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MUSLIM LAW | ||||
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DEFINITION OF GIFT (HIBAH) Hibat or Hibah, as it is defined in law, is the conferring of a right of property (tamlik) in something specific without an exchange.The person making such transfer is termed 'wahib" (donor) the person to whom it is made is 'mouhub la-hiu" (dunce,) and the thing given is mohub. Tender and acceptance are necessary, because a gift is a contract and tender and acceptance are requisite in the formation of all contracts and seizin, is necessary in order to establish a eight of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract without a seizin.(Hidayah) A verbal gift is as effectual as that made under a writing The legal effects of gift are:
GIFT IS OF TWO KINDS Tamlik (creating ownership), and Iskat (causing to fall,or to extinguish). The words by which gift is effected are of three kinds First, those which have been appropriated to the purpose, as, "I have given this thing to thee," or 'I have invested thee with the property of it," or "I have made it to thee,', or "this is to thee", Second, those in which the meaning of gift is concealed or implied, as, "thy grament is this piece of cloth, or "I have invested thee with this mansion for thy age," which would be a gift. So also if he had said, "this mansion is to thee umra," "(for the age-nine), or 'hayuti" (for thy hayat or life), "and when thou art dead it reverts to me," in which case the gift is lawful, and the condition vold. Third, words which bear equally the construction of gift and of anal, or commodate loan, as, "I have mounted thee on this beast", which would be a' loan, unless gift were intended. The principle in case of this kind is, that when a word is employed which has reference to the body of the thing, it is a gift and when a word is employed which has reference to the profits of the thing, it is a loan and when the word may be understood in either sense, the meaning is lobe determined by intention. A gift must not depend on any thing contingent, nor must it be referred to a future time, as, for instance, by saying--I give (or I will give) this thing to thee to-morrow." The giver must be free, sane, and adult, and also the owner of the thing given.SUBJECT OF GIFT The subject of gift mast be in existence at the time of the gift and must have legal value, and possession mast be taken of it to establish therein the right of the donee and if in its nature divisible, it must be actually divided from, so as not to be joined to, or involve in, any thing else that is not given. So that, if a man should give "the fruit that maybe produced by his palm tree, "what is in the womb of this woman, or 'of this sheep, in its under,' the gift is unlawful, though power be given to lake possession at the lime of production, as of birth, or of milking. The subject also must have a legal value; and possession must be taken of is, to establish therein the right of the donee, and if in its nature divisible, it must be actually divided from so as not to he joined to, or involved in, anything else that is not given. Hence the gift of a land without the crop then standing on it, or of a palm-tree in bearing without its fruit, is unlawful So also of a house or vessel in which there is something belonging to the donor, without its contents. If the donee takes possession of the gift, in the meeting of the contract of gift, without she order of the giver, it is lawful upon a favourab1e construction. If, on the contrary, he should take possession of the gift after the breaking up of the meeting, it is not lawful, unless behave had the consent of she giver so to do. Analogy would suggest shut the seizin is not valid in either case, as it is an act with respect to what is still the property of the giver ; for, as his right of property continues in foree until sezin, that is consequently invalid without his consent.POSSESION The gift of a thing in the hands of the donee, or his guardian, either as a deposit, or in any other wary, is valid without a formal delivery and seizin. When the subject of gift is in the hands of the donee, either as a deposit or commodate loan (ariat), or trust (amanat), he becomes the proprietor of it by the gift and acceptance, though has taking formal possession of it should not be renewed. And if the owner of property, let to hire gift would be lawful and the receiver of it freed from all or usurper, should give it to the tenant or usurper, the responsibility. Or if a thing were in any other way in the hands of a person on his responsibility, as, for instance, a thing on an offer of sale, and it were in pledge in the dunces hands, it is reported in the "Jama' that he would become possessed of it under the gift the previous possession under the pledge being converted into a possession under the gift and as the gift would be completed by possession, the pledge would be cancelled, and the pledgee entitled to have recourse to the pledger for his debt.GIFT IN DEATH-ILLNESS A gift by a person, during his illness, of which he died, is lawful to the extent of one third of his estate, provided the donee was not an heir, and he took possession in the donor's lifetime. If the subject of the gift be a mansion, and the donee takes possession of it, after which the donor dies without leaving any other properly the gift is lawful as to third of the mansion, and the other two-thirds of it must be restored to the heirs. So also, as to all other things, whether they do or do not admit of division.HIBAH BIL-IWAZ AND HIBAH BA-SHART UL-IWAZ Besides the ordinary gift, there are two other contracts termed "Hibah bil-iwaz," or gift for an exchange and "Hibah ba-shart ul-iwaz', or gift on condition of an exchange. In the transaction of hibah bil-iwaz, the iwaz (exchange) must be distinctly opposed to the prior gift by words clearly expressive of such opposition. So that if one should give a thing to another, and the donee should take possession, and then make a gift of something to the donor, without saying "in wee of thy gift," or using some other of the forms of expression above-mentioned, the second gift would not be an exchange for the first, but a new gift, and each of the parties would have the right to revoke.GIFT OF INSURANCE POLICY The Insurance Act IV of 1938, makes a statutory provision whereby any person can, in certain circumstances, assign his policy, his personal law notwithstanding. Section 38 deals with the assignment and transfer of insurance policies. The transfer or assignment can be made by endorsement. Such assignment is complete and effectual on the execution of the endorsement, but the insurer has to be given notice.REGISTRATION Registration of a deed of gift, without delivery of possession, is not enough, Where A executes a deed of gift of a dwelling-house belonging to him in favour of B, and the deed is registered but possession is not delivered to B, the gift fails. A gift, in order to be valid, must be made in accordance with the rules of Islamic law even where it is evidenced by writing. Unless all the essential forms are observed, it is not valid according to law. That being so, a deed of gift executed by a Muslim is not the instrument affecting, creating or making the gift, but a mere piece of evidence and as such, strictly, it need not be registered according to law. |
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