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Sunday, June 12, 2011

Islamic Inheritance: Hiba — Capacity for Making a Gift (part 2)

Acceptance – The one who can receive is known as the donee. Acceptance may be made expressly or implied by conduct. Any person can receive a gift if he or she is in existence at the time of the gift. An absolute gift to an unborn child is invalid, but if the child is born within six months of the date of gift, it will be valid on the presumption that the child was actually existing in the womb of the mother. A muslim may also make a lawful gift to a non-muslim. The Donee must be in existence at the time of giving the gift, & In case of a minor or lunatic, the possession must be given to the legal guardian otherwise the gift is void.

A Gift to an unborn person is void. However, gift of future usufructs to an unborn person is valid provided that the donee is in being when the interest opens out for heirs.

A gift is void is the donee has not given his acceptance. The real test of the delivery of possession is to see who (the donor or the donee) reaps the benefits of the property. If the donor is reaping the benefit then the delivery is not done and the gift is invalid.

Muslim law recognises the difference between the corpus and the usufructs of a property. Corpus, or Ayn, means the absolute right of ownership of the property which is heritable and is unlimited in point of time, while, usufructs, or Manafi, means the right to use and enjoy the property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.

A Hiba, once validly created cannot be revoked. No receiver of a gift under a Hiba can also be compelled to give anything in exchange. Of course, it is quite common that the donor and receiver agree that something will be done or given in exchange for the gift, and such gifts fall under a different category altogether, known as Hiba bil Iwaz or gifts for return.

A Hiba which does not take effect immediately is of no effect whatsoever. Finally, a Hiba which is purported to be made by a person who is on his death-bed, cannot operate on a greater piece of property than his will (or Wasiyat) would, if he had left behind a will. Such gifts in contemplation of death are known as donatio mortis causa and can operate to the extent of one-third of the donor’s estate only. As distinguished from a Will, a gift may be made of the whole property of the donor, even to an heir. It can be made in favour of a stranger to the exclusion of his heir. The only restriction is the rule which invalidates death-bed gifts.

Having regard to all of the above, it is clear that a Muslim gentleman who wants to provide for his son or daughter like his Hindu or Christian brethren, would, instead of executing a Settlement Deed, make a Hiba of his property in such manner and form as he thought fit, and thereby, ensure that the son or daughter in question had a piece of property which they could then utilise for their maintenance and upkeep. 

Rajiv Shah
Head - Life and Pensions
Earnest Insurance Brokers

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