HIBA UNDER MUSLIM LAW: A LEGAL AND VALUATION PERSPECTIVE

By Council of Engineers and Valuers (CEV) Legal & Valuation Desk

Introduction

In Islamic jurisprudence, Hiba, or a gift, is a well-defined legal concept that refers to the voluntary and immediate transfer of property ownership from one person (the donor) to another (the donee) without any consideration. Rooted in Islamic traditions of generosity and charity, Hiba holds immense legal significance—especially in the realms of personal law, property succession, and asset valuation. For property valuers and legal practitioners, a sound understanding of Hiba is critical in the assessment of property rights and title transfers under Muslim Law.

Definition and Nature of Hiba

Hiba, in its essence, is:

A voluntary, unconditional gift of property;
Involving no expectation of return or consideration;
Requiring immediate transfer of both ownership and possession.

It differs from a will (which takes effect after death) and from other types of gifts, primarily due to its requirement of immediate effect and gratuitous nature.

Essentials of a Valid Hiba

To constitute a valid Hiba under Muslim Law, the following three elements must coexist:

Declaration of Gift
The donor must clearly express an intention to make the gift.
Acceptance by Donee
The donee or their legal guardian must accept the gift.
Delivery of Possession
The donor must relinquish possession—either actually or constructively—for the gift to be complete.

Types of Hiba

Muslim Law recognizes variations of gifts under specific conditions:

Hiba-bil-Iwaz: A gift given in return for something of approximate value (reciprocal exchange).
Hiba-ba-Sharat-ul-Iwaz: A gift made with the condition of receiving something in return. If the condition is not fulfilled, the gift is revocable.

Hibanama: Gift Deed under Muslim Law

When a gift is made in writing—comprising declaration, acceptance, and transfer—it is documented through a Hibanama. Although not mandatory under Muslim Law, a Hibanama strengthens evidentiary value and is preferred for immovable properties.

Capacity and Eligibility of Donor

To legally execute a Hiba, the donor must:

Be a Muslim of sound mind;
Be of majority age (18 years or 21 years under guardianship);
Own the property being gifted;
Act freely, without coercion or fraud;
Have a clear intent and not use Hiba to defraud creditors.

Even insolvent persons and pardanashin women may validly gift property, provided other conditions are met.

Eligibility of Donee

A donee may be:

Of any religion (Muslim or non-Muslim);
Minor or major (if minor, gift must be accepted by guardian);
A juristic person like a mosque or institution;
An ascertainable group, if multiple donees exist.

However, gifts cannot be made to unborn persons unless they exist at the time when the gift takes effect.

Subject Matter of Hiba

The property being gifted must:

Exist at the time of the gift;
Be owned by the donor;
Be capable of possession;
Qualify as ‘Mal’ (valuable under law), tangible or intangible;
Not be something to be created in the future.

If the gift is made of property not yet in the donor’s possession, or by a trespasser, it is invalid.

Meaning of “Mal” in Islamic Law

The Arabic term Mal refers to any item that can be acquired and possessed—such as land, gold, vehicles, clothes, or houses. This includes both tangible assets and intangible usage rights.

Acceptance and Delivery of Possession

Muslim Law mandates that actual possession be handed over for the Hiba to be valid. The date of possession determines the effective date of the gift—not the date of declaration.

Delivery Can Be:

Actual: Physical transfer (e.g., handing over keys or goods).
Constructive: Symbolic transfer for immovable property (e.g., documents or keys).

Delivery May Not Be Required If:

Donor and donee live in the same property;
The gift is between spouses or co-sharers;
The property is already in the possession of the donee.

Revocation of Hiba

Before possession: Gift may be revoked by donor.
After possession: Revocation is not generally permitted.
No court order is necessary, although disputes may arise.

However, revocation rules may vary depending on the type and condition of the Hiba.

Conditional and Contingent Hiba

Muslim Law generally does not allow conditional gifts. A gift dependent on future events (contingent Hiba) is void, although an invalid condition does not invalidate the gift itself.

As per Hanafi law, the gift stands, even if the condition does not.

Legal Opinions on Hiba

Hedaya: Unconditional, immediate transfer of property.
Ameer Ali: A voluntary gift, complete upon possession.
Mulla: Immediate and unconditional transfer, valid on acceptance.
Fyzee: Transfer without expectation of return or consideration.

Who Can Challenge a Hiba?

A gift can only be challenged by:

The donor, or
Persons claiming under the donor (e.g., legal heirs).

Strangers or third parties cannot challenge a Hiba for lack of delivery or other technical grounds.

Significance of Hiba in Valuation and Inheritance

Title Transfer: Hiba results in immediate transfer of ownership, making it essential to verify during valuation of property.
Succession Planning: It allows Muslims to distribute property outside the constraints of Islamic inheritance laws, provided possession is transferred in their lifetime.
Documentation: Although not mandatory, written Hibanamas are vital in real estate valuation and mutation records.
Valuation of Transferred Assets: The intent, timing, and legality of possession affect market valuation and enforceability.

Historical Context

The concept of Hiba evolved between 610 AD and 650 AD during the foundational period of Islam. Over centuries, it has been codified into various schools of Islamic law and integrated into Indian personal laws.

Unlike Western systems, Muslim Law does not differentiate between movable and immovable assets in the context of gifts—both may be validly gifted via Hiba.

Understanding in Short

Hiba under Muslim Law is a powerful legal tool enabling Muslims to distribute their wealth during their lifetime. It is recognized for its religious, social, and legal significance, and holds considerable weight in property matters. For valuers, understanding the nuances of Hiba—particularly the requirements for delivery, acceptance, and donor competency—is essential to assess title clarity, transaction validity, and asset ownership during valuation exercises.

As India continues to modernize its real estate and valuation frameworks, respecting the diversity of personal laws, including Islamic principles like Hiba, remains integral to inclusive and accurate property assessment.

Published by CEV Group Legal Research Division – Serving Valuation, Real Estate & Legal Professionals with Knowledge that Counts