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Hibah  Definition: • a gift devoid of consideration. • Technically, it is defined as a voluntary transfer of ownership of property without any consideration during the lifetime of donor. • Other terms used, sadaqah, hadiyyah, nihlah, ‘atiyyah also connotes the meaning of transfer of ownership without any consideration. Awang bin Abdul Rahman v Shamsuddin Bin Awang & Seorang lagi [1998] 6 MLJ 231 “Hibah ialah memberi milik sesuatu barang kepada seseorang yang mana barang itu sah untuk dijual atau diberi hutang, oleh ahli tabarru' dengan tidak adanya sebarang tukaran atau pembalasan.” • Sadaqah: gift intended for reward in the hereafter or given to the needy as devotion to God. • Hadiyyah: gift intended to honor someone, to show love, as token of friendship, or to reward. • Hibah, ‘Atiyah, Nihlah: if none of the above intentions apply.  Legitimacy of Hibah Quran: al Baqarah (2): 215 “They ask you, [O Muhammad], what they should spend. Say “whatever you spend of good is [to be] for parents and relatives and orphans and the needy and the traveller. And whatever you do of good- indeed, Allah is knowing of it”. Hadith; reported by Abu Hurairah and al Baihaqi “O Muslim women, do not belittle the gift send by a neighbour, even if it be a hoof of lamb” “Give gift to one another and you will love one another”  Legal Requirement for a Valid Hibah 1. Donor (Wahib) 2. Donee (Mawhub lahu) 3. Subject Matter (Mawhib) 4. The Contract 5. Taking Possession** (Qabd) – eg: indication of acceptance by taking over possession such as residing in the house of cultivating the land.

 Donor & Donee Donor Donee  Donor must possess the legal capacity to  Must be a person capable of holding do hibah property. However this condition is not  He must be a major, of sound mind, absolute as a gift made to a minor or an insane person with the appointment acting on his own free will, not subject of trustee to accept possession on behalf to interdiction and the owner of the of the done is valid. object of hibah  Hibah can be made in unlimited rate  Ownership and control over the and be given to anybody including nonproperty must be given to hibah Muslim so long the intention does not recipient. violate Islamic view  Jumhur: during marad al maut, the donor can give hibah up to 1/3 portion out of his property to a person, the rule of wassiyaah applies. The gift is not given to heir unless consented by other legal heirs. Interdiction- the action of prohibiting sth  Subject-matter  Everything that is permitted as a subject matter of sale is permitted for the purpose of hibah.  Once the wealth or the property has been declared as hibah, the owner cannot reclaim it anymore.  It must be: 1. Lawful (halal) goods or property and has value to according to Islamic value 2. The property or goods belong to the donor 3. The ownership of the goods is transferable and truly exist at the time of hibah. Hibah is void if made on non-existing goods such as giving an unborn calf or granting next year’s paddy yield when it has yet to bear fruits. 4. The property is not connected to the property of the donor which cannot be separated such as trees, plants and building excluding land.

 Contract of Hibah Offer (Sighah) Must be a declaration by the donor to give effect to hibah. Eg: Both donor & done fulfilling the requirements under Form 14A of NLC, constitute complete sighah Clear (sirah) offer: “I give these things to you” (Qinayah) offer: “I have given the entitlement to you” or “I have made this to become yours”

Acceptance (Qabul) It may be made expressly or by other inferences that indicate the acceptance such as residing in the house or cultivating the land given “I accept.” Or “I am willing” Harun Bin Muda v Mandak Bte Mamat [1999] 13 JH 63

Harun Bin Muda v Mandak Bte Mamat [1999] 13 JH 63 Terengganu Syariah Court opined that Hibah had taken place even the qabul happened through actions in which after hijab the property has been developed, or worked on, or benefitted by the defendant. Salmiah Bt Che Mat v Zakaria Bin Hashim [2001] XIV JH Hibah was invalid even though a qabul to ijab (offer) had already been done via actions. Issue: whether the procedure abided the rules of hibah? Held: Yes. However, for the rule of sighah, the court found that there was only ijab (offer) form Che Mat but no qabul from the defendant either in writing or verbal. **The court did not recognise the defendant’s usage and development on the land by building a house as qabul as it was undertaken prior the hibah giver gave permission [Syafie/Hambali: condition: takings the property with the consent of the hibah provider] Eshah Binti Abdullah & 5 Others v Che Aminah Bt Abdul Razak & 2 Others [2004] XVIII (1) 47 Whether or not qabul had been clearly stipulated or sufficient by other qarinah [fact leads to a leading evidence] to prove that there was an acceptance? Hibah provider died and there was no withdrawal of hibah witnessed by other people. The issue is on the building in dispute still bore the name of the deceased. Terengganu Syariah Appeal Court: the court validated the acceptance qarinah from the receiver, where all hibah receiver declared they received the tenancy of the disputed building even when the deceased was still alive.

“Assuming that if the gift was changed to the names of recipients, probably the case need not be brought to court, because everything was clear and stated in the document”. Awang bin Abdul Rahman v Shamsuddin Bin Awang & Seorang lagi [1998] 6 MLJ 231 F: The plaintiff claimed that the disputed land was the jointly acquired property belonging to his deceased mother and the deceased stepfather. The father had divided the land into 2 parts without any consideration after the death of the wife. Hence the court intervened by suggesting that there existed elements of hibah. The claim of harta sepencarian by the son on behalf of the mother failed as during the lifetime of the mother, she never claimed for the property. Therefore, the plaintiff is not entitled to claim. The court then proceeded to determine the condition for the donee. According to the plaintiff, the donee was his mother. The donee must be a person who must has the capacity to hold the property, but the mother has died for almost a month at the time of the gift. The mother had no capacity to hold the land, hence the hibah was not valid. If the donee was the plaintiff himself, the issue was whether the plaintiff had taken possession over the land once he accepted the gift. The acceptance may be impliedly made by doing some improvement over the land such as cultivating or building a house on the land. however, there was no such thing done by the plaintiff. Hence, the hibah was not effective.  Taking Possession of Hibah (Qabd)  Even if there is an offer and acceptance, hibah will not be effective unless the delivery /taking of the possession take place (because it is a gratuitous contract [‘aqd tabarry’]).  It is of important to the effect when jurist agreed “when there is no possession , there is no hibah”.  Taking possession is different from acceptance. Acceptance may not necessarily amount to taking possession, but the act of taking possession amount to an acceptance.  Hibah may be withdrawn after being formally accepted so long the actual possession has not taken place. Without the delivery of possession, upon donor’s death, the property will pass to the donor’s heir.

 Hence, offer, acceptance and taking possession must take place to effect a hibah.  Eg: The donee stays and pays quit rent on the hibah house; when Memorandum of Transfers is executed, its qarinah ( fact which become a leading evidence) on the existence of hibah; Delivery of keys; Management of hibah property; Possession of a bank account and Issue Document Title (IDT).  Tengku Haji Jaafar Ibni Almarhum Tengku Muda Ali & Anor v The Government of Pahang [1987] 2 MLJ 74 The requirement for possession was stated as follows: “As regards gift of land, whether it be to a Muslim or to non-Muslim the gift will bot be valid unless the done take possession of the gift of land at the time the gift is made. In other words, a gift will transfer the ownership of the subject matter of the gift to the done upon the latter taking possession of it”....