ISLAMIC PERSONAL LAW-II

GIFT or HIBA
under Islamic Law

Presented by

Ghulam Mujtaba Malik

Assistant Professor
&
Qanun-e- Advocate High Court
ISLAMIC
Shahadat
PERSONA
L LAW-II
THIS COURSE SPECIALLY DESIGNED FOR THE PROGRAM IN
LL.B and B.A, LL.B Classes

1
 SUMMARY OF TOPICS FOR LECTURE ON
GIFT OR HIBA
The Lecture is divided into 2 Sessions.
SESSION 1:
1. Introduction
2. Meaning Gift(Hiba)
3. Defination of Gift
4. Kinds of Gift
1. Hiba 2. Hiba Bil Iwaz
3. Hiba-be-Sharat ul Iwaz 4. A Saddaqah
5. Persons who can make Gift
6. Extent of Doner’s Power
7. Persons whose favour Hiba or Gift can be make
1. Natural persons 2. Artificial persons
3. Heirs 4. Insane or Any persons

SESSION 2:
8. Persons whose favour Hiba or Gift can not be made
9. Essential of a valid Gift
10. Conditions of validity of Gift
11. Gift of Mushaa
12. Cases where transfer of possession under Gift is not necessary
13. Revocation of Gift
14. Conclusion
SOURCES OF ISLAMIC PERSONAL LAW::
Outlines of Muhammadan Law, Fourth Edition by Asaf A.A. Fyzee. (Pg 387-464)

• Change and Authority in Islamic Law: The Islamic Law of Inheritance in Modern Muslim States by
Yasir Billoo

Carroll, L, 'The Hanafi Law of Intestate Succession: A Simplified Approach' (1983) 17 Modern Asian
Studies 629;

Carroll, L, 'The Ithna Ashari Law of Intestate Succession: An Introduction to Shia Law Applicable in
South Asia' (1985) 19 Modern Asian Studies 85;

L Carroll, ‘Life Interests and Inter-Generational Transfer of Property Avoiding the Law of Succession’
(2001) 8(2) Islamic Law and Society 245-86.

Muslim Personal Law (Shariat) Application Act 1937

West Pakistan Muslim Personal Law (Shariat) Application Act 1948

SUGGESTED READINGS:
Abbasi & Cheema, Family Laws in Pakistan, Ch 8;

DF Mulla, Principles of Mahomedan Law, 20th edn (Haryana: LexisNexis, 2013) 151-95; and

West Pakistan Muslim Personal Law (Shariat) Application Act 1962

Dowry and Bridal Gifts (Restrictions) Act 1976

Succession Act 1925

Recommended Books
Fyzee, AAA, Outlines of Muhammadan Law (OUP 2014, first published 1949)

Mulla, DF, Principles of Mahomedan Law (LxisNexis India 2013, first published
1906)

Rahim, A, The Principles of Muhammadan Jurisprudence (Luzac & Co 1911)

Faiz Badruddin Tyabji, Principles of Muhammadan Law (Calcutta 1940)

Khan, H, The Islamic Law of Inheritance (OUP 2014)

Serajuddin, Alamgir Muhammad, Muslim Family Law, Secular Courts and Muslim Women of South
Asia: A Study of Judicial Activism (OUP 2013)

Fiqh Texts
Ibne Rushd, The Distinguished Jurist's Primer: Bidāyat al-Mujtahid (Nyazee, IAK, tr, v. 2, Centre for
Muslim Contribution to Civilization 1996) available at
https://archive.org/stream/BidayatAlmujtahidTheDistinguishedJuristsPrimerVol2/TheDistinguishedJuris
tsPrimerVol2#page/n0/mode/2up

Baillie, NBE, A Digest of Moohummudan Law (2nd edn, Smith, Elder, & Co 1875) available at
https://ia601406.us.archive.org/2/items/digestmoohummud00bailgoog/digestmoohummud00bailgoog.p
df

Baillie, J, Jones, W and Company, EI, A Digest of Mohummudan Law, According to the Tenets of the
Twelve Imams (Printed at the Honorable Company's Press 1805)

Abdur Rahman, Institutes of Muhammadan Law,

https://ia600302.us.archive.org/14/items/institutesofmuss00abduiala/institutesofmuss0
0abduiala.pdf
SUMMARY OF TOPICS FOR LECTURE ON
GIFT OR HIBA
SESSION 1:

1. Introduction
2. Meaning Gift(Hiba)
3. Defination of Gift
4. Kinds of Gift
1. Hiba 2. Hiba Bil Iwaz
3. Hiba-be-Sharat ul Iwaz 4. A Saddaqah
5. Persons who can make Gift
6. Extent of Doner’s Power
7. Persons whose favour Hiba or Gift can be make
1. Natural persons 2. Artificial persons
3. Heirs 4. Insane or Any persons
INTRODUCTION:
GIFT OR HIBA:
Gift or Hiba: It 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.”

THE ESSENTIAL ELEMENTS OF A GIFT

ARE:
1. The donor
2. The donee
3. The absence of consideration
4. The subject-matter
5. Declaration of gift by the donor
6. An acceptance of the gift, express or implied, by or on
behalf of the donee, and
7. Delivery of possession of the subject of gift.
KINDS OF HIBA OR GIFT:
It has its four kinds that are:
1. Areeat,
2. Sadqah,
3. Hiba-bil-iwaz, and
4. Hiba-bil-shartl-iwaz.

They are defined as follows:

1. Areeat: The grant of a licence or giving of the use of enjoyment or
usufruct of a thing (use of something without consideration) is called
areeat. The four essentials of an areeat are that

(i) Can be revoked;

(ii) It must be a transfer of ownership in the property;
(iii) It must be for a definite period, and
(iv) It does not devolve upon the heirs of the donee on his death.
2. Sadqah: It is a gift made with the object of acquiring religious merit or
spiritual benefit. It is made on permanent and non-returnable basis.

3. Hiba-bil-iwaz: It is a gift for consideration and looks like a sale and has
all incidents of a contract of sale. It resembles a sale in that (a) transfer of
title is complete without delivery of possession, and (b) all the incidents of
sale attach to it, including —
(i) the liability of being pre-empted, where the law of pre-emption is in
force, and (ii) the right to return a thing for a defect.
3 |Pa g e
To constitute a valid Hiba-bil-iwaz, the following two conditions must be
present:
(i) Actual payment of consideration (iwaz) on the part of the donee; and
(ii) An intention on the part of the donor to divest himself in praesenti of the
property, and to confer it upon the donee.
Inadequacy of its consideration absolutely immaterial. Whatever its
consideration is, it must be actual with intention. A pen can be sold in rupees
one million and BMW car in rupees ten.
4. Hiba-bil-shart-ul-iwaz: Where a gift is made with a stipulation (shart) for
a consideration (iwaz) it is called hiba-ba-shart-ul-iwaz. In the case of hiba-
ba-shart-ul-iwaz, delivery of possession is necessary, and the gift is
revocable until the iwaz is paid. On payment of iwaz (consideration) by the
donee, the gift becomes irrevocable. It is also called contingent gift, which
becomes valid upon happening of certain thing.
According to Transfer of Property rules Hiba is a “transfer of property made
immediately and without any exchange.”
Syed Ameer Ali says, “it is a voluntary gift which is made without
consideration of property or substance of the thing by one person to another
so as to constitute the donee, the proprietor of the subject matter of gift.”
Baillie says, “conferring the right of property without an exchange.”