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A Hiba is defined as the transfer of the possession of
property, movable and immovable, from one person to the other
willingly and without any reward. The one who makes this
transfer is known as donor (Wahib), and the thing transferred
is known as Mauhubah, and the one who is donated is known as
Mauhub lahu (donee). The other words used in the language of
the Shar'i'ah are Nihla or 'Atiyya.
The act of Hiba is not complete unless the donor surrenders
the possession of the thing donated. Moreover, the declaration
of donation should be in clear terms without any ambiguity
(around them). This act of donation is based on the following
hadith of the Holy Prophet (may peace be upon him):" Give
presents to one another for this would increase your mutual
love." This not only implies the legality of gifts, but
the exhortation to give these to one another. There is perfect
agreement amongst all the jurists that Hiba is valid in Islam.
The act of donation can be made verbally or in writing by
any person capable of making a contract. A gift by a person
involved in debt is invalid, and gift in death illness cannot
take effect beyond one-third of the assets of the deceased
after defraying all necessary expenses. The donation can be
made to a living person and not to one who is dead.
The Shari'ah imposes certain restrictions on the property
which is to be donated. In the first place, the property must
be in existence at the time when the gift is given; hence the
gift of oil in the sesame or of butter in the milk would not
be valid. The property once given as a gift cannot be revoked
except in some extraordinary circumstances. The father is
entitled to get back the donation given by him from his
children if be finds it contrary to the laws and spirit of the
Shari'ah. The right to revoke a gift is called Raj'. This act
of revocation can be done with the decree of a competent
court.
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