This Article is written by Hitakshi Maggo from Fairfield Institute of Management and Technology
A gift is a transfer of property ownership from one live person to another living person for no monetary payment. Gifts are referred to as ‘Hiba’ in Islamic law. To be more specific, the term “gift” has a broad connotation and refers to all types of non-monetary transfers of ownership. The term ‘Hiba,’ on the other hand, has a limited meaning. It is primarily transmitted inter vivos, or between living individuals. “Hiba is an unconditional transfer of ownership of an existing property, made immediately and without any compensation,” Hedaya explains.
The definition of a gift and the subject matter of a present is a long-standing and traditional topic that has evolved into a unique aspect of property law. Under Muslim law, certain institutions are recognized that, while distinct, resemble Hiba in some ways, such as Sadaqa, Aariat, and Hiba-bil-iwaz. The gift will not be affected by the donor’s later conversion to another religion because the gift is final once it is made. In order for a gift to be legitimate under Muslim law, the property must be transferred immediately; consequently, if the donor intends for the gift to take effect at a later period, the gift will be void. Hiba has determined its existence in various ways through Indian courts, and the term Hiba promotes the exclusion of all types of services and can only be provided after approval. Let’s take a closer look at these aspects.
ESSENTIAL OF HIBA
- Declaration by the donor:
The donor must have a clear and unambiguous intention to give a gift. The statement is a statement that expresses the transferor’s intention to give the gift. The declaration can be made orally or in writing. Donors can declare donations of any kind of item, either verbally or in writing. Under Islamic law, no writing and registration is required.
- Acceptance by the donee
Gifts that the recipient has not received are invalid. Legal guardians can be accepted on behalf of minors. The recipient can be someone of any religious background. Hiba, which supports minors and women, is also effective. A child in utero is a competent child if born alive within 6 months of the date of declaration. Corporations can also be recipients and give them gifts in their favor. On behalf of minors or mentally ill persons, parents may receive this gift in accordance with the provisions of Islamic law.
- Delivery of possession
In Islamic law, possession means only possession that is capable of the nature of the object. Therefore, the actual test when transferring property is to see who (donor or beneficiary) will enjoy the benefits of the property. If the donor makes a profit, no delivery will be made and the gift will be invalid. The method of transferring the property depends on the type of property. The transfer of ownership is either factual or constructive.
Wasiyat is a document used in Islamic law to allow a person to transfer his property after his death to the person with whom he wishes to do so. A person makes a free transfer of his property through Wasiyat. After the death of its originator, a Wasiyat is always executed. It proves that the person officially announced the transfer of his property to someone else. The individual who makes or executes the will is referred to as the ‘Legator’/’Testator,’ while the person in whose favor the will is formed or executed is referred to as the ‘Legatee’/’Testatrix.’ Muslims regard Wasiyat as a divine tool since it is guided by the Holy Quran.
Essentials of a Valid Will
- The benefactor (legator) who has passed away must be able to make a Will.
- The legatee (testatrix) must possess the necessary skills to accept the inheritance or estate.
- The inheritance subject (property) should be significant (Qualitative essential).
- The estate should be within the cutoff thresholds imposed on a Muslim’s testamentary power.
Any person of sound mind can make a will, according to Section 59 of the Indian Succession Act, 1925. A person who has reached the age of majority can also make a will. Furthermore, Section 60 states that a father of any age can designate a guardian for his minor kid through his will and that a married woman can make a Will of her property that she could alienate during her lifetime by her own act.
The Mussalman Waqf Validating Act, 1913 defined Waqf as a permanent dedication by those who profess Musalman’s faith for purposes recognized as religious, pious, or benevolent under Musalmania law. .. This definition has been criticized by Mami’s Privy Council and Callander Ammal because it is not exhaustive and has not been accepted as a complete definition of the true character of the waqf envisioned by Islamic scholars. A better definition is given in Section 3 (i) of the Waqf Act of 1954, where Waqf is “movable by a person who is recognized as pious by Islamic law and who professes Islam for religiously recognized purposes. Or it is a lasting devotion of movables. When talking about the term “waqf”, it literally means “imprisonment,” “holding,” or “shackling.” Technically, it means the lasting dedication of a particular property for a religious purpose or a set of religious purposes.
ESSENTIALS OF WAQF
The essentials of a valid waqf according to the Hanafi School (Sunni Law) are as follows:
- Permanent dedication of any property – Waqf property must be permanently dedicated, and the waqif must devote it to a recognized purpose such as religious, charitable, or pious. If the waqf made by the waaqif is for a limited term, it is not a genuine waqf, and no condition or contingency should be attached to it, otherwise, it will become invalid.
- Waqf Competency – The dedicatee (waaqif) must be a Muslim who is of sound mind and not a minor or lunatic.
- For any purpose recognized by Islamic law – also known as the object of waqf. As a result, the third requirement of a legal waqf is that the dedication for a purpose is recognized by Muslim Law as religious, pious, or benevolent.
According to Shia Law, “waqf is a contract in which the outcome or effect is bound to the original and is free to use” (Sharyaul Islam). These are:
- As in Sunni law, it must be perpetual.
- It must be absolute and unconditional.
- Ownership of the appropriate objects must be transferred (as opposed to Sunni law, where a mere declaration is sufficient).
- It must be completely removed from waaqif. It indicates that the waaqif shall not reserve any right or interest in the dedicated property, including the usufruct.
Islamic law uses the term washyat, which is a means for people to agree on their property and is effective after death. This is a mechanism that can be changed and undone while alive. Waqf, on the other hand, is a permanent, binding, and legally enforceable detention. Any stakeholder can appeal to the civil court. The Mutawari office is very important in Waqf. You may exercise power if Mutawari’s status is clearly vacant, or if there is a dispute over the jurisdiction or eligibility of an existing Mutawari. The Islamic Waqf is different from the British Trust and the Hindu Dharma Foundation. On the other hand, the term “gift” used in Hiba and the Property Transfer Act is different. As we saw in the project, according to Mohammedan’s law, in order to be a valid gift, as mentioned above, there must be three essential things.
Samarth Trigunayat, CNLU, Concept of gift, lawctopus, https://www.google.com/amp/s/www.lawctopus.com/academike/concept-of-gift-under-muslim-law/%3famp=1
Mehak, 4june, 2020, lawsisto, concept of wasiyat, https://lawsisto.com/legalnewsread/NTQxMA==/Concept-of-Wasiyat-Will-under-Muslim-Law
Akansha, will under islamic law, blog pleaders, https://www.google.com/amp/s/blog.ipleaders.in/islamic-law-will/%3famp=1
Madhubala Solanki, Concept of waqf, lawctopus, https://www.google.com/amp/s/www.lawctopus.com/academike/concept-waqf-muslim-law/%3famp=1