Definition and Concept:
Hiba-shart-ul-Iwaz is a special form of gift under Muslim law where the donor makes a gift (hiba) with an express or implied condition (shart) that the donee will give something in return (iwaz). The word “Hiba” means a voluntary gift, and “shart-ul-iwaz” means “with a condition of return.” This type of transfer begins as a gift but becomes a bilateral transaction once the donee fulfills the condition by returning the agreed consideration. It is a recognized concept under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which governs property transfers and inheritance among Muslims in India. This form of gift reflects fairness and reciprocity, aligning Islamic law principles with equity and mutual respect in property dealings.
Legal Nature and Requirements:
A Hiba-shart-ul-Iwaz differs from a simple gift because it involves an exchange element, but it is not a sale. For a valid Hiba-shart-ul-Iwaz, three essentials must exist: (1) a clear declaration of gift by the donor, (2) acceptance by the donee, and (3) delivery of possession. Additionally, there must be a condition (shart) that the donee will give something in return, and later the donee must fulfill this by giving the iwaz (return consideration). Once the iwaz is delivered, the transaction attains the character of an irrevocable exchange. Courts in India recognize this under Muslim personal law as a distinct category of transaction, blending gift and exchange, thereby protecting both parties’ interests within the limits of Sharia.
Importance and Legal Effect:
The importance of Hiba-shart-ul-Iwaz lies in its dual nature—it begins as a gift but concludes as an exchange, ensuring balance and fairness in property transfer. Unlike a simple Hiba, once iwaz is paid, the donor cannot revoke the gift. The principle prevents misuse of generosity and ensures reciprocal benefit. Indian courts, while applying Muslim Personal Law (Shariat) Application Act, 1937, have upheld the legality of such transactions when properly executed. This form of gift is particularly significant in family settlements and marital property transfers, where emotional and financial considerations coexist. Thus, it reinforces Islamic ideals of justice, fairness, and mutual respect in dealings involving wealth and goodwill.
Real-Time Example:
In Humera Bibi v. Najm-un-nisa (1913 ILR 35 All 196), the donor made a gift of certain property to a relative on the condition that she would transfer another piece of land in return. The donee later fulfilled the condition, and the court held the transaction to be a valid Hiba-shart-ul-Iwaz, as both the gift and reciprocal transfer were completed with free consent and delivery of possession. The case clarified that such a transaction is not a sale under the Transfer of Property Act but a recognized form of gift with consideration under Muslim law. This judgment remains a leading precedent for the interpretation of Hiba-shart-ul-Iwaz in India.
Mnemonic to Remember:
“HIBA = Have In Balance Always”
- H – Have → Gift made voluntarily
- I – In → In return, there is a condition (iwaz)
- B – Balance → Exchange ensures fairness
- A – Always → After iwaz, becomes irrevocable
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