I am an ailing 79-year-old resident of Mumbai and the father of a daughter and two sons. I wish to make arrangements that secure the future of the next generation. I wish to gift a part of my property to my unborn grand-children, as an act of foresight and affection. Can such a transfer be legally effected by way of Hiba.
Generally, provisions with respect to gifts are governed as per the Transfer of Property Act, 1882. However, the said Act does not include a Hiba made under the Islamic laws. Hiba can be understood as a voluntary gift. When a person who is governed by Muslim Law signifies their willingness to make an immediate and unconditional transfer of ownership of an existing property, it is called as making “a declaration of Hiba”. A declaration of hiba does not involve consideration, or an expectation of getting something in return.
Mohammedan Law
Hiba under Mohammedan Law does not require the same to be in the form of a written document. The three essentials of a valid Hiba even if not reduced in writing are the following:
i. A clear declaration of the wish to give on the part of the gift giver (donor).
ii. An acceptance of the gift by the receiver of the gift (donee), which can be either implied or direct.
iii. Taking of possession of the gift by the receiver (donee), either actually or through an act that proves the same.
In view thereof, a Hiba made in favour of unborn children would be invalid. One of the most important principles that governs Hiba is the fact that Hiba can be effected inter vivos or among living persons. Nevertheless, Hiba of a future usufruct, that is, the right to enjoy or receive benefits of such gift, to a child in womb is valid under certain conditions. When a Hiba is made to a child in the womb, it would stand valid only if the child is born alive within 6 months from the date on which the declaration of Hiba was made. For an instance, a Hiba declaration for a house cannot be made in favour of a child who is not born yet, but if the child exists in the mother’s womb and is born alive within 6 months then the right to enjoy the benefits of dwelling in such a house made in the favour of such a child would be valid.
Aditya Chopra, Managing Partner and Fatima Ali, Associate, The Victoriam Legalis (TVL)
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