“The non- transferable but its benefit is used

“The Muhammadan Law distinguishes two kinds of gifts (properly so called) by the terms sadqah and hiba. Both are voluntary transfers of property without consideration; but whereas the use of the term sadqah indicates that the special motive for the gift is to acquire religious merit or ‘nearness to God,’ thepresumed motive of hiba is either to manifest affection towards, or to win the affection of an individual donee.”

As regards the nature of this transaction, except the motive behind the gift, there is no difference between hiba and sadqa. The essential requirements of a valid sadqa are the same as that of a Hiba i.e. there must be declaration, acceptance and the delivery of possession.

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Sadqa may be made in favour of rich or poor donee. Even if the sadqa is made to a rich donee with an object of getting religious merits, it is valid. Any property which may be the subject matter of a gift may also be the subject matter of a sadqa. The Hanafi doctrine of mushaa is applicable also to a sadqa. However a sadqa differs from hiba in the following respects:

(i) Express acceptance is not necessary; it may be implied and -inferred from the circumstances.

(ii) A sadqa is not invalid if made to two or more persons without specifying their shares and without dividing the property.

(iii) A sadqa is irrevocable; once made it cannot be revoked subsequently.

It may be noted that the object of waqf is also religious and charitable. But, there is a fundamental difference between a waqf and a sadqa. In a waqf the subject-matter is ‘tied up’ forever and only its usufruct is utilised.

That is to say, the property becomes non- transferable but its benefit is used for the religious or charitable purposes. On the other hand, when a sadqa is made, its religious object is achieved as soon as the property is transferred to the donee. Thereafter, the donee becomes the owner of the property and he may transfer the property as he likes.