Hibanama, a concept deeply rooted in Muslim law, has been in existence since 600 A.D. While often associated with Muslims, it’s essential to dispel the myth that Hibanama is exclusive to a particular community.
Essentials of Hibanama:
- Declaration of Gift by the Donor:
- Donor must be a Muslim of competent age.
- Donor’s consent should be free, given without force or coercion.
- Donor must be of sound mind.
- Donor should have ownership of the property.
- Acceptance of Gift by the Donee:
- Donee can be of any religion or age.
- Gift can be made to an unborn child in the mother’s womb.
- Transfer of property is possible to a religious entity.
- Transfer of Possession:
- Delivery of possession is necessary unless specific cases apply.
- Delivery can be actual or constructive based on the nature of the property.
Types of Gifts:
- Hiba-il-iwaz:
- Gift for consideration given.
- Involves an exchange of gifts between the donor and donee.
- Hiba-ba-Shart-ul-Iwaz:
- Gift with a stipulation for return.
- Consideration is not paid voluntarily but is mandatory.
Revocation of Gift:
- Revocation before Delivery of Possession:
- Donor can revoke the gift before possession is transferred.
- Revocation after Delivery of Possession:
- Requires a decree from a competent court.
- Donee can use the property until a court order is obtained.
Instances Where Delivery of Possession is Not Necessary:
- Donor and Donee Living Together:
- Possession not necessary if both live together.
- Bona fide intention of the donor is crucial.
- Gift by Spouses to Each Other:
- No mandatory delivery of possession for immovable property.
- Gift of Property Already in Donee’s Possession:
- Declaration and acceptance suffice if the property is already with the donee.
Gift of Musha:
- Indivisible Musha:
- Valid gift for properties inherently indivisible.
- Divisible Musha:
- Irregular gift without partition, can be regularized post-partition.
Conclusion:
Hibanama, despite its historical roots in Muslim law, is not exclusive to Muslims. Understanding its essentials, types, and legal nuances is crucial for individuals across communities seeking consensual dispute resolution. As we explore the diverse legal traditions, Hibanama emerges as a testament to the universal principles of justice and equitable resolutions.
