Kinds of Gifts
There are several variations of Hiba. These include[xxviii]:
Hiba bil Iwaz
Hiba ba Shart ul Iwaz
Sadkah
Ariyat
HIBA- IL-IWAZ
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means a gift for consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One gift from a donor to the donee and one from donee to the donor.
The gift and return gift are independent transactions. Therefore, when both i.e., hiba (gift) and iwaz (return or consideration) is completed, the transaction is called hiba-bil-iwaz. For example, A makes a gift of a cow to S and later B makes a gift of a house to A. If B says that the house was given to him by A by way of return of exchange, then both are irrevocable[xxix].
So a Hiba Bil Iwaz is a gift for consideration and in reality, it is a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and the prohibition against Mushaa does not exist. The following are requisites of Hiba bil Iwaz:
Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa vs Raushan Begam[xxx], it was held that adequacy of the consideration is not the question. As long as the consideration is bona fide, it is valid no matter even if it is insufficient.
A bona fide intention on the part of the donor to divest himself of the property is essential.
Gift in lieu of dower debt –
In Gulam Abbas vs Razia[xxxi], the Hon’ble High Court at Allahabad held that an oral transfer of immovable property worth more than 100/- cannot be validly made by a Muslim husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must be done through a registered instrument.
HIBA-BA-SHARTUL-IWAZ
‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with a stipulation for return’. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the payment of consideration is not immediate the delivery of possession is essential. The transaction becomes final immediately upon delivery. When the consideration is paid, it assumes the character of a sale and is subject to preemption (Shufa). As in sale, either party can return the subject of the sale in case of a defect.
It has the following requisites –
· Delivery of possession is necessary.
· It is revocable until the Iwaz is paid.
· It becomes irrevocable after the payment of Iwaz.
· Transaction when completed by payment of Iwaz, assumes the character of a sale.
In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both gifts for a return and the gifts must be made in compliance with all the rules relating to simple gifts.
