A wife can testify for hiba in favor of a husband
yasmin parbatani
(Querist) 08 December 2014
This query is : Resolved
My mother in law owned a flat in Andheri west Mumbai in a co-operative housing society, my brother in law was nominated for the property. After my mother in law’s death, the shares in the society were transferred on his name as a nominated person. Instead passing the property on legal heir’s name he registered the property on his own name. After three years when the legal heirs claim for the property in a court, he put forward a claim for Hiba ( an oral gift in Muslim as we are Muslim)
Moreover one person whom he claims to be a witness is dead, the second witness is the wife of the said dead witness and the third witness is his own wife
My questions are
(1) If the shares of a flat in co-operative society in Mumbai are transferred on the name of a nominated person after owner’s death is the hiba valid?.
(2) A person who is dead and can’t be interrogate; will the court accept his wife’s testimony for him?
(3) Can a wife who is a beneficiary person testify in favor of her husband for a hiba (oral gift)?
There isn't any written document or a simple written paper stating that the Property was gifted to him as hiba by my mother in law.
Please reply me in detail.
Thanking you
Y. A. Parbatani.
ajay sethi
(Expert) 09 December 2014
nominee is only trustee for legal heirs . it has to be proved that oral gift was made by mother in law to the satisfaction of court by examining witnesses who were present at that time
P. Venu
(Expert) 09 December 2014
A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz). The word Hiba literally means the donation of a thing from which the donee may derive a benefit. The transfer must be' immediate and complete (tamlik-ul-'ain) for the most essential ingredient of Hiba is the declaration "I have given". Since Muhammadan Law views the law of gifts as a part of the law of contract there must be a tender (ijab) and an acceptance (qabul) and delivery of possession (qabza). There is, however, no consideration and this fact coupled with the necessity to transfer possession immediately distinguishes gifts from sales.
Such being the situation, I feel, the crucial issue would be whether the other legal heirs were in the know of this transfer. The delivery and acceptance, if it had really taken place, would not could not have remained unknown to the siblings.
yasmin parbatani
(Querist) 09 December 2014
Dear sir, thanks for reply.the legal heir were never informed about the said gift, transfer of the flat had not taken place during my mother in law's life time.the share in the society were transferred on my brother in law's name four months after my mother in laws death as a nominated person.
T. Kalaiselvan, Advocate
(Expert) 11 December 2014
As per the Mohamedan Law, a HIBA or gift is governed by three essential conditions, which are:
1) Declaration of gift by the donor; 2)Acceptance of gift by the donee; and
3)Delivery of possession of the property by the donor to the donee, either actually or even constructively.
Regarding formalities, writing is not necessary to complete a Mohamedan gift and formalities prescribed under transfer of property act are not essential. If there is no delivery of possession, he gift is invalid,even if it is registered.
Therefore, since the possession of property was not delivered under the alleged Hiba in your case, any amount of witnesses deposing evidence in his favor will not strengthen his case, so you can challenge his case accordingly.
