Al Hibah : the principles and operational mechanism in the contemporary Malaysian reality

Abstract

This thesis deals with the solution of problems of property disposition, without ruling out the commonly used land transfer under faraid and wassiah, through a method called hibah. The suitability of wassiah order to provide adequate method to current property management is limited. This is due to the nature of wassiah in Islam that only allows the maximum of one third of the property to be distributed to the beneficiaries upon the death of the proprietor. No such limitation exist in hibah, because in this case the owner divests himself of all rights in the property immediately, Faraid and wassiah are largely related to the distribution of property after death of the owner. As not to compromise or contravene with the rules of Islamic law of succession and bequest, many Muslims are reluctant to use hibah as an alternative. This is due to the fact that wassiah and faraid are seen to be the only tool available to them and also due to the lack of knowledge and the very fact of the existence of hibah does not cross the mind of many Muslims in the country. In this respect, hibah is seen as the best solution of the above proposal since the property can be transferred to family members with terms and conditions merely decided by the donor himself, and, of course with the agreement of the other heirs or would be beneficiaries. This thesis also emphasizes that this method of property disposition should be made understood by all in the first place. Without that, heirs and would be beneficiaries would consider this method of disposition as unfair and injustice to them. Materials contained in this thesis were obtained from books, such as religious books, books on Islamic land law, papers from the internet, seminars and lectures. The findings obtained from this research indicates that the use of this instrument of property disposal is not yet popular among the Muslims of this country, as many still opted for other traditional methods