Where the object of the donor is to acquire merit in the eyes of the Lord and a recompense in the next world, the gift is called Sadaquah. It is a gift with a religious motive. Like hiba, it is not valid unless accompanied by delivery of possession. Unlike hiba, it cannot be revoked, the reason being that the object of such a gift is acquisition of religious merit and that has already been acquired.
Sadaquah is a transfer of property or rights in all respects like a hiba, except that —
1. In the case of hiba, the object is to manifest affection towards the donee, or win his regard or esteem. In the case of sadaquah, the object is to acquire merit in the sight of the Lord and a recompense in the next world.
2. Unlike hiba, a sadaquah, once completed by delivery of possession, cannot be revoked, whether made to a rich or poor man.
3. Unlike hiba, sadaquah need not be expressly accepted.
Like hiba, sadaquah is not valid unless accompanied by delivery of possession; nor is it valid if it consists of an undivided share (mushaa) in property capable of division. It is not invalid if made to two or more persons, all of whom are poor.
Hiba-bil-iwaz is a gift for a consideration. It resembles a sale in that (a) transfer of title is complete without delivery of possession, and (b) all the incidents of sale attach to it, including —(i) the liability of being pre-empted, where the law of pre-emption is in force, and (ii) the right to return a thing for a defect.
To constitute a valid Hiba-bil-iwaz, the following two conditions must be present:
(a) Actual and bona fide payment of consideration (iwaz) on the part of the donee; and
(b) A bona fide intention on the part of the donor to divest himself in praesenti of the property, and to confer it upon the donee.
A hiba-bil-iwaz literally means a gift for an exchange. It is of two kinds, namely (i) the hibS-bil-IWa2 followed in India, and (ii) the true hiba-bil-iwaz, as defined by older jurists. The true hiba-bil-iwaz of older jurists consisted of two independent acts, namely, (a) hiba, or gift, and (b) iwaz or return gift, not stipulated at the time of the gift.
Thus, if A, without having stipulated for a return, makes a gift of his book to B, and Â in consideration of the book, without having promised it, subsequently makes a gift of a rupee to A, saying that it is iwaz or return for the gift of the book, and delivers the rupee to A, the transaction is a true hiba-bil-iwaz, and neither A nor Â can revoke it.
But in the hiba-bil-iwaz as practised in India, there is only one act, the iwaz or exchange being involved in the contract of gift as its direct consideration. Thus, in the illustration given above, if A says to Â “I have given this book to you in consideration of your paying me a rupee,” it is a hiba-bil-iwaz of India.
Thus, it is in reality a sale, while the true hiba-bil-iwaz is not a sale either in its inception or completion. In fact, the Calcutta and the Lahore High Courts have held that a transaction of this character is nothing but a sale, and that where it affects immovable property of the value of a hundred rupees and above, it must be effected by a registered instrument, as required by S. 54 of the Transfer of Property Act.
The hiba-bil-iwaz of India was introduced here by Muslim lawyers as a device for effecting a gift of mushaa in property capable of division.
(i) With cordial affection, Â render service to A, his Muslim friend, and showing him all favours of all sorts, treats him with kindness and affection. In consideration thereof, A conveys, by a registered deed, his house to B, but before Â is put in possession, a dies, and it goes in the possession of the heirs of A. Discuss whether Â will succeed in getting possession of the house on the strength of the conveyance.
This is a hiba (simple gift) only. It is not a hiba-bil-iwaz. There is no delivery. So, Â will not succeed in getting possession of the house on the strength of the conveyance alone. (Rahim Baksh v. Muhammad Hasan, (1881) I.L.R. 11 Ali. 1)
(ii) A Muslim dies, leaving two brothers and a daughter. Subsequently, each brother relinquishes his share in favour of the daughter in consideration of the other doing so. Is delivery of possession necessary to validate the transaction?
Delivery of possession is not necessary to validate the transaction, because it is a hiba-bil-iwaz, and not hiba, the relinquishment by one brother being the consideration for relinquishment by the other. (Ashidbai v. Abdulla, (1907) I.L.R. 32 Com. 271)
(iii) A Muslim executed a deed in favour of his wife, whereby he granted certain immovable property to her in lieu of her dower. Possession of property was not delivered to the wife. Is the transaction valid?
The transaction is valid. This is a case of hiba-bil-iwaz, and delivery of possession is not necessary to complete the transaction. (Muhammad Esuph v. Pattamsa Ammal, (1900) I.L.R. 23 Mad. 70)
(iv) A Muslim gifts certain property to his fiancee in consideration of her promise of marriage, and subject to the condition that debts due on the property be discharged by her. Is transaction valid?
Yes. It has been held in Ismail Beevi v. Sulaikkai Beevi, (1967) A.M. 250 that a gift in consideration of promise of marriage, and subject to the conditions that debts due on the property be discharged by the donee, is valid.
(v) A, a Sunni Muslim, who had agreed to marry Â on payment of Rs. 2,500 as Mahr, married her by making a gift of a house in lieu of Mahr. The entry in the register of the Kazi who performed the ceremony read as follows:
“The marriage was contracted by a gift of the house in lieu of ‘ Mahr of Rs. 2,500.”
B then came to live in the same house and mutation was effected in the name of Â in the Government records. After one year, Â went to reside with her parents. A then sold the house to Ñ and put him in its possession. Â then filed a suit against Ñ to recover possession of the house. Ñ contended that the gift was a hiba-bil-iwaz and as it was not registered, Â had no title. Will Â succeed?
No, Â will not succeed. In such a case, it has been held that the transaction was a simple hiba, and neither a sale nor a hiba- bil-iwaz. No writing is necessary for the validity of such a gift, but it would not be complete and valid without delivery of such possession as the subject of the gift is susceptible of. (Jaitunibi v. Fatrubhai, 1947 46 Bom. L.R. 669)
Where a gift is made with a stipulation (shart) for a return it is called hiba-ba-shart-ul-iwaz. As in the case of hiba, in the case of hiba- ba-shart-ul-iwaz also, delivery of possession is necessary, and the gift is revocable until the iwaz is paid. On payment of iwaz (consideration) by the donee, the gift becomes irrevocable. The transaction, when completed by payment of iwaz is, however, not very common in India.
An areeat is the grant of a licence, revocable at the grantor’s option, to take and enjoy the usufruct of a thing.
The four essentials of an areeat are that (i) can be revoked; (ii) it must be a transfer of ownership in the property; (iii) it must be for a definite period, and (iv) it does not devolve upon the heirs of the donee on his death.