39. "A hiba or gift 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. Every Mahomedan of sound mind and not a minor may dispose of his property by gift. Writing is not essential to the validity of a gift either of moveable or of immovable property. It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.
40. The three essentials of a gift under Mohammedan law are as under: There should be:--
"(1) a declaration of gift by the donor
(2) an acceptance of the gift, express or implied, by or on behalf of the donee, and
(3) delivery of possession of the subject of the gift by the donor to the donee."
If these conditions are complied with, the gift is complete.
41. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible. Registration of a deed of gift does not cure the want of delivery of possession under Mohammedan Law. There would be gift of immovable property by a husband to the wife or by wife to the husband.
42. Under Mahomedan Law a "hiba-bil-iwaz", as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale, and has all the incidents of a contract of sale. Accordingly possession is not required to complete the transfer as it is in the case of a hiba, and an undivided, share (mushaa) in property capable of division may be lawfully transferred by it, though this cannot be done in the case of a hiba. Two conditions, however, must concur to make the transaction valid, namely, (1) actual payment of consideration (iwaz) on the part of the donee, and (2) a bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. The adequacy of consideration is not material; but whatever its amount, it must be actually and bona fide paid. Such a transaction is called the hiba-bil-iwaz of India as distinguished from "true" hiba-bil-iwaz. Therefore, hiba-bil-iwaz means, literally, a gift for an exchange. It is of two kinds, one being the true hiba-bil-iwaz, that is, hiba-bil-iwaz as defined by the older jurists, and the other hiba-bil-iwaz of India. In the former there are two acts, namely, (1) the hiba, which is followed by (2) an independent and uncovenanted iwaz (return-gift, that is, an iwaz not stipulated for at the time of hiba. In the latter there is only one act, the iwaz or exchange being involved in the contract of gift as its direct consideration. In the true hiba-bil-iwaz, the hiba and iwaz, are both governed by the law of gifts. There must be delivery of possession both of the hiba and iwaz, and they are both subject to the doctrine of mushaa. The transaction consists of two distinct acts of donation between two persons each of whom is alternately the donor of one gift and the donee of the other.
43. In one of the judgments relied upon by the learned counsel reported in MANU/BH/0022/1991 : AIR 1991 Patna 183 (Mosst. Saimunissa V. S.K. Mohiuddin and Others) following the judgment in MANU/BH/0162/1947 : AIR 1949 Patna 237:26 Pat 561, it is held as follows:--
"One of the essential ingredients of a gift is voluntary transfer of a property by one person in favour of another without any consideration. A dower debt being a debt payable by husband to his wife, a gift in lieu of dower debt cannot be held to be valid, inasmuch as, repayment of a dower debt being a consideration, no property can be transferred by way of a gift in lieu thereof"
In another decision reported in MANU/TN/0159/1974 : AIR 1974 Madras 54 (V 61 C 19) in the case of Amina Bi and others V. Khamurunnissa, it is held as follows:--
7. The learned counsel for the appellants, however, contends that the oral gift as stated in Ex. A-2 is inadmissible in evidence. Section 129 of the Transfer of Property Act saves Mohammedan gifts from the application of the provisions of Chapter VII of the Transfer of Property Act. The result is that the oral gift made by Mahommed Jaffar in favour of his wife Fathima Bi in lieu of her dower debt is valid."
44. A full Bench of the Allahabad High Court in the case of 'Ghulam Abbas v. MT. Razia Begum and Others' reported in MANU/UP/0295/1950 : AIR 1951 Allahabad 86, dealing with various types of 'gifts' under the Mohammedan Law at paragraphs 10 to 17 has held as under:--
"10. The gifts under the Mahommedan Law may be classified under three heads:
"(1) A hiba, pure and simple;
11. In Durr-ul-Mukhtar, a hiba, or gift, pure and simple, is defined as "the transfer of the right of property in the substance?-(tamlik-ul-ain) by one person to another without consideration (ewaz) but the absence of consideration is not a condition in it."
(2) A hiba-bil-ewaz (a grant or gift for a consideration) which is more in the nature of an exchange than a gift; and
(3) A hiba ba-shart-ul-ewaz, or a grant made on the condition that the donee or transferee should pay to the donor at some future time or periodically some determinate thing in return for the grant." (Syed Ameer Ali's Mahommedan Law, Vol. I, p. 34, 4th Edn., 1912).
12. Syed Ameer Ali, in his commentary on Mahommedan Law, at p. 40, has amplified the definition in these terms:
"In other words a hiba is a voluntary gift without consideration of property or the substance of a thing by one person to another so as constitute the donee, the proprietor of the subject-matter of the gift. It requires for its validity three conditions: (a) a manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly; and (e) the taking possession of the subject matter of the gift by the donee either actually or constructively."
13. Admittedly, the transfer in the presents case was made bil-ewaz-den-mehr (in lieu of dower); consequently, it cannot be regarded as a voluntary gift without consideration, such as has been defined above. It has, however, been argued on behalf of the plaintiff-respondent that the transfer is a combination of gifts, viz., a gift of immoveable property by the husband in favour of his wife and another gift of dower-debt by the wife to the husband, either of which could be made orally.
14. It is, however, not possible to treat the transaction as a combination of gifts. Obviously, it was a single transaction-a transfer of property by the husband in favour of the wife in consideration of the latter relinquishing an ascertained amount-Rs. 2500 to be exact - out of the amount of dower-debt due to her. As owner of the property, the husband was entitled to transfer, and admittedly transferred, the same to his wife. Such a transfer in whole or in part satisfaction of a debt is recognised by law and is not uncommon. The transfer as well as the liquidation of dower debt to the extent of Rs. 2,500 took place simultaneously in one and the same transaction; the two things were so interconnected that one could not stand without the other. Consequently, the argument that the husband made a gift of property and the wife made a gift of a portion of dower-debt is unsound. The transfer in question is, therefore, not a combination of gifts.
15. Under the Mahommedan Law, writing is not essential to the validity of a gift, either of movable property or of immovable property, which is complete and valid on proof of a declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession over the subject of the gift by the donor to the donee; but whether a gift for considerations (hiba-bil-ewaz) can be made orally depends upon the answer to the question whether it does or does not amount to a sale, as defined in Section 54, T P. Act.
16. The transfer in the present case not being a hiba or gift pure and simple or a combination of such gifts, it has to be determined whether it is a hiba-bil-ewaz, a grant or gift for consideration, recognised by the Mahommedan Law, and also whether it amounts to a "sale" within the meaning of the term as defined in Section 54, T P. Act. Syed Ameer Ali has, in his commentary on Mahommedan Law, at p. 158, thus explained ewaz or consideration and the hiba-bil-ewaz or gifts for consideration in the earlier and modern times:
"According to the original conception, which in itself was a development of the earlier rules, 'ewaz' or consideration was of two kinds; one which was subsequent to the contract (of gift), the other which was conditioned in it. (Fatwai Alamgiri, Vol. 4, p. 549). In other words, in the first case the consideration was delivered to the donor after his gift, and the transaction was treated as a case of mutual gift. There was no stipulation regarding the giving of ewaz, but the moment it was received by the donor his right of revocation dropped.
17. At p. 162, the learned author has further observed:
This evidently was the earliest form of a gift for a consideration. The hiba-bil-ewaz of later times is clearly a development of this kind of gift.
In the other kind, the consideration was expressly stipulated in the contract, and when once it was received the transaction acquired the legal character of a sale. The modern hiba-ba-shart-ul-ewaz has unquestionably sprung from the above."
"In all these cases the consideration is not a part of the contract. And the rules stated above do not, therefore, apply to what in modem times is called a hiba-bil-ewaz, which is a transaction of quite a different nature, and partakes to a certain extent of the second kind of ewaz mentioned in the Fatwai Alamgiri, viz., where it is stipulated in the contract. In this kind of hiba-bil-ewaz the consideration directly opposed to the object of the gift both being in essence; there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction. A hiba-bil-ewaz, therefore, is a sale in all its legal incidents. In sale, mutual seisin is not requisite to render the contract valid and the terms in which a contract of this kind is entered into imply, 'that the articles opposed to each other are present,' and that there is no danger of either party suffering from the other's fraud. 'I have given you this for that' implies that the consideration is present, and that the person will take care to receive it before parting with his property, and the law therefore annexes to it the quality of a sale both with regard to the condition and the effect."
The true nature of a Hiba-bil-iwaz is fully described in Chapter VI, Book VIII of Baillie's Digest of Muhammadan Law, which is only an abbreviated reproduction of Fatwa Alamgiri.
45. From the aforesaid statements of law and Judgments, it is very clear, in Mohammedan Law, there is clear distinction between 'gift' with consideration and 'gift' without consideration.
""Hiba-bil-ewaz" means, literraly, gift for an exchange and it is of two kinds, according as the ewaz or exchange, or not, stipulated for at the time of the gift. In both kinds there are two distinct acts; first, the original gift, and second, the ewaz or exchange. But in the Hiba-bil-ewaz of India, there is only one act, i.e., ewaz, or exchange, being involved in the contract of gift as it is a direct consideration. The transaction which goes by the name of Hiba-bil-ewaz in India is, therefore, in reality not a proper Hiba-bil-ewaz of either kind, but a sale; and has all the incidence of a consequence. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and what is of great importance in India, an undivided share in property capable of division may be lawfully transferred by it, thought that cannot be done by either of the forms of the true Hiba-bil-ewaz. Hibas or gift under the Mohammadan Law is transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter."
46. Section 122 of the Transfer of Property Act, defines 'Gift' as under:
"122. "Gift" defined. "Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void."
47. Therefore the essential ingredients of a gift is a transfer of an immovable property made voluntarily and without consideration. Similarly, Hiba or Gift under Mohammadan Law 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. Though Section 123 of the Transfer of Property Act, makes it mandatory that a gift must be effected by a registered instrument, by virtue of Section 129 of the Transfer of Property Act, Chapter VII which deals with gifts under the Transfer of Property Act, does not affect any rule of Mohammdan Law. Therefore, Hiba, the subject matter of whatever value need not be registered as required by Section 123. It can be oral, but it should be adequately proved.
48. The Apex Court in the case of Hafeza Bibi & Ors. v. Shaikh Farid (Dead) by L.Rs & Ors. reported in MANU/SC/0557/2011 : AIR 2011 SC 1695, has clarified and has set at rest the ambiguity on application of Chapter VII to the Muslims. It is held that Section 129 of the Transfer of Property Act, preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of the Transfer of Property Act to a gift of an immovable property by a Mohammadan. A gift without consideration of property or substance of a thing could be oral, it does not require registration once three conditions which are necessary to constitute a valid gift, namely, a declaration of 'gift' by Donor and acceptance of the gift, express or implied by or on behalf of the 'Donee' and delivery of possession of the subject of the gift by Donor to Donee completes the gift.
49. However, Hiba-bil-ewaz in India being a gift for a exchange, it is in the nature of a sale and if the subject matter is immovable property, then, it can only be by a registered instrument as provided under Section 54 of the Transfer of Property Act. Oral gift, in discharge of money owned to the donee being one for consideration, amounts to sale. It is not pure and simple Hiba but Hiba-bil-ewaz and if the property of the value of Rs. 100 or more is involved, it can only be by a registered instrument. Similarly, in the case of gift for consideration such as love and affection, it would be a transfer of ownership in exchange for price paid or promised or part paid and part promised, then it has to be by a registered document.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R.F.A. No. 960/2003
Decided On: 31.01.2015
Appellants: Syed Basheer Malik and Ors.
Respondent: Jameela Begum and Ors.
Hon'ble Judges/Coram:N. Kumar and B. Veerappa, JJ.
Citation:AIR 2016(NOC)395 KAR