Understanding Hiba: The Law of Gift under Muslim Law

In Muslim law, a gift is a transfer of property made immediately and without any exchange (consideration) by one person to another and accepted by or on behalf of the latter. Unlike other systems of law, Muslim law does not require a written or registered instrument for a gift of immovable property to be valid, provided three essential conditions are met.

1. The Three Essential Pillars of Hiba

For a gift to be legally binding under Muslim law, the following three conditions must be fulfilled simultaneously:

• Declaration (Ijab): The donor must clearly and unambiguously express their intention to give the property.

• Acceptance (Qabul): The donee (recipient) must accept the gift, either expressly or by conduct.

• Delivery of Possession (Ikab-at-qabz): The donor must divest themselves of the property and hand over possession to the donee.

Important Note: Under Section 129 of the Transfer of Property Act, 1882, the general rules requiring registered deeds for gifts of immovable property do not apply to Muslims. An oral gift accompanied by delivery of possession is perfectly valid.

Exceptions to Delivery of Possession

In specific scenarios, physical delivery of possession is not mandatory:

1. Gifts between Spouses: When a husband gifts a house to his wife (or vice versa), the fact that they continue to live together does not invalidate the gift.

2. Guardian to Ward: A gift from a father or guardian to a minor child does not require a physical transfer of possession, as the father is already the legal custodian.

3. Joint Residence: If the donor and donee already reside in the same house, the donor does not need to physically depart.

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2. Types of Gifts in Muslim Law

• Hiba (Simple Gift): A gratuitous transfer without any return.

• Hiba-bil-Iwaz: A gift for a consideration already received (often treated as a sale).

• Hiba-ba-shart-ul-Iwaz: A gift made with a stipulation for a future return.

• Areeat: A grant of the right to use the usufruct (benefits) of the property for a limited time, which is revocable.

• Sadaquah: A gift made with a religious or charitable motive.

Leading Judgments of the Supreme Court of India

The Indian judiciary has consistently protected the traditional rules of Hiba while ensuring they are not misused to defraud creditors or heirs.

1. Dharmrao Sharanappa Shabadi v. Syeda Arifa Parveen (2025)

In this landmark 2025 ruling, the Supreme Court emphasized that “possession is the soul of a valid Hiba”. The Court clarified that while oral gifts are valid, they cannot be used as a “surprise instrument” decades later. Public acts like mutation of names in revenue records are critical evidence to prove that possession was actually transferred.

2. Mansoor Saheb (D) v. Salima (2024)

The Court reiterated that there is no concept of “vested rights” in a Muslim’s property during their lifetime. Heirs only acquire interest upon the death of the owner. Therefore, a “partition” among heirs during the owner’s lifetime is legally invalid unless it fulfills all the requirements of a Hiba.

3. Hafeeza Bibi v. Shaikh Farid (2011)

The Supreme Court held that the mere fact that a gift is reduced to writing does not make registration mandatory. If the three essentials (Declaration, Acceptance, Possession) are proved, the gift is valid regardless of whether the document is registered.

Legal Consultation: If you are planning to execute a Hiba or need to defend your property rights, Patra’s Law Chambers provides expert legal drafting and litigation services to ensure your transition is legally sound and immune to future disputes.

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30+ Frequently Asked Questions (FAQs) on Hiba

1. Can a Muslim gift 100% of their property? Yes, unlike a Will (which is limited to 1/3rd), a person can gift their entire property during their lifetime.

2. Is a written document mandatory for a Muslim gift? No, an oral gift is valid under Muslim law.

3. Does a gift to an unborn child stand valid? No, a gift to a person not in existence at the time of the gift is void.

4. Can a gift be made to a non-Muslim? Yes, religion is no bar for the donee.

5. Is registration required for an oral gift of land? No, Section 129 of the TPA exempts Muslim gifts from registration.

6. Can a gift be revoked? Simple gifts can often be revoked before delivery of possession, but revocation becomes difficult after possession is transferred.

7. What is Hiba-bil-Iwaz? It is a gift for an exchange or consideration, which effectively acts as a sale.

8. Can a donor gift property they do not yet own? No, the subject of the gift must exist and be in the donor’s possession at the time of the gift.

9. What if the donee is a minor? The gift must be accepted by the minor’s legal guardian.

10. Does a gift between a husband and wife require a physical move? No, joint residence allows the gift to be valid without the husband leaving the premises.

11. Is a gift made during “death-illness” (Marz-ul-maut) valid? It is treated as a Will and limited to 1/3rd of the estate.

12. What is ‘Mushaa’? It refers to an undivided share in property.

13. Is a gift of ‘Mushaa’ valid? In divisible property, it is irregular (Sunni law) until the share is separated; under Shia law, it is valid.

14. What is ‘Areeat’? It is a revocable transfer of the right to use the property without transferring ownership.

15. Can a donor keep the right to collect rent? Yes, if they transfer the ‘corpus’ (ownership) but keep the usufruct (income) for life.

16. Is ‘Sadaquah’ revocable? No, once completed by delivery of possession, it cannot be revoked.

17. Does a gift deed without possession carry weight? No, delivery of possession is essential; a registered deed alone does not validate a Hiba.

18. Can a gift be made to a mosque? Yes, a gift can be made to a juristic person.

19. What is ‘Ijab’? It is the formal declaration or offer of the gift by the donor.

20. What is ‘Qabul’? It is the acceptance of the gift by the donee.

21. Can a gift be conditional? If a condition is attached to the corpus of the gift, the condition is usually void, and the gift takes effect unconditionally.

22. What is the significance of the 2025 Shabadi judgment? It clarified that long-delayed claims of oral gifts without mutation are legally unsustainable.

23. Can a person of unsound mind be a donee? Yes, but the guardian must accept possession on their behalf.

24. Does ‘Hiba’ apply to ancestral property? Muslim law does not distinguish between ancestral and self-acquired property for gifts.

25. Can a gift be made in future? No, a gift of something to be produced in the future is void.

26. What is ‘Ikab-at-qabz’? It is the Arabic term for delivery of possession.

27. Is a gift via a Trust possible? Yes, provided the trustee accepts and takes possession.

28. Does a gift to a deceased person stand? No, such a gift is void.

29. What is the role of mutation? While not proof of title, it is strong evidence that a gift was acted upon and possession was transferred.

30. Where can I get a ‘Hibanama’ drafted? It is advisable to consult a firm specializing in Personal Law, such as Patra’s Law Chambers.

Based on the legal principles of Muslim Law (Hiba) which require a clear Declaration, Acceptance, and Delivery of Possession, here is a comprehensive sample draft for a Hibanama (Memorandum of Oral Gift).

This draft is designed to be used as a record of an oral gift to satisfy legal and revenue requirements (such as mutation of names).

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MEMORANDUM OF ORAL GIFT (HIBANAMA)

THIS MEMORANDUM OF GIFT is executed at [City], on this [Day] day of [Month], [Year].

I. PARTIES

DONOR: [Name of Donor], son/daughter of [Father’s Name], aged about [Age] years, by religion Muslim, by occupation [Occupation], residing at [Full Address of Donor], hereinafter referred to as the “DONOR”.

AND

DONEE: [Name of Donee], son/daughter of [Father’s Name], aged about [Age] years, by religion Muslim, by occupation [Occupation], residing at [Full Address of Donee], hereinafter referred to as the “DONEE”.

II. DESCRIPTION OF THE PROPERTY

All that piece and parcel of [Movable/Immovable] property situated at [Full Address/Description of Property with Boundaries], measuring about [Area/Size], and more particularly described in the Schedule hereunder (hereinafter referred to as the “SCHEDULE PROPERTY”).

III. DECLARATION OF GIFT (IJAB)

1. Ownership: The Donor is the absolute owner and is in peaceful possession of the Schedule Property.

2. Intent: Out of natural love and affection for the Donee, who is the [Relationship, e.g., Son/Wife/Nephew] of the Donor, the Donor has, on [Date of Oral Gift], at [Time], in the presence of witnesses, orally gifted the Schedule Property to the Donee.

3. Voluntary Act: This gift is made voluntarily, without any fraud, coercion, undue influence, or consideration (Ewaz).

4. Nature of Gift: The Donor has divested himself/herself of the ownership and title of the Schedule Property in praesenti and forever.

IV. ACCEPTANCE (QABUL)

The Donee hereby confirms that they have accepted the oral gift of the Schedule Property as declared by the Donor on the date mentioned above.

V. DELIVERY OF POSSESSION (IKAB-AT-QABZ)

1. Transfer of Control: The Donor has handed over the physical/constructive possession of the Schedule Property to the Donee on [Date].

2. Title Deeds: The Donor has handed over all original title deeds and documents related to the Schedule Property to the Donee.

3. Mutation: The Donee is now authorized to have their name mutated in the Municipal/Revenue records and pay taxes in their own name.

SCHEDULE OF PROPERTY

(Provide detailed boundaries: North, South, East, West, Plot No., Survey No., etc.)

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IN WITNESS WHEREOF, the Donor and the Donee have set their hands on this Memorandum in the presence of the witnesses named below:

(Signature of Donor) ____________________ (Signature of Donee) ____________________

WITNESSES:

1. [Name & Signature]

2. [Name & Signature]

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Legal Note for the User

Oral Validity: Under Muslim law, a gift is complete as soon as the three essentials (Declaration, Acceptance, Possession) are met.

Possession is Key: If the Donor remains in control without a specific legal exception (like husband/wife), the gift may be challenged as invalid.

Contributor: Advocate Sudip Patra,

Patra’s Law Chambers Copyright: Patra’s Law Chambers © 2025

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Contributors and Copyright

Contributor: Advocate Sudip Patra, Founder of Patra’s Law Chambers. Educational Background: B.Tech (Electrical Engineering), LL.B. (IPR) from IIT Kharagpur, LL.M., P.G.D. from IIM Calcutta. Copyright Owner: Patra’s Law Chambers © 2025. All rights reserved.

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Contact for Legal Assistance

If you wish to execute a gift deed (Hibanama), challenge a gift, or require consultation on Muslim Personal Law and property rights, please contact us:

Patra’s Law Chambers

• Kolkata Office: NICCO HOUSE, 6th Floor, 2, Hare Street, Kolkata-700001 (Near Calcutta High Court).

• Delhi Office: House no: 4455/5, First Floor, Ward No. XV, Gali Shahid Bhagat Singh, Main Bazar Road, Paharganj, New Delhi-110055.

Website: www.patraslawchambers.com

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