HIBAH IN MALAYSIA

1.0 HIBAH POSITION IN MALAYSIA

Hibah law is not actively applied in Malaysia due to there is absence of hibah law implemented
in Malaysia law. Simple put, the Hibah law for Muslim has not been approved by the State
Legislature and Parliament (for the Federal Territories) to be implemented in the Syariah courts in
Malaysia. This can be seen by referring to the Federal Constitution ie Item 1, List II of the Ninth
Schedule where it had stated that the State have the jurisdiction on all the jurisdiction of shariah
court in Malaysia pertaining to Islamic Law relating to hibah(gift), wakaf (wills) and etc but except
to Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
Therefore, based on above provision, it indirectly shows that hibah is wholly within the State
jurisdiction, so the law of hibah in every state will be different as each State had its own Shariah Law.
For example, by referring to Section 46 (2)(b)(v) and (vi) of the Administration of Islamic Law
(Federal Territories) Act 1993 (Act 505), where both of these provision states that the Shariah
Court of Federal Territory have all the civil jurisdiction for those who is Muslims to identify all the
acts which related to alang during marad al-maut of a Muslim deceased person or gift given during
the lifetime. The word “alang” refer to hibah , which is commonly used in Selangor, and Malacca
and etc and only Negeri Sembilan used the word hibah.
Therefore, based on the provision stated above it indirectly provide that hibah law has been
introduced to Malaysia Syariah Law during the lifetime of the hibah provider and also during marad
al-maut. Furthermore, based on the research paper it states that during the last 7 years, there is
increasing of cases pertaining to application of hibah and the most common dispute are regarding to
the lawful beneficiaries and inheritor over the transfer of the inheritance property to other. 1 The
increasing of cases is due to the parties to the cases are not satisfied with another parties to the case
where all the parties to the case are beneficiary of the inheritance of property.
To conclude, hibah is not only applicable in Malaysia Syariah Law but also Malaysia law, so
long as, the parties to the dispute is Muslims.

2.0 APPLICATION OF HIBAH IN MALAYSIA

According to Raja Azlan Shah J mentioned in Roberts v Ummi Kalsum2 whereby in Malaysia
Shariah law, there are 3 requirement need to be fulfil in order for the hibah to become vaild ie the
gift given by donor has been declared , the declaration of gift by the donor, donee accepted the give
either by expressly or impliedly and lastly, the donor need to hand in the possession of gift to donee
itself. Therefore, if one of those requirements do not fulfil then it will resulted that hibah become
invalid. In addition, Hanizah binti Sulaiman lwn Abdul Kadir bin Sulaiman,3 where court had
states that hibah is a gift given based on affection to donee by donor thus, if the donor died, then the
gift would be return to the deceased’s heirs and if the donee of hibah died, then the hibah will be
cancel and this type of hibah is known as hibah Al-Ruqba

1
Ahmad, Khairiah, et al. “Acceptance of Hibah as an Alternative Mechanism in Muslims Asset Management.” SHS
Web of Conferences, vol. 36, 2017, p. 00030., doi:10.1051/shsconf/20173600030.
2
(1966) 1 MLJ 163
3 [2018] MLJU 467
 In the case of Siti Haida binti Ismail v Siti Maznah binti Yahya & Ors ,4 where Plaintiff sue
defendant to recover the property (land) which was transferred to defendant by deceased during his
lifetime and plaintiff claim that the transfer of the property was not as hibah and claim that defendant
could not differentiate between affection and gift yet defendant raise defence that it was a gift to her
based on the love and affection and court held that since the transfer of land is under the
consideration of love and affection and not as a gift and so it is invalid hibah.
Whereas in the case of Ibrahim bin Harun lwn Mat Yusoff bin Mat Kassim ,5 plaintiff claim
that his grandmother had hibah a piece of land to him yet respondent claim that the transfer of land is
not hibah and had swear that in order to deny plaintiff claim and court held that there is no hibah of
land by his grandmother.
In contrast, in the case of Abdul Ghani bin Abdul Kadir & Seorang Lagi lwn Arpah binti
Abdul Kadir ,6 which is an appeal case where appellant deny the claim that the house has been
declared as lawful hibah according to hukm syarak by the deceased (donor) to respondent and
respondent claim that the hibah of land is lawful as deceased had stated in writing that the house is
hibah to respondent with condition that having a good relation with deceased sibling and court held
that it was valid hibah from the deceased to the respondent.
To conclude, based on the recent cases as stated above, it is clearly shown that application of
hibah is widely used in dispute pertaining to land as the inheritance of property and. Dispute
pertaining to hibah have been challenge in Malaysia Shariah Court despite whether it was made
orally or other form either by individual or their lawyer yet it can only be questioned to issue
regarding to the legality according to Islamic Law or heirs or beneficiary dissatisfied with hibah after
the death of of the donor (hibah provider)

3.0 ROLES OF AMANAH RAYA BERHAD AND SYARIAH COURT IN HIBAH

AmanahRaya is the Malaysia's premier trustee company and is 99% under the control of
Government of Malaysia.7 AmanahRaya act as an administrator or executor of deceased property.
AmanahRaya had provides amanah hibah to the public where it is some form of agreement of hibah
of asset(s) made by the donor(deceased) before his death for the beneficiary(ies) without any thought
and asset is endowed to the trustee who is appointed by them for the advantages of the beneficiary
for some period of time under the the Hibah deed discharged by the deceased who acts as a doner
and beneficiary who acts as a donee whereas Trust deeds discharged by the beneficiary(donee) and
trustee. However, AmanahRaya did not provide Hibah Al-Umra and Hibah Al-Ruqb.
Amanah Raya Berhad had provides the terms and condition of Hibah and if these terms and
condition did not fulfil then amanah hibah will not formed. Those terms and conditions are donor
must be a independent sane adult and is the legal owner of the asset(s) as this can shows that the
donor has the legal authority over the asset(s) thus, he has right to decide the asset to be given as
hibah ; donee (beneficiary) regardless whether he is a Muslim or non-Muslim so long as he is

4
[2018] MLJU 983
5
[2013](1) XXXVII JH79
6
[2012](II) XXXV JH307
7 AMANAH RAYA BERHAD. (n.d.). Retrieved from
http://www.arb.com.my/en/index.asp?fuseaction=Content.View&ID=58
capable to inherit the asset by legacy as an adult or minor. Thus, when the asset is transfer as hibah,
the ownership and control over the asset is deem to be under the beneficiary and trustee or wali is
appointed for minor or unsound mind people in order to received the hibah on his behalf ; the
transfer of asset(s) must be in form of hibah ie asset(s) must either be movable or immovable
property which is free from any impediment and must be halal which mean that property which is
permissible in Syariah Law, asset(s) must have prescribe value ie more than 1 dinar which equivalent
to RM735 and the donor must have right over the property and it is transferable and at the time of
hibah, the asset(s) is exist. Therefore, it clearly stipulated that hibah cannot be accepted without the
offer (ijab) and acceptance (kabul) of the agreement so, it indirectly states that without the
knowledge of beneficiary, it is impossible to perform hibah.
The application of Amanh Hibah has been adopted in certain banks in Malaysia such as Bank
Islam where they provide products pertaining to amanah hibah to their client and had specify all the
terms and condition of amanah hibah on their policy
During the 44th meeting of Syari’a Advisory Council (SAC) of Securities Commission, SAC
had made a decision on issue pertaining to hibah whereby they agree to follow the principles pf
hibah ruqba as stated in Siti Haida binti Ismail’s case as the shariah basis in execution of the form
of hibah declaration for transaction which involve the trust fund and joint account specially where
the account is owned by Muslim.
As such, it clearly shows that when applying hibah, the particular law pertaining to the hibah
provision and its it is clear that a specific law relating to the provision of hibah and its guidance is
requisite. Thus, this will able to minimized uncertain and and justify the integrity of Malaysia
Syariah Court and also indirectly increase its credibility in determining the issues regarding to hibah.
Furthermore, it can also be the guidance of the people who have the desire to practice hibah and
govern their wealth in a manner which is more well-ordered and well-organized

4.0 MODERN APPLICATION OF HIBAH IN MALAYSIA

Concept of Hibah has been applied in Takaful which is known as Islamic insurance which
provides some form of protection to everyone by having various takaful plans namely takaful
education plan. In this education plan, where takaful contributor (parent(s)) will make the takaful
benefits as hibah to his child for his future education fee. Thus based on faraid, if the takaful
contributor died, the takaful benefits as stated in the policy will turn into the rights of the child that
he nominated as the beneficiary and this will not be distributed to another legal inheritor of the
deceased yet if he still alive, the benefits will be given to him.
During the 34th meeting of of Syari’a Advisory Council (SAC) of Securities Commission
(SAC) in 2003, where they had provide the reason for the takaful benefits can act as the hibah ie due
to the object of takaful is to supply the coverage for takaful contributor and they are free to exercise
their rights according to the Shariah Law. Besides, the hibah position will not turn into bequest as the
hibah by the contributor is the conditional hibah.
In short, generally, the takaful benefits is normally attached to deceased who is the takaful
contributor and takaful certificate which is matured, thud, he will receiving the takaful benefits but
when he is death, and the takaful yet to reach the maturity date, hibah will be remain effective. The
contributor of the takaful can cancel his hibah before the maturity date of the takaful certificate as it
is a conditional hibah thus will only be concluded after qabh and he is also entitled to cancel the
hibah which has been made to someone and deliver to other or discontinue his contribution in takaful
if the proposed beneficiary pass away before the date of maturity.
 In a nutshell, takaful benefits is in form of hibah ruqba as the hibah asset will be in possession
of the donee upon the death of donor and if donee passed away, the the hibah asset will be return
back to the donor. According to majority of the scholar takaful benefits is also in form of hibah umra
which is admissible and the condition is valid if the doner did not clearly stated that it will be given
to the heirs of donee after the death of donee thus, it will eventually return to the donor.8 Thus, the
introduction of hibah ruqba and hibah umra in takaful is agreed by the comtemporary scholars.9

8
Ibnu Qudamah, Al-Mughni,Dar `Alam al-Kutub, 1997, v. 6, p. 338 - 339.
9
Ali Muhyiddin al-Qurrahdaghi, Al-Ta’min al-Islami: Dirasah Fiqhhiyyah Ta’siliyyah, Dar al-Basya’ir al-

Islamiyyah, 2004, p. 244.