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UNIT—III
Family Law-II

Contents
1. Define ‘Hiba’. Also, discuss the essential conditions for a valid Hiba under Muslim Law. 5+15.......2
2. Define gift. Discuss the essentials of a valid gifts. What are void gifts? 25.......................................5
3. What do you mean by ‘Will’ under the Muslim Law? Discuss various Ingredients of a ‘Will’ to
make it valid under the Muslim Law. 25...............................................................................................7
4. Discuss the applicability of rules of succession under the Muslim Law. 25.....................................9
5. Write down the general rules of Inheritance under Muslim Law. 25.............................................12
6. Examine the concept of waqf under Muslim Law. What are the characteristics of waqf? Explain
them. 10+15=25.................................................................................................................................16
7. Define Wakf. What constitutes a valid subject of Wakf? Who may create a Wakf? Can a non-
Muslim create a Wakf? Explain the various kinds of Wakf under Muslim Law. 25.............................17
8. Write notes on the following: 10+10=20.......................................................................................21
(a) Rules relating to abatement of legacies under Sunni and Shia Law..........................................22
(b) Doctrine of cypress...................................................................................................................22
(c) Doctrine of increase (Aul) and return (Radd)............................................................................22
(d) Shia law of inheritance.............................................................................................................23
(e) Impediments to Muslim inheritance........................................................................................24
(f) Doctrine of Mushaa in gift.........................................................................................................26
(g) Wills during Marazul Maut (Death Bed)...................................................................................28
(h) Revocation of will (Waslyat).....................................................................................................30
(i) Gifts to an unborn person..........................................................................................................30
(j) Creation of waqf........................................................................................................................32
(k) Characteristics of Wakf.............................................................................................................32
(l) Valid objects of Wakf.................................................................................................................33
(m) Legal incidents of Wakf...........................................................................................................34
(n) Administration of Wakf............................................................................................................35
(o) Hiba-bil-iwaz.............................................................................................................................36
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UNIT—III

1. Define ‘Hiba’. Also, discuss the essential conditions for a

valid Hiba under Muslim Law. 5+15

Or
What is the meaning of ‘Hiba’ under that Muslim Law? Discuss its essentials. Also
distinguish between Hiba-bil-ewaz and Hiba-ba-shartul-ewaj. 25

Ans.-

Meaning of Hiba

Hiba (Gift) is a transfer of ownership in a property intervivos . Intervivos means living

person. Gift is transfer of property in which ownership is transferred by one living person to
another living person without consideration of existing property. Gift made by Muslim is
called Hiba. Gift is the subject matter of transfer of property Act 1882, Section 122 to 129 of
the Act deal with Gift while Hiba is governed by muslim personal law. The Transfer of
property Act 1882 does not apply on Hiba . The shariat Act 1937 also includes gift as one of
the matter to be regulated by muslim personal law If the parties are muslim.

Definition of Hiba

According to Mulla “ A hiba or gift is a transfer of property, made immediately, and without
any exchange , by one person to another, and accepted by or on behalf of the latter. “

According to Hidaya ” Hiba is an unconditional transfer of ownership in an existing property,

made immediately and without any consideration.”

On the basis of above definition following are the features of Gift–

(a) Gift is an inter vivos transfer.

(b) Gift is the transfer of absolute interest ( ownership) of property. (c) Gift is
transfer of property without any consideration.

Essential conditions of Hiba.

Following are the essential of a valid Hiba.

1. Declaration
2. Acceptance
3. The delivery of possession
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Declaration

The declaration of intention is essential for the hiba. A muslim person who is of sound mind
and have attained the age of majority may declare to make a hiba of his property. This
declaration may either be in oral or writing. The only condition is that the declaration must
be made in clear words it should not be ambiguous.

Who can make Hiba ?

Hiba Can be made by a person who fulfills the following criteria –

(i) Muslim
(ii) Adult
(iii) Sound mind
(iv) right to make gift

The doner of hiba must be a muslim Gift made by non-muslim is not hiba that will be gift. He
must be the adult person means he must have attained the age 18 years . Minor cannot
make gift. He must be sound mind .

Along with the above conditions the donor must also have the right to make gift. Here right
refers that the donor must be the owner of the property and property must be transferable
property.

Acceptance of Gift (Hiba)

The second essential of hiba is the acceptance of the gift. It is donee who accepts the gift.
Donee may be any person only requirement is that he or she must be in existence at the
time of declaration. Donee may be a Hindu, Christian or any non- muslim or minor or insane
person or a juristic person .

Position of minor / Unsound mind

Gift to minor or unsound mind is valid. Gift made to minor or Insane person is accepted by
their guardians.

Position of child in womb

A child in mother’s womb is presumed to be in existence , so a gift can be made to child in

womb but it is subject to two conditions –
(a) At the time of declaration he must be in existence in womb.
(b) and he must born alive within six months from the date on which gift was made.

Delivery of possession.

For a Muslim gift it is essential that the property gifted should have been transferred to the
donee as without such transfer the Muslim gift does not attain its legality and finality. It will
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be considered to be void or incomplete. If the possession of property has not been delivered
to the donee, the donor may revoke the gift befibe the actual delivery has been made. It is
only with the transfer that the gift becomes final.
Modes of delivery
Delivery of possession of gifted property is sine quo non for the validity of hiba. Without
delivery of possession muslim gift is void. Delivery of possession may be made by two
modes either actual or constructive depending on the nature of gifted property.

Actual delivery of possession

Actual delivery means physical handing over of gifted property to donee. Actual delivery is
possible only in properties of tangible nature, this can be movable or immovable. In case of
movable property it can be actually delivered to donee. For example watch, table , van etc.
In case of immovable properties the actual delivery can be done by giving up all the dealings
with gifted property.

Constructive Delivery of possession

Constructive delivery of possession means a symbolic transfer of property. In constructive

delivery of possession some act is done towards the donee in such way which has the effect
of delivery. It is a legal presumption of delivery of possession.
Constructive delivery of possession apply in two cases namely –

In case of intangible properties

And in case of where the property is tangible but there is such a situation in which actual
delivery of possession is not possible.

Difference between Hiba- bil-iwaz and Hiba-ba-Shartul-iwaz

1. In Hiba- bill-iwaz the consideration is paid by donee voluntarily whereas in Hiba-

baShartul-iwaz its payment is a condition precedent.
2. In Hiba- bil-iwaz the consideration is at the will of donee but in Hiba-ba-shartul- iwaz
the value and kinds of consideration is at the discretion of the donor.
3. Hiba- bil-Iwaz is not a Hiba; it is either sale or exchange whereas Hiba-ba-shartul-
iwaz is treated as Hiba.
4. Doctrine of Musha is not applicable to Hiba- bill-iwaz whereas this doctrine is
applicable to Hiba-ba-shartul-Iwaz.
5. Since Hiba- bil-iwaz is not gift, it is either sale or exchange , therefore it must be in
writing and registered. Whereas in Hiba-ba-Shartul-iwaz writing and registration is neither
necessary nor sufficient.
6. In Hiba- bil-Iwaz, the delivery of possession is not necessary whereas it is necessary
in Hiba-ba-Shartul-iwaz.

7. The Hiba-bil-Iwaz becomes irrevocable as soon as made. Whereas Hiba-ba-Shaatul-

iwaz is revocable and becomes irrevocable only after the payment of iwaz by the donee.
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2. Define gift. Discuss the essentials of a valid gifts. What are

void gifts? 25

Or
Define gift. Discuss the essential of a valid gift. Also highlight the rules of revocation of
gift in the light of Hiba-bil-iwaj. 25

Ans.-

Introduction: - In India it is often assumed that term ‘gift’ is the exact equivalent of ‘hiba’
and both are understood to connote all transfer of property without consideration. Gift
however an expression of much wider explanation than hiba is.According to Baillie, “The
conferring of a right in something specific without an exchange.”

In Muslim Law, it is treated as a contract consisting of a proposal or offer on the

part of donor to give a thing and the acceptance of it by the donee. The word hiba literally
means the donation of a thing from which the donee may derive a benefit, the transfer must
be immediate and complete. It is also to mention here the most important ingredient of
Hiba is the declaration, “I have given”.

DEFINITION OF GIFT:- Under Muslim Law a person is allowed to lawfully make a gift of his
property to another during his life time or he may transfer it by way of will which take effect
after his death.

In its technical sense, it is defined as, “unconditional transfer of property made immediately
and without any exchange or consideration by one person to another and accepted by or on
behalf of the latter.”

According to Mulla, “Gift is a transfer of property, made immediately and without any
exchange by one person to the other and accepted by or on behalf of the latter.”

A leading case in this regard is ofSmt. Hussenabi v/s Husensab Hasan-1989, gist of the
case that offer of gift was made by grandfather to his grand children who were living with
him and on behalf of minor children the acceptance was made by the doner but no express
or implied acceptance of gift was made by the major grandson. The court held that when
the three essentials are not there to complete, it cannot be a complete gift. Gift-deed was
valid for the minor children but the gift in favour of the major sons was set aside.

Essentials of a Valid Gift:

1)Attestation– A gift deed, must be attested by two witnesses.

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2)Recitals– Recitals in the commencement are drafted in a form different from those in
other forms. The gift documents in India commence by the introduction of the donor
himself.

3)Deed of Transfer– The deed should be drafted as a deed of transfer, if necessary. As there
is no consideration, none need be expressed although consideration of “natural love and
affection” is generally expressed in all cases of gift to relations, and “consideration of
esteem and regard” is expressed when the gift is in favor of some person for whom the
donor has regarded.

A gift is generally, absolute and irrevocable, but a condition of revocation on the happening
of a specified event not depending on the will of the donor is valid and a gift may be
burdened with obligations.

4)Registration of Gift-Deed– Registration of gift of immovable property, if a deed is at all

implemented, of movable property, is compulsory, under Registration Act, whatever may be
the value.

Void Gifts:

The category of void gifts are as follows: –

1. It is for illegal purposes.

2. It is made upon a condition, the fulfillment of which is prohibited by law.
3. It is by a person incompetent to contract.
4. The donee dies before acceptance.
5. It comprises of both the existing and future property is void as to future property.

REVOCATION OF GIFT-

In Muslim law all transactions made voluntarily are revocable. According to traditions of
Prophet Mohammed the revocation of gift is abominable. Under Hanafai law, gift is
revocable.

In Shia law, gift is revocable by donor by mere declaration of revocation.

In Sunni law, to revoke a gift, either the consent of donee is required or decree from
competent Court is necessary by donor.

Gift can be revoked-

1. Before delivery of possession- Since, the transaction of gift is incomplete if

possession of gift is not delivered, therefore, donor has unrestricted right to revoke the gift.
This clearly means that in this case donor has changed its mind and decided to not to gift his
property.
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2. After delivery of possession- In Sunni law, donor has right to revoke gift either with
consent of donee or with formal decree of Court. But in following certain situation Court
cannot grant decree to revoke gift-

a) If parties stand in martial relationship.

b) If donor is dead.
c) If donee is dead.
d) If parties are connected in prohibited degree of consanguinity e.g. brother and sister.
e) If donee had transferred subject matter of gift by sale, gift or otherwise.
f) If subject matter of gift is changed and lose its identity or if it gets lost, or destroyed.
g) Gift is sadaqah.
h) If something in return of gift is accepted.

In Shia law,

a) gift to any blood relation is irrevocable.

b) Gift can be revoked by mere declaration of donor.
c) Gift by husband to wife or by wife to husband is revocable.

3. What do you mean by ‘Will’ under the Muslim Law? Discuss

various Ingredients of a ‘Will’ to make it valid under the
Muslim Law. 25

Or
What do you mean by will? Also explain the essentials of will. How is will revoked? 25

Ans.-

There are enormous ways to make disposition of property in Hindu law as well as in Islamic
Law. Under Islamic law, a Muslim can dispose of his property by gift, by creating a wakf or by
accessing his testamentary powers i.e. by making a Will.

The concept of a Will under Islamic law is a sort of bargain between two different
propensities. One, the view of the prophet is clear that after the death of a person, his
property has to be distributed to his heirs and this rule is considered as divine law and any
interference to it is unacceptable. On the other hand, it is a moral duty of every Muslim to
make appropriate arrangements for his property after his death.

Meaning and nature of Will

Conventionally, a Will, also called ‘testament’ is an implement which enables a person to

dispose of his own property to someone whom he wants to give after his death. A Will
comes into effect only after the death of the person who created the Will. A Will is a legal
declaration of transfer of property by a person after his death.
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In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The person who executes
the Will is called ‘legator’ or ‘testator’ and the person in whose favour the Will is made is
known as ‘legatee’ or ‘testatrix’. A very famous Muslim scholar ‘Ameer Ali’ defined a Will
from the point of view of Mussalman as a divine institution because its exercise is regulated
by the Holy Quran. At the same time, Prophet had proclaimed that such testamentary
powers must not exert any damage to the lawful heirs.

There is a strict rule in Islamic law that governs the validity of a Will. According to this rule, a
Muslim can make a Will in favour of anyone, only to the extent of one-third of his total
property. If the Will is made beyond one-third of the property, the consent of the legal heirs
is mandatory no matter in whose favour the Will is made.

It can be hypothesized that a Will is a kind of gratuitous transfer of ownership made through
a testamentary document which comes into play after the death of the legator. As far as the
legal concept of Will is concerned, basically it is a gift testamentary.

Essentials of a valid Will

If we talk about the legal validity of a Will under Muslim law, there are certain requisites
which make a Will apt and capable of taking effect. Thus, the following discussed
requirements must be satisfied:

• The legator must be competent to make a Will.

• The legatee must be capable of taking such endowment.
• The property which is endowed by the legator must be a bequeathable property.
• Free consent of the legator and the legatee.
• The legator must possess testamentary rights over the property.

Revocation of a Will

Muslim law grants an emancipated right to legator exercising which he can revoke the Will
or any part of the Will executed by him anytime. Similarly, he can add something reasonable
to the Will as well.

A legator may revoke the Will either expressly or impliedly.

Express Revocation

An express revocation may be done in oral or in writing. For example, if a legator bequests
some of his property to a person and by making a subsequent Will he bequeaths the same
property to another person, then the first Will is considered to be revoked automatically.
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If legator burns or tears off a Will executed by him, then also the Will is said to be expressly
revoked. It is to be noted that mere denial of a Will is not sufficient to amount a Will as
revoked. Some action must be taken by the legator which indicates his clear intention for
the revocation of the Will.

Implied Revocation

Any act done by legator contrary to the bequest Will revoke the Will. In other words, an act
which leads to the annihilation of the subject-matter of the bequest is considered as an
implied revocation of the Will. For example, if a legator executed a Will giving land to a
person and builds a house on the same land, or if he sells or gifts that land to someone else,
then consequently, the Will is said to be impliedly revoked.

4. Discuss the applicability of rules of succession under the

Muslim Law. 25

Ans.-

Succession Under Muslim Law

Meaning of Succession
The word succession means the action or the process of inheriting property, title or, office
one after another. In terms of law the Succession is Defined as with regards to an estate,
succession laws determine how property is to be distributed upon the death of the state
owner. Under Muslim law, all properties devolve by succession, the right of heir-apparent
does not come into existence till the death of the ancestors. Succession opens only on the
death of the ancestors, and then alone the property vests in the heirs.

UNDER MUSLIM LAW SUCCESSION IS COMBINATION OF FOUR SOURCES

1. The Holy Quran
2. Sunna (Practice of Prophet).
3. Ijma (consensus of the learnt men of the community or over the decision over a particular
subject matter).
4. Qiya (deduction based on analogy on what is right and just in accordance with good
principles.

The succession means transfer of the properties of an Ancestors after their death, to the
rightful heir.Thesuccession in Muslim law is derived from the customary law of succession
and it is based on the Patriarchal family system. Here the word Patriarchal means the legal
dependence.

In transferring of property,the daughter as well as son both have equal rights to hold and
dispose the transferred property. After holding the Transferred property, they can do
whatever they want to do with that property that means they can mortgage, lease, or
bequeath the property i.e. They become owner of property after transferred to them.
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There are two types of Heirs under Muslim Law

1. Sharers (Quarnic Heirs) 2.
Residuaries (Agnatic heirs).

1.Sharers (Quranic Heirs)

They are those persons who are entitled to certain share in the deceased’s property.
There are 12 sharers defined under The Muslim law~
Father, Mother, Husband, Wife, Daughter, Son’s Daughter, Full sister, Consanguine Sister,
Uterine Sister, Maternal Grandmother, Paternal Grandmother, Uterine Brother.

Father
Father becomes sharer when the deceased has left a child or son’s or grandson’s child,
otherwise he is not sharer.

Mother
For mother there is three different conditions:
•1/3rd of share if there is no child or child’s son & no brother or Sister to deceased.
•1/3rd of remaining share after deduction the share of deceased partner when there is
Father or Partner of deceased only.
•No share – where there is a child or son’s child, and if there are 2 or more brother or sister
or 1 brother and 1 sister.

Husband
If man of death wife is surviving then the property is transferred to husband.
If couple has child or Child’s son then the husband is 1/4th share of property, but if couple
has no Child or child’s son, then he is share to 1/2th of the property transfer.

Wife
If husband dies, then wife in entitled with husband property.
But there are some conditions
•If there have no child or grandson then 1/4th property is entitled.
•but If they have child then wife is entitled to 1/8th of property.

Daughter
Only in absence of son daughter are Heirs.
Single Daughter receives 1/2 share but if there are more than 1 daughter, then all of them
are inherit 2/3 of share equally.

Son’s Daughter
The son’s daughter become a sharer only when she has predeceased the son of the
deceased & such a son has not left with any son of his own.
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Full Sister
A single full sister receive 1/2 share if there is no son, father, grandfather, daughter, son’s
daughter, or brother.
When there are 2 or more full sister and no excluded, the sister will get 2/3 shares.

Consanguine Sister
When there is no full sister & no excluder, then the consanguine sister entitled to receive
1/2 share.

Uterine Brother and Sister

If there is no child or son’s child, no father and grade father alive then only uterine sister &
brother are entitled to become heirs.
Then share of such brother & sister is 1/2 and it is divided equally in all by share of 2/3.

Maternal Grandmother
When the mother of the deceased is dead, then maternal grandmother is entitled to inherit
of share.

Paternal Grandmother
When both the parents of deceased are dead then only paternal grandmother become
sharer.

2. RESIDUARIES (Agnatic heirs)

When after dividing the heritable estate between the sharers, then Agnatic heirs chance
arises. Residuaries, are those who would take up the share in the property after that is left
over after the sharers have taken their parts. The residuaries are through male only, which
are related to deceased. No female is included into the Resuadaries only male is counted.

According to The Sharee ‘ah (Islamic Law), a widow is indeed entitled to a share of the
inheritance from the property which belonged to her deceased husband. The wife’s share is
one-fourth if her husband leaves no child, but if he leaves a child, she gets an eighth. Allah
said in the Holy Quran.

Succession under Muslim Law in the absence of a will, i.e., non-testamentary succession is
governed by the Muslim Personal Law (Shariat) Application Act, 1937.
On the other hand, in case of testamentary succession when the deceased has made a will,
the Shariat law of Muslim applies for the inheritance of the property of the deceased which
is generally practiced by Shia and Sunni Muslims.

According to Hanafi law in absence of Sharers and the Residuaries, the estate passed to
other relations who are “Distant Kindred and The State by Escheat”. The Distant kindred are
third category of the heirs related by blood or consanguinity (zavilarham). It comprises all
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the cognates of the deceased except those who are include in the sharer’s category. They
inherit the property of the deceased only in the absence of the sharers and residuaries.
The State by Escheat
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited
by Government through the process of escheat. State is regarded as the ultimate heir of
every deceased.

Cases
In, Rukmani bai V. Bismilla Bia ,it was held that where a person dies behind leaving single
daughter and no residuary, shall be entitled to her share as well as residuary share in the
property of deceased.

Abdul Matin Vs Abdul Azeez Gau AIR 1990 case it was held that where one of the two
sisters who had inherited their father’s property died leaving behind a son only and the
other died later survived only by her husband, ½ latter’s property was allotted to her
husband and the other ½ her sister’s son as a uterine heirs.

The Holy Quran states ‘Allah has purchased from believers their persons and their wealth in
lieu of Jannah’. Man is a trustee of the wealth that he owns for the duration of his life. When
the term of his life ends, his trusteeship over his wealth and property

5. Write down the general rules of Inheritance under Muslim

Law. 25

Ans.- Introduction

We know that we are living in a constitutional civilized society, but we have no Uniform Civil
Code in India except in Goa. Every religion practiced in India has governed by its respective
personal laws. Islamic Law of inheritance is a mixture of the pre-Islamic customs and the
rules introduced by the Prophet.

The Muslim Law of Inheritance derives its principles from four principal sources of Islamic
Law. They are as follows-

1) The Holy Quran

2) The Sunna (it is the practice of the prophet)
3) The Ijmaa (it is the consensus of the learned men of the community on what should
be the decision over a particular subject matter)
4) The Qiyas (it is the deduction based on analogy on what is right and just in
accordance with God).
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Inheritance means the transfer of property to the living person from the deceased along
with any other transferable rights. Inheritance has a different meaning in Islam. There is no
particular definition of Inheritance in the Quran but many Scholars have defined it in their
own ways. According to Sir Abdur Rahim, inheritance is the transfer of the rights and
obligations of the deceased person to his/her heirs.

Under the Indian legislative Scheme, the rules that govern inheritance under Muslim law
depend on the kind of property involved. Like, in case of non-testamentary succession, the
Muslim Personal Law (Shariat) Application Act, 1937, will govern it. On the other side, in the
case of testamentary succession (it means, the person has created his will before the
death); in this case, the Shariat law of Muslim applies for the inheritance of the property of
the deceased, which is as applicable to Shia and Sunni.

In cases where the subject matter of the property is an immovable property, specifically
situated in the state of West Bengal or property falling within the jurisdiction of the Madras
and Bombay HC, the Indian Succession Act, 1925, shall bound on the Muslims. This
exception is only applicable to testamentary succession

Types of Heirs:-

There are two types of heirs under Muslim law – the Sharers and the Residuary. Firstly, the
Sharers are the ones who are entitled to a certain share in the property of the deceased
and, secondly, the Residuary (as the word Residuary itself say) are the ones who would take
up the share in the property that is left over after the Sharers have taken their part from the
property.

Total 12 relations fall under the category of Sharers in Muslim Law:

1) Husband,
2) Wife,
3) Daughter,
4) Daughter of a son (or son’s son or son’s son and so on),
5) Father,
6) Paternal Grandfather,
7) Mother,
8) Grandmother or the male line,
9) Full sister,
10) Consanguine sister, 11) Uterine sister, and 12) Uterine brother.

The share taken by each sharer will differ in some conditions. For example, a wife of a
deceased will takes 1/4th of the share in case where the couple is without lineal
descendants, and 1/8th share otherwise. A husband (in case of succession to the wife’s
estate) takes a half share in case where the couple is without lineal descendants, and a 1/4 th
share otherwise. A sole daughter takes a half share. Where the dead person has left behind
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more than one daughter, all daughters jointly take 2/3rd. If the dead person had left behind
sons and daughters, then the daughters stop to be sharers and become residuary instead,
with the residue being so distributed as to make sure that each son gets double of what
each daughter gets.

Distribution of Property under Muslim Law:

Under the Muslim Law of Inheritance, the distribution of the property can be done in two
ways –

1. Per Capita Distribution – This method generally used in Sunni law. According to this
method, the property leftover by the ancestors will get equally divided among the heirs.
Therefore, the number of heirs of the dead person will determine the amount of share for
each heir in the property of the deceased. The heir does not represent the branch from
which he or she inherits.

2. Per Strip Distribution – This method is mostly used in Shia law. According to this
method, the property of the deceased is distributed among the heirs according to the strip
they belong to. Hence, the quantum of their inheritance also depends upon the branch and
the number of persons that belong to the branch.

General Principles of Inheritance under Muslim Law

Unlike Hindu law, there is no provision of distinction between individuals i.e. self-acquired
or ancestral property. Each property that remains within the ownership of a person can be
inherited by his successors. Whenever a Muslim dies, all his property whether acquired by
him during his lifetime or inherited from his ancestors can be inherited by his legal heirs.
Consequently, on the death of every such legal heir, his inherited property and property
acquired by him during his lifetime shall be transferred to his heirs.

The general principles associated with the Muslim Law of inheritance are as follows –

1. Nature of heritable property: The meaning of heritable property is that property

which is available to the legal heirs for inheritance. After the death of a Muslim, his
properties are used for paying funeral expenses, debts and wills. After the payment of these
expenses, the remaining property is called heritable property.

For the purpose of inheritance, the Muslim Law does not make any difference between
corporeal and incorporeal or movable and immovable property. Any property which is in the
ownership of the deceased at the time of his death would be considered as heritable
property.

2. Joint or Ancestral property: Unlike Hindu law, the Islamic law of Inheritance does
not recognize the concept of joint family or coparcenaries property. Whenever, a Muslim
dies, his properties will pass on his heirs in definite share of which the heir becomes the
absolute owner. Similarly, on the death of such legal heir, the property owned by him will
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devolve among his legal heirs and this same process continues. Unlike Hindu law, there is no
provision for Ancestral or Joint-family property. And there is also not distinction between
Self-acquired or ancestral property.

3. Birthright under the Muslim Inheritance Law: Inheritance opens only after the
death of a Muslim. Muslim law follows the principle of ‘nemo est haeres viventis’ i.e.
nobody can become an heir to a living person. It means the legal right to inheritance of
property will only arise when the death of a deceased person will take place and not upon
the birth of a child.

4. Doctrine of Representation: This Doctrine is a well-known principle recognized by

the Roman, English and Hindu laws of inheritance. According to this principle of
Representation, the son of a predeceased son represents his father for the purpose of
inheritance. The Islamic law of inheritance does not recognize this Doctrine. It is because
under Muslim law the nearer ones will exclude the remoter ones.

5. Rights of Females: Under the Muslim law of Inheritance, both men and women have
given equal rights. On the death of an ancestor, nothing can restrict both girl and boy child
to become the legal heirs of the inheritable property. However, it is generally found that the
quantum of share of female heir is half of that of the male heirs. The reason behind this is
that under Muslim law a female shall receive Mehr and maintenance from her husband
during marriage ceremony. Whereas, a male will only have the property of the ancestors for
Inheritance and male have the duty of maintaining their wife and children.

6. Rights of a Widow: Under the Shia law, a Muslim widow who does not have any
children shall be entitled to inherit one-fourth share of the property of the deceased
husband. However, a widow with children or grandchildren is entitled to one-eighth of the
deceased husband’s property. In cases where a Muslim man gets married during a period
when he is suffering from some mental illness and without consummating the marriage,
then the widow shall not be entitled to any right over her deceased husband’s property.
However, in case if her ill husband divorces her and subsequently, he dies from that illness,
then the widow is entitled to a share of her husband’s property until she remarries.

7. Rights of Inheritance of a child in womb: Under Muslim law, a child in the womb of
a mother at the time of his/her father’s death shall only entitle to inherit the property if he
or she is born alive. In case, if the child is born dead then the share, which vested in him, will
cease to exist and it will be presumed that it has never existed.

8. Right of Inheritance of the stepchildren: The stepchildren are not entitled to any
right to inherit the property of their stepparents. Similarly, the stepparents are also not
entitled to inherit the property from stepchildren. However, the stepchild is competent to
inherit the property of his Natural Father or Natural Mother. Moreover, the stepbrothers
(or stepsisters) can inherit each other’s property.
 16

9. Escheat: It refers to the transfer of right to the government to take ownership of

estate assets or unclaimed property. It occurs when a Muslim person dies with no wills and
no heirs, then the property of a deceased shall go to the government. The State is then
considered the ultimate heir of Property.

Conclusion

The Holy Quran says “Allah has purchased from believers their persons and their wealth in
lieu of Jannah”. Man is a keeper of the wealth that he owns during his lifetime. But after the
death of such a person, his trusteeship over his property and wealth will get expires. And all
his property should be redistributed among his legal heirs according to the directions given
by Allah Taala. It can be concluded from the above that Islam is a religion with a complete
code of conduct and inheritance is one of them and by proper application of Islamic Laws, it
will be possible for us to make sure peaceful environment in this world and can ensure
peace in the life after death

6. Examine the concept of waqf under Muslim Law. What are

the characteristics of waqf? Explain them. 10+15=25

Ans.-

Concept of waqf under Muslim Law

In its crude sense, in a real sense, “wakf” signifies “Detention”. Up to the time of Abu
Hanifa, it was not satisfactory as in who did the responsibility for wakf property vest. Abu
Hanifa characterized wakf as “the tying up of the substance of a property in the ownership
of the wakf and the devotion of its usufruct, amounting to an aryia, or commodate loan, for
some charitable purpose.” This implies that as indicated by Abu Hanifa, the possession in
the wakf property kept on being vested in the proprietor and its usufruct was spent for
magnanimous or devout reason. As per Abu Yusuf and Imam Mohammed, wakf is the tying
up the substance of a thing under the standard of the property of Almighty God, with the
goal that exclusive right of the wakf gets quenched and is moved to Almighty God for any
reason by which its benefits might be applied to the advantage of His creatures.”

Characteristic Features of a Wakf

The Muslim foundation of wakf has a few trademark includes some of which are one of a
kind. The remarkable highlights of a wakf are that the property vests in the responsibility
for, it is perpetual devotion, and a wakf is unalterable. Indeed, these are two features of
exactly the same thing.

1) Property vests in God.– The exceptional component of wakf is that the

Responsibility for committed for the wakf vests in God. The making of a wakf is basically
founded on a lawful fiction, the fiction, being that the property vests in God in
 17

interminability, however pay from the property is allowed to be used for certain
predetermined purposes, which under the Muslim law are perceived as devout or strict. In
regard of vesting of wakf property in God, there is no differentiation between a Shia wakf
and a Sunni wakf or a public wakf or a private wakf.

2) Wakf should be perpetual.- A Muslim wakf should be made for an limitless period.
Wakfs for restricted periods are obscure to and are not perceived by Muslim law. So,
interminability is a fundamental and extraordinary component of wakf. Indeed, even the
instance of a family (wakf for alal aulad), a definitive advantage should be explicitly or
impliedly held for poor people or for some other reason perceived by Mussalman law as
strict, devout or magnanimous motivation behind a lasting person. Consequently, an
endowment of a usufructuary home loan by the mortgagee or of a house remaining ashore
rented for a fixed term is void, being of brief nature. Essentially, a wakf won’t be perpetual
if the wakf-nama contains a condition that assuming the properties are botched, the
property ought to be split between the relatives of the wakif.

3) Wakf should be irreversible:.- The unavoidability is another trademark highlight of a

wakf. Once comprised truly, a wakf can’t be disavowed. In the event that in a wakf-nama a
condition is specified that the wakif stores to himself the right of repudiating of wakf, or
that the wakf will stand renounced on the incident of any occasion, then, at that point such
a wakf is void. Additionally, the ability to alter the wakf might be held, yet not supreme
force of changing the objects of the wakf. The accompanying condition in a wakf deed was
held legitimate: “If during my life, I so want, I will be capable to revoke or adjust by a new
wakf-nama the arrangements concerning the arrangement of the mutawalli and different
standards and methodology.”

4) Repudiation of testamentary wakf: – The situation of testamentary wakf is

extraordinary. A testamentary wakf might be denied by the pilgrim whenever before his
passing. It’s anything but a testamentary wakf is just an inheritance and, accordingly, it
tends to be disavowed like some other endowment. A testamentary wakf appears after the
passing of the wakif. For a similar explanation, a testamentary wakf isn’t invalid on the
ground that the deed contains a proviso under which it is specified that wakf won’t appear
if the wakif is honored with a kid.

5) Wakf properties are inalienable:.- It’s anything but a characteristic end product of
the regulation of permanency of wakfs that once the properties are committed to God, they
can’t be distanced. Nonetheless, this standard isn’t supreme, and in specific conditions, it is
reasonable that a mutawalli may distance the wakf properties. When a wakf-nama permits
a mutawalli to sell wakf properties in specific conditions, then, at that point the mutawalli
has the ability to sell wakf properties in those conditions. It’s just plain obvious, “Mutawalli
force of estrangement.”
 18

7. Define Wakf. What constitutes a valid subject of Wakf?

Who may create a Wakf? Can a non- Muslim create a Wakf?
Explain the various kinds of Wakf under Muslim Law. 25

Ans.-

The literal meaning of the word waqf is ‘detention’. In the legal context, waqf means
detention of a property so that its produce or income may always be available for religious
or charitable purposes. When a waqf is created, the property is detained or, is ‘tied up’
forever and thereafter becomes non-transferable. Meaning and various types of waqf are
defined in this project. There is an object behind making a wakf. Office of Mutawalli
(manager) is very important. There are many modes to create waqf, which are dealt with in
this project. Wakf is binding and enforceable by law, it has legal consequences which are
dealt with in this project. The law of waqf is “the most important branch of Mohammedan
Law for it is interwoven with the entire religious, social, and economic life of Muslims.

MEANING

When Muslim a person who is working for a charitable purpose under religious faith and
sentiments and for the benefit and upliftment of the society, has donated his property in
the name of Allah is called waqf.

Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the ownership
of dedicated property is taken away from the person making waqf and transferred and
detained by God. Details are given in old texts about wakf made by the prophet.

It is observed in M Kazim vs A Asghar Ali that technically, it means dedication of some

specific property for a pious purpose or secession of pious purposes. As defined by Muslim
jurists such as Abu Hanifa, Wakf is the detention of a specific thing that is in the ownership
of the waqif or appropriator, and the devotion of its profits or usufructs to charity, the poor,
or other good objects, to accommodate loan.

Wakf Act, 1954 defines Wakf as, “Wakf means the permanent dedication by a person
professing the Islam, of any movable or immovable property for any purpose recognized by
Muslim Law as religious, pious, or charitable.”

ESSENTIAL CONDITIONS FOR A VALID WAQF

Waqf Under Sunni Law

The essential conditions of a valid waqf, according to the Hanafi Law (Sunni Law) are:

1. A permanent dedication to any property.

2. The dedicator (waqif) should be a person professing the Mussalman faith and of
sound mind and not a minor or lunatic.
 19

3. The dedication should be for a purpose recognised by the Mussalman law as

religious, pious or charitable.

1. Permanent dedication of property

The most important essential of a valid waqf is that it should be ‘a permanent dedication of
property.’ It has the following prerequisites.

1) There must be a dedication.

2) The dedication must be permanent.
3) The dedication must be of any property.

The Waqf himself has the right to donate such property and give it for any purpose
recognized under the Muslim Law. If the wakf is made for a limited period, it cannot be
considered as a valid wakf.

In the case of Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, it was held that “if a
Muslim man provides his house to the travellers irrespective of their religion and status for
their stay, this cannot be considered as a valid Wakf on the ground that under Muslim law a
Wakf has a religious motive, that it should be created for the benefit of Muslim community.
When a Wakf is constituted, it is always a presumption that it is a gift of some property,
made in favour of God. This is a legal fiction.

2. By a person professing Mussalman faith

The person creating a waqf should be an adult Muslim of sound mind.

3. For any purpose recognised by Muslim Law

The main objective behind creating a waqf is that it should be dedicated for a purpose
recognised as religious, pious or charitable under Muslim law.

Waqf Under Shia law

The essential conditions for creating a valid Waqf according to Shia Law are:

1) It must be perpetual.
2) It must be absolute and unconditional.
3) Possession of the thing appropriated must be given.
4) The waqf property should be entirely taken out of waqif.

Who Can Create a Waqf? :

The person who constitutes the waqf of his properties is called the ‘founder of waqf or,
Waqif. The waqif must be a competent person at the time of dedicating the property in
 20

waqf. For being a competent waqif a person must possess the capacity, as well as the right
to constitute the waqf.

As regards the capacity of a Muslim for making a waqf, there are only two requirements:

(i) soundness of mind and,

(ii) majority.

A person of unsound mind has no capacity to create any waqf because he or she is incapable
of knowing the legal consequences of the transaction. Waqf constituted by an insane or
minor person is void.

Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes in the principles of
Islam’, he need not be a Muslim by religion. The Madras and Nagpur High Courts have held
that a non-Muslim can also create a valid waqf provided the object of waqf is not against
the principles of Islam.

Patna High Court has also held that a valid waqf may be constituted by a non-Muslim.
However, according to Patna High Court, a non-Muslim waqf may constitute only a public
waqf; a non-Muslim cannot create any private waqf (e.g. an Imambara).

3. Right to make waqf: A person having the capacity but no right cannot constitute a valid
waqf. The subject matter of wakf should be owned by wakif at the time when wakf is made.
Whether a person has the right to constitute a waqf or not depends on the fact whether the
dedicator has a legal right to transfer the ownership of the property or not.

A widow cannot constitute any waqf of the property which she holds in lieu of her unpaid
dower because she is not an absolute owner of that property.

Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove
that she had exercised her independent mind in constituting the waqf and had fully
understood the nature of the transaction.

Amount of property: a person can dedicate his entire property, but in the case of the
testamentary wakf, more than one-third of property cannot be dedicated.

Kinds Of Waqf

Public Waqf– It is created for the public, religious or charitable purposes.

Private Waqf- This type of Waqf is created for the settlor’s own family and his descendants
and is also known as ‘Waqf-ulal-Aulad’. It is a kind of family settlement in the form of waqf.

Kinds Of Waqf from the view of their purpose

Waqf Ahli: The waqf is basically created to cater to the needs of the waqf’s founder’s
children and their descendants. But, the nominees do not have a right to sell or dispose of
the property which is the subject-matter of waqf.
 21

Waqf Khayri: This kind of waqf is established for charitable and philanthropic purposes. The
beneficiaries in such a kind of waqf may include the people belong to the economical
sections of the society. It is used as an investment for building mosques, shelter homes,
schools, madrasas, colleges and universities. All of this is built to help and uplift the
economically challenged individuals.

Waqf al-Sabil: The beneficiaries of such a waqf, is the general public. Although similar to
Waqf Khyari, this type of Waqf is generally used to establish It is very similar to waqf khayri,
though generally used for establishment and construction of the public utility (mosques,
power plants, water supplies, graveyards, schools, etc).

Waqf al-Awaridh: In such a kind of waqf, the yield is held in reserve so that it can be used in
case of emergency or any unexpected events that affect the livelihood and well-being of a
particular community, in a negative manner. For example, waqf may be assigned to cater to
the specific needs of the society like providing medication for sick people, who cannot
afford expensive medicines. Waqf al-awaridh may also be used to finance the maintenance
of the utility services of a particular village or a neighbourhood.

Kinds of waqfs from the view of its output nature

Waqf-Istithmar: Such a kind of waqf is created for using the assets for investment purposes.
The said assets are managed in such a way so that the income is applied for constructing
and reconstructing waqf properties.

Waqf-Mubashar: The assets of such a waqf are used to generate services which would be of
some benefit to some charity recipients or other beneficiaries. Examples of such assets
include schools, utilities, etc.

CREATION OF WAKF

Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements
as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is
usually created in the following ways –

1. By an act of a living person (inter vivos) – when a person declares the dedication of
his property for Wakf. This can also be done while the person is on death bed (marj-ul-
maut), in which case, he cannot dedicate more than 1/3 of his property for Wakf.

2. By will – when a person leaves a will in which he dedicates his property after his
death. Earlier it was thought that Shia cannot create Wakf by will but now it has been
approved.

3. By Usage – when a property has been in use for the charitable or religious purpose
for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf
is inferred.
 22

8. Write notes on the following: 10+10=20

(a) Rules relating to abatement of legacies under

Sunni and Shia Law
Ans.-

Abatement of Legacies

When a bequest exceeds the limit of one-third and heirs deny to give their consent, the ratio
of the legatees is subsidised in order to maintain the rule of bequeathable one-third. This
reduction in the legacy of the legatees is known as abatement of legacies. Under the Sunni
law, the abatement occurs in a rateable manner (proportionally) whereas in Shia law it is
done preferentially.

(b) Doctrine of cypress

Ans.-

Doctrine of Cypress

The word cypress means ‘as nearly as possible.’ The doctrine of cypress is a principle of the
English law of trusts. Under this doctrine, a trust is executed, or carried out as nearly as
possible, according to the objects laid down in it.

Where a settlor has specified any lawful object which has already been completed or the
object cannot be executed further, the trust is not allowed to fail. In such cases, the doctrine
of cypress is applied and the income of the property is utilised for such objects which are as
nearly as possible to the object already given.

The doctrine of cypress is applicable also to waqfs. Where it is not possible to continue any
waqf because of (a) lapse of time or, (b) changed circumstances or, (c) some legal difficulty
or, (d) where the specified object has already been completed, the waqf may be allowed to
continue further by applying the doctrine of cypress.

(c) Doctrine of increase (Aul) and return (Radd)

Ans.-

Doctrine of Aul(increases) and Radd(return)

In doctrine of Aul : The sum of shares allotted to various heir according to their entire
entitlement,
 23

I) May be in access of the unity, or II)may

be less than the unity.

The former situation is solved by the application of doctrine of Aul or increase and the latter
by the application of doctrine of Radd or return. A) Doctrine of Aul or increase

when the sum total of the shares allotted to various heir in accordance with their
entitlement exceeds the unity, then the doctrine of Aul lays down that the share of each
heir should be proportionately reduced. This is done by reducing the fractional share to the
common denominator. Since this is done by increasing the denominator the doctrine has
been the name of increase(aul) though in fact, that share are proportionately reduced.

Ex:P dies leaving behind her husband H, two full sister FD and FD1 and mother M, they will
be allotted the share as under:
H-1/2
FD and FD1 -2/3 M-1/6

The proportionate reduction of share is achieved by increasing the denominator from 6 to 8.

Thus,the share of the respective share will be: H will take 3/8, FD and FD1 will take 4/8 and
M will take 1/8.

B) Doctrine of radd or return:

This doctrine recognizes one exception, that neither the husband nor the wife is entitled to
the return so long as there is alive another sharer or a distant Kindered.

The formula in the case of return is to reduce the common denominator.

For ex: P dies leaving behind his mother M and his daughter D. M will take 1/6 and D will
take 1/2. There remain a surplus of 1/3. Since there is no residuary, 1/3 will return to D and
M. M share will increase to 1/4 and D share to 3/4.

(d) Shia law of inheritance

Ans.-.

Shia Law of inheritance

The Shia Law divides heirs into two groups – by blood relations (consanguinity) and by
marriage (affinity). The heirs by consanguinity are also termed as heirs by Nasab, while the
heirs by affinity are heirs by Sabab.

Based on blood relations a further classification is drawn into three classes. Here the first
shall exclude the second from inheritance and the second exclude the third.
 24

I II III

 Paternal, and
 Parents
 Grandparents  maternal, uncles
 Children and and aunts,
 Brothers and sisters
other lineal
and their descendants  and their
descendants
children

In these three classes, there is no difference between the male and female heirs except that
a male heir will have double the share than that of the female. This can be contrasted with
the Sunni law of inheritance where the daughters are excluded from inheritance.

In respect to the third class of legal heirs in Shia Law, there is no preference on the basis that
someone is linked to a deceased from the paternal or maternal side. As long as they are at
the same degree of relationship, they will share in inheritance irrespective of their gender
and origin of relationship to the deceased.

The partner is never excluded from the succession, he/she inherits together with the
nearest blood relation as may be applicable by the chart mentioned above. A husband is
entitled to one-fourth of the property in the presence of a lineal descendant, and half the
property in absence. A wife, on the other hand, is entitled to one-eighth of the property in
presence of a descendant and one-fourth in absence.

The eldest son, of sound mind, is entitled to wearing apparel of the father, his Koran, ring,
and sword, provided the deceased has left property besides those articles.

(e) Impediments to Muslim inheritance

Ans.-

Impediments to inheritance

Impediment means barring an heir from getting his/her share of the deceased’s estate due
to certain circumstances. These include:

1. Murder.
 25

An heir who deliberately murders the deceased will neither inherit from the latter’s estate
nor from the diyya (i.e. blood money). If the murder is accidental, he/she will inherit from
the deceased’s estate but not from the diyya.

2. Difference of religion.

A Muslim does not inherit from a non-Muslim relative no-matter how close they are, and
vice-versa. For instance, a Muslim father who has a non-Muslim son will not inherit from
him and the other way round.

3. Simultaneous death.

When two or more people who are rightful heirs of one another like father and son,
husband and wife, etc die at the same time maybe under a collapsed building or in similar
circumstance, and it is uncertain who died first, they will not inherit from each other. But it’s
clear that the husband died before the wife for instance, she will be listed among the
surviving heirs of the husband and given her share of his estate. Thereafter, her heirs will
inherit her estate PLUS her share of the husband’s estate.

4. Li’an (Cursing for adultery).

This happens when a man denies the paternity of his wife’s pregnancy and they end up
swearing and cursing themselves as prescribed by Allah in the Qur’an (24: 6 – 9). “And for
those who accuse their wives, but have no witnesses except themselves, let the testimony
of one of them be four testimonies (i.e. testifies four times) by Allah that he is one of those
who speak the truth. And the fifth (testimony) (should be) the invoking of the Curse of Allah
on him if he be of those who tell a lie (against her). But it shall avert the punishment (of
stoning to death) from her, if she bears witness four times by Allah, that he (her husband) is
telling a lie. And the fifth (testimony) should be that the Wrath of Allah be upon her if he
(her husband) speaks the truth.” The child that results will inherit from his mother only.

5. Slavery.

A slave and everything he owns belongs to his master. As far as he remains a slave, he will
not inherit from his relatives and they will not inherit from him. The logic is that if he
inherits, whatever he gets belongs to his master and if his relatives are to inherit from him,
they will actually be inheriting part of the master’s estate.

6. “Emergency marriage”.

This refers to a marriage that takes place when either the bride or groom is in a state of ill
health with a 50:50 percentage of survival and death or the percentage of death is higher.
The healthy partner will not inherit from the sick one if he/she dies as a result of that illness.
Conversely, the sick partner will not inherit from the healthy one supposing the latter
incidentally dies before the former. But if the sick partner fully recovers, then either of them
dies, this rule will not apply.
 26

(f) Doctrine of Mushaa in gift

Ans.-

Doctrine of Mushaa-

Mushaa is derived from the Arabic word “saayu” meaning “undivided share in property”.
The rule of Mushaa as laid down in Hedaya, “is a gift of part of a thing, which is capable of
division, is not valid unless the part is divided off and separated from the property of the
donor whereas a gift of an indivisible thing is valid.

Shafei and Ithna school of thought recognise this principle. According to Asharia Shia, a gift
of undivided property can be validly made. It is necessary that the donor must gift to the
done possession of the undivided property. Hanafi School does not recognise this doctrine.

Kind of Mushaa

1. In property incapable of division.

2. In property capable of division.

In property incapable of division–

A gift of an undivided share in a property (Mushaa) which is not capable of division is valid,
for e.g. A who owns a house, makes a gift to B of the house and of the right to use the
staircase by him jointly with the owner of an adjoining house. The gift of A’s, undivided
share in the stair case though it is a gift of a Mushaa is valid, for a stair case is not capable of
division.

In property capable of division-

If property is capable of division, the gift of Mushaa will be irregular though not void under
Hanafi Law. It can be rendered void by subsequent partition and delivery.

Gift of Mushaa in property capable of division is valid in the following cases-

a. Gift by one heir to another.

b. Gift of a share by a co-sharer in a zamindari or talauqa.

 27

c. Gift of share in the company.

d. Gift of share in the freehold property.

e. Gift of undivided but divisible property.

f. Gift of a Mushaa with the stipulation that the done shall pay a certain sum.

Gift by one heir to another–

Such kind of gift is valid. In Mohammad Buksh v. Hussaina Bibi[2], where a Muslim woman
dies leaving a mother, a son and a daughter the mother can make a valid gift of share to
both or any of them.

Gift of a share by a co-sharer in a zamindari or talauqua–

This kind of gift is valid, as what is gifted is the right received and to collect separately a
definite share of produce or rent of the share, e.g. if A and B are co-sharer in a zamindari,
each having a well-defined share in the rent of undivided land, and A makes a gift of his
share to B, there being no regular partition of zamindari the gift is valid.

However, after the abolition of the zamindari system, it is of no significance.

Gift of share in a company- Gift of

share in a company is valid.

Gift of a share in the freehold property-

In a large commercial town gift of a share in the freehold property is valid.

Gift of an undivided but divisible property–

Gift of an undivided but divisible property to two or more persons jointly is valid for e.g. – X
makes a gift of the house to A and B in equal share as tenants in common. The property is
not divided off and, though their share is clearly defined, possession of their specific shares
 28

is not given to A and B. The tenants are given notice that the properties have been given
away to A and B, to whom the rent is paid.

Gift of a Mushaa with the stipulation that the done shall pay certain sum–

Gift of a Mushaa with the stipulation that the done shall pay a certain sum to someone is not
subject to impediments by the law of Mushaa.

SHIA LAW– According to Shia Law gift is valid in each case whether the property is divisible
or indivisible provided the donor gives to donee possession of property by vacating and
permitting the donee to control it.

(g) Wills during Marazul Maut (Death Bed)

Ans.-

Marz-ul-maut:
A gift to be valid as marz-ul-maut gift must be made during marz-ul-maut, or death-illness.
The most valid definition of marz-ul-maut is that a malady which, it is highly probable, will
issue fatally. A gift must be deemed to be made during marz-ul-maut, if it was made “under
pressure of the sense of the imminence of death.

But where the malady is of long duration, such as consumption or albuninuria, and there is
no apprehension of death, the malady cannot be called marz-ul-maut. The Muslim lawgivers
hold the view that if a disease continues for a period of more than one year then it cannot
be called marz-ul-maut, because, as the Durr-ul-Mukhtar puts it, when a person suffers from
a malady which is ordinarily mortal for over a year, it ceases to have any apprehensive
influence on his mind as it has become part of his nature.

However, even then the disease may become marz-ul-maut if it reaches a stage where the
apprehension of death is genuine or death is highly probable. When a person is in imminent
fear of death whether from disease or any other cause, so that in case of an illness the man
is so broken by it as to be incapable from conducting his ordinary avocations outside his
house; for example, a fakih (jurist) from going to the mosque, a tradesman to his shop, a
woman from attending to her indoor occupation, it is marz-ul-maut.

Another test is thus laid down: when the malady has become so severe as to make it
permissible for the sufferer to offer his prayers without standing up, it must be regarded as
illness of death. Hectic fever, haemorrhage, bilious, bloody swelling and fetid purgings have
been considered to be marz-ul-maut by Muslim authorities.
 29

The Shia authorities are to the same effect. Sharaya-ul-Islam holds that every malady which
is accompanied by a genuine apprehension of death is marz-ul-maut. Thus, temporary fever,
headache, opthelmia and tubercle on tongue are not marz-ul-maut.

It is submitted that all those ailments, whether dangerous or not, which result in death,
should be regarded as marz-ul-maut maladies and those from which death does not ensure
should not be regarded as marz-ul-maut maladies.

A feeling, a sense of imminent death should be there. But an apprehension in the mind of an
old man that he may die suddenly at any time is not such a feeling of imminent death which
may be called marz-ul-maut.

It is now established that in order to constitute a marz-ul-maut gift, the following conditions
must be satisfied:

(i) The malady or illness must result in death,

(ii) The malady or illness must cause a reasonable or genuine apprehension of death in
the mind of the sufferer,

(iii) There should be some external indicia of a serious illness or malady, and (iv) Delivery

of possession must be given to the donee.

In every case, whether a malady or illness is marz-ul-maut or not, will depend upon its facts.
It is an essential ingredient of a marz-ul-maut gift that the donor must die of the malady
from which he was suffering at the time when he made the gift. What is required to be
proved upon the preponderance of probabilities is whether the gift was made by the ailing
person while under the apprehension of the death and further whether while so ailing he
died. If he survives the malady whatever is the nature of malady-the gift cannot be called
the marz-ul-maut gift. In such an eventuality the only question will be whether there has
been a valid hiba. If it is valid as a hiba, then it will take effect as hiba.

The second requirement of a marz-ul-maut gift is that there must be an apprehension of

death in the mind of the donor, irrespective of the fact whether there is or there is none, in
the mind of others attending on him, including the physician. If there is an apprehension of
death in the mind of the sufferer, it is not necessary that he should be confined to bed.

It is a unique feature of marz-ul-maut gift that it must fulfil all the requirements of a valid
hiba, including the delivery of possession, and, at the same time, it is subject to all the
restrictions of a will. “It is, therefore, necessary to understand that a gift by a mariz
(sufferer) is a contract and not a wasiyat, and the right of disposition is restricted to a third
on account of the right of heirs which attaches to the property of the mariz.
 30

And as it is an act of bounty is effective so far only as the law allows and that is a third. And
being a contractual disposition it is subject to the conditions relating to gifts, among them
taking of possession by the donee before the death of the donor”.

Thus, a marz-ul-maut gift cannot exceed one-third of the properties of the deceased. Under
the Hanafi law, a marz-ul-maut gift cannot be made to an heir, unless other heirs consent to
it. Under the Ithana Ashari law, it can be made to an heir also. But among the Ismailya Shias
such a gift cannot be made to an heir without the consent of other heirs.

(h) Revocation of will (Waslyat)

Ans.-

REVOCATION OF THE WASIYAT

The wasiyat is revoked by legator at any time before his death even they change the
conditions, legatee, revoke only some part etc. They have full authority given by Muslim
law. The revocation is also in any way expressed or implied.

(i) Gifts to an unborn person

Ans.-

Legal Provisions Regarding Gifts to Unborn Person in India under Hindu Law

Gifts to unborn persons were not recognised by the traditional Hindu law. This rule still
holds good, except in cases covered by any of the three following Acts, viz.,

1. The Hindu Transfers and Bequests Act, 1914.

2. The Hindu Disposition of Property Act, 1916.

3. The Hindu Transfer and Bequests (State of Madras) Act. 1921.

These three Acts have modified the provisions of the traditional Hindu law, by providing that
no gift will be invalid only because the persons for whose benefit the gift has been made
were not born at the date of the gift.

This altered rule regarding gifts to unborn persons applies to the following cases of
transfers:

1. Transfers executed on or after 14th February, 1914, by Hindus domiciled in the State
of Tamil Nadu. As regards transfers executed before that date, the rule applies to such of
 31

the dispositions as are intended to come into operation after the commencement of the
Hindu Transfers and Bequests Act, 1914.

2. Transfers executed on or after 20th September, 1916, by Hindus in any part of India,
except in the State of Tamil Nadu.

3. Transfers executed on or after March, 1921, by Hindus domiciled within the limits of
the ordinary original civil jurisdiction of the High Court of Tamil Nadu. In case of transfers
executed before that date, the altered rule would apply to such of the dispositions as are
intended to come into operation subsequent to 14th February, 1914.

However, even this altered rule is now subject to the provisions contained in the Chapter II
of the Transfer of Property Act. These provisions may be summed up in the following four
propositions :

(a) If the gift made to an unborn person is preceded by a prior disposition, the gift should
be of the whole residue.
(b) The gift must not contravene the rule against perpetuities laid down in S. 14 of the
Transfer of Property Act.
(c) If the gift is given to a class of persons with regard to some of whom it is void (under
Rule 1 or Rule 2 above), the gift will fail with regard to such persons only, and not in
regard to all such persons.
(d) If the gift to an unborn person is void under Rule 1 or Rule 2 above, any gift intended to
take effect after such gift, will also be void.

(j) Creation of waqf

Ans.-

The person constituting the waqf of his own properties is known as the ‘founder of waqf’ or
Waqif. To become a waqif, a person dedicating the property must be competent enough to
do so according to the provisions of law. Following are the conditions, which need to be
fulfilled to become a waqif and constitute a waqf.

(i) The person constituting the waqf should be a Muslim.

(ii) Should be a person of sound mind.

(iii) Should have attained the age of majority.

The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid
waqf provided the objective of the waqf so created is not against the principles of Islam.
According to the Patna High Court, a valid waqf can also be constituted by a non-Muslim.
 32

However, such a waqf would only be constituted under a public waqf ie. a non-Muslim
cannot create any private waqf (e.g. an Imambara).

A person of unsound mind is incompetent to constitute a waqf property as such a person

cannot judge the legal consequences of such a transaction. Therefore, a waqf constituted
by an insane or minor person is void.

A person may profess the capacity but may not have any right to constitute a waqf. Such a
person cannot constitute a valid waqf. The subject matter of waqf should be owned by the
waqif at the same time when waqf is being constituted. Whether a waqf can be created by a
particular person depends upon whether there exists a legal right for the dedicator to
transfer the ownership of the property or not.

A waqf of any property held by a widow in lieu of her unpaid dower cannot be constituted
by her because she is not an absolute owner of that property.

In case a waqif is a pardanashin lady, it is the duty of the beneficiaries and the mutawalli to
prove that the women had exercised her mind independently for constituting the waqf after
fully understanding the nature of the transaction.

A person can dedicate his entire property for the creation of waqf but in the case of the
testamentary wakf, more than one-third of property cannot be dedicated.

(k) Characteristics of Wakf

Ans.-

Characteristic features of a wakf

1. Property vests in God:- the outstanding feature of wakf is that the ownership of
property dedicated for the wakf vests in God. The tying up of property in the
ownership of God, the almighty, and devotion of the profits for the benefit of human
beings. Once the dedication of property is made to the wakf, the ownership of wakif
is extinguished and it is transferred to God.
2. The creation of a wakf is essentially based on a legal fiction, the fiction, being that
the property vests in God in perpetuity, but income from the property is permitted
to be utilized for certain specified purposes, which under the Muslim Law are
recognised as pious or religious.
3. Wakf must be permanent:- a Muslim wakf must be created for an unlimited period.
Wakfs for limited periods are unknown to and are not recognised by Muslim Law. In
short, perpetuity is an essential and outstanding feature of the wakf .
4. Wakf must be irrevocable:- the irrevocability is another characteristic feature of a
wakf. Once constituted validly, a wakf cannot be revoked. If in wakf nama a
condition is stipulated that the wakif reserves the right of revoking wakf to himself,
or that the wakf will stand revoked on the happening of any event, then such a wakf
is void.
 33

5. Wakf properties are inalienable:- it is natural corollary to the doctrine of permanency

of wakfs that once the properties are dedicated to God, they cannot be alienated.
However this rule is not absolute and in certain circumstances, it is permissible that
mutawalli may alienate the wakf properties.

(l) Valid objects of Wakf

Ans.-

VALID OBJECTS OF WAKF

An essential for the validity of wakf is that the dedication should be for a purpose recognized
as religious, pious or charitable, under Muslim Law.
On basis of decided cases and the text of eminent Mohammedan Jurists, certain objects
which had been declared to be valid objects of wakf are:- 1. Mosque and provisions for
Imamas to conduct worship.

2. Celebrating the birth of Ali Murtaza

3. Repairs of Imambaras.

4. Maintenance of Khankahs.

5. Reading the Koran in public places and also at private houses.

6. Maintenance of poor relations and dependant.

7. Payment of money to Fakirs.

8. Grant to an Idgah.

9. Grant to the college and provisions for professors to teach in colleges.

10. Bridges and Caravan Sarais.

11. Distribution of alms to poor persons, and assistance to the poor to enable them to
perform pilgrimage to Mecca.

12. Keeping Tazias in the month of Moharram, and provisions for camels and Duldul for
religious processions during Moharram.

13. Celebrating the death anniversary of the settler and of the members of the family.

14. Performance of ceremonies known as Kadam Sharif.

 34

15. The construction of a Cobat or free boarding house for pilgrims at Mecca.

16. Performing the annual Fateha of the members of his family.

17. A Durgahor or shrine of a Pir which has long been held in veneration by the public.

(m) Legal incidents of Wakf

Ans.-

LEGAL INCIDENTS OF WAQF

1. Irrevocability – The view of Abu Hanifa is that a waqf can be revoked by waaqif, unless the
declaration has been confirmed by a decree of a Court. But Abu Yusuf takes a contrary
view and hold that a declaration of waqf is in its nature irrevocable. The opinion of Abu
Yusuf is followed in India.

2. Inalienability – As the waqf property belongs to God, no human being can alienate it for
his own purposes.

3. Perpetuity – It is an essential condition of waqf. A waqf for a limit period is invalid.

4. Pious or charitable use of usufruct – The product and benefits of the waqf property are
utilised for such purposes which are recognized as religious, pious or charitable under
Muslim Law.

5. Absoluteness – The settlement of the property in waqf is absolute. A conditional or

contingent waqf is void.

(n) Administration of Wakf

Ans.-

Administration Of Wakf: -

The Central Government is responsible for the implementation of the Wakf Act. It has been
taking up issues of common concern to promote the interests of Wakfs in the country. The
Wakf Act, 1954 had provisions for survey of Wakfs, constitution of Central Wakf Council and
State Wakf Boards etc. For better interpretation of the provision of the Act keeping in view
the objective of the legislation, the Wakf Act, 1954 was amended many times. Finally a
comprehensive and land mark legislation i.e. Wakf Act, 1995 was enacted by the
Government of India in November, 1995, which became effective from 01.01.1996. In
 35

contrast to the previous Act, this Act is applicable throughout the country except for Jammu
& Kashmir and Dargah Khwahja Saheb, Ajmir.

Sec 32 (2)(c)

“Without prejudice to the generality of the foregoing power, the functions of the Board shall
be to give directions for the administration of wakfs”

The provision is of general nature but the directions of the board must be lawful and fall
within the competence of the board as the superintending authority of the wakfs.

The board has to maintain a record containing the details regarding the origin, income,
object and beneficiaries of every wakf [sec 32 (2) (a)]. It is one of the basic functions of the
board to see to the proper application of the income of the wakf properties, in accordance
with the objects and purpose of the wakf. Misapplication and misappropriation of the
income from the wakf properties have become a common feature and the board has to
make a lynx eyed scrutiny of the income and the expenses of every wakf [Sec 32(2)(b)]. The
inspectors and superintendents of wakfs should make periodical and surprise scrutiny of the
accounts of the wakfs and must be held responsible for any lapse on their part. The power
to frame schemes for management of wakfs is conferred on the board and this power has to
be excercised after due notice to the Mutawalli and to all parties affected and after giving
them sufficient opportunities of being heard [Sec 32 (2)(d)]. This is done by the Board on its
own motion or on the application of not less than 5 persons interested in any wakf to frame
a scheme for the administration of that wakf in consultation with the mutawalli and the
applicants, if it is satisfied that the framing of a scheme is necessary or desirable [Sec 69].
The Board has power to issue directions: -

i. For the utilisation of the surplus income consistent with the objects of the wakfs

ii. For the manner of utilising the income where the object of the wakf is not disclosed
in any written instrument

iii. Where any object of a wakf has ceased to exist or has become incapable of
achievement [Sec 32 (2)(e)].

The board is empowered to scrutinise and approve the budget submitted by the mutawallis
and to arrange for the auditing of the accounts of the Wakfs. This power must be exercised
by the board not in a casual or cavalier manner, but with a deep sense of duty. In case of
public trusts and endowments which are administered under schemes framed by the courts,
the annual accounts and budget estimates submitted to the courts were never seriously
scrutinised but were merely recorded [Sec 32 (2)(f)]. The Board has power to remove
Mutawallis in accordance of the Provision of Wakf Act, 1995(Sec 63 & 64) [Sec 32 (2)(g)].
The board is empowered to take measures to recover lost properties of any wakf [Sec 32 (2)
(h)]. The board has the power to institute and defend suits and proceedings relating to
wakfs. The board is a body corporate and shall by the said name sue and be sued. This
 36

power is inherent in the every constitution of the board in which is vested and general
superintendence of all wakfs in the state [Sec 32 (2)(i)]. One of the most important function
of the board is to sanction any transfer of immovable property of a wakf by way of sale, gift,
mortgage, exchange or lease, in accordance with the provisions of this Act: Provided that no
such sanction shall be given unless at least two- thirds of the members of the Board vote in
favour of such transaction [Sec 32 (2)(j)]. The Board is entrusted with the administration of
wakf fund in accordance with the sec 76 of this act [Sec 32 (2)(k)]. The Board is entitled to
call for such returns, statistics, accounts and other information from the mutawallis with
respect to the wakf property as the Board may, from time to time, require under their
management. [Sec 32 (2)(l)]. The Board has the power to inspect, or cause inspection of,
wakf properties, accounts, records or deeds and documents [Sec 32 (2)(m)]. The Board is
empowered to investigate and determine the nature and extent of wakf and wakf property,
and to cause, whenever necessary, a survey of such wakf properties [Sec 32 (2)(n)]. And
finally it gives residuary power to the Board to do generally all such acts as may be
necessary for the control, maintenance and administration of the wakfs in the state [Sec 32
(2)(o)].

(o) Hiba-bil-iwaz
Ans.-

Hiba-bil-iwaz is a peculiar concept of the Muslim personal law. Hiba means gift and Iwaz
means consideration or return. Hiba-bil-iwaz, is, therefore, a ‘gift with an exchange’ or a ‘gift
for consideration’. Under all the systems of law there cannot be any consideration or
exchange in the transaction of gift.

But Muslim law recognises a gift with an exchange as a kind of Hiba. If a gift has duly been
made and completed, but subsequently the donee also gives something to the donor in lieu
of this gift, then the gift is called Hiba-bil-iwaz.

For example, where a makes a gift of his house to B, and subsequently В also makes a gift of
a car to A saying that the car was being given in return of the gift made to him, then the gift
of the house from A to В is a Hiba-bil-iwaz.

Thus, the second gift is actually not any gift; it is consideration for the first gift. In the
Hibabil-iwaz, as accepted and recognised in India, there is a direct reference that the second
gift is return (Iwaz) of the original gift.

Therefore, this is a Hiba only for the name’s sake. The legal nature of this transfer is that it is
either a sale or an exchange, depending on whether the consideration is money or some
property. The result is that the rules of Muslim law of Hiba do not apply on it.

As a matter of fact Hiba-bil-iwaz is a gift in its inception, but it becomes sale or exchange
afterwards when the donee takes possession of the property and donor takes possession of
the Iwaz.
 37

Essentials of Hiba-bil-iwaz:

The essential feature of Hiba-bil-iwaz is that it is a gift for something in return. The following
two conditions are therefore, necessary to render a transfer as Hiba-bil-iwaz:

(a) A valid and complete gift by the donor:

There must be a gift, valid and complete in all respects. The three essential conditions
namely, the declaration, acceptance and delivery of possession must be fulfilled. It is
necessary that there is a bonafide intention on the part of the donor to transfer the
ownership of the property. The property owned by the donor must be an existing property
and must also be made presently i.e. immediately.

In other words, the original transfer by the donor in favour of the donee must be duly
completed gift according to the provisions of Muslim law. Every Hiba-bil- iwaz is pure gift in
its inception. Even if the declaration of this original gift mentions that it is being made for
some consideration, it remains a pure gift.

But, as soon as the donee also makes a gift in return of the original gift, the original gift
becomes Hiba-bil-iwaz.

(b) Actual payment of consideration (iwaz) by the done:

The donee must pay something to the donor after the completion of the gift. A mere
declaration in the gift that it is being made for some consideration is not sufficient; the
consideration referred in the gift must be actually transferred by the donee to the donor.

If donee pays the consideration, the gift is Hiba-bil-iwaz. If the donee does not pay, the gift
continues to be pure Hiba. In Ranee Khujooroonnissa v. Mst. Roushan Jehan, the facts were
that Raja Deedar Hossein executed a gift-deed under which he gave one-third of his
properties of his Zamindari to his eldest son Inayat Hossein in consideration of Rs. 10,000.

But the consideration was never paid. Moreover, there was neither actual nor constructive
delivery of possession in favour of the donee. It was held by the Privy Council that although
the deed referred the transaction to be gift for consideration yet, it could not be treated as
Hiba-bil-iwaz because there was no proof that the consideration was ever paid to the donor
Raja Deedar Hossein.

The Court further observed that in a gift for consideration two conditions at all events must
concur, namely, an actual payment of the consideration on the part of the donee, and a
bona fide intention on the part of the donor to divest himself of the property and to confer
it upon the donee.

As the consideration was not paid to the donor the deed was not a transfer by way of
Hibabil-iwaz. The Court observed that it was a simple gift in which delivery of possession is
necessary. Moreover, as there was neither actual nor constructive delivery of possession,
the gift too was held to be void.
 38

It is significant to note that the donee must mention it clearly that he is transferring the
property to donor in return of a gift made to him. An independent transfer of property by
the donee to donor cannot be regarded as a consideration for the original gift. There is no
Hiba-bil-iwaz if the return (iwaz) is independent of the original gift.

However, the consideration (iwaz) paid by the donee to the donor, need not be equal to the
value of the property gifted. It may be a nominal consideration or less in value as compared
to the subject matter of the gift. In Khujooroonnissa’s case, their Lordships of the Privy
Council rightly observed.

“Undoubtedly, the adequacy of the consideration is not the question. A consideration may
be perfectly valid which is wholly inadequate in amount when compared with the thing
given. Some of the cases have gone so far as to say that even a gift of a ring may be a
sufficient consideration.”

A copy of Quran or, even a prayer-carpet or rosary (Tasbih) has been held to be a good
consideration in the Hiba-bil-iwaz. However, the consideration must be of some monetary
value. Where A makes a gift to В saying: “It is a gift in consideration of your being my son,”
the gift is not a Hiba-bil-iwaz.

This is pure Hiba. In the same manner, where the consideration is services rendered by the
donee or, cordial behaviour or love and affection of the donee towards the donor, it cannot-
be regarded as an iwaz of a gift; it will be a case of pure gift.

Similarly, where a gift was made compensating the donee for the good services rendered by
his father to the donor, it was held that the gift was pure Hiba and not a Hiba-bil-iWaZ. But
in Tajunissa v. Rahmat, the Madras High Court has held that a promise by the donee to
marry donor’s son, was a good consideration for a gift and, the transaction was a Hiba-
biliwaz.