Q3. Define “Hiba” (Gift). Discuss the essential requisites, formalities, and kinds of gifts. When can a valid gift be revoked?
- Definition of Gift (Hiba)
A Hiba is the immediate, unconditional, and absolute transfer of the ownership of property by one living person (Donor) to another (Donee) without any consideration (Iwaz).
- Requisites of a Valid Gift
In Maqbool Alam v. Khodaija (1966), the Supreme Court reiterated the “Three Pillars” of a valid Hiba:
- Declaration (Ijab): Clear and unambiguous expression by the donor to transfer the property.
- Acceptance (Qubul): Acceptance of the gift by or on behalf of the donee.
- Delivery of Possession (Kabza): The donor must completely divest themselves of all ownership and physical control. For immovable property, this means handing over keys or mutating the name in revenue records.
- Formalities of a Gift
Unlike the Transfer of Property Act (TPA), which requires written and registered documents for immovable property, Section 129 of the TPA specifically exempts Muslim gifts. An oral Hiba of immovable property is perfectly valid provided the three requisites (Ijab, Qubul, Kabza) are strictly followed.
- Kinds of Gifts
- Hiba (Pure Gift): No consideration involved.
- Hiba-bil-Iwaz (Gift with Return): A transaction made up of two mutual gifts. It functions like a sale. (e.g., Husband gives property to wife, wife releases her Dower debt in return). Once completed, it is irrevocable.
- Hiba-ba-Shart-ul-Iwaz (Gift with a Stipulation for Return): A gift where the donor stipulates that the donee must give something in return. It remains a pure gift until the return is made, after which it becomes irrevocable.
- Revocation of Gift
- Before Delivery of Possession: Can be revoked at any time by the donor simply declaring so.
- After Delivery of Possession: Can only be revoked by a Decree of the Court. However, certain gifts are absolutely irrevocable after delivery:
- Gifts between husband and wife.
- Gifts between persons related within prohibited degrees of consanguinity (e.g., father to son).
- When the donee or donor dies.