Hiba is a transfer of ownership in property made without consideration immediately. When a gift is made by Muslim it is called Hiba. The provisions relating to gift has been given under The Transfer of Property Act 1882. Chapter VII Sections 122 to 129 deals with gift. Section 129 of TPA 1882 provides that the provisions relating to gift shall not be applicable on gift made by Muslims. Therefore Hiba is regulated by Muslim personal law, as it has been also given in section 2 of The Shariyat Act 1937.
Essential Conditions for a valid Hiba.
For a valid Hiba there must be a declaration ,acceptance and the delivery of possession. A Hiba is not valid unless these three element are fulfilled.
Meaning of Hiba- Bil-Iwaz
“Hiba” means Gift and “Iwaz” means consideration or return. Therefore Hiba- bil-iwaz means gift for consideration or something in lieu of gift. If a gift has been made and completed subsequently donee also gives something to donor in lieu of the gift.
Essentials of valid Hiba- Bil-Iwaz.
For a valid Hiba- bil-Iwaz following two essentials are necessary.
a- a valid and complete gift by the donor.
b- and actual payment of consideration by
donee.
In other words we can say that it is Hiba for Hiba.
Meaning of Hiba-Ba-Shartul-Iwaz
It is a form of Hiba-bil-iwaz with a condition (shart). In this transaction donee does not pay the consideration voluntarily but it is paid to fulfill the condition imposed by donor. The subsequent gift by the donor to donee is the condition precedent. The subsequent gift is not consideration of first gift but it is given in the compliance of condition precedent.
Difference between Hiba- bil-iwaz and
Hiba-ba-Shartul-iwaz.
1. In Hiba- bill-iwaz the consideration is paid by donee voluntarily whereas in Hiba-ba-Shartul-iwaz its payment is a condition precedent.
2. In Hiba- bil-iwaz the consideration is at the will of donee but in Hiba-ba-shartul- iwaz the value and kinds of consideration is at the discretion of the donor.
3. Hiba- bil-Iwaz is not a Hiba; it is either sale or exchange whereas Hiba-ba-shartul-iwaz is treated as Hiba.
4. Doctrine of Musha is not applicable to Hiba- bill-iwaz whereas this doctrine is applicable to Hiba-ba-shartul-Iwaz.
5. Since Hiba- bil-iwaz is not gift, it is either sale or exchange , therefore it must be in writing and registered. Whereas in Hiba-ba-Shartul-iwaz writing and registration is neither necessary nor sufficient.
6. In Hiba- bil-Iwaz, the delivery of possession is not necessary whereas it is necessary in Hiba-ba-Shartul-iwaz.
7. The Hiba-bil-Iwaz becomes irrevocable as soon as made. Whereas Hiba-ba-Shaatul-iwaz is revocable and becomes irrevocable only after the payment of iwaz by the donee.
