Islamic Law of

Property
LAB2033
DR. ZULKIFLI HASAN

Content

Hibah
Conceptual Framework

The Practice of Hibah

Introduction

Hibah is the grant of property that occurs during

the life of a hibah provider.
Hibah is encouraged in Islam and in fact it can
prevent and resolve property disputes.
In Malaysia, there is no specific law on hibah.

Hibah, gift and Alms

as a form of a grant either in its physical form

(ain) or otherwise. It covers gifts and alms..
Alms are grants intended for reward in the
hereafter, and usually given by the rich to the
poor.
Gift is a contribution to honour someone and is
usually related to a specific matter.
All alms and gifts are hibah but not all hibahs
are alms and gifts.

Definition

a contract (akad) that entails granting ownership of a

property to someone else during his lifetime without
any reprisal (iwad).
a contract of granting the physical form (ain) of owned
property from one party to another party without
reprisal (iwad) during the persons lifetime on a
voluntary basis, not expecting a reward in the hereafter
and honouring a person, with the pronouncement of
ijab and qabul or the likes.

Characteristics of Hibah

1) An akad (contract) of granting property ownership to

a specific party.
2) The property that can be given as hibah is a physical
(ain) property and not debt or benefits/interests.
3) Hibah contract is made without imposing any
reprisal (iwad).
4) Hibah contract is in effect during the lifetime of the
hibah provider.
5) It is made voluntarily without coercion.
6) The contract is made with no intension to receive
reward or honour a particular person.

Hukm on Hibah

Hibah is a practice that is favourable (sunat) in

Islam especially to the immediate family..
But if they give up willingly to you anything of it, then
take it in satisfaction and ease. (Surah An-Nisa:
verse 4).
...and gives wealth, in spite of love for it, to relatives,
orphans, the needy, the traveller, those who ask [for
help], and for freeing slaves. (Surah Al-Baqarah:
verse 177).

Pillars of Hibah

1) Hibah Provider (al-Wahib)

A sound mind, has attained puberty (baligh) and obeys the

rules (rushd).
Must be the genuine owner of the items intended for hibah.

2) Hibah Recipient (al-Mawhub lahu)

Can be of anyone as long as he/she has the capability to own

property, either accountable (mukallaf) or non-accountable.
If the hibah recipient is not a mukallaf such as has not
reached puberty or disabled, the hibah is to be given to a
guardian (wali) or a trustee on his/her behalf.
The hibah recipient must receive the hibah property and has
the authority to hold on to the property.

Cont..

3) Goods or property for hibah (al-Mawhub)

It must be lawful (halal) goods or property.
It must have value.
The goods or property belong to the hibah provider.
The ownership is transferable.
It must truly exist during the time of the hibah.
Goods that are still in debt can be given as hibah if
consent can be obtained from the chargor or borrower.

Cont..

4) Sighah namely contract (ijab) and grant (qabul)

A pronouncement or an act which means giving and
receiving of hibah.
There are continuation and similarities between ijab and
qabul.
Not conditioned to a specific time period. A hibah
which is conditioned to a specific time period such as in
the case of al-umra and al-ruqba is legally binding but
the said condition is void.

Acceptance of Goods (al-Qabd) in Hibah

getting something and tasarruf can be done onto

the goods or property.
Hambali and Maliki: The receipt of goods is not
a condition in a hibah, but enough with the
solemnisation contract.

in the event of death of either one or one of the

parties of either the hibah provider or receiver
before the delivery of the goods, then the hibah is
considered as valid.

Cont

Abu Hanifah and Syafie:

Receipt of goods is one of the conditions to validate the

hibah.
In the event of death of either one of the two parties prior to
the delivery of the goods, then the hibah becomes null and
void.
a luzum condition:: not complete unless after the al-qabd..
If al-qabd does not take place then the hibah contract is not a
binding contract. Therefore, the hibah provider has the right
to withdraw the grant as long as the property is in his
possession.

Condition of al Qabd

1) Obtained permission and consent from the

hibah provider clearly (sarih).
2) The hibah property is not mixed with other
properties.
3) The hibah recipient has reached puberty and
healthy (sane). For children and the insane (nonrightful), then the guardian or trustee may accept
the hibah property on their behalf.

Modes of al Qabd

Immovable property: Al-qabd can occur by way

of vacating the property, taking control of the
property and doing tasarruf onto the property
such as handing over the keys and the likes.
Movable property: Al-qabd can happen by
taking the property, moving or separating the
property from other properties.

Types of Hibah

Unrestricted:

Unrestricted gift is given without any condition

attached to it

Restricted

a gift with certain conditions imposed on it

Restricted Hibah

1). Temporal gift or a lifetime-gift called umra. A temporal

condition imposed on the gift is normally stated as if the gift
was given for the duration of the recipients life, then it would
be returned to the donor or his heirs upon the recipients death
and if the gift was given for the duration of the donors life,
then it must be returned to the donors heirs upon his death.
The transfer of property from the donor to the donee is effected
but the temporal condition is voided.
2) Conditional gift (ruqba): the donor lays down that the gift
will belong to donee if the donor dies first. If donee
predeceased the donor then the gift must be returned to the
donor. Only the Hanafis and Malikis forbade conditional gift
and on the other hand most of the jurist allow temporal gift.
3) Usufruct gift. According to Hanafi, it depends on whether or
not the object itself survives after the donee collects its
usufruct. Usufruct of non-fungibles object is considered as a
type of loan to the donee. Usufruct of fungibles object which
the usufruct is to be derived can only be used by consumption
is tantamount to a full gift

The Practice of Hibah

Direct hibah
Hibah Trust

Direct Hibah

Direct Hibah is simpler than the Hibah Trust in

which it is valid and concluded with the
acceptance of the gift by the donee followed by
the technical procedure which is transferring the
property right between parties involved

Illustration: Direct hibah

Transfer

Donee

Donor

Transfer

Hibah Amanah

Hibah Trust
the modification and combination between Hibah and trust
features
some restrictions in Hibah can be eliminated and its application is
more flexible in the sense that this new form of Hibah is now
allowed to be given conditions either Umra or Ruqba
more efficient in terms of the legal procedures, cost and time as
there is no longer requirement for the application of the letter of
administration, probate or Order from any of the various
authorized bodies which at the same time bringing down the
costs and time for such settlement

Illustration

First stage: Similar to the Direct Hibah,

Second stage: The procedure that involves the assets to
be entrusted to a trustee for a certain time frame
according to the Trust Deed which is agreed between
the donor and the beneficiary.

The declaration of the Hibah Trust takes place during the

lifetime of the donor but however the transfer of ownership
of the assets is after the demise of the donor.
Between the two periods, the termination of the Hibah Trust
is allowed except for a contract that involves a gift from a
husband or wife

Cont..

Trust hibah is a cross between hibah and trust.

It is a gift of property by a person on the basis of love with ijab
and qabul during the lifetime of the hibah provider.
The hibah property will be held by the trustee and will be
transferred to the hibah receiver after the demise of the hibah
provider or by consent from the parties concerned.
The hibah made by a hibah provider to ensure that he still has
control over his properties because of a concern that the hibah
recipient may neglect him (hibah provider) once all his properties
have been transferred.
The hibah provider will have a separate agreement outside of the
akad which entitles the hibah provider to manage and use the
property until his demise.

Fatwa on Hibah Trust

the 56th Meeting of the Islamic Law Consultative

Committee of the Federal Territory on 5 October 2000,
it was decided that attachment of conditions is allowed
between the hibah provider and hibah receiver after ijab
and qabul has taken place.
The Syaria Advisory Council (SAC) of the Securities
Commission in its 44th meeting on 15 January 2003
agreed to adopt the principles of hibah ruqba as the
syaria basis in the implementation of the hibah
declaration form for transactions involving trust funds
joint accounts, especially accounts owned by Muslims.

Withdrawal and Revocation of Hibah

Hanafi: A hibah provider can withdraw the hibah but it

is unfavourable (makruh) to withdraw a hibah that has
been given away, and the person may fasakh the hibah
even though the hand-over has occurred (qabd), unless
the hibah was made with repayment (iwad).
Syafii, Hambali: Hibah withdrawal may occur solely
with ijab and qabul. However, when accompanied with
the delivery and acceptance of goods (al-qabd), then the
hibah cannot be withdrawn unless the hibah is made by
the father.

Cont

Although Islam permits the revocation of hibah made

by a father on his children, however, it is bound by the
condition that the property is still in the possession of
his son (his grandson).
If the property has gone beyond the jurisdiction and
ownership of his son (grandson) such as it has been
sold, wakaf or given as a gift to another person and the
property has already been received by the hibah
recipient (other people), then the hibah cannot be
withdrawn.

Cont..

Imam Ahmad and Zahiri: Hibah providers are

prohibited (haram) from withdrawing a hibah
unless a hibah by the father to his children.
Hadith: One who gets back his gift is like a dog which
vomits and then swallows that vomit. (Bukhari and
Muslim).

Extent of the Property

Islam does not specify the exact rate or extent of

the property to be given as hibah.
It is up to the hibah provider to decide on the
extent of the property he wishes to give away.

Cont..

Hanafi, Maliki and Syafi'e: It is favourable (sunat) to

equalise the hibah between the children and giving
more to one of them is unfavourable (makruh).
Abu Yusuf: To give a bigger portion of the hibah to
certain children is allowed if the parents do not intend
to pose any danger to the other children..
Hambali: Fairness in hibah to the children is a must
(wajib).
Imam Malik: One may not hibah all of his/her property
to only a few children and not to the rest.

Maradhul Maut

The illness is the cause of death of the deceased.

The illness has caused death anxiety in the mind
of the deceased.
There are external signs which show that the
illness is severe.

Cont..

al-Ahkam al-Adliyyah:
1) illnesses that normally lead to death, in which the illness may
cause the sick to become weak and unable to see other interests
(maslahat) outside of his house, if he was a man, and weakens
2) The sick to see other interests (maslahat) within the house, if
she was a woman. The sick has died in such condition before a
year passes by either he/she is bedridden or otherwise.
If the illness continues and one year has passed by, then the
ruling is the same as a healthy person, meaning that all his/her
chores (tasarruf) are similar to a healthy person, as long as the
illness is not too serious and the condition does not change.
However, if the illness becomes more severe (serious) and the
condition have changed and he/she died in such circumstance,
then the condition of being sick (from the time the change
started until his/her death) is considered as marad al-mawt.

Characteristics of Maradhul Maut

A certain illness is the cause of the death.

A death caused by an illness that is prolonged
into a year or after a year (in a condition which
the illness has worsened).
An illness that may cause the sick to become
absent-minded and neglectful of worldly
interests.

If the hibah provider dies following

the pronouncement of hibah

The gift is exactly the same as a gift through a

will and is subject to the laws of will namely:
The gift cannot exceed 1/3 of the total inheritance
of the deceased.

The gift is not given to an heir unless the other heirs
have agreed.

If the hibah provider lives

The grant shall be included in hibah law and

subject to the laws of grants while living namely
the assignment of ownership rights by the hibah
provider to the hibah recipient.

Majallat Al-Ahkam al-Adliyyah

When a person who has no heir gives away (hibah) all

his/her property to someone at the time of marad almawt, then the hibah is received, then the hibah is ruled
valid (Article 877).
When a husband gives away (hibah) all his property to
the wife, or vice versa, at the time of marad al-mawt
and the hibah is already received, while they have no
other heir, then the hibah is ruled valid and Islamic
treasury (baitulmal) cannot interfere in the inheritance
(Article 878).
When a person has given away (hibah) a property to
one of the heirs at the time of marad al-mawt and after
his death the other heirs do not agree, then the hibah is
ruled as invalid (Article 879).

al-Umra

Al-Umra: a gift during the life of the hibah recipient or

hibah provider with a condition that the property is
returned after the death of the hibah recipient.
A temporary provision which refers to the life of either
the hibah provider or the recipient.
If the hibah recipient dies, the hibah property is to be
returned to the hibah provider.
If the hibah provider dies, the hibah property will be
returned to the heirs of the hibah provider.
Eg. I give (hibah) this land to you when you are alive and if you
die, then the property is returned to me if I am still alive and to
my heir if I have died.

Al Ruqba

Al-ruqba: A gift which puts death of either the hibah

provider or recipient as the condition of hibah
ownership to the living party.
A certain conditional grant determined by the hibah
provider, in which the hibah property will become the
hibah recipients if the hibah provider dies.
If the hibah recipient dies before the hibah provider,
then the hibah property will be returned to the hibah
provider.
Eg. This land I give to you as ruqba and if you die first then
the property will be returned to me and if I die first then the
property is for you.

Hukm on Al Umra and al Ruqba

The majority of Islamic scholars are of the

opinion that temporary hibah such as hibah
'umra and ruqba are considered valid but the
conditions are considered void.

Application of Hibah

There is no hibah law enacted

Item 1, List II of the Ninth Schedule of the Federal
Constitution that states: Except regarding the Federal
Territory of Kuala Lumpur, Labuan and Putrajaya, the
Islamic law and the self and family laws of the Muslims,
including Islamic law with regards to inheriting intestate
or non-intestate properties, engagement, marriage,
divorce, dowry, maintenance, adoption, status of
children, child custody, gift, division of property

Cont

Hibah is part of the state matters and it directly falls

under the jurisdiction of the Syariah Court.
S 46 (2) (b) (v) and (vi), the Administration of Islamic
Law (Federal Territories) Act 1993 (Act 505):
Syariah High Court shall
(b) in its civil jurisdiction, to listen to and determine all
actions and proceedings in which all parties are
Muslims and are related to
(v) a will or gift (alang) during marad-al-maut of a
Muslim deceased person;
(vi) a gift during the lifetime, or settlements made
without adequate compensation with money or
moneys worth, by a Muslim;

Harun bin Muda and Others vs Mandak binti

Mamat and Others [1999] XIII (I) JH 63

The claims made by the Pt was to confirm that the land

was a hibah from the deceased to them.
The Terengganu SHC ruled that the pts claims to the
extent of each individuals area specified was authentic
and was satisfied in the truth of the claim and
concluded that it was indeed hibah.
Hibah had taken place even though qabul happened
through actions whereby after ijab, the property had
been developed, or worked on, or benefited by the
defendant.

Salmiah binti Che Mat vs Zakaria bin

Hashim [2001] XIV JH 79

Hibah was invalid even though qabul to ijab had already

been done via actions.
The Court found that the rules of sighah, there was
only the ijab from Che Mat but no qabul from the
defendant either verbal or in writing.
The Court deemed the hibah of the defendant Che Mat
invalid by reason of the rule of sighah was not carried
out and not fulfilled.
The Court did not verify that the hibah as valid because
the use and development undertaken on the land was
carried out before the hibah giver gave permission

Eshah binti Abdullah and Five Others vs. Che

Aminah binti Abdul Razak and Two Others
[2004] XVIII (I) JH 47

The hibah provider had died and there was no

withdrawal of hibah. The hibah had also been
witnessed by other people, however the building in
dispute still bore the name of the deceased.
Wtr or not qabul had been clearly stipulated after giving
away or sufficient by other qarinahs to prove that there
was an acceptance.
The Court accepted the appeal made by the petitioners
based on acceptance qarinah from the receiver,
whereby all three hibah receivers declared that they had
received the tenancy of the disputed building even
when the deceased was still alive.