Meaning of Hiba, Kinds of Hiba/Gift And its difference from Sadkah, Ariyat & more
INTRODUCTION AND DEFINITION
In our daily living we come across persons who in one way or the other have shown or conducted themselves in a manner where we are left wondering what is the most appropriate way to appreciate or reward such person thereby, challenging others, that the character or the achievement of the person sought to be rewarded ought to be emulated.
That act of commendation in most cases is achieved by granting a gift to such a person. Hiba from its Arabic origin simply means a gift from God. Therefore, there is an inclination to define Hiba as a gift simplicita.
However, most concepts envisaged by law and religion are not without their healthy controversies. The first of which is worthy of mention is the fact that Hiba being a gift as envisaged under Islam and its Schools of Thought are not within the province of the Transfer of Property Act of 1882.
Secondly, the various Islamic schools of jurisprudence perceive Hiba from a different perspective. The views of some pronounced views of some Islamic scholars/sects are:
- For Baillie, the transfer of an interest in a property without anticipating anything in return is a gift.
- The Hanafi Law, simply views gift as an act of bounty, giving out your right and interest in a property without any form of exchange.
- The transfer of gifts unconditionally without any religious inclination without any perceived returns is what the Shia sees as a gift.
For there to be a gift there must be a gift to be made, there must be a giver or a donor and the receiver who is the donee.
KINDS OF HIBA
This kind of gift arises when someone receives a gift for an already completed act which may be deemed as the consideration for the gift. However, it must be certain that the deemed consideration was not in contemplation of the gift.
HIBA BA SHART UL IWAZ
In this form of a gift, a consideration is anticipated but not immediately, therefore, it is revocable until consideration is satisfied. In essence, upon the satisfaction of the requirement for consideration, the gift crystallizes to a sale.
This kind of gift is usually granted to the poor by way of almsgiving which is geared towards the spiritual upliftment of the donor and performance and discharge of the donor’s moral obligation.
This form of gift permits the enjoyment of the property without the inhibiting the title of the donor. This a perfect description of licensor-licensee relationship however there may not be a consideration for the grant of this type of gift
THE ESSENTIALS OR MODES OF A VALID HIBA
Deducible from the Mohamedan perception of gifts, there are three (3) conditions which must be fulfilled before the making of a gift is clothed with the robe of validity. These conditions are:
Declaration or animus to gift by the donor (Izab). Unlike the Transfer of Property Act and most English laws like the Statute of Fraud of 1677 which was extended to India through the instrumentality of colonialism by the British Empire, require gifts and transactions relating to realty to be made in writing and in most cases by a Deed.
Izab which is the unequivocal expression of intendment to gift does not require a written formality or registration.
Where Ashana intends and orally declares that she is giving out her new TV Set (Samsung OLED Curve) to Manaf her son. Upon the acceptance and taking of possession of the TV by placing the TV in his room, the gift is perfected. It is the same effect where Ashana reduced the said intention in writing.
The case of Hesabuddin v. Md. Hesaruddin is instructive on the principles governing the declaration of intendment by the donor of a gift.
The donor must be a Muslim and of age with the sound discerning mind in order to be capable of making a gift. Likewise, gifts and the declaration of a gift must be made bona fide and unequivocal.
Most importantly, is the fact that the donor must have the requisite title or dominion over the property to which he intends to transfer by gift.
Acceptance of the gift by the done from the Donor (qabul), once the declaration of the intendment to make a gift is properly made in the above form, the burden is on the done to express acceptance.
A gift made by a Muslim to persons other than fellow Muslims, minors and persons with mental encumbrance is a valid gift even where it is made to an unborn child provided that the child proceeds from the womb alive within six months of the making of the gift.
Corporate entities or artificial persons recognized by law in India are capable of accepting gifts.
In the event of multiple donees, they must be known or ascertainable and consequently convey their respective acceptance of the gift.
The assumption of possession over the gift by the Donee (qabza). That is, the taking of possession of the gift by the Donee from the Donor is the concluding phase of the procedure in the making of gift under the Islamic law.
Possession of gifts can be actual or constructive depending on the nature of the property gifted. In the case of tangible property, for the gift to be complete, the actual possession of the gift must be exercised.
Where the property gifted is not tangible or of an immovable nature; it is of importance that, once the Donee commence the process of ownership and administration of all acts of dominion over the said property then he has taken possession of the intangible or immovable property.
INSTANCES OF VOID GIFT
- Where a gift of a non-existing property such a gift is ipso facto void.
- Where a gift is made based on the happening of an event or on the result of an event which is yet to occur such gift is void.
- Gifts made under the purview of the doctrine of donatio mortis causa are void where it is in excess of one-third of the donor’s property.
- A gift made and in possession of any form, although, subject to the nature of the gift cannot exercised by the Donor, is void.
- A gift which bars the Donee from further alienating the title or interest so acquired in it is void
REVOCABILITY OF HIBA/MODE OR REVOCATION OF GIFT
Gifts under Islam are revocable until consideration is satisfied. Revocation may occur prior to and after taking possession. It is an exercise of a person right for a donor to seek and eventually revoke a gift. Gifts after possession are only revocable with the consent of the done or by the order of the court.
The Sunni Laws had stated some instance where the right of revocation may not be exercised by the donor. They include:
- Where a prohibited relationship exists between the Donor and the Donee.
- Gifts made by spouses in the lifetime of their marriage.
- Where the gift itself is a consideration for an act.
- Where the gift is in itself a sadakah.
- Where the gift is a debt and by way of discharging the debtor of the liability.
- Where the gift had gone beyond the done to another bona fide owner from the Donee without notice.
- Where the gift has substantially lost its character at the time of transfer.
- Where the Donor is dead and the right to revocation becomes a personal right which is not vested in his children.
- Where the Donee is deceased and the gift by devolution has extended to the child of the Donee.
DIFFERENCES BETWEEN HIBA, HIBA-BIL-EWAZ, AND HIBA-BA-SHART-UL-EWAZ
- Hiba is generally deemed to be made in the absence of consideration, Hiba-bil-Awaz and Hiba Bas-hart-ul-ewaz contemplate the performance of consideration or an exchange.
- Hiba-bil-Awaz does not demand the immediate performance of possession, but in Hiba and Hiba Bas hart ul ewaz delivery or exercise of possession is very essential.
- Under Hiba and Hiba Bas-hart-ul-ewaz mushaa is invalid but permissible under Hiba-bil-Awaz.
- Hiba is revocable, Hiba-bil-Awaz is irrevocable at the point of making it and Hiba-Bas-hart-ul-ewaz is revocable even when the conditions are met.
- Hiba is a gift at all times and for all intents and purpose, while bil ewaz is clearly a contract of sale ab initio, and Hiba Bas hart ul ewaz on the exercise of possession crystallizes to sale.
THE DISTINCTION BETWEEN HIBA AND SADAQAH
- Sadaqah is at all times geared towards attaining spiritual satisfaction and upliftment which will extend to the afterlife. Hiba is secular because it is made out of affection.
- Sadaqah is obviously irrevocable but Hiba is revocable if the need arises
- Sadaqah does not require acceptance whereas Hiba mandates the expression of acceptance before the gift is perfected.
- It can be made to more than a person without stipulating shares whereas if Hiba is made without stating the individual share of the donees then it is invalid.
The unique status of the concept of gift under the Islamic law and its codification as well as the support it enjoys from various judgments of the court is a way of affirming the culture and religion of the Muslims.
This law is their unique mirror of accepted usage which ought not be instantly abrogated merely because there is an English form of law which may seem all-embracing. It is important to state relying on the Historical school of jurisprudence, laws which emanate from the culture, history and day to day living of the citizens is the most obeyed law.
Therefore of what essence is it to criticize the Islamic law pertaining to gifts merely because of westernization?
It is suggested that since the Islamic law permits the oral declaration and acceptance of a gift, it is pertinent to state that same must be in the presence of witnesses so that the title of the donee in this instance can be easily proved in the event of the death of the donor.