Islamic Personal Law

Islamic Personal Law
Lesson No 01
Will/Wasiyyah/Beques
In Muslim law, the testamentary document called the will is referred to as Wasiyat .Will or
Wasiyat is a document made by the legator in favour of legatee which becomes effective after
the death of the legator. Under Muslim law no person is entitled to make will of the whole
property.Limitations are imposed in making will.The reason being to pay the respect to the word
of prophet in order to ensure the shares of the legal heirs. In case of will of absolute property
nothing will remain for all sharers prescribed under Muslim Law. Wills are declared lawful in
the Quran, though the Quran itself does not provide for the testamentary restriction of one-third.
The permissibility of bequests up to one-third is traced to a Hadis of the Propeht which ahs been
stated by Sa’d Ibn Abi Waqqas and reported by Bukhari.
Introduction
Sa’d Ibn Abi Waqqas said: “The Messenger of God used to visit me at Mecca, in the year of the
Farewell Pilgrimage on account of my illness which had become very serious. So I said, “My
illness has become very severe and I have much property and there is none to inherit from me
but a daughter, shall I then bequeath two-thirds of my property as a charity?” He said, “No.” I
said, “Half?”, He said “No.” Then he said: “Bequeath one-third and one-third is much, for if
thou leavest thy heirs free from want, it is better than that thou leavest them in want, begging of
other people; and thou dost not spend anything seeking thereby the pleasure of Allah but thou
art rewarded for it even for that which thou puttest into the mouth of they wife”In Muslim law,
the testamentary document called the will is referred to as Wasiyat. Wills are declared lawful in
the Quran, though the Quran itself does not provide for the testamentary restriction of onethird.
The permissibility of bequests up to one-third is traced to a Hadis of the Propeht which has been
Meaning and Nature
A will is essentially a legal declaration which signifies the intention of the testator (the
maker of the will) with regard to the distribution of his or her property which takes effect after
death. Till he or she is alive, the testator has full ownership and control over the property. A will
Miss Mamoona Khalid Lecturer University Law College

Lesson No 01
does not affect the power of the owner to transfer the property either inter vivos or by any other
testamentary disposition. It is not binding upon the testator in any manner, especially before his
or her death. It is a revocable document, either by formal cancellation or by a subsequent will on
the same property. A will executed by a person will also be revoked if he or she loses sanity and
becomes of unsound mind subsequent to execution. The Muslim law of wills affects only
Muslims. Where a Muslim gets married under the Special Marriage Act, 1954 either to a Muslim
or a non-Muslim, he or she along with the respective spouse and the children born of this
marriage would no longer be governed by the Muslim law of Succession but will be
governed by the provisions of the Indian Succession Act, 1925. The essential differences
between the rules governing disposition of property by a will under Muslim Law and under
Indian Succession Act, 1925 is that under Muslim Law, a testator cannot make a will of more
than one-third of his or her property but under Indian Succession Act, a person can make a
testamentary disposition of 100% of the property. Secondly, under Muslim Law there are
restrictions on the powers of the testator in case of an heir and under Indian Succession Act there
is no such restriction.
This research project analyses the law of Wills in general-the nature and scope of wills, the
execution of the wills and the validity of wills in both Sunni and Shia Law.
Concept of a Will
When a Muslim dies there are four duties which need to be performed. These are:
1. Payment of funeral expenses
2. Payment of his/her debts
3. Execution his/her will
Distribution of the remaining estate amongst the heirs according to Shariat.
When a person dies his/her property devolves upon his/her heirs. A person may die with or
without a will (Testament). If he or she dies leaving a will, the property is distributed among
his/her heirs according to the rules of Testamentary Succession. In other words, the property is
distributed as per the contents of the testament or will. On the other hand if a person dies
leaving no testament (will), that is dies intestate, the rules of intestate Succession are applied for

Lesson No 01
distribution of the property among heirs. The Islamic will is called al-wasiyya. A will is a
transaction which comes into operation after the testator’s death. The will is executed after
payment of funeral expenses and any outstanding debts. The one who makes a will (wasiyya) is
called a testator (al-musi). The one on whose behalf a will is made is generally referred to as a
legatee (al-musa lahu).
The following terms are important to note in terms of wills:
a. Testator:-The person, who makes/creates a will.
b. Legatee:- The person/persons, in whose favour, the will is created.
c. Legacy:- The subject matter of the will. It is the property to be distributed among the
heirs.
d. Executor:- The testator, while executing the will, may appoint a person to execute the
will in accordance with its contents (after his death). In the absence of the appointment
of Executor by the testator, the Court may appoint a person called 'Administrator' to
execute thee will. Ameer Ali1 says “a will from the Mussalman point of view is a divine
institution since its exercise is regulated by the Quran”. At the same time the Prophet declared
that the power should not be exercised to the injury of the lawful heirs. Tyabji says that a will
means “the legal declaration of the intentions of a Muslim with respect to his property which he
desires to be carried into effect after his death.” The ancient texts in Muhammaden law
definitely dealt with wills. The leading authority on the subject of wills is the Hedaya which was
composed by Sheikh Burhan Ud-din Ali. According to the Hedaya, “a will is the endowment
with the property of anything after death”. A will confers a right to property in a specific thing or
in a profit or advantage in the manner of a gratuity postponed till after the death of a testator.
The fundamental idea of a will is that the testator should thereby dispose of his property or such
part thereof as his personal law permits him to bequeath by Will. Under pure Islamic Law a will
is purported to direct that after the testator’s death a certain task be completed or that a portion of
his property be given in ownership to someone or that the ownership of testator’s property be
transferred to someone or that it be spent for charitable purposes or the person making a will may
appoint some person as guardian of his children and dependants.

Lesson No 01
Nature of the ‘Will’

The importance of the Islamic will is clear from the following two hadith:
1. Sahih al-Bukhari: “It is the duty of a Muslim who has anything to bequest not to let two
nights pass without writing a will about it.”
2. Ahmad and Ibn Majah: "A man may do good deeds for seventy years but if he acts
unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon
him, and he will enter the Fire.If, (on the other hand), a man acts wickedly for seventy
years but is just in his last will and testament,the goodness of his deed will be sealed
upon him, and he will enter the Garden.”
The will gives the testator an opportunity to help someone (e.g. a relative need such as an
orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can
be used to clarify the nature of joint accounts, those living in commensality, appointment of
guardian for one’s children and so on. In countries where the intestate succession law is different
from Islamic law it becomes absolutely necessary to write a will. The Islamic will includes
bequests and legacies, instructions and admonishments, and assignments of rights. No specific
wording is necessary for making a will. A Muslim can make a will orally or in writing3. Muslim
law requires no specific formalities for creation of a will. It may be made in writing or oral or
even by gestures. Though it is in writing, it need not be signed by the testator and attested by the
witnesses.4 It is necessary that the intention of the testator should be clear and unequivocal.
In Islamic law the will can be oral or written, and the intention of the testator must be clear that
the will is to be executed after his death. Any expression which signifies the intention of the
testator is sufficient for the purpose of constituting a bequest.
Therefore there are two types of wills: Oral and Written. If a document possesses the
characteristics of a will, the document is considered to be a complete will. In the case of an oral
will, no specific number or class of witnesses is necessary for the validity of a will. However the
following conditions need to be satisfied :
a. Legator’s intention to make a will must be proved beyond doubt.
b. Terms of the will must be proved
c. Will must be proved with the greatest possible exactness.

Lesson No 02
Essentials of a Valid Will

Introduction
On the other hand, in case of a written will, there should be two witnesses to the
declaration of the will. If the testator fails to mention the quantity or amount of bequeathed
property, regard may be given to the number or quantity owned by the testator at the time of
death. The will is executed after payment of debts and funeral expenses. The majority view is
that debts to Allah such as zakh and obligatory expiation should be paid whether mentioned in
the will or not. However, there is difference of opinion on this matter amongst the Muslim
jurists.For a will to be valid, the following conditions are to be satisfied.
1. Capacity/Competence of Testator;
2. Competence of Legatee;
3. Subject Matter:
4. Testamentary Capacity.
1. Capacity of Testator:-
According to Muslim Law, a testator or legator has to fulfil the following conditions: age of
majority, validity of gifts made by guardians, validity of a person who has attempted suicide and
soundness of mind. According to Muslim Law, the age of Majority is 15 years, but it is not
applicable to the wills in India. It may be noted that under Shia law, age of majority is not a
condition precedent for making a will. Tyabji states that “the Shiite Law of wills must be deemed
to be unaffected by the Majority Act which defines the age of majority as 18 or 21 and only
questions related to marriage, divorce, adoption, and religious usages are exempt from this”. A
Shiite who is ten years old is thus exempt from the Act and has discretion and is competent to
create a will. It has however been held that this view cannot be accepted. There is no expression
provision in the Act which excludes the operation of law for Shia Mulsims.
The Shafi School of Sunni Law has prescribed certain conditions:
a. A person who is capable of duties can make a valid will

b. A person who is under inhibition on account of insanity cannot make a will
c. A person who is not on his senses cannot make a will
Miss Mamoona Khalid Lecturer Law College

Lesson No 02
d. A will made by a child is also not valid. However there is a difference in opinion among
Muslim Law Scholars. However, under Muslim law, a will cannot be made by the
guardian on behalf of the minor or insane person and it will be treated as void. A will
made by a person when he was a minor but after attaining majority he ratified the same
will be treated as valid.
Under Shia Law, a will made after the testator who was injured by his own actions or
tried to commit suicide, such a will is declared as invalid. In Mazhar Hussain v Bodha Bibi6 it
was held that a will of suicide is valid when made in contemplation of taking poison but before
poison was actually taken, onus of proving that the will was written afterwards rests on party
impugning with. Tyabji says that “a will made by a testator whose mind is unsound does not
become valid by his subsequently becoming of sound mind. A will made by a person while of
sound mind becomes invalid if the testator subsequentlybecomes permanently of unsound mind.”
2. Competence of Legatee:-
Any person having capacity to hold the property can be a legatee. The Legatee may be a
Muslim or a Non-Muslim who is not hostile towards Islam, man or woman, a major or a minor
or even a child in the womb provided the child is born within 6 months of the death of the
testator. A person who renounces Islam cannot be a competent legatee. An institution is also a
valid legatee. In the general sense, the institution should not be hostile towards Islam and not
promote anti-Islamic activities. A will in favour of a Hindu temple or a society that propagates
another religion will not be a valid will. However an institution engaged in promoting education
and self-reliance is a valid one as long as it is not against Islam.Where a legatee under a will is
responsible for the murder or causing death to the testator, the will made in his or her favour will
be invalid under Sunni Law. It is irrespective whether the murder was cause accidentally or
intentionally. It is also immaterial if he knew about being a beneficiary in the will. Under Shia
Law, the legatee will be incompetent to receive the benefits if the murder was caused only
intentionally. The time of making the will is of no consequence. The legatee must be capable of
owning the bequest. Any bequest made in favour of any legal heir already entitled to a share is
invalid under traditional Sunni Muslim law unless consent has been given by other legal heirs.
An acknowledgement of debt in favour of a legal heir is valid. Acceptance or rejection of a
bequest by the legatee is only relevant after the death of the testator and not before. Generally
speaking once a legatee has accepted or rejected a bequest he cannot change his mind

Lesson No 02
subsequently.Where the testator has bequeathed the property jointly to several certain or
ascertained persons, the bequeathed property will be divided equally amongst the legatees. Under
Hanafi law the legatees who have survived the testator will take the property.
The whole of a bequest made to several legatees collectively of whom one or more predeceases
the testator is taken by the surviving legatees, Where the testator has directed that legatee will be
entitled to take only a definite part of the bequest, the legatee will be entitled to inherit such
portion of the property.
3. Subject matter:-
A Muslim can bequeath any property movable or immovable, corporeal or incorporeal, which
must be in existence and transferable at the time of testator's death. Therefore it is not necessary
that the subject matter of the will must exist at the time of making the will but it must exist when
the will becomes operative that is at the time of the death of the testator.
4. Testamentary Capacity:-
A Muslim cannot dispose of by will more than one-third of the net assets after allowing for
the debts and funeral expenses of the testator (under both Hanafi Law and Shia Law). The
remaining 2/3 share should be made available for distribution amongst the heirs. Even for
bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs. Thus, the
testamentary capacity of a Muslim is cut down by two principal limitations:
a. as to quantum where he cannot bequeath more than one-third of his net estate
b. as to the legatees where he cannot bequeath to his own heirs.

Islamic Personal Law-II
Lesson 03
Doctrine of Consent, Abatement of Will & Registration and

Revocation of wills
Importance of the consent
Under Sunni Islamic law the power of the testator is limited in two ways: firstly, he or she cannot
bequest more than 1/3 of the totally property unless the other heirs consent to the bequest or
there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and
the residue can be bequeathed and secondly, the testator cannot make a bequest in favour of a
legal heir under traditional Sunni Muslim law. Here consent must be given at the time of the
operation of the Will, that is, after the death of the testator.There are two exceptions to the one-
third rule:
1. When the testator does not have any heir. In such cases, if the restriction of permissible
one-third is applied, then the beneficiary is the Government who will take the property
by doctrine of Escheat, while the primary purpose of applying the bequeathable
permissibility to the extent of one-third is to protect the rights of the heirs, and not that
of the Government. An heirless person can thus make a bequest of the total property.
2. Where the heirs themselves consent to the bequest in excess of one-third. As the chief
objective is to safeguard the interests of theirs, the excess bequest can be validated by
consent.
Under Shia Law, the bequest in favour of an heir is valid without consent of other heirs
provided it does not exceed the bequeathable one-third limit. If it is in excess of the one-third,
then the consent of those heirs is necessary whose share is likely to be affected by the bequest.
The consenting heirs must be majors, sane and not insolvent in law to be considered as valid
consent. The consent given by the heirs may be expressed or implied. It may be oral or in
writing. It can also be implied from conduct. Mere silence or inaction would not be taken as
consent even if heirs were present at the time of the proceedings for effecting the names in the
Will. Where a will is executed in writing and is attested by the testator’s heirs it is sufficient
proof of their consenting to the act of the testator. Where the testator makes a bequest in favour

Lesson 03
of an heir and on his death, the other heirs help the legatee in effecting a mutation in name or
allow the heir to take exclusive possession of the property it is proof of the heirs’ consent.
Under Shia Law, the consent of heirs whose shares are adversely affected can be given before or
after the death of the testator and under Sunni Law, it must be given after the testator’s death.
But once the consent is give, it cannot be rescinded subsequently and the heirs are bound by it.
Similarly, consent cannot be given after an heir has previously repudiated it.
The legacy in favour of an heir can be validated by obtaining the consent of one or some of the
heirs or even all of them collectively. Where all the heirs give their consent the legacy is valid to
the extent of the shares of all. Where only one or some of them give their consent the legacy
would be valid only to the extent of the heirs’ shares. In the case of Gulam Mohammed v Gulam
Hussain, the Privy Council held that a bequest in favour of heirs without the consent of other
heirs is invalid.
Abatement of legacies
A Muslim testator can make a will of only one-third of his property without the consent of his or
her heirs. If the bequest is in excess, and the heirs refuse to give their consent, the totality of the
will does not become operative or invalid but abates rateably and is valid to the extent of one-
third of the property, as has been stated in the Hedaya. In Damodar Kashinath Rasane v
Shahzadi , the Bombay High Court stated that a Muslim cannot bequeath more than one-third of
his property whether in favour of an heir or a stranger.
The rule of Abatement is different in Sunni Law and in Shia Law.

I) In Sunni Law, the general rule is that a bequest in excess of the one-third of the estate of the
deceased would take effect with respect to one-third with the excess going by inheritance. Where
there are more than one legatees and the property given to them exceeds one-third, the shares of

Lesson 03
each of the legatees would be reduced proportionally. This is called the „Rule of Rateable
Proportion’.
The following principles are applied:
a. The property disposed of by will, must first abate equally and rateably.
b. The proportionate part of each bequest which is for a secular purpose must be
allotted to it
c. The proportionate parts so abated of bequests for pious purposes must be
aggregated and the aggregate distributed so that the priority will be given to the
extent of the full bequest. In such cases the following rules are applied:
The Quranic rules will be given first preference. The Quranic heirs will have precedence
over other bequests for pious purposes.
 The property will be applied for certain works which are necessary.
 The property will be applied for voluntary purposes.
There is an exception to the above rule. Where the legator has left only his or her spouse, and
apart from the spouse there is no other heir, the above rule of only making one third of the
property may become inapplicable. In such cases, the spouse shall take the whole property. The
rule of bequeathable third shall have no application if no heir has survived the legator.
If a Muslim bequest more than one-third of the property and the heirs does not consent to the
same, the shares are reduced proportionately to bring it down to one-third. Bequests for pious
purposes have no precedence over secular purposes, and are decreased proportionately. Bequests
for pious purposes are classified into three categories:
I. Bequest for faraiz, that is, purposes expressly ordained in the Koran viz. hajj, zakat and
expiation for prayers missed by a Muslim.
II. Bequest for waji-bait, that is, purposes not expressly ordained in the Koran, but which are
proper such as charity given for breaking rozas.
III. Bequest for nawafali, that is, purposes-deemed pious by the testator, viz. bequest for
constructing a mosque, inn for travellers or bequest to poor. The bequests of the first
category take precedence over bequests of the second and the third category and bequests
of the second category take precedence over those of the third.
An example under the Rule or Rateable Proportion: If a Muslim Man executes a Will giving
Rs.30,000 to A and Rs. 20,000 to B. He leaves behind property that comes up to Rs.75,000 after

Lesson 03
payment of funeral expenses. Here the bequeathable limit would be one-third, which would be
Rs.25,000 while the bequest in the will at the moment is Rs.50,000. The bequest in favour of A
and B will be proportionately reduced.
The ratio of the bequest will be the same but both bequests will be reduced to half, that is, the
bequest due to A would become Rs. 15,000 and that of B would be Rs.10,000. The sum total
would then by Rs.25,000 which would make it valid.
II) Under Shia Law, the principle of rate able abatement is not applicable and the bequests
made prior in date take priority over those later in date. But if the bequest is made by the same
will, the latter bequest would be a revocation of an earlier bequest. This is called the Rule of
Chronological Priority. The legatee whose name appears first in the Will is to be given his or
her share, followed by the second legatee and then the third and so on. The moment the
bequeathable one-third is exhausted full effect has been given to the Will. Any other legatee
whose name follows after the one-third of the assets has been distributed will not receive
anything. The rule of chronological priority is not applicable in cases where under one legacy
two or more persons have been an exact one-third of the total assets. In such cases, the
legatee whose name appears last gets the one-third given to him under the Will, and the legatees
whose names appear prior to him will not get anything.
For example, A testator dies behind leaving assets worth Rs.1,20,000. He leaves a will under
which he leaves Rs.20,000 to A, Rs. 30,000 to B and Rs. 40,000 to C. As the total assets of the
testator are to the tune of Rs.1,20,000, the bequeathable one-third of that amount would be Rs.
40,000.
Following the rule of Chronological Priority, as A’s name appears first, he will be given Rs.
20,000. The rest of the Rs.20,000 of the one-third will be given to B. C will not get anything as
the one-third (Rs. 40,000) is exhausted.
Registration and revocation of wills
REGISTRATION OF WILLS
Though it is not necessary to register a will, but the Law recognizes a Registered will when the
execution of a will is disputed and when there is an unregistered will. The provisions relating to
registration of the will have been given in s Registration Act. The testator, after his death, or any

Lesson 03
person claiming as executor or otherwise under a will, may present it to any Registrar or Sub
Registrar for registration. No time limit has been prescribed for registering the will and a will
may be presented for registration at any time. A will presented for registration by the testator
may be registered in the same manner as any other document.
A will presented for registration by any other person entitled to present it shall be registered, if
the egistering officer is satisfied:
a. that the will or authority was executed by the testator;
b. that the testator is dead; and
c. that the person presenting the will is entitled to present the same.
The registration of will is not the proof of the testamentary capacity of the testator as the
Registrar is not required to make an enquiry about the capacity of the testator except in case the
testator appears to him to be a minor or an idiot or lunatic.
CODICIL
Codicil means an instrument made in relation to a will and explaining, altering or adding to its
dispositions and shall be deemed to form part of the will. The codicil is generally made to make
slight changes in the will, which has already been executed. A codicil cannot alter a will more
than what is necessary to carry out the testator's intention as evidenced by the will and the
codicil.
Executor of the will (Al-wasi Al- mukhtar)
The executor or al-wasi of the will is the manager of the estate appointed by the testator. The
executor has to carry out the wishes of the testator according to Islamic law and to watch the
interests of the children and of the estate. The authority of the executor should be specified.
Hanafi law states that the executor should be trustworthy and truthful; Shia Law states that the
executor must be just. The Hanafi law considers the appointment of a non-Muslim executor to
be valid. The testator may appoint more than one executor, male or female. The testator should
state if each executor can act independently of the other executors. If one starts acting as an
executor, one will be regarded as having accepted the appointment, both in Islamic and in
English law.
REVOCATION OF WILL BY A MUSLIM

Lesson 03
The basic feature of a will is its revocability. The testator may revoke his will at any time before
his or her death either expressly or impliedly. The express revocation may be either oral or in
writing. A will may be expressly revoked by tearing it off or by burning it. This revocation is
possible till the testator breathes hislast which is Marzul Maut (end at the death bed). Similarly a
testator is lawfully empowered to make a subsequent will of the same property and the previous
will would be revoked. The will can be revoked impliedly by testator transferring or destroying
completely altering the subject matter of the will or by giving the same property to someone else
by another will. Where the testator has disposed of the bequeathed property by way of alienation
it will be presumed that the testator has revoked the bequest.A subsequent sale or gift of the
property may also amount to revocation.
Therefore under Islamic Law, the following conditions can stand as revocation:
a) sale of the bequeathed property
b) gifting the property
c) when the property is materially changed or altered by way of addition and the property cannot
be delivered Mere denial by the testator as to the validity of a bequest will not be sufficient to
revoke the will.
A similar declaration will not amount to revocation either. Under Islamic Law, a bequest to a
person is revoked by a bequest in a subsequent will of the same property to another. But a
subsequent bequest, though it be of the same property to another person in the same will does not
operate as revocation of the prior request and the property will be divided between the two
legatees in equal shares, as per the Hedaya. Another important aspect of Revocation is intention
of the legator. It is important to show that a legato has intended to alter the will and the alteration
in the deed, is a result of an altered intention in the interest of justice and good conscience.

Concept of will under Muslim Law
A Will or Testament or Wasiyat has been defined as â€œan instrument by which a person makes
disposition of his property to take effect after his death.â€•
Tyabji defines Will as â€œconferment of right of property in a specific thing or in a profit or

advantage or in a gratuity to take effect on the death of the testator.â€•
The distinguishing feature of a Will is that it becomes effective after the death of the testator and it is
revocable.
Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property
bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any manner
whatsoever in the legator's power of enjoyment of the property including its disposal or transfer (in
that case the Will becomes revoked).
Object and Significance of Wills

The object of Wills according to the tradition of the Prophet is to provide for the maintenance of
members of family and other relatives where they cannot be properly provided for by the law of
inheritance.
At the same time the prophet has declared that the power should not be exercised to the injury of the
lawful heirs.
A bequest in favour of an heir would be an injury to the other heirs as it would reduce their shares and
would consequently induce a breach of the ties of kindred.
Thus the policy of the Muslim law is to permit a man to give away the whole of his property by gift inter
vivos, but to prevent him, except for one third of his estate, from interfering by Will with the course of
the devolution of property according to the laws of inheritance.
A Will offers to the testator the means of correcting to a certain extent the law of succession, and
enabling some of those relatives who are excluded from inheritance to obtain a share in his property,
and recognizing the services rendered to him by a stranger.
Formality of a Will
As a general rule, no formality is required for making a Will (Abdul Manan Khan v Mirtuza Khan).
No writing is necessary to make a Will valid, and no particular form, even verbal declaration is
necessary so long as the intention of the testator is sufficiently ascertained.
Where the Will is reduced to writing it is called a â€˜Wasiyatnama.â€™ If it is in writing it need not be
signed. It does not require attestation and if it is attested there is no need to get it registered.
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 (Abdul Hameed
V.Mahomed Yoonus).
In case, a Will is oral, the intention of the testator should be sufficiently ascertained. In comparison to
a Will in writing which is easier to prove, the burden to prove an oral Will is heavy.
Requisites of A Valid Will

# The testator (legator) must he competent to make the Will.
# The legatee (testatrix) 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).
Testator and his Competence (Who can make Will?)

Every major Muslim (above 18 years) of sound mind can make a Will.
The age of majority is governed by the Indian Majority Act, 1875, under which, a person attains
majority on completion of 18 years (or on completion of 21 years, if he is under supervision of Courts
of Wards).
Thus, the testator must be of 18 or 21 years, as the case may he, at the time of execution of the Will.
At the time of execution of a Will (i.e. when it is being made), the testator must be of sound mind.
Under Muslim law, the legator must have a perfectly â€˜disposing mindâ€™ i.e. the legator must be
capable of knowing fully the legal consequences of his activities not only for a brief period when the
declaration was made, but much after that.
A Will that is executed in apprehension of death is valid, but under the Shia law, if a person executes
any Will after attempting to commit suicide, the Will is void.
A minor is incompetent to make a Will (such a Will is void) but a Will made by minor may
subsequently be validated by his ratification on attaining majority.
A Will procured by undue influence, coercion or fraud is not valid, and the court takes great care in
admitting the Will of a pardanashin lady. Thus, a Will must be executed by a legator with his free
consent.
The legator must be a Muslim â€œat the time of making or execution of the Will.â€• A Will operates
only after the death of the legator; before his death, it is simply a mere declaration on the basis of
which the legatee may get the property in future.
If a Will has been executed by a Muslim who ceases to be a Muslim at the time of his death, the Will
is valid under Muslim law.
Also, the Will is governed by the rules of that school of Muslim law to which the legator belonged at
the time of execution of the Will. For example, if the legator was a Shia Muslim at the time when he
wrote the Will, only Shia law of Will is made applicable.
Legatee and his Competence (To whom Will can be made?)

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.
Legatee (including a child in its mother's womb) must be in existence at the time of making of the
Will. Thus, a bequest to a person unborn person is void.
A bequest may be validly made for the benefit of â€˜juristic personâ€™ 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 e.g. to an idol in Hindu temple, because idol worship is
opposed to Islam.
No one can be made the beneficial owner of shares against his will. Therefore, the title to the subject
of bequest can only be completed with the express or implied consent of the legatee after the death
of the testator. The legatee has the right to disclaim.
A person who has caused the death of the legator cannot be a competent legatee. A Will operates
only after the death of a legator, therefore, a greedy and impatient legatee may cause the legator's
death to get properties immediately. However, it is also immaterial whether the legatee knew about
him being a beneficiary under the Will or not.
Joint Legatees
A bequest may be made to two or more legatees jointly, and when no specific share of any of them
has been mentioned, the property is divided equally amongst all the legatees. But, where the legator
himself has specified the respective shares of the legatee then, each legatee would get the shares
allotted to him.
Subject Matter of Will (Bequeathable Property) and its Validity

The testator must be the owner of the property to be disposed by will; the property must be capable
of being transferred; and, 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.
Any kind of property, movable or immovable, corporeal or incorporeal, may be the subject-matter of
a Will.
In order to be a valid bequest the grant in the bequeathed property must be complete or absolute. A
bequest has to be unconditional. If any condition is attached, say the legatee shall not alienate the
subject of legacy, the condition is void and the bequest is effective without condition.
Likewise, a bequest in futuro is void, and so does a contingent bequest.
However, an alternative bequest of property (i.e. to one or failing him to the other person) is valid.
Thus, when the testator willed that his son if existing at the time of his death will take the bequest, if
not in existence his sonâ€™s son will, and failing both it will go to a charity, was held valid (Advocate
General V. Jimbabai)
Creating of â€˜life estateâ€™ is not permissible under Sunni law; the bequest of a life estate in
favour of a person would operate as if it is an absolute grant.
Under Shia law , however, the bequest of a life estate in favour of one and a vested remainder to
another after his death is valid.
Testamentary Power and its Limits (Bequeathable one-Third)

A Muslim does not possess an unlimited power of making disposition by Will.
There are two-fold restrictions on the power of a Muslim to dispose of his property by Will, which are
in respect of the person in whose favour the bequest is made, and as to the extent to which he can
dispose of his property.
This is obvious, because the object behind this restriction is to protect the interests of the
testatorâ€™s heirs.
# No Muslim can make a bequest of more than one-third of his net assets after payment of funeral
charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is
essential (Sunni and Shia laws).
A bequest of entire property to one heir to the exclusion of other heirs is void -Husaini Begum V.
Mohd. Mehdi
Where the heirs refuse to give their consent, the bequest would be valid only to the extent of one-
third of the property and the rest of the two-thirds would go by intestate succession.
# In respect of bequest of one-third to an heir, the consent of other heirs is required in Sunni law, but
not in Shia law. In case of a non-heir (stranger) the consent of heirs is not required in both.
# The above rule of bequeathable one-third will not apply to a case where the testator has no heir.
The right of Government to take the estate of an heirless person will not, in any way, restrict the right
of a person to make a disposition of his property as he likes. Thus Government is no heir to an
heirless person.
# A bequest made for pious purposes is valid to the extent or one-third of the property, both under
Sunni as well as Shia law.
# The â€˜1/3rd limitâ€™ rule will not apply if a Muslim marries under the Special Marriage Act, 1954,
because then he has all the powers of a testator under the Indian Succession Act, 1925.
Consent of Heirs
Consent must be of heirs and not of presumptive heirs.
Whether a person is an heir or not will be determined at the time of the testatorâ€™s death because
a person who is an heir at the time of making the Will not remain an heir at the time of testatorâ€™s
death and vice versa.
Consent by heirs under Sunni law, shall be given only after death of the testator, while in Shia it may
be before or after the death of the testator.
Consent must be definitive, whether express or implied by positive conduct, and mere silence on the
part of an heir will not amount to implied consent.
The attestation of the Will by the heirs and acquiescence in the legatee taking possession of the
property has been held to be sufficient consent.
In cases where only some of the heirs give their consent the shares of those consenting will be
bound, and the legacy in excess is payable out of the consenting heirâ€™s share. The consent of
heirs who are insolvent has been held effective in validating a bequest.
Consent once given cannot be later rescinded. Similarly, consent cannot be given after an heir has
previously repudiated it.
Bequest to Heirs and Non-heirs

Where the testator makes a bequest to heir as well as non-heir by the same legacy, in absence of
the consent of heirs, the legacy will not be invalid in its entirety but will take effect with respect to non
heirs. The rule is that as far as possible, the Will, will be given the maximum effect that it is capable
of.
For example, if the testator bequeaths his total property to an heir and a non-heir, without the heirs
giving the consent, the non-heir will take one-third of the property and the rest of the two-thirds will
go to the heirs of the testator by inheritance -Muhammad V. Aulia Bibi.
Revocation of Will
Muslim law confers on a testator unfettered right to revoke his will. A Muslim testator may revoke,
during his life-time, any Will made by him expressly or impliedly.
Thus, if he sells, makes gift of the subject of bequest or deals with the same in any other manner like
constructing a house on the piece of land bequeathed earlier, would implied revocation.
For example, where the testator gives land to his friend under a Will but a year later gifts the same to
his daughter, the bequest in favour of the friend is automatically revoked.
Where a testator makes a Will, and by a subsequent Will gives the same property to someone else,
the prior bequest is revoked. But a subsequent bequest (though of the same property) to another
person in the same Will does not operate as a revocation of prior bequest, and the property will be
divided between the two legatees in equal shares.
It is not necessary that for revoking an earlier will, another will must be made. 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.
Death of Legatee before Operation of Will (Lapse of Legacy)
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. However, if the testator even after the death of the
legatee does not revoke the Will, on the date of operation of the Will, the benefit under it will pass to
the heirs of the legatee.
Sunni Law Shia Law

A bequest to a child in womb is valid if born within It is valid even if born in the longest period of
6 months. gestation i.e. 10 months.
Rateable abatement of legacy applies. Rule of chronological priority applies.
Heir's consent should be given after the death of Heir's consent may be given before or after the
testator. death of testator.
Acceptance of the legacy before the Acceptance of the legacy during the testatorâ€™s
testatorâ€™s death is of no effect. life time is lawful.
Â Â
Abatement of Legacies
Rateable Abatement
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.
Chronological Priority
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.
The legatee mentioned first in the will gets his share as mentioned under the will. After giving his
share, the remaining goes to the second legatee. If there still remains something, it goes to the third
and as soon as the one-third property is exhausted, the distribution is stopped and the next legatee
does not get anything.
Thus, here a legatee either gets his share or gets some share or gets nothing at all.
Introduction
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.
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.
Who can make a Will?

In order to constitute a valid Will, the competency of the legator is the foremost requirement. A
legator is considered to be capable to make a Will if he holds the following discussed features.
o He must be a Muslim
A Will made by a Muslim only is considered as an authentic Will under Islamic law. If a legator
is Muslim at the time of execution of the Will then only the Will is governed by the Muslim
Personal Law.
In a case where a Muslim has married under the Special Marriage Act, 1954, the Will made by
such Muslim is regulated by the provisions of the Indian Succession Act, 1925 and not by the
Muslim Personal Law.
A situation may arise where the legator is a Muslim when he executed the Will but afterwards
renounced Islam, thus recognized as a non-muslim at the time of death. A Will created by such a
Muslim is considered as a valid Will under Muslim law.
Since there are two schools of Muslim with different views, so, it must be noted that a Will is
governed by the rule of that school to which the legator belongs at the time of the declaration of
the Will. For example, if a legator is a Sunni Muslim at the time of the creation of the Will, then
the Sunni Laws of Will is pertinent.
o Soundness of mind
When the Will is being made, the legator must be sane. Under Muslim law, it has been quoted that
a legator must possess a perfect ‘disposing mind’ at the time of execution of a Will. In other words,
a legator must be competent to understand his actions and the legal consequences of what he is
doing not only for the particular time period when the Will is being made but also sustain the same
till his death.
If a legator is of sound mind when the Will is declared and subsequently turns insane and remains
the same till death then, the Will made by such legator becomes void. On the other hand, if a
legator executed a Will while he is insane then also the Will is considered as null and void even if
he recovers the insanity afterwards and remains the same till death.
A Will made by an insane during his lucid interval will remain valid only if the insanity does not
last for more than a period of 6 months. An insane person cannot ratify the Will after reattaining
his sanity.
o Age of majority
The legator must attain the age of majority at the time of execution of the Will. In general, the age
of majority under Muslim law is regulated by the Indian Majority Act, 1875, with the exception in
the case related to marriage, dower and divorce.
Under the Indian Majority Act, the age of majority is specified as 18 years in ordinary case and 21
years if the person is under the supervision of Courts of Wards. Any Will executed by a minor is
considered to be void. The validity of such Will is suspended till the legator attains majority.
Therefore, in order to create a valid Will, a legator should be of 18 years or 21 years as the case
may be. As soon as the legator turns into a major and ratifies the Will, the Will becomes valid in
nature.
o Attempt to suicide by Legator

If a Will is executed by a person who has attempted to commit suicide, such a Will is contemplated
as void under the Shia law. The logic behind this rule is that if a person has attempted suicide, he
cannot be held in his normal state of mind rather, he is assumed to be mentally unstable and
disturbed.
For example, a person who takes poison or seriously hurt himself and executes a Will before his
death then, the Will is declared as null and void.
However, under Sunni law, a Will executed in such circumstances is completely valid. Moreover,
both Shia and Sunni law upheld the validity of a Will declared by a legator before attempting to
commit suicide.
o Consent of Legator
While executing a Will, the free consent of the legator is mandatory. Any Will, if found to be
executed by a legator under coercion, undue influence or fraud Will be treated as null and void
and the legatee Will not be entitled to get any property under that Will.
The free consent is generally presumed by the law unless proved. But in case of pardanashin lady,
the free consent is not presumed and the legatee has to prove that the Will has been executed by
the lady exercising her independent discretion.
Who can take property under a Will?
Besides competency of legator, there is one more essential requirement of a valid Will and that is
the competency of the legatee. The following are the characteristics of a legatee who is capable of
taking a Will executed by a legator.
o He must be a person in existence

A legatee is competent to take a Will on condition that he must be living at the time of death of
the legator. This is because a Will comes into effect only after the death of the legator and not
when it is made by the legator. Thus, a legatee has to be a person in existence at the time of death
of the legator.
A Will can be declared in favour of a non-muslim, minor or an insane person. What is important
is that a legatee must be in existence and competent to hold the property. The age, sex, caste,
religion, gender and state of mind is insignificant in order to become a lawful legatee. A charitable
or religious institution is also capable legatee and any Will in favour of it is lawful.
o Child in mother’s womb

A child in a mother’s womb is treated as a living person and thus, is a competent legatee under
Islamic law under two conditions. Firstly, he must be in existence in the mother’s womb at the
time of declaration of the Will. Secondly, the child must be born alive within six months from the
date of execution of Will under Sunni law and within 10 months under Shia law.
o Murderer of Legator
A Will comes into effect only after the death of legator. Thus there is a possibility that an avaricious
and impatient legatee may cause the death of the legator in order to grab the property as soon as
possible.
A legatee kills or causes the death of the legator either intentionally or unintentionally is not
allowed to take the Will and generally disentitle to take the property. However, under Shia law, if
a legatee causes the death of the legator either unintentionally, negligently or accidentally, then he
is qualified to take the property and the Will is treated as a valid Will.
o Consent of Legatee
Before transferring legal title to the legatee under a Will, it is important to take the consent of the
legatee to know whether he wants to accept the Will or not. The acceptance can be expressed or
implied. A legatee has a complete right to disclaim the Will. So, if a legatee declines to own any
property bequeathed to him, then the Will is considered to be incomplete and invalid.
o Joint Legatee
Sometimes, legator issues Will jointly in favour of several legatees. In such circumstances, the
legatees are known as joint legatees. A Will can be made in favour of joint legatees in two ways-
Where the share is specified

If the share of all the legatees is specified explicitly by the legator himself under the Will, then
there arises no point of confusion regarding the share. The property Will be distributed as per the
ratio mentioned by the legator in the Will and each legatee Will get the respective share allotted to
him.
For example, if a legator executes a Will in favour of his three sons, mentioning that the ratio of
the distribution of S1: S2: S3 should be 3:2:1 respectively. Here the property Will be distributed
among the three sons in the same ratio as specified by the legator.
Where the share is not specified

It might be possible that under some cases, the share of each legator is not explicitly described. In
such cases, applying the general rule, the property is supposed to be divided equally among the
legatees. When a Will is made in favour of a class of persons, such class is treated as a single
legatee only and each person gets the equal property.
For example, if a legator makes a Will under which the property is to be given to a mosque and
the poor people of the locality of the legator, then half of the bequeathable property Will be given
to the mosque and the remaining half Will be distributed equally among the poor people in the
locality.
Formalities of a Will
Muslim law does not expressly propound any specific formalities for the execution of the Will.
The intention of the legator plays a crucial role in validating a Will. The intention must be explicit,
clear and unequivocal in nature.
A Will can be made either orally or in writing or even by gestures.
Oral Will
A simple oral declaration is also considered as a valid Will. It is not abiding to follow any particular
process or formality in order to constitute a Will. A mere oral declaration is enough. But the burden
to corroborate such Will is very hefty. Eventually, an oral Will has to be proved with extreme
fidelity with precision in date, time and place.
Written Will
For a Will to be declared in writing, no specific form is described. A Will is valid even if it is not
signed by the legator or attested by the witnesses. The name of the document is immaterial. If it
possesses the essential characteristics of a Will, then it Will be treated as a valid Will.
Will made by Gestures

Under Islamic law, a Will may be made by gestures. For example, if a sick person makes an
endowment and cannot speak due to weakness, gives a nod with his head in a comprehensive way
and if it is understood what he is trying to convey and subsequently, he dies without regaining his
ability to speak, the bequest is valid and lawful.
The subject matter of a Will

Any type of property, corporeal or incorporeal, moveable or immovable, can constitute the subject
matter of the Will. But a legator can bequest a property in a Will only under two conditions-
• If he owns the property at the time of his death.

• The property must be transferable.
A property bequeathed under a Will may or may not exist at the time of execution of Will but it is
mandatory that the bequeathed property must be in ownership of the legator at the time of his
death. The logic behind this rule is very simple. A Will comes into operation after the death of the
legator and the transfer of property to legatee takes place from the date of legator’s death and not
from the date of execution.
For example, ‘A’ executes a Will giving all his property to ‘B’. Suppose ‘A’ owns a house at the
time of execution of Will but at the time of his death, he owns a car as well. Thus, ‘B’ is entitled
to have the house as well as the car under the Will.
Principle limitations on testamentary powers

Contrary to the general rule, there are certain restrictions on the testamentary powers of a Muslim.
There are two types of restrictions:
• With respect to the extent of the property that can be bequeathed

If a Muslim desire to make a Will of his property, he is allowed to do so only to the extent of one-
third of the bequeathable property. This extent of one-third is calculated after the expenses of his
debts and funeral etc. Any bequest exceeding the limit of one-third Will not come into effect unless
the heirs of the legator give their consent to it. In case the heirs do not give their consent, then the
bequest Will be valid to the extent of one-third only and the remaining two-thirds Will be
transferred through intestate succession.
A Muslim who does not has any heir may bequest his property to anyone and in whatsoever amount
he may desire to give. But if a Muslim bequest his property to a non-heir or a stranger, then the
consent of the legal heirs is of utmost significance if the property exceeds the one-third of his total
property.
The reason is to protect the rights and interests of the legal heirs which may adversely affect in
case of such bequest. If heirs give their consent to give an entire property to a stranger, the Will is
valid otherwise it is valid to the limit of one-third.
• With respect to the legatees to whom the property is given

Furthermore, the second restriction comes into action only where the legatee is one of the heirs of
the legator. Whether the property bequeathed is one-third or less, the consent of the other legal
heirs of the legator is a dominant factor in order to establish a valid Will. The ground of this rule
is that a legator may make a bequest in favour of one of the legal heirs giving more precedence to
him which may result in a feeling of jealousy and enmity among the other heirs.
On the other hand, Shia law doesn’t discriminate between an heir or a non-heir. A bequest can be
made in favour of anyone till the extent of one-third of the property is treated to be valid. Thus, it
can be concluded that Shia law provides ample powers to make a Will as compared to Sunni law.
Construction of a Will
Generally, a Will has to be construed in accordance with the rules laid under Islamic law and
scrutinizing the language and intention of the legator. A Will is a document which is made by a
person during his lifetime and comes into effect after his death. So, a Will must be interpreted to
accomplish the intentions of the legator after his death. At certain times, the language may not be
clear and the intention of the legator is ambiguous. In such circumstances, it is left to the discretion
of the heirs to elucidate such Will in whatever way they want.
For example, a legator bequests a house and a shop for his two sons but doesn’t specify what is
given to whom. Here, the content of the bequest is perplexed. Thus, it is up to the option of heirs
to mutually decide who wants to take what.
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.
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.
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.
Rateable distribution
This rule of abatement is followed in under Sunni law. In this method, if a Sunni Muslim bequeaths
his property in a certain ratio which the limit of one-third, then the abatement is done in the same
ratio in which the property was distributed.
For example, ‘T’ is a Sunni Muslim who makes a Will in favour of A, B and C. Under the Will,
he directs to give Rs. 4,500/- to A, Rs. 3,000/- to B and Rs. 1,500/- to C and his total property
amounts to Rs. 9,000/-. Now, as per the rule, only one- third of the total property is bequeathable.
So, one-third of Rs. 9,000/- equals to Rs. 3000/- which is the required bequeathable property. It
can be observed that the legator divided the property among A, B and C in the ratio 3:2:1
respectively. Applying the rateable abatement rule, the shares of A, B and C Will be reduced in
the same ratio i.e. 3:2:1. Thus, the share of A Will become Rs. 1,500/-, the share of B becomes Rs.
1,000/- and the share of C turns to be Rs. 500/-.
Preferential distribution
The Shia law recognizes a different rule for abatement. According to this school, if the
bequeathable property exceeds one-third of the total property and heirs refuse to give their consent,
then the rule of preferential distribution is applied. This implies that no reduction Will be done in
the shares of the legatees rather the share Will be given on the preference.
The preference is decided by the order in which the name of the legatees is mentioned under the
Will. The legatee whose name is mentioned first Will get his full share as specified in the Will and
the remaining Will be passed in favour of the second legatee and so on. As soon as one-third of
the property is finished, the distribution comes to its end. Therefore, it can be concluded that either
a legatee Will get his full share or he Will get nothing.
For example, ‘T’ is a Shia Muslim who executed a Will under which the share of A is Rs. 2,000/-
, the share of B is Rs. 1,000/- and share of C is also Rs. 1,000/-. The total property is Rs.9,000/-
which is beyond one-third of the bequeathable property. So, one-third of Rs. 9,000/- comes out to
be Rs. 3,000/- which is the required bequeathable amount. Now, according to the preferential rule,
A Will get his full share i.e. Rs. 2,000/-, B Will get the remaining Rs. 1,000/- which constitutes
his full share and C Will not get any share because the bequeathable property exhausted after the
share of B.
Comparison of Sunni and Shia law of Will

The two schools of Muslim law differs at various points when the concept of wasiyat (Will) is
considered. Following is a comparison table depicting the points of differences between Sunni and
Shia law of Will.
Basis for
Sunni law Shia law
Comparison
It is invalid even to the one-third

A bequest to an It is valid up to one-third of property and for
of property without the consent
heir more than one-third, consent is a must.
of other heirs.
Consent of heirs must be given Consent can be given either before or after
Time of Consent
after the death of the legator. the death of the legator.
If legatee commits murder or If the death is caused intentionally, legatee
Legatee causing
causes the death of the legator, can’t take the property whereas if the death
the death of
he cannot take legator’s is caused accidentally or negligently, then
Legator
property under a Will. he can take the property.
A Will is valid if a legator

Suicide attempt A Will is valid only if the legator commits
commits suicide before or after
by Legator suicide after executed the Will.
the execution of the Will.
Bequest for an unborn child is

Bequest for an unborn child is valid if he is
Child in Womb valid if he is born within 6
born within 10 months of making the Will.
months of making the Will.
Abatement of The rule of rateable distribution The rule of preferential distribution is

Legacies is followed. applied.
The legacy Will lapse only when legatee

Legatee dies If so happened, the legacy
dies without leaving an heir or the legator
before Legator reverts to the legator.
revokes the Will himself.
Conclusion
A Will is a device which confers right to property to legatee in a gratuity manner, postponed till
the death of the legator. It provides an opportunity for a legator to correct the law of succession to
some extent. This is because it empowers some of the relatives to obtain a share in the property
who are legally from excluded from inheritance under Islamic law. The Islamic law of Will allows
a person to devolve his property upon a person of his own choice. But simultaneously, it maintains
a rational balance between the law of inheritance and devolution of property under a Will.
Concept of Will under Muslim Law
INTRODUCTION
When we talk about ways to make disposition of property, there are numerous
ways in Hindu Law as well as Muslim Law. Under Muslim Law, a Mussalman can
dispose his property by way of gift, by creating waqf or by making a will.
When we talk about the concept of Will under Muslim Law, it is sort of a bargain
between two different propensities. The first one is, a view of the Prophet that is
after the death of a person his property has to be distributed to his heirs and this
concept is regarded as divine law and any contravention to it is considered
unacceptable. The other one is that it is moral duty of every Mussalman to make
appropriate arrangements for his property after his death.
MEANING AND NATURE

Generally, a Will is also called ‘testament’ and is an instrument which enables a
person to dispose off his own property to someone to whom he desires to give
after his death. Generally, a Will comes into effect after the death of the person
who executes such a Will. In simpler words, we can say that a Will is a legal
declaration of transfer of property by a person to another after his death.
The term ‘Will’ is the Anglo-Mohammedan term for its Arabic equivalent ‘Wasiyat’.
The term signifies a moral exhortation, specific legacy or the capacity of the
executor, executorship. A document embodying the will is called Wasiyatnama. A
will has been defined as “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.
A will from the Muslim’s point of view is a divine institution, since its exercise is
regulated by Quran. It offers to the testator the means of correcting to a certain
extent the law of succession, and enabling some of those relatives who are
excluded from inheritance to obtain a share in his goods and of recognizing the
services rendered to him by a stranger, or the devotion to him in his last
moments.
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”.
Under Muslim Law, a will executed by a Mussalman is called ‘Wasiyat’. The person
who executes a Will is known as legator or testator and the person in whose
favour the Will is executed is called legatee or testatrix. The famous Muslim Jurist
Ameer Ali was of the opinion that Will is a divine institution because its exercise
is regulated by the Holy Quran.
According to Muslim Law, there is a strict rule that governs the validity of a Will.
Accordingly it states that a Muslim can make a Will in favour of any person but
only to the extent of one-third of the total property and if the property is given
more than that in the Will then the consent of the legal heirs is compulsory.
ESSENTIALS OF A VALID WILL

Under Muslim Law, a valid will is that which is having certain essentials –
1. The person making a Will i.e., legator must be competent to make a will.
2. The legatee shall be capable to taking the endowment.
3. The property which is given by legator must be bequeathable property.
4. There must be free consent of legator and legatee.
5. The legator should have testamentary rights over the property.
WHO CAN MAKE A WILL?

For the purpose of making a valid will, the competency of the legator is of the
most significance. A legator is considered to be competent to make a will if he
fulfils the following requirements-
1. He must be a Muslim- Under Muslim Law, a will must be made by a Mussalman

then only it is considered as authentic one. In a matter where Muslim has married
under Special Marriage Act, 1954 then Will made by such person will be regulated
according to the provisions of Indian Succession Act, 1925 and not by the Muslim
Personal Law.
Under Muslim Law, there are two schools of Muslim with different views so the
Will be governed by the rule of that school to which legator belongs at the time
of the declaration of the Will.
2. Soundness of Mind- While making a Will the person making such Will must be
of sound mind at that time. According to Muslim Law, it is said that a legator must
possess a perfect ‘disposing mind’ at the time of execution of will. In simple
words, we can say that the legator while making a Will must be competent enough
to understand his actions and the legal consequences of such actions not only for
the particular time period when the will is made but also sustain the same till his
death. A bequest made by a person of unsound mind cannot be deemed valid, if
he becomes of sound mind subsequently. In the converse case, a bequest made
by a person while of sound mind become invalid if the legator is permanently
disabled by unsoundness of mind.
3. Age of majority- While executing the will, the legator must attain the age of
majority. Generally, the age of majority under Muslim Law is governed by Indian
Majority Act, 1875, providing the exception in cases related to dower, marriage
and divorce.
As per the Indian Majority Act, 1875, the minority terminates at the age of 18
years but if the minor is one whose guardian has been appointed by the Court
then the minority will terminate at the age of 21 years. Hence, a person of 18
years or 21 years, as the case may be, is competent to make a Will.
*Attempt to suicide by person making a Will- Under Sunni Law, the will of a
person committing suicide is valid. But under Shia Law, a will made by a person
who has done any act towards the commission on suicide is not valid, the logic
behind this concept is that if a person has attempted suicide, he cannot be
regarded in his normal state of mind and is considered mentally unstable and
disturbed.
However, both Shia and Sunni law upheld the validity of a Will by a legator before
attempting to commit suicide.
4. Consent of Legator- While making a will, there must be free consent of legator.
If it is found that a will is executed by a legator under coercion, undue influence
or fraud will be treated as null and void and therefore, the legatee will not b le
entitled to get any property under the will.
The free consent is generally assumed by the law unless it is proved. In case of
Pardanashin lady, the free consent is not presumed by the law and legatee has
to prove that the Will has been made by the lady exercising her independent
decision.
LEGATEE AND HIS COMPETENCE
Like competency of legator, the competency of legatee is another essential
requirement of a valid will. The following the are important requirements of a
legatee who shpuld be capable of taking a Will executed by the legator.
1. Must be a person in existence- It is necessary that a legatee must be competent

to take a Will on such a condition that he must be living at the time of death of
legator. Thus, sex, age, creed or religion are no bar to the taking of a bequest.
2. Child in the womb of mother- A child in the womb of the mother is considered
as a living person and hence, is a competent legatee under Muslim Law. There
are two conditions for it. First one is that he should be in existence in the womb
of the mother at the time of declaration of Will. Secondly, such child must be born
alive within the six months from the date of execution of Will as per the Sunni
Law and within 10 months according to Shia Law.
3. Murderer of Legator- As per Sunni Law, a bequest to a person who caused the
death of the testator whether intentionally or unintentionally in invalid. Under
Hanafi Law, a will in respect of a person who has caused the death of the testator
can be validated if the heirs have given their consent.
According to Shia Law, it is invalid if it is caused intentionally and not if

accidentally or unintentionally.
4. Consent of Legatee- Prior to bequesting legal title to the legatee under a Will,
it is necessary to take the consent of the legatee to know whether he wants to
accept a Will ir not. Such acceptance can be expressed or implied.
5. Joint Legatee- In many cases, the legator bequest the property by way of Will
in favour of several legatees, they are known as joint legatees. There are two
following situations-
a) Where the share is specified
b) Where the share is not specified
The first situation is very clear that in case of specified share there is no question
of any doubt. But if second situation arises then the general rule is applied and
the property is supposed to be divided equally among the legatees.
FORMALITIES OF WILL
Under Muslim Law, there is no any expressed formalities for the execution of the
Will. In validating a Will, the intention of legator plays a significant role. Such
intention of legator must be explicit, unequivocal and clear in nature. A will can
be made orally or in writing or by any other proper gesture.
ORAL WILL
A simple oral declaration is also regarded as a valid Will. It is not necessary or
abiding to follow a certain process or procedure in order to constitute a Will. But
the burden to validate such a Will is very brawny.
WRITTEN WILL
A will can be written also and for a written Will no specific form is described. A
written Will is valid though it is not signed by legator or attested by the witnesses.
If a document possesses the important characteristics of a Will then it will be
considered as a valid Will.
WILL MADE BY GESTURE

Under Muslim Law, a Will may be made by gestures. For isntance, if any sick
person makes a bequest and is unable to speak due to his illness and gives a nod
with his head in a comprehensive manner and if it is clear and precise what he is
trying to convey and subsequently he dies without regaining his ability to speak
then such endowment is valid and completely lawful.
THE SUBJECT MATTER OF A WILL

Any kind of corporeal or property whether it is movable or immovable can be
considered as the subject matter of a Will. But there are two conditions when a
legator can bequest his property in a Will-
1. When he is the owner of the property at the time of his death.
2. Such property must be transferable.
In certain matter, a property endowed under a Will may or may not exist at the
time of execution of Will but it is compulsory that such endowment must be in
ownership of the legator at time of his death.
LIMITATIONS ON TESTAMENTARY POWERS
The testamentary capacity of a Muslim is limited. He does not possess an
unlimited power of making disposition by Will. There are two-fold restrictions on
the power of a Muslim to dispose of his property by Will. The two-fold restrictions
are in respect of the person in whose favour the bequest is made, and as to extent
to which he can dispose of his property.
LIMITATION AS REGARDS TO THE PROPERTY THAT CAN BE BEQUETHED

The general rule with regard to the extent of property that may be bequeathed
of by Will is that no Muslim can make a bequest of more than one-third of his net
assets after payment of funeral charges and debts. Any endowment which is
exceeding the limit of one-third Will cannot be enforced unless the heirs of the
legator give their consent for the same then only such bequest is valid. If the
consent of heirs is not given then the bequest will be valid to the extent of one-
third only and the remaining two-thirds Will be transferred by way of intestate
succession.
A Mussalman who does not has any legal heir may give his property to anyone
and in whatsoever amount he may desire to give. But in a case where Muslim has
legal heirs and he bequeathed his property to a non-heir or a stranger, then the
consent of legal heirs is important in case the property exceeds the one-third of
his total property.
The main reason behind this rule is to protect the rights and interests of legal
heirs which may adversely get affected in case of such bequest.
LIMITATION AS REGARDS THE PERSON TO WHOM THE PROPERTY IS GIVEN

The general rule, in this regard has been very laid down in Ghulam Mohammed
v. Ghulam Hussain (54 Alld. 98). It was held in this case that a bequest in favour
of an heir is not valid unless the other heirs consent to the bequest after the death
of the testator.
The reason behind such a rule is that a legator may make a bequest in favour of
one of the legal heirs and giving more precedence to him may result in a feeling
of jealousy and enmity among other legal heirs.
On the contrary, Shia Law does not discriminate between a heir and non-heir. A
Will can be made in favour of anyone till the extent of one-third of the property
is treated to be valid.
CONSTRUCTION OF WILL
According to general principles, a Will has to be made as per the ruled laid under
Muslim Law and with clear and precise language showing the unambiguous
intention of the legator. A Will is a document made by a person during his lifetime
and comes into effect after his death. Hence, a Will should be interpreted to
accomplish the real intentions of the legator after his death. In certain cases, the
language of the Will may not be clear and failed to show the real intention of
legator then it should be left to the discretion of the heirs to elucidate such Will
in whatever way they want.
REVOCATION OF WILL
Mohammedan Law confers on a testator unfettered right to revoke his Will. He
may revoke it at any time. The revocation may be either express or implied.
Express Revocation- An express revocation may be either oral or written, for

instance, ‘A’ makes a testamentary disposition of property in favour of ‘B’. At any
other time after making the disposition, he says “the property that I gave to ‘B’
is for ‘Y’. These words will amount to express revocation of the Will. While
interpreting such wills, the intention of the testators is of paramount importance.
Hence, if the testator bequeaths by will the same property to two or more persons
they will share the property equally.
Implied Revocation – Revocation of a bequest may be implied. For instance,

where the testator subsequently transfers the subject-matter of will or destroys
it or completely alters its nature or makes any such additions to it without which
the property cannot be delivered, where ‘A’ bequeaths land to ‘B’ and
subsequently builds a house over it, the bequest stands revoked.
Subsequent Will- Where a legator makes a Will, and by a subsequent Will gives
the same property to someone else then the prior bequest is revoked. But a
subsequent bequest though it be of the same property, to another person in the
same Will does not operate as a revocation of the prior bequest and the property
will be divided between the two legatees in equal shares.
CONCLUSION
A Will is a document which provides right to property to the legatee in a gratuity
manner and is available after the death of the legator. It provides the right and
opportunity to the testator to correct the law of succession to some extent. The
Muslim Law of Will confer a right to person to devolve his property upon a person
of his choice while keeping in mind the rational balance between the law of
inheritance and devolution of property under a Will
1. DEFINITION
 Baillie:
A will is a conferment of rights property in a specific thing or a profit or an advantage or in
gravity to take effect on the death of the testator.
 Fatawa Alamgiri:
Will is a legal declaration of the intention of a testator with the respect to his property which
desires to be carried into effect after his death.
2. MEANING
The term Will is from the Arabic word Wassiyyat which means endowment with property of
any thing after death.
3. ESSENTIALS
Following are the essentials to a valid will under Islamic Law:
i Declaration by the testator.
ii Testator must be competent to declare.
iii The subject of will must be valid.
iv It must be within the limit imposed on the testator.
v The legatee must be competent to take the property.
vi Offer by testator.
vii Acceptance by legatee.
4. PARTIES TO A WILL
 Legacy.
It is the property which is bequeathed through will.
 Testator.
A person who makes will is called testator.
 Legatee
A person in whose favor will is made is called legatee.
5. SUBJECT OF WILL
The subjects of a will are as under:
i The property must be transferred to legatee.
ii The property must be in existence which is to be bequeathed.
6. FORM OF A WILL
 Written or Oral
Islam Law does not prescribe any particular form for the making of will. The will of a Muslim
needs not be in writing, an oral is valid. If the will is in writing, it needs not be signed and if
signed need not be attested.
 Fatawa Alamgiri
A sick man makes a bequest, and being unable to speak from weakness gives a nod with his
head, and it is known that he comprehends what he is about- if his meaning be understood,
and he dies without regaining the power of speech, the bequest is lawful.
7. WHO CAN MAKE A WILL
Every Muslim of sound mind may dispose of property by will.
8. QUALIFICATION OF TESTATOR
i He/She must have sound mind.
ii He/She must have attained majority.
(Under Islamic Law, majority is attained at puberty, and the presumption is that a Muslim
attains majority on the completion on the fifteenth year.)
iii He/She possessed with the ownership of property.
9. PERSONS WHO CAN NOT MAKE WILL:
Following persons can not make will:
i Who is Minor.
ii Who is Lunatic.
iii Who has Unsound mind.
10. PERSONS IN WHOSE FAVOR WILL CAN BE MADE.
A will can be lawfully made in favor of the following:
i An individual
ii An institution
iii A non- Muslim
iv A minor
v An insane
11. CONDITIONS OF A VALID WILL
Following are the conditions of a valid will:
ii There should an intention to give away the property.
iii It requires disposition to take effect after the death of the testator.
iv It should not affect the legal shares of the heirs.
v It should not be more than 1/3 of the property.
12. ATTESTATION
A Will should be attested by two or more witnesses.
13. CASES WHERE WILL IS NOT VALID
In following cases will is not valid:
i If it is in favour of a legal heir.
ii Contigent Will is not valid.
iii Will to unborn child
(Exception: A Will may be made to a child in the womb provided it is born with in six
months from the date of the will.)
i A will in future
ii A will to make a bequest to benefit an object opposed to Islam as a religion is invalid.
iii A will to a person who causes the death of the testator
iv In Shi’ite Law, a will made by a person after wounding himself or taking poison, with a
view to committing suicide, is invalid. But if he makes a will and then commits suicide, it is
valid.
14. ESSENTIAL CONDITIONS FOR EXECUTION OF WILL
For execution of valid will following are the conditions:
i Payment of the funeral expenses out of the property of the deceased.
ii Payment of any debt out of the property of the deceased.
15. NATURE OF APPOINTMENT OF TESTATOR
Appointment of testator may be for.
i General purpose
ii Special purpose
16. LIMITATIONS.
a. AS TO PERSONS:
 Legal Heir
A bequest to an heir is not valid unless the other heirs consent to the bequest after the
death of the testator.
 Manslayer
- Hanafi Law
A person who kills another can not take a legacy from the deceased is excluded whether the
homicide is intentional or not.
- Ithna’ Ashari Law
According to it, only intentional homicide leads to exclusion.
b. AS TO PROPERTY
 The Bequeathable Third
A Muslim can not bequeath more than one third of his estate which is left after the payment
of his funeral expenses and debts.
Exception:
A Muslim can bequeath more one third of his estate with the consent of the legal heirs.
- Hanafi Law
According to Hanafi Law, if bequests exceed the bequeath able third, they do not take effect
without the consent of the legal heirs. Such consent must be obtained after the death of the
testator.
According to it, the consent of the legal heirs may be obtained before or after the death of
the testator.
 Abatement of Legacies
- Hanafi Law.
Where the bequests taken in the aggregate exceed the bequeathable third and the heirs don
not consent, the bequests abate ratably.
In case of several bequests, the first time in prevails, until the bequeathable third is
exhausted, priority is determined by the order in which they are mentioned.
17. REVOCATION OF WILL
A will is revocable. It ban be revoked by the testator at any time before his death.
Mode of Revocation
 Express
Testator may revoke the will in express terms either orally or in writing.
 Implied
Implied is that revocations where the testator does an acts from which revocation may be
inferred. The bequest of a house is revoked impliedly, if after making the will, the testator
sells it or makes a gift of it to someone else.
18. CONCLUSION:
To conclude, a will is the disposition of property which is to take effect at the time of the
person making it. It operates from the time before his death
"The Islamic Wills"
This article is a very brief overview of the traditional Sunni Islamic law pertaining to the
Islamic will. The aim of this article is to arouse awareness amongst Muslims particularly
those living in the West regarding this important aspect of Islamic law. It should be stressed
that when writing a will one should consult an Islamic scholar/legal expert to ensure that
the will complies with Islamic law as well as the law of the country of residence.
1. payment of funeral expenses

2. payment of his/her debts
3. execution his/her will
4. distribution of the remaining estate amongst the heirs according to Sharia
The Islamic will is called al-wasiyya. a will is a transaction which comes into operation
after the testator’s death. The will is executed after payment of funeral expenses and any
outstanding debts. The one who makes a will (wasiyya) is called a testator (al-musi). the
one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu).
Technically speaking the term "testatee" is perhaps a more accurate translation of al-musa
lahu.
The importance of the Islamic will:
The importance of the Islamic will (wasiyya) is clear from the following two hadith:
"It is the duty of a Muslim who has anything to bequest not to let two nights pass without
writing a will about it." (Sahih al-Bukhari)
"A man may do good deeds for seventy years but if he acts unjustly when he leaves his last
testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If,
(on the other hand), a man acts wickedly for seventy years but is just in his last will and
testament, the goodness of his deed will be sealed upon him, and he will enter the Garden."
(Ahmad and Ibn Majah)
the will gives the testator an opportunity to help someone (e.g. a relative need such as an
orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will
can be used to clarify the nature of joint accounts, those living in commensality,
appointment of guardian for one’s children and so on. In countries where the intestate
succession law is different from Islamic law it becomes absolutely necessary to write a will.
The Will (Al-wasiyya):

The Islamic will includes both bequests and legacies, instructions and admonishments, and
assignments of rights.
no specific wording is necessary for making a will. In Islamic law the will (wasiyya) can be
oral or written, and the intention of the testator must be clear that the wasiyya is to be
executed after his death. any expression which signifies the intention of the testator is
sufficient for the purpose of constituting a bequest.
there should be two witnesses to the declaration of the wasiyya. A written wasiyya where
there are no witnesses to an oral declaration is valid if it written in the known
handwriting/signature of the testator according to Maliki and Hanbali fiqh.
the wasiyya is executed after payment of debts and funeral expenses. the majority view is
that debts to Allah (SWT) such as zakh, obligatory expiation etc. should be paid whether
mentioned in the will or not. However, there is difference of opinion on this matter amongst
the Muslim jurists.
The Testator (Al-musi):
every adult Muslim with reasoning ability has the legal capacity to make a will. An adult
for this purpose is someone who has reached puberty. Evidence of puberty is menstruation
in girls and night pollution (wet dreams) in boys. In the absence of evidence, puberty is
presumed at the completion of the age of fifteen years. The Maliki and Hanbali fiqh also
consider the will of a discerning (tamyiz) child as valid.
Under English Law you must be at least 18 years of age to make a valid will (similarly in
most of the United States of America) unless you are a military personnel in which case you
may make a valid will at the age of 17.
the testator must have the legal capacity to dispose of whatever he bequests in his will.
When making a will the testator must be of sane mind, he must not be under any
compulsion and he must understand the nature and effect of his testamentary act. The
testator must of course own whatever he bequests.
the testator has the right to revoke his will by a subsequent will, actually or by implication.
In traditional Sunni Islamic law the power of the testator is limited in two ways:
1. firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs consent
to the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets
his/her legal share and the residue can be bequeathed.
Narrated Sa‘d ibn Abi Waqqas (RA): "I was stricken by an ailment that led me to the verge
of death. The Prophet came to pay me a visit. I said, "O Allah's Apostle! I have much
property and no heir except my single daughter. Shall I give two-thirds of my property in
charity?" He said, "No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He said,
"You may do so, though one-third is also too much, for it is better for you to leave your
offspring wealthy than to leave them poor, asking others for help..." (Sahih al-Bukhari,
Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)
2. secondly, the testator cannot make a bequest in favour of a legal heir under traditional
Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a legal
heir providing the bequest does not exceed the bequeathable one-third.
Legal heir in this context is one who is a legal heir at the time of death of the testator.
Narrated Abu Hurayrah (RA): Allah’s Prophet (SAWS) said, "Allah has appointed for
everyone who has a right what is due to him, and no bequest must be made to an heir.
(Abu Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn Majah,
Ahmad and others.
The Legatee (Al-musa lahu):
generally speaking, for a bequest to be valid, a legatee must be in existence at the time of
death of the testator except in the case of a general and continuing legatee such as the
poor, orphans etc.
the legatee must be capable of owning the bequest. any bequest made in favour of any
legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless
consented to by other legal heirs. an acknowledgement of debt in favour of a legal heir is
valid.
acceptance or rejection of a bequest by the legatee is only relevant after the death of the
testator and not before. generally speaking once a legatee has accepted or rejected a
bequest he cannot change his mind subsequently.
if the legatee dies without accepting or rejecting the bequest, the bequest becomes part of
the legatee’s estate according to the Hanafi fiqh because non-rejection is regarded as
acceptance. According to the other three main Sunni madhahib, the right to accept or
reject the bequest passes onto the heirs of the legatee.
there is difference of opinion as to the time at which ownership of a bequest is

transferred from the testator (or his heirs) to the legatee. According to the Hanafi and
Shafii fiqh the transfer of ownership is at the time of death of the testator, according to
the Maliki and Hanbali fiqh the transfer of ownership is at the time of accepting the
bequest.
all the Sunni madhahib agree that if the legatee dies before the testator, the bequest is
invalid since a bequest can only be accepted after the death of the testator.
if there is uncertainty as to whether or not the legatee survived the testator, such as a
missing legatee, the bequest is invalid because the legatee must be alive at the time of
death of the testator for the will to be valid.
if the testator and legatee die together, such as in an air crash, and it is not certain who
died first, the bequest is invalid according to the Hanafi, Maliki and Shafii fiqh. But
according to the Hanbali fiqh, the bequest devolves upon the legatee’s heirs who may
accept or reject it.
Executor of the will (Al-wasi Al- mukhtar):
the executor (al-wasi) of the will is the manager of the estate appointed by the testator. the
executor has to carry out the wishes of the testator according to Islamic law, to watch the
interests of the children and of the estate. The authority of the executor should be
specified. Hanafi and Maliki fiqh state that the executor should be trustworthy and
truthful; the Shafii fiqh state that the executor must be just. the Hanafi fiqh considers the
appointment of a non-Muslim executor to be valid. the testator may appoint more than one
executor, male or female. the testator should state if each executor can act independently
of the other executor(s).
if one starts acting as an executor, one will be regarded as having accepted the
appointment, both in Islamic and in English law
International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 4 Issue 3 70
THE CONCEPT OF ‘WILL’ UNDER MUSLIM LAW: A STUDY
Dr Anand Kumar Tripathi,

Assistant Professor of Law,
Raksha Shakti University,Ahmedabad-16
E-mail: dr.anandtripathi@rediffmail.com
Abstract:
In Muslim law, the testamentary document called the will is referred to as Wasiyat .Will or
Wasiyat is a document made by the legator in favour of legatee which becomes effective after the
death of the legator. Under Muslim law no person is entitled to make will of the whole property.
Limitations are imposed in making will.The reason being to pay the respect to the word of
prophet in order to ensure the shares of the legal heirs. In case of will of absolute property
nothing will remain for all sharers prescribed under Muslim Law. Wills are declared lawful in the
Quran, though the Quran itself does not provide for the testamentary restriction of one-third.
The permissibility of bequests up to one-third is traced to a Hadis of the Propeht which ahs been
Introduction
Sa’d Ibn Abi Waqqas said: “The Messenger of God used to visit me at Mecca, in the year of the
Farewell Pilgrimage on account of my illness which had become very serious. So I said, “My
illness has become very severe and I have much property and there is none to inherit from me
but a daughter, shall I then bequeath two-thirds of my property as a charity?” He said, “No.” I
said, “Half?”, He said “No.” Then he said: “Bequeath one-third and one-third is much, for if
thou leavest thy heirs free from want, it is better than that thou leavest them in want, begging of
other people; and thou dost not spend anything seeking thereby the pleasure of Allah but thou
art rewarded for it even for that which thou puttest into the mouth of they wife”
In Muslim law, the testamentary document called the will is referred to as Wasiyat. Wills are declared
lawful in the Quran, though the Quran itself does not provide for the testamentary restriction of one-
third. The permissibility of bequests up to one-third is traced to a Hadis of the Propeht which has been
© Universal Multidisciplinary Research Institute Pvt Ltd

A will is essentially a legal declaration which signifies the intention of the testator (the maker of the will)
with regard to the distribution of his or her property which takes effect after death. Till he or she is alive,
the testator has full ownership and control over the property. A will does not affect the power of the
owner to transfer the property either inter vivos or by any other testamentary disposition. It is not
binding upon the testator in any manner, especially before his or her death. It is a revocable document,
either by formal cancellation or by a subsequent will on the same property. A will executed by a person
will also be revoked if he or she loses sanity and becomes of unsound mind subsequent to execution.
The Muslim law of wills affects only Muslims. Where a Muslim gets married under the Special Marriage
Act, 1954 either to a Muslim or a non-Muslim, he or she along with the respective spouse and the
children born of this marriage would no longer be governed by the Muslim law of Succession but will be
governed by the provisions of the Indian Succession Act, 1925. The essential differences between the
rules governing disposition of property by a will under Muslim Law and under Indian Succession Act,
1925 is that under Muslim Law, a testator cannot make a will of more than one-third of his or her
property but under Indian Succession Act, a person can make a testamentary disposition of 100% of the
property. Secondly, under Muslim Law there are restrictions on the powers of the testator in case of an
heir and under Indian Succession Act there is no such restriction.
This research project analyses the law of Wills in general-the nature and scope of wills, the execution of
the wills and the validity of wills in both Sunni and Shia Law.
I. Concept of a Will
 Payment of funeral expenses

 Payment of his/her debts
 Execution his/her will
 Distribution of the remaining estate amongst the heirs according to Shariat.
When a person dies his/her property devolves upon his/her heirs. A person may die with or
without a will (Testament). If he or she dies leaving a will, the property is distributed among
his/her heirs according to the rules of Testamentary Succession. In other words, the property is
distributed as per the contents of the testament or will. On the other hand if a person dies

leaving no testament (will), that is dies intestate, the rules of intestate Succession are applied for
distribution of the property among heirs.
The Islamic will is called al-wasiyya. A will is a transaction which comes into operation after the testator’s
death. The will is executed after payment of funeral expenses and any outstanding debts. The one who
makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is generally
referred to as a legatee (al-musa lahu).
The following terms are important to note in terms of wills:
a. Testator:-The person, who makes/creates a will.

b. Legatee:- The person/persons, in whose favour, the will is created.
c. Legacy:- The subject matter of the will. It is the property to be distributed among the
heirs.
d. Executor:- The testator, while executing the will, may appoint a person to execute the
will in accordance with its contents (after his death). In the absence of the appointment
of Executor by the testator, the Court may appoint a person called 'Administrator' to
execute thee will.
Ameer Ali1 says “a will from the Mussalman point of view is a divine institution since its exercise is regulated by the
Quran”. At the same time the Prophet declared that the power should not be exercised to the injury of the
lawful heirs.
Tyabji says that a will means “the legal declaration of the intentions of a Muslim with respect to his property which he
desires to be carried into effect after his death.”
The ancient texts in Muhammaden law definitely dealt with wills. The leading authority on the subject of
wills is the Hedaya which was composed by Sheikh Burhan Ud-din Ali. According to the Hedaya, “a will is
the endowment with the property of anything after death”. A will confers a right to property in a specific thing or in
a profit or advantage in the manner of a gratuity postponed till after the death of a testator.
The fundamental idea of a will is that the testator should thereby dispose of his property or such part
thereof as his personal law permits him to bequeath by Will. Under pure Islamic Law a will is purported
1
Ameer Ali: Mohammedan Law, Vol. I, p.438

to direct that after the testator’s death a certain task be completed or that a portion of his property be
given in ownership to someone or that the ownership of testator’s property be transferred to someone or
that it be spent for charitable purposes or the person making a will may appoint some person as guardian
of his children and dependants.2
II. Nature of the ‘Will’
The importance of the Islamic will is clear from the following two hadith:
 Sahih al-Bukhari: “It is the duty of a Muslim who has anything to bequest not to let two nights pass
without writing a will about it.”
 Ahmad and Ibn Majah: "A man may do good deeds for seventy years but if he acts unjustly when he
leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire.
If, (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament,
the goodness of his deed will be sealed upon him, and he will enter the Garden.”
The will gives the testator an opportunity to help someone (e.g. a relative need such as an
orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can
be used to clarify the nature of joint accounts, those living in commensality, appointment of
guardian for one’s children and so on. In countries where the intestate succession law is different
from Islamic law it becomes absolutely necessary to write a will.
The Islamic will includes bequests and legacies, instructions and admonishments, and
assignments of rights. No specific wording is necessary for making a will. A Muslim can make a
will orally or in writing3. Muslim law requires no specific formalities for creation of a will. It may
be made in writing or oral or even by gestures. Though it is in writing, it need not be signed by
the testator and attested by the witnesses.4 It is necessary that the intention of the testator should
be clear and unequivocal.
In Islamic law the will can be oral or written, and the intention of the testator must be clear that
the will is to be executed after his death. Any expression which signifies the intention of the
testator is sufficient for the purpose of constituting a bequest.
2
Yawar Qazelbash, Principles of Muslim Law, (Fifth Edition, 2005), p.233
3 M.Altaf v. Ahmad Bux (1876) 25 W.R. 121 (P.C.)
4 Ramjilal v. Ahmed, AIR 1952 MP 56

Therefore there are two types of wills: Oral and Written. If a document possesses the
characteristics of a will, the document is considered to be a complete will. In the case of an oral
will, no specific number or class of witnesses is necessary for the validity of a will. However the
following conditions need to be satisfied5:
a. Legator’s intention to make a will must be proved beyond doubt.

b. Terms of the will must be proved
c. Will must be proved with the greatest possible exactness.
On the other hand, in case of a written will, there should be two witnesses to the declaration of
the will. If the testator fails to mention the quantity or amount of bequeathed property, regard
may be given to the number or quantity owned by the testator at the time of death.
The will is executed after payment of debts and funeral expenses. The majority view is that debts
to Allah such as zakh and obligatory expiation should be paid whether mentioned in the will or
not. However, there is difference of opinion on this matter amongst the Muslim jurists.
For a will to be valid, the following conditions are to be satisfied.
 Capacity/Competence of Testator;
 Competence of Legatee;
 Subject Matter:
 Testamentary Capacity.
1. Capacity of Testator:- According to Muslim Law, a testator or legator has to fulfil the
following conditions: age of majority, validity of gifts made by guardians, validity of a person
who has attempted suicide and soundness of mind.
According to Muslim Law, the age of Majority is 15 years, but it is not applicable to the wills in
India. It may be noted that under Shia law, age of majority is not a condition precedent for
making a will. Tyabji states that “the Shiite Law of wills must be deemed to be unaffected by the Indian
Majority Act which defines the age of majority as 18 or 21 and only questions related to marriage, divorce,
adoption, and religious usages are exempt from this”. A Shiite who is ten years old is thus exempt from
the Act and has discretion and is competent to create a will. It has however been held that this
5
M.A Qureshi, Principles of Muhammadan Law, (Ninth Edition, 2005) p.327

view cannot be accepted. There is no expression provision in the Act which excludes the
operation of law for Shia Mulsims.
The Shafi School of Sunni Law has prescribed certain conditions:
a. A person who is capable of duties can make a valid will

b. A person who is under inhibition on account of insanity cannot make a will
c. A person who is not on his senses cannot make a will
d. A will made by a child is also not valid. However there is a difference in opinion among
Muslim Law Scholars. However, under Muslim law, a will cannot be made by the
guardian on behalf of the minor or insane person and it will be treated as void. A will
made by a person when he was a minor but after attaining majority he ratified the same
will be treated as valid.
Under Shia Law, a will made after the testator who was injured by his own actions or tried to
commit suicide, such a will is declared as invalid. In Mazhar Hussain v Bodha Bibi6 it was held that
a will of suicide is valid when made in contemplation of taking poison but before poison was
actually taken, onus of proving that the will was written afterwards rests on party impugning
with.
Tyabji says that “a will made by a testator whose mind is unsound does not become valid by his subsequently
becoming of sound mind. A will made by a person while of sound mind becomes invalid if the testator subsequently
becomes permanently of unsound mind.”
2. Competence of Legatee:- Any person having capacity to hold the property can be a legatee.
The Legatee may be a Muslim or a Non-Muslim who is not hostile towards Islam, man or
woman, a major or a minor or even a child in the womb provided the child is born within 6
months of the death of the testator. A person who renounces Islam cannot be a competent
legatee. An institution is also a valid legatee. In the general sense, the institution should not be
hostile towards Islam and not promote anti-Islamic activities. A will in favour of a Hindu temple
or a society that propagates another religion will not be a valid will. However an institution
engaged in promoting education and self-reliance is a valid one as long as it is not against Islam.7
6 (1898) 21 All. 91(P.C)

7 Badrul Islam Ali Khan .v Ali Begum AIR 1935 Lah 251

Where a legatee under a will is responsible for the murder or causing death to the testator, the
will made in his or her favour will be invalid under Sunni Law. It is irrespective whether the
murder was cause accidentally or intentionally. It is also immaterial if he knew about being a
beneficiary in the will. Under Shia Law, the legatee will be incompetent to receive the benefits if
the murder was caused only intentionally. The time of making the will is of no consequence.
The legatee must be capable of owning the bequest. Any bequest made in favour of any legal
heir already entitled to a share is invalid under traditional Sunni Muslim law unless consent has
been given by other legal heirs. An acknowledgement of debt in favour of a legal heir is valid.
Acceptance or rejection of a bequest by the legatee is only relevant after the death of the testator
and not before. Generally speaking once a legatee has accepted or rejected a bequest he cannot
change his mind subsequently.
Where the testator has bequeathed the property jointly to several certain or ascertained persons, the
bequeathed property will be divided equally amongst the legatees. Under Hanafi law the legatees who
have survived the testator will take the property.
The whole of a bequest made to several legatees collectively of whom one or more predeceases the
testator is taken by the surviving legatees, Where the testator has directed that legatee will be entitled to
take only a definite part of the bequest, the legatee will be entitled to inherit such portion of the property.8
3. Subject matter:- A Muslim can bequeath any property movable or immovable, corporeal or
incorporeal, which must be in existence and transferable at the time of testator's death.
Therefore it is not necessary that the subject matter of the will must exist at the time of making
the will but it must exist when the will becomes operative that is at the time of the death of the
testator.
4. Testamentary Capacity:- A Muslim cannot dispose of by will more than one-third of the net
assets after allowing for the debts and funeral expenses of the testator (under both Hanafi Law
and Shia Law). The remaining 2/3 share should be made available for distribution amongst the
heirs. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other
heirs. Thus, the testamentary capacity of a Muslim is cut down by two principal limitations9:
a. as to quantum where he cannot bequeath more than one-third of his net estate
b. as to the legatees where he cannot bequeath to his own heirs.
8 Ibid 5, p.318
9 Asaf. A.A.Fyzee, Outlines of Muhammadan Law (Fourth Edition,1974,) p.358,

III. Importance of the consent
Under Sunni Islamic law the power of the testator is limited in two ways: firstly, he or she cannot
bequest more than 1/3 of the totally property unless the other heirs consent to the bequest or
there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and
the residue can be bequeathed and secondly, the testator cannot make a bequest in favour of a
legal heir under traditional Sunni Muslim law. Here consent must be given at the time of the
operation of the Will, that is, after the death of the testator.
There are two exceptions to the one-third rule:
a. When the testator does not have any heir. In such cases, if the restriction of permissible
one-third is applied, then the beneficiary is the Government who will take the property
by doctrine of Escheat, while the primary purpose of applying the bequeathable
permissibility to the extent of one-third is to protect the rights of the heirs, and not that
of the Government. An heirless person can thus make a bequest of the total property.
b. Where the heirs themselves consent to the bequest in excess of one-third. As the chief
objective is to safeguard the interests of theirs, the excess bequest can be validated by
consent.
Under Shia Law, the bequest in favour of an heir is valid without consent of other heirs provided
it does not exceed the bequeathable one-third limit. If it is in excess of the one-third, then the
consent of those heirs is necessary whose share is likely to be affected by the bequest.
The consenting heirs must be majors, sane and not insolvent in law to be considered as valid
consent. The consent given by the heirs may be expressed or implied. It may be oral or in
writing. It can also be implied from conduct. Mere silence or inaction would not be taken as
consent even if heirs were present at the time of the proceedings for effecting the names in the
Will. Where a will is executed in writing and is attested by the testator’s heirs it is sufficient proof
of their consenting to the act of the testator. Where the testator makes a bequest in favour of an
heir and on his death, the other heirs help the legatee in effecting a mutation in name or allow
the heir to take exclusive possession of the property it is proof of the heirs’ consent.

Under Shia Law, the consent of heirs whose shares are adversely affected can be given before or
after the death of the testator and under Sunni Law, it must be given after the testator’s death.
But once the consent is give, it cannot be rescinded subsequently and the heirs are bound by it.
Similarly, consent cannot be given after an heir has previously repudiated it.
The legacy in favour of an heir can be validated by obtaining the consent of one or some of the
heirs or even all of them collectively. Where all the heirs give their consent the legacy is valid to
the extent of the shares of all. Where only one or some of them give their consent the legacy
would be valid only to the extent of the heirs’ shares. In the case of Gulam Mohammed v Gulam
Hussain10, the Privy Council held that a bequest in favour of heirs without the consent of other
heirs is invalid.
IV. Abatement of legacies
A Muslim testator can make a will of only one-third of his property without the consent of his or her
heirs. If the bequest is in excess, and the heirs refuse to give their consent, the totality of the will does not
become operative or invalid but abates rateably and is valid to the extent of one-third of the property, as
has been stated in the Hedaya. In Damodar Kashinath Rasane v Shahzadi Bi11, the Bombay High Court stated
that a Muslim cannot bequeath more than one-third of his property whether in favour of an heir or a
stranger.
The rule of Abatement is different in Sunni Law and in Shia Law.
I) In Sunni Law, the general rule is that a bequest in excess of the one-third of the estate of the deceased
would take effect with respect to one-third with the excess going by inheritance. Where there are more
than one legatees and the property given to them exceeds one-third, the shares of each of the legatees
would be reduced proportionally. This is called the „Rule of Rateable Proportion’.
The following principles are applied:
a. The property disposed of by will, must first abate equally and rateably.
b. The proportionate part of each bequest which is for a secular purpose must be allotted to it
c. The proportionate parts so abated of bequests for pious purposes must be aggregated and the
aggregate distributed so that the priority will be given to the extent of the full bequest. In such
cases the following rules are applied:
 The Quranic rules will be given first preference. The Quranic heirs will have precedence
over other bequests for pious purposes.
10 AIR 1932 PC 81
11 AIR 1989 Bom 1

 The property will be applied for certain works which are necessary.
 The property will be applied for voluntary purposes.12
There is an exception to the above rule. Where the legator has left only his or her spouse, and apart from
the spouse there is no other heir, the above rule of only making one third of the property may become
inapplicable. In such cases, the spouse shall take the whole property. The rule of bequeathable third shall
have no application if no heir has survived the legator.
If a Muslim bequest more than one-third of the property and the heirs does not consent to the same, the
shares are reduced proportionately to bring it down to one-third. Bequests for pious purposes have no
precedence over secular purposes, and are decreased proportionately. Bequests for pious purposes are
classified into three categories:
a. Bequest for faraiz, that is, purposes expressly ordained in the Koran viz. hajj, zakat and expiation
for prayers missed by a Muslim.
b. Bequest for waji-bait, that is, purposes not expressly ordained in the Koran, but which are proper
such as charity given for breaking rozas.
c. Bequest for nawafali, that is, purposes-deemed pious by the testator, viz. bequest for constructing
a mosque, inn for travellers or bequest to poor. The bequests of the first category take
precedence over bequests of the second and the third category and bequests of the second
category take precedence over those of the third.
An example under the Rule or Rateable Proportion: If a Muslim Man executes a Will giving Rs.30,000 to
A and Rs. 20,000 to B. He leaves behind property that comes up to Rs.75,000 after payment of funeral
expenses. Here the bequeathable limit would be one-third, which would be Rs.25,000 while the bequest in
the will at the moment is Rs.50,000. The bequest in favour of A and B will be proportionately reduced.
The ratio of the bequest will be the same but both bequests will be reduced to half, that is, the bequest
due to A would become Rs. 15,000 and that of B would be Rs.10,000. The sum total would then by
Rs.25,000 which would make it valid.
II) Under Shia Law, the principle of rate able abatement is not applicable and the bequests made prior in
date take priority over those later in date. But if the bequest is made by the same will, the latter bequest
would be a revocation of an earlier bequest. This is called the Rule of Chronological Priority. The
legatee whose name appears first in the Will is to be given his or her share, followed by the second legatee
12 Mathuradas v. Raimal (1935) 37 Bom. L.R. 642

and then the third and so on. The moment the bequeathable one-third is exhausted full effect has been
given to the Will. Any other legatee whose name follows after the one-third of the assets has been
distributed will not receive anything. The rule of chronological priority is not applicable in cases where
under one legacy two or more persons have been an exact one-third of the total assets. In such cases, the
legatee whose name appears last gets the one-third given to him under the Will, and the legatees whose
names appear prior to him will not get anything.
For example, A testator dies behind leaving assets worth Rs.1,20,000. He leaves a will under which he
leaves Rs.20,000 to A, Rs. 30,000 to B and Rs. 40,000 to C. As the total assets of the testator are to the
tune of Rs.1,20,000, the bequeathable one-third of that amount would be Rs. 40,000. Following the rule
of Chronological Priority, as A’s name appears first, he will be given Rs. 20,000. The rest of the Rs.
20,000 of the one-third will be given to B. C will not get anything as the one-third (Rs. 40,000) is
exhausted.
V. Registration and revocation of wills
REGISTRATION OF WILLS
Though it is not necessary to register a will, but the Law recognizes a Registered will when the execution
of a will is disputed and when there is an unregistered will. The provisions relating to registration of the
will have been given in sections 40 and 41 of the Indian Registration Act. The testator, after his death, or
any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub Registrar
for registration. No time limit has been prescribed for registering the will and a will may be presented for
registration at any time. A will presented for registration by the testator may be registered in the same
manner as any other document.
A will presented for registration by any other person entitled to present it shall be registered, if the
registering officer is satisfied:
a. that the will or authority was executed by the testator;
b. that the testator is dead; and
c. that the person presenting the will is entitled to present the same.
The registration of will is not the proof of the testamentary capacity of the testator as the Registrar is not
required to make an enquiry about the capacity of the testator except in case the testator appears to him
to be a minor or an idiot or lunatic.

CODICIL
Codicil means an instrument made in relation to a will and explaining, altering or adding to its
dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight
changes in the will, which has already been executed. A codicil cannot alter a will more than what is
necessary to carry out the testator's intention as evidenced by the will and the codicil.
Executor of the will (Al-wasi Al- mukhtar)
The executor or al-wasi of the will is the manager of the estate appointed by the testator. The
executor has to carry out the wishes of the testator according to Islamic law and to watch the
interests of the children and of the estate. The authority of the executor should be specified.
Hanafi law states that the executor should be trustworthy and truthful; Shia Law states that the
executor must be just. The Hanafi law considers the appointment of a non-Muslim executor to
be valid. The testator may appoint more than one executor, male or female. The testator should
state if each executor can act independently of the other executors. If one starts acting as an
executor, one will be regarded as having accepted the appointment, both in Islamic and in
English law.
REVOCATION OF WILL BY A MUSLIM
The basic feature of a will is its revocability. The testator may revoke his will at any time before his or her
death either expressly or impliedly. The express revocation may be either oral or in writing. A will may be
expressly revoked by tearing it off or by burning it. This revocation is possible till the testator breathes his
last which is Marzul Maut (end at the death bed). Similarly a testator is lawfully empowered to make a
subsequent will of the same property and the previous will would be revoked. The will can be revoked
impliedly by testator transferring or destroying completely altering the subject matter of the will or by
giving the same property to someone else by another will. Where the testator has disposed of the
bequeathed property by way of alienation it will be presumed that the testator has revoked the
bequest.13A subsequent sale or gift of the property may also amount to revocation.
Therefore under Islamic Law, the following conditions can stand as revocation:
a) sale of the bequeathed property
b) gifting the property
13 Abdul Karim v. Shiofiannisa (1906) 33 Cal. 833

c) when the property is materially changed or altered by way of addition and the property cannot be
delivered
Mere denial by the testator as to the validity of a bequest will not be sufficient to revoke the will. A similar
declaration will not amount to revocation either. Under Islamic Law, a bequest to a person is revoked by
a bequest in a subsequent will of the same property to another. But a subsequent bequest, though it be of
the same property to another person in the same will does not operate as revocation of the prior request
and the property will be divided between the two legatees in equal shares, as per the Hedaya.
Another important aspect of Revocation is intention of the legator. It is important to show that a legator
has intended to alter the will and the alteration in the deed, is a result of an altered intention in the interest
of justice and good conscience.
Conclusion
A Muslim will must be construed primarily in accordance with the rules laid down in the Muhammadan
Law, bearing in mind the social conditions that prevail, the language employed and the surrounding
circumstances. A will speaks as in modern law, from the death of the testator. The Court should as far as
possible give effect to the intention of the testator when there is ambiguity in the will. The heirs may also
be asked to interpret it. While determining the rules guiding the interpretation of wills, it is essential to
remember the differences in the law of wills with regard to Sunni Law and Shia Law. Thus summarising
the differences:
a. In Sunni Law, the bequest to an heir is invalid even to the extent of one-third of the total
property of a testator. Whereas in Shia Law, the bequest to heirs is valid up to the extent of one-
third of the property.
b. The Consent of the heirs must be given after the death of the testator in Sunni Law but in Shia
Law, the consent of the heirs may be given before of after the death of the testator.
c. The bequest in favour of a child in the womb of his mother is valid provided he or she is born
within six months of making a will in Sunni Law but it is up to ten months under Shia Law.
d. A will by the testator who later commits suicide is valid in Sunni Law. This is invalid in Shia Law
unless the will is made before taking any step towards commission of the act of suicide for the
will to become valid.
e. The Legacy has to be accepted after the death of the testator in Sunni Law. Legacy under Shia
Law can be accepted before or after the testator’s death.

f. Legatee who causes the death of the testator cannot take his property under Sunni Law. Under
Shia Law, if the death of the testator was caused by the legatee accidently, then the property can
be taken but not otherwise.
g. Under Sunni Law, if the legatee dies before the testator, the legacy lapses. Under Shia Law, if the
legatee dies before the testator, the legacy will lapse only when either the legatee dies without
leaving an heir or where the testator himself revokes the will. If an heir exists, the legacy passes
onto the heir if the will is not revoked.
h. Where the bequest is more than one person in excess of the valid one-third, the rule of rateable
proportion applies in Sunni Law. In Shia Law, it is the rule of Chronological Priority that is
applied to determine the distribution of the one-third property.
Therefore a will in Muslim law is a divine disposition of property. The object of a will is two fold, firstly,
it prevents a person from interfering and defeating the claims of his lawful heirs. So the restriction of the
legal one-third ensures that at least two-thirds of the property must go by succession. Secondly, by
permitting the testator to bequeath one-third of the property, he or she is empowered to settle just claims
of even strangers or other relatives who are not heirs.

THE REQUISITES OF A VALID WILL
(A comparative study of Shariah & Law)
*Attique Tahir
Introduction:
The concept of will is not new. This concept was very much present in the
pre-Islamic civilizations and religions. We do find it in the customs and
usages of pre-Islamic Arabs and Rabbinical Law; but the purpose behind
making the will was not a good one. It is mentioned in the Rabbinical Law
that the jewish tribes used to make a will in favour of strangers; the
purpose of which was to deprive the legal heirs from inheritance. In the
Arab tribes also there was a custom to make a will in favour of strangers
out of pride, leaving the legal heirs in a state of poverty and need(1) .
When Islam came it gave it a new spirit and shape; the purpose of which
was not the cruelty and pride but it was based on justice and sacrifice. So
it is made obligatory on the owner of property to make a will. The Quran
expressly sanctions the power of making a will and it prescribes the
formalities, conditions and limitations to which it is subjected. When the
Ayah concerning the inheritance was revealed in Surah Al-Nisa(2) the
conditions regarding the will were prescribed by Sunnah.
A will according to Islamic point of view is a divine institution as it is
sanctioned and regulated by the Quran and Sunnah of the Messenger of
Allah; the purpose of which is to correct to a certain extent the law of
inheritance on the one hand and to accommodate some of the relatives
who are excluded from inheritance, to obtain a share in property. In this
way Islam not only rectifies the laws of will prevailing in the pre-Islamic
civilizations and religions, but it recognizes it as a right of strangers
alongwith protecting the rights of legal heirs.
As the present treatise is on "The Requisites of a Valid Will" therefore, we
would like to confine our discussion on the said topic, under the headings
given below:
*Lecturer, Faculty of Shariah & Law -International Islamic University, Islamabad
34
Essentials of a valid will
Regarding the essentials of a valid will there is divergence of opinion
among the jurists of Islam. The views of the jurists in this regard may be
stated as below under the following headings:
A. Hanafi’s views
The Hanafi jurists they themselves differ in this regard. Their point
of difference may be discussed as follows:
i) Views of Imam Zufar
According to Imam Zufar, a Hanafi jurist there is only one
element of a will and it is Al-Ijab ( ‫ ) اﻻﻳﺠﺎب‬i.e. an offer
from the testator side and the acceptance is just a condition
of will and a proof of the ownership of the legatee. The
reason behind this may be that the basic thing required for a
will is the intention of testator. Therefore, it may be taken
as valid under the circumstances without acceptance. It
may happen under some situations that an acceptance may
not be possible, for example, in case of unspecified
legatees, as in the case of will made for a Masjid or a
hospital or for the poor and needy of a town or a city.
Under these circumstances, acceptance is not possible but
the will will be considered as valid and enforceable(3).
ii) Views of The Majority Of The HanafI jurists.

According to the views of majority of Hanafi jurists, the elements of will
like all other contracts such as Hiba and sale etc. are two and they are the
offer and acceptance ( ‫) اﻻﻳﺠﺎب واﻟﻘﺒﻮل‬. According to this view ownership
of a legatee is not proved unless it is accepted by him(4).
B. Views of Jamhoor (i.e. majority of jurists)

According to the views of the majority the of jurists i,e the
Malikis,Shafeis and Hanabala there are four elements of a will and
they are:
1) Sigah (‫) ﺻﻴﻐﺔ‬
i.e. the offer and acceptance
2) Testator ( ‫) اﻟﻤﻮﺻﻰ‬
3) Legatee ( ‫) اﻟﻤﻮﺻﻰ ﻟﻪ‬
4) Legace ( ‫() اﻟﻤﻮﺻﻪ ﺑﻪ‬5)
Now we would like to discuss all these essentials separately, in
some detail:
35
Sigah – offer and acceptance ( ‫)اﻻﻳﺠﺎب واﻟﻘﺒﻮل‬
In the Fiqhi terminology the term sigah (‫ )ﺻﻴﻐﺔ‬is used and applied both
for offer and acceptance. As it has already been mentioned that according
to the views of Imam Zufar there is only one element of a will and it is Al-
Ijab whereas the rest of the Hanafi jurists are of the view that there are two
elements of a valid will and they are Al-Ijab and Al-Qabool.
Regarding offer there is consensus of all the jurists that it is an essential

element of a will. No will can be validly constituted without this element
of offer(6).
Concerning the formation of will by offer and acceptance no specific

mode is required. It may be express or implied i.e. it may be made by
spoken words or in writing or it may be made by the conduct of the
parties. All the jurists of Islam they agree on this point(7).
A valid will may be constituted by using the word will or by using any
other word which conveys the same sense and meaning of a will.
An acceptance is valid only if it is made by the legatee after the death of
the testator and only by this the ownership of the legatee is proved and
established over the property of the testator; irrespective of it either he gets
a possession of it or not. But if the testator dies before acceptance or
rejection by the legatee, no property will be transferred to him and it will
be considered as the property of heirs of the deceased. Moreover, his
acceptance or rejection will be having no effect if it is made during the life
time of the testator, as only that acceptance or rejection is considered as
valid which is made after the death of the testator(8).
Regarding the time of acceptance or rejection of a will, no time period is
prescribed for it. It depends at the discretion of the legatee either to accept
it immediately after the death of the testator or delays it for a longer period
of time(9). There is consensus of the jurists on this point; however,
alongwith this agreement Imam Shafi’e(10) is of the view that it is the
right of legal heirs to demand its acceptance by the legatee. If the legatee
does not accept it, it will stand as rejection from the legatee side. The
Hanbali(11) also agree on this issue with Imam Shafi’e. If a situation
arises under which the legatee accepts half of the will rejecting another
half as if a testator make a will of a house and of some land and the
legatee accepts the house rejecting the land or vice-versa; then the will
will be enforceable to the extent of what he has accepted and will be
considered as void to the extent what he has rejected.If a will is made in
favour of a group of people or a class and some of the people belonging to
that class they accept it, while the others reject it; then the will will be
36
considered enforceable in favour of those who have accepted it and be
treated as void in favour of those who have rejected it; as the rejection of
some does not effect the rights of those who have accepted it. But if a will
is made with the condition of its indivisibility then the condition of the
testator will be considered as binding(11 (a) ). In case if a will is rejected
by the legatee after acceptance, then according to Hanafia(12). this
rejection will be considered as valid. Whereas, Shafi’a(13) and
Hanabala(14) are of the view that any rejection after acceptance is in
effective, as the ownership is proved and established with acceptance and
enforced with possession. No rejection therefore, will be effective after
acceptance.
In case if the legatee dies after the death of testator but before any
acceptance or rejection by the legatee, then according to the views of
Hanafia this will be enforceable on equitable ground and the death of the
legatee will be considered as an implied acceptance by him(15). However,
in the views of majority of the jurists the right of acceptance or rejection
will be shifted to the Legal heirs under the circumstances(16). They base
their view on the following sayings of the Messenger of Allah:
………………………………………….
‫ﻣﻦ ﺗﺮك ﺣﻘﺎ أو ﻣﺎﻻ ﻓﻠﻮرﺛﺘـﻪ‬
“He who leaves a right or property it is for his legal heirs.” (17)
The law favours the views of Hanafia as it has been decided by the Court
in one of its case stating as:
“Consent need not be express but could be inferred from the

conduct of the heirs”(18).
This implies that if the legal heirs of the deceased do not object on the
transfer of property to the legatee then their silence will be considered as
and implied acceptance. As it has been decided by the Court of law that …
“under the Mohammadan Law the consent of the heirs to a will may be
express or implied. A will in which the legal heirs of the testator had not
questioned the will for three quarters of a century and the legatee had
drawn allowances under the will month after month for that period then it
was impossible to come to another conclusion but that the heirs consented
to the will(19).
This decision of the Court also favours the Hanafi view, rather the Law
goes a step further by stating that if one of the heirs have consented to a
will it will be considered as valid and none of the heirs can challenge it
subsequently(20).
37
It is also essential for the validity of a will that an acceptance must
completely corresponds to offer.In case if it does not correspond to offer
no valid will will be constituted.
The law favours and recognises this point of view of shariah. It prescribes
that for the validity of the acceptance it is necessary that it must be
equivocal, unconditional and without any variance of any sort between
acceptance and the proposal (offer). A binding contract can only occur
when the offer made is met by an acceptance which corresponds with the
offer made in every particular(Section 7 of the Contract Act).
Testator and his competence
The essential requirements for the capacity of a testator alongwith the
views of jurists on the issue may be mentioned as below:
1. Every Muslim of a sound mind either male or female is competent
to make a will and there is consensus of the Muslim jurists on the point. A
will, therefore, made by an insane, lunatic or idiot person can not be
considered as valid(21):
According to Fatawa Alamgiri a will made by a person who is
incompetent to perform a gratuitous act is void but if a will is made by a
lunatic during his lucid interval it is valid(22).
The same is the position in law which treats a will made by a lunatic as
void but if it is made during his lucid interval is valid(23)
Regarding the age of majority as an essential ingredient for the
capacity of the testator the divergence between the Schools is very great.
Some jurists they take the age of majority as an essential ingredient for the
competency of a testator. Therefore, according to their view a will made
by a minor is void(24).
While some others are of the view that a will made by a minor may be
considered as valid. Those who consider a will made by a minor as valid
they themselves have divergence of opinion regarding the age of the minor
and state of his understanding, the detail of which may be mentioned as
below:
The majority of the Maliki jurists they generally do not regard a will made
by a minor as valid. However, some of the Maliki jurists they regard the
will of a minor as valid if it is made for a pious purpose while others are of
the opinion that it should not be restricted to these purposes alone. They
give the absolute right to a minor who can comprehend his act to make a
will for any purpose recognized by Shariah(25). The Shafeis and Shias
they also agree generally with the Malikis(26).
38
The Hanafis on the other hand, they do not consider a will made by a
minor as valid excepting few who consider it valid if it is made by a minor
who is approaching to his puberty or if it is made concerning his funeral
arrangements . It is expressed in Fataw-i-Alamgiri that “a will made by a
person under puberty whether he is Murahik (one approaching puberty) or
not is unlawful according to us”(27).
The same view is expressed in Radd-ul-Mukhtar that “a will of minor

either he can comprehend his act or not is void”.
So a will made by a minor either mummayiz or ghair mummayiz is invalid
according to the majority of the jurists, as they take the age of majority of
the testator as an essential ingredient for his competence to make a valid
will. The Shafeis(29) they also agree with the views of Hanafia on this
issue.
The law favours the views of Hanafis and Shafeis and does not recognize
the will a minor irrespective of it either he can comprehend his act or not.
In law any person under 18 years of age is considered as minor and
transactions made by him during his minority will be considered as
invalid(30).
3. As regard the capacity of a person who is condemned to death for
an offence there is no provision both in Shariah & Law to deprive him of
making a valid will.
4. As regard the difference of religions of the testator and legatee, a
will made by the testator will be considered as valid according to the
majority of the jurists(31) except Shafia(32) who do not consider it as
valid.
5. Alongwith this agreement of the majority of jurists there is
divergence of opinion among them on the issues mentioned below:
a) If a Zimmi makes a will of one third of his property to mourners or

singers or to erect a church it will be void and if he makes a will to
send certain muslims on Hajj or to construct a Masjid for the
muslims then it will be valid only if the persons are specified but in
case they are not specified it is void. This is the view of Imam Abu
Yousaf and Muhammad but according to Imam Abu Hanifah it is
absolutely valid under all circumstances(33).
b) When an alien mustamin makes a will to a muslim or a zimmi for

the whole of his property it will be valid unless his legal heirs are
residing in Dar-ul-Islam. Then in this case it will be valid only to
the extent of one third of his property and the excess will pass on
39
to his heirs but if he has no heirs then it will be valid in the whole
of his property(34).
c) If a Christian or a Jew makes a will to built Church or Synagogue

and dies, then such building would descend to the legal heirs of
the testator, as according to Abu Hanifa’s view the erection of this
nature of will be equivalent to Waqf or for a pious purpose and
will be treated as valid. However, according to the disciple’s
views all such erections are sinful in their nature and therefore, are
not valid(35).
d) A will made in favour of a murderer who has intentionally caused

the death of testator is not valid and there is consensus of the
jurists of this point. However, the difference does lie among the
jurists in case of unintentional murder and it has a detail which
may be mentioned as follows:
i) According to Imam Abu Hanifah if the cause of death is

unintentional or by mistake it will be void. Unless it is
caused by a minor or insane person(36).
ii) According to Shia law it is absolutely void (37).
e) If a will is made by an apostate who has converted his faith to

Christianity, Judaism or any other religion than Islam,it is void
according to Imam Abu Hanifah but valid in the views of Abu
Yousaf and Muhammad. However in case of a female apostate it is
valid according to the views of all Hanifi jurists as according to
their views she is not liable to put to death for her apostasy(38).
f) The will of a person who commits suicide is valid according to the

Hanifi doctrine(39) whereas it is invalid under the Shia Law(40)
g) In law it is considered to be valid if it is made before the

Commission of suicide but if it is made after doing any act towards
the Commission of suicide it is void. As it has been held in the
case of Mazhar Hussain Vs. Bodha Bibi that “the will made by the
deceased who made the will first and afterwards took poison is
valid”(41)
40
Essentials of Legatee or Devisee (The Musa Lahu)
In principle any person who is capable of holding property may be a valid
legatee under a will and there is a consensus of the Muslim jurists on the
point(42). However, the divergence among the jurists on the issue may be
discussed as follows:
i) According to the Hanafi doctrine the legatee must be in existence

at the time of making the will and if he is not alive at the time of
making the will, it will not be valid; as it is stated in Fatawai
Alamgiri(43)that "there is no will for a non -existent or a dead''.-
under the Shia Law(44) it is not necessary that the legatee must be
in existence at the time of making the will however he should
come into existence before the testator’s death.
ii) According to the majority of jurists(45) a will in favour of non-
Muslim is valid and their views are based on the tradition that the
Messenger of the Allah sent various gifts to Abu Sufyan Ibn-e-
Harb and Sufyan bin Ibn-e-Ummayyah for the purpose of
distributing them among the poors of Makkah and this was the
time when they had not yet embraced Islam. On the basis of this
Hadith the Hanafi jurists(46) are of the view that gifts and will can
be made both to the muslims and non-muslims. However,
Shafeis(47) are of the view that no will can be made in favour of
non-muslim absolutely.
iii) No will can be made to an apostate (a person who has renounced
Islam), and on this issue there is consensus(48) of all the schools;
however, in case of a women apostate there is divergence of
opinion. Some of the jurists they hold that she will be treated like a
male apostate and a will made in her favour will also be invalid.
While others they hold a different view and are of the opinion that
in case of a women apostate it is valid.
iv) A will in favour of a child in the mother’s womb is valid according
to Hanafi doctrine(49) provided he is born within six months of the
will. They are of the opinion that if a child is born within six
months of the date of making the will he will be treated as a
legatee in existence and is competent to take the will. According to
Shiah(50) and Maliki(51) doctrines there is no limitation as to time
when the child should born. All that is necessary is that the legatee
must be in existence before the death of the testator(s).
The law favours and recognizes the position of Hanafi doctrine(52)
on this issue, as it has been decided by the Lahore High Court in
one of it's case titled chano bibi vs Mohammad Riaz(53) that for
41
the validity of a will the legatee must be in existence at the time of
making the will or should be born with in six months of the death
of the testator
v) A will can be made for any legal, pious or charitable purpose. It
can be made in favour of poor generally or in favour of a
particular body of them. According to the Hanafi doctrine(54) it is
lawful to make a will in favour of poor christians as there is no sin
contrary to constructing a church for which there is a sin and
therefore it is illegal and this principle applies to the poor of all
religions and faiths in their views. However, according to Shia(55)
a will can only be made in favour of muslim poor.
vi) It is lawful to make a will in favour of a Masjid but according to
Imam Abu Hanifah no will can be made to make a graveyard or for
constructing inns for the passers-by. However, according to his
two disciples it can be validly made for all such purposes.
vii) A will can also be made either to an identified individual or in
favour of a class for example a will in favour of someone by name
or by description as a will in favour of certain students, patients, a
family or a group or for the construction of a certain houses or
institutions or hospitals for a particular purpose. According to the
Hanafi doctrine(56) a will can also be made in favour of
unspecified class or a group of people.
Subject of Will (Legace) and its Validity
Any property moveable or immovable which is capable of being

transferred and which exists at the time of the testator’s death can be the
subject of a will. It is also necessary for the validity of legace that it must
be owned and possessed by someone in his individual capacity. In other
words, we can say that the following conditions are necessary for the
validity of legace to make a valid will:
a) The property must be capable of being transferred.

b) The testator must be the owner of the property.
c) The property must be in existence at the time of testator’s
death.
It is not necessary, however, that the subject of will must be an existence

at the time of making the will as in the case of Bai-us-Salam and there is
consensus of the jurists on this issue, alongwith some difference in some
minor matters(57).
42
d) A will can also be made in rights of Easements which can be
capable of transfer e.g. right of way, right of water, light etc.
and there is consensus of the jurists on this issue(58)
e) Although the Quran does not impose any restriction on the
extent of the disposition of the property, however, there is
complete unanimity of jurists both Sunni and Shia that a will
can only be made to the extent of one third of the total property
belonging to the testator and this limitation is based on the
address made by the Messenger of Allah at the time of Hajjah-
tul-Wadah which states as follows:
………………………………………….
“O people, verily Allah has specified the shares of each heirs in
the property of the deceased, it is not permissible to make a
will in favour of heirs nor should it exceed to one third(59).
The law also recognizes this position of Shariah(60)
A will can however, be made beyond one third of the total property to
legatee with the consent of all legal heirs and there is consensus of
jurists(61) on this issue. The law recognizes this point of Shariah as it has
been held in the cases cited below that a will to an heir beyond one third of
the property is not valid except with the consent of all other heirs(62).
However, under the Shia law(63) a testator can make a will in favour of
legatee even without the consent of other heirs only to the extent of one
third but when it exceeds one third it is not valid without their consent and
on this issue the law(64) favours the Shia views.
43
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44
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23. Bank Vs Good Fellow L.R. 5QB549
45
24. Al-Hedaya 4/494
25. Bidayat al-Mujtahid wa-Nihayat al-Muqtasid 2/368 – 70
26. a) Al-Muhadhdhab fi Fiqh Madhhab al-Imam Al-Shafi’i 1/449 –
555
b) Mughni al-Muhtaj ila Maani Alfaz al-Minhaj 3/39 – 45
c) Shara’i al-Islam fi Masa’il al-Halal wa-al-Haram 2/244 – 250
d) Wasail al-Shiyyah 6/141, Dar Ihya al-Turath al-Arabi, Beirut,
Lebanon
27. Al-Fatawa al-Alamgiriyah 6/166
28. Radd-ul-Mukhtar 5/445 – 60
29. a) Al-Muhadhdhab fi Fiqh Madhhab al-Imam Al-Shafi’i 1/450 – 55
b) Mughni al-Muhtaj ila Maani Alfaz al-Minhaj 3/39 – 45
30. Majority Act 1875 Section 3 Contract Act 1872 Section 10 – 11
31. a) Al-Fatawa al-Alamgiriyah 6/537
b) Al-Mugni fi Fiqh Imam al-Sunnah Ahmad ibn Hanbal al-
c) Al-Qawaneen al-Fiqhia 410 – 420.
32. a) Al-Muhadhdhab fi Fiqh Madhhab al-Imam Al-Shafi’i 1/449 –

557
b) Al-Iqna fi Hall Alfaz 2/55 – 60
33. a) Al-Qawaneen al-Fiqhia 405 – 420.
c) Al-Fatawa al-Alamgiriyah 6/160 – 165
34. Al-Hedaya 4/537 – 40
36. Tabyin al-Haqa’iq: Sharh Kanz al-Daqa’iq 6/185 – 90
37. Shara’i al-Islam fi Masa’il al-Halal wa-al-Haram 2/244 – 250
40. a) Shara’i al-Islam fi Masa’il al-Halal wa-al-Haram 2/244 – 250
b) Wasail al-Shiyyah 6/141 – 145
c) Tahreer ul Wasillah 2/88 – 90 by Imam al-Khomini
41. (1898) I.L.R 20 All.91
42. a) Radd-ul-Mukhtar 5/459 – 61
b) Al-Qawaneen al-Fiqhia 405 – 420
c) Al-Muhadhdhab fi Fiqh Madhhab al-Imam Al-Shafi’i 1/44 – 56
d) Al-Mugni fi Fiqh Imam al-Sunnah Ahmad ibn Hanbal al-
e) Badai’i al-Sana’i fi Tartib al-Shara’i 7/335 – 345
44. Shara’i al-Islam fi Masa’il al-Halal wa-al-Haram 2/253
45. a) Al-Qawaneen al-Fiqhia 405 – 420
c) Badai’i al-Sana’i fi Tartib al-Shara’i 7/320 – 335
46
47. a) Al-Muhadhdhab fi Fiqh Madhhab al-Imam Al-Shafi’i 1/449 – 55
b) Al-Qawaneen al-Fiqhia 410 – 425
d) Al-Qawaneen al-Fiqhia 410 – 420
51. Bidayat al-Mujtahid wa-Nihayat al-Muqtasid 2/334 – 342.
53. PLD 1956 Lahore 787
b) Radd-ul-Mukhtar 5/661– 75
56. a) Badai’i al-Sana’i fi Tartib al-Shara’i 7/335 – 345
b) Tabyin al-Haqa’iq: Sharh Kanz al-Daqa’iq 6/185 – 88
59. a) Nasb-ur-Raya 4/402 – 405
b) Nail-ul-Utaar 4/40
60. PD 1997-SC-220
62. a) (1989) C.L.C. 2028
b) 1990 – ILJ 237
64. PLD 1997 SC-220
47
Lesson no 04
Hiba under Islamic Law
Gift is a transfer of property where interest is transferred from one living person to another, without any
consideration. It is a gratuitous and inter vivos in nature. This is the general definition that is accepted by
all the religions, including Muslim law. As per the Muslim Law, a gift is called as Hiba. Under English
laws, right in property is classified by a division on the basis of immoveable and moveable (real and
personal) property.
CONCEPT OF HIBA
Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650 AD.  In
general, Muslim law draws no distinction between real and personal property  What Muslim law does
recognize and insist upon, is the distinction between the corpus of the property itself (called as Ayn) and
the usufruct in the property (as Manafi). Over the corpus of property, the law recognizes only absolute
dominion, heritable and unrestricted in point of time. In English law a person having interest in the
immoveable property for limited periods of time. On the other hand, in Muslim law, a person can be said
to be an “owner” only if he has full and absolute ownership. If the use or enjoyment of property is granted
to a person for life or another limited period such person cannot be said to be an “owner” during that
period.
The English law thus recognizes ownership of the land limited in duration while Muslim law admits only
ownership unlimited in duration but recognizes interests of limited duration in the use of the property.
This basically differentiates Muslim Law‟s concept of property and gift from that of English Law.
Conception of the term „gift‟ as used in the Transfer of Property Act, 1882 is somewhat different from the
practice under the Muslim Law.
Under the Muslim Law, a gift is a transfer of property or right by one person to another in accordance
with the provisions provided under Muslim law. Hiba (Tamlik al ain), is an immediate and unconditional
transfer of the ownership of some property or of some right, without any consideration or with some
return (ewaz); and the term „hiba‟ and „gift‟ are often indiscriminately used but the term hiba is only
The other types of gifts include Ariya (Tamlik al manafe), where the only usufruct is transferred and
Sadqah where the gift is made by the Muslim with the object of acquiring religious merit. The Hanafi
lawyers define hiba as „an act of bounty by which a right of property is conferred in something specific
without an exchange‟. The Shias hold that „a hiba is an obligation by which property in a specific object is
Miss Mamoona Khalid lecturer Law College

Lesson no 04
transferred immediately and unconditionally without any exchange and free from any pious or religious
purpose on the part of the donor‟.
REQUISITES OF A GIFT PARTIES TO THE GIFT SUBJECT OF GIFT

EXTENT FORMALITIES OR MODE OF GIFT
1. PARTIES PARTIES DONOR and DONEE
 The age of majority

 Sound mind
 Free from coercion
 Free from undue influence
 Must be the owner
 May be made to juristic person
 Sex, creed, religion no bar
 In case of minor or lunatic- to the guardian
 Gift to unborn is void
2. SUBJECT OF GIFT
Anything over which a dominion, or right of property may be exercised (including right of equity of
redemption) Which can be reduced to possession (includes incorporeal property and actionable claims)
Which exists as either scientific entity or enforceable right Within the meaning of word „Mal‟/ „Ayn‟
Which is in existence right now- No future Gifts Gift Hiba- Gift of Corpus (Mal/Ayn) Ariyat- Gift of
usufructs (Manafi) Sadqah- Religious gift
3. EXTENT OF DONOR’S RIGHT
Donor‟s power to gift his property is unrestricted.  he may not only give his whole property but also any
portion he likes irrespective of the fact that the disposition of property will adversely affect on the
inheritant's right to inherit. Exception: (during Marzulmaut) 1. He cannot gift more than 1/3 of his whole
property in will
4. FORMALITIES
Declaration ijab must be clear and acceptance qubo ol delivery kabza real test is to see whether donor or
essentials of hiba

Lesson no 04
DECLARATION BY DONOR:
1. There must be a clear and unambiguous intention of the donor to make a gift.
2. A declaration is a statement which signifies the intention of the transferor that he intends to make
a gift.
3. declaration can be oral or written. (Ilahi Samsuddin v. Jaitunbi Maqbul) In Maimuna Bibi v.
Rasool Mian, it was held that while the oral gift is permissible under Muslim law, to constitute a
valid gift it is necessary that donor should divest himself completely of all ownership and
dominion over the subject of the gift.
4. The donor may declare the gift of any kind of property either orally or by written means.
ACCEPTANCE BY DONEE:
1. A gift is void if the donee has not given his acceptance.

2. The legal guardian may accept on behalf of a minor.
3. Donee can be a person from any religious background.
4. Hiba in favor of a minor or a female is also valid.
5. A child in the mother‟s womb is a competent done provided it is born alive within 6 months from
the date of declaration.
6. A juristic person is also capable of being a donee and a gift can be made in their favor too.
7. On behalf of a minor or an insane person, any guardian as mentioned under the provisions of
Muslim law can accept that gift.
DELIVERY OF PROPERTY:
1. In Muslim law, the term possession means only such possession as the nature of the subject is
capable of.
2. Thus, the real test of the delivery of possession is to see who – whether the donor or the donee –
reap the benefits of the property.
3. If the donor is reaping the benefit then the delivery is not done and the gift is invalid.
4. The mode of delivery of possession depends completely upon the nature of the property.
EXCEPTIONS TO DELIVERY
1. Gift by father to minor/lunatic son/daughter or by guardian
2. When donor and done reside in the same house which is to be gifted

Lesson no 04
3. Gift by husband/wife
4. Gift by one co-sharer to another
5. Part Delivery 6. Zamindari Villages
7. Subject matters
8. Subject matter in the occupation of tenant.
9. Incorporeal Property
10. Where done is already in possession
VOID GIFTS
1. Gift to unborn
2. Gift in future
3. Contingent Gift
4. Gift with a Condition
5. Gift of „Mushaa‟ is irregular but can be validated once separated
REVOCATION
The donor has unrestricted right to revoke the gift before the delivery is complete  Even after the
delivery the donor can revoke either by consent of the donor or by the order of court (Mahbob v Abdul,
1964) The following gifts are absolutely irrevocable:
1. When donor is dead
2. When done is dead
3. When done is consanguine to donor
4. When the donor and done are in marital relation
5. When the subject of gift is transferred 6. When the subject of gift is lost, destroyed

Lesson no 04
7. Where subject of gift has increased its value 8. When gift is a sadqaah 9. When anything is accepted in
return
GIFT FOR CONSIDERATION (IN REALITY A SALE) Hiba-bil-

iwaz
a. Exchange of two reciprocal gifts

b. Actual payment of consideration
c. Bona fide intention on part of donor
d. No express agreement for a return i.e. the return is voluntary
e. Delivery of possession is not necessary
f. Irrevocable from the moment of its making
g. It is like contract of sale Hiba-ba-shartul-iwaz Transfer of ownership for consideration With
express condition for return Delivery of possession is necessary Consideration is post poned
When consideration is done it assumes the character of sale Irrevocable on payment of iwaz.

Concept of Gift Under Islamic Law
Introduction
A Muslim can devolve his property in various ways. Muslim law permits the
transfer of property inter vivos (gift) or through testamentary dispositions
(will). A disposition inter vivos is unrestricted as to quantum and a Muslim is
allowed to give away his entire property during his lifetime by gift, but only
one-third of the total property can be bequeathed by will. Conventionally, a
gift, being a transfer of property is governed by the Transfer of Property Act,
1882.
But Chapter VII of the Transfer of Property Act, 1882 regulating the gifts does
not apply to the ‘Muslim Gifts’ or the ‘Hiba’. Although there is no such
difference between a gift made by a non-muslim or a Muslim yet, the
formalities of Hiba are different from that of a gift made by a non-muslim.
Therefore, Hiba is governed by the Muslim Personal Law.
Meaning and Definition of Gift

A gift is generally a transfer of ownership of a property by a living person to
another living person without any consideration. In Islamic law, gifts are
known as ‘Hiba’. To be very precise, gift implies to an extensive overtone and
appertain to all kind of transfers of ownership not involving any consideration.
On the other hand, the term ‘Hiba’ includes a narrow connotation. It is
basically transferred inter vivos i.e. between living person.
According to Hedaya– “Hiba is an unconditional transfer of ownership in an

existing property, made immediately without any consideration.”
According to Ameer Ali– “A Hiba is a voluntary gift without consideration of

property by one person to another so as to constitute the donee the proprietor
of the subject-matter of the gift.”
According to Mulla– “A Hiba 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 Fyzee– “Hiba is the immediate and unqualified transfer of the

corpus of the property without any return.”
Salient Features of a Hiba

After anatomizing the definitions and meaning, some prominent features of
Hiba emerge as follows:
1. Hiba is a transfer of property by act of the parties and not by operation

of law. It means that any transfer of property done by the court of law
or any transfer of ownership by the Muslim law of inheritance will not be
considered as Hiba.
2. Under Hiba, a living Muslim voluntarily transfers the ownership of any
property to another living person. Hence, it is a transfer inter vivos.
3. The transferor transfers ownership of the property in absolute
interest and the transferee gets the complete title in respect of the
property given to him. Conditions, restrictions or partial rights in the
gifted property are averse to the concept of Hiba under Islamic law.
4. Hiba is operative with immediate effect and deprives the transferor
of his control and ownership over the property. Moreover, as the
property is passed immediately to the transferee, the property must be
in existence at the time when the gift is made. A gift made for a property
which will exist is future is termed as void.
5. A Hiba is a transfer of property without any consideration. If
anything of any value is taken by the transferor in return or exchange,
such a transfer of property is not a gift.
Competency of the Donor: Capacity and Right
A person who makes the declaration of a gift is called a donor. A donor must
be a competent person to make a gift. Every Muslim, male or female, married
or unmarried, who has attained the age of majority and has a sound
mind is a competent donor. For the purpose of making a gift, the age of
majority is the attainment of 18 years and 21 years if he is under a certificated
guardian.
Capacity to make a Hiba

Mental capacity: A person who is of sound mind and has the mental capacity
to understand the legal implications of his act is eligible to make a gift.
However, a gift made by a person of unsound mind during lucid intervals is a
valid gift. Also, the donor must be free from any coercive or fraudulent
influence while making a gift.
In the case of Hussaina Bai v. Zohara Bai[1], the validity of a gift made by
parda-nasheen ladies was declared by the court. In this case, a parda-nasheen
Muslim lady was brought from Nagpur to Burhanpur on an excuse that her
brother-in-law was seriously ill. After reaching the place, she had a fit of
hysteria, and soon after it, she was made to sign a gift deed without informing
her the content of the deed and no opportunity was given to her to take an
independent decision. The court held that-
“When a gift is made by a parda-nasheen lady, it is important to establish that

the consent of the lady was free and she made the gift on her independent
advice. The burden to prove that the gift was made free from compulsion lies
on the donee. In this case, the deed was executed from the lady under
compulsion, it was not her voluntary act, and hence, the deed was held
invalid.”
Financial Capacity: According to the Hanafi view, if a person is under

insolvent circumstances, he is allowed to make a gift. However, the Kazi has
the power to declare any gift as void if it is made with a view to defraud the
donee. The Indian courts have accepted the view of the Hanafi school that
from the fact of indebtedness or embarrassing financial circumstances of the
donor, it cannot be inferred that the donor has fraudulent intentions.
So, in every gift, there must be a bona fide intention on the part of the donor
to transfer property to the donee. Evidently, if a gift is made with a malafide
intention to defraud the donee, the gift is invalid.
Right to make a Hiba

Capacity to make a gift is not solely enough. The donor must also have a right
to make a Hiba. A Muslim has a right to gift only those properties of which he
has the ownership. If he is simply a tenant in a house, he is not allowed to
gift that house to someone because he does not have the ownership of that
house. Such a gift is considered as invalid.
However, a Muslim has a right to gift away all his properties which are under
his ownership at the time of declaration of the gift. The transfer of the property
by the donor must be in the absolute interest of the donee. Therefore, it is
imperative that the donor himself has the ownership of that property which
he intends to pass on to the donee.
Competency of the Donee

The person in whose favour the gift is made is known as the donee. For being
a competent donee, the only essential requirement is that a donee must be
any person in existence at the time of the making of a gift. He may be a person
of any religion, sex, or state of mind. Thus, a Muslim can make a lawful Hiba
in favour of a non-muslim, female, minor or an insane person.
Child in Womb: A child in the mother’s womb is a competent donee provided

that it is born alive within six months from the date on which the gift was
made. If after the declaration of the gift the child dies in the womb or an
abortion takes place, the gift becomes void. Also, the child must be in
existence in the mother’s womb at the time of the making of the gift. If a child
is not in the mother’s womb or the conception takes place after the declaration
of the gift, such a gift is void ab initio.
Juristic Person: A juristic person includes a firm, corporation, company,

association, union, university or any other organization. A juristic person is
presumed to be an adult of sound mind like a human being in the eyes of law
and hence, is a competent donee in whose favour a gift can be made. A gift
in favour of a mosque, temple or a school is valid.
Two or more Donees: A donee may be an individual or a class of persons.

In case the donee is a group of people, all the people in that particular group
must be ascertainable.
The Subject matter of Hiba

Islamic law does not make any distinction between ancestral or self-acquired
or between movable or immovable property as far as the concept of Hiba is
concerned. Any form of the property upon which the dominion can be
exercised may constitute the subject-matter of the Hiba. Both incorporeal and
corporeal property can be the subject-matter of a Hiba.
Similarly, a gift can be made of property on lease, a property of attachment

or any actionable claim. Unlike the concept of the will or wasiyat under Islamic
law in which only one-third of the total property can be bequeathed by a will,
a Hiba or gift can be made of the entire property.
Formalities of a Hiba
It is often supposed that the word ‘gift’ connotes the exact identical meaning
as the term ‘Hiba’. A gift is a broad and generic concept whereas Hiba is a
narrow and well-defined legal concept. Juristically, in Islamic law, a Hiba is
treated similar to a contract consisting of an offer to give something on the
part of donor and acceptance on the part of the donee. Thus, to make a Hiba
three essential formalities have to be fulfilled.
1. A declaration of gift by the donor

2. Acceptance of the gift by the donee
3. Delivery of possession by the donor and taking of possession by the
donee
These three formalities are discussed in detail below:-
Declaration of gift by the Donor

Declaration simply signifies the intentions of the donor to make a gift. It is a
substantiation of the intention of the donor to transfer the ownership of the
property to the donee.
Oral or Written: The donor may declare a gift of any kind of property either
orally or through a written deed.
In the case of Md. Hesabuddin v. Md. Hesaruddin[2], a Muslim woman made

a gift of her immovable properties in favour of her son. The gift was written
on ordinary paper and was not a registered deed. The court held the validity
of such gifts in this case as-
“ Under Muslim law, writing is not essential for the validity of a gift whether it
is moveable or immovable property. Therefore, the gift, in this case, was held
to be valid because writing and registration of a gift are not mandatory
requisites to make a valid gift.”
Express Declaration: A declaration of a gift must be expressly made in clear
words that the donor is conceding his ownership of the property completely.
A gift made in ambiguous words is null and void.
In Maimuna Bibi v. Rasool Mian[3], it was held that-
“ It is necessary that the donor divest himself completely of all the dominion
and ownership over the property of gift. The donor must express his explicit
intention to transfer the ownership to the donee clearly and unequivocally.”
Free Consent: The consent of the donor in making the gift must be free. A
declaration of a gift must be made voluntarily by the donor. Any gift made by
a donor under threat, force, coercion, influence or fraud is not a valid gift.
Bona fide Intention: Mere announcement of a gift is not considered as a

valid declaration until it entails the intention of the donor. Absence of real and
honest intention to transfer the ownership of the property will make a gift
ineffective. A gift made with an intention to defraud the donee is void. A gift
without an intention may be pretence gift, colourable or Benami transaction
etc. however, mere indebtedness does not affect the competency of the donor
unless his malafide intention is established.
Acceptance of gift by the Donee

For the validity of a gift, it must be accepted by the donee. Acceptance
manifests the intention of the donee to take the property and become its new
owner. Without acceptance, the gift is considered to be incomplete. Since
under Islamic law, Hiba is treated as a bilateral transaction, therefore, it is
important that the proposal made by the donor to transfer the ownership of
the property must be accepted by the donee.
Minor: In case the donee is minor, the acceptance on behalf of a minor can
be given by the guardian of the property of the minor.
Juristic person: If a gift is made in favour of any institution or any other
juristic person, the acceptance of the gift is made by either manager or any
other competent authority.
Two or more Donees: Gift made in favour of two or more donees must be
accepted by each and every person separately. If the share of each person is
explicitly specified by the donor then, they will get the separate possession in
the same way as declared by the donor. But if the share under a gift is not
specified and no separate possession is given by the donor, then also the gift
is valid and the donees will take the property as tenants-in-common.
Delivery of Possession
The formalities laid down for gifts under Section 123, Transfer of Property Act,
1882, are not applicable to Muslim gifts. Under Islamic law, a gift is complete
only after the delivery of possession by the donor and taking of possession by
the donee. Thus, it is obligatory that the declaration and acceptance must be
accompanied by the delivery of possession of the property.
The gift takes effect from the date when the possession of the property is
delivered to the donee and not from the date when the declaration was made
by the donor. Delivery of possession is an overriding facet in Islamic law. The
importance is to such an extent that without the delivery of possession to the
donee, the gift is void even if it has been made through a registered deed.
The donor must divest himself of not only the ownership but also the
possession in favour of the donee in order to make a gift complete. Muslim
law does not presume transfer of ownership rights from donor to a donee
without the explicit delivery of possession of the property.
In Noorjahan v. Muftakhar[4], a donor made a gift of certain property to the

donee, but the donor continued to manage the properties and takes the profit
himself. Till the death of the donor, no mutation was made in the name of the
donee. It was held by the court that since no delivery of possession was made,
the gift was incomplete and ineffective in nature.
Mode of Delivery of Possession
The mode of delivery of possession totally depends upon the nature of the
property gifted. Legally, the donor is required to do something by which the
donee gets the physical control over the property in order to constitute the
delivery of possession.
A donee is said to be in possession of a property when he is so placed that he

can exercise exclusive dominion over it and gain the benefits out of it as is
usually derived from it. Therefore, the delivery of possession can be either
actual or constructive i.e. symbolic.
Actual Delivery of Possession
Actual delivery means when a property is physically handed over to the donee.
This type of delivery is possible only with tangible properties (movable as well
as immovable) which are capable of being physically possessed and given.
Where the property is movable, it must be actually transferred and handed

over to the donee.
For example, if a donor gifts a car to the donee, he must give the keys of
the car and all other documents of the car to the donee so that he can use it.
Mere declaring the gift on a document is not enough. The property must be
handed over immediately.
Similarly, where the property is immovable, its actual delivery of possession

is compulsory. But since it cannot be picked up and handed over, the donor
may delivery such property by giving all the documents related to that
property and by placing it to the donee so that he can use it as he likes.
For example, if a donor gifts the house in which he is residing, he must
vacate it and ask the donee to live in it in order to make his gift valid. In case
of a garden, the donor may give full dominion to the donee to use the garden
in whichever way he wants including all the rights to enjoy the fruits and
flowers.
Constructive Delivery of Possession
Constructive delivery of possession means a symbolic transfer of property. In

this mode of delivery, the donor does some act due to which it is legally
presumed that the possession has been delivered to the donee. Such type of
delivery of possession takes place only when the property is of such a nature
that it is not possible to delivery through actual mode. Constructive delivery
of possession is sufficient to constitute a valid gift under two circumstances
only:
1. Where the property is intangible.

2. Where the property is tangible but, under the situation, its actual
delivery of possession is not possible.
When the constructive delivery of possession is completed?
When the possession of the movable property is delivered, the exact time of
delivery of possession can be easily determined. The problem arises in the
case of immovable or incorporeal properties where it is onerous to prove the
exact time of the delivery of possession. However, in India, there are two
judicial views regarding the exact time of the completion of delivery of
possession.
• Benefit Theory: Under this view, it is believed that a constructive delivery of

possession is complete as soon as the donee starts getting the benefits out of
the gifted property. Where even after the declaration of the gift, the donor is
enjoying the benefits, the gift is not complete. But, if the donor enjoys the
benefits, it is deemed that the delivery of possession has taken place.
This approach lays more emphasis on the facts of donee’s benefits from the
gifted property instead of the act which symbolises constructive delivery of
possession.
For example, if a donor gifts a rented house to the donee, the delivery of
possession is considered to take place from the date on which the donee gets
the rent from the tenants.
• Intention Theory: This approach supports the view that the delivery of
possession is completed on the date on which the donor intent to transfer the
possession to the donee. The intention of the donor can be proved on the basis
of the facts and circumstances which vary from case to case. In
correspondence to the intention of the donor, some potent facts must be
established which exhibit that the donor has physically done everything he
could in the given circumstances.
In other words, the court accepts that the delivery of possession is deemed to
have taken place only when the bona fide intention of the donor to complete
the gift is thoroughly established and it is not important to prove that from
which date the donee reaps the benefits of the property given.
For example, if the donor and donee are living in the same house which
constitutes the subject-matter of the gift, the donor’s intention to transfer the
possession to the donee is sufficiently proved if the donee has been authorised
to manage the house.
Who may challenge the Delivery of Possession?
It is not at all necessary to prove separately in each and every case that the
delivery of possession has been completed until and unless the validity of gift
is challenged by the donor, the donee or any person legally authorised to claim
on behalf of them.
In the case of Y. S. Chen v. Batulbai[5], a Muslim woman made a gift of a

portion of her house to her daughter. The gifted portion of the house was
occupied by a tenant who used to pay the rent regularly to the daughter
(donee) recognising her as the landlady. After some time, the tenant refused
to recognise the daughter as his landlady on the ground that the gift made in
her favour was void because there was no delivery of possession. It was held
by the court that –
“Any objection as to the validity of gift on the ground of absence of delivery

of possession cannot be raised by the tenant who is a stranger to the
transaction of a gift.”
Conditional or Contingent Hiba

The contingent or conditional gifts whose operation depends upon the
occurrence of a contingency. A contingency is a possibility, a chance, an event
which may or may not happen. Under Islamic law, conditional or contingent
gifts are void.
For example, if a Muslim made a gift to his wife for life, and after her death to
his children who are living at the time of his death, the gift is said to be
contingent.
Revocation of Hiba
Although Prophet was against the revocation of gifts, it is a well-established
rule of the Islamic law that all voluntary transactions, including Hiba, are
revocable. Different schools have different views with regard to revocation.
The Muslim law-givers classified the Hiba from the point of view of revocability
under the following categories:
• Revocation of Hiba before the delivery of possession
All gifts are revocable before the delivery of possession is given to the donee.
For such revocation, no orders of the court are necessary. As discussed above
that under Muslim law, no Hiba is complete till the delivery of the possession
is made, and therefore, in all those cases where possession has not been given
to the donee, the gift is incomplete and whether it is revoked or not, it will not
be valid till the delivery of possession is made to the donee.
It implies that the donor has changed its mind and not willing to complete the
gift by delivery of possession.
For example, X, a Muslim, makes a gift of his car to Y through a gift deed
and no delivery of possession has been made to Y. X revokes the gift. The
revocation is valid.
• Revocation after the delivery of possession
In this situation, a Hiba can be revoked in either of the following ways:
1. With the consent of the donee

2. By a decree of the court.
Mere declaration of revocation by the donor or filing a suit in the court or any
other action is not enough to revoke a gift. The donee is entitled to use the
property in any manner until a decree is passed by the court revoking the gift.
Gift to Minor
Any gift made in favour of a minor or insane person is valid. They may not
have the capacity to understand the legal consequences but they are persons
in existence and thus, are competent donee. But such gifts are valid only if
accepted by the guardian of the minor or insane donee. A gift is void without
the acceptance by the guardian.
For the purpose of acceptance of the gift, the guardian of a minor or insane
donee are as under in the order of priority:
1. Father
2. Father’s executor
3. Paternal grandfather
4. Paternal grandfather’s executor
Therefore, in the presence of the father, the paternal grandfather is not

allowed to accept the gift on behalf of the minor or insane and so on. If all the
above-mentioned guardians are not present, then the gift is accepted by the
‘guardian of the property of minor or insane’.
If a guardian himself makes a gift in favour of his ward, he will declare the gift
acting as a donor and has the capacity to accept the gift as the guardian of
the minor or insane.
It is to be noted here that the mother is not recognized as the guardian

of the property of her minor child. Hence, she is not entitled to accept the
gift on behalf of her minor child.
Where a gift is made to a minor or lunatic, the gift is complete only if the
guardian has taken the actual or constructive delivery of possession of the
property on behalf of such persons. If the possession is taken by any other
person who is neither a legal guardian nor a de facto guardian, the gift
becomes ineffective and void.
Katheessa Ummand v. Naravanath Kumhamuand[9] is a leading case on this

point.
Facts: In this case, a Muslim husband made a registered gift to his wife who
was a minor. The gift was accepted by the donee’s mother. Unfortunately,
after two years, the husband died and soon after it the donee (wife) also died.
The validity of the gift was challenged by the elder brother of the donor
(husband) on the ground that there was no delivery of possession as a gift to
the minor was accepted by her mother who is not a legal guardian according
to the Islamic law.
Issue: The question before the court was whether a gift by a Muslim husband
to his minor wife and accepted by the mother on behalf of the minor wife, is
valid?
Held: The court, in this case, held that it is a well-established rule under
Islamic law that mother is not a legal guardian of the minor’s property,
therefore, she is incompetent to take the delivery of the possession on behalf
of the minor donee. But, in case there is no legal guardian to accept the gift,
the completion of the gift for the benefit of the minor has the utmost
significance.
If the donee had already attained the age of puberty, the gift is valid even if
it is accepted by a person who has no authority to accept the gift on behalf of
a minor. In this case, the gift was held to be valid although the delivery of
possession was not accepted by any competent guardian on behalf of minor
but since the minor had reached the age of discretion (fifteen years) and was
competent to accept the gift herself.
When Delivery of Possession is not necessary

Islamic law of gift binds great significance to delivery of possession especially
in case of immovable property. The other essentials of Hiba will have no legal
effect unless accompanied by delivery of possession. But there are certain
exceptions to this general rule. The following are the situations under which a
gift is valid without actual or constructive delivery of possession:
• Donor and donee live jointly in the gifted house: Where the subject-
matter of a gift is a house in which the donor and donee both resides together,
any formal delivery of possession is not necessary to complete the gift. Since
the donee is already continuing the possession of the house in some other
capacity, there is no need to give the donee the same possession again in a
different capacity.
But, there must be some conspicuous act or apparent activity on the part of
the donor that indicates the bona fide intention of the donor to transfer the
possession.
In Humera Bibi v. Najmunnissa[6], a Muslim lady executed a gift deed of

her house in favour of her nephew who was living with her in the same house.
The property was transferred in the name of the nephew but she continued to
live with him as before. But after the making of the gift, the rents were
collected in the name of the donee. It was held that “ the gift was valid
although there was neither any physical transfer to the donee nor any physical
departure of the donor from the house.”
• Gift by a husband to wife or vice versa: where a gift of immovable property

is made by a husband to wife or vice versa, no transfer of possession is
mandatory. The reason behind this is that a joint residence is an integral aspect
of the relationship of marriage. To perform the matrimonial obligations it is
necessary the husband and wife must live together.
In the case of Fatmabibi v. Abdul Rehman[7], the husband made an oral gift
of a house to his wife. Later, the deed was also registered. The stepson, who
lived with his wife in the gifted house, challenged the validity of the gift on the
ground that there was no delivery of possession of the house. It was held that
–
“Oral gift in presence of two persons amounts to the declaration, mentioning

the name of the wife in the registration deed amounts acceptance and
mutation in the name of the wife at the instance of the wife amounts sufficient
delivery of possession keeping in view the relationship between the parties.”
In Katheessa Ummand v. Naravanath Kumhamuand[8], the Supreme Court

held that “ where a husband made a gift in favour of his minor wife by a
registered deed and possession is handed over to the mother of minor wife,
the gift was valid. Since the wife had no father and grandfather alive, nor any
executor, the delivery of the gift deed to her mother instead of the minor wife
herself did not invalidate the gift, as the intention was well established.”
• Gift by Guardian to Ward: In case a guardian makes a gifts in favour of his

ward, he declares the gift as donor and accepts the gift on the part of the
donee, the delivery of possession is not compulsory provided that there is a
bona fide intention on the part of the guardian to divest his ownership and
give it to his ward.
• Gift of property already in possession of donee: The basic objective behind the concept of
delivery of possession is to give the physical dominion over a property to the donee. But,
anyhow if the donee already has possession of the property given by donor under a gift, mere
declaration and acceptance are enough to complete the gift. No formal delivery of possession is
required to complete the gift.
Doctrine of Mushaa
The word ‘Mushaa’ has an Arabic origination which literally
means ‘confusion’. Under Islamic law, Mushaa denotes an undivided share
in joint property. It is, therefore, a co-owned or joint property. If one of the
several owners of such property makes a gift of his own share, there may
arise confusion in regard to what part of the property is to be given to the
donee. Practically, it is too difficult to deliver the possession of a joint property
if a gift is made by a donor without partition of the joint property.
To circumvent such confusion, the Hanafi Jurists have developed the doctrine
of Mushaa. Gift of Mushaa i.e gift of a share in the co-owned property is invalid
without the partition and actual delivery of that part of the property to the
donee. If the co-owned property is not capable of partition, the doctrine of
Mushaa is impertinent. A Mushaa or undivided property is of two kinds:
Mushaa Indivisible
It includes the property in which the partition is not possible. A gift of an
undivided share (Mushaa) in a property which is incapable of being divided or
where the property can be used for better advantage in an undivided
condition, is valid. The doctrine of Mushaa is not applicable where the property
constituting the subject-matter of the gift is indivisible. All the schools of
Islamic law accept the view that a gift of Mushaa indivisible is valid without
partition and the actual delivery of possession.
For example, a staircase, a cinema hall, a bathing ghat etc. comprises

indivisible Mushaa properties. If these kinds of properties are divided, then
their original identity will be lost.
Mushaa Divisible
Mushaa divisible is the property which is capable of division without affecting
its value or character. If the subject-matter of a Hiba is Mushaa divisible, the
doctrine of Mushaa is applied and the gift is valid only if the specific share
which has been gifted, is separated by the donor and is actually given to the
donee. However, a gift without partition and the actual delivery of possession
is merely irregular and not void ab initio.
For example, a co-owned piece of land or a garden or a house is a Mushaa

divisible property which can be divided by a visible mark of identification
without changing its original character.
Shia law does not recognize the principle of Mushaa. According to Shia law,
a gift of a share of divisible joint property is valid even if it is made without
partition.
Comparison of Gift and Will
Basis of
Gift Will
Comparison
A man can give away his whole Only one-third of the net estate
Quantum
property during his lifetime. can be bequeathed.
A gift inter vivos can be made in For bequeathing more than

favour of any person without any one-third of the property to any
Beneficiary
restriction (except during marz-ul- person, consent of heirs is
maut). mandatory.
The property may or may not

be in existence at the time of
Existence of Property gifted must be in existence
execution of the will but it must
Property at the time of making the gift.
be existing at the time of the
death of the legator.
Under gift, the immediate and A transfer of property comes

Transfer of
absolute transfer of property takes into effect only after the death
Property
place. of the legator.
Immediate delivery of possession Since property devolves on the

Delivery of must take place as soon as the donor legatee only after the death of
Possession declares the gift and the donee the legator so no question of
accept the same. delivery of possession arises.
Once a gift is made, a mere A bequest may be revoked by

Revocation
declaration to revoke it by the donor the legator any time after
is not sufficient. A revocation can executing it and before his
only take place either by the consent death either impliedly or
of the donee or by the intervention of expressly or by a subsequent
the court. will.
Gift, its essentials and kinds under Muhammadan Law
A gift or hiba is a transfer of property, made immediately and without any exchange, by one person to another, and
accepted by or on behalf of the other. Even Muslim of sound mind and not a minor may dispose of his property by gift.
A gift to a person not yet in existence is void. There must be in every gift a bona fide intention on part of the donor to
transfer the property from the donor to the donee.
A gift as distinguished from a will may be made of the whole of the doner’s property, and it may be made even to an
heir. A gift of property in the possession of a person who claims it adversely to the donor is not valid, unless the donor
obtains and delivers possession thereof to the done, or does all that he can to complete the gift so as to put it within
the power of the done to obtain possession.
When gift is made subject to condition. When a gift is made subject to a condition which derogates from the
completeness of the grant, the condition is void, and the gift will take effect as if no condition were attached to it.
Essentials of Gift
There are three essentials of a gift, namely
1. There should be a declaration of gift by the donor.
2. There must be an acceptance of the gift, express or implied, by or on behalf of the done.
3. There should be delivery of possession of the subject of the gift by the donor to the done.
If these conditions are complied with, the gift is complete.
Gift of Mushaa (Doctrine of Mushaa)
Mushaa is an undivided share in property either movable or immovable. A valid gift may be made of an undivided share
(Mushaa) in property which is not capable of division.
A gift of an undivided share (Mushaa) in property which si capable of division is irregular (Fasid), but not void (Batil).
However the irregular gift can be rendered valid by subsequent partition and delivery to the done of the share given to
him.
A gift of undivided share (Mushaa), though it be a share in property capable of division, is valid from the moment of the
gift, even if the share is not divided off and delivered to the done, in the following cases:
a. Where the gift is made by one co-heir to another.
b. Where the gift if of a share in Zamindari to Tahika.
c. Where the gift is of a share in free hold property in large commercial town.
d. Where the gift is of shares in a land company.
Kinds of Gift
The following are the kinds of gift recognized by Islamic Law.
1. Hiba
2. Hiba-bil-iwaz
3. Hiba-be-Shart-ul-Iwaz
4. Areat
5. Sadaqah
The mode of delivery of possession in the different contingencies is as under
1. Where donor is in possession.
The gift of such property is not complete unless the donor physically departs from the premises with all his goods land
chattels, and the done formally enters into possession.

2. Where property is in the occupation of tenants
A gift of such property is completed by a request by donor to the tenants to attorney to the done or by delivery of the
title deed or by mutation in the revenue records. But where the donor reserves to himself any rights during his lifetime,
i.e, of receiving rents, a mere rectal in the deed that delivery of possession has been given to the done will not make
the gift complete.
3. Where the donor and done both reside in the property.
No physical departure or formal entry is necessary in such a case. The gift may be completed by some overt act by the
donor indicating a clear intention of his part to transfer possession and to divest himself of all control over the subject
of the gift
"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and
without consideration, by one person, called the donor, to another, called the donee, and accepted
by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and
while he is still capable of giving. If the donee dies before acceptance, the gift is void.
The conception of the term "gift" as used In the Transfer of Property Act is somewhat different from
the use in Mohammedan law. In the Mohammedan law a gift is a transfer of property or right by one
person to another in accordance with the provisions given in the Mohammedan law and includes-
a) A hiba, an immediate and unconditional transfer of the ownership of some property or of some
right, without any consideration or with some return (ewaz); and
b) An ariat, the grant of some limited interest in respect of the use or usufruct of some property or
right.
Where a gift of any property or right is made without consideration with the object of acquiring
religious merit, it is called sadaqah.
The terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the
kinds of transactions which are covered by the general term "gift". A hiba is a transfer without
consideration. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law.
A gift is not a contract (though in Muslim law it is called a contract) but the principle may be
applicable even to gift.
In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or taking are two
contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates that a
gift is a transfer of certain existing movable or immovable property made voluntary and without
consideration by one person called the donor, to another, called a donee and accepted by or on
behalf of the donee. The essential elements of a gift are
(a) The absence of consideration;
(b) the donor;
(c) The donee;
(d) The subject-matter;
(e) the transfer; and the acceptance.
The concept of gift is diametrically opposed to any presence of consideration or compensation.
In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular mode of
acceptance is required and the circumstances throw light on that aspect. A transaction of gift in order
to be complete must be accepted by the donee during the lifetime of the donor. Factum of
acceptance can be established by different circumstances such as donee taking a property or being
in possession of deed of gift alone. If a document of gift after its execution or registration in favour of
donee is handed over to him by the donor whom he accepts, it amounts to a valid acceptance of gift
in law. The specific recital in the deed that possession is given raises a presumption of acceptance.
Conception of Property
English Law.-In order to appreciate the questions of conditions in gifts (and also in bequests) it is
necessary to first note the different conceptions of property in English and Mohammedan laws. The
English law as to rights in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. Rights in land described as "estate in land" do not always
imply only absolute ownership but also rights which fall short of it and are limited to the life of the
grantee or otherwise limited in respect of time and duration or use property in all these various forms
are described as "estate". Ownership of land is thus split up into estates distinguished in point of
quality (e.g., into legal and equitable estates) and in point of duration (e.g., estates in fee simple, in
tail, for life or in remainder.'
Mohammedan Law.-In general, Muslim law draws no distinction between real and personal property,
and there is no authoritative work on Muslim law, which affirms that Muslim law recognises the
splitting up of ownership of land into estates. What Muslim law does recognize and insist upon, is the
distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft).
Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in
point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such
absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be
created in the usufruct of the property and the dominion over the corpus takes effect subject to any
such limited interests. Limited interests in respect of property are not identical with the incidents of
estates under the English law. Under the Mohammedan law they are only usufructuary interest (and
not rights of ownership of any kind).
Thus, in English law a person having interest in immoveable property for limited periods of time is
said to be the "owner" of the property during those periods. The usufruct is also a part of the corpus.
On the other hand, in Muslim law, a person can be said to be an "owner" only if he has full and
absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment
of property is granted to a person for life or other limited period such person cannot be said to be an
"owner" during that period. The English law thus recognises ownership of the land limited in duration
while Muslim law admits only ownership unlimited in duration but recognises interests of limited
duration in the use of property.
There is no difference between the several schools of Muslim law in their fundamental conception of
property and ownership. A limited interest takes effect out of the usufruct under any of the schools.
The Donor
Doner's Qualification
The donor is the person who gives. Any person who is sui juris can make a gift of his property. A
minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would
therefore be void trustees cannot make a gift out of trust property unless authorized by the terms of
the contract.
On behalf of a minor, a natural guardian can accept a gift containing a condition that the person
nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would
amount to recognition by the natural guardian of the nominated person as the manager or the agent
of minor for the purpose of such property.
In Mohammedan law majority is to be determined according to Sec. 3 of the Majority Act, and not by
Mohammedan law.
The age of majority as regards matters other than marriage, dower, divorce and adoption, is now
regulated by the Indian Majority Act IX of 1875. Section 3 of the Act declares that a person shall be
deemed to have attained majority when he shall have completed the age of eighteen years. In the
case, however if a minor of whose person or property a guardian has been appointed, or of whose
property the superintendence has been assumed by a Court of Wards, the Act provides that the age
of majority shall be deemed to have been attained on the minor completing the age of twenty-one
years.
Soundness of mind and majority are the only qualifications required for making a gift. A gift to be
valid must be made by a person with his free consent and not under compulsion. The donor must
not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the
donor was able to apprehend the transaction.
Donor's powers are unrestricted in Mohammedan law-
A man may lawfully make a gift of his property to another during his lifetime, or he may give it away
to some one after his death by will. The first is called a disposition inter vivos and the second a
testamentary disposition. Mohammedan law permits both kinds of dispositions, but while a
disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third
of the net estate. Mohammedan law allows a man to give away the whole of his property during his
lifetime, but only one-third of it can be bequeathed by will from that of a will a gift may be made to a
stranger wholly excluding the heirs. Pardanashin Lady Free consent means, the consent should not
have been obtained by fraud, misrepresentation or undue influence. An insolvent donor is not
competent to make a gift.
The Donee
The donee is the person who accepts the gift, by or on behalf of a person who is not competent to
contract. A minor therefore may be a donee; but if the gift is onerous, the obligation cannot bee
enforced against him while he is a minor. But when he attains majority he must either accept the
burden or return the gift.
The words 'accepted by or on behalf of the donee show that the donee may be a person unable to
express acceptance. A gift can be made to a child en ventre sa mere and could be accepted on its
behalf.
The donee must be an ascertainable person and be a donee under this section; nor can a gift be
made to an unregistered society.
A gift to two or more persons may be a gift to them as joint tenants or as tenants in common. The
presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a Hindu
gift the donees are presumed to take as tenants in common It is necessary in Mohammedan law that
the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is
immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence
is invalid. It is necessary that the donee should accept a hiba and possession must be delivered in
the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a
person who was not in existence is invalid.
Gifts of Usufruct (Ariat) to unborn persons -a hiba stands on a different footing from a gift of a limited
interest in usufruct a gift of future usufruct to unborn persons is valid provided that the donee is in
being at the time when interest opens out for heirs.
Child in the womb
- a hiba in favour of a child in the womb is valid if the child is born within six months from the date of
the hiba because in that case it is presumed that the child actually existed as a distinct entity in the
womb of his mother.
Juristic persons - a gift to juristic persons or any other institution is valid. So a gift to corporate units,
e.g. a tauazhi (consisting of a mother and of all her children and not descendants in the female line
governed by Marumakkathayam law) are valid. Such a gift will be valid as being one for the whole
body.
It has been held that a mosque is recognized by the Mohammedan jurist as a juristic person, and
that a valid gift can be made in favour of a mosque.
Gifts to Non-Muslims - a gift may be made to a non-Muslim but in such a case the property will, after
the completion of the gift, be subject to the personal law of the donee and not that of donor.
Subject Of Gift
The subject matter of the gift must be certain existing movable or immovable property. It may be
land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future property.
A gift of a right of management is valid; but a gift of future revenue of a village is invalid. These
cases were decided under Hindu and Mohammedan law respectively but they illustrate the principle.
In a Calcutta case, it was said that the release of a debt is not a gift, as a gift must be of tangible
property. It is submitted that the release of a debt is not a gift as it does not involve a transfer of
property but is merely a renunciation of a right of action. It is quite clear that an actionable claim
such as a policy of insurance may be the subject of a gift It is submitted that in a deed of gift the
meaning of the word 'money' should not be restricted by any hard and fast rule but should be
interpreted having regard to the context properly construed in the light of all the relevant facts.
Therefore in order to constitute a valid gift, there must be an existing property. In Mohammedan law
any property or right which has some legal value may be the subject of a gift.
Conditions For Valid Gift Under Section 122 Of The Transfer of Property
There was a divergence of view between the two schools of Hindu law as to the necessity of
acceptance of the gift by the donee, Dayabhaga holding that it was not necessary but Mistakshara
holding the contrary. This section has modified the indigenous Dayabhaga law. A transfer of a stock
to the name of the donee vests the property in him subject to his right to repudiate the gift, even
though he be unaware of the transfer And this is so even though the gift be onerous. The mutation
entries of the property alleged to be gifted does not conveyor extinguish any title and those entries
are relevant only for the purpose of collection of land revenue.
Gift defined under the Transfer of Property Act is as given below-

122. "Gift" defined. - "Gift" is the transfer of certain existing moveable or immoveable property made
voluntarily and without consideration, by one person, called the donor, to another, called the donee,
and accepted by or on behalf of the donee.
It is required to be a voluntary transfer of property to another made gratuitously and without

consideration. This section applies to those gifts that are gifts inter vivos or an absolute gift. Property
under the above section can be both moveable or immoveable but however have to be tangible in
nature. In order to constitute a valid gift, there must be an existing property as already earlier
elaborated.
Voluntarily - In this section the word 'voluntarily' bears its ordinary popular meaning. It denoting the
exercise of the unfettered free will, and not its technical meaning of 'without consideration'. When a
gift is made, it must satisfactorily appear that the donor knew what he was doing and understood the
contents of the instrument and its effect, and also that undue influence or pressure was not
exercised upon clear intention to make an out-and-out gift, but the intention has failed for want of
transfer or any other cause, the courts will not convert what was meant to be an out-and-out gift into
a trust, and the donor will not be deemed a trustee of the property for the intended donee. The gift
will fail. Also where the husband deposited certain ornaments with a bank for safe custody in the
joint names of himself and his wife, with direction to be delivered to be either or survivor, it did not
amount to a gift, as the husband retained dominion over the property. Where a person keeps money
to fixed deposit in the name of his niece, brought up and given in marriage by him, there is an
inference of gift in favour of the niece.
Where the motive behind the deed of gift was unequivocal to give the transferee a title which would
act as a safeguard against any claim for pre-emption, the transaction for that reason cannot be
called a sale. Similarly where a person settles an annuity upon his alleged wife, the settlement
cannot be construed to be a contract for consideration of love and affection, but is a gift pure and
simple.
Donative intention (motive) and consideration-

A gift is a transfer. But it does not contain any element of consideration. Complete absence of
monetary consideration is the main, hallmark, which distinguishes a gift from a grant or any other
transactions for valuable or adequate consideration. Where there is any equivalent of benefit
measured in terms of money in respect of a gift, the transaction ceases to be a gift. Love, affection,
spiritual benefit and many other factors may enter in the intention of the donor to make a gift but
these financial considerations cannot be called or held to be legal considerations as understood by
law. Legal consideration is one recognised or permitted by law as valid and lawful. The term is also
sometimes used as equivalent to a 'good' or 'sufficient' consideration. Love and affection is a
sufficient consideration when a gift is contemplated, but it is not considered as a 'valuable'
consideration when such is required.
It is one of the essential requirements of a gift that it should be made by the donor 'without
consideration'. The word 'consideration' has not been defined in the T.P. Act, but means the same
as in the Contract Act excluding natural love and affection. If not, and if the transfer involved
consideration, the transaction would amount to a sale within the meaning of sec. 54 or to an
exchange within the meaning of sec. 118. The essence of a gift inter vivos must be without
'consideration' of the nature defined in sec. 2(d) of the Contract Act.
Where a very old man, with weak eyesight, sues for cancellation of the deed of gift executed by him
in favour of his son alleging that it was not his voluntarily act. The circumstance also indicated that
the donee was in a position to dominate the will of the donor. Under such circumstance the onus
shifts on to the donee to prove that the gift was made voluntarily.
In another case of the Orissa High court, Gift deed is alleged to have been taken from a pardanashin
lady by practicising fraud. When the plaintiff is an illiterate or pardanashin lady, in spite of the fact
that she is unable to establish her case of practising fraud, the onus still remains uponi the donee to
establish conclusively that the document was executed after it was read over and explained to her
and after she understood the contents thereof.
'Without consideration' - A gift is a transfer without consideration and if there is any consideration in
any shape, there is no gift. The word 'consideration' means valuable consideration, i.e. consideration
either of money or money's worth. A gift in lieu of conferring spiritual benefit to the donor is not a
transfer with consideration, but is to be treated as a gift.
Where a mother gifts property to her only daughter, who promises to maintain the former throughout
her life, the promise is not enforceable in law because the gift has to be for natural love and affection
and not for any consideration . A minor may be a donee and the minor's natural guardian can accept
the gift on behalf of the minor. But if the gift is onerous, the obligations cannot be enforced against
the minor during his minority. But on his attaining majority, the minor must accept the burden or
return the gift. The donee can even be a child en ventre sa mere (in its mother's womb).
When Acceptance to be made. - Such acceptance must be made during the lifetime of the donor
and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
Acceptance. - The gift must be accepted by the donee or by someone on his behalf. An offer without
acceptance by the donee cannot complete the gift. Acceptance may be inferred from acts prior to the
execution of the deed of gift. Mere silence may sometimes indicate acceptance provided the donee
knows about the gift, slighest evidence of acceptance being sufficient.
Even when a gift is made by a registered instrument, the same has to be accepted by or on behalf of
the donee to make it complete, failing which the gift will be bad, because it so provides in sec. 122.
What the law requires is acceptance of the gift after its execution, though the deed may not be
registered. Anterior negotiations or talks about the gift would not amount to acceptance. Person
accepting gift on behalf of the minors appended his thumb-impression on the deed in token of
acceptance. It was held that the gift was complete. Acceptance must be essentially made before the
death of the donor. There must be something shown to indicate an acceptance. The acceptance
may be signified by an overt act such as the actual taking of possession of the property, or such acts
by the donee as would in law amount to taking possession of the property where the property is not
capable of physical possession. Acceptance may be implied, but the rule of implied acceptance
ought not to be extended so far as to hold that the acceptance will be presumed unless dissent is
shown. Acceptance will be presumed if there is possession, actual or on the parties where some
right, interest, profit or benefit accrues to one party, or some forbearance, detriment, loss, or
responsibility is given, suffered or undertaken by the other. There is nothing in section122 of the
transfer of property Act to show that the acceptance under this section should be express. The
acceptance may be inferred, and it may be proved by the donee's possession of the property, or
even by the donee's possession of the deed of gift.
Delivery of possession of the gifted property is not absolute requirement, for the completeness or the
validity of the gift as found in Muslim Law of Gifts.
When a gift of immovable property is not onerous, only slight evidence is sufficient for establishing
the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift, it is
only normal to assume that the donee had accepted the gift, because the acceptance would only
promote his own interest. Mere silence may sometimes be indicative of acceptance, provided it is
shown that the donee knew about the gift. No express acceptance is necessary for completing a gift.
While mere possession by or on behalf of, a donee may amount to acceptance, mere possession
cannot be treated as evidence of acceptance where the subject matter is jointly enjoyed by the
donor and the donee.
A gift of immovable property can only be made by a registered instrument. A deed cannot be
dispensed with even for a property of small value, as in the case of a sale. And as a further
precaution, attestation by two witnesses is required. This provision excludes every other mode of
transfer and even if the intended donee is put in possession, a gift of immovable property is invalid
without a registered instrument.
Essentials Of Gift Under Mohammedan Law
Under Mohammedan law, to be a valid gift, three essentials are required to exist:
(a) declaration of gift by the donor
(b) an acceptance of the gift, express or implied, by or on behalf of the donee, and
(c) delivery of possession of the subject of gift.
Courts have consistently held that when there is no compliance of any of the above three essential
conditions the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing
is not essential to the validity of a gift either of movable or immovable property.
In another case the Patna High Court held that under the Mohammedan Law for validity of the deed
of gift four elements are necessary
¢ declaration of gift by the donor
¢ relinquishment by donor of-ownership-and dominion
¢ acceptance of the gift by donee, and
¢ delivery of possession of the property by donor.
Under the Mohammedan Law it is essential as regards gift that the donor should divest himself
completely of all the ownership and dominion over the subject of the gift. It is essential to the validity
of the gift that there should be delivery of such possession as the subject of the gift is susceptible of.
According to Muslim law it is not necessary that there should be deed of gift in order to make it a
valid gift, but of course, if there is a deed it should be registered.
Acceptance- Acceptance may be made expressly or impliedly by conduct, but acceptance would be
unnecessary in a case where the gift is made by a guardian to his ward. Mohammedan law does not
dispense with the necessity for acceptance of the gift even in cases where the donees are minors. If
the donees are minors it may be that the evidence of acceptance will have to be approached with
reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary
in the case of a gift in favour of minor.' A minor who has attained discretion may accept the gift even
after it has been rejected. He may also refuse to accept the gift.
Delivery of possession - Under the Mohammedan law it is not necessary that there must be actual
delivery of possession to make a gift valid. It is a fundamental rule of Mohammedan law as regards
gifts,that "the donor should divest himself completely of all ownership and dominion over the subject
of the gift. It is essential to the validity of a gift that there- should be a delivery of such possession as
the subject of the gift is susceptible of what delivery the property is capable of and whether such
delivery as the property is capable of has been given would depend upon the particular facts in each
case. A gift with a reservation of possession by the donor during his life was held to be void in K.S.
Mohammad Aslam Khan v. Khalilul Rahman Khan, One thing is clear, that by reserving
undisturbed his right to be in possession and enjoyment, the donor does not divest himself
completely of all dominion over the properties, though in sense, he purports to associate the donees
with himself, nor can such associating the donees in the matter of possession and enjoyment with
him be deemed to be delivery of such possession, if all, as the properties are susceptible of. It is not
correct to say that a stipulation that the donor and the donees shall be in joint possession, satisfies
the requirement of delivery of possession in a gift under the Mohammedan law.
Even where the donee resides with the donor in the property although no physical departure by the
donor or formal entry by the donee, is necessary, the gift has to be completed by the donor
indicating a clear intention of his part to transfer possession and to divest himself of all control over
the subject of the gift.' Among the conditions required for the validity of a gift under Mohammedan
law the most essential is that of delivery of possession, actual or constructive, with the permission of
the donor, without which a gift cannot be valid.
Possession, Actual and Constructive - It should, however, is noted that while the delivery of
possession is an essential condition for the validity of the gift, it is not necessary that in every case
there should be a physical delivery of possession. Possession the delivery of which would complete
a gift may be either actual or constructive. All that is necessary is that the donor should divest
himself completely of all ownership and dominion over the subject of the gift. The relinquishment of
control is thus necessary to complete the gift. The real test of the delivery of possession is to see
whether the donor or donee reaps the benefit; if the former possession is not transferred and if the
latter, it is transferred, and the gift is complete if the donee is permitted directly or indirectly to
receive the benefit. Constructive possession of the subject of the gift is therefore sufficient.
Oral Gift of an Immoveable Property-
In view of sec. 123 of Transfer of Property Act, a gift of immovable property, which is not registered,
is bad in law and cannot pass any title to the donee. Any oral gift of immovable property cannot be
made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument
cannot confer any title Under the Muslim law, an oral gift is permissible. However, in order to
constitute a valid gift, the donor should divest himself completely of all ownership and dominion over
the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral
gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of
possession of the gifted property had also been effected.
Although the Hindu law requires delivery of possession to complete a gift of immovable property,
that law has been abrogated by sec. 123 of this Act. This section clearly seems to have the effect of
rendering unnecessary the delivery of possession, substituting, as it does, registration for delivery of
possession.
Since delivery of possession is not necessary, it follows that if a Hindu executes a gift in praesenti of
three villages by means of a duly registered instrument but reserves possession of the villages in
order to enjoy the usufruct during his lifetime, and at the same time provides that he would not
alienate the property to anybody else, the gift is perfectly valid.
Under the Mohammedan law, the essentials of a gift are: declaration of gift by the donor, an
acceptance of the gift by the donee, and delivery of possession such as is the subject of the gift
susceptible of. This rule of Mohammedan law is unaffected by the provisions of sec. 123, Transfer of
property Act and, consequently, a registered instrument is not necessary to validate a gift of
immovable property.
Possession means not always actual physical possession but possession which the property is
capable of being given. So far as declaration is concerned, it must be shown that the donor either in
the "presence of witnesses or otherwise made a public statement that he gifted the property in
favour of the donee and that he divested himself of the ownership of the property by delivering
possession to the donee. A Mohammedan can make oral gift of his immovable gift subject to these
conditions.
Delivery of possession being essential to the validity of a gift, it follows that if there is no delivery of
possession, there is no valid gift.
Under the Mohammedan law, a valid gift can be affected by delivery of possession, and if there is
delivery of possession, the mere fact that there is also an unregistered deed of gift does not make
the gift invalid.
A Comparitive Of Gift In The Transfer Of Property Act And In Mohammedan Law

Property- Gifts as given under the transfer of property Act deals only with gifts of tangible properly;
and so a release of a security without consideration does not fall under this section; because, though
the release of the security may be said to be a gift, still the gift is not one of tangible property. When
the certificate of shares together with a blank transfer form signed by the registered shareholder is
handed over to the buyer by the registered holder, the buyer acquires not the full property in the
shares but the title to get on the register of the company. This title to get on the register, though a
chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the gift of such
title to get on the register is complete when a deed of gift duly attested and registered, together with
the shares and blank transfer form signed by the donor, is handed over to the donee.
Hiba of Corporeal And Incorporeal Property
- it is not necessary that a hiba must be of some corporeal or tangible property, it may be made not
only of corporeal property but also of incorporeal property. Thus, a hiba may be made of actionable
claims or chooses-in-action, e.g. debts,negotiable instruments or Government promissory notes.
Gift of a debt -the gift of a debt to the debtor is lawful both by analogy (qiyas) and liberal
interpretation (istehsan). A gift takes effect in two ways, by transfer of right of property (tamlik) or by
cancellation or discharge (iskat). The gift of a debt to the debtor comes under the latter category. If
the creditor releases the principal debtor from debt, both the debtor and surety are released. The
release of a debt may also be made in favour of the heirs of the debtor if he dies.
Existence of Property Necessary- In order to constitute a valid gift, there must be an existing
property. In other words, the subject-matter of the gift must be certain existing moveable or
immovable property like land, goods or actionable claims. It must be transferable under sec. 6. In
case of gift of certain amount by entries in the books of account by credit and debit, the sums should
be available on the date of gift in the account of the firm whose accounts are said to be credited or
debited. In the case of banking companies or other firms and companies who have overdraft
facilities, even if the sums are not in credit of the donor and are not with such companies or firms,
gifts might be possible by adjustment of the book entries. But in the case of non-banking companies
or firms, if these companies or firms do not have overdraft facilities, it is not possible to make a valid
gift if sums or funds are not available. A donation cannot be made of anything to be in future (e.g.
future revenues of a property).
Existence Of Property Necessary Also In Case Of Hiba-

A hiba is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary
that such thing or right must be in existence and can be transferred immediately. Also in the case of
a gift of usufruct(Ariat) produce (Manqfi) refers to rights which accrue from day to day in future. Such
produce or use of a thing becomes property particle by particle as it is brought into being. The
manqfi may thus be transferred by the donor during his lifetime by gift or by bequest and be the
subject of gift even though they are not in existence at the time of the gift.
Equity of Redemption can be subject of a valid gift-where the property gifted is subject to a
usurfructory mortgage, what is gifted is merely the equity of redemption and not physical possession
of the property itself.
Oral Gift Of Immoveable Property - In view of sec. 123, a gift of immovable property which is not
registered is bad in law and cannot pass any title to the donee. Any oral gift of immovable property
cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written
instrument cannot confer any. Under the Muslim law, an oral gift is permissible. However, in order to
constitute a valid gift, the donor should divest himself completely of all ownership and dominion over
the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral
gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of
possession of the gifted property had also been.
When Gift May Be Suspended Or Revoked

Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.the
following are those conditions-
(1) That the donor and donee must have agreed that the gift shall be suspended or revoked on the
happening of a specified event;
(2) such event must be one which does not depend upon the donor's will;
(3) the donor and donee must have agreed to the condition at the time of accepting the gift; and
(4) the condition should not be illegal, or immoral and should not be repugnant to the estate created
under the gift. Section 126 is controlled by sec. 10. As such, a clause in the gift deed totally
prohibiting alienation is void in view of the provisions contained in sec. 10. A gift, which was not
based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled
unilaterally. Such a gift deed can be cancelled only by resorting to legal remedy in a competent court
of law.
A Mohammedan on the other hand can revoke a gift even after delivery of possession except
in the following cases:
(1) When the gift is made by a husband to his wife or by a wife to her husband;
(2) when the donee is related to the donor within the prohibited degrees;
(3) when the gift is Sadaka (i.e. made to a charity or for any religious
purpose).
(4) when the donee is dead;
(5) when the thing given has passed out of the donee's possession
by sale, gift or otherwise;
(6) when the thing given is lost or destroyed;
(7) when the thing given has increased in value, whatever be the cause of the increase;
(8) when the thing given is so changed that it cannot be identified, as when wheat is converted into
flour by grinding; and
(9) when the donor has received something in exchange for the gift
Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has
not reserved to himself the power to revoke it, but the revocation must be by a decree of court.
Onerous Gift
'Onerous gift' is a gift made subject to certain charges imposed by the donor on the donee. The
principle behind this is that he who accepts the benefit of a transaction must also accept the burden
of the same. This section, being an embodiment of a rule of equity, applies equally to Hindus and
Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is sufficient; there need
not be any separate and express acceptance of the onerous condition also at the same time. The
acceptance of the gift will carry with it the acceptance of the onerous condition also, even though at
the time of the gift the donee was not aware of such condition, specially where the onerous condition
is of a trifling nature (payment of Rs. 5 as monthly maintenance to a certain person for life). A donee
not competent to contract and accepting property burdened by any obligation is not bound by his
acceptance. But if, after becoming competent to contract and being aware of the obligation, he
retains the property given, he becomes so bound.
Universal Donee
The essential condition to constitute a universal donee is that the gift must consist of the donor's
whole property. If any portion of the donor's property, no matter whether it is moveable or
immovable, is excluded from the operation of the gift or the endowment, the donee is not a universal
donee. This concept is embodied in section 128 of the Transfer of property Act. Where a
Mahomedan made a gift of the whole of his estate to his son and directed him to pay his debts, the
son was a universal donee and he was liable to pay all debts of the donor. There is no rule of
Mahomedan law which conflicts with the provisions of this section.
Conclusion
The conception of the term gift and subject matter of gift has been an age old and traditional issue
which has developed into a distinct facet in property law. Different aspects related to gift in property
act and its distinction with the Mohammedan law and its implications has been the major subject
matter of this article. In considering the law of gifts, it is to be remembered that the English word 'gift'
is generic and must not be confused with the technical term of Islamic law, hiba. The concept of hiba
and the term "gift as used in the transfer of property act, are different. As we have seen in the project
that Under Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration
of gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee,
and (c) delivery of possession of the subject of gift. The English law as to rights in property is
classified by a division on the basis of immoveable and moveable (real and personal) property. The
essential elements of a gift are (a) The absence of consideration; (b) the donor; (c) the donee ;(d)
the subject-matter; (e) the transfer; and the acceptance Thus this striking difference between the two
laws relating to gift forms the base of this project in understanding its underlying implications
Under Muslim Law, a person can lawfully make a gift of his property to another
during his lifetime. He is also allowed to transfer the property (through will) which
shall come into existence after his death. A Muslim man can give whole of the
property during his lifetime, while only one-third can be given in will. A hiba or
simple gift means “the donation of a thing from which the done may derive benefit.”
Definitions
According to Mulla, “Gift is a transfer of property, made immediately, and without

any exchange, by one person to other and accepted by or on behalf of the latter.”
While Fyzee says, “Hiba is immediate and unqualified transfer of the corpus of the
property without any return.”
The word gift is a wider term as compared to Hiba. Therefore, in India, the term
‘gift’ is equivalent to hiba. The word hiba literally means donation of a thing from
which the donee may receive some benefit. The transfer must be immediate and
complete. Most important is the declaration stating, “I have given”.
In P.Kunheema Umma v. Aayssa Umma[1], Kerala High Court held the

requirements of immovable property under Muslim Law are-
(1) declaration by donor
(2) acceptance by donee
(3) delivery of possession by donor to done
However, there is no consideration and necessity to transfer possession immediately

distinguishes gift from sale[2].
Requisites of Gift
The following are the essentials of a valid gift-
1. Parties,
2. Subject,
3. Extent, and
4. Formalities of gift.
Parties to Gift
There are two parties of a gift-
1.The donor
The person who makes the gift. Most importantly the donor of the gift must have-
• Attained the age of majority as governed by Indian Majority Act, 1875

• Must be of sound mind
• Free from fraudulent nature or undue influence
• Must have ownership over property to be transferred by way of gift.
Besides this, gift by married woman or pardanashin lady is considered valid. But
for the burden of proof it is to be proved that it was not by undue influence and the
nature of transaction lies on the donee. Such women have been given extra
protection in order to prevent their rights and interests. However, the rules of
transactions apply equally to illiterate and ignorant woman though not pardanas hin.
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BEHALF OF APPLICANT, FORMAT
2. The donee
The person who takes something as gift is called donee. It is noted that sex, age,
creed or religion are no bar to take the gift. A Muslim is even allowed to make a
lawful gift to a non-Muslim (such as Hindu, Christian). However, it is important that
donee must be in existence at time of gift.
If the donee is insane, minor or lunatic then the gift must be given to his legal
guardian. Giving possession to mother or brother of donee i.e. not the legal guardian
will make the gift void. Therefore, the principle follows that gift to minor by any
person other than minor must be accompanied with delivery of possession to
father[3] or guardian of minor[4].
(a) Unborn person
Gift to an unborn person is considered void[5]. But a gift by father to his minor son
is valid[6]. This was seen repeating in Ibrahim Shah Mohammad v. Noor Ahmad
Noor Mohammad.[7] Earlier, gift of future usufruct to unborn person was not
considered valid. But later this was however not followed.[8]
(b) Mosque
Mosque or any other institution are considered as juristic person. Thus, they are
considered to be competent donee.
(c) Fiduciary relationship
When the donee and donor are in fiduciary relationship or the relation is such that
one of them is dominating then in case of dispute, the presumption of undue
influence arises. Therefore, the gift can be held void.
Subject of Gift
A gift can be anything-
• Over which right of property can be exercised

• Which can be reduced to possession
• Which exists either as specific entry or enforceable right
• Which comes with meaning of
A gift is considered valid if it satisfies following condition-
• It can be designated under the term mal

• Must be in existence at time when the gift is made
• Donor must possess the gift.
Gift of Life Interest
Muslim Law recognizes to differentiate upon corpus (Ayn) and usufruct (Manafi).
A corpus means the absolute right of ownership over the property which is heritable
and unlimited. By usufruct means the right to use and enjoy the property and is
limited. The gift of corpus is called hiba and that of usufruct is called ariya.
Judicial view
In recent case, the Court held that a gift must be corpus. If the donor holds the right
to possess property for lifetime and donee is given right of possession after death of
donor, the gift is considered invalid.[9] A gift of life interest is valid under Sunni
Law and such life interest is not enlarged into absolute estate.[10] The creation of
life interest has been held valid among Shias as well. This means that both Shia and
Sunni sects consider it to be a valid gift.[11]
Based on different cases, right of repayment of debt; money; right not amounting to
full ownership; equity of redemption; life interest; mahr; government securities are
considered valid with subject to gift for corporeal and incorporeal properties.
Gift of Services
The delivery of possession to donee is a condition for the validity of the gift. A gift
is valid only with seisin. It has been thus held that a Muslim cannot make a gift of
services.[12]
Gift of Equity and Redemption
If the mortgagee does not possession over mortgaged property, then gift of equity
and redemption can be made. But if, the mortgagee holds possession over mortgaged
property then it can be gifted or not.
Gift of Incorporeal Property
Incorporeal property means the legal rights of property. Under Muslim Law, a donor
can gift corporeal or incorporeal property which shall be held valid.[13]
Gift of Actionable Claims
Actionable claim can be executed as a gift under Muslim Law. Provided such an
instrument vests all the rights and remedies of transfer. After Transfer of Property
Act, 1882, the hiba of actionable claim is dealt here. The Muslim Law has now
become obsolete with this extent.[14]
Gift of Property held adversely to the donor
The gift of property held adversely cannot be made without obtaining possession
and delivering it to donee or by doing everything in donor’s hand to enable donee to
take possession.
Gift of Right for Redemption
The Bombay High Court has held such a gift void. It states that delivery of
possession is essential condition for validity of gift.[15]
Whereas the Calcutta and Madras High Court held such gift to be valid. It reflects
that it is of no matter if the property is in possession of mortgagee.[16]
Extent of dono’s right to gift- General rules
The general rule is that donor’s power to gift is property is unrestricted. Besides the
property, he can also give portion he likes irrespective of fact that the heirs have
right to inherit such property.[17] It was recognized by the Judicial Committee of
Privy Council.[18]
However, it is restricted (exception) in two ways-

1. i) more than one-third property cannot be gifted
2. ii) it cannot be in favor of any heir
Formalities and modes of Gift

Out of all conditions mentioned it is necessary that the essentials of hiba as in
Muslim Law must be satisfied. Mere presence of parties is not enough. There are
certain formalities necessary for the real test of valid gift.
The three conditions are discussed hereby-
a) A declaration by donor
The intention of donor must be clear and voluntary. If the gift is done with malafide
intention the gift can be declared void. If the gift is made under undue influence,
coercion, fraud or misrepresentation then the gift is not valid.
A statement to gift can be made unilaterally without making a public statement of

the gift.[19] The Supreme Court in Mahboob Sahab v. Syed Ismail, held that it is
necessary by donor to make declaration.[20] It may be ignored that it may not be
given in writing.
b) Acceptance by donee
The acceptance must be made by donee. It can be either actual or constructive.

However, Allahabad High Court held that if father or guardian donates the gift to
minor son then acceptance is not necessary.[21] If the father of minor is alive then
the mother cannot be made the legal guardian of minor son.[22]
c) Delivery of possession by donor and taking of possession by donee
Defamation under Law of Torts:- Our Legal World
The delivery of possession by donor is also equally essential. The real test of delivery
of possession is to check, whether the donor or donee reaps benefit. In former case,
the possession is not transferred. In latter case, it is transferred and is complete as
donee is permitted to receive benefit.[23]
d) Different subject delivery how affected of movable property
The delivery of gift is necessary. It automatically implies transfer of possession

physically. In case of money, mere entry in books of accounts is not enough. The
money must be transferred to donee.
In order to complete the gift of immovable property, it is necessary that
• Donor must physically depart from premises

• Donee formally enters possession.[24]
If donor receives rent during lifetime and pays taxes then if delivery of possession
has been given, it will not constitute sufficient delivery.[25]
HIBAH (GIFT) IN PAKISTAN IN THE LIGHT OF SHARI'AH
Zafar Iqbal Kalanaurii
I. Concept of Gift Under Muslim Law
The concept of Gift, or Hiba in Muslim law has existed from the very inception of the
religion, circa. 600 A.D. While Muslim Law has not been shown to recognise the
differentiation of land into estates, it does recognise the difference between the ownership of
the land and the right to enjoy it.
Unlike English Law, ownership comes only with the full deed of the land and not with the
simple possession or temporary tenancy. Hiba is only one of the aspects covered by the
Transfer of Property Act under the term ‘gift’. It is the transfer of the property and all rights
along with it, without expectation of any compensation.
Human being is endowed with the instinct to desire and possess property. To regulate and
control human urge for property Islamic law identifies two basic ways of acquisition of
property; acquisition through one’s own efforts and acquisition through inheritance.
However, a person can dispose off his/her property in any way he likes, provided that it does
not violate legal principles and his transaction is given effect during his life time. Hibah is
one of the meritorious ways of disposal of property. Therefore, this paper attempts to present
an analysis of the structural elements of hibah, its, legality and conditions. It also delineates
the revocability or otherwise of hibah contract.
In general, property can either be acquired through a person’s own effort or by way of
inheritance. A person, acquiring a property or obtaining its possession, can sell or dispose of
it in any way he likes, provided that it does not go against the principles of the law and his
transaction is given effect during his life time. (Ali, 1965:3)1 His power over his property is
however, limited when he intends his dispositions to be operative after his death or it is made
at the time of suffering from a mortal disease (death-illness). In such a situation, his power of
disposition is restricted to a third of his property only by right of his heirs. The aim of
imposing such restriction is to prevent a testator from undesired interference with the course
of the devolution of property according to the law among the heirs. However, the testator
may give a specific portion, as much as a third, to a stranger as wasiyah (will). Hibah is one
of the meritorious ways of disposal of property. It is therefore, imperative, to highlight the
meaning of hibah its components, legality, conditions and its revocation according to Muslim
jurists.
The term Hiba has been defined in several aspects by the courts of Pakistan and, pursuant to
this, the term has also been seen to exclude all nature of services, for services do not exist at
the time of the promise- they can only be performed after the promise to perform is made,
which implies that the same cannot fall under the definition of Hiba which requires the object
to be in physical existence at the time of the gifting. It has been widely construed that the
term mal has to apply to the object so gifted for the laws of Hiba to apply.
Surprisingly enough, all gifts are revocable before the actual transfer of property is made
(i.e.) any person can unilaterally revoke his or her promise to gift before the promise is
fulfilled. After possession, the laws of revocation differ between Sunni and Shi’a laws.

1
Ali, Syed Amir, 1965., Muhammadan Law: v.1, ed. by Raja Said Akbar Khan, Lahore Law Publishing.
II. Introduction
Gift is a transfer of property where interest is transferred from one living person to another,
without any consideration. It is a gratuitous and inter vivos in nature. This is the general
definition that is accepted by all the religions, including Muslim law. As per the Muslim
Law, a gift is called as Hiba.
Under English laws, right in property is classified by a division on the basis of immoveable
and moveable (real and personal) property. Rights in land described as “estate” under English
Law do not always imply only absolute ownership but it also includes rights which fall short
of it and are limited to the life of the grantee or in respect of time and duration or use of the
same.
Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650
AD. In general, Muslim law draws no distinction between real and personal property, and
there is no authoritative work on Muslim law, which affirms that Muslim law recognises the
splitting up of ownership of land into estates. What Muslim law does recognize and insist
upon, is the distinction between the corpus of the property itself (called as Ayn) and the
usufruct in the property (as Manafi). Over the corpus of property, the law recognises only
absolute dominion, heritable and unrestricted in point of time. Limited interests in respect of
property are not identical with the incidents of estates under the English law. Under the
Mohammedan law they are only usufructuary interest (and not rights of ownership of any
kind). Thus, in English law a person having interest in immoveable property for limited
periods of time is said to be the “owner” of the property during those periods and the usufruct
is also regarded as a part of the corpus. On the other hand, in Muslim law, a person can be
said to be an “owner” only if he has full and absolute ownership. If the use or enjoyment of
property is granted to a person for life or other limited period such person cannot be said to
be an “owner” during that period. The English law thus recognises ownership of the land
limited in duration while Muslim law admits only ownership unlimited in duration but
recognises interests of limited duration in the use of property. This basically differentiates
Muslim Law’s concept of property and gift from that of English Law.
Under Muslim Law, the religion of the person to whom gift is made is not relevant. In
Pakistan, there is a separate statute that governs the matters related to transfer of property.
The Transfer of Property Act, 1882 under Chapter VII talks about gifts and the procedure for
making the same. Yet as per section 129 of the Act, the Transfer of Property Act, 1882 does
not apply to the Muslims making gift.
III. Tabarru'at (Gifts and Charitable Acts)
The term ‘tabarru' (pl. tabarru'at) is derived from the root b-r-', meaning "to excel". For
instance, "He excelled in knowledge, courage, or other qualities; or he excelled his
companions in knowledge; or he was, or became accomplished; perfect or complete, in every
excellence, and in goodness".2 Tabarru' bil-'ata' means, "he gave what was not incumbent or
obligatory on him; he gave supererogatorily; or he gave gratuitously, unasked, or unbidden."
The jurists, taking into consideration the basic linguistic meanings and the essence projected
by wasiyyah, waqf, hibah, 'ariyah, qard and other similar contracts derive the technical
meaning of tabarru' as, "a contract which extends wealth or its benefit to others, immediately
or in the future, without desiring a compensation and with the intention of doing a pious deed
(bi qasd al-birr wal-ma'ruf). This definition presents tabarru' contract as the genus and

2
al-Jawhari, Isma'il b. Hammad. al-Sihah: Taj al-lugha wa-sihah al-'arabiyya. Ed. Ahmad 'Abd al-Ghafur 'Attar.
7 vols. 4th ed. Beirut: Dar al-'Ilm lil-Malayin, 1410/1990.
2
places wassiyah, waqf, and the like as its sub-contracts (anwa'). Tabarru'at, inclusive of its
sub-contracts, are acts of piety and charity.3 This is grounded in Q 5: 2: "Help ye one another
in righteousness and piety, but help ye not one another in sin and rancor: Fear Allah. For
Allah is strict in punishment."
The Qur'an commentator, al-Jassas al-Razi (d. 369/980) elaborates: The verse enjoins every
Muslim to support another in all types of acts which come under piety.4 Acts of charity that
support each other either in kind or cash or in any other form of benefit are part and parcel of
piety. Another verse (Q 2:180) states: It is prescribed, when death approaches any of you, if
he leaves any goods, that he makes a bequest to parents and next of kin, according to
reasonable usage; this is due from the God-fearing.
Even though the verse is specifically on the topic of bequest (wassiyah), it sheds light on the
essence of tabarru'at. The verse encourages the dying person to consider his or her parents
and next of kin in the spirit of love. The person is advised to allocate certain amount for
parents and next of kin from his or her property without asking for anything in return.
The spirit in tabarru'at is to share wealth and benefit others because of love and not because
of personal gain. Tabarru'at is about caring for each other. Another verse of the Qur'an
emphasizes that righteousness is not about performing salutary regulations only, but it is also
about caring for each other. With the salutary regulations, a righteous man should strive for
love of Allah and the love for his fellow-men: It is not righteousness that ye turn your faces
towards east or west; but it is righteousness to believe in Allah and the Last Day, and the
angels, and the Book, and the Messengers; to spend of your substance, out of love for Him,
for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the
ransom of slaves; to be steadfast in prayer, and practice regular charity; to fulfil the
contracts which ye have made; and to be firm and patient, in pain (or suffering) and
adversity, and throughout all periods of panic. Such are the people of truth, the God-fearing.5
In this verse, extending assistance to kin, orphans, needy, wayfarer, beggars, and slaves are
all considered as acts of piety, providing that the assistance rendered should proceed from
love and no other motive.
Hadiths also shed light on the importance of tabarru'at. Jurists present "tahaddu tahhabbu
(exchange gifts so that you may love one another)"6 as the principle source on which the
legality of Hibah is based. This hadith touches upon the essence of tabarru'at, which is to
give gifts to friends and relatives out of love. The legality of tabarru'at is established through
consensus as well; the Muslim ummah agree on it to be a pious act.7
The conception of the term ‘gift’ as used in the Transfer of Property Act, 1882 is somewhat
different from the practice under the Muslim Law. Under the Muslim Law a gift is a transfer
of property or right by one person to another in accordance with the provisions provided
under Muslim law. Hiba (Tamlik al ain), is an immediate and unconditional transfer of the

3
Al-Mawsu'a al-fiqhiyya. 45 vols. Kuwait: Wizarat al-Awqaf wa al-Shu'un al-Islamiyya, 1404-1423, "Tabarru'"
4
Abu Bakar Ahmad Ibn Ali al-Razi al-Jassas, Ahkam al-Qur'an (Beirut: Dar al-Kutub al-'Ilmiyyah, 3rd edn.,
2007), vol. 2, p. 381
5
Al-Baqarah (2: 177)
6
Jamal al-Din Abi Muhammad 'Abd Allah b. Yusuf al-Zayla'i, Nasb al-Rayah Takhrij Ahadith al-Hidayah
(Beirut: Dar al-kutub al-'Ilmiyyah, 2nd edn., 2002), vol. 4, p. 297
7
Al-Mawsu'ah al-Fiqhiyyah, "Tabarru'"
3
ownership of some property or of some right, without any consideration or with some return
(ewaz); and the term ‘hiba’ and ‘gift’ are often indiscriminately used but the term hiba is only
one of the kinds of transactions which are covered by the general term ‘gift’. The other types
of gifts include Ariya (Tamlik al manafe), where only usufruct is transferred and Sadqah
where the gift is made by the Muslim with the object of acquiring religious merit.
A Man may lawfully make a gift of his property to another during his lifetime; or he may
give it away to someone after his death by will. The first is called a disposition inter vivos;
the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but
while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is
limited to one-third of the net estate. Muhammadan law allows a man to give away the whole
of his property during his lifetime, but only one-third of it can be bequeathed by will.
The Hanafi lawyers define hiba as ‘an act of bounty by which a right of property is conferred
in something specific without an exchange’. The Shias hold that ‘a hiba is an obligation by
which property in a specific object is transferred immediately and unconditionally without
any exchange and free from any pious or religious purpose on the part of the donor’. Muslim
law allows a Muslim to give away his entire property by a gift inter vivos, even with the
specific object of disinheriting his heirs.
In order to perform acts of tabarru'at as a contract, a Muslim has to deal with its components
(arkan). According to the majority view, these are four:
1) (Donor (Mutabarri')
2) Recipient (Mutabarra' lahu)
3) Donated-item (Mutabarri' bihi)
4) Contract-words which inform the donating intention of the donor (Sighah)
Each component has its conditions (shara'it) and the validity of the tabarru'at contract
depends on these conditions. These conditions are many and vary according to the sub-
contracts of tabarru'at. Works of Fiqh discuss these conditions in detail.
The legal outcome of tabarru'at: If the terms and conditions of tabarru'at contracts are met,
as a result the donated item will transfer from the donor to the recipient. This transfer
depends on the nature of the item. For instance, if the donated item is a bequest (wasiyyah)
then its ownership will transfer from the deceased to the recipient. Similarly, if the donated
item is a loan ('ariyah), then the right to reap benefit from the item will transfer to the
borrower. In this way, the donated item in waqf and other sub-contracts of tabarru'at will
transfer to the recipient according to nature of the contract. These preliminary details of
tabarru'at lead us to the discussion of its aims and objectives (maqasid).
IV. Essentials of Hiba
Since Muslim law views the law of Gift as a part of law of contract, there must be an offer
(izab), an acceptance (qabul), and transfer (qabza). When a grandfather made an offer of gift
to his grandchildren. He also accepted the offer on behalf of minor grandchildren.
However, no express of implied acceptance was made by a major grandson. Since the three
elements of the gift were not present in the case of the major grandchild, the gift was not
valid. It was valid in regards to the minor grandchildren.
Thus, the following are the essentials of a valid gift:
a) A declaration by the donor: There must be a clear and unambiguous intention of the
4
donor to make a gift. Declaration is a statement which signifies the intention of
transferor that he intends to make a gift. A declaration can be oral or written. The
donor may declare the gift of any kind of property either orally or by written means.
Under Muslim law, writing and registrations are not necessary. Under Muslim Law,
declaration as well as acceptance of gift may be oral whatever may be nature of
property gifted. When the gift is made in writing, it is known as Hibanama. This gift
deed need not be on stamp paper and also need not be attested or registered. The
declaration made by the donor should be clear. A declaration of Gift in ambiguous
words is void. While oral gift is permissible under Muslim law, to constitute a valid
gift it is necessary that donor should divest himself completely of all ownership and
dominion over subject of gift. His intention should be in express and clear words.
According to McNaughton, “A gift cannot be implied. It must be express and
unequivocal, and the intention of donor must be demonstrated by his entire
relinquishment of the thing given, and the gift is null and void when he continues to
exercise any act of ownership over it.”
The declaration should be free from all the impediments such as inducement, threat,
coercion, duress or promise and should be made with a bona fide intention.
b) Acceptance by the donee: A gift is void if the donee has not given his acceptance.
Legal guardian may accept on behalf of a minor. Donee can be a person from any
religious background. Hiba in favor of a minor or a female is also valid. Child in the
mother’s womb is a competent done provided it is born alive within 6 months from
the date of declaration. Juristic person is also capable of being a donee and a gift can
be made in their favor too. On behalf of a minor or an insane person, any guardian as
mentioned under the provisions of Muslim law can accept that gift. These include:
• Father
• Father’s Executor
• Paternal Grand-Father
• Paternal Grand Father’s Executor.
c) Delivery of possession by the donor and taking of the possession by the done: In
Muslim law the term possession means only such possession as the nature of the
subject is capable of. Thus, the real test of the delivery of possession is to see who
whether the donor or the donee reaps the benefits of the property. If the donor is
reaping the benefit then the delivery is not done and the gift is invalid.
The mode of delivery of possession depends completely upon the nature of property.
A delivery of possession may either be:
• Actual
• Constructive
i. Actual Delivery of Possession: Where the property is physically handed over

to the donee, the delivery of possession is actual. Generally, only tangible
properties can be delivered to the done. A tangible property may be movable
or immovable. Under Muslim law, where the mutation proceedings have
started but the physical possession cannot be given and the donor dies, the gift
fails for the want of delivery of possession. However, in such cases if it is
proved that although, the mutation was not complete and the done has already
taken the possession of the property, the gift was held to be valid.
5
ii. Constructive Delivery of Possession: Constructive delivery of possession is
sufficient to constitute a valid gift in the following two situations:
• Where the Property is intangible, i.e. it cannot be perceived through

senses.
• Where the property is tangible, but its actual or physical delivery is not
possible.
Under Muslim law, Registration is neither necessary, nor sufficient to validate the gifts of
immovable property. A hiba of movable or immovable property is valid whether it is oral or
in writing; whether it is attested or registered or not, provided that the delivery of possession
has taken place according to the rules of Muslim Law.
V. Constitutional Validity of Hiba
The question of whether the first exemption was constitutionally valid in regards to the right
to equality (Article 25 of the Pakistan Constitution) was rather rapidly solved by the Courts,
validating the disposition on the grounds of ‘reasonable classification.
It is enough to say that it is now well settled by a series of decisions of Courts that while
Article 25 forbids class legislation, it does not forbid reasonable classification for the
purposes of legislation, and in order to pass the test of permissible classification, two
conditions must be fulfilled, namely:
(1) That the classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group; and,
(2) That differentia must have a rational relation to the object sought to be achieved by the
statute in question.
The classification may be founded on different bases such as, geographical, or according to
objects or occupations and the like. The decisions of this Court further establish that there is a
presumption in favor of the constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the constitutional guarantee; that
it must be presumed that the legislature understands and correctly appreciates the needs of its
own people and that its laws are directed to problems made manifest by experience and that
its discriminations are based on adequate grounds; and further that the legislature is free to
recognise degrees of harm and may confine its restrictions to those cases where the need is
deemed to be the clearest.
It is well known that there are fundamental differences between the religion and customs of
the Muslims and those of others, and, therefore the rules of Muhammadan law regarding gift
are based on reasonable classification and the provision of Section 129 of the Transfer of
Property Act exempting Muslims from certain provisions of that Act is not hit by Article 25
of the Constitution.
The most essential element of Hiba is the declaration, “I have given”. As per Hedaya, Hiba
is defined technically as:
“Unconditional transfer of existing 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 Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the
property without any return.
6
VI. The Aims (Maqasid) of Tabarru'at
Shari'ah rules set by God are associated with the profound and wise purposes and the most
sublime aims in order to achieve human interest in this world and the Hereafter (masalih al-
khalq wa al-akhirah). These interests are inclusive of acquiring what is good and beneficial
(jalb al-masalih) and rejecting what is evil and harmful (darr al-mafasid). This intent of
Shari'ah is known as the higher objective (maqasid al-shari'ah al-'aliyah). According to
Jamal Eldin Attia, Ibn 'Ashur has referred to this intent with different terms such as "general
intents (al-maqasid al-'ammah)", "the supreme intent (al-maqsid al-a'zam)", "overall intents
(al-maqasid al-jumlah)", and "higher intents".8 A passage from Ibn 'Ashur's Treatise
furnishes a better understanding of the term in discussion. He writes:
From a comprehensive thematic analysis of the textual sources of the shari'ah pertaining to
the objectives of legislation, we can draw the following conclusions. Both its general rules
and specific proofs indicate that the all-purpose principle (maqsad 'amm) of Islamic
legislation is to preserve the social order of the community and insure its healthy progress by
promoting the well-being and righteousness (salah) of that which prevails in it, namely the
human species. The well-being and virtue of human beings consist of the soundness of their
intellect, the righteousness of their deeds as well as the goodness of the things of the world
where they live that are put at their disposal.9
These higher objectives are not exclusively associated with a particular type of Shari'ah-
ruling. These objectives are observable in many types of rulings. A higher objective of
legislation is to set things right (salah) in all types of human activity and remove corruption
(fasad) from it. In other words, the higher objective of Shari'ah is to pursue overall well-
being of people both on individual level and organizational level. Setting things right here is
not confined to religious matters only such as setting right beliefs and acts of ritual worship,
but it also relates to "worldly condition and social affairs".10
Coming back to Tabarru'at, it serves the higher objective of Shari'ah. It promotes mutual
help (muwasat) among the members of the society. Mutual help achieve numerous benefits
for the humans on individual and society level such as assisting the destitute, enriching the
poor, education, environment preservation, unity and so on. Human well-being depends on
these types of acts. A major obstacle to these acts is human greed which in this case is the
corruption (fasad). Human greed gives birth to negative traits such as selfishness, betrayal,
cheating, and other likes. These vices counteract human and social well-being. By legislating
tabarru'at the shari'ah not only instills mutual help as a constituent of well-being, but
protects from those vices which obstruct the very pursuit of well-being.
As for the specific objectives (al-maqasid al-khassah) of tabarru'at, Ibn 'Ashur mentions four
for the purposes of legislating tabarru'at:
1) Proliferating donations and charitable acts

2) Donations must be made voluntarily
3) Providing room to the terms held by the benefactors
4) Avoid making donation an instrument to violate property of the other
Proliferation of donations and charitable acts (takthir al-tabarru'at):

There are benefits both for individuals and community in tabarru'at. The shari'ah, in order to

8
Gamal Eldin Attia, Towards Realization of Higher Intents of Islamic Law, translated from Arabic by Nancy
Roberts, Washington: The International Institute of Islamic Thought, 2007, p. 101
9
Muhammad al-Tahir Ibn al-'Ashur, Treatise on Maqasid al-Shari'ah, Translated from Arabic by Mohamed El-
Tahir El-Mesawi (Washington: The International Institute of Islamic Thought, 2006), p. 87
10
Muhammad al-Tahir Ibn al-'Ashur, Treatise on Maqasid al-Shari'ah, p. 88, 89
7
increase charitable acts, has taken special measures in promoting and encouraging tabarru'at.
Human vices such as greed and other vices emerging from it are obstacles which put
righteous acts like donation to a halt. If not halting, at the minimum it disturbs the continuity
of such acts. The Qur'an in this regard says: But those who before them had homes and had
adopted the Faith, show their affection to such as came to them for refuge, and entertain no
desire in their hearts for things given to the (latter), but give them preference over
themselves, even though poverty was their (own lot). And those saved from the covetousness
of their own souls--they are the ones that achieve prosperity.11
The verse describes the Ansar of Madinah, who shared whatever means they had with the
new migrants from Makkah. This contribution was only possible for them when they freed
their hearts from avariciousness (shuhh). We can understand from this that the shari'ah rules
alone are not enough to convince people to perform righteous acts. Encouragement,
stimulation, and reward are important factors which can convince people to take part in good
actions. So, the shari'ah, besides laying down rules pertaining to tabarru'at, encourages and
calls people to participate in charitable activities. Imam Malik allocated a special chapter on
hadiths which promote charitable acts in his al-Muwatta'. He titled the section as: "Bab al-
Targhib fil-Sadaqat (Chapter on Encouragement to give Charities)". Al-Qabas, a commentary
of al-Muwatta' states that "Imam Malik provided great benefit through this title. Through this
title, he separated the traditions pertaining to rules from the traditions on virtues of
donations and charitable acts."12The verses of the Qur'an, Hadiths, and practice of
companions in relation to giving gifts, waqf, zakat, and other forms of charity are many. Ibn
al-'Ashur discussed these with quotations and derived the objective of shari'ah to be
proliferation of tabarru'at contracts which will increase the benefits for the community at all
levels.13
To Make Donations Voluntarily and without Hesitation:

The second specific objective is to make donations voluntarily and without any hesitation.
This is because the act of giving a portion of one's wealth without any compensation is the
act of well-known (ma'ruf) kindness. Intention of such acts should be to sincerely benefit
society and the donor should aspire for a reward from Almighty Allah only. In addition, such
kindness should not lead to harm. The Qur'an supports this: No soul shall have a burden laid
on it greater than it can bear. No mother shall be treated unfairly on account of her child. Nor
father on account of his child, an heir shall be chargeable in the same way.14
The verse indicates that "if giving charity results in harm, it will cause people to fear doing
good, for good must not result in evil".15 A hadith about it uses the term tib nafs minhu which
means sincere consent: "Property of a brother is not permissible for another except one
which he gave with sincere consent ('an tib nafsin)."16
The recipient has to make sure that the donation he received is accompanied with sincere
consent of the donor. To assure sincere consent, the donor is given enough time to consider
his contract binding after he or she has made decision to donate. There is flexibility compared

11
Q 59: 9
12
Malik bin Anas, Al-Muwatta of Imam Malik, translated by Aisha A. Bewley (Spain: Madinah Press Granada,
1997), p. 419
13
Muhammad al-Tahir Ibn al-'Ashur, Treatise on Maqasid al-Shari'ah, pp. 303-304; 'Izzuddin Ibn Zaghibah,
Maqasid al-Shari'ah al-Khassah bi al-Tabarru'at wa al-'amal al-khairi, p. 9
14
Al-Baqarah (2: 233)
15
Muhammad al-Tahir Ibn al-'Ashur, Treatise on Maqasid al-Shari'ah, p. 304
16
'Umar b. 'Ali b. al-Mulaqqin, Al-Badr al-Munir fi Takhrij al-Ahadith wa al-Athar al-Waqi'ah fi al-Sharh al-
Kabir, edited by Mustafa Abu al-Ghayt Abd al-Hayy (Saudia: Dar al-Hijrah, 1st edn., 2004), vol. 6, p. 693
8
to the interval provided by the exchange contracts. Ibn al-'Ashur argues that donor's reflection
and resolution regarding donation stretches until the recipient has taken possession (tahwiz)
or until the witness has confirmed the donation (ishhad). Ibn 'Ashur quotes a hadith as well as
opinions of legal schools who held that possession is necessary condition for tabarru'at
contract o become binding. He comments that those legal schools which did not see
possession as a requisite ignore the element of kindness and benefaction in tabarru'at
contracts. They treat them just like the exchange contracts. The flexibility provided by the
Shari'ah is to protect the benefactors from harm. The Shari'ah requires them to donate with
sincere concern and not because of any internal or external pressure. This flexibility is a
motivational factor for people to partake in good actions.17
Providing Room to the Terms Held by the Benefactors:

The third objective of the Shari'ah in relation to tabarru'at is to provide room to the terms
and conditions set by the benefactors. These terms play important role in validating the
tabarru'at contract. This objective is connected to the first objective (proliferation of
donation and charitable acts). Giving a portion from one's wealth requires good motive which
comes from religious munificence (arihah diniyah) and noble morality. This good motive can
easily be obstructed by evil thoughts. A verse states: The evil one threatens you with poverty
and bids you to conduct unseemly. Allah promised you His forgiveness and bounties. And
Allah cares for all and He knows all things.18
The verse, already quoted under the first objective, "And those saved from the covetousness
of their own souls--they are the ones that achieve prosperity", is about those internal factors
which weaken the good motive. Q 2: 268 is about external factors which can also discourage
the benefactors. Stipulation of strict conditions like the ones in exchange contracts can easily
obstruct good motives of benefactors. To overcome this situation, the Shari'ah made room for
the terms and conditions set by the benefactor. For instance, Shari'ah permits the benefactor
to stipulate the commencement of his donation with his death. This is done through wills and
testaments. Disposal of property in normal circumstance is only valid in the lifetime of a
person, but here a level of flexibility is provided by the Shari'ah. The Shari'ah allows the
donor to lay down conditions according to the nature of tabarru'at whether they are general
(ta'mim), specific (takhsis), temporary (ta'jil), permanent (ta'bid), and other forms of
conditions. This is so, provided that the conditions do not contravene the higher objective of
the Shari'ah.19
Avoid Making Donation an Instrument to Violate Property of the Other:

The fourth specific objective Ibn 'Ashur presents is that tabarru'at should not be used as an
instrument to violate other's property (dhari'ah ila ida'ati mal al-ghayr). For instance, the
benefactor, in order to prevent his children from inheriting his property, gives his entire
property as waqf. The practice of the pagan Arabs in the pre-Islamic era was similar to this.
Bequests (wasayah) were used by them to deprive their next of kin and allocate their property
for the notables of their tribe. After the advent of Islam, bequests were reduced to one third
only, any amount beyond that belonged to the next of the kin after paying the creditors. Since
this transition was still new for the Muslims, the old practice of giving bequests exceeding
1/3 was still in practice. There are incidents where the Prophet, upon him peace and blessing,
reminded his companions to give bequests no more than a 1/3. When Sa'd Ibn Waqqas fell
sick in Makkah, the Prophet, upon him peace and blessings, visited him and Waqqas said, "I

17
Ibn al-'Ashur Treatise on Maqasid al-Shari'ah, pp. 304-308; 'Izzuddin Ibn Zaghibah, Maqasid al-Shari'ah al-
Khassah bi al-Tabarru'at wa al-'amal al-khairi, p. 14
18
Al-Baqarah (2: 268)
19
Ibn al-'Ashur, Treatise on Maqasid al-Shari'ah, pp. 308-309
9
have lot of wealth and only two daughters. Do I bequeath two thirds of my property?" The
Prophet, upon him peace and blessings, replied, "No!" Then I said, "one third". The Prophet,
upon him peace and blessings, said: "a third and a third is a lot. Leaving your heirs rich is
better than leaving them poor to beg from people."20 People used bequests and donations to
alter inheritance or harm creditors. The new legislations brought by Shari'ah were to prevent
people from using tabarru'at in manipulative ways.21
VII. Application of Hibah (Gift Contract) and Maqasid
Hibah literally means conveying a benefit to someone without any consideration for
return.22Technically, the Hanafi and the Shafi'i jurists define Hibah as: "A voluntary contract
that results in uncompensated ownership transfer between living individuals". A more
specific definition is provided by the Hanbali jurists: "Hibah is a contract initiated by an
eligible party to transfer ownership of existent and deliverable properties to another without
compensation. The properties may be known or unknown, but they must be conventionally
given as gifts, and the contract language must specify that it is a gift or a property transfer,
etc."23 These definitions concentrate on individuals as donors. This was the practice during
the early times. The contemporary practice has given rise to a new scenario. Instead of
individuals, organizations and institutions now play an important role as donors. The higher
objective of tabarru'at which we discussed earlier (i.e. mutual help) does not necessarily
have to be offered by individuals. Organizations can offer it as well.
Based on the literal meanings and the technical definitions, the purpose of the Hibah contract
is to convey benefit to the recipient by gifting them a property free of compensation. It is a
manifestation as such of Ihsan (beneficence) which takes a high profile in Islamic ethos. The
verses of the Qur'an and the hadith which recommend Hibah also support this. For instance,
"But if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with
right good cheer". Similarly, the hadith: "Exchange gifts so that you may love one another".24
Love, affection, and fraternity are important elements in human relations for mutual welfare
and well-being. One of the ways to realize these objectives is to offer and exchange gifts in
family, society, and within the circle of friends. Hibah serves philanthropic purposes.
Through hibah, people's needs are satisfied. Furthermore, charitable foundations can fulfill
their social responsibilities through receiving and distributing hibah.
In the areas of inheritance, hibah can serve the purpose of overcoming some of the rigidities
of distribution that may be caused by adverse circumstances. If, for example, a person has
sons and a grandson who is invalid due to injuries or accident, and the estate is divided
according to the inheritance law, the disadvantaged grandson will be excluded from taking a
share by his father and uncles. In this situation, the grandfather can use hibah to allocate a

20
Muhammad Ibn Hibban al-Busti, Sahih Ibn Hibban bi Tartib Ibn Bilban, edited by Shu'ayb al-Arnut (Beirut:
Mu'assisah al-risalah, 2nd edition, 1414 AH), Hadith no. 4249
21
Ibn al-'Ashur, Treatise on Maqasid al-Shari'ah, pp. 309-310
22
Qasim Ibn 'Abd Allah al-Qunawi, Anis al-Fuqaha fi Ta'rifat al-Alfa? al-Mutadawilah bayna al-Fuqaha'
(Beirut: Dar al-Kutub al-'Ilmiyyah, 2004), p. 95
23
Wahbah al-Zuhayli, "Financial Transactions in Islamic Jurisprudence" in Al-Fiqh al-Islami wa Adillatuh,
translated by Mahmoud A. El-Gamal (Beirut: Dar al-Fikr al-Mouaser, 2nd edn., 2007), vol. 1, 539
24
Jamal al-Din Abi Muhammad 'Abd Allah b. Yusuf al-Zayla'i, Nasb al-Rayah Takhrij Ahadith al-Hidayah
(Beirut: Dar al-kutub al-'Ilmiyyah, 2nd edn., 2002), vol. 4, p. 297
10
part of his estate to his grandson in his lifetime. In modern commerce, hibah ascertains the
smooth flow of transactions in the market place. When hibah is applied in conformity with its
true purpose it can facilitate new transactions and transfer ownership.25
VIII. Subject Matter of Gift Under Muslim Law
Now the question which we have in mind is what can be subject matter of Hiba, under
Muslim law. As per the provisions of Transfer of Property Act, 1882, the subject matter of
the gift must be certain existing movable or immovable property. It may be land, goods, or
actionable claims. It must be transferable under s 6. But it cannot be future property. A gift of
a right of management is valid; but a gift of future revenue of a village is invalid. The release
of a debt is not a gift, as a gift must be of tangible property. It is submitted that the release of
a debt is not a gift as it does not involve a transfer of property but is merely a renunciation of
a right of action. It is quite clear that an actionable claim such as a policy of insurance may be
the subject of a gift It is submitted that in a deed of gift the meaning of the word ‘money’
should not be restricted by any hard and fast rule but should be interpreted having regard to
the context properly construed in the light of all the relevant facts. Therefore, in order to
constitute a valid gift, there must be an existing property. In Mohammedan law, any property
or right which has some legal value may be the subject of a gift.
Under the Muslim law, following constitute the subject matter of Hiba:
1) It must be anything (moveable or immovable, corporeal or incorporeal) over which

the right of property may be exercised or anything which exists either as a specific
entity or an enforceable right, or anything designable under the term mal (property).
2) It must be in existence at the time when the gift is made. Thus, gift of anything that is
to be made in future is void. For example, a donor makes a gift the fruits of his mango
garden that may be produced this year. This gift is invalid since the mangoes were not
in existence at the time of making the gift.
3) The donor must possess the gift.
4) 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; but a gift of an indivisible
thing is valid. For example, A, who owns a house, makes a gift to B of the house and
of the right to use a staircase used by him jointly with the owner of an adjoining
house. The gift of A’s undivided share in the use of the staircase is not capable of
division; therefore, it is valid.
According to Hanafi law, the gift of an undivided share in any property capable of division is,
with certain exceptions, incomplete and irregular (fasid), although it can be rendered valid by
subsequent separation and delivery of possession. For instance, A makes a gift of her
undivided share in certain lands to B, and the share is not divided off at the time of the gift
but is subsequently separated and possession thereof is delivered to B, the gift although
irregular (fasid) in its inception, is deemed valid by subsequent delivery of possession.
Exceptions: Gift of such undivided share is valid which is incapable of division:
a) Hiba by one co-heir to the other; For instance, A Muslim woman died leaving a
mother, a son, and a daughter. The mother made a gift of her unrealized one-sixth

25
In a discussion with Hashim Kamali, he commented that: "Hibah is also utilized for the purpose of cleansing
impermissible income or profit which is obtained through doubtful means, especially in the banking sector.
Hibah can also be given to the non-Muslims by the state or charitable foundation for their welfare and also help
them adjust to what might mean to some a new life
11
share jointly to the deceased’s son and daughter. The gift was upheld by Privy
Council.
b) Hiba of a share in free hold property in a large commercial town; For instance, A owns
a house in Dhaka. He makes a gift of one third of his house to B. The Property being
situated in a large commercial town; the gift is valid.
c) Hiba of a share in a zimindari or taluka; According to Ameer Ali the doctrine of
Musha was applicable only to small plots of land, and not to specific shares in large
landed properties, like zamindaris. Thus, if A and B are co-sharers in a zamindari,
each having a well-defined share in the rents of undivided land, and A makes a gift of
his share to B, there being no regular partition of the zamindari, the gift is valid.
d) Hiba of a share in a land company.
Muslim law recognizes the difference between the corpus and the usufructs of a property.
Corpus, or Ayn, means the absolute right of ownership of the property which is heritable and
is unlimited in point of time, while, usufructs, or Manafi, means the right to use and enjoy the
property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and
the gift of only the usufructs of a property is called Ariya.
Hence a critical scrutiny of concept of Gift under Muslim law, gives us the following
instances regarding what can be subject matter of Hiba:
• anything over which right of property may be exercised.

• anything which may be reduced to possession.
• anything which exists either as a specific entity or as an enforceable right.
• anything which comes within the meaning of the word mal.
Gift of services is not valid because it does not exist at the time of making the gift.
IX. Kinds of Gifts
There are several variations of Hiba. These include:
• Hiba bil Iwaz

• Hiba ba Shart ul Iwaz
• Sadkah
• Ariyat
Hiba- bil-Iwaz:
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means gift for
consideration already received. It is thus a transaction made up of two mutual or reciprocal
gifts between two persons. One gift from donor to donee and one from donee to donor. The
gift and return gift are independent transactions. Therefore, when both i.e., hiba (gift) and
iwaz (return or consideration) is completed, the transaction is called hiba-bil-iwaz. For
example, A make a gift of a cow to S and later B makes a gift of a house to A. If B says that
the house was given to him by A by way of return of exchange, than both are irrevocable.
So, a Hiba Bil Iwaz is a gift for consideration and in reality, it is a sale. Thus, registration of
the gift is necessary and the delivery of possession is not essential and prohibition against
Mushaa does not exist. The following are requisites of Hiba bil Iwaz:
1) Actual payment of consideration on the part of the donee is necessary. Adequacy of

the consideration is not the question. As long is the consideration is bona fide, it is
12
valid no matter even if it is insufficient.
2) A bona fide intention on the part of the donor to divest himself of the property is
essential.
Gift in lieu of dower debt- An oral transfer of immovable property worth more than 100/-
cannot be validly made by a Muslim husband to his wife by way of gift in lieu of dower debt
which is also more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must be
done through a registered instrument.
Hiba-ba-Shartul-Iwaz:
‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with a stipulation
for return’. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the
payment of consideration is not immediate the delivery of possession is essential. The
transaction becomes final immediately upon delivery. When the consideration is paid, it
assumes the character of a sale and is subject to preemption (Shufa). As in sale, either party
can return the subject of the sale in case of a defect.
It has the following requisites:
• Delivery of possession is necessary.

• It is revocable until the Iwaz is paid.
• It becomes irrevocable after the payment of Iwaz.
• Transaction when completed by payment of Iwaz, assumes the character of a sale.
In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both
gifts for a return and the gifts must be made in compliance with all the rules relating to
simple gifts.
X. Revocation of Gift
Although there is a tradition which indicates that the Prophet was against the revocation of
gifts, it is a well-established rule of Muslim law that all voluntary transactions, including
gifts, are revocable. The Muslim law-givers have approached the subject of revocability of
gift from several angles. From one aspect, they hold that all gifts except those which are
made by one spouse to another, or to a person related to the donor within the degrees or
prohibited relationship, are revocable.
The Hedaya gives the reasons thus: “The object of a gift to a stranger is a return for it is
custom to send presents to a person of high rank that he may protect the donor; to a person
of inferior rank that the donor may obtain his services; and to person of equal rank that the
donor may obtain an equivalent and such being the case it follows that the donor has the
power of annulment, so long as the object of the deed is not answered, since a gift is capable
of annulment”.
The texts of Muslim law lay down a long list of gifts which are irrevocable. The contents of
the list differ from school to school, and the Shias and the Sunnis have the usual differences.
The Muslim law-givers also classify gifts from the point of view of revocability under the
following two heads:
• Revocation of gifts before the delivery of possession

• Revocation of gifts after the delivery of possession.
13
Revocation of gifts before the delivery of possession:
Under Muslim law, all gifts are revocable before the delivery of possession is given to the
donee. Thus, P makes a gift of his motor-car to Q by a gift deed. No delivery of possession
has been made to Q. P revokes the gift.
The revocation is valid. In this case, it will not make any difference that the gift is made to a
spouse, or to a person related to the donor within the degrees of prohibited relationship. The
fact of the matter is that under Muslim law no gift is complete till the delivery of possession
is made, and therefore, in all those cases where possession has not been transferred the gift is
incomplete, and whether or not it is revoked, it will not be valid till the delivery of possession
is made to the donee.
The revocation of such a gift, therefore, merely means that the donor has changed his mind
and does not want to complete it by the delivery of possession. For the revocation of such
gifts, no order of the court is necessary. Fayzee rightly says that this is a case of inchoate gift
and it is not proper to apply the term revocation to such a gift.
Revocation after the delivery of possession:
Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not
sufficient to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is
entitled to use the property in any manner; he can also alienate it.
It seems that:
• all gifts after the delivery of possession can be revoked with the consent of the donee,
• revocation can be made only by a decree of the court.
•
The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be
revoked by his heirs after his death. A gift can also not be revoked after the death of the
donee.
According to the Hanafi School with the exception of the following cases, a gift can be
revoked even after the death of the donee.
According to the Hanafi School, with the exception of the following cases, a gift can be
revoked even after the delivery of possession. The exceptions to the same are:
• When a gift is made by one spouse to another.

• When the donor and the donee are related within the prohibited degrees.
• When the donee or the donor is dead.
• When the subject-matter of the gift is no longer in the possession of the donee, i.e., when
he had disposed it off by sale, gift or otherwise or, where he had consumed it, or
where it had been lost or destroyed.
• When the value of the subject-matter has increased.
• When the identity of the subject-matter of the gift has been completely lost, just as wheat,
the subject-matter of gift, is converted into flour.
• When the donor has received something in return (iwaz).
• When the object of gift is to receive religious or spiritual benefit or merit, such as sadaqa.
The Shia law of revocation of gifts differs from the Sunni law in the following respects: First,
gift can be revoked by a mere declaration on the part of the donor without any proceedings in
14
a court of law; secondly, a gift made to a spouse is revocable; and thirdly, a gift to a relation,
whether within the prohibited degrees or not, is revocable.
XI. Unfair Gifts
Fear Allah and Treat Your Children Fairly: Allah has enjoined upon children to honour and
respect their parents. He has made the parents’ rights very great and has connected duties
towards to parents to duties towards Him and the obligation to worship Him
alone (Tawheed).
Allah says (interpretation of the meaning):"Worship Allah and join none with Him (in
worship); and do good to parents…"[Qur'an al-Nisaa’ 4:36]
And Allah has given the children rights over their parents, such as education and a good
upbringing, spending on their needs, and treating them fairly.
One of the bad social phenomena that are to be found in some families is the lack of fair
treatment towards the children. Some fathers and mothers deliberately give gifts to some of
their children and not others. According to the correct view, this is a haraam action, unless
there is some justification for it, such as one child having a need that the others do not have,
e.g., sickness; debt; a reward for memorizing the Qur'an; not being able to find work; having
a large family; full-time studies, etc. The parent should have the intention when giving
something to one of his children for a legitimate (shar’iah) reason-that he will do the same of
any of his other children should the need arise. The general evidence (daleel) for this is the
ayah (interpretation of the meaning):"Be just: that is nearer to piety; and fear Allah."[Qur'an
al-Maa’idah 5:8].
The specific evidence is the hadeeth narrated from al-Nu’maan ibn Basheer (may Allah be
pleased with him), who said that his father brought him to the Messenger of Allah (peace and
blessings of Allah be upon him) and said: "I have given this son of mine a slave that I had."
The Messenger of Allah (peace and blessings of Allah be upon him) said: "Have you given
something similar to all of your children?" He said, "No." So, the Messenger of Allah (peace
and blessings of Allah be upon him) said: "Then take (the slave) back." (Narrated by al-
Bukhaari; see al-Fath, 5/211). According to another report, the Messenger of Allah (peace
and blessings of Allah be upon him) said: "Fear Allah and be fair to your children." He said:
so, he came back and took his gift back. (al-Fath, 5/211). According to another report, "Do
not ask me to bear witness to this, for I will not bear witness to injustice." (Sahih Muslim,
3/1243).
A male should be given the share of two females, as is the case with inheritance. This is the
view of Imam Ahmad (may Allah have mercy on him) (Masaa’il al-Imaam Ahmad li Abi
Dawood, 204). Imaam Ibn al-Qayyim explained it in detail in his footnote on Abu Dawood.
Anyone who looks at the state of affairs in some families will note that some of those parents
who do not fear Allah favour some of their children over others when it comes to gift-giving.
This fills the hearts of the children with hatred towards one another and sows the seeds of
enmity. A father might give gifts to one child because he (the child) resembles his paternal
uncles, and withhold gifts from another because he resembles his maternal uncles; he might
give to the children of one wife things that he does not give to the children of another; or he
might put the children of one wife but not the children of another into private schools. This
15
will backfire on him, because in many cases the child who has been deprived will not honor
his father in the future. The Prophet (peace and blessings of Allah be upon him) said to the
man who had preferred one of his children over others in giving him a gift: "Would you not
like all of them to honor you equally?" (Narrated by Imaam Ahmad, 4/269; Sahih Muslim,
no. 1623).
One of the Salaf said: "Their rights over you are that you should treat them all fairly, and
your right over them is that they should honour you."
Another way in which parents fail to treat their children fairly is when they bequeath
something in their will to some of their children, or they give them more than the share
allocated to them by sharee’ah, or they deny some of their children their inheritance. Some
women bequeath their gold to their daughters and not their sons, despite the fact that it is a
part of the inheritance, or a woman might state in her will that a gift given to her by one of
her children should be given back to him after she dies, claiming that she is being kind to him
just as he was kind to her. All of this is not permitted, because there is no bequest to an heir
[i.e., one cannot bequeath something to one of the heirs whose share is dictated by
sharee’ah]. Whatever was a part of the possessions of the mother or father who has died
belongs to all the heirs and is to be shared out according to the laws enjoined by Allah.
Each parent should remind the other if he or she is not being fair and should stand firm on
this issue, so that justice will be established. This includes referring matters to scholars as is
indicated in the report which follows the hadeeth of al-Nu’maan ibn Basheer who said:
"My father gave me some of his wealth, and my mother ‘Amrah bint Rawaahah said: ‘I will
not accept this until you ask the Messenger of Allah (peace and blessings of Allah be upon
him) to bear witness to it.’ So, my father went to the Prophet (peace and blessings of Allah be
upon him) to ask him to bear witness to the gift he had given me. The Messenger of Allah
(peace and blessings of Allah be upon him) said to him, ‘Have you done this for all your
children?’ He said, ‘No.’ He said, ‘Fear Allah and treat all your children fairly.’ So, my
father came back and took back his gift." (Narrated by Muslim)
It is not the right of anyone to “throw away” any property they have. If someone behaves
irrationally, or in a way deemed to be detrimental to his own or his family’s interests, then a
decree may be issued by a court of law preventing that person from disposing with any
property he owns. Any disposition with property should be clearly in the interest of the owner
or his family.
In Islam, our right to our property is limited to our lifetime. It is not an absolute right,
because all money and property belong to God alone. We are placed in charge of it by His
will, and in accordance with His law. This is terminated the moment a person dies. He or she
has no longer any claim over it. Hence, it is divided in accordance with God’s law of
inheritance, not according to wishes of the deceased. However, God has allowed us to
dispose with an amount not exceeding one-third of our property by will. This is a gesture of
charity He has granted us, so that we are able to do something with that money for our poor
relatives who are not our heirs, or to other poor people or to serve some charitable purposes.
The Prophet, peace be upon him, says: “God has given you one-third of your property as part
of His grace, so that you may give it away.”
If a man who was deathbed illness gave his property to someone through a deed of transfer
by gift, who is not his heir, one third of his property, that would have been valid because it
16
would be within the provisions of the Islamic law of inheritance. But he gave him the entire
house, which was perhaps all that he owned. Moreover, the man was ill and died without
having recovered. The Prophet, peace be upon him, judged a similar case, when a man had
freed six slaves he owned shortly before his death. He practically had no other money. His
heirs put the case to the Prophet, peace be upon him, and he ruled that only one-third of his
property could be dispensed with in this way. The Prophet, peace be upon him, freed two
slaves and the other four were given to the man’s heirs to be divided among them in
accordance with Islamic law.
This shows that the argument if advanced by the beneficiary that the man was merely
dispensing with his property is invalid. The man was ill, and he soon died. Hence, it is an
action taken in the illness leading to his death. As such, it is to be reviewed and determined
illegal. Indeed, you cannot give any one of your own children any extra portion of your
property, other than what he or she may have as their share of inheritance, depriving the other
heirs of their shares. Surely, if the beneficiary of gift who is not his legal heir or in case it is
given to one of his sons, and he takes the house, he leaves the donor or his father in a difficult
position on the Day of Judgment. Moreover, he will have to answer to God for a serious
situation.
The Prophet, peace be upon him, says: “I am only a human being and you put to me your
disputes. Some of you may have a better argument over others. Let everyone reflect: If I give
him something, which belongs by right to his brother, I am only giving him a brand of fire.
He may take it or leave it.”
The done/beneficiary in this case may have the better argument in the shape of the deed of
transfer by gift. But the house is a brand of fire in his hand. If he takes it, it will definitely
burn his hands. If he leaves it and gives it back to his the done’s or father’s heirs as the case
may be, he will get reward from God, which far outweigh what he gave up.
XII. Conclusion
The conception of the term gift and subject matter of gift has been an age old and traditional
issue which has developed into a distinct facet in property law. Different aspects related to
gift in property act and its distinction with the Mohammedan law and its implications has
been the major subject matter of this article. In considering the law of gifts, it is to be
remembered that the English word ‘gift’ is generic and must not be confused with the
technical term of Islamic law, hiba. The concept of ‘hiba’ and the term ‘gift’ as used in the
transfer of property act, are different. Under Mohammedan law, to be a valid gift, three
essentials are required to exist:
• Declaration of gift by the donor.

• An acceptance of the gift, express or implied, by or on behalf of the done.
• Delivery of possession of the subject of gift.
The English law as to rights in property is classified by a division on the basis of immoveable
and moveable (real and personal) property. The essential elements of a gift are:
• The absence of consideration

• The donor
17
• The done
• The subject-matter
• The transfer; and the acceptance
Thus, this striking difference between the two laws relating to gift forms the base of this
project in understanding its underlying implications.
To conclude the researcher can say that, the gift is a contract consisting of a proposal or offer
on the part of the doner to give a thing and acceptance of it by the donee. So, it is a transfer of
property immediately and without any exchange. There must be clear intention by the doner
to transfer the possession to the doner for a valid gift. It can be revoked by the doner. And the
provisions for the same have also been mentioned.
The giving of gifts whether great or small is an act of benevolence, and is praised by Allah
swt. Exchange of gifts has a profound bearing on creation of brotherly feeling among the
people. Beside its social desirability and effect, the contract of gift also can be used as
instrument of adjusting to certain extent the law of inheritance. For instance, the principle of
exclusion which prevails in all the schools, and the absence of the right of representation
cause much hardship. This can be adjusted through the application of the contract of hibah.
For example, if a person has three sons and one of them dies in the lifetime of his father
leaving behind children, these children are excluded from the inheritance of their grandfather
by their uncles. Therefore, to solve this problem of the exclusion of the grandchildren
recourse should be made to the hibah contract. It also can be used as an instrument by the
banking system to enhance their financial activities by providing Shra’iah compliant
incentives to the customers.

i
Zafar Iqbal Kalanauri, Advocate Supreme Court of Pakistan, Arbitrator, Mediator, White Collar Crime
investigator, Reformist, Adjunct Faculty at Lahore University of Management Sciences (LUMS) & Punjab
University Law College, SAF Center, #3 3rd Floor, 8-Fane Road Lahore 54000, Pakistan. Cell: (92) 300-
4511823 E-mail:kalanauri@gmail.com ; Web: http://www.zklawassociate.com

18
www.ijlmh.com ©2018 IJLMH | Volume 2, Issue 1 | ISSN: 2581-5369
Provisions of gift under Islamic Personal Laws and

the Transfer of Property Act, 1882 - A Comparative
Study
Swapnil Pattanayak
Amity University, Raipur
Chhattisgarh, India
ABSTRACT:
In a legal sense, the term gift refers to a certain and voluntary transfer of property from one person to another. Under
Islamic Laws, a gift or hiba is “transfer of property, made immediately, and without any exchange, by one person to
another, and accepted by or on behalf of the latter. It is, the transfer of movable or immovable property with immediate
effect and without consideration by one person called donor, to another person called donee. Hindu law defines gift as
“the creation of another person’s proprietary right after the extinction of one’s own proprietary right in the subject matter
of the gift. Gift has been defined in The Transfer of Property Act, 1882 under section 122 as, “ the transfer of certain
existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to
another, called the donee.
In this paper, the author has made an attempt to draw a comparative study between the provisions of gift under Islamic
Personal laws and the Transfer of Property Act, 1882 – the legal statute that deals with gifts amongst Hindus.
I. INTRODUCTION
A gift is a thing given willingly to someone without payment.1 It is a present. A gift is a thing that one gives to
somebody, especially on a special occasion or to express gratitude.
Under Islamic Laws, a gift or hiba is “transfer of property, made immediately, and without any exchange, by
one person to another, and accepted by or on behalf of the latter. It is, the transfer of movable or immovable
property with immediate effect and without consideration by one person called donor, to another person called
donee.2 Mohammedan law draws no distinction between real and personal property.
Hindu law defines gift as “the creation of another person’s proprietary right after the extinction of one’s own
proprietary right in the subject matter of the gift. Gift has been defined in The Transfer of Property Act, 1882
under section 122 as, “ the transfer of certain existing movable or immovable property made voluntarily and
without consideration, by one person, called the donor, to another, called the donee. According to the
Mitakshara, “A gift consists in the relinquishment without consideration of one’s own right of property, and
the creation of the right of another. The creation of another man’s right is completed or that other’s acceptance
of the gift, but not otherwise.
1
oxforddictionaries.com/definition/gift
2
Dr. Tanzil-ur-Rahman, A Code of Muslim Personal Law, Vol. II, p. 1.
International Journal of Law Management & Humanities Page 1
II. PART II: GIFTS AS UNDER ISLAMIC LAWS
In Islamic laws, a person is allowed to lawfully make a gift of his property to another during his lifetime or he
may transfer it by way of will which will take effect after his death. The former one is called a disposition inter
vivos and the latter one is known as a testamentary disposition. The Islamic las permits a man to give away the
whole of his property during the lifetime, whereas only 1/3rd of it can be bequeathed by will.
A gift inter vivos or hibaliterally translates into the donation of a thing from which the done may derive benefit.
Baillie is of the opinion that gifts means conferring of a right of something specific without an exchange.3
According to Fyzee,4 hiba is an immediate and unqualified transfer of the corpus of the property without any
return.
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.”5
Sunni law says that gift or hiba is an act of bounty by which a right of property is conferred in something
specific without exchange. Shia law is of the opinion that gift is an obligation by which property in specific
object is transferred immediately and unconditionally without exchange.
The property in question can be movable or immovable and it is necessary that the transfer has to be without
any condition. It must be clean and pure in every sense. The subject matter of the gift must be certain existing
movable or immovable property. The general principle is that the subject of a gift can be anything over which
dominion or right of property might be exercised, it can be anything which may be reduced to possession and
also anything which exists either as a specific entity or as an enforceable right but gift of anything that is to be
made in future is void, that means that the donor must possess the gift.
III. ESSENTIAL ELEMENTS OF A GIFT

For a gift under Islamic laws to be valid, the given requisites are essential:
 Parties (Donor and Donee) – There must be a person who is willing and has pure intentions of gifting
a property to somebody and there must be a person who accepts the gift given by the former person. Here,
the former is known as the donor and the latter is called, the donee.
 Capacity of Parties – The donor can be any person who is a Muslim and is of sound mind and is also
major according to the Indian Majority Act, 1875. The validity of a gift by a PardanashinWoman was
3
Baillie, Neil B. E. (Neil Benjamin Edmonstone), A Digest Of Moohummudan Law On The Subjects To Which It Is Usually Applied
By British Courts Of Justice In India.
4
Fyzee, Outlines of Muhammadan Law, p. 218.
5
Mulla, op. Cit 134.
questioned and it was held that the done must establish that the donor understood the full implications and
consequences of the act and the nature of her act.6 The donor must have absolute ownership and possession
of the property that is in question.
The donee can be of any religion, i.e., it is not necessary that he/she has to be a Muslim to be able to accept
the gift. Even the soundness of the donee’s mind is not a criteria for the concerned person to receive the gift.
Also, the donee need not be a major. Though it is necessary that the donee must be a legal juristic person
who is capable of holding property and is, by any means, not held unfit by law.
 The Subject Matter – The Property- The property in question can be movable or immovable, there
are no guidelines for it. The property must be owned absolutely by the donor and he/she must have the
property a self-acquires or ancestral or a separate property. The property can be corporeal or incorporeal too,
i.e., it may or may not be tangible. After all this, there is one restriction that the property in question cannot
be a future gift. It means that the property in question has to be in possession of the donor at the time of
making of the gift. There exists in Islamic Law, the rule of Immediate Transfer and that is why future gifts
are not considered here. To exemplify my point, let us consider a person ‘A’ who, in the month of April
2018 says that all the eggs that his hen might lay in October 2018, he would gift it to his friend ‘S’. Hence, it
would not be a valid gift under Islamic laws as the donor does not have possession of the gift at the time of
making the gift. In Rahim Buxv.Mohd. Hasen,7 it was held that gift of services is not valid because it does
not exist at the time of making the gift. Gift of an indivisible property can be made to more than one persons.
 Delivery of Possession – Here in Islamic Laws, there has to be immediate transfer of possession of the
property in question. The proper transfer is completed or deemed to be completed only when the delivery is
done.
Muslim law views the law of gift as a part of law of contract without consideration, so there must be the
following formalities.
There must exist an offer (ijab), an acceptance (qubul), and transfer (qabza).
In the landmark case of Smt.Hussenabiv.Husensab Hasan, 8 a grandfather made an offertoof gift to his
grandchildren. He also accepted the offer on behalf of minor grandchildren. However, there was no expressed
or implied acceptance made by a major grandson. Karnataka HC held that since the three elements of the gift
were not present in the case of the major grandchild, the gift was not valid. It was valid in regards to the minor
grandchildren.
6
Imam Sahib v. Ameer Sahib AIR 1955 Mad 621.
7
Rahim Bux v. Mohd. Hasen 1883.
8
AIR 1989 Kant 218.
The ijab or offer must be done by the donor and it must be a clear declaration of the intention of the donor. It
should be a voluntary declaration without any condition or ambiguity and must also be done in a bona fide
intention. The presence of a witness is mandatory.
The qubulor acceptance must be done by the donee. In case the donee is a minor or is unsound, the acceptance
should be made by the guardian. The natural guardian in such cases is the father of the donee. Though there
might be some unforeseen circumstances, hence the Court decided that under some circumstances, people who
are not guardian of the donee can accept the gift on behalf of the latter. In the case of Ibrahim Bibi v.Pakir
Mohidin,9 a minor girl was given a gift during her marriage. The husband (provided he is an adult), can accept
the gift on behalf of his wife.
IV. GIFTS AS UNDER THE TRANSFER OF PROPERTY ACT, 1882

The sections 122 – 129 deal with the provisions of gift in the The Transfer of Property Act, 1882.
Gift is defined under section 122 of The Transfer of Property Act, 1882. It states that:
“Gift is the transfer of certain existing movable or immovable property made voluntarily and without
consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of
the donee.”
It is required to be a voluntary transfer of property to another made gratuitously and without consideration. This
section applies to those gifts that are gifts inter vivos or an absolute gift. Property under the above section can
be both movable and immovable but however have to be tangible in nature. In order to constitute a valid „gift‟,
there must be an existing property.
These provisions do not regulated the Muslim individuals as they are regulated by there personal law under the
concept of hiba. In Babu Lal v.Ghansham Das,10 the Court held that the incidents of a gift between two Muslim
people are governed by the Mohammadan Law, and not by the TP Act. Also, section 129 of The Transfer of
Property Act, 1882 states that:
“nothing in this chapter relates to gifts of movable property made in contemplation of death, or shall be deemed
to affect any rule of Mohammadan Law.”
The Acceptance of these gifts must be made during the lifetime of the donor and while he is still capable of
giving. These provisions also state that if the donee dies before the acceptance of the gift, the gift stands void.
9
AIR 1970 Mad 17.
10
(1992) ILR 44 All 633.
V. PART V: ESSENTIAL ELEMENTS OF GIFT
Section 122 of the Act defines gift and also states the essential elements of gift. They are:
 Voluntary and without consideration – A gift is nothing but a transfer, a gratuitous transfer. The
usage of the term voluntarily denotes the exercise of the will of the donor. In the case of Shiv Kishanv. Hari
Narain,11 it was held that for proving that the deed was executed with free and voluntary consent of the
donor, it must be proved that the physical act of signing the deed coincided with the mental act, i.e., an
intention to execute the gift. The principles of free consent laid down in the Indian Contract Act, 1872 would
be used to determine the consent.
 Also, the word consideration is used in the same sense as it is used in the Indian Contract Act, 1872. A
gift in consideration of a donee taking liability of the donor is not gratuitous and thus, it is not a gift.12In a
case where the intention of the donee is proved that he wanted to get the land of the donor for monetary
consideration which he had spent over his maintenance, ceases to be a gift.13
 Parties (Donor and Donee) – The person giving the gift is the donor. Any sui juris person can make a
gift if his property. As it was held in the famous case of Mohribibiv.Dharmodas Ghosh, 14 a minor is
incompetent to contract, under section 7 of The Transfer of Property Act, 1882, he is incompetent to transfer
and a gift made by a minor therefore, would be void. Also, it is upon the donor to prove that he was minor at
the time of making the gift.
 The person accepting the gift is the donee. A gift can be accepted by or on behalf of a person who is not
competent to contract. This means that a minor can be a donee – this was held in the very famous case of
property, K Balakrishnan v.Kamalam.15The words ‘accepted by or on behalf of the donee’ reflects that the
donee may be a person unable to express acceptance. This might happen when a gift is made to a child in his
mother’s womb. The gift could be accepted on his behalf.
 Subject Matter (Property) – The subject matter, i.e., the gift must be certain, movable or immovable
property it may be land or goods or actionable claims but in no way, just like Muslim law, it can never be a
future property as mentioned under section 124 of this very Act. It states that a gift comprising both existing
11
AIR 1998 Raj 185.
12
Kulasekara Perumal v. Pathakutty AIR 1961 Mad 405.
13
Pawan Kumar v. Tilak Raj AIR 2011 (NOC) 98 (HP).
14
1903 ILR 30 Cal 539.
15
AIR 2004 SC 1257.
and future property is void as to the latter. In the case of AmtulNissarv. Mir Nuruddin,16 it was held that a
gift of future revenue of a village is invalid. There must be an existing property.
 Transfer – The provisions relating to the transfer of gifts under The Transfer of Property Act, 1882
have been dealt under section 123. It says that for the transfer of immovable property, the transfer must be
effected by a registered instrument signed by a or on behalf of the donor, and attested by at least two
witnesses. In case of a movable property, the transfer must be effected either by a registered instrument
signed by or on behalf of the donor or by delivery of possession.
 Acceptance – In order to constitute a valid gift, the primary requirement is that acceptance. The
acceptance must be completed by the donee during the lifetime of the donor. No particular mode of
acceptance is specified in law and hence it varies according to the time and circumstances.
VI. PART VI: ANALYSIS AND COMPARISON

Drawing a comparison between both the heads is not so difficult. There are not so many differences though I
will further mention the differences. The conception of the term "gift" as used in the Transfer of Property Act is
somewhat different from the use in Mohammedan law. The comparison stands as mentioned below:
1. As defined by 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.” 17 Various other jurists, Islamic jurists in
particular, have stressed upon the fact that hiba is an immediate and unqualified transfer of the corpus of the
property without any return. On the other hand, in The Transfer of Property Act, 1882, it is specifically
defined under section 122. Here, there is no kind of a difference between the concept of gift as both need a
person to give a gift, a person to accept the gift.
2. The person giving the gift, i.e., the donor, in the case of Islamic law, has to be a person following the
tenants of Islamic law who is of sound mind and fulfils the conditions of being a major vis-à-vis the
provisions laid down in The Indian Majority Act, 1875. Also, the donor must have possession of the gift.
The conditions are not much different in The Transfer of Property Act. Under the Act, there must be a
person who is willing to give a gift. The donor must be of sound mind and any minor doing the transaction
will be void.
The donee, i.e., the person accepting the gift, in case of Islamic laws can be a Muslim or even a non-Muslim.
The donee must a legal juristic person though he/she need not be a major and also, the concerned person
16
(1898) ILR 22 Bom 489.
17
Supra 5.
does not need to be a sound person either. Similar provisions are laid down in the Transfer of Property Act
where a minor can be a donee but the gift would be accepted by someone on the minor’s behalf.
3. In both these spheres, the conditions for the subject matter, i.e., property is the same. The property can
be corporeal or incorporeal, movable or immovable ( though there are different provisions relating to
transfer of movable and immovable property under section 123 of The Transfer of Property Act). The
property must be in absolute possession of the donor. This thing has been made very clear in both the
spheres. Another point where conditions are same is the incidence of future property. Both Islamic laws and
The Transfer of Property Act have laid down that there is nothing related to future property. It simply does
not exist. Under Islamic laws, in the case of Rahim Bux18and other cases, the Court held that future property
does not exist. In the Property Act, AmtulNissar19 case is an example of the Court saying that future property
is void.
4. So far as declaration is concerned, it must be shown that the donor either in the "presence of witnesses
or otherwise made a public statement that he gifted the property in favour of the donee and that he divested
himself of the ownership of the property by delivering possession to the donee. A Muslim can make oral gift
of his immovable property subject to these conditions. Delivery of possession being essential to the validity
of a gift, it follows that if there is no delivery of possession, there is no valid gift. Under the Muslim law, a
valid gift can be affected by delivery of possession, and if there is delivery of possession, the mere fact that
there is also an unregistered deed of gift does not make the gift invalid. The transfer of property Act deals
only with gifts of tangible properly; and so a release of a security without consideration does not fall under
this section; because, though the release of the security may be said to be a gift, still the gift is not one of
tangible property.
5. When it comes to revocation under Islamic laws, A Muslim can revoke a gift even after delivery of
possession except in the following cases: When the gift is made by a husband to hiswife or by a wife to her
husband ; when the donee is related to the donor within the prohibited degrees; when the gift is Sadaka (i.e.
made to a charity or for any religious purpose); when the donee is dead; when the thing given has passed out
of the donee's possession by sale, gift or otherwise; or the thing given is lost or destroyed; when the thing
given has increased in value, whatever be the cause of the increase; and when the donor has received
something in exchange for the gift. In Shia law, a gift can be revoked by mere declaration while in Sunni law,
it can be revoked only by the intervention of the court of law or by the consent of the donee.
18
Supra 7.
19
Supra 16.
Under The Transfer of Property Act, section 126 provides that under the following conditions a gift may be
revoked: That the donor and donee must have agreed that the gift shall be suspended or revoked on the
happening of a specified event; such event must be one which does not depend upon the donor's will; the
donor and donee must have agreed to the condition at the time of accepting the gift; and the condition should
not be illegal, or immoral and should not be repugnant to the estate created under the gift.
VII. CONCLUSION
The research project compares Hiba under Islamic law and The Transfer of Property Act, 1882 of India and
concludes that the provisions of gifts as under Islamic law is more futuristic and easily applicable have less
procedural requirements. While The Transfer of property Act, 1882 requires lot of procedures and possess
difficulties in providing gifts.
Different aspects related to gift in The Transfer of Property Act, 1882 and its distinction with the Muslim law
and its implications has been the talking point of this report. In considering the law of gift’s, it is to be
remembered that the English word gift is really broad and must not be confused with the technical term of
Islamic law, hiba. The concept of hiba and the term gift as used in the transfer of property act, are different.
hiba under Muslim law is very easy to take into effect while gift under The Transfer of Property Law, 1882 in
India is a long procedural matter.

The concept of Gift, or Hiba in Muslim law has existed from the very inception of
the religion, circa. 600 A.D. While Muslim Law has not been shown to recognise
the differentiation of land into estates, it does recognise the difference between
the ownership of the land and the right to enjoy it.
Unlike English Law, ownership comes only with the full deed of the land and not
with the simple possession or temporary tenancy. Hiba is only one of the aspects
covered by the Transfer of Property Act under the term ‘gift’. It is the transfer of
the property and all rights along with it, without expectation of any compensation.
The term Hiba has been defined in several aspects by the courts of India and,
pursuant to this, the term has also been seen to exclude all nature of services, for
services do not exist at the time of the promise- they can only be performed after
the promise to perform is made, which implies that the same cannot fall under
the definition of Hiba which requires the object to be in physical existence at the
time of the gifting. It has been widely construed that the term mal has to apply to
the object so gifted for the laws of Hiba to apply.
Surprisingly enough, all gifts are revocable before the actual transfer of property
is made (i.e.) any person can unilaterally revoke his or her promise to gift before
the promise is fulfilled. After possession, the laws of revocation differ between
Sunni and Shi’a laws.
INTRODUCTION
A gift is a transfer of property where interest is transferred from one living
person to another, without any consideration. It is a gratuitous and inter vivos in
nature. This is the general definition that is accepted by all the religions,
including Muslim law. As per the Muslim Law, a gift is called as Hiba.
Under English laws, right in property is classified by a division on the basis of
immoveable and moveable (real and personal) property. Rights in the land
described as “estate” under English Law do not always imply only absolute
ownership but it also includes rights which fall short of it and are limited to the
life of the grantee or in respect of time and duration of use of the same[i].
Under Hindu Law, a gift is regarded as the renunciation of the property right by
the owner in the favor of donee. According to Jimutvahana, under Hindu law’s
concept of gift, ownership is not created by acceptance but by renunciation of
the donor. But however, the Mitakshara school of Hindu law considers
acceptance as an important ingredient for a gift. The donor can divest his
interest by renunciation but cannot impose the same on the donee if he is not
ready to accept[ii].
Under Muslim Law, the concept of Gift developed much during the period of
610 AD to 650 AD. In general, Muslim law draws no distinction between real
and personal property, and there is no authoritative work on Muslim law, which
affirms that Muslim law recognizes the splitting up of ownership of land into
estates. What Muslim law does recognize and insist upon, is the distinction
between the corpus of the property itself (called as Ayn) and the usufruct in the
property (as Manafi).
Over the corpus of property, the law recognizes only absolute dominion,
heritable and unrestricted in point of time. Limited interests in respect of
property are not identical with the incidents of estates under the English law.
Under the Mohammedan law, they are only usufructuary interest (and not rights
of ownership of any kind). Thus, in English law a person having interest in the
immoveable property for limited periods of time is said to be the “owner” of the
property during those periods and the usufruct is also regarded as a part of the
corpus.
On the other hand, in Muslim law, a person can be said to be an “owner” only if
he has full and absolute ownership. If the use or enjoyment of property is
granted to a person for life or another limited period such person cannot be
said to be an “owner” during that period. The English law thus recognizes
ownership of the land limited in duration while Muslim law admits only
ownership unlimited in duration but recognizes interests of limited duration in
the use of the property. This basically differentiates Muslim Law’s concept of
property and gift from that of English Law[iii].
Under Muslim Law, the religion of the person to whom a gift is made is not
relevant. In India, there is a separate statute that governs the matters related to
the transfer of property. The Transfer of Property Act, 1882 under Chapter VII
talks about gifts and the procedure for making the same. Yet as per section 129
of the Act, the Transfer of Property Act, 1882 does not apply to the Muslims
making the gift.[iv]
CONCEPT OF HIBA UNDER MUSLIM LAW

The conception of the term ‘gift’ as used in the Transfer of Property Act, 1882
is somewhat different from the practice under the Muslim Law. Under the
Muslim Law, a gift is a transfer of property or right by one person to another in
accordance with the provisions provided under Muslim law. Hiba (Tamlik al
ain), is an immediate and unconditional transfer of the ownership of some
property or of some right, without any consideration or with some return (ewaz);
and the term ‘hiba’ and ‘gift’ are often indiscriminately used but the term hiba is
only one of the kinds of transactions which are covered by the general term
‘gift’. The other types of gifts include Ariya (Tamlik al manafe), where the only
usufruct is transferred and Sadqah where the gift is made by the Muslim with
the object of acquiring religious merit[v].
A man may lawfully make a gift of his property to another during his lifetime, or
he may give it away to someone after his death by will. The first is called a
disposition inter vivos; the second, a testamentary disposition. Muhammadan
law permits both kinds of transfers; but while a disposition inter vivos is
unfettered as to quantum, a testamentary disposition is limited to one-third of
the net estate. Muhammadan law allows a man to give away the whole of his
property during his lifetime, but only one-third of it can be bequeathed by will.
The Hanafi lawyers define hiba as ‘an act of bounty by which a right of property
is conferred in something specific without an exchange’. The Shias hold that ‘a
hiba is an obligation by which property in a specific object is transferred
immediately and unconditionally without any exchange and free from any pious
or religious purpose on the part of the donor’. Muslim law allows a Muslim to
give away his entire property by a gift inter vivos, even with the specific object
of disinheriting his heirs[vi].
ESSENTIALS OF HIBA
Since Muslim law views the law of Gift as a part of the law of contract, there
must be an offer (izab), an acceptance (qabul), and transfer (qabza).
In Smt Hussenabi v Husensab Hasan[vii], a grandfather made an offer of a gift

to his grandchildren. He also accepted the offer on behalf of minor
grandchildren. However, no express of implied acceptance was made by a
major grandson. Karnataka HC held that since the three elements of the gift
were not present in the case of the major grandchild, the gift was not valid. It
was valid in regards to the minor grandchildren.
Thus, the following are the essentials of a valid gift[viii]-
1. A declaration by the donor:

There must be a clear and unambiguous intention of the donor to
make a gift. A declaration is a statement which signifies the
intention of the transferor that he intends to make a gift. A
declaration can be oral or written. The donor may declare the gift
of any kind of property either orally or by written means. Under
Muslim law, writing and registrations are not necessary.
In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul[ix] it was

held that under Muslim Law, declaration, as well as acceptance of
the gift, may be oral whatever may be nature of property gifted.
When the gift is made in writing, it is known as Hibanama[x]. This
gift deed need not be on stamp paper and also need not be attested
or registered.[xi] In the famous case of Md. Hesabuddin v Md.
Hesaruddin[xii], where the gift was made by a Muslim Woman and
was not written on a stamp paper, Gauhati High Court held that the
gift was valid.
The declaration made by the donor should be clear. A declaration
of Gift in ambiguous words is void. In Maimuna Bibi v. Rasool
Mian[xiii], it was held that while the oral gift is permissible under
Muslim law, to constitute a valid gift it is necessary that donor
should divest himself completely of all ownership and dominion
over the subject of the gift. His intention should be in express and
clear words. According to Macnaghten, “A gift cannot be implied. It
must be express and unequivocal, and the intention of the donor
must be demonstrated by his entire relinquishment of the thing given,
and the gift is null and void when he continues to exercise any act of
ownership over it.”[xiv]
The declaration should be free from all the impediments such as
inducement, threat, coercion, duress or promise and should be
made with a bona fide intention.
2. Acceptance by the donee[xv]

A gift is void if the donee has not given his acceptance. The legal
guardian may accept on behalf of a minor. Donee can be a person
from any religious background. Hiba in favor of a minor or a female
is also valid. A child in the mother’s womb is a competent done
provided it is born alive within 6 months from the date of
declaration. A juristic person is also capable of being a donee and
a gift can be made in their favor too. On behalf of a minor or an
insane person, any guardian as mentioned under the provisions of
Muslim law can accept that gift. These authorized people
include[xvi]:
• Father,
• Father’s Executor,
• Paternal Grand-Father, and
• Paternal Grand Father’s Executor.
3. Delivery of possession by the donor and taking of the
possession by the done[xvii]:
In Muslim law, the term possession means only such possession
as the nature of the subject is capable of. Thus, the real test of the
delivery of possession is to see who – whether the donor or the
donee – reap the benefits of the property. If the donor is reaping
the benefit then the delivery is not done and the gift is invalid.
The mode of delivery of possession depends completely upon the

nature of the property. Delivery of possession may either be: Actual,
or Constructive.
1. Actual Delivery of Possession: Where the property is physically

handed over to the donee, the delivery of possession is actual.
Generally, only tangible properties can be delivered to the done.
Tangible property may be movable or immovable. Under Muslim
law, where the mutation proceedings have started but the physical
possession cannot be given and the donor dies, the gift fails for the
want of delivery of possession[xviii]. However, in such cases, if it is
proved that although the mutation was not complete and the done
has already taken the possession of the property, the gift was held
to be valid[xix].
2. Constructive Delivery of Possession: Constructive delivery of
possession is sufficient to constitute a valid gift in the following
two situations:
• Where the Property is intangible, i.e. it cannot be perceived through
senses.
• Where the property is tangible, but its actual or physical delivery is
not possible.
Under Muslim law, Registration is neither necessary nor sufficient to validate
the gifts of immovable property. A hiba of movable or immovable property is
valid whether it is oral or in writing; whether it is attested or registered or not,
provided that the delivery of possession has taken place according to the rules
of Muslim Law[xx].
Constitutional Validity Of Hiba
The question of whether the first exemption was constitutionally valid in
regards to the right to equality (article 14 of the Indian Constitution) was rather
rapidly solved by the Courts, validating the disposition on the grounds of
‘reasonable classification.
It is enough to say that it is now well settled by a series of decisions of this

Court that while Article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation, and in order to pass
the test of permissible classification, two conditions must be fulfilled,
namely[xxi]:
(1) That the classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from others left out
of the group; and,
(2) That differentia must have a rational relation to the object sought to be
achieved by the statute in question.
The classification may be founded on different bases such as geographical, or

according to objects or occupations and the like. The decisions of this Court
further establish that there is a presumption in favor of the constitutionality of
an enactment and the burden is upon him who attacks it to show that there has
been a clear transgression of the constitutional guarantee; that it must be
presumed that the legislature understands and correctly appreciates the needs
of its own people and that its laws are directed to problems made manifest by
experience and that its discriminations are based on adequate grounds; and
further that the legislature is free to recognize degrees of harm and may confine
its restrictions to those cases where the need is deemed to be the clearest.
It is well known that there are fundamental differences between the religion and
customs of the Mahomedans and those of others, and, therefore the rules of
Mahomedan law regarding gift are based on reasonable classification and the
provision of Section 129 of the Transfer of Property Act exempting
Mahomedans from certain provisions of that Act is not hit by Article 14 of the
Constitution.
The most essential element of Hiba is the declaration, “I have given”. As per
Hedaya, Hiba is defined technically as[xxii]:
“Unconditional transfer of existing 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 Fyzee[xxiii], Hiba is the immediate and unqualified transfer of the
corpus of the property without any return.
SUBJECT MATTER OF GIFT UNDER MUSLIM LAW

Now the question which we have in mind is what can be a subject matter of
Hiba, under Muslim law. As per the provisions of Transfer of Property Act,
1882, the subject matter of the gift must be certain existing movable or
immovable property. It may be land, goods, or actionable claims. It must be
transferable under Section 6. But it cannot be future property. A gift of a right
of management is valid, but a gift of future revenue of a village is invalid.
These cases were decided under Hindu and Mohammedan law respectively but
they illustrate the principle. In a Calcutta case, it was said that the release of a
debt is not a gift, as a gift must be of tangible property. It is submitted that the
release of a debt is not a gift as it does not involve a transfer of property but is
merely a renunciation of a right of action.
It is quite clear that an actionable claim such as a policy of insurance may be

the subject of a gift It is submitted that in a deed of gift the meaning of the word
‘money’ should not be restricted by any hard and fast rule but should be
interpreted having regard to the context properly construed in the light of all the
relevant facts. Therefore in order to constitute a valid gift, there must be an
existing property. In Mohammedan law, any property or right which has some
legal value may be the subject of a gift[xxiv].
Under Muslim law, following constitute the subject matter of Hiba[xxv]:
1. It must be anything (moveable or immovable, corporeal or

incorporeal) over which the right of property may be exercised or
anything which exists either as a specific entity or an enforceable
right, or anything designable under the term mal (property).
2. It must be in existence at the time when the gift is made. Thus, the
gift of anything that is to be made in the future is void. For example,
a donor makes a gift the fruits of his mango garden that may be
produced this year. This gift is invalid since the mangoes were not
in existence at the time of making the gift.
3. The donor must possess the gift.
4. A gift of a part of a thing which is capable of the division is not valid
unless the said part is divided off and separated from the property
of the donor, but a gift of an indivisible thing is valid. For example,
A, who owns a house, makes a gift to B of the house and of the right
to use a staircase used by him jointly with the owner of an adjoining
house. The gift of A’s undivided share in the use of the staircase is
not capable of division; therefore it is valid.
5. According to Hanafi law, the gift of an undivided share in any
property capable of the division is, with certain exceptions,
incomplete and irregular (fasid), although it can be rendered valid
by subsequent separation and delivery of possession. For instance,
A makes a gift of her undivided share in certain lands to B, and the
share is not divided off at the time of the gift but is subsequently
separated and possession thereof is delivered to B, the gift
although irregular (fasid) in its inception, is deemed valid by
subsequent delivery of possession.Exceptions: Gift of such
undivided share is valid which is incapable of division:a) Hiba by
one co-heir to the other; For instance, A Muslim woman died leaving
a mother, a son, and a daughter. The mother made a gift of her
unrealized one-sixth share jointly to the deceased’s son and
daughter. The gift was upheld by Privy Council.
b) Hiba of a share in freehold property in a large commercial
town; For instance, A wins a house in Dhaka. He makes a gift of
one-third of his house to B. The property being situated in a large
commercial town, the gift is valid.
c) Hiba of a share in a zamindari or taluka; According to Ameer

Ali, the doctrine of Musha is applicable only to small plots of land,
and not to specific shares in large landed properties, like
zamindaris. Thus, if A and B are co-sharers in a zamindari, each
having a well –defined share in the rents of undivided land, and A
makes a gift of his share to B, there is no regular partition of the
zamindari, the gift is valid.
d) Hiba of a share in a land company

Muslim law recognizes the difference between the corpus and the
usufructs of a property. Corpus, or Ayn, means the absolute right
of ownership of the property which is heritable and is unlimited in
point of time, while, usufructs, or Manafi, means the right to use
and enjoy the property. It is limited and is not heritable. The gift of
the corpus of a thing is called Hiba and the gift of only the usufructs
of a property is called Ariya.
In Nawazish Ali Khan vs Ali Raza Khan[xxvi], it was held that gift of
usufructs is valid in Muslim law and that the gift of corpus is
subject to any such limitations imposed due to usufructs being
gifted to someone else. It further held that gift of a life interest is
valid and it doesn’t automatically enlarge into the gift of corpus.
This ruling is applicable to both Shia and Sunni.
Hence critical scrutiny of the concept of Gift under Muslim law
gives us the following instances regarding what can be the subject
matter of Hiba:
• anything over which right of property may be exercised.

• anything which may be reduced to possession.
• anything which exists either as a specific entity or as an
enforceable right.
• anything which comes within the meaning of the word
mal.In Rahim Bux vs Mohd. Hasen[xxvii], it was held that gift of
services is not valid because it does not exist at the time of making
the gift.
Kinds Of Gifts
There are several variations of Hiba. These include[xxviii]:
• Hiba bil Iwaz

• Hiba ba Shart ul Iwaz
• Sadkah
• Ariyat
HIBA- IL-IWAZ
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means a gift
for consideration already received. It is thus a transaction made up of two
mutual or reciprocal gifts between two persons. One gift from a donor to the
donee and one from donee to the donor.
The gift and return gift are independent transactions. Therefore, when both i.e.,
hiba (gift) and iwaz (return or consideration) is completed, the transaction is
called hiba-bil-iwaz. For example, A makes a gift of a cow to S and later B makes
a gift of a house to A. If B says that the house was given to him by A by way of
return of exchange, then both are irrevocable[xxix].
So a Hiba Bil Iwaz is a gift for consideration and in reality, it is a sale. Thus,
registration of the gift is necessary and the delivery of possession is not
essential and the prohibition against Mushaa does not exist. The following are
requisites of Hiba bil Iwaz:
1. Actual payment of consideration on the part of the donee is

necessary. In Khajoorunissa vs Raushan Begam[xxx], it was held
that adequacy of the consideration is not the question. As long as
the consideration is bona fide, it is valid no matter even if it is
insufficient.
2. A bona fide intention on the part of the donor to divest himself of
the property is essential.
Gift in lieu of dower debt –
In Gulam Abbas vs Razia[xxxi], the Hon’ble High Court at Allahabad held that an
oral transfer of immovable property worth more than 100/- cannot be validly
made by a Muslim husband to his wife by way of gift in lieu of dower debt which
is also more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must
be done through a registered instrument.
HIBA-BA-SHARTUL-IWAZ
‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with a
stipulation for return’. Unlike in Hiba bil Iwaz, the payment of consideration is
postponed. Since the payment of consideration is not immediate the delivery
of possession is essential. The transaction becomes final immediately upon
delivery. When the consideration is paid, it assumes the character of a sale and
is subject to preemption (Shufa). As in sale, either party can return the subject
of the sale in case of a defect.
It has the following requisites –
• Delivery of possession is necessary.

• It is revocable until the Iwaz is paid.
• It becomes irrevocable after the payment of Iwaz.
• Transaction when completed by payment of Iwaz, assumes the
character of a sale.
In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that
they are both gifts for a return and the gifts must be made in compliance with
all the rules relating to simple gifts.
REVOCATION OF GIFT
Although there is a tradition which indicates that the Prophet was against the
revocation of gifts, it is a well-established rule of Muslim law that all voluntary
transactions, including gifts, are revocable. The Muslim law-givers have
approached the subject of revocability of gift from several angles.
From one aspect, they hold that all gifts except those which are made by one
spouse to another, or to a person related to the donor within the degrees of
prohibited relationship, are revocable.
The Hedaya gives the reasons thus[xxxii]:
“The object of a gift to a stranger is a return for it is custom to send presents to a

person of high rank that he may protect the donor; to a person of inferior rank that
the donor may obtain his services; and to person of equal rank that the donor may
obtain an equivalent and such being the case it follows that the donor has the
power of annulment, so long as the object of the deed is not answered, since a
gift is capable of annulment”.
The texts of Muslim law lay down a long list of gifts which are irrevocable. The
contents of the list differ from school to school, and the Shias and the Sunnis
have the usual differences. The Muslim law-givers also classify gifts from the
point of view of revocability under the following two heads[xxxiii]:
• Revocation of gifts before the delivery of possession, and

Revocation of gifts before the delivery of possession[xxxiv]:
Under Muslim law, all gifts are revocable before the delivery of possession is
given to the donee. Thus, P makes a gift of his motor-car to Q by a gift deed. No
delivery of possession has been made to Q. P revokes the gift.
The revocation is valid. In this case, it will not make any difference that the gift
is made to a spouse, or to a person related to the donor within the degrees of
prohibited relationship. The fact of the matter is that under Muslim law no gift
is complete till the delivery of possession is made, and therefore, in all those
cases where possession has not been transferred the gift is incomplete, and
whether or not it is revoked, it will not be valid till the delivery of possession is
made to the donee.
The revocation of such a gift, therefore, merely means that the donor has
changed his mind and does not want to complete it by the delivery of
possession. For the revocation of such gifts, no order of the court is necessary.
Fyzee rightly says that this is a case of inchoate gift and it is not proper to apply
the term revocation to such a gift.
Revocation after the delivery of possession[xxxv]:

Mere declaration of revocation by the donor, or institution of a suit, or any other
action, is not sufficient to revoke a gift. Till a decree of the court is passed
revoking the gift, the donee is entitled to use the property in any manner; he can
also alienate it.
It seems that:
• all gifts after the delivery of possession can be revoked with the
consent of the donee,
• revocation can be made only by a decree of the court.
The revocation of a gift is a personal right of the donor, and, therefore, a gift
cannot be revoked by his heirs after his death. A gift can also not be revoked
after the death of the donee.
According to the Hanafi School with the exception of the following cases, a gift
can be revoked even after the death of the donee.
According to the Hanafi School, with the exception of the following cases, a gift
can be revoked even after the delivery of possession. The exceptions to the
same are[xxxvi]:
• When a gift is made by one spouse to another.

• When the donor and the donee are related within the prohibited
degrees.
• When the donee or the donor is dead.
• When the subject-matter of the gift is no longer in the possession
of the donee, i.e., when he had disposed of it by sale, gift or
otherwise or, where he had consumed it, or where it had been lost
or destroyed.
• When the value of the subject-matter has increased.
• When the identity of the subject-matter of the gift has been
completely lost, just as wheat, the subject-matter of gift, is
converted into flour.
• When the donor has received something in return (iwaz).
• When the object of the gift is to receive the religious or spiritual
benefit or merit, such as sadaqa.
The Shia law of revocation of gifts differs from the Sunni law in the following
respects: First, gift can be revoked by a mere declaration on the part of the
donor without any proceedings in a court of law; secondly, a gift made to a
spouse is revocable; and thirdly, a gift to a relation, whether within the
prohibited degrees or not, is revocable.
Conclusion
The conception of the term gift and subject matter of gift has been an age-old
and traditional issue which has developed into a distinct facet in property law.
Different aspects related to gift in property act and its distinction with the
Mohammedan law and its implications has been the major subject matter of
this article.
In considering the law of gifts, it is to be remembered that the English word ‘gift’
is generic and must not be confused with the technical term of Islamic law,
hiba. The concept of ‘hiba’ and the term ‘gift’ as used in the transfer of property
act, are different. As we have seen in the project that Under Mohammedan law,
to be a valid gift, three essentials are required to exist:
• Declaration of gift by the donor.

• Acceptance of the gift, express or implied, by or on behalf of the
done.
• Delivery of possession of the subject of the gift.
The English law as to rights in property is classified by a division on the basis
of immoveable and moveable (real and personal) property. The essential
elements of a gift are:
• The absence of consideration.

• The donor.
• The done.
• The subject-matter.
• The transfer; and the acceptance.
Thus this striking difference between the two laws relating to gift forms the
base of this project in understanding its underlying implications.
To conclude the researcher can say that, the gift is a contract consisting of a
proposal or offer on the part of the doner to give a thing and acceptance of it
by the donee. So it is a transfer of property immediately and without any
exchange. There must be a clear intention by the donor to transfer the
possession to the doner for a valid gift. It can be revoked by the doner. And the
provisions for the same have also been mentioned.
Introduction
The concept of Hiba under Muslim law has existed from 600 A.D. Gift is the transfer of a
property from one person to another. Under Muslim law, the Gift transfer is not controlled by the
Transfer of Property Act, 1882 but is governed by Muslim law itself. Muslims can divide their
property in many ways out of which one is “Hiba” which is discussed in the paper. The delivery
of gift in Muslim law can be actual or constructive. in actual delivery, the gift which is being
made is physically transferred to the donee, and in case of constructive delivery it is just a
symbolic transfer of property. Also, there are some instances where the delivery of the
possession of the property is not necessary. In this paper, we have discussed about the essentials
of Hiba, kinds of gift under Muslim law, how the gift can be revoked and also about the gift of
Musha.
Under Muslim law, Muslims can divide their property in many ways. It could be through Gift
which is known as Hiba in Muslim law and through a will which is known as Wasiyat in Muslim
law. The term gift is known as ‘Hiba’ in Muslim law. Whereas in English, the word ‘gift’ has a
much wider expression which is applicable to each and every transaction where an individual
transfers his or her property to another without any consideration for the same. In contradiction
to this, the term ‘Hiba’ in Muslim law has a much narrower connotation. A Muslim is allowed to
give away his whole property in his lifetime but he can only give one-third of his property
through a will. Also, the religion of the person to whom the gift is made is irrelevant. The
transfer of property through the way of gift is immediate and without consideration. It is an
unconditional transfer of property. Although the gift being a property has to be governed by the
Transfer of property act, 1882. But Chapter 7 of Transfer of Property Act 1882 does not cover
the gift under Muslim law. So, the Muslim Personal law governs the Muslim gift or “Hiba”.
Essentials of Hiba
There are mainly three conditions which need to be fulfilled for the successful transfer of
property or making of a gift by a Muslim person. These conditions are as follow:
1. Declaration of gift by the donor.

2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and it’s acceptance by the donee.
Before proceeding further let us first understand the meaning of terms donor and donee.
The person who signifies his willingness to the other person for transferring his property is
known as a Donor. On the other hand, 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 donor are as follow:

• Firstly, the person who is giving the property or making the gift i.e Donor, he/she must be
a Muslim. Any other person in place of Muslim cannot make Hiba.
• Secondly, the person should be of the competent age i.e he/she must be major.
• Thirdly, the consent of the donor must be free. If the consent of the person is obtained by
force, coercion, undue influence is no consent and such a gift is no gift.
• Fourthly, the person must be of sound mind. Any gift made by a person of unsound mind
is not a valid gift.
• And lastly, the donor should be having the ownership of the property which he is going to
give away in the form of a gift.
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. A donor can make the declaration in two ways that are
oral or written.
In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul, it was held by the apex court that
under Muslim laws the declaration made by the donor and the acceptance made by the donee can
be oral irrespective of the nature of the property. The declaration and acceptance made in the
form of writing are through the way of gift-deed. 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.
In the case of Md. Hesabuddin v Md. Hesaruddin, where Muslim women transferred her
property by the way of Gift or Hiba and the gift-deed was not on the stamp paper it was held to
be valid by the Gauhati High Court.
The declaration should also be expressed. A gift made in an unambiguous manner is null and
void.
The requisites of the donee

• Firstly, religion is no bar for accepting the gift which has to be mandatorily made by a
Muslim. The donee can be of any religion, Muslim or non-muslim.
• Secondly, the age is again not a bar for a donee. He/she can be of any age i.e. major or
minor.
• Thirdly, a gift can be made to an unborn child, but it must be in the womb of her mother.
This is so because of the Transfer of property act, 1882 which talks about the benefit for
the unborn person.
• Fourthly, the transfer of property can also be made to a religious entity.
Acceptance of gift by the donee
For the valid gift, 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’s and it must be accepted separately. Since in Islamic law
the Hiba is treated as a bilateral transaction i.e the donor makes the transfer and it must be
accepted by the donee. If the acceptor of the gift is minor or any person of unsound mind then it
can be accepted by his guardians. These people are his/her-
• Father
• Father’s Executor
• Paternal Grand-Father
• Paternal Grand Father’s Executor
Transfer of possession by the donor and its acceptance by the

donee
After the transfer proposed by the donor and its acceptance by the donee is complete the next
important condition which needs to be fulfilled for a valid gift is the transfer of possession by the
donor and its acceptance by the donee. As the formalities of a gift are mentioned under Section
123 of Transfer of property act, 1882 but these are not applicable in case of “Hiba”. 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.
In the case of 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. The mode of
delivery can be Actual or Constructive.
Actual Delivery: In actual delivery, the gift which is being made is physically transferred to the
donee. Actual delivery of the possession is possible when the gift which is being transferred is of
tangible nature. Tangible means something which we can feel, see and touch. But further in case
of tangible goods, it can be movable and immovable. Actual delivery can be done in case of only
movable goods.
For example- If a person wants to gift a laptop to the other he can make his actual delivery as it
is tangible and is movable in nature.
Constructive Delivery: The transfer of immovable property and intangible property is not
possible so it is just a symbolic transfer of property.
For example- If the man wants to gift a house to someone, he can just hand over the keys and the
related documents to the donee. He cannot pick up the house and hand it over to the donee. So, in
this case, the delivery made is constructive in nature.
Under Muslim law, the registration of the transfer is not important, the condition which needs to
be fulfilled for this is that the transfer must be made according to the rules of Muslim law. As it
has already been mentioned in this paper that the Hiba can be oral or written and written transfer
is known as Hibanama and its registration or authorization by way of the stamp is not necessary.
Kinds of Gifts
1. Hiba-il-iwaz
2. Hiba ba Shart ul Iwaz
Hiba-il-iwaz
Under Islamic law, Hiba means gift and iwaz means consideration. Hiba-il-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-il-iwaz. The second gift made by B to A is iwaz i.e.
return.
Requisites of a valid Hiba-il-iwaz:
• Firstly, there must be a complete and valid gift made by the donor to the donee. If the gift
made is not according to the rule of Muslim law then it is no gift.
• Secondly, there must be a payment consideration made by the donee. In the case
of Khajoorunissa vs Raushan Begam, the facts were that the father gave one-third of his
property to his eldest son in return of Rs.10,000 but the consideration was never paid. It
was held that the quantum of consideration is not important, the only thing important is
that the consideration must be bona fide.
Hiba-ba-Shart-ul-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.
Requisites of a valid Hiba-ba-Shart-ul-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
Although old traditions show us that the prophet was against the system of revocation of gifts.
Today, it can be seen that it is the well-established principle of Muslim law that all the gifts
which are made voluntarily can be revoked. The revocation of the gift of different kinds depends
upon the different schools and Shia’s and Sunni’s. The Muslim lawgiver categorised the types of
revocation under two different types:
• Revocation of gifts before 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.
When the delivery of possession is not necessary:

There are some cases where the delivery of possession is not necessary. Like, a gift from one
spouse to another, or say guardian to the ward.
• Donor and donee living in the same property:
In a case where the subject matter of the gift is a house in which both the donor and donee are
living together, any delivery of possession is not important. But there must be the bona fide
intention of the donor for the transfer of property.
In the case of Humera Bibi v. Najmunnissa, in this case, was an old lady who used to live with
his nephew. She transferred the property to his nephew who was living with her in the same
house. However, when the property was given on rent, the rent was collected in the name of the
donee. The court held the gift valid.
• Gift by the spouses to each other:
Where a gift of immovable property is made by one spouse to the other the delivery of
possession is not mandatory.
In the case of Fatma Bibi v. Abdul Rehman, the husband made an oral declaration of transfer of
property in the name of his wife. The stepson who was living with the mother challenged the
validity of the gift as no delivery of possession was made. The court held that the gift was valid.
• Gift of property already in possession of donee:
In the cases where the possession of the property is already with the donee, only the declaration
by the donor and acceptance by the donee is enough to make this gift as a valid gift.
For example- If A is having a car and he is using it for his own use and now his father transfers it
to his name, the declaration by the father and the acceptance by the son is enough to make this
gift as a valid gift.
Gift of Musha
The term Musha has been derived from the Arabic word which refers to Shuyua which actually
means ‘confusion’. It means Musha the ‘undivided part’ or share, which could also be a common
building or land. As a gift of a part of a thing which is capable of division is not valid unless that
particular part is divided off and separated from the property of the donor, however, the gift of an
indivisible thing is absolutely valid. In Muslim law, Musha signifies an undivided share in joint
property. Musha is thus, a co-owned which is also the joint property. Moreover, if one of the
several owners of that particular property makes a gift of their own share, there may be a
confusion regarding the matter that which part of the property has to be given to the donee. In
other words, there could be a real difficulty in delivering the possession of the gift if it is of a
joint property which is made by a donor without partition of that gifted share. In order to avoid
such confusions and difficulties in the stage of delivery of possession, the jurists pertaining to the
Hanafi law have evolved the principle of Musha where the matter of a gift is co-owned or joint
property, the doctrine of Musha becomes applicable for examining the validity of that particular
gift. The doctrine is strictly confined to the rules by the interpretation of judiciary and has been
cut down in a considerable manner.
Musha which is indivisible:
The Gift of Musha indivisible is valid. There are some of the properties which are by its very
nature indivisible. The physical partition or the division of those properties is not practical.
Moreover, if it is against the nature of such properties, their partition or division is affected at all
and hence their identity is lost entirely, they do not remain the same properties which they were
before the partition. For instance; a bathing ghat, a staircase or the cinema house cannot be
divided as Musha properties. However, if on the bank of a river or a tank, there is a bathing ghat
which is in the co-ownership of two or more persons, then each of the owner has right to deal
with his share as he deems fit including the right to make a gift of his share, however, if a sharer
has attempted to separate his share, the utility of the ghat will get completely finished. Where a
staircase is jointly owned by, for instance, two persons, then each being the owner of half of the
stair-case, is entirely entitled to make a gift of his or her share, but, if the stair-case is divided
into two parts, it would either be too narrow to be used by anyone, or the upper half may come in
the share of one and the other lower half is in the other’s share hence, in both the cases the
staircase would become useless for both of them and also for the donee as well. It has also been
provided that to every Hiba the doctrine of Musha applies, except insofar as it must be taken that
the creators of the doctrine could not have contemplated that it should be applied to the subject-
matter of any particular gift.
Musha which is divisible:
In the Hanafi law, the gift of Musha of the divisible property is termed to be irregular that is fasid
if made without partition, however, a co-owned piece of land, house or a garden, is Musha which
is divisible. The land can be divided and the specific share can be separated by a visible mark of
identification. Similarly, a house which is jointly owned may be divided by a partition wall
without changing its entire identity. However, under the Hanafi doctrine of Musha, the gift
without partition and the actual delivery of possession is not void ab initio; it is merely irregular
which means fasid. The result is that where such a gift has been made, it may be regularized by
the successive partition and by giving to the donee the actual possession of the specified share of
the property. It is clearly evident that the doctrine of Musha is limited, both in its application as
well as in its effects.
Conclusion
The concept of gift is a long due process which is coming over from our past. The term “Hiba”
and “gift” have a different meaning when taking into consideration the transfer of property act,
1882. Hiba is governed according to the Muslim Law. So as we have discussed in this paper the
three conditions of a valid gift that are:
1. Declaration of gift by the donor.

2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and its acceptance by the donee.
There must be a bona fide intention of the donor to transfer the property. The gift can be revoked
by the donor after a decree of revocation has been passed by the court of law. While concluding
we can say that gift is an offer made by the donor to a person who accepts the offer, known as
donee. So, the term “gift” used in English is generic and should not be confused with that of
Muslim law known as “Hiba”.

Islamic Personal Law

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Islamic Personal Law

Miss Mamoona Khalid Lecturer University Law College

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The rule of Abatement is different in Sunni Law and in Shia Law.

Miss Mamoona Khalid Lecturer Law College

Miss Mamoona Khalid Lecturer Law College

Registration and revocation of wills

Miss Mamoona Khalid Lecturer Law College

Executor of the will (Al-wasi Al- mukhtar)

REVOCATION OF WILL BY A MUSLIM

Miss Mamoona Khalid Lecturer Law College

Miss Mamoona Khalid Lecturer Law College

Tyabji defines Will as â€œconferment of right of property in a specific thing or in a profit or

Object and Significance of Wills

Requisites of A Valid Will

Testator and his Competence (Who can make Will?)

Legatee and his Competence (To whom Will can be made?)

Subject Matter of Will (Bequeathable Property) and its Validity

Likewise, a bequest in futuro is void, and so does a contingent bequest.

Testamentary Power and its Limits (Bequeathable one-Third)

Bequest to Heirs and Non-heirs

Sunni Law Shia Law

Rateable abatement of legacy applies. Rule of chronological priority applies.

Meaning and nature of Will

Essentials of a valid Will

• The legator must be competent to make a Will.

Who can make a Will?

o Attempt to suicide by Legator

o He must be a person in existence

o Child in mother’s womb

Where the share is specified

Where the share is not specified

A Will can be made either orally or in writing or even by gestures.

Will made by Gestures

The subject matter of a Will

• If he owns the property at the time of his death.

Principle limitations on testamentary powers

• With respect to the extent of the property that can be bequeathed

• With respect to the legatees to whom the property is given

A legator may revoke the Will either expressly or impliedly.

Comparison of Sunni and Shia law of Will

It is invalid even to the one-third

A Will is valid if a legator

Bequest for an unborn child is

Abatement of The rule of rateable distribution The rule of preferential distribution is

The legacy Will lapse only when legatee

MEANING AND NATURE

ESSENTIALS OF A VALID WILL

2. The legatee shall be capable to taking the endowment.

3. The property which is given by legator must be bequeathable property.

4. There must be free consent of legator and legatee.