The Enduring Edifice of Oral Hiba: An Analysis of Mohammadan Law on Gifts in India

The Enduring Edifice of Oral Hiba: An Analysis of Mohammadan Law on Gifts in India

Introduction

The concept of 'Hiba', or gift, under Mohammadan Law represents a significant aspect of personal law governing Muslims in India. Unlike testamentary dispositions, which are restricted, a disposition inter vivos through Hiba allows a Mohammadan to gift the entirety of his property during his lifetime.[6] A distinguishing feature of Hiba is its traditional recognition in oral form. This article delves into the jurisprudential framework of oral Hiba in India, analyzing its essential requisites, its interplay with statutory provisions concerning property transfer and registration, and the judicial approach to its validity and proof. The analysis draws primarily from landmark pronouncements of the Supreme Court and various High Courts, elucidating the principles that continue to govern oral gifts within the Mohammadan community.

The Doctrinal Basis of Hiba in Mohammadan Law

Definition and Nature of Hiba

Hiba, in Mohammadan Law, is a voluntary, immediate, and unconditional transfer of property or the substance of a thing by one person to another without consideration, constituting the donee as the proprietor of the subject matter of the gift.[6], [11] As defined in Mulla's "Principles of Mahomedan Law", a Hiba is "a transfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter."[11] This transfer divests the donor of his ownership and dominion over the property.[5] The transaction is fundamentally gratuitous and takes effect during the lifetime of the donor.

The Three Essentials of a Valid Hiba

The validity of a Hiba, whether oral or written, hinges upon the fulfillment of three indispensable conditions, consistently reiterated by Indian courts. These are: (i) a clear and unambiguous declaration of the gift by the donor (ijab); (ii) an express or implied acceptance of the gift by or on behalf of the donee (qabul); and (iii) the delivery of possession (qabda) of the subject-matter of the gift by the donor to the donee.[1], [2], [5], [10], [11], [15] The absence of any one of these elements renders the gift incomplete and invalid under Mohammadan Law.[4]

1. Declaration of Gift (Ijab)

The donor must manifest a clear and unequivocal intention to make a gift. This declaration should be explicit and not merely implied.[5], [11] The donor must demonstrate an intention to completely divest himself of all ownership and dominion over the subject of the gift.[5], [11] Furthermore, the declaration must be made with bona fide intention and be free from any vitiating factors such as inducement, threat, coercion, duress, or undue promise.[5], [11]

2. Acceptance of Gift (Qabul)

The gift must be accepted by the donee, or by someone on their behalf if the donee is legally incompetent, such as a minor. Acceptance can be express or implied.[5], [11] In the context of a gift by a husband to his minor wife, the Supreme Court in Valia Peedikakkandi Katheessa Umma v. Kunhamu[3] held that acceptance by the minor wife's mother could be valid, particularly where no formal legal guardian of property was present, emphasizing the donor's intention and the benefit to the minor.

3. Delivery of Possession (Qabda)

Delivery of possession is arguably the most critical element for the completion of a Hiba. The donor must transfer possession of the gifted property to the donee, and the donee must take such possession.[1], [2] For immovable property, this often entails the donor physically vacating the premises and the donee formally entering into possession.[2], [9] As stated in Mulla's Mahomedan Law, if the donor is in actual possession, the gift does not become complete unless the donor physically departs from the premises with his goods and chattels, and the donee formally enters into possession.[9] However, exceptions exist, such as when the donee is a son or daughter living with the donor, where an inference of delivery of possession may be drawn.[9] The nature of delivery depends on the subject matter of the gift. The courts have sometimes adopted a liberal understanding of this condition based on equity and good conscience, for instance, in cases of gifts of equity of redemption or undivided shares (mushaa) under specific circumstances.[7] Mutation of the property in revenue records in the donee's name can be indicative of effective possession,[4] while the absence of such mutation can be a circumstance against the donee.[9] A gift that is to take effect in the future, where the donor retains the property for their lifetime, may be considered an invalid future gift.[9]

Oral Hiba and the Requirement of Writing and Registration

Validity of Oral Hiba

A cornerstone of Mohammadan Law on gifts is that writing is not essential for the validity of a Hiba; an oral gift fulfilling the three essential conditions is perfectly valid and irrevocable.[1], [2], [5], [10] This principle has been consistently upheld by the judiciary, emphasizing that the traditional requirements take precedence. As observed by the Calcutta High Court in Akbar Ali Molla v. Sonargaon Housing Co-operative Society Ltd., "oral heba is permissible under the Mohomedan law".[22]

Interaction with the Transfer of Property Act, 1882

The general law governing gifts of immovable property in India is contained in Section 123 of the Transfer of Property Act, 1882 (TPA), which mandates that such gifts must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. However, Section 129 of the TPA explicitly saves gifts made under Mohammadan Law from the purview of Chapter VII of the Act (which includes Section 123).[1], [4], [8] The Supreme Court in Hafeeza Bibi v. Shaikh Farid[1] definitively clarified that Section 123 TPA does not apply to Mohammadan gifts. Consequently, an oral gift under Mohammadan Law does not require registration to be valid, provided the three essentials are met. This was also affirmed by the Gauhati High Court in Md. Hesabuddin v. Md. Hesaruddin[4] and the Jammu and Kashmir High Court in Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel.[8]

The Role of a Written Deed (Hibanama)

While an oral Hiba is valid, donors may choose to record the transaction in writing. Such a written document, often termed a Hibanama, can serve different purposes. As elucidated by the Supreme Court in Hafeeza Bibi,[1] and reiterated by the Allahabad High Court in Sahas Degree College v. State Of U.P.,[10] a writing concerning a Mohammadan gift may be of two kinds:

  • It may merely recite the fact of a prior oral gift that has already been completed by declaration, acceptance, and delivery of possession. Such a document is a memorandum of a past transaction and does not require registration.
  • It may itself be the instrument effecting the gift. If the writing is contemporaneous with the gift and constitutes the operative instrument of transfer, it may require registration under the Registration Act, 1908, if it falls within the categories of documents requiring compulsory registration (e.g., gift of immovable property).
However, registration by itself, without the fulfillment of the three essential conditions of Hiba, is not sufficient to validate the gift.[1], [10] The primary requisites of Mohammadan Law must be satisfied. Several cases refer to a "Memorandum of past oral Gift (Hiba)", suggesting the practice of documenting an already completed oral transaction.[12], [14]

Judicial Scrutiny and Proof of Oral Hiba

Burden and Standard of Proof

The onus of proving an oral Hiba lies squarely on the party asserting the gift.[5], [13], [18] This burden must be discharged by adducing cogent, reliable, and convincing evidence.[5] Given the informal nature of oral gifts, courts scrutinize such claims carefully to prevent fraudulent assertions. The Madras High Court in T.M. Hyder Ali v. Thondi Muslim Education Society, citing the Supreme Court in Kamakshi Builders v. Ambedkar Educational Society,[24] emphasized that the burden of proof is on the person who claims title by way of oral gift.[18]

Evidentiary Value of Conduct and Circumstances

In assessing the veracity of an alleged oral Hiba, courts consider various factors and surrounding circumstances.

  • Mutation of Records: Subsequent mutation of the property in revenue records in the name of the donee can be a significant piece of evidence supporting the completion of the gift, particularly delivery of possession.[4] Conversely, the failure to apply for mutation for a long period can be a circumstance against the claim of Hiba.[9]
  • Possession: Evidence of the donor relinquishing possession and the donee taking possession is crucial. Continued possession by the donor, or a declaration that the gift will take effect after the donor's death, may invalidate the Hiba.[9]
  • Witnesses: The presence of witnesses at the time of the declaration and acceptance of the oral Hiba can lend credibility to the claim.[13]
  • Specificity of Claim: Vague assertions regarding the Hiba, such as failure to disclose the year, date, time, or place of the alleged oral gift, can weaken the claim significantly, as noted by the Allahabad High Court in Nisha Gupta v. Inam Ahmed.[15]
  • Subsequent Conduct: The conduct of the parties subsequent to the alleged gift is also relevant. For instance, a relinquishment deed executed later might be examined to see if it corroborates a prior oral Hiba.[16]

Specific Scenarios and Complexities

Gift to Minors

As discussed earlier, in the case of a gift to a minor, acceptance by a lawful guardian is typically required. However, the Supreme Court in Valia Peedikakkandi[3] demonstrated a flexible approach, allowing acceptance by the mother in charge of the minor when no de jure guardian of property was available, provided the donor's intention was clear and the transfer was beneficial to the minor.

Gift of Undivided Property (Mushaa)

The doctrine of mushaa relates to gifts of an undivided share in property. While traditionally there were restrictions on such gifts unless the share was separated and delivered, judicial decisions have carved out exceptions. The Madras High Court in Abdul Sathar v. Muhammad Ali[7] noted that the Privy Council, in Muhomed Baksh v. Hosseini Bibi, applied a liberal interpretation to uphold a gift by a co-sharer of his share to another co-sharer, suggesting that courts may lean towards equity and good conscience rather than overly refined interpretations of delivery of possession in such cases.

Hiba-bil-Iwaz (Gift for Consideration)

It is important to distinguish a pure Hiba (Hiba ba-shart-ul-iwaz) from a Hiba-bil-Iwaz, which is a gift for consideration. A Hiba-bil-Iwaz partakes of the nature of a sale. The Jammu and Kashmir High Court in Ghulam Ahmad Sofi[8] clarified that a gift made in consideration of some services rendered would still be a pure and simple gift and not necessarily a Hiba-bil-Iwaz, thus remaining subject to the rules of Hiba.

Oral Hiba and Other Statutes

The validity of an oral Hiba can sometimes be contested in the context of other statutes, such as land ceiling laws. The Patna High Court in Bibi Jubaida Khatoon v. State of Bihar[17] discussed the interplay between oral Hiba under Mohammadan Law and provisions of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961, indicating that while personal law permits oral gifts, their effect under specific statutes requires careful consideration of the statutory scheme and mandate.

Conclusion

The institution of oral Hiba under Mohammadan Law remains a vibrant and legally recognized mode of property transfer in India. The jurisprudence, meticulously developed through judicial pronouncements, underscores that the three essentials—declaration, acceptance, and delivery of possession—are paramount, overriding the general statutory requirements of written and registered instruments applicable to other communities. The Supreme Court's decision in Hafeeza Bibi[1] has firmly cemented the position that Section 129 of the Transfer of Property Act, 1882, provides a clear exception for Mohammadan gifts, thereby preserving the sanctity of personal law in this domain.

While oral Hiba offers flexibility, the burden of proving its existence and validity rests heavily on the claimant, necessitating clear, cogent, and unequivocal evidence. Courts continue to adopt a balanced approach, upholding genuine oral gifts that satisfy the traditional tenets while vigilantly scrutinizing claims to prevent abuse. The enduring validity of oral Hiba reflects the Indian legal system's commitment to respecting personal laws while ensuring that property rights are determined with fairness and legal certainty.

References

  1. Hafeeza Bibi And Others v. Shaikh Farid (Dead) By Lrs. And Others (2011 SCC 5 654, Supreme Court Of India, 2011)
  2. Mahboob Sahab v. Syed Ismail And Others (1995 SCC 3 693, Supreme Court Of India, 1995)
  3. Valia Peedikakkandi Katheessa Umma And Others v. Pathakkalan Narayanath Kunhamu (Deceased) And After Him His Legal Representatives And Others (1964 AIR SC 275, Supreme Court Of India, 1963)
  4. Md. Hesabuddin And Others v. Md. Hesaruddin And Others (1983 SCC ONLINE GAU 10, Gauhati High Court, 1983)
  5. Bashir Mohammed, (since Deceased Through Legal Representatives) And Others /plaintiffs v. Mohammed Saeed, (since Deceased Through Legal Representatives) And Others (Chhattisgarh High Court, 2023)
  6. MANSOORSAHEB (DEAD) v. SALIMA (D) BY LRS. . (Supreme Court Of India, 2024) [referring to A.A. Faizee, "Outlines of Mohammadan Law" and Ameer Ali on 'hiba']
  7. Abdul Sathar And 2 Others v. Muhammad Ali & 16 Others (Madras High Court, 1992)
  8. Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel And Others (Jammu and Kashmir High Court, 1973)
  9. AZEEMSHAH v. RAHEMAN SHAH KHAN AND ORS (Karnataka High Court, 2023) [referring to Mulla's Mahomedan Law, Para 152]
  10. Sahas Degree College Thru Secretary Nadeem Hasan v. State Of U.P. Thru District Magistrate J.P. Nagar And Others (Allahabad High Court, 2024) [citing Hafeeza Bibi and Mulla]
  11. Salma Begam v. Mehrunnisha (Chhattisgarh High Court, 2022) [citing Mulla's Principles of Mahomedan Law, Section 138]
  12. Smt. Zareena Bai v. Mr. Altaf (Telangana High Court, 2020)
  13. SUBAITHA BEEVI v. S.M. ANSARI(DIED) (Madras High Court, 2022)
  14. Mr. Mohammed Shakeel Ahmed Sameer v. State of Telangana (Telangana High Court, 2023)
  15. Nisha Gupta v. Inam Ahmed And Others (Allahabad High Court, 2024)
  16. Hafisabi v. Gulam Mohamad (2004 SCC ONLINE BOM 1172, Bombay High Court, 2004)
  17. BIBI JUBAIDA KHATOON & ANR v. STATE OF BIHAR & ORS (Patna High Court, 2011) and Bibi Jubeda Khatoon Wife Of Md. Hadisdh Ansari v. The State Of Bihar (Patna High Court, 2011)
  18. T.M. Hyder Ali (Died) v. Thondi Muslim Education Society, Through Its Secretary M. Abdul Rawther Nisthar,... (Madras High Court, 2018)
  19. Mulla, Principles of Mahomedan Law (as cited in various provided references, e.g., Salma Begam, Sahas Degree College)
  20. Asaf A. A. Fyzee, Outlines of Muhammadan Law (as cited in Sahas Degree College, MANSOORSAHEB)
  21. Ameer Ali, Mohammedan Law (as cited in MANSOORSAHEB)
  22. Akbar Ali Molla v. Sonargaon Housing Co-operative Society Ltd. 2001 SCC OnLine Cal 525 (as cited in Bashir Mohammed)
  23. Abdul Rahim v. Sk. Abdul Zabar (2009) 6 SCC 160 (as cited in Bashir Mohammed & Salma Begam)
  24. Kamakshi Builders v. Ambedkar Educational Society, (2007) 12 SCC 27 (as cited in T.M. Hyder Ali)