circumstances, and financial records of the donor if the gift is challenged during insolvency proceedings.

If an individual donates a valuable gold necklace to a friend out of gratitude, and then files for insolvency a year later, the gift may still stand as valid, provided there was no intent to mislead or escape debt.

Special Consideration: Pardanashin Women

A pardanashin woman, a Muslim woman who lives in seclusion, is legally recognized as needing special judicial protection. Courts have consistently ruled that gifts made by such women must meet higher scrutiny standards:

• The court must ensure that she understands the contents and legal consequences of the gift.
• If the document is not in her native language, the contents must be carefully translated and explained.
• Gifts induced by relatives or legal agents must be free from manipulation.

In Mt. Hussaina Bai v. Mt. Zohra Bai (1960), the court set a precedent requiring a thorough examination of a pardanashin woman’s understanding and volition before validating a gift.

The Donor’s Intention

The law requires the donor’s intention to be clear, unequivocal, and immediate. A gift that is conditional, postponed, or vague is not a valid Hiba. The intention can be expressed:

• Orally: Common in traditional settings and recognized by courts.
• In writing: Known as a Hibanama. It may or may not be registered, though registration adds credibility.

In Ilahi Shamsuddin v. Jaitunbi Makbul (1994), the Hon’ble Supreme Court affirmed that oral declaration and acceptance are legally valid in both movable and immovable gifts under Muslim law.

#2 Who Can Receive a Gift? (Donee)

In the transaction of a Hiba (gift) under Muslim law, the donee plays an essential counterpart to the donor. The gift is not complete unless it is accepted by the donee. While the donor must be competent to give, the donee must also be legally eligible to receive. Muslim law provides a wide scope for who can be a donee, including individuals, institutions, and minors, but certain limitations and conditions apply.

Religion of the Donee

Muslim law is remarkably inclusive in this respect:

• The donee can belong to any religion.
• It is not necessary for the donee to be a Muslim.
• A Muslim can gift property to a non-Muslim under Hiba.

This reflects the universal nature of charitable and voluntary transfers under Islamic law. The focus is on the donor’s intent and capacity, rather than the faith of the recipient.

Example: A Muslim woman gifting a piece of jewelry to her Christian friend is valid under Hiba, provided other conditions are met.

Age of the Donee

There is no bar on age for receiving a gift under Muslim law.

• Minors can be donees, but the gift must be accepted on their behalf by a competent guardian.
• If a gift is made directly to a minor and they are unable to understand or accept it, it is invalid unless the guardian steps in.

Valid Guardians Include:

• Father
• Paternal grandfather
• Executor appointed by either
• Court-appointed guardian

In Valla Peedikakkandi v. Pathakkalan Naravanath Kumhamuand (1963), the Supreme Court validated a gift made to a minor through his paternal grandfather, stressing that a minor’s legal interests must be safeguarded through proper representation.

Illustration: If a Muslim mother gifts land to her 3-year-old daughter, and the father (as natural guardian) accepts the gift and takes possession, the Hiba is valid.

Donee Must Be in Existence

A fundamental requirement is that the donee must be alive and in existence at the time the gift is made.

A gift cannot be made to:

• A child who is not yet born.
• An imaginary or undefined person.

However, there are exceptions when future interest is created in favor of an unborn person subject to Section 13 of the Transfer of Property Act, 1882.

A gift of usufruct (right to enjoy property) to an unborn child may be valid only if the child is born when the interest becomes effective.

Gift to a Group or Class of Persons

If a gift is made to multiple persons, each one must:

• Be clearly identifiable.
• Accept the gift individually, unless they are treated as tenants-in-common.

Two scenarios arise:

#1 Specific shares defined:

• Each donee must accept their portion separately.
• Possession must be delivered individually.

#2 Undivided gift with no defined shares:

• Treated as tenants-in-common.
• Courts may validate the gift if the donor’s intention is clear and bona fide.

A gift to “my children” without names or shares might be held void if the class is unascertainable.

Gift to Religious or Charitable Institutions

Islamic law recognizes gifts made to juristic persons such as:

• Mosques
• Madrasas
• Dargahs
• Religious trusts (Wakf)
• Non-profit institutions with legal identity

Such entities are considered competent donees.

Example: Gifting a plot of land to a mosque for constructing a prayer hall is a valid Hiba, as the mosque is a juristic person with legal capacity to receive property.

Statutory Considerations under Transfer of Property Act, 1882

Muslim law largely operates independently of the Transfer of Property Act (TPA) in matters of Hiba, but some sections may be relevant:

Section 13: Transfer for the benefit of an unborn person

A gift for the benefit of an unborn person is valid only if:

• The transfer creates a prior interest in someone else, and
• The unborn person receives the property upon birth.

Section 14: Rule against perpetuity

• Gifts must not restrict property from being transferred for an indefinite time.
• This prevents tying up property in future generations beyond legal control.

Section 15: Transfer to a class of persons

• If a gift is made to a class, and some of them are invalid (e.g., unborn), the gift is void only for those specific individuals.

Section 16: Further limitations

• If a gift to an unborn person is void under Section 13 or 14, any gift intended to take effect after that is also void.

Acceptance by the Donee

A gift is not valid unless accepted by the donee.

• Acceptance must be during the lifetime of the donor and while the donor is capable of gifting.
• It can be expressed or implied.

Special Cases:

• Minors: Acceptance by guardian.
• Unsound persons: Acceptance by a legal representative or a court-appointed guardian.
• Group donees: Acceptance required from each, unless treated as a single entity.

#3 Subject Matter of a Valid Gift under Muslim Law

In any valid transaction of gift (Hiba), one of the most critical elements is the subject matter, the thing or property that is being gifted. Under Muslim law, a gift is essentially the voluntary transfer of ownership of a specific property or asset from the donor to the donee without any consideration. The law places significant emphasis on the nature, existence, and ownership of the subject matter to prevent fraud, uncertainty, or future disputes.

To ensure the gift is legally valid and enforceable, the subject matter must meet certain requirements, both in terms of its legal character and physical existence at the time of the gift.

Gifts of illegal items or of mere expectations are void.

Valid subject matter includes:

• Tangible or intangible property
• Movable or immovable property
• Anything over which proprietary rights can be exercised
• Property that exists at the time of the gift

The following are the core conditions a subject matter must fulfill:

#1 Capable of Ownership and Transfer

The property must be something over which the donor can legally exercise ownership rights. This includes both tangible and intangible assets.

Examples:

• Land, buildings, money
• Shares, intellectual property, leasehold interests
• Jewelry, livestock, vehicles

Invalid Subject Matter:

• Things that cannot be owned (air, sunlight)
• Illegally held property (e.g., stolen items)

#2 Must Be in Existence

The property must exist at the time of the gift. Muslim law does not permit:

• Gifts of future property (e.g., “whatever I inherit from my father next year”).
• Gifts of things that are yet to be acquired by the donor.

Invalid Gift Example: If A declares a gift of gold that he plans to buy next month, such a gift is void as the property does not yet exist or belong to him.

#3 Definite and Certain

The subject matter must be clearly identifiable and not vague or indeterminate.

• Gifts of an unspecified quantity (e.g., “some part of my land”) are generally invalid.
• The description of the property should leave no ambiguity as to what is being transferred.

Valid Example: “I gift Plot No. 22 in Green Meadows Township to my brother”, specific.

#4 Capable of Possession

The property must be capable of being possessed or controlled in a meaningful way.

• Possession can be actual (physical control) or constructive (symbolic or legal control).
• If the nature of the property is such that it cannot be possessed, it cannot be gifted under Hiba.

Note: Even intangible rights like usufructs (right to use property) can be gifted if they are legally recognized and enforceable.

#5 Belong to the Donor at Time of Gift

The donor must be the owner of the subject matter at the time of making the gift.

• A gift of property that the donor intends to buy or acquire in the future is invalid.
• A gift of property belonging to someone else, even with their permission, is also void unless proper transfer procedures are followed.

Definition of “Mal” in Islamic Jurisprudence

In Islamic law, the term “Mal” (مال) plays a central role in defining what can be the subject matter of a gift.

Mal refers to:

• Anything that can be owned, acquired, possessed, and enjoyed either physically or economically.
• It can be tangible (physical objects) or intangible (rights or interests).

Tangible Mal:

• Land, cattle, gold, houses, tools

Intangible Mal:

• Right to collect rent
• Right to receive profits from a business
• Right to use a vehicle or building (usufruct)

If something qualifies as “Mal,” it can generally be the subject of a Hiba.

Property Affected by Legal Interests

Sometimes, the property may be subject to temporary interests such as:

• Tenancy rights
• Lease agreements
• Life interests

In such cases, the donor can gift the property, but the gift would pass along with existing legal encumbrances. If the gift attempts to terminate existing rights (e.g., of a tenant or co-owner), it may be challenged in court.

Ownership Rights: Corpus vs. Usufruct

Under Muslim law, a donor may gift either:

1. Corpus (Ownership) – The full title and permanent rights to the property
2. Usufruct (Right to Use) – The right to enjoy or use the property without transferring ownership

A gift of usufruct is valid only if it does not conflict with public interest or deprive a rightful owner of their legal entitlement.

Legal Limitations on Subject Matter

Certain types of gifts are prohibited or considered invalid due to their legal nature:

Type of Gift	Validity	Reason
Future property	Invalid	Does not exist at the time of gift
Undivided share (without consent)	Conditional	Only valid if specific portion is defined
Property without title	Invalid	Donor must own it at time of gift
Illegal property (e.g., narcotics)	Invalid	Violates public policy
Property under dispute	Risky	Must be resolved before gifting

Delivery of Possession & Subject Matter

The nature of the subject matter determines the mode of delivery:

• Movable items: Can be handed over directly (e.g., books, gold).
• Immovable property: Delivery is often constructive, involving keys, documents, or changes in record entries (mutation).
• If the donee is already in possession (e.g., lives in the house), fresh delivery may not be required.

Courts often assess whether the delivery corresponds with the customary method of possession for that property type.

In Humera Bibi vs. Najim Un Nissa (1905), the court upheld a gift of a house where the donee already lived with the donor, and rent began being collected in the donee’s name. It validated the gift despite the absence of formal physical delivery because the subject matter was identifiable, in existence, and already constructively possessed by the donee.

Example: If a father gifts his farmland to his daughter and she begins managing it and collecting produce, that act can amount to constructive delivery of the valid subject matter.

#4 Legal Requirements: Declaration, Acceptance, and Delivery of Possession

Under Muslim law, the act of making a gift (Hiba) is not complete merely by intent or desire. To constitute a legally valid gift, certain procedural formalities must be fulfilled. These formalities are rigid and mandatory, unlike many other areas of Muslim personal law which allow for flexibility based on custom or sect.

Muslim jurists and Indian courts consistently maintain that for a Hiba to be valid, three essential ingredients must be present:

Declaration of Gift by the Donor

This is the first step in creating a valid Hiba.

Requirements:

• The donor must make a clear, unambiguous, and express declaration of their intention to gift.
• The declaration may be made orally or in writing.
• There must be no condition, future contingency, or ambiguity in the expression of the intent.

Example: “I gift my flat in Lucknow to my son Ali” is a valid and clear declaration. “I will give you this land if you perform well in your exams” is conditional and hence void.

Key Points:

• There is no legal requirement for the declaration to be made in writing.
• However, a written document (Hibanama) is advisable for immovable property to serve as proof.
• If the gift is written, registration is not mandatory under Muslim law, though it is under the Transfer of Property Act.

In Ilahi Shamsuddin v. Jaitunbi Makbul (1994), the Supreme Court reiterated that oral gifts are valid under Muslim law and registration is not required as long as the three essentials (declaration, acceptance, delivery) are satisfied.

Acceptance of the Gift by the Donee

The second requirement is the acceptance of the gift by the donee. A gift, even if declared, is ineffective unless accepted by the recipient.

Conditions for Acceptance:

• Must be done during the lifetime of the donor and while the donor is legally competent.
• Must be voluntary and free of coercion or undue influence.
• Can be made by the donee personally, or through:
  • • A guardian (in case of a minor or a person of unsound mind)
    • An authorized agent
    • Implied conduct, such as taking possession, paying property tax, etc.

Example: If a minor child receives a house as a gift, the father (as natural guardian) can accept the gift on the child’s behalf. If the donee refuses the gift or does not accept it during the donor’s lifetime, the gift becomes void.

When is Acceptance Presumed?

• When the donee is present during declaration and takes possession.
• When the donee begins using or benefiting from the property (e.g., residing in the house, collecting rent).
• When the name of the donee is mutated in government records.

In Fatmabibi v. Abdulkarim (2000), the Gujarat High Court upheld the validity of an oral gift from husband to wife, where the presence of two witnesses confirmed the declaration, and the mutation of the wife’s name in revenue records confirmed acceptance and possession.

Delivery of Possession

This is the third and most critical element for a valid gift under Muslim law. Even if the donor has declared the gift and the donee has accepted it, the gift remains incomplete and unenforceable without the delivery of possession.

Legal Principle:

“A gift under Muslim law is not complete unless the donee is put into possession of the property gifted.”

Types of Delivery:

1. Actual Delivery: Physical transfer of movable property (e.g., handing over a watch, car keys).
2. Constructive Delivery: Transfer through symbols or legal acts:
   • • Giving house keys
     • Transferring rent receipts
     • Mutation of property in revenue records

Practical Examples:

Property Type	Form of Delivery
Gold chain	Handing over directly
House	Giving keys, changing lock, or possession
Land	Mutating name in land records
Car	Handing over keys and documents
Business shares	Updating shareholder registry

In Md. Hesabuddin v. Md. Hesaruddin (1983), the Orissa High Court held that a gift is void even if made by a registered deed, unless possession is also delivered to the donee.

In Hayatuddin v. Abdul Gain (1974), Delivery of possession was not insisted upon when the donor and donee were already living together in the gifted property. The court inferred intent from the circumstances.

Exceptions Where Delivery of Possession Is Not Required

Despite its importance, delivery of possession is not always mandatory, and courts have recognized several exceptions:

#1 Donor and Donee Live in the Same Property

• If both parties reside in the same house, physical delivery is not necessary.
• What matters is the donor’s intention to transfer ownership.

#2 Gift Between Spouses

• Husband to wife or wife to husband gifts need not involve vacating the house.
• Possession is presumed from the nature of the relationship.

#3 Gift by Co-sharer

• A gift by one co-owner to another does not require new delivery, as both already share possession.

#4 Donee Already in Possession

• If the donee already has possession, no fresh act of delivery is required.
• The gift is complete once intent and acceptance are proven.

#5 Gifts to Minors by Guardians

• Delivery can be symbolic or legal, and actual physical possession is not necessary if the minor’s guardian accepts it.

#6 Registered Gift with Public Mutation or Revenue Entry

In some cases, courts have treated registered gift deeds, combined with mutation in official records, as a sufficient substitute for actual delivery of possession.

• Especially for immovable property, entry in revenue records, municipal records, or electricity/tax bills in the name of the donee may constitute constructive delivery.

#7 Partial Delivery or Symbolic Transfer

In some instances, even partial possession or symbolic delivery may be accepted by courts as fulfilling the requirement:

• Handing over documents of title
• Giving the keys to a house
• Allowing the donee to collect rent or manage property

Example: A donor hands over a key to the main gate of an orchard and allows the donee to hire a caretaker. This may amount to valid symbolic delivery.

Legal Element	Requirement
Declaration	Clear, unconditional expression by donor (oral or written)
Acceptance	By donee or authorized person during donor’s lifetime
Delivery	Actual or constructive delivery; mandatory unless exceptions apply
Exceptions	Co-residence, minor donees, spouses, co-sharers, prior possession

Differences from Transfer of Property Act, 1882

Factor	Muslim Law (Hiba)	TPA, 1882 (Section 123)
Written document	Not required	Mandatory for immovable property
Registration	Not required	Required for immovable gifts
Delivery of possession	Mandatory (except in exceptions)	Not required if gift is registered
Oral gift validity	Valid	Not valid for immovable property

#5 Gifts under Modern Statutory Laws

Although Hiba (gift under Muslim law) is primarily governed by personal religious doctrines, it often intersects with the framework of secular Indian statutory law, particularly the Transfer of Property Act, 1882 (TPA) and the Registration Act, 1908. Understanding the scope and limitations of this intersection is crucial for both legal professionals and individuals executing such gifts.

Section 123 of the Transfer of Property Act, 1882

Section 123 of the TPA mandates that a gift of immovable property must be executed through a registered instrument signed by the donor and attested by at least two witnesses. However, this requirement does not apply to gifts made under Muslim personal law.

Legal Principle:

Muslim law does not require a registered document for a valid gift, even if the subject matter is immovable property. A gift can be oral, provided the three essentials, declaration, acceptance, and delivery of possession, are satisfied.

Role of the Registration Act, 1908

Although registration is not mandatory under Muslim law, it can offer significant evidentiary value, particularly when the gift is later challenged in court.

Practical Implications:

• A registered gift deed creates a formal record, reducing the risk of fraud or denial.
• In cases involving large assets, such as agricultural land or urban property, courts may favor registered documents in determining disputes.
• Registration becomes especially important when the gift involves third parties, who may not have been privy to the oral transaction.

Mutation and Revenue Records

Even in the absence of a registered deed, mutation of names in land records (i.e., changing the ownership name in official documents) can serve as strong evidence of transfer, particularly for agricultural or zamindari properties.

Judicial Note: Mutation alone does not establish title but can serve as supporting evidence of possession and intent.

Limitations Under TPA

While Section 123 may be exempted, other sections of the TPA (such as those related to perpetuity, unborn persons, and transfer of future property) can still affect the validity or enforceability of Muslim gifts if the donor attempts to circumvent these through a Hiba.

#6 Comparative Jurisprudence: Sunni vs. Shia Law

The principles governing Hiba under Muslim personal law are broadly similar across sects. However, significant differences exist between Sunni and Shia interpretations, particularly in the areas of delivery of possession, oral gifts, and intention. These doctrinal differences affect the validity and procedure of gifts under the two schools.

Sunni Law of Gifts

The Sunni interpretation is more flexible and liberal, particularly regarding procedural formalities. Most of the case law and jurisprudence referenced in Indian courts aligns with Sunni principles.

Key Features:

• Oral gifts are valid.
• No written document or registration is required.
• Delivery of possession is essential, except in recognized exceptions (e.g., co-residence, spousal relationship).
• Gifts can be made to anyone, including non-Muslims.

Hayatuddin v. Abdul Gain (1974): Established that delivery is not essential if the donor and donee live together and the intent to gift is proven.

Shia Law of Gifts

The Shia school, particularly the Ithna Ashari (Twelver Shia) sect, maintains stricter rules for a gift to be considered valid. The Shia law is more formalistic and less presumptive about delivery and acceptance.

Key Differences:

• Actual delivery of possession is mandatory in all cases. Even when the donee already resides in the property (as a spouse or child), symbolic or constructive delivery is insufficient.
• No presumption of delivery is allowed, even in close relationships. The donor must undertake a fresh act of delivery, clearly transferring control and benefit to the donee.
• Acceptance must be explicit and must occur in the donor’s lifetime. Acceptance cannot be implied solely from behavior unless clearly documented or supported by witnesses.
• Conditional gifts are often not favored, unless the condition does not undermine the nature of the gift.
• Gifts made on the deathbed (known as Marz-ul-Maut) are treated more skeptically. Unless delivery of possession is made, such gifts are not valid unless the heirs consent posthumously.

Types and Categories of Gifts (Hiba) in Muslim Law

In Muslim law, gifts are classified into several distinct categories based on the conditions attached, their nature, and the intent behind the transfer. Each type of gift, while governed by the overarching principles of Hiba, has unique features and legal implications.

#1 Hiba-bil-Iwaz (Gift for Consideration)

Hiba-bil-Iwaz refers to a gift made in return for some consideration. Though the concept appears similar to a sale, it retains its character as a gift due to the unilateral intention of donation and the timing of the consideration.

• It is essentially a gift coupled with a return, where the donor gives something and receives something in return, though not agreed upon at the time of the gift.
• Unlike a sale, the consideration is not negotiated beforehand.
• Delivery of possession is not necessary in Hiba-bil-Iwaz.

In Abdul Rahim v. Sk. Abdul Zabar, AIR 1970 Cal 361, the Calcutta High Court held that when the donor receives something in return for the gift without an initial agreement, it amounts to Hiba-bil-Iwaz and does not require registration under the Transfer of Property Act.

Conditions & Legal Implications

For a valid Hiba-bil-Iwaz, the following conditions must be satisfied:

• There must be a bona fide gift made by the donor.
• The donor must receive some return (iwaz), even if it is symbolic or minimal.
• Unlike a simple Hiba, registration is required under certain jurisdictions, especially when immovable property is involved.

Legal implications include:

• If iwaz is not given, the transaction remains a pure Hiba and can be revoked.
• If iwaz is given, the gift becomes irrevocable.

#3 Hiba-ba-Shart-ul-Iwaz (Gift with a Condition of Return)

This type of gift is made with a condition that the donee will provide some return or compensation in exchange. Unlike Hiba-bil-Iwaz, the return is part of the original agreement, making it more contractual in nature.

• The donor makes the gift with a stipulated expectation of receiving something.
• If the donee fails to fulfill the agreed return, the donor may revoke the gift.

In Md. Hesabuddin v. Md. Hesaruddin, AIR 1984 Gau 41, the court recognized Hiba-ba-Shart-ul-Iwaz as a conditional gift and allowed revocation due to non-fulfillment of the condition.

Differences Between Hiba-bil-Iwaz and Hiba-ba-Shart-ul-Iwaz

Aspect	Hiba-bil-Iwaz	Hiba-ba-Shart-ul-Iwaz
Timing of Iwaz	After the gift	At the time of gift
Requirement of Agreement	No prior agreement	Must be agreed upon
Revocability	Irrevocable once iwaz is given	Revocable if condition not met
Registration	Often not required	May require if immovable property

#3 Sadaqah (Charitable Gifts)

Sadaqah is a voluntary charitable donation made for the sake of Allah. Unlike other types of Hiba, Sadaqah has a religious and moral aspect and is not intended to seek any return or benefit.

• Sadaqah can be given in the form of money, food, clothing, or property.
• The purpose is to help the needy and gain spiritual merit.
• Once given, it is irrevocable, as it is made in the name of charity.

Legal Status and Recognition

• Recognized under Islamic law and acknowledged in modern statutes relating to charitable trusts.
• Courts have upheld Sadaqah as valid even if done orally, provided the intention and acceptance are clear.

Spiritual and Social Impact

Sadaqah is not just legally valid but spiritually encouraged:

• It helps in wealth redistribution.
• Acts as a form of social welfare.
• Brings spiritual reward to the donor, especially if done selflessly.

#4 Musha (Undivided Gift)

Musha refers to a gift of an undivided share in jointly owned property. This type of gift is generally discouraged under Sunni law unless the property is divisible.

• It involves gifting a fractional share without actual partition or division.
• Problems arise when the donee cannot take exclusive possession.

Divisible vs Indivisible Musha

• Divisible Musha: Valid if the subject matter is capable of physical division (e.g., agricultural land).
• Indivisible Musha: Invalid under Sunni law if the donee cannot take exclusive possession.

In Amjad Khan v. Ashraf Khan, AIR 1939 Oudh 31, the court held that a gift of an undivided share in property (Musha) was void where the donee was not put in possession.

#5 Gift of Ariyat (Loan for Use)

Ariyat is a temporary loan of property for use without transfer of ownership. Although not a gift in the strict sense, it falls within the broader category of voluntary transfers.

• Ownership remains with the lender.
• The donee (borrower) enjoys the property without paying rent.
• Upon return, the property must be in original form unless consumed by use.

Ariyat reflects the benevolent character of Islamic law, promoting communal sharing and generosity.

Comparative Analysis of Types of Gifts (Hiba) Under Islam/Muslim Law

Comparison: Hiba, Hiba-bil-Iwaz & Hiba-ba-Shart-ul-Iwaz

Under Muslim Law, different types of gifts carry distinct legal implications based on their nature and the presence or absence of consideration. The three primary forms—Hiba, Hiba-bil-Iwaz, and Hiba-ba-Shart-ul-Iwaz—vary in terms of their requirements, revocability, and underlying intent. Here’s how they differ:

• Hiba: A pure or absolute gift, made without any expectation of return or consideration.
• Hiba-bil-Iwaz: A gift made in exchange for some consideration or return, often resembling a contract or sale.
• Hiba-ba-Shart-ul-Iwaz: A gift made with a condition that the recipient must give something in return, but the return is not immediate.

Key Distinctions:

Presence of Consideration:

• Hiba: No consideration required.
• Hiba-bil-Iwaz: Consideration is given.
• Hiba-ba-Shart-ul-Iwaz: Consideration is agreed upon but not given at the time of gift.

Delivery of Possession:

• Hiba: Essential for validity.
• Hiba-bil-Iwaz: Not always essential if the consideration is delivered.
• Hiba-ba-Shart-ul-Iwaz: Possession is generally delivered, but emphasis is on future return.

Registration Requirement:

• Hiba: Not required unless involving immovable property.
• Hiba-bil-Iwaz: Treated as a sale registration required.
• Hiba-ba-Shart-ul-Iwaz: Must be registered due to the conditional element.

Revocability:

• Hiba: Revocable with conditions.
• Hiba-bil-Iwaz: Irrevocable once consideration is received.
• Hiba-ba-Shart-ul-Iwaz: Revocable if the condition is not fulfilled.

Practical Examples with Legal Consequences

To better understand these distinctions, consider the following practical illustrations. These examples help demonstrate how each type of gift operates in real-world legal scenarios:

Example 1: Simple Hiba

• A father gifts a plot of land to his son without expecting anything in return.
• Legal Effect: Valid gift if declaration, acceptance, and delivery are fulfilled.
• No registration required unless it’s immovable property.

Example 2: Hiba-bil-Iwaz

• A businessman gifts his shop to his partner in return for a car of equivalent value.
• Legal Effect: Treated as a bilateral contract akin to a sale.
• Registration is mandatory under the Transfer of Property Act.
• Case: In Mussammat Hussa Bibi v. Abdul Razzaq (1911 ILR 33 All 425), the court held that such a transaction must be registered and the exchange substantiated.

Example 3: Hiba-ba-Shart-ul-Iwaz

• A woman gifts a piece of land to her niece on the condition that the niece will care for her in old age.
• Legal Effect: If the niece fails to provide care, the donor may revoke the gift.

Invalid and Void Gifts in Muslim Law

Under Muslim law, a gift (Hiba) is considered invalid or void when it does not meet the essential legal requirements such as capacity, certainty of subject matter, delivery of possession, or when it conflicts with public policy or religious doctrines. The law clearly outlines certain circumstances where gifts cannot be enforced legally. Below are the major instances where gifts are declared invalid or void:

Gift to an Unborn or Non-existent Person

A fundamental requirement under Muslim law is that the donee must be a living, identifiable person at the time the gift is made. A gift made in favor of a non-existent or unborn person is void ab initio (from the beginning).

• Muslim law requires the donee to be in existence at the time of making the gift. The gift cannot be made to a child still in the womb unless it is later ratified upon birth and survival.
• This principle is based on the logic that acceptance and delivery, both essential to a valid gift, cannot be performed by or on behalf of a non-existent person.

In Khan Gul v. Lakha Singh (1928), the court held that a gift made to a person not in existence at the time of the gift was void. The court emphasized that since acceptance and possession were not possible, the gift lacked validity.

Future and Contingent Gifts

Muslim law does not recognize gifts of future property or those made conditionally upon a future event which may or may not happen.

• Future gifts: A gift of something that the donor does not currently own or possess is void. Ownership must exist at the time of the gift.
• Contingent gifts: If a gift is made to take effect only upon the happening of a future uncertain event, it is void because it lacks immediate transfer of ownership and possession.

Key Points:

• Gifts must be unconditional and immediate.
• Donor must have present ownership and must part with possession at the time of making the gift.
• Gift deeds or oral gifts dependent on “if X happens” or “upon the donor’s death” are generally invalid.

In Gulam Abbas v. Haji Kayyum Ali (1973), the Allahabad High Court ruled that a gift depending on a future event was void. The donor had attempted to transfer ownership only after his death, which the court held was a will, not a gift.

Conditional and Oral Gifts

Gifts made subject to conditions that hinder the immediate and complete transfer of ownership or possession are not valid under Muslim law. Moreover, while oral gifts are valid, they must fulfill strict legal formalities to be enforceable.

Conditional Gifts:

• Conditions that delay or deny the delivery of possession render the gift invalid.
• Conditions that reserve control or ownership with the donor contradict the essence of a gift, which requires absolute transfer.

Oral Gifts:

• They are valid only if three essentials are fulfilled:
  • • Declaration by the donor
    • Acceptance by the donee
    • Delivery of possession
• If any of these are missing, the gift is considered void.

In Mohammad Hesabuddin v. Mohammad Hesaruddin (1984), the court emphasized that even for oral gifts, proof of declaration, acceptance, and delivery is mandatory. The gift was declared invalid due to a lack of delivery of possession.

Revocation of Gifts under Islamic Jurisprudence

Islamic law recognizes that a hiba (gift) becomes binding once it fulfills the essential conditions: offer, acceptance, and delivery of possession. However, the concept of revocation exists under specific circumstances, especially in Sunni jurisprudence. While the default presumption is that a completed gift is irrevocable, Islamic jurists and courts recognize exceptional cases that permit revocation to safeguard justice and equity.

Grounds for Revocation under Sunni and Shia Law

According to Sunni law, the donor has a limited right to revoke a gift unless it falls under certain protected categories. The Prophet Muhammad (PBUH) disapproved of revoking gifts, equating it with the disgraceful act of a dog returning to its vomit. Despite this strong language, revocation is not absolutely prohibited in Sunni jurisprudence.

Under Shia law, however, gifts are generally considered irrevocable after delivery, with only rare exceptions. This makes the Shia approach stricter than the Sunni interpretation.

Grounds for Revocation (Primarily under Sunni Law):

• Non-Delivery of Possession: If possession has not been transferred to the donee, the donor can revoke the gift.
• Relationship Between Donor and Donee: Gifts made to blood relatives (zawil arham) cannot be revoked.
• Mutual Consent: The donor and donee may mutually agree to revoke the gift.
• Misrepresentation or Fraud: If the gift was obtained by deception or fraud, it may be revoked.
• Donor’s Necessity: In some cases, financial hardship or need may justify revocation.
• Gift to Spouse: Generally cannot be revoked due to the closeness of the relationship.

Revocation Before Delivery of Possession

A gift is considered incomplete until the donee takes possession. Therefore, the donor has an unimpeded right to revoke the gift before possession is transferred.

Revocation After Delivery of Possession

Once possession is delivered, revocation is more complex. It can only occur:

• With the consent of the donee, or
• Through a decree of the court, and
• Not permissible in the following cases:

When Can Gifts Not Be Revoked?

There are clear limitations in both Sunni and Shia doctrines that restrict revocation to protect donees and ensure the sanctity of validly completed gifts. Once possession has been transferred and no exceptional grounds exist, revocation is generally impermissible.

Certain scenarios make a gift completely irrevocable, even if possession has been delivered:

1. Death of the Donor: After the donor’s death, courts cannot pass a decree for revocation.
2. Death of the Donee (After Delivery): If the donee dies after taking possession, revocation is not allowed.
3. Prohibited Relationship (Consanguinity): If there exists a prohibited degree of relationship (e.g., brother and sister), revocation is barred.
4. Marital Relationship: Gifts between spouses cannot be revoked.
5. Transfer by Donee: If the donee has sold or gifted the item to someone else, revocation is no longer possible.
6. Destruction or Alteration of Gift: If the gifted item is lost, destroyed, or altered beyond recognition, it cannot be revoked.
7. Inseparability Due to Appreciation: If the gift has appreciated significantly in value or merged into another property, making it inseparable, revocation is invalid.
8. Sadaqah (Charity): A charitable gift (sadaqah) is irrevocable as it is given solely for the sake of Allah without expecting return.
9. Gift with Consideration: If something was received in exchange (e.g., hiba-bil-iwaz), revocation is not permissible.

In Gulam Abbas v. Razia Begum (1973), it was ruled that once the possession of a gift is transferred and the gift is complete, the donor cannot unilaterally revoke it, especially when it has been recorded and accepted by the donee.

Revival of Revoked Gifts

The concept of reviving a revoked gift is not standard in classical Islamic jurisprudence but finds occasional recognition in practice, especially where the revocation was unlawful or made under coercion. A gift once revoked can technically be re-executed as a new gift, following all essential requirements again, offer, acceptance, and delivery.

This principle is more relevant in modern statutory interpretations where courts may reinstate a gift if it is proven that revocation was invalid or unjustified.

While classical Islamic law does not recognize automatic revival, modern courts may allow the donor to re-gift the same item through a new and complete process of hiba if the original revocation was flawed or made without legal backing.

To lawfully revive a gift:

• A new declaration, acceptance, and delivery of possession are mandatory.
• The intention must be clear, and it should not be presumed from the donor’s mere regret.

Example Scenario: If a father gifts property to his daughter, later revokes it out of misunderstanding, and then realizes his error, he must go through the formalities again to revive the gift legally.

In Mohammad Hesabuddin v. Mohammad Hesaruddin (1984), the court highlighted that for a revoked gift to be considered valid again, fresh acceptance and delivery of possession are mandatory, reinforcing that revival cannot occur automatically.

Landmark Case Laws Relating to Gifts (Hiba) Under Muslim/Islamic Law

Hafeeza Bibi v. Shaikh Farid (2011)

In the case of Hafeeza Bibi v. Shaikh Farid, the Supreme Court of India addressed the validity of oral gifts under Muslim law. The dispute involved a claim that a gift of immovable property was made orally, which was later documented but not registered. The court held that under Muslim personal law, a gift (Hiba) does not require written documentation or registration to be valid, as per Section 129 of the Transfer of Property Act, 1882, which exempts Muslim gifts from the Act’s requirements. The court emphasized that the three essentials of a valid Hiba, declaration of gift by the donor, acceptance by the donee, and delivery of possession, must be fulfilled. In this case, the oral gift was upheld as valid because these conditions were met, reinforcing that formalities like registration are not mandatory for Muslim gifts.

Abdul Rahim v. Abdul Zabar (2009)

In the case of Abdul Rahim v. Abdul Zabar, the Supreme Court clarified the irrevocability of a completed Hiba. The dispute arose when a donor attempted to revoke a gift after the property had been transferred to the donee. The court ruled that once a valid gift is made under Muslim law, with the fulfillment of declaration, acceptance, and delivery of possession, it becomes irrevocable. The court noted exceptions where revocation is permissible, such as gifts between spouses or to relatives within prohibited degrees, but in this case, no such exception applied.

Hamid Ullah v. Ahmed Ullah (1936)

In the case of Hamid Ullah v. Ahmed Ullah, the Allahabad High Court addressed the concept of the gift of Musha (an undivided share in property). The donor, a sister, gifted her share in six houses and three fields to her husband via a registered deed. The court held that the gift was valid despite the property being divisible, as the donor had done all she could to deliver constructive possession. The ruling clarified that the Musha rule, which generally invalidates gifts of undivided shares in divisible property to strangers, is not rigidly applied if no confusion in enjoyment arises or if the gift is to a co-sharer.

Hussaina Bai v. Zohara Bai (1960)

In the case of Hussaina Bai v. Zohara Bai, the court examined the validity of a gift made by a pardanashin (secluded) Muslim woman. The donor, a pardanashin lady, was induced to sign a gift deed under coercion without understanding its contents. The court held that for a gift by a pardanashin woman to be valid, it must be proven that her consent was free and informed, with independent advice. The burden of proof lies on the donee to demonstrate this. Since the deed was executed under compulsion, the gift was declared invalid.

P. Kunheema Umma v. Ayissa Umma (1981)

In the case of P. Kunheema Umma v. Ayissa Umma, the Kerala High Court outlined the essentials for a valid gift of immovable property under Muslim law. The dispute involved a claim over property allegedly gifted without proper formalities. The court reiterated that a valid Hiba requires a clear declaration of intent by the donor, acceptance by the donee, and immediate delivery of possession, whether actual or constructive. The court held that these elements must be unequivocally established, and in this case, the lack of evidence for delivery of possession rendered the gift invalid.

Ilahi Shamsuddin v. Jaitunbi Makbul (1994)

In the case of Ilahi Shamsuddin v. Jaitunbi Makbul, the Supreme Court addressed the validity of oral declarations and acceptances in Hiba. The dispute centered on a gift of property where both the donor’s declaration and the donee’s acceptance were made orally. The court held that under Muslim law, both declaration and acceptance can be oral, regardless of whether the property is movable or immovable. The gift was upheld as valid because the oral declarations were clear, and possession was delivered. This case affirmed that formal written documentation is not a prerequisite for a valid Hiba, emphasizing the simplicity of gift transactions in Muslim law.

Mansoor Saheb (Dead) & Ors. v. Salima (D) by LRs (2024)

In the case of Mansoor Saheb (Dead) & Ors. v. Salima (D) by LRs, the Supreme Court reiterated the non-requirement of registration for gifts under Muslim law. The dispute involved a claim that an oral gift was invalid due to a lack of registration. The court held that a valid Hiba is complete if the three essentials, declaration, acceptance, and delivery of possession, are fulfilled, even if the gift is unwritten or unregistered. However, the court found that the donor’s declaration was not clearly established in this case, rendering the gift invalid.

Mansoor Saheb (Dead) & Ors. v. Salima (D) by LRs (2024)

In the case of Mansoor Saheb (Dead) & Ors. v. Salima (D) by LRs, decided on December 19, 2024, the Supreme Court of India reaffirmed that registration is not mandatory for a valid Hiba under Muslim law. The dispute involved an oral gift of immovable property, which was challenged for lacking a registered deed. The court held that a gift is valid if the three essentials, declaration, acceptance, and delivery of possession, are fulfilled, even if it is unwritten or unregistered, as per Section 129 of the Transfer of Property Act, 1882. However, the court found that the donor, Sultan Saheb, did not make a clear and unequivocal declaration of the gift, rendering it invalid. The ruling emphasized that while registration is not required, all three conditions must be sequentially met for a Hiba to be legally enforceable.

Sahas Degree College Thru Secretary Nadeem Hasan v. State of U.P. Thru District Magistrate J.P. Nagar (2024)

In the case of Sahas Degree College Thru Secretary Nadeem Hasan v. State of U.P. Thru District Magistrate J.P. Nagar, decided by the Allahabad High Court in 2024, the court addressed the applicability of stamp duty to oral gifts under Muslim law. Ale Hasan made an oral Hiba of Bhumidhari land to Sarvari Educational Society on December 22, 2005, with a memorandum drawn for record-keeping. Proceedings under Section 47-A of the Indian Stamp Act, 1899, imposed a stamp duty penalty, claiming the gift required registration. The court, led by Justice Piyush Agrawal, ruled that oral gifts under Muslim law, even if later documented in unregistered memoranda, are not subject to Section 47-A proceedings. The gift was valid as it fulfilled the essentials of declaration, acceptance, and delivery of possession, reinforcing the exemption of Muslim gifts from registration requirements.

Razak H. v. State of Kerala (2024)

In the case of Razak H. v. State of Kerala, decided by the Kerala High Court on November 4, 2024, the court upheld the validity of an oral gift of immovable property under Muslim law. The petitioner, Razak H., challenged the refusal of a Village Officer to mutate land gifted orally by his father, citing Section 123 of the Transfer of Property Act, 1882, which mandates registration for gifts of immovable property. The court ruled that Section 129 of the Act exempts Muslim gifts from this requirement, and a Hiba is valid if it meets the three essentials: declaration (ijab), acceptance (qabul), and delivery of possession (qabza). The court found that the oral gift fulfilled these conditions, allowing the mutation and affirming that neither writing nor registration is necessary for a valid Hiba.

Gift under Muslim Law vs Other Legal Systems

Hindu and Christian Law Comparisons

The concept of gifting, though prevalent across all major religions in India, differs significantly in its legal recognition, formal requirements, and religious basis. Under Muslim Law, a Hiba or gift is a unilateral transfer of property without consideration, based on Islamic jurisprudence and spiritual ethics. It does not necessarily require a written document or registration, especially if possession is delivered.

However, Hindu and Christian Laws are primarily governed by statutory frameworks like the Transfer of Property Act, 1882, and the Indian Succession Act, 1925. These laws emphasize formal documentation and are more rigid in terms of process and compliance.

Key Differences:

Aspect	Muslim Law	Hindu & Christian Law
Basis	Based on Islamic jurisprudence (Sharia)	Governed by statutory laws (e.g., Transfer of Property Act, Succession Act)
Consideration	Not required	Not required
Formalities	Offer, acceptance, and delivery of possession	Written document and registration usually required
Oral Gifts	Valid if essentials are met	Not valid for immovable property; written form mandatory
Donor’s Capacity	Sane, adult, and owner of property	Same, but governed by codified statutes
Flexibility	High; relies on traditional rules	Lower; strict procedural adherence

This comparison illustrates how Muslim Law favors informal, intention-based transfers, while Hindu and Christian systems focus on legal enforceability through documentation. The choice of law impacts the validity and enforceability of a gift, especially in multi-faith or inter-religious legal matters.

Islamic Law vs. Transfer of Property Act (India)

The Transfer of Property Act, 1882 (TPA) is the statutory backbone for property transactions in India, including gifts. It applies to all citizens unless their personal laws provide otherwise, which is the case for Muslims. Islamic law continues to govern Hiba transactions independently, offering greater simplicity and flexibility.

In contrast, the TPA imposes strict procedural requirements, particularly for the gift of immovable property. These legal differences create a dual-framework scenario in India, where Muslim gifts operate outside the TPA’s scope.

Key Differences:

Aspect	Muslim Law	Transfer of Property Act (TPA)
Applicability	Personal law for Muslims	Applies generally (except where personal law prevails)
Registration Required	Not required for valid oral gifts	Mandatory for immovable property
Essential Elements	Offer, acceptance, and delivery of possession	Written instrument, registration, and attestation by two witnesses
Revocation of Gift	Permitted under certain conditions	Not allowed once gift is completed and registered
Oral Gifts	Recognized if essentials are fulfilled	Not valid for immovable property
Governing Authority	Religious doctrine (Islamic law)	Secular statutory law

While the TPA ensures legal certainty, Muslim Law emphasizes intention and simplicity, making it more adaptable for personal and religious contexts. However, this can also lead to legal challenges in proving a valid Hiba, especially when disputes arise in the absence of documentation.

Bottom Line

A Gift under Muslim Law, known as Hiba, is the voluntary transfer of property or ownership by one person (donor) to another (donee) without any consideration. It is a valid and legally recognized mode of property transfer in Islamic jurisprudence, provided three essential conditions are fulfilled: a clear declaration by the donor, acceptance by the donee, and delivery of possession.

Muslim law classifies gifts into different types, including Hiba (simple gift), Hiba-bil-Iwaz (gift with consideration), and Hiba-ba-Shart-ul-Iwaz (gift with condition of return). Each type has unique legal implications, particularly in terms of revocability and the nature of consideration involved. Charitable gifts (Sadaqah) and loans for use (Ariyat) are also recognized under Muslim gifting laws, adding a social and spiritual dimension to property transfers.

The gift must be made by a person who is legally competent and of sound mind. Gifts made to unborn persons, gifts of future property, or those with uncertain conditions are generally void under Muslim law. While oral gifts are valid, written documentation and registration are preferred to avoid future disputes.

Importantly, the revocation of gifts is allowed under certain circumstances, though Shia and Sunni laws differ significantly in this respect.

So, a gift under Muslim law is a powerful, faith-rooted legal concept that simplifies the transfer of ownership, often used within families for love, affection, or religious merit. Understanding its essentials, types, and limitations is crucial for ensuring the gift is legally valid and enforceable.

Quick Tip: Always ensure acceptance and possession transfer when making a Hiba to make it irrevocable and legally binding.

Frequently Asked Questions (FAQs)

What is the law of gift under Muslim law?

Under Muslim law, a gift (Hiba) is a voluntary transfer of property or possession from one person (donor) to another (donee) without consideration (no payment in return). It must fulfill three essential conditions:

• Declaration by the donor,
• Acceptance by the donee,
• Delivery of possession.

What is the landmark case on gift in Muslim law?

A widely cited case is Ameer-un-Nissa Begum v. Mahboob Begum (1955), where the Supreme Court of India reiterated that a valid gift under Muslim law requires:

• Clear intention,
• Acceptance,
• Possession transfer.

What is the difference between gift and will under Muslim law?

Feature	Gift (Hiba)	Will (Wasiyat)
When it takes effect	Immediately during donor’s lifetime	After the testator’s death
Revocability	Generally irrevocable	Can be revoked anytime before death
Possession needed	Yes	No
Consent needed	Yes (by donee)	No

Which gifts are irrevocable in Muslim law?

Generally, once a gift is validly completed (accepted and possession delivered), it becomes irrevocable, except in certain cases, such as a father gifting to his minor child (which can be revoked).

How much a Muslim can gift?

A Muslim can gift any portion or all of their property during their lifetime, without restriction, unlike a will, which is limited to one-third of the property for non-heirs.

Is it Haram to give gifts in Islam?

No, giving gifts is highly recommended (Sunnah) in Islam. It is a means to increase love and strengthen social bonds. The Prophet Muhammad (PBUH) encouraged gift-giving.

Can you give a Muslim a gift?

Yes, gifts can be exchanged between Muslims and non-Muslims, especially when given with a good intention and not involving anything Haram (forbidden).

Can a Muslim father gift his entire property?

Yes, but it must be without the intention to disinherit heirs. If the gift is unjust or intended to deprive other lawful heirs, it may be challenged in court.

Is it Haram to give a gift back?

It is discouraged (Makruh) to take back a gift in Islam. The Prophet (PBUH) compared it to “a dog that returns to its vomit” (Hadith, Bukhari).

Can I give Haram money to my family?

No, giving Haram (forbidden) money (e.g., from gambling, interest, or theft) to family or anyone is not permissible in Islam. Charity and gifts must come from Halal (lawful) sources.

What does the Quran say about gifts?

The Quran encourages charity and generosity. Surah Al-Baqarah (2:177) mentions giving wealth “out of love for Him” to relatives, orphans, and the needy.

What is the Muslim act of giving?

In Islamic law, the act of giving without expectation of return is called Hiba (gift). Other forms include:

• Sadaqah: Voluntary charity
• Zakat: Obligatory charity
• Waqf: Endowment for religious/social good

What is shufa in Muslim Law?

Shufa (or pre-emption) is the right of a co-sharer or neighbor to buy a property in preference to an outsider when it is sold. It is not a gift but a right of first refusal.

What gifts should not be given in Islam?

Gifts involving Haram items (e.g., alcohol, pork, interest money), or those meant to cause harm or bribery are not allowed in Islam.

What are the conditions for oral hiba?

Oral Hiba is valid if:

• There is a clear declaration,
• Donee accepts the gift,
• There is delivery of possession (actual or constructive).

What are the essential conditions for a valid gift?

• Declaration by the donor
• Acceptance by the donee
• Delivery of possession to the donee
  These three elements are compulsory under Muslim law.

What is gift called in Muslim law?

A gift is called Hiba. When accompanied by compensation, it becomes Hiba-bil-Iwaz (gift for consideration).

What is gift under Muslim law section?

There is no specific codified section in Indian law for Muslim gifts. Hiba is governed by uncodified personal law, interpreted through court decisions and classical Islamic texts.

Which gifts are irrevocable under Muslim law?

Once completed, most valid gifts are irrevocable, especially those given:

• To strangers (non-heirs),
• With proper transfer of possession,
• Without any condition to revoke.

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