Hiba: gifts under Muslim law

1. Definition and governing law

The Hedaya defines hiba as an unconditional transfer of property, made immediately and without any exchange. Three ideas are packed into it: the transfer must be of existing property, it must operate at once (a gift to take effect in the future or on death is not a hiba), and it must be gratuitous. Gifts are among the matters listed in section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, so Muslim law applies to gifts between Muslims. Section 129 of the Transfer of Property Act, 1882 provides that nothing in Chapter VII (gifts) affects any rule of Muhammadan law. The requirement of section 123, that a gift of immovable property be made by a registered instrument signed by the donor and attested by two witnesses, therefore does not apply to a hiba.

2. Essentials of a valid hiba

• Declaration (ijab). The donor must clearly and unambiguously declare an intention to give. It may be oral or in writing. The donor must be a Muslim of sound mind who has attained majority, and the gift must be free from coercion or fraud. A Muslim may give away the whole of his property during his lifetime, even to the exclusion of his heirs; the one-third limit applies to wills and death-bed gifts, not to gifts in health.
• Acceptance (qabul). The donee must accept, expressly or by conduct. A gift to a minor or a person of unsound mind may be accepted by the guardian. A child in the womb cannot take a gift, because there is no one to accept and take possession.
• Delivery of possession (qabza). The gift is complete only when possession is delivered, actually or constructively, according to the nature of the property. Until then the donor may withdraw. If either party dies before delivery, the gift fails.

When actual delivery is not needed. Possession may be constructive. No physical transfer is required where the donor and donee live together in the property (husband to wife, or wife to husband); where a father or other guardian makes a gift to his minor ward, since the guardian's possession becomes possession on the ward's behalf; where the donee is already in possession (as a tenant or bailee); and where the property is incapable of physical possession (a debt, shares, a tenanted house, where symbolic delivery such as mutation or transfer of rent will do). The test is whether the donor has divested himself of control and the donee has been put in a position to exercise it.

3. Hafeeza Bibi: writing and registration

In Hafeeza Bibi v. Shaikh Farid, 2011 INSC 357, (2011) 5 SCC 654, a hiba of immovable property had been recorded in a deed that was not registered, and the High Court treated the gift as invalid for want of registration. The Supreme Court set that view aside. It held that the three essentials are what make a hiba; writing is not one of them. A hiba does not become a gift governed by section 123 of the Transfer of Property Act, or a document compulsorily registrable under section 17 of the Registration Act, 1908, merely because it is recorded in writing, whether at the time of the gift or afterwards. What matters is whether the declaration, acceptance and delivery of possession are proved. The case is the answer to the argument that every written hiba of immovable property must be registered.

4. Gift of musha

Musha means an undivided share in property. Under Hanafi law a gift of an undivided share in property that is capable of division is irregular (fasid), not void: it is validated by subsequent partition and delivery of the share. A gift of musha in property incapable of division (a small room, a staircase, a bath) is valid. The rule is a consequence of the requirement of possession, and courts have confined it. Recognised exceptions are gifts of an undivided share to a co-sharer, gifts of a share in a zamindari or freehold property in a large commercial town, and gifts of shares in a company. Under Shia law a gift of musha is valid if the donor gives such possession as the property admits.

5. Kinds of gift

• Hiba-bil-iwaz (gift for exchange). A gift followed by a return (iwaz) from the donee. In India it is treated as a sale: both transfers must be complete, delivery of possession is not essential, the musha rule does not apply, and the transaction is irrevocable. Where the subject is immovable property worth Rs 100 or more, it must be registered like a sale.
• Hiba-ba-shart-ul-iwaz (gift with a stipulation for return). The return is stipulated at the time of the gift but not yet paid. Delivery of possession is necessary, and the gift is revocable until the return is paid; once it is paid, it becomes irrevocable and takes on the character of a sale.
• Sadaqa. A gift made with the object of acquiring religious merit. It requires delivery of possession like a hiba, a gift of musha by way of sadaqa is valid if the property is given to two or more poor persons, and it is irrevocable once possession is delivered.
• Ariya. A gift of the usufruct (use) of property for a limited time, the ownership remaining with the donor. It is revocable at any time. A life interest is treated in the same way: the Privy Council in Nawazish Ali Khan v. Ali Raza Khan (1948) held that a gift of a life estate in Hanafi law operates as a gift of the usufruct, the corpus remaining with the donor.

Conditions. Where a gift is made with a condition that derogates from complete ownership (for example, that the donee shall not sell), the gift is valid and the condition is void. A contingent gift, dependent on an uncertain future event, is void.

6. Revocation

Before delivery of possession every gift is revocable, because it is incomplete. After delivery a gift can be revoked under Hanafi law only by the donee's consent or by a decree of a court; the donor's declaration alone does not revoke it. Even with a decree, a gift is irrevocable in the following cases:

• the gift is between husband and wife;
• the donee is related to the donor within the prohibited degrees;
• the donor or the donee has died;
• the property has been lost, destroyed, sold or given away by the donee, or has so changed that it cannot be identified, or has increased in value by the donee's improvement;
• the donor has received something in return (hiba-bil-iwaz), or the gift is a sadaqa.

Under Shia law a gift may be revoked by a mere declaration after delivery, except where the donee is a spouse or a blood relation, or the property has been lost, alienated or changed.

7. Gift in marz-ul-maut

A gift made during death-illness must satisfy all three essentials, including delivery of possession, but it takes effect only as a will: valid up to one-third of the estate after debts and funeral expenses, and under Sunni law not in favour of an heir unless the other heirs consent after the death. If the donor recovers, the gift is an ordinary hiba and binds fully.

8. Problem

Rashid, a Sunni, orally declares before witnesses that he gifts his house to his daughter Nasreen, who is a major and lives with her husband in another town. Nasreen accepts. Rashid continues to live in the house, collect the rent of the ground floor and pay the taxes. A year later he signs a paper recording the gift; it is not registered. On his death his sons challenge the gift.

Issue. Whether there was a complete hiba, and whether the unregistered writing affects it.

Law. A hiba requires declaration, acceptance and delivery of possession, actual or constructive. Writing and registration are not required, and a later memorandum of an oral gift does not need registration: Hafeeza Bibi.

Application. Declaration and acceptance are proved. The difficulty is possession. The donor and donee did not live together, so there is no presumption of joint possession; Rashid stayed in the house, took the rent and paid the taxes, all acts of ownership. No mutation was effected and the tenants were not told to pay Nasreen. Nothing shows that Rashid divested himself of control. The unregistered paper does no harm, but it cannot supply the missing delivery.

Conclusion. The gift is incomplete for want of delivery of possession and fails; the house passes by inheritance. Had Rashid moved out, handed over the keys or directed the tenants to pay rent to Nasreen, the gift would have been complete even without registration.

How this is examined

The January 2026 paper set hiba and its essentials as a 10-mark question. The order that scores is: definition from the Hedaya, section 129 of the Transfer of Property Act, the three essentials, constructive possession, musha, the kinds of gift, revocation, and Hafeeza Bibi. Short notes are set on hiba-bil-iwaz, musha, or the distinction between hiba-bil-iwaz and hiba-ba-shart-ul-iwaz. Problems turn almost always on delivery of possession.