• Heba nama

What is the process to revoke a hiba.
Asked 6 years ago in Property Law
Religion: Muslim

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12 Answers

Hiba  is irrevocable after it is accepted by donee. 

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

The hiba is an irrevocable deed. It is a gift deed.

Regards 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

- In Muslim Law, Gifts are called Hiba , and a Gift Deed is called Habanama.

- As per personal law , a valid Hibanama (agreement) is necessary and for valid hibanama should be registered.

- Property cannot be transferred by unregistered hibanama.

- if the Heba nama is unregistered then you should challenge its validity because it is invalid. 

-  Further , under Muslim law, no Heba is compelete , till the delivery of possession . Hence all gift i.e heba is revocable till the delivery of posession is given to the donee.

- For revoking a Heba , one should file a Suit for decleration before the court. Court has power to revoke the Heba.

- But a gift cannot be revoked after the death of donee.

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

If with the oral or written heba the donee has taken physical possession of the gifted property then without the consent of the donee the heba can not be revoked.

Only if with the execution of Hebanama the donee is not given the physical possession of the property then only the donot is authorised to cancel the gift.

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

Yes its revocable 

Revocation of gifts before the delivery of possession[xxxiv]:

Under Muslim law, all gifts are revocable before the delivery of possession is given to the donee. Thus, P makes a gift of his motor-car to Q by a gift deed. No delivery of possession has been made to Q. P revokes the gift.

The revocation is valid. In this case, it will not make any difference that the gift is made to a spouse, or to a person related to the donor within the degrees of prohibited relationship. The fact of the matter is that under Muslim law no gift is complete till the delivery of possession is made, and therefore, in all those cases where possession has not been transferred the gift is incomplete, and whether or not it is revoked, it will not be valid till the delivery of possession is made to the donee.

The revocation of such a gift, therefore, merely means that the donor has changed his mind and does not want to complete it by the delivery of possession. For the revocation of such gifts, no order of the court is necessary. Fyzee rightly says that this is a case of inchoate gift and it is not proper to apply the term revocation to such a gift.

 Revocation after the delivery of possession[xxxv]:

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is entitled to use the property in any manner; he can also alienate it.

It seems that:

  • all gifts after the delivery of possession can be revoked with the consent of the donee,
  • revocation can be made only by a decree of the court.

The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his heirs after his death. A gift can also not be revoked after the death of the donee.

According to the Hanafi School with the exception of the following cases, a gift can be revoked even after the death of the donee.

According to the Hanafi School, with the exception of the following cases, a gift can be revoked even after the delivery of possession. The exceptions to the same are[xxxvi]:

  • When a gift is made by one spouse to another.
  • When the donor and the donee are related within the prohibited degrees.
  • When the donee or the donor is dead.
  • When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he had disposed of it by sale, gift or otherwise or, where he had consumed it, or where it had been lost or destroyed.
  • When the value of the subject-matter has increased.
  • When the identity of the subject-matter of the gift has been completely lost, just as wheat, the subject-matter of gift, is converted into flour.
  • When the donor has received something in return (iwaz).
  • When the object of the gift is to receive the religious or spiritual benefit or merit, such as sadaqa.

The Shia law of revocation of gifts differs from the Sunni law in the following respects: First, gift can be revoked by a mere declaration on the part of the donor without any proceedings in a court of law; secondly, a gift made to a spouse is revocable; and thirdly, a gift to a relation, whether within the prohibited degrees or not, is revocable.

Prashant Nayak
Advocate, Mumbai
34515 Answers
249 Consultations

The Hedaya gives the reasons thus: “The object of a gift to a stranger is a return for it is custom to send presents to a person of high rank that he may protect the donor; to a person of inferior rank that the donor may obtain his services; and to person of equal rank that the donor may obtain an equivalent and such being the case it follows that the donor has the power of annulment, so long as the object of the deed is not answered, since a gift is capable of annulment”.

Their texts of Muslim law to lay down a long list of gifts which are irrevocable. The contents of the list differ from school to school, and the Shias and the Sunnis have the usual differences. The Muslim law-givers also classify gifts from the point of view of revocability under the following two heads:

(i) Revocation of gifts before the delivery of possession, and

(ii) Revocation of gifts after the delivery of possession.

 

So kindly tell whether the gift is delivered or not ?... I can answer you further accordingly 

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

you cannot revoke a hibanama unilaterally 

 

it can can be done only with consent of doneee as once gift deed is executed title passes on the donee 

Ajay Sethi
Advocate, Mumbai
99782 Answers
8145 Consultations

Dear Sir,

The following is the process to revoke a hiba

(i) Revocation of gifts before the delivery of possession:

Under Muslim law, all gifts are revocable before the delivery of possession is given to the donee. Thus, P makes a gift of his motor-car to Q by a gift deed. No delivery of possession has been made to Q. P revokes the gift.

The revocation is valid. In this case, it will not make any difference that the gift is made to a spouse, or to a person related to the donor within the degrees of prohibited relationship. The fact of the matter is that under Muslim law no gift is complete till the delivery of possession is made, and therefore, in all those cases where possession has not been transferred the gift is incomplete, and whether or not it is revoked, it will not be valid till the delivery of possession is made to the donee.

The revocation of such a gift, therefore, merely means that the donor has changed his mind and does not want to complete it by the delivery of possession. For the revocation of such gifts, no order of the court is necessary. Fyzee rightly says that this is a case of inchoate gift and it is not proper to apply the term revocation to such a gift.

(ii) Revocation after the delivery of possession:

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is entitled to use the property in any manner; he can also alienate it.

It seems that: (a) all gifts after the delivery of possession can be revoked with the consent of the donee, and that (b) otherwise (in those cases where gifts are revocable) revocation can be made only by a decree of the court.

The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his heirs after his death. A gift can also not be revoked after the death of the donee.

According to the Hanafi School with the exception of the following cases, a gift can be revoked even after the death of the donee.

According to the Hanafi School, with the exception of the following cases, a gift can be revoked even after the delivery of possession;

(i) When a gift is made by one spouse to another,

(ii) When the donor and the donee are related within the prohibited degrees,

(iii) When the donee or the donor is dead,

(iv) When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he had disposed it off by sale, gift or otherwise or, where he had consumed it, or where it had been lost or destroyed,

(v) When the value of the subject-matter has increased,

(vi) When the identity of the subject-matter of the gift has been completely lost, just as wheat, the subject-matter of gift, is converted into flour,

(vii) When the donor has received something in return (iwaz), and

(viii) When the object of gift is to receive religious or spiritual benefit or merit, such as sadaqa. The Shia law of revocation of gifts differs from the Sunni law in the following respects: First, gift can be revoked by a mere declaration on the part of the donor without any proceedings in a court of law; secondly, a gift made to a spouse is revocable; and thirdly, a gift to a relation, whether within the prohibited degrees or not, is revocable.

Netravathi Kalaskar
Advocate, Bengaluru
4951 Answers
27 Consultations

One have to file a suit in civil court for revocation of Hiba Nama. 

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

hiba requires 3 essentials for it to be complete, that is -

declaration of gift donor

acceptance of gift by donee

delivery of possession of subject matter of gift by donor to donee

the above procedure has to be done in front of 2 witnesses

if any one of the above essentials is missing then it means that the hiba is not complete and the donee cannot claim the gifted property

if the hiba is completed by following the 3 essentials then for revocation the donor has to file a civil suit against the donee

however it is to be noted that hiba once made is irrevocable unless it was conditional

thus if the condition of the hiba has been breached by the donee, then the donor can revoke the gift 

however the condition attached to the gift must not absolutely depend on the will of the donor for the condition to be valid 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

Is it registered ? as registration not require in Muslims ? at what age Heba was made ? it is conditional ?

Can be cancel before delivery of possession otherwise through order of court. 

Yogendra Singh Rajawat
Advocate, Jaipur
23081 Answers
31 Consultations

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is entitled to use the property in any manner; he can also alienate it.

Therefore  you may have to approach court for revocation of Hiba nama

T Kalaiselvan
Advocate, Vellore
89984 Answers
2492 Consultations

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