A gift or 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 other. Even Muslim of sound mind and not a minor may dispose of his property by gift. A gift to a person not yet in existence is void. There must be in every gift a bona fide intention on part of the donor to transfer the property from the donor to the donee.
A gift as distinguished from a will may be made of the whole of the doner’s property, and it may be made even to an heir. A gift of property in the possession of a person who claims it adversely to the donor is not valid, unless the donor obtains and delivers possession thereof to the done, or does all that he can to complete the gift so as to put it within the power of the done to obtain possession.
When gift is made subject to condition. When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no condition were attached to it.
Essentials of Gift
There are three essentials of a gift, namely
1. There should be a declaration of gift by the donor.
2. There must be an acceptance of the gift, express or implied, by or on behalf of the done.
3. There should be delivery of possession of the subject of the gift by the donor to the done.
If these conditions are complied with, the gift is complete.
Gift of Mushaa (Doctrine of Mushaa)
Mushaa is an undivided share in property either movable or immovable. A valid gift may be made of an undivided share (Mushaa) in property which is not capable of division.
A gift of an undivided share (Mushaa) in property which si capable of division is irregular (Fasid), but not void (Batil). However the irregular gift can be rendered valid by subsequent partition and delivery to the done of the share given to him.
A gift of undivided share (Mushaa), though it be a share in property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the done, in the following cases:
a. Where the gift is made by one co-heir to another.
b. Where the gift if of a share in Zamindari to Tahika.
c. Where the gift is of a share in free hold property in large commercial town.
d. Where the gift is of shares in a land company.
Kinds of Gift
The following are the kinds of gift recognized by Islamic Law.
The mode of delivery of possession in the different contingencies is as under
1. Where donor is in possession.
The gift of such property is not complete unless the donor physically departs from the premises with all his goods land chattels, and the done formally enters into possession.
2. Where property is in the occupation of tenants
A gift of such property is completed by a request by donor to the tenants to attorney to the done or by delivery of the title deed or by mutation in the revenue records. But where the donor reserves to himself any rights during his lifetime, i.e, of receiving rents, a mere rectal in the deed that delivery of possession has been given to the done will not make the gift complete.
3. Where the donor and done both reside in the property.
No physical departure or formal entry is necessary in such a case. The gift may be completed by some overt act by the donor indicating a clear intention of his part to transfer possession and to divest himself of all control over the subject of the gift.