hiba
A valid hiba has three essentials: a declaration of gift by the donor, acceptance by the donee (express or implied), and delivery of possession, actual or constructive. Writing and registration are not required, because s.129 of the Transfer of Property Act excludes Muslim gifts from ss.122–123; but if a gift is reduced to a deed, courts have held it may need registration under the Registration Act. A Muslim may gift the whole of his property, unlike the one-third limit on a will.
Without delivery of possession the gift is incomplete, though exceptions exist, as where donor and donee live together in the property or the gift is by a parent to a minor child. Under Hanafi law a gift of an undivided share in property capable of division (musha) is irregular but becomes valid on delivery of possession.
Example
An oral hiba of a house, followed by the donee taking possession and paying the tax, is valid without a registered deed.
In Indian law
- Section 129, Transfer of Property Act, 1882 (excludes Muslim gifts from Chapter VII)
See also
gift · hiba-bil-iwaz · musha · wasiyat
Read more in the study notes
- Hiba: gifts under Muslim law (Family Law II - Mohammedan Law)
- Contract of guarantee and rights of the surety (Contract II)
- Gift deed and promissory note (Drafting, Pleading and Conveyance)
- Law and Lawyers: the Great Trial of 1922 (English)
- Muslim marriage: nature, essentials and kinds (Family Law II - Mohammedan Law)
- Dower (mahr) (Family Law II - Mohammedan Law)