Gifting Assets Before Death in Islam (2026): Hiba vs Will in India

Gifting assets before death in Islam is done through hiba, a lifetime gift completed by three acts: the donor declares it, the donee accepts it, and possession is delivered. A will (wasiyyah) is capped at one third of the estate and cannot benefit an heir without the other heirs' consent; a hiba can transfer any share of any asset to anyone, including a child who will also inherit. The limits are different: a gift made in the final illness is treated as a bequest, unequal gifts between children are discouraged or forbidden depending on the school, and in India a gift of immovable property still needs registration and stamp duty in practice. The estate planning hub covers the toolkit; this page compares hiba with the will and the fixed shares.

What hiba requires: declaration, acceptance and possession

Hiba is the transfer of ownership of existing property, made immediately and without consideration, by one living person to another. Muslim law, which the Muslim Personal Law (Shariat) Application Act 1937 makes applicable to gifts among Indian Muslims, sets three essentials. The donor must declare the gift clearly, orally or in writing, with the intention to part with ownership now, not at death. The donee, or a guardian for a minor donee, must accept it during the donor's lifetime. And possession must be delivered, actually where the property allows it and constructively where it does not, as when a landlord directs tenants to pay rent to the donee or hands over title documents and keys.

Delivery of possession is the condition that most often defeats a family's intention. A father who tells his children that the flat is now his daughter's, but keeps collecting the rent and keeps the papers, has not completed a hiba in most readings, and the flat falls back into his estate to be divided by fixed shares at death. Where donor and donee live together, as with a gift from a parent to a child in the family home, the courts accept a clear declaration plus unequivocal conduct showing the donor now holds for the donee. Where the donor keeps possession and benefit, the gift is incomplete.

Hiba does not require the donee to be a Muslim, a relative or an heir, and it is not limited in amount while the donor is in ordinary health. A hiba may also be made for consideration (hiba bil iwaz), which the jurists treat as a sale, and it may be made with a condition that the donee gives something in return (hiba ba shart ul iwaz). Plain hiba, without return, is the form a parent uses to give a child property now, and it is the one this page is about.

Why Muslim gifts are treated differently for registration in India

For most Indians, a gift of immovable property must be made by a registered instrument signed by the donor and attested by two witnesses, under the chapter on gifts in the Transfer of Property Act 1882. Section 129 of that Act states that the chapter does not affect any rule of Muhammadan law. Indian courts have read that saving clause to mean that a hiba of immovable property is valid between Muslims if the three essentials are met, even if it is oral or if the written hiba-nama is unregistered. Read the current text of the Act on India Code before relying on it; this is the one point in Indian gift law where Muslims stand on different ground from everyone else.

Validity and practicality are different things. A hiba that is valid between the parties still has to be recognised by the municipal property register, the revenue mutation office, the housing society and, eventually, a buyer's lawyer. Each of those will ask for a registered gift deed. Registration also fixes the date, defeats a later forged claim, and triggers the stamp duty that the state treasury expects on any transfer of immovable property. Stamp duty on gift deeds is a state subject, several states charge a concessional or nominal duty for gifts to close family, and the figures change by budget. Check the stamp schedule on your state's registration department website or the sub-registrar's office; do not take a figure from a general article.

For movable property, the register is whatever institution holds the asset. A gift of shares or mutual fund units is completed by an off-market transfer into the donee's demat account or a transmission form at the registrar; a gift of a bank balance by transfer into the donee's own account; a gift of gold by handing it over, ideally with a signed hiba-nama listing weight and purity because zakat on gold jewellery will fall on whoever owns it from that date. In every case the paper trail that proves delivery of possession is the same paper that proves the gift.

Can a Muslim gift property to one child and not the others?

This is the question behind most searches on hiba, and the fiqh answer has a clear text and a divided ruling. The Prophet declined to witness a gift that Nu'man ibn Bashir's father made to him alone, asking whether he had given the same to all his children and telling him to fear Allah and be just among them. The Hanafi, Maliki and Shafi'i schools read that as a strong recommendation: unequal gifts between children are disliked (makruh) but legally valid once possession passes. The Hanbali school reads it as a command: equality is obligatory and an unequal gift should be reversed or equalised, unless there is a recognised reason such as a child's disability, need, or religious study.

What equality means also varies. Many Hanafi authorities require equal amounts for sons and daughters in lifetime gifts, on the basis that the gift is an act of kindness and not a distribution of inheritance; others in the same school allow the inheritance ratio of two to one. An Indian Muslim who wants to give a daughter a flat now, perhaps because the inheritance rules will give her half a son's share later, is on firm ground with the majority if the intention is to help and not to defeat the other heirs, and on firmer ground still if the other children are told and given something comparable over time.

The line that cannot be crossed is intention to disinherit. A gift whose purpose is to strip a lawful heir of what Allah has allotted is sinful even where it is legally effective, and the jurists treat such a donor as having wronged the heir. A gift to a child who is poor, disabled, or carrying the burden of caring for a parent, made openly, is the kind of distinction the texts allow.

The death-bed exception: marz ul maut

A hiba made during the illness from which the donor dies (marz ul maut) is treated by Muslim law as a bequest, not a lifetime gift. The reasoning is that the donor's property has already begun to vest in the heirs in prospect, so the donor can no longer deal with it freely. The gift is therefore limited to one third of the net estate and cannot be made to an heir at all without the consent of the other heirs after death. Three features mark a death illness in the classical texts: it causes a reasonable apprehension of death in the sufferer, it prevents ordinary activity, and death in fact follows. A long-standing chronic condition without those features does not qualify, so an elderly donor with diabetes is not automatically in marz ul maut.

The practical consequence is timing. Families who wait until a parent is in hospital to execute a gift deed usually end up with a document that is challenged by the heirs who were left out, and that courts will test against the one-third rule. The one-third wasiyyah article explains how Indian courts police that boundary. Gifts should be made in health, with possession delivered and recorded, years before they are needed.

Hiba, wasiyyah and intestate shares side by side

The three tools are complements, not rivals. Hiba moves specific assets to specific people now, and is the only tool that can give an heir more than the fixed share. Wasiyyah carries up to one third to people and causes outside the heir list, as the Islamic wills guide explains. Whatever remains passes by the fixed shares, the process for which is in the intestate inheritance article. A plan that uses only one of the three usually leaves either a disputed gift or an unprovided dependant.

Income tax on gifts to relatives

Indian income tax has long treated a gift received from a specified relative as outside the recipient's taxable income, while gifts from non-relatives above an aggregate annual threshold are taxed as income from other sources. That rule sat in section 56(2)(x) of the Income-tax Act 1961. The Income Tax Department's website now lists an Income-tax Act 2025 and Income-tax Rules 2026 alongside the 1961 Act, together with FAQs on the transition from the old Act to the new one, so the section number and the threshold figure should be read from the department's current FAQ rather than from memory. Parents, children, siblings and spouses have historically fallen within the relative definition; confirm the current list on the department's page before relying on it for a gift to, for example, a nephew.

Two further tax points are worth asking a chartered accountant about, because they are easy to miss. Income from an asset gifted to a spouse or to a minor child has historically been clubbed back into the donor's income, so a father who gifts a rented flat to his wife may still be taxed on the rent. And a gift is not a sale, so no capital gain arises for the donor at the time of the gift; the donee generally takes over the donor's cost and holding period and pays the capital gains tax when the asset is eventually sold. Both rules affect which asset to gift and to whom, and both should be verified against the department's current guidance.

Steps and documents for a clean hiba in India

• List the assets you intend to give, with current title documents, and decide which go by hiba now and which wait for the will or the fixed shares.
• Decide the equalisation question openly: what each child receives over time, and the reason for any difference, written down and shared.
• For immovable property, have a hiba-nama or gift deed drafted that records the declaration and acceptance, and execute it before two witnesses.
• Register the deed at the sub-registrar's office and pay the state stamp duty; then apply for mutation in municipal or revenue records and inform the housing society.
• Deliver possession in a way that leaves evidence: keys and documents handed over, tenants notified in writing, utility bills transferred, demat or bank transfers completed.
• Record the gift in your will as already made, so executors and heirs do not count the asset twice, and keep copies with the will.
• Review the plan if your health changes; a gift executed in a final illness will be treated as a bequest.

Most of this can be done without a lawyer where the assets are simple and the family agrees, and the guide to writing an Islamic will without a lawyer shows how far a careful layperson can go. A lawyer is worth the fee when immovable property is involved, when any child is a minor or lives abroad, when a tenant is in occupation, or when the family does not agree. Yellow, the Bengaluru will service, lists a gift deed service alongside its wills on getyellow.in, and for a family that is already using it for a Muslim-law will that is a sensible place to have the hiba-nama and the will drafted together so they do not contradict each other. The tools hub has the inheritance calculator for checking what the fixed shares will do with whatever you do not give away.

The decision

If you want a particular child or your spouse to have a particular asset, and you want certainty, give it now by hiba while you are well, deliver possession, register the deed, and tell the family why. If you want to provide for someone outside the heir list, a grandchild whose parent has died, a charity, a dependant who is not a relative, use the one-third of the will. If you want to leave the rest to the shares Allah fixed, do nothing further except write the list of assets and the names of the heirs so that the certificate process after your death is quick.

If your motive for the gift is to cut out an heir, stop. The gift may work in law and fail in religion, and the court case that follows will consume what you tried to save. Equalise where you can, explain where you cannot, and keep the paperwork complete. Facts checked against incometaxindia.gov.in, getyellow.in on 11 September 2026.

Frequently asked questions

What is hiba in Muslim law?

Hiba is an immediate, unconditional transfer of ownership of existing property from one living person to another without consideration. Under Muslim law as applied in India it requires a declaration by the donor, acceptance by the donee during the donor's lifetime, and delivery of possession, actual or constructive. Once those three are complete the property belongs to the donee and leaves the donor's estate.

Can a Muslim gift property to one child only?

Legally yes, once possession is delivered the gift is valid in the Hanafi, Maliki and Shafi'i schools. Religiously it is disliked unless there is a reason such as need or disability, and the Hanbali school treats equality between children as obligatory. A gift whose purpose is to disinherit another child is sinful in all schools even where it is effective in law. Equalise openly where possible.

Does a Muslim gift deed need to be registered in India?

Between the parties, no: the saving clause for Muslim law in the Transfer of Property Act means a hiba meeting the three essentials is valid even if oral or unregistered, and courts have upheld such gifts. In practice, yes: mutation offices, housing societies and future buyers will require a registered deed, and the state will require stamp duty. Register it, and check your state's stamp schedule for the gift rate.

What is the difference between hiba and wasiyyah?

Hiba takes effect now, can cover any share of property, and can go to anyone including heirs. Wasiyyah takes effect at death, is limited to one third of the net estate, and cannot benefit an heir without the other heirs' consent. Hiba is largely irrevocable once possession passes; a will can be changed at any time in the testator's life. A gift made in the final illness is treated as a wasiyyah.

Is a gift from a parent taxable in India?

A gift received from a specified relative, which has historically included parents, children, siblings and spouses, is not taxed as the recipient's income under Indian income tax law. The Income Tax Department's site now lists the Income-tax Act 2025 alongside the 1961 Act with transition FAQs, so confirm the current section and the threshold for gifts from non-relatives on the department's page before relying on them.

What happens to a gift made during a final illness?

A hiba made during marz ul maut, the illness from which the donor dies, is treated as a bequest. It is limited to one third of the net estate and cannot go to an heir without the other heirs' consent after death. The illness must create a real apprehension of death and prevent ordinary activity; a long chronic condition does not by itself qualify. Make gifts in health, years before they are needed.