HIBA

Introduction
A Muslim can devolve his property in various ways. Muslim law permits the transfer of property through gift or will. A
disposition through gift is unrestricted as to quantum and a Muslim is allowed to give away his entire property during
his lifetime by gift, but only one-third of the total property can be bequeathed by will.

Conventionally, a gift, being a transfer of property is governed by the Transfer of Property Act, 1882. But as per section
129 of the Act, Chapter VII of the Transfer of Property Act, 1882 regulating the gifts does not apply to the ‘Muslim Gifts’
or the ‘Hiba’. Hiba is governed by the Muslim Personal Law.

Meaning and Definition of Gift

A gift is generally a transfer of ownership of a property by one person to another without any consideration. The
concept of gift originated back from 610 AD to 650 AD in Muslim Law. The term Hiba is of Arabic origin and literally
means gift. The term ‘Hiba’ has a narrow connotation. It is a transfer of the right of property to another without return.

According to Ameer Ali– “A Hiba is a voluntary gift without consideration of property by one person to another so as
to constitute the donee the proprietor of the subject-matter of the gift.”

Salient Features of a Hiba

After anatomizing the definitions and meaning, some prominent features of Hiba emerge as follows:

1. Hiba is a transfer of property by act of the parties and not by operation of law.
2. Under Hiba, a living Muslim voluntarily transfers the ownership of any property to another living person. Hence, it
is a transfer inter vivos.
3. The transferor transfers ownership of the property in absolute interest and the transferee gets the complete title
in respect of the property given to him.
4. Hiba is operative with immediate effect and deprives the transferor of his control and ownership over the property.
Moreover, as the property is passed immediately to the transferee, the property must be in existence at the time
when the gift is made.
5. A Hiba is a transfer of property without any consideration. If anything of any value is taken by the transferor in
return or exchange, such a transfer of property is not a gift.

Donor
A person who makes the declaration of a gift is called a donor. A donor must be a competent person to make a gift.
Every Muslim, male or female, married or unmarried, who has attained the age of majority and has a sound mind is a
competent donor. Hence a donor should be a Muslim, can be a male or female whether married or unmarried. For the
purpose of making a gift, the age of majority is the attainment of 18 years and 21 years if he is under a certificated
guardian.

Capacity to make a Hiba

o Mental capacity: A person who is of sound mind and has the mental capacity to understand the legal implications
of his act is eligible to make a gift. However, a gift made by a person of unsound mind during lucid intervals is a
valid gift. Also, the donor must be free from any coercive or fraudulent influence while making a gift.
In the case of Hussaina Bai v. Zohara Bai 1960, the court held that- “When a gift is made by a parda-nasheen lady,
it is important to establish that the consent of the lady was free and she made the gift on her independent advice.
The burden to prove that the gift was made free from compulsion lies on the donee. In this case, the deed was
executed from the lady under compulsion, it was not her voluntary act, and hence, the deed was held invalid.”
o Financial Capacity: According to the Hanafi view, if a person is under insolvent circumstances, he is allowed to make
a gift. However, the Kazi has the power to declare any gift as void if it is made with a view to defraud the creditor.
The Indian courts have accepted the view of the Hanafi school that from the fact of indebtedness or embarrassing
financial circumstances of the donor, it cannot be inferred that the donor has fraudulent intentions.
So, in every gift, there must be a bona fide intention on the part of the donor to transfer property to the donee.
Obviously, if a gift is made with a malafide intention to defraud the donee, the gift is invalid- Abdul v Mir Md (1886).
o Right to make a Hiba- Capacity to make a gift is not solely enough. The donor must also have a right to make a
Hiba. A Muslim has a right to gift only those properties of which he has the ownership. If he is simply a tenant in a
house, he is not allowed to gift that house to someone because he does not have the ownership of that house.
Such a gift is considered as invalid. However, a Muslim has a right to gift away all his properties which are under
his ownership at the time of declaration of the gift.

Donee
The person in whose favour the gift is made is known as the donee. For being a competent donee, the only essential
requirement is that a donee must be any person in existence at the time of the making of a gift. He may be a person
of any religion, sex, or state of mind. Thus, a Muslim can make a lawful Hiba in favour of a non-Muslim, female or male,
minor or an insane person. When a gift is made to a minor or a person of unsound mind, the gift will be complete by
the delivery of possession to the guardian of the minor or of the person of unsound mind.

o Child in Womb: A child in the mother’s womb is a competent donee provided that it is born alive within six months
from the date on which the gift was made. If after the declaration of the gift the child dies in the womb or an
abortion takes place, the gift becomes void. Also, the child must be in existence in the mother’s womb at the time
of the making of the gift. If a child is not in the mother’s womb or the conception takes place after the declaration
of the gift, such a gift is void ab initio.
o Juristic Person: A juristic person includes a firm, corporation, company, association, union, university or any other
organization. A juristic person is presumed to be an adult of sound mind like a human being in the eyes of law and
hence, is a competent donee in whose favour a gift can be made. A gift in favour of a mosque, temple or a school
is valid.
o Two or more Donees: Muslim law allows gifts to be made jointly to two or more persons, but where the gift of a
property capable of division is made to two or more persons without specifiying their shares or without dividing
them, then the gift is invalid. However, such a gift will be valid if separate possession is taken by each one of the
donee by mutual arrangement or in accordance with the deed- Kasim Ali v. Ratna, 1938.

The Subject matter of Hiba

Islamic law does not make any distinction between ancestral or self-acquired or between movable or immovable
property as far as the concept of Hiba is concerned. Any form of the property upon which the dominion can be
exercised may constitute the subject-matter of the Hiba. Both incorporeal and corporeal property, tangible and
intangible property can be the subject-matter of a Hiba.

Similarly, a gift can be made of property on lease, a property of attachment or any actionable claim. Unlike the concept
of the will or wasiyat under Islamic law in which only one-third of the total property can be bequeathed by a will, a
Hiba or gift can be made of the entire property. However, in case of the gift on death bed, i.e, Marz-ul-Maut, only 1/3rd
of the property can be gifted, and the property cannot be gifted to legal heirs.

Formalities of a Hiba
Under Muslim law, a gift may be made orally or in writing, irrespective of the fact whether the property is movable or
immovable. But in every case the delivery of possession must be made to the donee. But if property is in hands of
tenant, then constructive possession would be sufficient. The requirement of formalities laid down or gift in S. 123,
Transfer of Property Act, are not applicable to Muslim gift. The only formality that is essential for the validity of a
Muslim gift is "taking a possession of the subject-matter of gift by the donee either actually or constructively". If the
delivery of possession has not been made, though all the formalities laid down in S. 123, Transfer of Property Act are
complied with, then such a gift is not valid- Karan Illahi v. Sharfuddin, (1916).

Under Muslim law, for the gift of even immovable property neither written gift deed nor registration is necessary. But
if the gift of immovable property worth Rs. 100 or more is made in writing, then registration is compuslory under
Section 17, Registration Act.

Mahboob Saheb v. Syed Ismail 1995 SC- Gift under Muslim law is not required to be in writing, and consequently need
not be registered under Indian Registration Act.

Faridsaheb Sharikmaslat v Ahmedsaheb Sharikmaslat Bombay HC 2010- Oral gift is acceptable, but if it is written,
then it has to be registered. If gift is already made oral and just a note is made of it, then registration is not mandatory.

Hafeeza Bibi v. Shaikh Farid- SC 2011-Hiba can be oral/ written / just note of transaction, no registration is required.

Essential of a Hiba
Since Muslim law views the law of Gift as a part of the law of contract, there must be an offer (izab), an acceptance
(qabul), and transfer (qabza). Thus, to make a Hiba three essential formalities have to be fulfilled.

1. A declaration of gift by the donor.

2. Acceptance of the gift by the done.
3. Delivery of possession by the donor and taking of possession by the done.

In Smt Hussenabi v Husensab Hasan 1989, a grandfather made an offer of a gift to his grandchildren. He also accepted
the offer on behalf of minor grandchildren. However, no express of implied acceptance was made by a major grandson.
Karnataka HC held that since the three elements of the gift were not present in the case of the major grandchild, the
gift was not valid. It was valid in regards to the minor grandchildren.

These three formalities are discussed in detail below:-

1. Declaration of gift by the Donor

There must be a clear and unambiguous intention of the donor to make a gift. A declaration is a statement which
signifies the intention of the transferor that he intends to make a gift.
o Oral or Written: The donor may declare a gift of any kind of property either orally or through a written deed.
The gift that is made in writing is termed as Hibanama.
In the case of Md. Hesabuddin v. Md. Hesaruddin 1983, a Muslim woman made a gift of her immovable
properties in favour of her son. The gift was written on ordinary paper and was not a registered deed. The court
held the validity of such gifts in this case as- “Under Muslim law, writing is not essential for the validity of a gift
whether it is moveable or immovable property. Therefore, the gift, in this case, was held to be a valid gift.”
o Express Declaration: A declaration of a gift must be expressly made in clear words that the donor is conceding
his ownership of the property completely. A gift made in ambiguous words is void.
In Maimuna Bibi v. Rasool Mian 1990, it was held that- “It is necessary that the donor divest himself completely
of all the dominion and ownership over the property of gift. The donor must express his explicit intention to
transfer the ownership to the donee clearly and unequivocally.”
o Free Consent: The consent of the donor in making the gift must be free. A declaration of a gift must be made
voluntarily by the donor. Any gift made by a donor under threat, force, coercion, undue influence or fraud is not
a valid gift.
o Bona fide Intention: Absence of real and honest intention to transfer the ownership of the property will make
a gift ineffective. A gift made with an intention to defraud the donee is void. A gift without an intention may be
pretence gift, colourable or Benami transaction etc. however, mere indebtedness does not affect the
competency of the donor unless his malafide intention is established- Hussaina Bai v. Zohra Bai 1960.
2. Acceptance of gift by the Donee
For the validity of a gift, it must be accepted by the donee. Acceptance manifests the intention of the donee to
take the property and become its new owner. Without acceptance, the gift is considered to be incomplete. Since
under Islamic law, Hiba is treated as a bilateral transaction, therefore, it is important that the proposal made by
the donor to transfer the ownership of the property must be accepted by the donee.
o Minor or insane person: In case the donee is minor or insane person, the acceptance can be given by the
guardian.
o Juristic person: If a gift is made in favour of any institution or any other juristic person, the acceptance of the
gift is made by either manager or any other competent authority.
o Two or more Donees: Gift made in favour of two or more donees must be accepted by each and every person
separately. If the share of each person is explicitly specified by the donor then, they will get the separate
possession in the same way as declared by the donor. But if the share under a gift is not specified and no
separate possession is given by the donor, then also the gift is valid and the donees will take the property as
tenants-in-common.
3. Delivery of Possession
The formalities laid down for gifts under Section 123, Transfer of Property Act, 1882, are not applicable to Muslim
gifts. Under Islamic law, a gift is complete only after the delivery of possession by the donor and taking of
possession by the donee. Thus, it is obligatory that the declaration and acceptance must be accompanied by the
delivery of possession of the property.
The gift takes effect from the date when the possession of the property is delivered to the donee and not from the
date when the declaration was made by the donor. The importance of delivery is to such an extent that without
the delivery of possession to the donee, the gift is void even if it has been made through a registered deed.
The donor must divest himself of not only the ownership but also the possession in favour of the donee in order
to make a gift complete. Muslim law does not presume transfer of ownership rights from donor to a donee without
the explicit delivery of possession of the property.
In Noorjahan v. Muftakhar 1969, a donor made a gift of certain property to the donee, but the donor continued
to manage the properties and takes the profit himself. Till the death of the donor, no mutation was made in the
name of the donee. It was held by the court that since no delivery of possession was made, the gift was incomplete
and ineffective in nature.

Mode of Delivery of Possession

The mode of delivery of possession totally depends upon the nature of the property gifted. The delivery of
possession can be either actual or constructive i.e. symbolic.
o Actual Delivery of Possession
Actual delivery means when a property is physically handed over to the donee. This type of delivery is possible
only with tangible properties (movable as well as immovable) which are capable of being physically possessed
and given.
Where the property is movable, it must be actually transferred and handed over to the donee. For example, if
a donor gifts a car to the donee, he must give the keys of the car and all other documents of the car to the
donee so that he can use it. Mere declaring the gift on a document is not enough. The property must be handed
over immediately.
Similarly, where the property is immovable, its actual delivery of possession is compulsory. But since it cannot
be picked up and handed over, the donor may delivery such property by giving all the documents related to
that property and by placing it to the donee so that he can use it as he likes. For example, if a donor gifts the
house in which he is residing, he must vacate it and ask the donee to live in it in order to make his gift valid. In
case of a garden, the donor may give full dominion to the donee to use the garden in whichever way he wants
including all the rights to enjoy the fruits and flowers.
o Constructive Delivery of Possession
Constructive delivery of possession means a symbolic transfer of property. In this mode of delivery, the donor
does some act due to which it is legally presumed that the possession has been delivered to the donee. Such
type of delivery of possession takes place only when the property is of such a nature that it is not possible to
delivery through actual mode. Constructive delivery of possession is sufficient to constitute a valid gift under
two circumstances only:
 a) Where the property is intangible, i.e. it cannot be perceived through senses.
b) Where the property is tangible but, under the situation, its actual delivery of possession is not possible.

When the constructive delivery of possession is completed?

When the possession of the movable property is delivered, the exact time of delivery of possession can be
easily determined. The problem arises in the case of immovable or incorporeal properties where it is onerous
to prove the exact time of the delivery of possession. However, in India, there are two judicial views regarding
the exact time of the completion of delivery of possession.

 Benefit Theory: Under this view, it is believed that a constructive delivery of possession is complete as soon as the
donee starts getting the benefits out of the gifted property. Where even after the declaration of the gift, the donor
is enjoying the benefits, the gift is not complete. But, if the donor enjoys the benefits, it is deemed that the delivery
of possession has taken place.
 Intention Theory: This approach supports the view that the delivery of possession is completed on the date on
which the donor intent to transfer the possession to the donee. The intention of the donor can be proved on the
basis of the facts and circumstances which vary from case to case. The court accepts that the delivery of possession
is deemed to have taken place only when the bona fide intention of the donor to complete the gift is thoroughly
established and it is not important to prove that from which date the donee reaps the benefits of the property
given. For example, if the donor and donee are living in the same house which constitutes the subject-matter of
the gift, the donor’s intention to transfer the possession to the donee is sufficiently proved if the donee has been
authorised to manage the house.

When Delivery of Possession is not necessary

Islamic law of gift binds great significance to delivery of possession especially in case of immovable property. The other
essentials of Hiba will have no legal effect unless accompanied by delivery of possession. But there are certain
exceptions to this general rule. The following are the situations under which a gift is valid without actual or constructive
delivery of possession:

1. Donor and donee live jointly in the gifted house: Where the subject-matter of a gift is a house in which the donor
and donee both resides together, any actual delivery of possession is not necessary to complete the gift. Since the
donee is already continuing the possession of the house in some other capacity, there is no need to give the donee
the same possession again in a different capacity. But, there must be some conspicuous act or apparent activity on
the part of the donor that indicates the bona fide intention of the donor to transfer the possession.
In Humera Bibi v. Najmunnissa 1905, a Muslim lady executed a gift deed of her house in favour of her nephew
who was living with her in the same house. The property was transferred in the name of the nephew but she
continued to live with him as before. But after the making of the gift, the rents were collected in the name of the
donee. It was held that “the gift was valid although there was neither any physical transfer to the donee nor any
physical departure of the donor from the house.”
2. Gift by a husband to wife or vice versa: where a gift of immovable property is made by a husband to wife or vice
versa, no transfer of possession is mandatory. The reason behind this is that a joint residence is an integral aspect
of the relationship of marriage. To perform the matrimonial obligations it is necessary the husband and wife must
live together.
In Ahima v. Khatija 1864, where the donor handed over the keys of the house, the subject-matter of the gift, to
his wife, the gift was considered to be valid, even though the husband continued "to live in that house.
3. Gift by father or guardian to minor child or ward: In case a father or guardian makes a gift in favour of his minor
child or ward, he declares the gift as donor and accepts the gift on the part of the donee, the delivery of possession
is not compulsory provided that there is a bona fide intention on the part of the father or guardian to divest his
ownership and give it to his minor child or ward- Munni v Abdul 1959.
4. Gift of property already in possession of donee: The basic objective behind the concept of delivery of possession
is to give the physical dominion over a property to the donee. But, anyhow if the donee already has possession of
the property given by donor under a gift, mere declaration and acceptance are enough to complete the gift. No
formal delivery of possession is required to complete the gift.
Who may challenge the Delivery of Possession?
A stranger cannot challenge the validity of a gift on the ground that the gift is bad as no delivery of possession has been
made. A gift on this ground can be challenged only when issue is raised between the donor or those claiming under
him on one side and the donee and those claiming under him on the other.

In Y.S. Chen v. Batubai 1991, gift was made to a person by her mother of a house and tenants were paying rent to her,
the court held that the tenants had no locus standi to challenge her title on the ground that no possession of the house
was given to her.

Conditional or Contingent Hiba

The contingent or conditional gifts whose operation depends upon the occurrence of a contingency. A contingency is
a possibility, a chance, an event which may or may not happen. Under Islamic law, conditional or contingent gifts are
void. For example, if a Muslim made a gift to his wife for life, and after her death to his children who are living at the
time of his death, the gift is said to be contingent.

Revocation of Hiba
Although Prophet was against the revocation of gifts, it is a well-established rule of the Islamic law that all voluntary
transactions, including Hiba, are revocable. Different schools have different views with regard to revocation. The
Muslim law-givers classified the Hiba from the point of view of revocability under the following categories:

 Revocation of Hiba before the delivery of possession

All gifts are revocable before the delivery of possession is given to the donee. For such revocation, no orders of the
court are necessary. As discussed under Muslim law, no Hiba is complete till the delivery of the possession is made,
and therefore, in all those cases where possession has not been given to the donee, the gift is incomplete and
whether it is revoked or not, it will not be valid till the delivery of possession is made to the donee.
It implies that the donor has changed its mind and not willing to complete the gift by delivery of possession.
For example, X, a Muslim, makes a gift of his car to Y through a gift deed and no delivery of possession has been
made to Y. X revokes the gift. The revocation is valid.
 Revocation after the delivery of possession
In this situation, a Hiba can be revoked in either of the following ways:
a) With the consent of the donee
b) By a decree of the court.
Mere declaration of revocation by the donor or filing a suit in the court or any other action is not enough to revoke
a gift. The donee is entitled to use the property in any manner until a decree is passed by the court revoking the
gift- Mahboob v Abdul 1964.
The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his heirs after
his death. A gift can also not be revoked after the death of the donee.
According to the Sunni School, with the exception of the following cases, a gift can be revoked even after the
delivery of possession. The exceptions to the same are:
i. When a gift is made by one spouse to another.
ii. When the donor and the donee are related within the prohibited degrees.
iii. When the donee or the donor is dead.
iv. When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he had disposed
of it by sale, gift or otherwise or, where he had consumed it, or where it had been lost or destroyed.
v. When the value of the subject-matter has increased Multani v. Maula Baksh, 1952.
vi. When the identity of the subject-matter of the gift has been completely lost, just as wheat, the subject-
matter of gift, is converted into flour.
vii. When the donor has received something in return (iwaz).
viii. When the object of the gift is to receive the religious or spiritual benefit or merit, such as sadaqa.

The Shia law of revocation of gifts differs from the Sunni law. As per the Shia law-
 a) Gift can be revoked by a mere declaration on the part of the donor without any proceedings in a court;
b) A gift made to a spouse is revocable;
c) A gift to a relation, whether within the prohibited degrees or not, is revocable.

Gift to Minor
Any gift made in favour of a minor or insane person is valid. They may not have the capacity to understand the legal
consequences but they are persons in existence and thus, are competent donee. But such gifts are valid only if accepted
by the guardian of the minor or insane donee. A gift is void without the acceptance by the guardian.

For the purpose of acceptance of the gift, the guardian of a minor or insane donee are as under in the order of priority:

i. Father
ii. Father’s executor
iii. Paternal grandfather
iv. Paternal grandfather’s executor

Therefore, in the presence of the father, the paternal grandfather is not allowed to accept the gift on behalf of the
minor or insane and so on. If all the above-mentioned guardians are not present, then the gift is accepted by the
‘guardian of the property of minor or insane’. If a guardian himself makes a gift in favour of his ward, he will declare
the gift acting as a donor and has the capacity to accept the gift as the guardian of the minor or insane.

It is to be noted here that the mother is not recognized as the guardian of the property of her minor child. Hence, she
is not entitled to accept the gift on behalf of her minor child.

Katheessa Ummand v. Naravanath Kumhamuand 1963, is a leading case on this point.

Facts: In this case, a Muslim husband made a registered gift to his wife who was a minor. The gift was accepted by the
donee’s mother. Unfortunately, after two years, the husband died and soon after it the donee (wife) also died. The
validity of the gift was challenged by the elder brother of the donor (husband) on the ground that there was no delivery
of possession as a gift to the minor was accepted by her mother who is not a legal guardian according to the Islamic
law.

Issue: The question before the court was whether a gift by a Muslim husband to his minor wife and accepted by the
mother on behalf of the minor wife, is valid?

Held: The court, in this case, held that it is a well-established rule under Islamic law that mother is not a legal guardian
of the minor’s property, therefore, she is incompetent to take the delivery of the possession on behalf of the minor
donee. But, in case there is no legal guardian to accept the gift, the completion of the gift for the benefit of the minor
has the utmost significance.

If the donee had already attained the age of puberty, the gift is valid even if it is accepted by a person who has no
authority to accept the gift on behalf of a minor. In this case, the gift was held to be valid although the delivery of
possession was not accepted by any competent guardian on behalf of minor but since the minor had reached the age
of discretion (fifteen years) and was competent to accept the gift herself.

Kinds Of Gifts
There are different kinds of Hiba. These include-

1. Hiba-bil-Iwaz
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba-bil-Iwaz is similar to a sale, where the donee has already
provided some consideration to the donor and in return, the donor makes a gift to the donee. In this type of gift,
unlike a regular Hiba, the donee must first give some consideration to the donor without any prior agreement for
a gift. After receiving the consideration, the donor gives the donee the gift. The gift and return gift are independent
transactions. Since hiba-bil-iwaz is in effect a sale, it gives rise to the right of pre-emption.
 It is not necessary for the donor to immediately give possession of the gifted property to the donee in Hiba-bil-
Iwaz- Bashiran v Hussain 1941. Instead, the donor may promise to give the gift in exchange for the consideration.
A bona fide intention on the part of the donor to divest himself of the property is essential. However, such a gift
must be registered, and an oral promise is not sufficient. Once the registration is done, the gift becomes
irrevocable. Additionally, the gift of Musha (co-ownership) is permissible even in divisible property under this type
of Hiba. Since hiba-bil-iwaz is equated with sale, it has been held that if it is of immovable property worth Rs. 100
or more, it must be effected by a registered instrument as required by S. 54, Transfer of Property Act- Ghulam
Abbas v. Razia Begum, 1951.
2. Hiba-ba-shart-ul-Iwaz
‘Shart’ means ‘stipulation (condition)’, ‘Iwaz’ means ‘consideration’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made
with a stipulation (condition) for return’. In Hiba-ba-shart-ul-Iwaz, the donor and the donee have an agreement
where the donor will make the gift to the donee immediately and in return, the donee will provide something to
the donor in the future. The possession of the property must be delivered to the donee at the present time in this
type of gift.
However, Musha cannot be gifted under Hiba-ba-shart-ul-Iwaz. Initially, it is considered a simple gift, but once the
Iwaz (consideration) is performed, it transforms into a sale. It is revocable until the Iwaz is paid, and becomes
irrevocable after the payment of Iwaz. Like hiba-bil-iwaz, the hiba-ba-shart-ul-iwaz is also subject to the right of
pre-emption.
Hiba Hiba-bil-Iwaz Hiba-ba-shart-ul-Iwaz

Transfer of ownership is Transfer of ownership is for Transfer of ownership for consideration

without consideration. consideration but without an but with an express agreement.
express agreement.
It is purely a gift. It’s more like a contract of sale. It is initially a gift but later on becomes
contract for sale when Iwaz is paid.
It is revocable but has It is totally irrevocable. It is revocable but once Iwaz is paid, it
certain exceptions. becomes irrevocable.

3. Sadaqah
Sadaqah is a gift made with a religious motive and for a pious purpose, and the donor gifts both the corpus (the
property itself) and the usufruct (the right to use and enjoy the property). Once the gift of Sadaqah has been made
and possession has been delivered, it becomes irrevocable. The gift of Sadaqah can be made to charity or even to
poor individuals. A sadaqah can also be made to a rich person provided that the object is of acquiring religious
merit or spiritual benefit. It can also be given jointly to two or more persons. The donee has the right to use or
consume both the corpus and the usufruct of the gifted property. Sadaqah does not require an express acceptance
by the donee.
The key distinction between Sadaqah and Waqf is that the gift is made for religious and charitable purposes. Still,
in Waqf, the corpus of the gift cannot be consumed, whereas in Sadaqah, both the corpus and usufruct can be
consumed- Gulam v. Sultan, 1967.
4. Areeat
It is defined as ‘the giving of the usufruct without any return’. Areeat is a form of gift primarily intended for
charitable purposes. In this type of gift, the ownership of the property is not transferred; only the usufruct, which
grants the right to enjoy the benefits of the property, is transferred. Upon the death of the donee, the property
will revert back to the donor or, if the donor is deceased, then to the legal heirs of the donor. It is a temporary
transfer of usufruct. Areeat is a gift without consideration and broadly it is like a license. It is revocable.
An express acceptance by the donee is not required for Areeat, and the donor doesn’t have to be of the age of
majority.

Doctrine of Mushaa
The word ‘Mushaa’ has an Arabic origination which literally means ‘confusion’. Under Islamic law, Mushaa denotes an
undivided share in joint property, movable or immovable. It is, therefore, a co-owned or joint property. If one of the
several owners of such property makes a gift of his own share, there may arise confusion in regard to what part of the
property is to be given to the donee. Practically, it is too difficult to deliver the possession of a joint property if a gift is
made by a donor without partition of the joint property.

To circumvent such confusion, the Hanafi Jurists have developed the doctrine of Mushaa. Gift of Mushaa i.e gift of a
share in the co-owned property is invalid without the partition and actual delivery of that part of the property to the
donee. If the co-owned property is not capable of partition, the doctrine of Mushaa is impertinent. A Mushaa or
undivided property is of two kinds:

 Mushaa Indivisible
It includes the property in which the partition is not possible. A gift of an undivided share (Mushaa) in a property
which is incapable of being divided or where the property can be used for better advantage in an undivided
condition, is valid. The doctrine of Mushaa is not applicable where the property constituting the subject-matter of
the gift is indivisible. All the schools of Islamic law accept the view that a gift of Mushaa indivisible is valid without
partition and the actual delivery of possession.
For example, a staircase, a cinema hall, a bathing ghat etc. comprises indivisible Mushaa properties. If these kinds
of properties are divided, then their original identity will be lost.
 Mushaa Divisible
Mushaa divisible is the property which is capable of division without affecting its value or character. If the subject-
matter of a Hiba is Mushaa divisible, the doctrine of Mushaa is applied and the gift is valid only if the specific share
which has been gifted, is separated by the donor and is actually given to the donee. However, a gift without
partition and the actual delivery of possession is merely irregular and not void ab initio.
For example, a co-owned piece of land or a garden or a house is a Mushaa divisible property which can be divided
by a visible mark of identification without changing its original character.

Shia law does not recognize the principle of Mushaa. According to Shia law, a gift of a share of divisible joint property
is valid even if it is made without partition.

Comparison of Gift and Will

Basis of Gift Will

Comparison

Quantum A man can give away his whole property during his Only one-third of the property can be
lifetime. bequeathed.

Beneficiary A gift inter vivos can be made in favour of any person For bequeathing more than one-third of
without any restriction (except during marz-ul- the property to any person, consent of
maut). heirs is mandatory.

Existence of Property gifted must be in existence at the time of The property may or may not be in
Property making the gift. existence at the time of execution of the
will but it must be existing at the time of
the death of the legator.

Transfer of Under gift, the immediate and absolute transfer of A transfer of property comes into effect
Property property takes place. only after the death of the legator.

Delivery of Immediate delivery of possession must take place as Since property devolves on the legatee
Possession soon as the donor declares the gift and the donee only after the death of the legator so no
accept the same. question of delivery of possession arises.

Revocation Once a gift is made, a mere declaration to revoke it A bequest may be revoked by the legator
by the donor is not sufficient. A revocation can only any time after executing it and before his
take place either by the consent of the donee or by death either impliedly or expressly or by a
the intervention of the court. subsequent will.