CONTRACT OF GIFT OR HIBA 1

Contents
Chapter 1: Introduction...............................................................................................................................2

Chapter 2: Gift Under The Transfer Of Property Act 1882...........................................................................3

2.1. Essential Elements of a Gift..............................................................................................................3

2.2. Types of Gifts...................................................................................................................................5

2.3. Reasons of Revoking or Suspending or Voiding a Gift by Law..........................................................6

Chapter 3: Contract of Gift (Hiba) Under Islamic Law..................................................................................7

3.1. Essential Elements of Hiba...............................................................................................................7

3.2. Kinds of Gifts (Hiba).........................................................................................................................8

3.3. Revocation of Gift............................................................................................................................9

3.4. Reasons of Non-Revoking Of a Gift..................................................................................................9

Chapter 4: Conclusion................................................................................................................................10

References.................................................................................................................................................11
 Chapter 1: Introduction

Gift is an action in which a person voluntarily, without any monetary benefit gives
something to someone. A person performs this act without any consideration in favor of other
person. This contract is valid in law. This act is done in result of love, affection, or gesture. It is
given by donor to donee during any events like Wedding Ceremony, Birthday Party etc. when
the essential elements of a gift are not executed properly that gift may become revoked and void
by law. Only that transfer will be valid and legal when it is done voluntarily without any fraud,
coercion or any compulsion. In particular circumstance, when it is observed that gift was made
under coercion that gift may be cancelled by court (Qureshi & Sheikh, 2018).

Black’s Law Dictionary (Fourth Edition):

“A voluntary transfer of personal property without consideration. A parting by owner with

property without pecuniary consideration. A voluntary conveyance of land or transfer of goods,
from one person to another made gratuitously, and not upon any consideration of blood or
money.”

Webster’s New Third International Dictionary:

“Something that is voluntarily transferred by one person to another „without compensation‟, a

voluntary transfer of real or personal property „without any consideration‟, or without a valuable
consideration, distinguished from sale”

Muhammadan Law:

“A gift is a transfer of property or right by one person to another in accordance with the
provisions given in the Mohammedan law and includes:

a) A Hiba, an immediate and unconditional transfer of the ownership of some property or of

some right, without any consideration or with some return (ewaz); and

b) An Ariat, the grant of some limited interest in respect of the use or usufruct of some property
or right.”
 Chapter 2: Gift Under The Transfer Of Property Act 1882

According to Section 122 of Transfer of Property Act,1882 -“A Gift is the transfer
of certain existing movable or immovable property made voluntarily and without consideration,
by one person, called the donor or guarantor or sender, to another, called the donee, and accepted
by or on behalf of the donee or guarantee or receiver.”

2.1. Essential Elements of a Gift

Following are some essential elements are required to make a gift legally accepted:

2.1.1 Absence of consideration: A gift is legally approved when donor gives gift to the
donee deprived of any consideration i.e. without any monetary benefit (Pattanayak, 2018).

Example: Mr. A gifts his car to one of his employees Mr. B on good job performance without
getting any cash. This will be a gift.

2.1.2. Parties of gift: There should be following two parties as per law of gift.

 Donor or guarantor: The person who is giving gift is donor or guarantor. A person who
has attained an age of majority can make a gift of his property. But a contract of gift by
minor is void as he is incompetent to make a contract and incompetent to transfer
(Pattanayak, 2018).
Example: Mr. X is giving a book to his friend Mr. Y on his birthday. Here Mr. X is
donor of the gift of book.
 Donee or guarantee: The person who takes gift from donor is donee. Any person who is
legally disqualified by law from being a transferee cannot take the transfer (Pattanayak,
2018).
Example: Mr. A has given a gift of mobile phone to Mr. B. Here Mr. B is Donee of the
gift.
 2.1.3 Subject matter of the gift: The object which is to be given as gift is subject matter.
It must be in form of any moveable or immoveable property and any future property will not be
considered as the subject matter of the gift (Pattanayak, 2018).

 Moveable property as gift: It is a type of entity that can be moved from one place to
another. It is also called personal or private property. Moveable property can be in
tangible or intangible form.
Example: Tangible may be car, mobile phones etc. Intangible includes shares and bonds
etc.
 Immoveable property as gift: It is a type of object which cannot be transferred from one
place to another.
Example: In case of land and building the donor can gift immoveable property by a
written deed or agreement without taking compensation.

2.1.4. Intention or declaration of donor: When the donor has intention to give any of
his moveable or immoveable property to donee as gift then that gift is lawfully approved (Khan,
2017). If the gift is to be given in future then the donor will make an agreement or deed to make
a promise.

Example: Mr. Ahmed has an intention to give Huawei mobile phone to his son Raza on his 18 th
Birthday (currently he is 17 years old). Thus, he cannot give that mobile phone until he reaches
at age of 18.

2.1.5. Transferability or proper delivery of gift : The gift should be valid in case that
gift is transferred to donee according to donor‟s intentions within the promised time (Khan,
2017).

Example: As Mr. Ahmed have intention to give Huawei mobile phone to his son Raza on his
18th birthday. This gift would be legally valid when that mobile phone will be transferred to his
son Raza.
 2.1.6. Acceptance of Gift by Donee: The gift is lawfully valid when the donee has
accepted that gift from the donor and donor has delivered the object according to the promise
made. Or else the gift is invalid (Khan, 2017).

Example: Mr. A, who has an intention to give his car to Mr. B. The gift will be valid when Mr.
B will legally accept that car from the donor Mr. A.

2.2. Types of Gifts

The various types of gifts are as follow:

2.2.1. Inter vivos or lifetime gifts: Lifetime gifts are generally given by the donor to the
donee on some events like wedding ceremony, birthday parties etc. When the donor makes
intention of delivering any gift to donee during the lifetime period of the donor then that gift will
be considered as lifetime gifts (Qureshi & Sheikh, 2018).

Example: Mr. Ali wants to give a watch to his son Abid on 21st birthday celebration of Abid as
a lifetime gift.

2.2.2. Mortis causa or deathbed gifts: Future gifts which shall be expected to send to
the donee after the death of the donor on the basis of intention made by the donor is called
deathbed gifts. So any deathbed gift will not be effective until death of the donor (Qureshi &
Sheikh, 2018). These gifts are considered as donations made by donor to the donee. Gifts mortis
causa are excluded by section 129 of Transfer of Property Act.

Example: Mr. Ahmed wants to donate PKR 1 crore after his death to Q Orphanage Trust as a
deathbed gift.

2.2.3. Onerous (burdensome) gifts: A gift which is made with any burden or obligation
imposed on the donee by the donor or any immovable property is called onerous gifts. This gift
is also called the exchange of debt of an object from donor to the donee (Qureshi & Sheikh,
2018). This gift is generally considered illegal but if the donee has no obligation to carry the
burden of the gift then the gift may become valid on the basis of Section 127 of Transfer of
Property Act, 1882.
Example: Mr.Raza wants to give his one of the building of Gulshan as a gift to Mr. Ali which
has mortgaged to NIB bank for PKR 2 Crore. If Mr. Ali wants to take burden of the mortgaged
loan of that house by acceptance then this gift may be valid otherwise it is illegal.

2.3. Reasons of Revoking or Suspending or Voiding a Gift by Law

A donee and donor can revoke or suspend a future gift at any time but a gift which is
already delivered and accepted cannot be revoked or suspended or void (Khan, 2017). According
to Section 126 of the Transfer of Property Act, 1882, any gift may become suspended revoked or
by the following reasons:

 If a donee want to get a gift from donor on a specific event but the donor has no intention
to give the gift.
 If a donee doesn‟t want to get any gift from donor but has been forced to accept that gift
by the donor.
 If the subject matter of the gift is full of debts or illegal.
 If both the donee and donor have intention to suspend any gift.
 If any gift is offered to the donee with misrepresentation and fraudulent information
made by the donor.
 If any gift contains consideration or compensation made by the donor or donee.
 If the donor of any gift dies before delivery.
 If the donee or donor of the gift is disqualified person or is minor.
 Chapter 3: Contract of Gift (Hiba) Under Islamic Law

The concept of gift defined under The Transfer of Property Act is different in Islamic
law. In Islamic law it is transfer of property from one person to another person on the basis of
provisions provided by Muslim law. Hiba is unconditional and immediate transfer of ownership
of property or any right without any return or consideration (Kalanauri, n.d.). Hiba is a one kind
of transaction under the term gift. The other type of gifts also include Ariyat (tamlik al manafe),
in which the only legal rights are transferred and the other is the gift given in order to obtain
religious merit is known as Sadqah. As per Hedaya, Hiba can be defined as

“Transfer of property unconditionally that is made immediate and without any consideration or
the exchange from one person to another person and it is accepted by himself or on behalf of
latter.”

A person who makes a lawful gift i.e. transfer of property from one person to another
during his lifetime is called disposition inter vivos. Whereas, the transfer of property as will i.e.
after the death of person is called testamentary disposition. Muhammadan law permits a person
to transfer his whole property in his life, whereas only one-third will be transferred by will
(Khan, 2017).

3.1. Essential Elements of Hiba

The Muslim law considers the contract of gift as law of contract; it must have acceptance
(qabul), an offer (izab) and the transfer (qabza) (Pattanayak, 2018). Following are the essential
elements of Hiba:

3.1.1. A declaration made by the donor: A clear as well as unambiguous intention must
be made by the donor for the transfer of gift. It can be oral or written. The declaration should be
clear and any unambiguous declaration stands void (Kalanauri, n.d.).

3.1.2. Acceptance made by donee: An acceptance by the donee shall be made

otherwise the gift is void. In case of minor, the legal guardian may accept on his behalf
(Kalanauri, n.d.). Following are the guardians mentioned in Muslim law who can accept gift on
behalf of the minor:

 Father
 Father‟s Executor
 Paternal Grandfather
 Paternal Grandfather Executor

3.1.3. A delivery of possession from donor to the donee: The term possession
according to Muslim law means such possession according to the nature of subject matter. It tests
the transfer of possession by who enjoys the rights related to that property i.e. donor or donee
(Pattanayak, 2018). If the rights are enjoyed by the donor then the delivery of possession is not
done and the contract of gift is considered invalid. There are two types of delivery:

(a) Actual delivery of possession. In which there is a physical transfer i.e. gift is handed
physically to the donee.

(b) Constructive delivery of possession. In which the property is intangible or in the case
of tangible property the actually delivery cannot be made or is impossible.

3.2. Kinds of Gifts (Hiba)

3.2.1. Hiba bil Iwaz: This is a gift made for some consideration which is already received.
It is therefore a transaction of gift made up of reciprocal gifts between two persons. One gift is
given from the donor to donee and in other the gift is given from donee to donor (Ahmed, 2009).

Example: Ahmed makes a gift of house to Ali and Ali makes a gift of car to Ahmed stating that
this is gift made in return of the gift received i.e. house.

3.2.2. Hiba ba Shart ul Iwaz: A gift which is made with stipulation for a return is known
as Hiba ba Shartul iwaz. In this transaction, the consideration paid by the donee is not
voluntarily, it is just paid by the donee due to the condition attached for the gift. There is a
necessary condition of consideration for the gift to be made (Ahmed, 2009).
Example: A asked B that he will gift a mobile to him if he will gift A, a watch he is wearing.

3.2.3. Sadqah: A gift which is made in order to obtain religious merit is known as sadqah.
The transfer of any property or gift to other person without any consideration and to obtain the
reward from Allah is Sadqah (Ahmed, 2009).

Example: C gifts a land for construction of Mosque. Then this is Sadqah.

3.2.4. Ariyat: It is a gift in which the only legal rights are transferred from one person to
another. It is a grant of license in order to enjoy the legal rights for a specific time period and the
grantor has a right to revoke it (Ahmed, 2009).

Example: Akmal lends his car to Ali for some days. He can revoke this offer at any time.

3.3. Revocation of Gift

Although our Prophet Hazrat Muhammad (P.B.U.H) was against the revocation of the
gift but there are certain aspects in which the gifts can be revoked.

3.3.1. Before the delivery of possession: According to Muslim law, if the delivery of
possession is not made to the donee then the gift can be revoked (Malik & Ahmed, 2011).
Example: A makes gift of car to B, but the delivery of possession was not made by A. He
revokes the gift then the revocation is valid.
3.3.2. After the delivery of possession: A gift after the delivery of possession can
only be revoked by the consent of the donee. Also the gift can be revoked by the decree of
court (Malik & Ahmed, 2011). After the death of donor or donee the gift cannot be revoked.

3.4. Reasons of Non-Revoking Of a Gift

According to the Muslim law any gift after the delivery can‟t be revoked for following reasons
(Kalanauri, n.d.):

 If any gift is prepared by a husband for his wife or a wife for her husband
 If any gift is intended for a religious purpose.
  If the subject matter of the gift is damaged or destroyed.
 If the donee or donor dies.
 If any immovable property has been willed by donor for donee
 If the value of the subject matter has been increased.
 When something in return (iwaz) is received by the donor.
 When the subject matter has lost its original identity.

Chapter 4: Conclusion

The term gift as well as subject matter of the gift is old and traditional issue that has been
addressed in property law. The term gift is English word should not be confused or mixed with
Islamic law which is called Hiba. The concept in both the laws is different. Under Muslim law
the following three essentials are required for the validation of Hiba: a) Donor should declare the
gift. b) The gift should be accepted by the donee c) Transferability or delivery of possession of
gift.

In English law the property is divided into moveable and immoveable property that
includes real and personal property. Following are the essentials of the gift; a) The donor b) The
donee c) Subject matter d) delivery e) acceptance. The gift can be revoked under certain
circumstances. The clear intention of gift should be made by the donor and clear intention of
acceptance shall be made on part of donee.
 References

Ahmed, T. (2009). Comparative study of Gift under Islamic Law and Transfer of Property Law:
Indian perspective. Social Science Research Network Electronic Journal. Retrieved from
https://www.researchgate.net/publication/228228161_Comparative_study_of_Gift_under
_Islamic_Law_and_Transfer_of_Property_Law_Indian_perspective

Kalanauri, Z. I. (n.d.). Hiba (Gift) In the Light of Shari‟ah. Retrieved from

https://www.academia.edu/41273253/HIBAH_GIFT_IN_PAKISTAN_IN_THE_LIGHT
_OF_SHARIAH_Zafar_Iqbal_Kalanauri_i?email_work_card=view-paper

Khan, M. K. (2017). Law of Transfer of Property. Ilmi Kitab Khana.

Malik, M.A., & Ahmed, I. (2011). Muslim Law and Jurisprudence. Publishers Emporium.

Pattanayak, S. (2018). Provisions of gift under Islamic Personal Laws and the Transfer of
Property Act, 1882 - A Comparative Study. International Journal of Law Management &
Humanities, 2(1), 1-8.

Qureshi, F. H., & Sheikh, K. A. (2018). Law of Transfer of Property. Dogar Publishers.

The Transfer of Property Act, 1882.