Kinds of Hiba
1) Hiba-Bil-Iwaz (Gift for consideration)
2) Hiba- Ba-Sharatul-Iwaz
Hiba- Bil –Iwaz
This kind of gift involves consideration from both donor and donee. This kind of gift was introduced in India as a device for affecting a gift of Mushaa in a property capable of division.
It is, in reality, a sale as it involves consideration from both donor and done. Registration is necessary for this kind of gift. The delivery of possession is not mandatory for a complete transfer and prohibition.
Requisites of validity
Actual payment of consideration on part of the done is necessary. In Khajuooroonissaa v Raushan Jehan(1876), it was held that adequacy of consideration is not necessary.
A bonafide intention on the part of the donor to divest himself in possession of the property is to confer it upon done. In Muhammad Faiz Ahmad Khan v Gulam Ahmad Khan, A and B Muslim brothers are tenants in common. A dies leaving B and his wife W. After A’s death B executed a deed whereby he granted 2 of the village to W and W executed in writing that in consideration of the grant to her she gave up her claim to her husband’s estate in favour of B.
The transaction was Hiba-bil-iwaz and was valid through possession was not delivered.
Ismail Beeir case 1967, the gift deed was executed for consideration that done should discharge the debt charged in the property gifted and would be entitled to a property after marriage with the son of the donor. It was held that the gift was Hiba-bil-iwaz.
Ghulam Abbas v Razia(1951), it was held by the full bench of Allahabad High Court that an oral transfer of Immovable property worth more than rupees 100 cannot be validly made by Muslim husband to his wife by way of gift in lieu of dower debt which also exceeds rupees 100. Such a transaction is neither gift nor a combination of the gift which can be made orally. It is a sale.
Hiba-ba-Sharatul-Iwaz
A gift made with the stipulation. In this type of gift, payment of consideration is postponed. Delivery of possession is essential and the transaction becomes final on delivery of possession.
Essentials
- Delivery of possession is necessary.
- It is revocable until the return is paid.
- It becomes irrevocable on the payment of iwaz.
- Transaction, when completed by payment of iwaz, partakes of the character of sale.
Note- The kind of property that can be given away by way of Hiba can also be given by way of return gift (iwaaz) and the return must be made with all formalities necessary for Hiba.
