AMITY LAW SCHOOL ,NOIDA

A PROJECT REPORT ON MUSLIM GIFTS (HIBA) AND

MARZ-UL-MAUT :-
(FAMILY LAW )

SUBMITTED BY:-
ANAMYA SHARMA
ENROLLMENT NO-A3221517322
UPASANA SINGH (A3221517343)
NISHTHA KHERIA(A3221517295)
VARUN SRIVASTAVA(A3221517338)
NIKHIL PAWAR(A3221517322)
(BATCH:2017-2022)
UNDER THE GUIDANCE OF
MS. KAVITA BIST
ASSISTANT PROFESSOR
(AMITY LAW SCHOOL,NOIDA)

ACKNOWLEDGEMENT :-
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 Words put on paper are mere link marks,but when they have a purpose there exists a thought behind
them. I too have a purpose to express my gratitude towards those individuals without whose guidance
the project wouldhave not been possible.

I would like to express my special gratitude to my teacher, MS.KAVITA BIST mam as well as my
additional directors, MR.ADITYA TOMAR AND MRS.SHEFALI RAIJADA who gave me the
golden opportunity to do this wonderful project on the topic: MUSLIM GIFTS (HIBA) AND MARZ-
UL-MAUT, which also helped me in doing a lot of research and i became to know about so many new
things.

I am really thankful to them.

Secondaly I would like to thank my parents who helped me in finishing my project within limited
period of time.

I am not making this project for marks only but to increase my knowledge also.

Thnaks again to all who helped me.

TABLE OF CONTENT :-
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 • ACKNOWLEDGEMENT

• MUSLIM GIFTS (HIBA):-

INTRODUCTION
• ESSENTIALS OF HIBA
• CAPACITY TO MAKE HIBA
• SUBJECT-MATTER OF HIBA
• THE DONEE
• FORMALITIES : DELIEVERY OF POSSESSION
• CONDITIONAL GIFT AND GIFT WITH CONDITION
• REVOCATION OF GIFTS
• WHO CAN CHALLENGE A GIFT

• MARZ-UL-MAUT :-
• INTRODUCTION
• ACKNOWLEDGEMENT OF DEBTS
• REFERENCES

MUSLIM GIFTS :-
(HIBA)

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 Introduction –

In Muslim law, gifts are called “Hiba”. The gifts in India are governed by Transfer of Property Act,
1872. However, the provision of Transfer of Property Act, 1872 does not apply to Muslim law. The
English term, ‘gift’ is of a wider connotation and applies to all transactions where one transfer’s one’s
property to another without any consideration. The term hiba has a narrow meaning. According to the
durr- ul- muhtar – hiba is a” transfer of property in substance by one person to another without any
return”.The Hanafi lawyer defined hiba as an act of bounty by which a right of property is conffered in
something specific without any exchange.

Muslim law recognises certain institution which appear to be similar to hiba,though they are clearly
distinguishable from it. There are , aariat , sadaqa, wakf, hiba-bil-nawaz, and hiba-ba-shart-ul-nawaz.

According to Ameer Ali, “A hiba is a voluntary gift without consideration of property or the substance
of thing by one person to another so as to constitute the done the proprietor of the subject-matter of the
gift.” Muslim law allows a Muslim to give away his entire property by a gift inter-vivos, even with the
specific object of disinheriting his heirs [Abdul vs. Ahmed, (1881) 8 IA 25]

Essentials of a Hiba :-

According to Ameer Ali, a hiba will be valid if the following conditions are fulfilled:-

1. The manifestation of the wish to give on the part of the donor,

2. Acceptance of the gift, express or implied, by the done, and

3. Taking of possession of the subject-matter of the gift by the donee, either actually or
constructively.[Jamela vs. Abdul Rahman, 2001 Guj. 175]

Capacity to make a Hiba :-

Mental capacity :-Every Muslim, male or female, married or unmarried, who has attained the age of
majority and who is of sound mind has the mental capacity to make a gift. The rule of Muslim law of
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majority, i.e. attainment of puberty, does not apply to gifts. A person of unsound mind can make a valid
gift during lucid intervals. The Muslim law-givers recognize the Doctrine of Ikrash or compulsion,
and a gift-deed executed under compulsion is not valid. In such a case the gift is voidable, and it can be
avoided by the donor whose consent was so obtained.

FINANCIAL CAPACITY :-The Malikis hold the view that a person under insolvent circumstances or
extremely involved circumstances have no capacity to make a gift. On the other hand, the Hanafis hold
the view that insolvency does not create an incapacity to make a gift, but the kazi has the power to
render such gift nugatory if it is made with a view to defrauding the creditors. The Indians court follow
the Hanafi view. In every gift, there must be a bona fide intention on the part of the donor to transfer
property to the donee. And, if a gift is made with an intention to defraud the creditors, the gift I invalid.
[Abdul vs. Mir Md, (1886) 11 IA 10]

SUBJECT-MATTER OF GIFT:-

All forms of property over which dominion could be exercised, or anything which could be taken into
possession, or which could exist as a specific entity, or as an enforceable right, maybe the subject-
matter of a valid gift. Muslim law, in this context, makes no distinction between ancestral or self-
acquired or between movable and immovable property.

Gift of Musha :-

The word “musha” means an undivided share or part of a property, movable or immovable. Among the
Shafis and Ithana Asharis, the gift of musha is valid, if the donor withdraws his dominion and allows
the donee to exercise control.[Sadiq vs. Hashim, (1916) 43 IA 212]

But the rule is otherwise among the Hanafis. The general rule is thus laid down in the Hedaya, “A gift
of a part of a thing which is capable of a division is not valid unless the said part is divided off and
separated from the property of the donor, but a gift of an indivisible thing is valid.”

The doctrine of musha has been subject to much criticism. It has been said that the doctrine is “wholly
unadapted to a progressive society”.[Sheikh Md. vs. Zabeda, (1889) 16 IA 205]The doctrine has been
confined to within the strictest rules by judicial interpretation and has been cut-down considerably.

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 THE DONEE :-

Under the Muslim law, a gift may be made to any person without any distinction of age, sex or religion.
Under the Hanafi law, the donee must be must be legally in existence at the time of hiba. Thus, a gift to
an unborn person, one not in existence, either actually or presumably, is invalid. Under the Shia law, a
gift to an unborn person can be validly made provided the gift commences with a person in
existence.when a gift is made to a minor or a person of unsound mind, the gift will be complete by the
delivery of possession to the guardian of the minor or of the person of sound mind.

Formalities: Delivery of Possession :-

Under Muslim law, a gift may be made orally or in writing, irrespective of the fact whether the property
is movable or immovable. [Ibrahim vs. Noor Ahmed, 1984 Guj. 126] The only formality that is
essential for the validity of a Muslim gift is “taking a possession of the subject-matter of gift by the
done either actually or constructively”. [Mohammed vs. Fakr, (1922) 49 IA 195]

Who can Challenge a Hiba or Gift :-

A stranger cannot challenge the validity of a gift on the ground that the gift is bad as no delivery of
possession has been made. A gift on this ground can be challenged only when the issue is raised
between the donor or those claiming under him on one side and the done and those claiming under him
on the other.

Conditional or Contingent Hiba or Gifts :-

The contingent or conditional gifts are those which are made dependent for their operation upon the
occurrence of a consistency. A contingency is a possibility, a chance, an event, which may or may not
happen. In Muslim law, contingent or conditional gifts are void.

In Muslim law, a gift is not rendered invalid, by involving an invalid condition. Hanafi law clearly lays
down that in such a case the gift is valid and the condition is valid.
Under Shia law, if the conditions attached to a gift is subsidiary, then both the gift and the condition are
valid.

Revocation of Gifts:-

Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a
well-established rule of Muslim law that all voluntary transactions, including gifts, are revocable.

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 Modes of Revocation:-

1.Revocation of gifts before the delivery of possession

2.Revocation of gifts after the delivery of possession

Revocation of gifts before the delivery of possession :-

Under Muslim law, all gifts are revocable before the delivery of possession is given to the done. The
fact of the matter is that under Muslim law no gift is complete till the delivery of possession is made,
and therefore, in all those cases where possession has not been transferred, the gift is incomplete. The
revocation of such a gift, therefore, merely means that the donor has changed his mind and does not
want to complete it by the delivery of possession.
Revocation of gifts after the delivery of possession :-

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient
to revoke a gift. Until a decree of the court is passed revoking the gift, the donee is entitled to use the
property in any manner, he can also alienate it.
The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his
heirs after his death. A gift can also not be revoked after the death of the donee. (There are some
exceptions in Hanafi School)

MARZ-UL-MAUT :-

The death-bed gifts are recognized in many systems of law, though to what extent and in what
circumstances such gifts can be made, the laws differ. Marz-ul-maut gifts of Muslim law derive their
rules from two branches of Muslim law, the law of gifts and the law of wills.

The different schools of Muslim law take divergent views on the marz-ul-maut gifts. The Malikis take
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the view that the marz-ul-maut gifts are void. The Hanafis and the Shia hold that such gifts to the extent
of one-third are valid.

Marz-ul-maut:-

A gift to be valid as marz-ul-maut gift must be made during marz-ul-maut, or death-illness. The most
valid definition of marz-ul-maut is that a malady which, it is highly probable, will issue fatally. A gift
must be deemed to be made during marz-ul-maut, if it was made “under pressure of the sense of the
imminence of death.

But where the malady is of long duration, such as consumption or albuninuria, and there is no
apprehension of death, the malady cannot be called marz-ul-maut. The Muslim law-givers hold the
view that if a disease continues for a period of more than one year then it cannot be called marz-ul-
maut, because, as the Durr-ul-Mukhtar puts it, when a person suffers from a malady which is ordinarily
mortal for over a year, it ceases to have any apprehensive influence on his mind as it has become part
of his nature.

However, even then the disease may become marz-ul-maut if it reaches a stage where the apprehension
of death is genuine or death is highly probable. When a person is in imminent fear of death whether
from disease or any other cause, so that in case of an illness the man is so broken by it as to be
incapable from conducting his ordinary avocations outside his house; for example, a fakih (jurist) from
going to the mosque, a tradesman to his shop, a woman from attending to her indoor occupation, it is
marz-ul-maut.

It is now established that in order to constitute a marz-ul-maut gift, the following conditions must be
satisfied:-
(i) The malady or illness must result in death,
(ii) The malady or illness must cause a reasonable or genuine apprehension of death in the mind of the
sufferer,
(iii) There should be some external indicia of a serious illness or malady, and
(iv) Delivery of possession must be given to the donee.

Acknowledgement of Debts:-

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Like Hindus, Muslims also emphasise the moral and legal obligation of a man to pay his debts.
According to a tradition, when the heir of a deceased Muslim was brought to the Prophet and on his
coming to know that the deceased had died in debt, he refused to conduct the funeral service, until
someone undertook to pay the debt of the deceased.

Under Muslim law, a person may acknowledge his liability or debt whether in health or ailing. The
Muslim authorities take the view that a declaration or admission of liability by a Muslim is binding not
only on the person, who makes the declaration or admission, but also on his heirs.
When the only proof of a debt or liability of the deceased is the death-bed acknowledgement of it, then
the Muslim law-givers rank it, in respect of priority, midway between other debts and legacies.

This means that other debts have priority over the death-bed acknowledgement. Such debts have
priority over legacies. Under a Hanafi law, a marz-ul-maut acknowledgement of debt or liability in
favour of an heir is no proof of debt or liability at all, and no effect can be given to it. Under the Ithana
Ashari law, such an acknowledgement is valid.

In death-illness acknowledgement of debts and liability, the danger of fictitious acknowledgements is

great and a duty is cast on the court that such acknowledgements should not become an engine of fraud
and fraudulent preference.

A divorce pronounced by person, who is suffering from a mortal malady, cannot deprive the wife of her
right of inheritance.

References:-
1. Aqil Ahmad, Mohammedan Law, 23rd Edition

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2. Dr. Paras Diwan, Muslim law in Modern India, 12th Edition

3. M. Hidayatullah, Mulla Principle of Mohammedan Law, 19th Edition

4. SCC Online

5. Supreme Court Words and Phrases, 3rd Edition, Eastern Book Company

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