Muslim law, Unit-3

Hiba
Gift
Gift- Inter vivos or testamentary Transfer
● Unconditional transfer of property, made immediately and without any
exchange or consideration, by one person to another person and accepted by
or on behalf of the letter.
● Chapter 7 of Transfer of Property Act 1882 does not cover the gift under
Muslim law and the Muslim Personal law governs the “gift” or "Hiba".
Essentials
● Parties
● Subjects matter
● Extent
● Transfer
Parties:
● Donor and Donee
● Declaration of gift by the donor.
● Declaration of gift by the donor represents his/her willingness to make a gift.
The declaration made should be clear and not ambiguous and by oral or
written.
● Doner
● The person who signifies his willingness to the other person for transferring
his property is known as a donor
● The requisites of the donor are:
○ Must be a Muslim. Any other person in place of Muslim cannot make Hiba.
○ Should be of the competent age i.e he/she must be major.
○ His consent of the donor must be free.
○ He must be of sound mind.
○ He should be having the ownership of the property.
Acceptance of gift by the donee.
● It must be accepted by the donee. If there are more than one or two donee, then it
must be accepted by both the donee.
● If the acceptor of the gift is minor or any person of unsound mind then it can be
accepted by his guardians.
Donee
● The person who expresses his consent for the acceptance of the gift made by the donor is known as the Donee.
● The requisites of the Donee
○ Any person can be a donee.
○ No religion bar. The donee can be of any religion, Muslim or non-Muslim.
○ No age bar for a donee. He/she can be of any age i.e. major or minor.
○ Gift can be made to a religious entity or juristic person.
● Gift to Unborn person is void
○ Ibrahim shah v. Noor Ahmed
○ Father can make gift to minor son but not unborn child.
Ilahi Samsuddin v. Jaitunbi Maqbul,
• In Muslim law, the gift deed is known as Hibanama. The Hibanama
may not be on the stamp paper and is not compulsory to be registered.
Md. Hesabuddin v Md. Hesaruddin
● The declaration should also be expressed gift made in an
unambiguous manner is null and void
Join us on Of do
Subject matter.
● anything over which dominion, or right of property may be exercised;
● anything which can be reduced to possession; or
● anything which exists either as (i) a specific entity, or (il) as an enforceable
right; or (movable, immovable and incorporal)
A property in order to be a valid subject of gift must satisfy the following conditions.
(a) It can be designated under the term mal(property)
(b)It must be in existence at the time when the gift is made, e.g., the gift of
anything to be produced in future void.
(c)The donor must possess it e.g., gift by a trespasser where the donee cannot get
possession is void.
Extent.
● The general rule is that the donor's power to gift his property is unrestricted.
● The doner can gift any amount for his property in his life.
● Exception:
● Gift made during death, illness (will) "death illness' or Marzul Maut.
● (i)Firstly that he cannot gift more than one-third of his whole property; and
● (ii) Secondly, that it cannot be in favour of an heir.
Delivery of possession

Delivery of possession
● In Hiba, the transfer is complete as soon as the possession is transferred from the
donor to the donee. The valid effect of the gift is from the date of transfer and
acceptance of the possession and not from the date of declaration.
● Noorjahan v. Muftakhar, the court held that where the declaration of the gift is
made by the donor but afterwards till his death all the profits made out of the
property is taken by the donor himself the gift is invalid and not effective in nature
since the transfer of possession has not taken place.
The mode of delivery of possession is dependent upon the nature of the property and It
can be Actual or Constructive.
Different modes of delivery :
● Incorporeal property : If physical delivery is not possible then, intent should
be clear
● Movable : Gift becomes complete on delivery of possession:
● Immovable : possition/title deeds
● Exceptions :
○ Fathers gift to- minor or lunatic
○ Doner and Donee reside in the same home
○ Gift by husband to wife
○ Gift by one co-share to another
○ Part-Delivery
○ Under occupation of tenant- The tenant can’t question the vaildity of the gift ( stranger to gift
can’t sue)
○ Incorporeal property
○ When donee is already in possition.
Kinds of gift
Hiba-bil-iwaz :
● Iwaz- consideration:
● Under Islamic law, Hiba means gift and iwaz means consideration. Hiba-bil-iwaz thus
means, the gift for the consideration already given. Under all the laws, there is no system
where there is a consideration for the gift. But under Muslim law, there is a system of gift
with an exchange.
● For example- If A makes a gift of his bungalow in favor of his friend B, and in return, B
makes a gift of his car to A, then it is known as Hiba-bil-iwaz. The second gift made by B to
A is iwaz i.e. return.
● Requisites of a valid Hiba-bil-iwaz:
○ Firstly Valid as per all essentials conditions of Muslim law
○ Secondly, there must be a payment consideration made by the donee.
● Faisal Ahmed khan v. Gulam Ahmed khan
○ A and B were two brothers holding tenancy in common, after A’s death B executed a sale deed in favour of W
and gifted her 2 villages in return she gave A her share in property.
Hiba-ba-shartul-iwaz:
● It means a gift made with a stipulation for return. In this case, the consideration is
not paid by the donee by his own choice but it is paid because it is a necessary
condition here.
● 2 individual gifts are made 1 by donor and another by donee.
Requisites of a valid Hiba-ba-Shartul-Iwaz:
● Firstly, the delivery of possession is important; it is revocable until the iwaz is paid.
● Secondly, as soon as the iwaz is paid it becomes irrevocable.
● Thirdly, a transaction when completed by payment of Iwaz, assumes the character
of a sale.
Revocation of gift:
● The Muslim lawgiver categorised the types of revocation under two different types:
○ Revocation of gifts before the delivery of possession.
○ Revocation of gifts after the delivery of possession.
● Under Muslim law, the revocation of gifts before the delivery of possession is
allowed. Suppose A has transferred the property to B by the way of gift-deed. Now, if
A revokes his gift and no delivery of possession has taken place, this revocation is
valid.
● One the other hand, declaration of revocation of gifts by the donor after the delivery
of possession is not sufficient to revoke a gift. Until and unless the decree of a
competent court is passed, the donee can use the property in any manner he
wishes to. Or with consent of donee
Doctrine of Mushaa
● 'Mushaa' is an Arabic word derived from 'saayu'u' meaning undivided share in a property The rule
as to Mushaa, as laid down in Hedaya is " A gift of a part of a thing which is capable of division is not
valid unless the said part is divided off and separated from the property of the donor; a gift of an
indivisible thing is valid.

Kinds of Mushaa:

● In a property incapable of division: A gift of an undivided share in a property (Mushaa) which is

not capable of division is valid.
● Illustrations: A owns a house, makes a gift to B of the house and of the right to use a staircase by
him jointly with the owner of an adjoining house. The gift of A's undivided share in the staircase,
though it is a gift of a Mushaa, is valid, for a staircase is not capable for division.
● Mushaa in a property capable of division: If the property is capable of division, the gift of Mushaa
will be irregular though not void under Hanafi Law, it means that it can be rendered valid by
subsequent partition and delivery. In Shia Law such gifts are valid if donor withdraws his dominion
over the property
Void gifts
● Gift to unborn persons.
● Future Gift.
● Contingent gift.
● Gift with a condition.-When a gift is made subject to a condition which
derogates it from completeness. The gift is valid but the condition is void, and
the gift will take effect as if there was no condition attached to it.
● Illustration: If a house is given to A for life, and after his death to B, the legal
effect of the gift is that A takes the house absolutely, and B takes nothing.
● Gift of Mushaa
Will
Wasiyat
Meaning
● "Will is an instrument by which a person makes disposition of his property to
take effect after his death, and which is in its own nature, ambulatory and
revocable during his life.
● According to Section 2(h) of Indian Succession Act, 1925

"Will is the legal declaration of the intention of a testator with respect to his
property which he desires to be carried into effect after his death. From this
definition we get the following elements of will :

1.Will is a conferment of right to one's property on another.

2.This conferment of right is to take effect after the death of the testator.
Concept of Will under Muslim Law

● Instructions of the testator written on a plain paper, or in the form of a letter,

that in clear cut terms provide for distribution of his property after his death
would constitute a valid Will
● No formality, No writing, Even no words are necessary as long as the
intention of the testator is sufficiently ascertained through the burden of proof
is heavy when the will is not written,
● If the Will is in Writing, it is called 'Wasiyatnama'
Rules regarding the will

• The testator must be competent to make the Will.

• The legatee must be competent to take the legacy or bequest.

• The subject (property) of bequest must be a valid one (Qualitative requisite).

• The bequest must be within the limits imposed on the testamentary power

of a Muslim (Quantitative requisite).

The testator must be competent to make the Will.

● Major (18+ or 21+ if he is under supervision of court of wards)

● Will made by minor is void, though if he ratifies the will after he becomes a
major then it is valid.
● Sound Mind at the time of making the will, should have a 'disposing mind' i.e.
he should understand properly the consequences of what he is doing.
● Will made under apprehension of death is a valid will
● Shia Law - A will made after attempt to suicide is a void will.
● Will made under undue influence, coercion or fraud is not valid
The legatee must be competent to take the legacy or bequest.

● Any person capable of holding property (Muslim, non-Muslim, insane, minor, a child in its mother's
womb, etc.) may be the legatee under a Will. Thus, sex, age, creed or religion is no bar to the taking
of a bequest.
● A bequest to a person unborn person is valid. (If child born within 6 months (Sunni) 10 months
(Shia) )
● A bequest may be validly made for the benefit of 'juristic person' or an institution (but it should not
be an institution that promotes a religion other than the Muslim religion viz. Hindu temple, Christian
church etc.).
● A bequest for the benefit of a religious or charitable object is valid. It is unlawful to make a bequest
to benefit an object opposed to Islam.
● A person who has caused the death of the legator cannot be a competent legatee.
● Joint Legatees - If No specific share of any of them has been mentioned, the property is divided
equally amongst all the legatees,
The subject (property) of bequest must be a valid one (Qualitative requisite).
● The testator must be the owner of the property to be disposed by will;
● It can be movable or immovable, corporeal or incorporeal property
● the property must be capable of being transferred;
● the property must he in existence at the time of testator's death, it is not
necessary that it should be in existence at the time of making of Will.
● The bequest should be unconditional, if there is a condition the bequest will
exist and the condition only will be void.
● Alternative bequest is valid (given to son, if son not alive then give to wife, if
wife not alive give to charity, this is valid)
The bequest must be within the limits imposed on the testamentary power of a Muslim (Quantitative
requisite).:

● One Third Rule applies, two third estate will always devolve via intestate succession (unless there
is consent of other heirs)
● The '1/3rd limit' rule will not apply if a Muslim marries under the SpecialMarriage Act, 1954, because
then he has all the powers of a testator under the Indian Succession Act, 1925.
● Rule of Chronological Priority (Shia Law)
● According to Shia law, if several bequests are made through a Will, priority would be determined by
the order in which they are mentioned or by the point of time. Thus, legacies take effect in order of
preference.
● Rule of Rateable Abatement (Sunni Law)
● Where a bequest of more than one-third of property is made to two or more persons and the heirs do
not give their consent, the shares are reduced proportionately to bring it down to one-third, or in
other words, the bequest abates rateably. The above rule applies in Sunni law only.
Revocation of Will

● A Muslim testator may revoke, during his life-time, any Will made by him expressly or impliedly.
● A Will can be revoked by a simple and clear declaration to that effect or by a formal deed of
cancellation or revocation of Will.
● Not Necessary that a new will must be made to revoke the earlier one

•Death of Legatee:

● Under Sunni law where before the Will can operate, the legatee dies, the bequest will lapse and the
property bequeathed would remain with the testator and on his death will go to his heirs in absence
of any other disposition by him.
● Under Shia law, the legacy will lapse only if the legatee dies without leaving an heir or if the
testator, after the death of the legatee, revokes the Will.
Waqf
● Meaning: Dedication of property to the ownership of god for 'religious' or
'charitable' purpose is called Wagf
● Such donation can be utilized for the benefit of Mohammedan's only - Karnataka
Board of Waqfs v. Mohd. Nazeer Ahmad
● Waqif: The donor is called Waqif
● Mutawalli: The one who manages of Waqf property is called as Mutawali or
Manager of the Waqf property. The Waqif himself can become Mutawali. By
being Mutawali he can earn salary but will not have right on the property.
Competency of Wagif
● Soundness of Mind
● • Age - Majority (Indian Majority Act - Sec. 3)
● • Subject Matter / Ownership of Property
● • Made with a Clean Hand (non-fraudulent)
● • Widow can't create Wagf from the property that she has as a part unpaid
Dower - Hariprasad vs Fazal Ali Should be Muslim
● • Waqf by person professing Muslim faith (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
○ -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
Types.
Private Wagf

- Wagf for the benefit of Family / Descendant /

Other Relatives / Servants etc

• Public Wagf

- For the benefit of any Muslim

- For the rich and poor

- For the poor only

For the rich in the beginning and then to the poor in

the end etc

Modes of creating waqf
1. By an act of a living person (inter vivos) when a person declares the dedication of his property for
Waqf.

2.This can also be done while the person is on death bed(marz-ul-maut), in which case, he cannot
dedicate more than 1/3 of his property for Waqf without the permission from legal heirs

3.By will (Wagif-bil-Wasiyat)(⅓ portion)- When a person leaves a will in which he dedicates his property
after his death. Earlier it was thought that Shia Cannot create Waqf by will but now it has been approved.

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

5. Formality (oral or written) :

● Jenjira Vs. Mohd. Fakhrullah (Waqf Nama should be clear on purpose)

● Registration : under Indian registration act if value is ₹100 or more.
Essentials of valid waqf
1.Subject Matter
● Ownership of Property - Abdul Kasim Khan v. God almighty(ownership is
essential, mortgage property can’t be give to waqf)
● The property should be Tangible and freely transferable.
2. Inalienable / Dedication to God - Md. Ismail vs Thakur Sabir Ali (SC held nobody can
claim after a time, there should be absolute dedication to god)
3.Unconditional:
● Pattukutti Vs. Avthalakutti (On issue(child)- an uncertain condition, hence invalid)
● North local board v. Gazan Ali- (waqif reserves the powers to add or deduct
beneficiaries)
4.waqif should be complete (refer the competence slide)
5 perpetual/ permanent:
● Karnataka wakf board v. Nazeer Ahmed (must be permanent for benefit of Muslims )
6. Should not be contingent :
● Hussain Vs. Salah (On death - Not contingent-valid waqf)
● Khalif v. Mirza (Waqf with contingency - Void, “The daughter should be given ₹8000
worth immovable property only if they have issues(child) )
7. Irrevocable :
● Inter vivors- irrevocable
● Exceptions:
○ In case of will( revocable before death)
○ In case of marz-ul-maut (if more the ⅓ is given without permission of heir)
8.with objective to benefit muslims:
● Mosques and provisions for Imams to conduct worship
● Repairs of Imambaras.
● Maintenance of Khanqahs.
● Burning lamps in mosques.
● Reading the Quran in public places and also at private houses.
● Maintenance to poor relations and dependants.
● Payment of money to Fakirs
● Grant to an Idgah
● Grant to colleges and provisions for professors to teach in colleges,
● Bridges and Caravan Sarais.
Mutawalli
● Manager/Superintendent of waqf is called Mutawalli.
● He is not the trustee of the property. He has to see that the beneficiaries get the advantage
of the usufruct. He has control over the usufruct alone and has to see that it is used for the
objects of the wagf in accordance with the desire of the wagf. (Fazal Sheikh v. Abdur
Rahman)
Who can be appointed as mutawalli.
● Any person who is of sound mind, has attained the age of majority and is capable of
performing the functions to be discharged under a particular wagh, can be appointed as
mutawalli of the wagf.
● Both male and female of any religion can be appointed as mutawalli
● Female or non Muslim- can’t be Mutawalli if religious duties or spiritual functions are part of
the duties of a Mutawalli.
● For example, a female or non-muslim cannot hold the offices of Sajjadanashin, Khatib,
Mujawar of a daragah or an Imam of a mosque.
Who can appoint a Mutawalli:

● appointed by the founder of the waqf

● wagf is created without appointment of a mutawalli,
○ (i) the waqf fails according to Imam Abu Hanifa and Imam Muhammad
○ (ii) the dedication is valid and the waqif, becomes the first mutawalli according to Abu Yusuf,
and
○ (iii) the wagf is valid and has to be administered by the beneficiaries according to Shia Law.
● Who can appoint Mutawalli-
○ 1. by the founder,
○ 2. failing him, by the executor of the founder,
○ 3. failing him, by the mutawalli on his death-bed,
Powers and duties of Mutawalli :
● A mutawalli may do all acts that are reasonable and proper for the protection
of the waqf property.
● Alienation of property -(He cannot alienate or charge the wagf property
except-
○ (i) by provision in the deed of waqf empowering him to do so,
○ (ii) by permission of the Court, and
○ (iii) by reason of any urgent necessity,
● A mutawalli may do the following things with the permission of the court.
● borrow money;
● sell, mortgage or dispose of wanf property, in any other way.
● Power to lease- if expressed by waqf deed or with permission of court.
●
Pre-emption
Shufa
Pre emption -

● Pre-emption is shufa which literally translates “adding”

● The right of pre-emption or shufa is a right to acquire by compulsory,
purchase in certain cases, immovable property in preference to all other
persons.
●
Requisites of its enforcement.
1)Parties should be competent:

● Shafi-i-sharik- co-sharer in the property,

○ There must be full ownership in the land preempter, and therefore the right to pre-empt does
not arise on the sale of a lease holders interest in the land.(mulls pricincles of MD law)
● Shafi-i-khalit.- person who is entitled to such easements as a right. (Under
itna anshari school they are not recognised)
● Shafi-i-jar- (neighbor)owner of adjoining or contiguous immovable property.
○ Although the neighbour is himself entitled to pre-empt, neither his tenant nor persons in
possession without any title have the right.
○ The right of pre-emption on the ground of vicinage does not extend to large estate, such as
villages or Zamindaris, but is confined to houses, gardens and small parcels of land.
2) Subject of pre emotion :

● The first rule is that the subject of pre-emption must be an immovable

property. It-may be Zamindari property or a house or a garden or a small plot
of land etc.
● The second rule is that subject of pre-emption must be pre-empted as a
whole. No pre-emptor can claim a part of the property sold.
○ Exception-.where several distinct properties are sold by the same contract. In this case, the
pre-emptor may claim the one and leave the other.
●
3) Formality of preemption.
● 1. First Demand (Talab-i-Mowsibat )
● 2. Second Demand (talab-i-Ishhad)
● 3. Third Demand (talab-i-tamleek/khusamat)
First demand/ Talab-i-Mowsibat/ Immediate demand-
● that the moment the news comes to a person that property has been sold, he
should make an immediate demand at the very moment, whether there are
witnesses or not.
● Rajendra Kumar v. Rameshwar Dass,What time is reasonable, is a question
which is to be answered on the facts of each case.
Second Demand (talab-i-Ishhad)(demand of confirmation) :
● The essentials for making it are that the pre-emptor must
○ (1) affirm his intention to assert his right, referring expressly to his having made
the"immediate demand) or talab-i-mowasibat" and
○ (2) then make a formal demand
○ (3) (i) either in the presence of the buyer or the seller ex on the subject of sale and (it) in the
presence of at least two witnesses specially called for that purpose)

3. Third Demand (talab-i-tamleek/khusamat)(demand for possession):

● It is the final enforcement of claim by instituting a regular suit within the period
prescribed by the Indian Limitation Act, if it is not conceded after the second
demand,
Rules of making demand’s:
● The talab-i-mownsibat must be made after the sale is complete and not prior
to its completion.-Rama Saran v. Domini
● It may be either in person or by an authorised agent or even by a letter.
● No formula for making the demand is necessary but the claim must be
unequivoçally asserted, e.g., "do claim my shufa"
● Where there are two or more buyers, the names of all the purchasers need
not be mentioned in making the demand.
● Where the second demand talab-i-ishhad is not made in the presence of the
vendor of the property, the demand must be made to all the buyers.%
● declare his readiness to pay the price.
Right of Preemption, when lost ?
● 1. Acquiescence or waiver- non fulfillment of conditions
● 2. Death- Under Sunni Law, the right is extinguished if the pre-emptor dies during the
pendency of the suit i.e., before obtaining a decree in the suit.But under Shia Law, the right
to sue may be carried on by the pre-emptor's heirs.
● 3. Release by vendor by paying consideration.
When the right is not lost.
● 1. By the death of the pre-emptor during the pendency of the suit.(shia law)
● 2. By refusing to buy when the property is offered to him before sale for the right arises
only when the sale is complete and not before it.
● 3. By the previous notice of sale because, as said above, the right does not arise before
sale.
Cases
Govind Dayal v. Inayatullah.

● Facts.-A Mohammedan sold some immovable property to a Hindu. Another Mohammedan

claimed the right of pre-emption on the ground of his being a co-sharer and vicinage.
● Decision ,- The question for decision was whether in a case in which the pre-emptor and
vendor are Mohammedans and the vendee a non- Mohammedan, the law of
pre-emption could be applied.

Constitutional validity?

● The most important question to be considered is, whether as a matter of fact the law of
pre-emption arising out of custom and acquiring the force of lex loci in particular territories
really offends the provisions of Article 19(1) (f) and Art 13 of the Constitution.
● "The right of pre-emption is nothing more than a mere right of re purchase, not from the
vendor but from the vendee, who is treated, for all intents and purposes, as the full legal
owner of the property which is the subject-matter of that right.
Deathbed transactions
Marz-ul-Maut
● Marz- ul- maut- Mart = illness, Maut = death
● When a person suffering from a Marz is under the apprehension of Maut, he
is said to be suffering from Marz-ul-maut or death illness.
● The most accepted definition of death-illness is given by Baillie. According to
him, it is an illness "which is highly probable", will ensue fatally.

Test of deathbed illness:

● Long continuance- 1 year

● Serious of illness- mere seriousness is not enough, but it should also be
accompanied by long continuance
● Apprehension of death- In the mind of person making the transactions.
Death bed gift.
● Same rule as that of usual gift. (Only ⅓ by will)
● Hasrat bibi v. Ghulam jaffar
○ The donor is suffering from death at time of gift, and which is immediate cause of death
○ Disease of such natura that causes apprehension of death
○ The illness is of such to incapacitate him from the pursuit of ordinary avocations, standing fot
prayer.

ESSENTIALS OF DEATH BED GIFT:

● 1. Declaration of the gift by the donor.
● 2. Acceptance of the gift by donee or on behalf of donee.
● 3. Delivery of the possession of the subject matter
● Death bed gift is operative after the donor’s death.
DEATH-BED ACKNOWLEDGMENT OF DEBT

● If the liability to pay a debt is acknowledged during death illness, it is called a

deathbed acknowledgement of debt.
● 1. An acknowledgment in favour of an heir is not binding upon the estate
except under Ithna Ashari Law.
● 2. An acknowledgment in favour of a non-heir is conclusive against the heirs
and legatees even beyond the extent of one-third of the estate.
● Release of debt : The releasè of a debt during the Marz-ul-maut is valid only
to the extent of 1/3rd and is subject to all restrictions applying to
marz-ul-maut.
DEATH-BED WAQF
● A waqf made on death-bed is subject to the same rules that govern other death- bed
dispositions i.e., it will take effect only to extent of 1/3rd of the property unless the
heir's consent to it.
● Mumtaz ahmad v. Wasi- un-nesa
○ Where there was evidence that donors will not despair of his life at any time much less at the time of
waqf. Donation of more then ⅓ to waqf was valid.

DOWER CONTRACTED DURING DEATH ILLNESS

● A dower contracted during death-illness is governed by the rules of mehr-e-misl
(customary dower).
● Release of dower debt : The gift of a dower debt by a sick woman when the
probability is that the death would ensue, would not be valid except with the assent
of the heirs.
MARRIAGE CONTRACTED ON DEATH BED

● A marriage contracted on death-bed is invalid, but if the person recovers from

the illness, the consummation can cure the invalidity.

Repudiation of marriage by the sick (Talaq-ul-Mariz)

● The pronouncement of Talaq in Marz-ul-maut is valid both under the Sunni

and Shia Law.