MUSLIM PERSONAL LAW - SHORT STUDY NOTES LLB PART-II LIST OF TOPICS Gift or Hiba Muslim Family Laws Ordinance — Salient Features Laws of Inheritance Will Marriage Dower Dissolution of Muslim Marriage Divorce . Maintenance 10. Parentage, Legitimacy, and Acknowledgement 11. Guardianship 12. Waqft Seas Se ye Book Recommended: 1. Principles of Mahomedan Law by D. F. Mulla. 2. Questions and Answers on Mohamedan Law by Bashir Ahmed (Gold Medalist-in-Law). LipaMUSLIM PERSONAL LAW - SHORT STUDY NOTES LLB PART-II LIST OF TOPICS Gift or Hiba Muslim Family Laws Ordinance — Salient Features Laws of Inheritance Will Marriage Dower Dissolution of Muslim Marriage Divorce . Maintenance 10. Parentage, Legitimacy, and Acknowledgement 11. Guardianship 12. Waqft Seas Se ye Book Recommended: 1. Principles of Mahomedan Law by D. F. Mulla. 2. Questions and Answers on Mohamedan Law by Bashir Ahmed (Gold Medalist-in-Law). LipaGIFT OR HIBA Gift or Hiba: [1 is 2 “wansfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter, Essential Elements of a Gifts ‘The essential elements of a gift are: ‘The donor ‘Thedonee “The absence of consideration, “The subject-mater Declaration of gift by the donor An acceptance of the gift, express or implied, by of on behalf of the donee, and Delivery of possession of the subject of gift woe ae Kinds of Hiba or gift: Ithas its four kinds that is Areal, 1 3 Ieiwaz, and art -iwaz, + ‘They are defined as follows: 1. Arceat: The grantof a licence or giving of the use of enjoyment or usufruct of a thing (use of something without consideration) is called areeat. The four essentials of an areeat are thot (i) Cam be revoked: (li) It must be « transfer of ownership in the property: (iii) Ie must be for a definite period, and (iv) Ht does not devel ve upon the heirs of the donee on his death. Sudqah: It is a gift made with the object of acquiring religious merit or spiritual bene it. It is made on permanent and non-returnable basis, Hiba-bil-iwaz: I is a gift for consideration and looks like a sale and has all incidents of a contract of sale. It resembles « sale in that (a) wansfer of title is complete without delivery of possession, and (b) all the incidents of sale attach to it, ineluding — (i) the liability of being pre-empted, where the law of pre-emplion is in force, and (ii) the right to return a thing for a defect. 2[Pae‘To constitute a valid Hibs-biL-inwaz, the following two conditions must be present: (i) Actual payment of consideration fiwaz) on the part of the donee: and Gi) An intention on the partof the donor io divest himself in praesenti of the property, and to confer it upon the donee. Inadeq uacy of its consideration absolutely immaterial. Whatever its consideration is, it must be actual with intention. A pen can be sol in rupees one million and BMW car in rupees ten, 4. Hiba-bil-shartul-iwaz: Where a gift is made with a stipulation (shart) for a consideration (waz) it is called hiba-ba-shar-ubiwaz, In the case of hiba- ba-shar-ubiwaz, delivery of possession is necessary, and the gift is revocable until the iwaz is paid. On payment of iwaz (consideration) by the donee, the gift becomes irrevocable, It is also called contingent gift, which becomes valid upon happening of certain thing According to Transfer of Property rules Hibs is a “transfer of property made immediately and without any exchange.” Syed Ameer Ali says, “itis a voluntary gift which is made without consideration of propemty or substance of the thing by one person to another so as to constitute the donee, the proprietor of the subject matter of gift,” Baillie says, "con fersing the right of property without an exchange.” Essentials of valid gift: Gift is not walid until certain conditions are fulfilled such as: 1, Offer: ‘The donor makes it Acceptance: To whom offer is made, the donee, accepts it Delivery of possession: it constitutes and completes gift, 4, Subject matter: It must be transferable and must be transferred actually, 5. Sound mind: Person of unsound mind is not capable to make gift, 6. Major: Donor must attain age of majority before he makes gift. 7. Free consents: Consents of donor and donee must be free, Coercion invalidates pitt, 8, Muslim: Transfer of property in term of gift is subject to Iskim, Non-Muslims are exeluded from this transaction. 9, Solveney: Insolvency makes person unable to make gift Conditions for donce: Donee is a person to whom gift is made, His eligibility is subject to certain conditions such as: 1, Any person: He may either be Muslim or otherwise 2. Mind: Donee may be a person of sound or unsound mind.