HIBA UNWRAPPED: MUSLIM LAW GIFTS, TPA EXCLUSIONS, AND  INDIA’S UNIFORM CIVIL CODE DEBATE

ABSTRACT

According to Muslim law, Hiba, or gift, is a age old custom regulated by Islamic personal law and  ancient traditions that promote kindness and generosity. In contrast to statutory gifts governed by the Transfer of Property Act, 1882 (TPA), Hiba is governed by special laws that place more  emphasis on the donee’s acceptance, the donor’s intention, and the transfer of possession than on  official written registration. Section 129 of the TPA specifically excludes Muslim gifts from the  Act’s ambit, respecting religious freedom. However, the current debate about implementation of  Uniform Civil Code (UCC) raises doubts about whether extending the TPA’s rigid formalities to  Hiba would boost legal uniformity or weaken the basic principles of Muslim personal law. This  article examines Hiba’s fundamental basis, its legal exemption under TPA 1882, and the potential  consequences of bringing personal laws under the statutory uniformity of UCC, concluding with  proposals to combine legal certainty with the upholding of faith-based practices.

KEYWORDS

Hiba, Transfer of Property Act, 1882 (TPA), Islamic personal law, Uniform Civil Code (UCC),  Donor, Donee

INTRODUCTION

In Islamic law, the idea of Hiba is much more than just a transfer of property; it is a representation  of kindness, love, and moral obligation. The term “Hiba,” which comes from the Arabic word  meaning “gift,” describes the instantaneous, voluntary, and unconditional transfer of property  ownership from the donor to the donee without payment. It illustrates how Islamic jurisprudence  emphasizes deeds of kindness and social welfare.

According to Mulla, “Gift is a transfer of property, made immediately, and without any exchange,  by one person to the other and accepted by or on behalf of the latter.²

Inter Vivos Transfer: Hiba

There are two ways to dispose of property under Muslim law: testamentary dispositions (after  death) and inter vivos transfers (during lifetime). While testamentary dispositions through wills  are limited to one-third of the estate in favor of non-heirs without the heirs’ consent, hiba comes  under the inter vivos transfer category and permits a Muslim to transfer their whole property during  their lifetime.

Types of Hiba under Mohammedan Law

• Hiba bil iwaz: a gift with consideration, similar to that of exchange.
• Hiba ba shart ul iwaz: a gift with a return policy.
• Sadaqah: is a charitable donation made for religious reasons.
• Ariyat: an unsecured loan given without charge.

From establishing welfare security within families to satisfying the religious obligation of  charitable giving (sadaqah), these categories demonstrate the conceptual richness of hiba and its  function in achieving familial, social, and religious goals.³

Regulations under the Transfer of Property Act, 1882

Gifts are governed by Sections 122 to 129 of the Transfer of Property Act, 1882 (TPA), which is part of India’s general property law framework. A voluntary transfer of existing moveable or  immovable property performed without payment is referred to as a gift under Section 122:

A registered document confirmed by two witnesses and signed by the donor is required for gifts of. It is possible to give movable property as a gift via recorded instrument or by delivery.

However, Section 129 TPA expressly excludes Muslim gifts, stating:

“Nothing in this chapter shall be deemed to affect any rule of Mohammedan law”.⁴

Hiba’s Historical and Socio-Religious Importance

In accordance with the Islamic concept of social justice, hiba has historically been essential in  spreading wealth, fulfilling religious duties, and ensuring family welfare. However, because it is  exempt from statutory formalities, it has also been exploited to evade inheritance laws and cause  problems, particularly in cases where oral gifts are not supported by evidence. These problems  draw attention to the conflict between traditional thinking and modern legal frameworks.

The Uniform Civil Code: Meaning and Mandate

The Uniform Civil Code (UCC) is a mandate under Article 44 of the Directive Principles of State  Policy (DPSP) of the Indian Constitution, which envisions the harmonization of personal laws into  a single code applicable to all citizens irrespective of religion. As Dr. Purnima Khanna explains, the basic purpose of UCC is to bring uniformity in personal laws and ensure national integration  and equality before law.⁵

Alladi Krishnaswami Iyer, a member of the Constituent Assembly, had remarked:

“The replacement of diverse personal laws by a Uniform Civil Code is necessary to preserve unity  and remove dangers threatening national consolidation. ⁶

UCC and Its Potential Impact on Hiba

If UCC were to be implemented, the provisions of the Transfer of Property Act, 1882 would  become uniformly applicable across communities, including Muslims. This means that Hiba,  currently exempt from TPA formalities under Section 129, would now be subject to written,  registered deeds and statutory requirements, potentially altering its doctrinal essentials and  affecting its spiritual and religious significance. Furthermore, UCC would also impact Hindu  personal laws, such as the Hindu Succession Act, by standardizing succession and property transfer  frameworks across religions, thus reshaping India’s legal landscape.⁷

RESEARCH METHODOLOGY

This study used a qualitative, doctrinal, and analytical research methodology. All of the secondary  data used in this study came from books on Muslim law, academic journals, scholarly articles,  online legal commentaries, and court rulings interpreting Hiba in accordance with Muslim law and  the Transfer of Property Act of 1882. To determine the fundamentals of Hiba, the justification for  the legislative exclusion of Muslim contributions from the TPA, and the possible implications in  the event that India adopts a Uniform Civil Code, both conceptual and focus analyses have been  used. In order to determine whether applying TPA provisions to Muslim gifts would harmonize  personal laws with constitutional principles or compromise religious freedom, the study critically  examines doctrinal interpretations, statutory frameworks, judicial precedents, and policy  discussions. Since the study is interpretive and relies on legal analysis within the scope of existing  literature and judicial developments, no primary data gathering, field surveys, or statistical tools  have been used.

REVIEW OF LITERATURE

A doctrinal and statutory analysis of Hiba can be found in Swapnil Pattanayak’s comparative study,  “Provisions of Gift under Islamic Personal Laws and the Transfer of Property Act, 1882.” The  author highlights the fundamentals of Hiba, including its declaration, acceptance, and delivery of  possession, and emphasizes that it is fully governed by Muslim personal law. The report  emphasizes how Hiba differs from TPA’s general gift regulations, which require formal documents  and registration for transfers of immovable property. While the Hiba’s exemption under Section  129 protects religious autonomy, Pattanayak concludes that its non-registration frequently results  in evidentiary conflicts and abuse in inheritance proceedings.⁸

A thorough doctrinal basis for Hiba can be found in Renaissance Law College’s lecture notes on  Muslim law. They talk about its socio-religious significance, historical roots, and forms like  sadaqah and Hiba bil iwaz. The notes clarify that Hiba is a moral duty that promotes charity and  welfare in addition to being a legal transfer. The content also clarifies that Section 129 TPA excludes Hiba from statutory gift requirements, recognizing its governance under Islamic  jurisprudence.⁹

Sections 122–129 of the Transfer of Property Act, 1882, which could be accessed through the India  Code, codify general gift requirements. In an effort to provide legal clarity and lessen property  disputes, it requires registration and attestation for gifts of immovable property. Nonetheless,  Section 129 clearly prohibits Muslim gifts, upholding the theological foundation of Hiba and  recognizing the independence of personal law.¹⁰

Dr. Purnima Khanna addresses the Uniform Civil Code (UCC) as envisioned by Article 44 of the  Constitution in her work on Hindu law. In order to promote legal uniformity and national unity,  she says the UCC seeks to harmonize many personal laws into a single civil framework. “The  replacement of distinct personal laws by a Uniform Civil Code is important to sustain unity and  remove risks threatening national consolidation,” according to Alladi Krishnaswami Iyer, which  Dr. Khanna mentions. Understanding the ramifications for Muslim personal law, including hiba,  should TPA clauses become universally applicable under UCC changes requires this viewpoint. ¹¹

CRITICISM

In contemporary legal systems, Hiba is not without its practical criticisms, despite its religious  reverence as an act of benevolence, charity, and devotion that reflects the moral foundation of  Islamic law. Serious evidential disputes frequently result from the absence of official  documentation or registration, particularly in the case of oral Hiba. The authenticity of such  donations may be challenged by disinherited heirs, and in the lack of official documentation, courts  are then forced to look into the donor’s intention, the existence of delivery of possession, and  acceptance all of which might be manipulated or concealed.

Its possible abuse to get around Islamic inheritance laws is another criticism. The Quranic ideals  of equal distribution and the spirit of justice inherent in Islamic law may be undermined if donors  employ Hiba to unduly favor one successor, typically male heirs. Because women are frequently  denied their rightful shares through calculated, unregistered, and uncontested Hiba declarations, this practice also raises concerns regarding gender inequality.

In addition, scholars point out that although Section 129 TPA protects religious autonomy, it  establishes a parallel system with inconsistent registration and title certainty requirements, which  may encourage fraudulent transfers and work contrary to India’s objective of maintaining freely  accessible land and property records.

AUTHOR’S OPINION

The author acknowledges that Hiba, as an institution, embodies compassion, charity, and religious  duty, integral to the socio-religious ethos of Muslim communities. However, in today’s complex  and evolving legal context, its lack of evidentiary certainty poses serious challenges. Oral Hiba,  despite fulfilling doctrinal essentials, often fails to establish clear title in property disputes, leading  to prolonged litigation and familial discord. Thus, some statutory safeguards are necessary to  preserve both doctrinal purity and legal certainty.

With respect to the Uniform Civil Code (UCC), it is undeniable that a uniform framework is  envisioned under Article 44 DPSP to promote national integration and legal equality. However,  the author believes that UCC, before its implementation, must confer meaningfully with the beliefs  and practices of both Hindu and Muslim personal laws. A purely statutory approach ignoring  religious sentiments will only create resistance and alienation.

UCC should not aim to supersede personal laws entirely but should integrate the positive aspects  of religious doctrines with modern statutory safeguards, creating a framework that promotes uniformity, equality, and brotherhood without violating the fundamental right to religious  freedom under Articles 25 and 26. It must be remembered that India, as a diverse nation, should  implement Article 44 in a way that respects and benefits religious communities, ensuring their  practices align with constitutional values of dignity, equality, and social justice.

At the same time, the author asserts that if any existing personal law is fundamentally against  societal welfare, promotes injustice, or obstructs national unity, such provisions should be subject  to immediate reform. The ultimate goal of UCC should be to create a harmonious legal ecosystem that nurtures diversity while fostering unity and a sense of constitutional brotherhood among  India’s multifaceted religious communities.¹²

SUGGESTIONS

• Uniform Civil Code (UCC) Balanced Implementation: The UCC should be applied in a way that integrates the required procedural protections while maintaining the beneficial and useful elements of Hiba. Hiba’s fundamental nature as an instantaneous, gratuitous  transfer based on religious obligation and charity cannot be replaced by the need to enforce  uniformity.
• Mandatory Registration for High-Value Hiba: To reduce disputes and ensure legal certainty, the government should consider making registration mandatory for high-value immovable Hiba transfers, while keeping small value or intra-family gifts exempt to  preserve religious practices and avoid procedural burdens on marginalized communities.
• Codification of Hiba under Muslim Personal Law: Muslim personal law on Hiba should be codified clearly through parliamentary legislation or community-endorsed codification, defining essentials, evidentiary requirements, and permissible limits in line with both  Islamic jurisprudence and constitutional equality.

Community Consultations Prior to UCC Implementation: In order to ensure that  reforms uphold religious freedoms under Articles 25 and 26 and achieve national  integration under Article 44 DPSP, the State must hold comprehensive consultations with  religious scholars, jurists, and community representatives prior to implementing UCC.

• Legal Awareness Initiatives: Governments and NGOs should undertake legal literacy programs to educate the Muslim community about the legal implications, evidentiary requirements, and social responsibilities relating to Hiba, to prevent its misuse and ensure  informed consent.

CONCLUSION

Within Muslim personal law, Hiba is still a unique as well as spiritually rich system that permits  an immediate, unconditional transfer of ownership based on kindness, love, and spiritual merit. Its  religious autonomy is maintained by its absence from the Transfer of Property Act, 1882 under  Section 129, which guarantees that the Islamic requirements of declaration, acceptance, and  delivery of possession continue to be legitimate without the need for formalities. Modern issues,  however, show that a lack of official documentation frequently results in disagreements, abuse to  get around inheritance laws, and gender inequality, calling for changes to bring religious traditions  into line with the constitutional values of equality, justice, and social welfare. Article 44 of the  Constitution envisions the establishment of a Uniform Civil Code to harmonize personal laws for  gender justice and national integration. However, it needs to be handled delicately.

It can be concluded that in order to maintain legal certainty, defend women’s rights, and foster  national unity, UCC should incorporate the positive aspects of Hiba with statutory safeguards  rather than overriding its doctrinal and spiritual core. In order to meet the constitutional ideal of  “unity in diversity” with dignity, equality, and brotherhood for all communities in India, such  reforms must uphold religious freedoms while promoting social justice.

REFERENCES

1. Swapnil Pattanayak, Provisions of Gift under Islamic Personal Laws and the Transfer of Property Act, 1882 – A Comparative Study, Amity University Raipur, IJLMH, available at https://www.ijlmh.com/wp-content/uploads/2019/03/Provisions-of-gift-under-Islamic Personal-Laws-and-the-Transfer-of-Property-Act-1882-A-Comparative-Study.pdf.
2. Muslim Law, Renaissance Law College lecture notes (2016), available at https://renaissancelawcollege.com/wp-content/uploads/2016/02/Muslim-Law.pdf. 3. Dr. Purnima Khanna, Hindu Law (Chapter 23: Uniform Civil Code), University Book House (Pvt.) Ltd.
3. Transfer of Property Act, 1882, §§ 122–129, No. 4, Acts of Parliament, 1882 (India), available at https://www.indiacode.nic.in/bitstream/123456789/2338/1/A1882-04.pdf.

¹ Author is a student at Khalsa College of Law, Amritsar.

²Swapnil Pattanayak, Provisions of Gift under Islamic Personal Laws and the Transfer of Property Act, 1882 – A  Comparative Study, Amity University Raipur, IJLMH, https://www.ijlmh.com/wp content/uploads/2019/03/Provisions-of-gift-under-Islamic-Personal-Laws-and-the-Transfer-of-Property-Act-1882- A-Comparative-Study.pdf.

³ Muslim Law, Renaissance Law College lecture notes (2016), https://renaissancelawcollege.com/wp content/uploads/2016/02/Muslim-Law.pdf.

⁴ Transfer of Property Act, 1882, §§ 122–129, No. 4, Acts of Parliament, 1882 (India), https://www.indiacode.nic.in/bitstream/123456789/2338/1/A1882-04.pdf.

⁵ Dr. Purnima Khanna, Hindu Law, Chapter 23: Uniform Civil Code.

⁶Id. at 240.

⁷ Khanna, supra note 5, at 240.

⁸Supra, note 2.

⁹Supra, note 3.

¹⁰ Supra, note 4.

¹¹ Supra, note 5.

¹² Author’s analysis