WHAT IS HIBA (GIFT)
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KINDS OF HIBA (GIFT)?
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Question For LLB Students
GIFT
Introduction
Definintion of Gift:
1- Section 122 of Transfer Of property Act,1882:
“A gift is a transfer of certain moveable or immoveable property made voluntarily and without consideration by one person called the donor to another called the donee,and accepted by or on behalf of the donee”
2- Hedaya:
“hiba is transfer of property made immediately and without any exchange.”
Parties to a valid gift:
1-DONOR(wahib):
a- Every Muhammadan
b- male or female
c- married or unmarried
d- major(who have attained majority under Mahority Act 1875 i.e 18 years or 21 years of age if he/she is under guardian appointed by court)
e- owner of property
2- DONEE(mohub lahu)
a- Muslim or non muslim
b- married or unmarried
c- male or female
d- minor or major
e- lunatic or sane
f- Existence of a donee i.e the donee must exist at the time the gift is made
g- Unborn donee: General Rule: a gift to an unborn donee,who is in the womb and is born within six months of the gift, is valid
(NOTE: point “g” is an exception to point “I”)
Subject mater(mouhab)
1- moveable or immoveable
2- corporeal,incorporeal
3- right which ahs some value
4- it must be n existence at the time when the gift is made
5- gift of musha(undevided share) is invalid
Exception: gift of such undevided share is valid which is incapable of devision:
a- hiba by one co-heir to the other;
b- hiba of a share in free hold property in a large town;
c- hiba of a share in a zimindari or taluka;
d- hiba of a share in a land company
examples of such indivisible property are share in a a stair case,a share in the bank of a tank or share in the business of Turkish bath….
Essentials of a valid gift:
1- Two parties i.e donor and donee
2- Capacity of parties
3- Formalities of making a gift must be fulfilled
How to make a valid gift/Formalities:
1- declaration by the donor of his intention to make gift
2- acceptance(expressed or implied) of the gift by the donee or his agent
Exception: no declaration needed where gift is made:
a- a guardian to his ward; or
b- a debt to the debtor
3- declaration must be followed by delivery of possession(actual,constuctive)
Exception: no delivery needed;
a-where donor and donee are residing together
b- mouhub in possession of other person
c- where donor is husband,donee wife and vice versa
d- where guardian is donor and ward is donee
e- where donee is the Baillie
f- where mouhab is not capable of being delivered
CONCLUSION:
Introduction
Definintion of Gift:
1- Section 122 of Transfer Of property Act,1882:
“A gift is a transfer of certain moveable or immoveable property made voluntarily and without consideration by one person called the donor to another called the donee,and accepted by or on behalf of the donee”
2- Hedaya:
“hiba is transfer of property made immediately and without any exchange.”
Parties to a valid gift:
1-DONOR(wahib):
a- Every Muhammadan
b- male or female
c- married or unmarried
d- major(who have attained majority under Mahority Act 1875 i.e 18 years or 21 years of age if he/she is under guardian appointed by court)
e- owner of property
2- DONEE(mohub lahu)
a- Muslim or non muslim
b- married or unmarried
c- male or female
d- minor or major
e- lunatic or sane
f- Existence of a donee i.e the donee must exist at the time the gift is made
g- Unborn donee: General Rule: a gift to an unborn donee,who is in the womb and is born within six months of the gift, is valid
(NOTE: point “g” is an exception to point “I”)
Subject mater(mouhab)
1- moveable or immoveable
2- corporeal,incorporeal
3- right which ahs some value
4- it must be n existence at the time when the gift is made
5- gift of musha(undevided share) is invalid
Exception: gift of such undevided share is valid which is incapable of devision:
a- hiba by one co-heir to the other;
b- hiba of a share in free hold property in a large town;
c- hiba of a share in a zimindari or taluka;
d- hiba of a share in a land company
examples of such indivisible property are share in a a stair case,a share in the bank of a tank or share in the business of Turkish bath….
Essentials of a valid gift:
1- Two parties i.e donor and donee
2- Capacity of parties
3- Formalities of making a gift must be fulfilled
How to make a valid gift/Formalities:
1- declaration by the donor of his intention to make gift
2- acceptance(expressed or implied) of the gift by the donee or his agent
Exception: no declaration needed where gift is made:
a- a guardian to his ward; or
b- a debt to the debtor
3- declaration must be followed by delivery of possession(actual,constuctive)
Exception: no delivery needed;
a-where donor and donee are residing together
b- mouhub in possession of other person
c- where donor is husband,donee wife and vice versa
d- where guardian is donor and ward is donee
e- where donee is the Baillie
f- where mouhab is not capable of being delivered
CONCLUSION:
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