13.04.

2020 - WAQF
MODES OF CREATION OF WAQF:
- Inter vivos waqfs (accepted in both Shia and Sunni law)
- Testamentary Waqf (general rule is that more than 1/3rd of his property cannot be
bequeathed, unless consent is taken from his heirs)
KINDS OF TESTAMENTARY WAQF:
- Waqf-bil Wasiyat (Convey the property to Mutawalli)
- Wasiyat bil Waqf (Director to executor to form Waqf)
The difference between these two waqfs is only in form and not in substance.
=> Baqar Ali Khan v. Anjuman Ara Begum (1902)
Prior to 1902, the understanding was that a Shia Muslim could not create a testamentary
waqf, but only inter vivos waqfs.
But, in this case, it was settled that even Shia Muslims could form testamentary waqfs.
There is a big difference between a Mutawalli and executor.
Mutawalli is the person who is identified and given powers to take the lead.
The Executor, on the other hand, his powers extend to what is given in the will. He may even
be appointed as a first Mutawalli.
The Executor may be asked/ given direction to appoint a first Mutawalli.
- Waqf by usage
It is a special category - waqf is not formally created. But it has been used by the Muslim
community as a mosque or graveyard and there has been no objection.
WHO CAN CREATE A WAQF?
- Major (IMA 1875/Islamic Law)
- Soundness of mind
- Waqif should have faith in Islam religion (to be read with the capacity of other persons to
make waqf)

In many cases, Waqif can be the first Mutawalli. However, he may also appoint another as
mutawalli.
A female can be a Waqif. She may also be a first Mutawali. However, in cases of a purely
religious Waqf, there are some problems.
In purely religious waqfs, she may be Waqf, but she cannot be a first mutawalli.
HOW A WAQF MAY BE CREATED?
- A Waqf may be oral or written [Tyabji Muslim Law, 4th Edition] --> Form of creation of
Waqf is immaterial
- Waqf Act 1995 --> Sections 36 and 37 (Who can register and requirements)
- Section 41 talks of the power to register the Waqf (Suo moto)
Whether it is an oral or written waqf, for it to be valid, it MUST be registered. Registration
cannot be avoided.
In this regard, Sections 36, 37 and 41 are relevant.
Section 36 -- Registration
Section 37 -- Register of Waqf (Every Waqf is to maintain a register)
Section 41 -- Power of Waqf Board to get waqf resgistered and examine waqf register
All Waqfs created, whether before or after the operation of the Act, are to be registered
[Section 2 gives retrospective operation]
Mutawalli has to ensure registration.
If there is no Mutawalli, any person (beneficiary even) may make an application to the State
waqf board for registration.
15.04.2020 - WAQF
In the application for registration, certain details must be shared with the Waqf Board [S.
36(4)].
[Sufficient description of the property, annual income generated by the property, taxes to be
paid, expenses incurred for the preservation of the property, salary of the Mutawalli,
Waqif has the right to determine the salary of the Mutawalli.
But, the 1/10th rule may be used to determine salary - accepted in both Shia and Sunni - in
those cases were the salary is not specified.
In those cases where salary is not mentioned, salary cannot be more than 1/10th of income
generated by the Waqf.
S.36(2) asks for documents to be produced. In those cases where the Waqf is oral, particulars
with respect to the property, nature of waqf etc. must be produced.
The Waqf Board will conduct an enquiry - once the particulars have been verified - the Board
may register.
SECTION 37
Once application for registration is moved within 3 months under S. 36 - Waqf Board has to
maintain a Register which has details of all the Waqfs.
Note:
S. 13 of the 1995 Act talks about incorporation of the Waqf Board.
This provision states that in those States where the Shia Waqfs are more than 15% of the total
number of Waqfs in the State, or the income of the Shia Waqfs is more than 15% of the
income generated by all Waqfs, then the State may separately constitute a Shia Waqf Board.
[Since Sunnis are in majority in India, it is presumed that there is a Sunni Board in all States].
Section 41 allows the Board to suo moto register a Waqf.
WAQF FOR UNSPECIFIED OBJECT (DIVERGENT VIEWS)
- The acceptable position was that Waqf's object must be clearly specified.
- The statutory provision also clearly states that object must be specified (S. 36(4)) - even for
oral waqfs.
WHETHER IT IS NECESSARY TO USE THE WORD WAQF?
--> Jewun Doss v. Shah Kuber-ood-Deen (1840)
--> Abdul Razak v. Ali Baksh (1946)
All Mohammedan jurists, old and new, have agreed that in order to constitute a valid waqf, it
is not essential to use the word Waqf, any implied expression is enough for the purpose.
HOW WAQF IS COMPLETED?
For Sunnis:
According to Abu Yusuf, mere declaration is sufficient (Mohammad Yasin v. Rahmat Ilahi
(1947)).
According to Imam Muhammad, besides declaration, Mutawalli should also be appointed and
possession should be transferred.
Abu Yusuf's view has been accepted by the full bench of the Allahabad HC.
Prior to this case, however, the All HC had a different view. They followed the view of Imam
Muhammad.
--> Mohd. Assiszuddin v. Legal Rememberancer (The All HC said that the view of Imam
Muhammad is correct) - prior to 1947
For Shias:
They are very clear with the fact that for completion of Waqf in Shia law, the delivery of
possession of property to the Mutawalli is necessary.
Declaration is necessary and the transfer of possession is also a must (not in those cases
where the Waqif himself is the first Mutawalli).
In 2013, in the Ramjas Foundation v. UOI case, the SC said that in those cases where there is
ambiguity with respect the Waqf, those questions must be answered and proved.
Any issue wrt creation of Waqf - conduct subsequent to creation of Waqf is very important.
17.04.2020 - WAQF
Proviso to Section 32(1) states that the Waqf Board will act in accordance with the directions
of the Waqif, or according to the customs and usages sanctioned and adopted by the school of
Muslim law.
POWERS AND BENEFITS OF WAQIF
- Waqif may be maintained from the Waqf Income (Only in the Hanafi school = Sunnis)
- Waqif may reserve income for himself (Only in the Hanafi school = Sunnis)
- Waqif may dispose or use the income of income of Waqf during lifetime (Only in the
Hanafi school = Sunnis)
- Waqif's debts may be paid from income of Waqf property (Only in the Hanafi school =
Sunnis)
- Right to residence in Waqf property (Possible in both sects)
- May appoint himself as the first Mutawalli (Possible in both sects)
- Waqif may reserve the power to alter the beneficiary of Waqf (Applicable to Sunnis)
COMPARISON OF THE TWO SCHOOLS
It is clear that the Hanafi school, which applies to Sunnis, is more liberal.
In the Shia school, however, it is strict - once the property has been made Waqf property, the
Waqif must give it up in entirety.
Among Sunnis, if the Waqif is the first Mutawalli, he can reserve for himself a higher salary
than other Mutawallis.
But if the Waqif is Shia, although there is no bar for him to be the first Mutawalli, he does not
have the power to reserve a higher remuneration in comparison to other Mutawallis.
HOW CAN ONE PROVE THE EXISTENCE OF WAQF?
1. Where there is a deed/Waqfnama/written document
2. In those cases where there is nothing in writing, it may be proved by the evidence of
circumstances justifying as to the existence of intention to create waqf
3. In cases of Waqf by usage, the immemorial usage of the Waqf.

MUTAWALLI
Mutawalli is one who is entitled to the superintendence of the Waqf and the management of
the Waqf [Merely a manager/superintendent].
He is not the owner of the property. Waqf once created, all the rights in the property vests in
the Almighty.
He acts as a manager. The property is not vested in him - Mutawalli has no right in the
property.
The Mutawalli is not a trustee.
Section 61 of the 1995 Act - Penalty for failure of functions on part of Mutawalli
=> Mohd. Ishaq v. Commissioner of Income Tax (1951)
Mutawalli is not a trustee (the ownership requirement is not fulfilled).
=> Mohd. Rustam Ali v. Mustaq Hussain (1921)

WHO MAY BE APPOINTED AS A MUTAWALLI?

There are no qualifications as such in the law. Generally, the person must be a major with
sound mind.
Under the Model Rules, some specifications have been made - but this is wrt the appointment
by the Waqf Board (otherwise it is as determined by the Waqif).
- Founder himself
- Executor
- Children, descendants or any other person
- Females may also be appointed as Mutawalli (but certain restrictions exist)
- Non-Mahomedans may also be appointed as Mutawalli (but certain restrictions exist)
Where the Waqf is purely religious and the Mutawalli is bound to perform certain religious
functions, then females and non-Mahomedans may not act as Mutawallis.
WAQIF FAILS TO APPOINT MUTAWALLI - EFFECT
- If the Waqif fails to appoint a Mutawalli, it does not invalidate the Waqf.
- According to Abu Yusuf, where the Wakif has not appointed a Mutawalli, the Wakif
himself is the Mutawalli.
- Abu Hanifa and Imam Muhammad, however, believe that if a Mutawalli has not been
appointed, the Waqf itself will fail (connect it to how they said that without appointing
Mutawalli, the Waf would not be created).
- However, Hanifa and Imam's view is not the correct position.
- Muslim law is clear that where there is no Mutawalli, the Wakif can be the first Mutawalli.
- In case of a testamentary waqf, generally, a family member (not a stranger), would be given
preference. The Waqf Board may also appoint.
MUTAWALLI OF DIFFERENT SECT - POSSIBLE
A Sunni may act as Mutawalli of a Shia Waqf and vice versa.
[See: Dayal Chand v. Keramat Ali (1871)]
JOINT MUTAWALLI - POSSIBLE
There must be a minimum of one Mutawallli, there is no restriction on the maximum limit.
For instance, in those cases where the Mutawalli is female, there may be another male
Mutawalli in case certain religious acts.
In these cases, female Mutawalli looks into all the administrative aspects (not purely religious
ones).
REMUNERATION OF A MUTAWALLI
- The Waqif is free to determine the remuneration of a Mutawalli.
- In case of Sunnis, the Waqif as first Mutawalli may fix higher salary - Shias it is not
possible.
- The 1/10th Rule states that in case where remuneration has not been pre-determined, the
1/10th rule will be applicable.
- It applies to both schools.
- The remuneration of the Mutawalli cannot be more than 1/10th of the income of the Waqf
(when fixed by Court/tribunal).
- Court may revise the remuneration if it is given that he requires higher salary to exercise the
functions.
20.04.2020 – WAQF (Mutawalli)
THE OFFICE OF THE MUTAWALLI IS NOT HEREDITARY OR TRANSFERABLE
The office of the Mutawalli is neither hereditary, nor transferable. However, this is subject to
the Waqfnama (intention of Waqif).
The general rule of non-heritability and non-transferability can be derogated from only if it is
specifically provided for.
Non-heritability is the rule. Inheritance is an exception.
This is because it is against the spirit of the Muslim law to make it heritable.
Moreover, in those cases where it is specifically made inheritable, if the person inheriting is
not capable of being a Mutawalli or he is not exercising his functions properly, he will not be
made Mutawalli just because it is so provided by the Waqif.
In these cases, the Court/tribunal may revive the scheme.

WAKIF’S POWER TO ALTER THE SCHEME OF MUTAWALLI

Khalil Ahmed Khan v. Malka Mehar Nigar Begum (1954)
Only if the Waqif has reserved the power to alter with the Mutawalli is when it is allowed.

WHO CAN APPOINT A MUTAWALLI?

Waqif may lay down a scheme for succession to the office of Mutawalli.
- Nominate a successor by Waqfnama
- Indicate the class of persons who may success to Mutawalliship
- May lay down the qualification for the Mutawalli
- May constitute a hereditary line of successors to the office of Mutawalli
Apart from Waqif:
- First Preference: What is provided for in the Waqfnama
- Second Preference: Custom and usage
- Third Preference: The Waqif, if alive, may appoint. The Executor may also appoint. On
the death bed, the Mutawalli may appoint his successor. Section 63 of the 1995 Act gives
power to the Waqf Board to appoint Mutawalli (vacancy + No provision in the Waqfnama
or when there is some dispute as to appointment). Additionally, Section 66 gives power to
the State Government to appoint Mutawalli under certain circumstances – where in the
Waqf deed the Waqif has specifically said that the Waqf Board must not appoint or there
is a dispute regarding appointment (since this is of last resort, this provision is rarely
used).

FEMALE AND NON-MUSLIMS AS MUTAWALLI

They cannot be Mutawallis in the following cases:
- Where the Mutawalli is to act as Sajjadnashin or a spiritual head.
- Where the Mutawalli is to act as Imam, i.e. where he is required to lead the assembly of
people for religious prayers.
- Where the Mutawalli is required to give religious preaching where he has to address the
non-religious gathering.
Shaikh Masthan Sahib v. Palayani Reddi
The Madras HC held that there is no problem with women or non-Muslims acting as
Mutawalli. However, they cannot be given with religious functions. They can perform all
administrative functions.

DUTIES OF MUTAWALLI
Section 50 of the Act provides for the duties of the Mutawalli – to carry out directions of the
Board, to furnish details and particulars relating to the expenditure of the Waqf, to allow the
Board to undertake inspection of the Waqf, to discharge all public dues, etc.
In addition to these, he may be given more duties under the Waqfnama by the Waqif or by
further declarations.
REMOVAL OF MUTAWALLI
- As provided in the Waqfnama (provisions of the Waqf deed)
- If the Waqf Board feels that the Mutawalli is not performing his duties (Section 64)
- Waqf Board may remove – but it is subject to the provisions of the Waqf deed
- If there is any dispute over the decision of the Waqf Board, then the aggrieved may
approach the tribunal within 1 month.

Grounds for removal under Section 64:

- Failure to register Waqf
- Failure to maintain accounts
- Acted fraudulently
- Narcotic drugs and consumption of alcohol
However, the removal must be agreed by 2/3rds of the beneficiaries.

POWERS AND DISABILITIES

Powers: As provided in the deed
Disabilities: Cannot alienate the property or lease it (See: Section 56 of the Act read with the
Waqf Property Lease Rules, 2014) – for lease more than a year, permission of the Waqf
Board is needed.
Lending money (S. 77)

Under certain circumstances, Section 65 empowers the Waqf Board to take up the
management of the Waqf only in those cases where appointment of Mutawalli is taking time
and such delay might hamper the interests of the

WAQF BY NON-MUSLIM
Ramjas Foundation & Ors. v. Union of India (2010)
Mere declaration of a property as Waqf property is not sufficient – something must be done
(conduct) indicating the intention to create Waqf.
SC held that the property in question was not Waqf property.
Subsequent conduct must indicate the intention to create Waqf.
The SC held that Islam is not a necessary condition for Waqf.
Amir Ali (Mohd Law 4th Edition Volume 1) – Any person of whatever creed may create the
Waqf, but the law requires that the object for which the dedication is made should be lawful
according to the creed of the dedicator as well as Islamic doctrines.
It must not be against the dedicator and principle of Islamic law.

Section 104 of the 1995 Act specifically states that in those cases where a non-Muslim has
given property in support of a Waqf (not creation of Waqf itself), then such property will be
treated as Waqf property. This provision gives right to a non-Muslim to support a Waqf.

* The doctrine of Cyprus is also applicable to Waqf. The State Waqf Board has been given
power under Section 32(2)(e)(3) to apply the power of Cyprus. The Board is empowered to
apply the income of the Waqf to an object closest to the object which has become impossible
to apply to.

22.04.2020
HIBA (Gift)
There are different forms of gift under Muslim law. Hiba is one of the kinds of gifts under
Muslim law.
In the TPA 1882, gift is defined.
Under Muslim law, gift is a transfer of property from one to another in accordance with the
principles of Muslim law.
Through this Hiba, a person transfers ownership to the transferee. The owner of the property
who makes the gift is the Donor. The person who receives the gift is the Donee. The
transaction of gift thus involves two parties. The transfer must be without any consideration
or exchange. The Donee is not to be expected to do anything in return (without any Ewaz or
return). There should not be any condition and the transfer must not be contingent. Transfer
should be immediate.

Meaning and Definition

Fyzee – Hiba is the immediate and unqualified transfer of the corpus of the property without
any return.
Baillie – The conferring of a right in something specific without an exchange.
Mulla – Gift is a transfer of property, made immediately, and without any exchange, by one
person to another, and accepted by or on behalf of the latter.
TPA – Section 122:
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.
Applicability of TPA to Hiba – Section 129
This provision makes it clear that the TPA provisions do not apply to Muslim gifts.
The applicable law is:
Muslim Personal Law (Shariat) Application Act, 1937 – Section 2

Tayabji – Transfer of property without any return

Hedaya – Transfer of property made immediately and without any exchange

Section 1 (Laws of Gift) AIMPLB Compendium

Transfer with immediate effect the ownership of any movable or immovable property to
another person and other person himself or someone else with his consent takes the
possession of the gifted property.

Donor (Wahib)
Capacity: Majority and Soundness of Mind
However, a mere weakness of the intellect is not sufficient to render him incompetent. He
must be able to comprehend the transaction.

Property should be in existence

Ownership of the property – Wahib should be the absolute owner of the property – there
should be no dispute as to the ownership of Wahib over the property.

Saleha Fatima v Mirza Fazal Hussain Baig (2009)

Issue was with respect to a Nominee exercising right over property. Applies equally to
Muslim law. A nominee is not allowed to make gift, unless he is a beneficial nominee.

Subject matter of Hiba – Mouhub

- Property which may be given in Hiba – both moveable and immoveable
- Must be in existence
- If the subject matter being gifted is divisible, then it must be separated and distributed.
Essentials of Hiba
1. Declaration – Manifestation of wish by donor (can be made orally or in writing)
2. Acceptance by donee
3. Delivery of possession (actual and constructive)
[Registration cannot cure the want of delivery of possession]
Constructive possession:
[both in Shia and Sunni sects]

Delivery of possession is an essential requirement.

Sadik Hussain v. Hashim Ali (1916)
Mohammad v. Fakhr Jahan (1922)
These two are few cases where this requirement was emphasized – delivery of possession is
an inherent requirement.

The donor must relinquish himself with the ownership and dominion over the property.
A gift with a reservation of possession of property by the donor during his lifetime is void.
Mahomed Aslam Khan v. Khalilul Rehman (1947)
In this case, the person giving Hiba stated that he would continue retaining the possession of
the property for his lifetime. The Court held that such is not allowed – this would not amount
to relinquishment of ownership.
A simple Hiba must be without any condition with respect to the subject matter.
Neither should it be conditional nor contingent.

In some cases, absolute possession may not be given. But the examination of the facts and
circumstances of the case should indicate that at least implied or constructive possession has
been taken.

Requirement of possession in the following situations:

- Hiba in favour of minor by father/mother
- Hiba by any other person to a minor, other than father/mother
- Hiba by husband to wife/ by wife to husband
Amina Bibi v. Khatiji Bibi (1864)
Tenants were there. Husband was collecting the rent. The donee was the wife.
The Court said that in such cases, since husband has the legal right to stay with his wife,
merely because he is collecting rent does not mean he still has dominion over the property. It
is assumed that the husband is acting for the benefit of his donee wife.

The AIMPLB has prepared a Compendium which they rely on in cases.

Section 9 – Conditional Hiba
A condition cannot be imposed while gifting a Hiba as per Section 9 of the Compendium.
The condition will make the gift void even if other requirements have been met.

Hiba by female – POSSIBLE

A female who possesses property can gift hiba.

Hiba of Minor’s property – Section 11

No person has the right to gift a property which is a minor’s property.

Generally, Muslim law prescribes that the gift shall take effect from the date on which
possession is delivered.

27.04.2020
Written and Oral gifts and its validity under Muslim Law
Mohd Ali v. Board of Revenue, Lucknow (2001)
In Mahboob Sahab v. Syed Ismail and Others (1995), the Court referred to the Principles of
Mahomedan Law by Mulla, 19th Edition. Under Section 147 (of the book), edited by Chief
Justice M. Hidyatullah, envisages that writing is not essential to the validity of a gift, either of
immovable or moveable property.

Hafiza Bibi v. Sheikh Farid (2011)

The SC settled the issue in this case. The three essentials are – declaration, acceptance and
delivery of possession.
Writing is not an essential requirement for the validity of the gift. Registration is not an
essential requirement.
Contrasting with the TPA
Gift made as Hiba under Muslim law is very different from gift under TPA. The essentials of
the two forms of gift are distinct. Furthermore, the general principles regarding transfer
contained in the TPA do not apply to Muslim personal law.
Section 129 of the TPA specifically states that noting in the TPA affects Muslim personal
law.
The additional requirements in the TPA would not make a Hiba valid if the requirements
under Muslim law have not been met.

SOME UNIQUE CASES

Hiba in favour of juristic persons
It is possible. Both Shias and Sunnis accept this.

Hiba to non-Muslim
It is possible. There is no restriction.

Hiba to an unborn
This is not possible. Muslim law makes a clear restriction that Hiba to an unborn is void ab
initio.

Hiba to a child in womb

A child in womb is capable of being considered as a donee in Muslim law. The natural
guardian would have to take care of the property.
However, there is a restriction. Muslim law dictates that the child must be born within 6
months of making of such gift.

Hiba to two or more donees jointly

Generally, it is the responsibility of the donor to ensure that there is no ambiguity or
vagueness with respect to the transfer and enjoyment by donees. Earlier there were divergent
views – If the donor has not prescribed the division of property and enjoyment of donees,
then the Hiba must be considered invalid (transferred without specifying the shares of the
respective donees).
However, Courts have now held that such gifts, without the specification of division, if by a
subsequent arrangement by the donees with respect to enjoyment of property, it will give
validity to the gift.
Ideally, the donor must specify the division of enjoyment between multiple donees. However,
if the donees agree amongst themselves – it is valid.
Joint Holding/Ownership of property and Hiba
The donees must agree amongst themselves.

DONEE
Capacity (Mouhub)
The donee need not be a major or of sound mind. Even minors and lunatics can be donees.
Usufruct and Corpus of Property – Transfer
The possession of property must be transferred. The dominant possession must be with the
donee. However, distinction exists between the usufruct and the corpus.
If the donor states that he will retain possession of property during his lifetime – this is
invalid. however, if the donor says that for his lifetime or for some years he is entitled to
enjoyment of benefits or income from the usufruct – it is valid.

If donor reserved lifetime interest in gifted property

Maitheen Beevi Umma v. Varkey (1956)
The Privy Council, in Nawazish Ali Khan v. Ali Raza Khan (1948), referring to the
expression “life estate” stated: conceptions of ownership, familiar enough in English law, but
wholly alien to Muslim law.
What Muslim law does not recognize or insist upon is the distinction between the corpus of
the property itself (ayn) and the usufruct of the property.
[Refer to material for full discussion]

REVOCATION OF HIBA
Before delivery of possession
It is possible for the donor to revoke Hiba before delivery of possession to the donee without
any formalities. Since the gift is complete only after delivery of possession, in the absence of
an essential requirement, such Hiba cannot be considered as valid. This is a right given to the
donor. Such revocation before delivery of possession is recognised by both the Shia and
Sunni sects.
After delivery of possession
There are divergent views between Shias and Sunnis with respect to revocation after delivery
of possession.
After delivery of possession, the Hiba may be revoked only in two cases:
1. Mutual consent of parties: Both the donor and donee agree and the donee gives back
the possession.
2. Court: This arises when there is a dispute between donor and donee. The donor can
approach the civil court.
Sunni law states that after delivery of possession, if there exits a dispute between parties, the
donor can approach the Court for revocation.
Shia law, on the other hand, is slightly more liberal. It allows the donor to revoke the Hiba
after delivery of possession by way of declaration. However, it is not so liberal if the
exceptions have been considered.
Exceptions:
Sunni Law
Under Sunni law, if certain situations exist, even by mutual consent or Court decree, a Hiba
cannot be revoked. This applies in case of Hiba made by husband to wife or wife to husband.
Once possession of property has been delivered, such a Hiba is irrevocable.
If the donor and donee are related to each other and their relation falls within the prohibited
degrees in blood relations, Sunni law is clear that such Hibas are irrevocable.

Shia Law
It allows for revocation of Hiba by husband to wife or wife to husband. This is revocable
through a mere declaration.
Shia law states that revocation in cases of blood relations, irrespective of whether they are in
prohibited degrees or not, is not possible. Any gift made to a blood relative is irrevocable.

29.04.2020
Effect of death of donor or donee on revocation – applies to both sects
After the death of the donor, an heir of the donor does not have right to revoke. Similarly, the
donee’s legal heir does not have right to consent to revoke.

Change in the nature of Hiba property – applies to both sects

If the nature of property has changed its original value and it is difficult to identify, then the
Hiba is irrevocable.

Increase in value of property

When the value of the property has increased, then the donor cannot claim it back.
Property lost or destroyed – effect on revocation (applies to both sects)
Those cases where the property has been lost or destroyed, then Hiba cannot be revoked and
the property cannot be sought back.

CATEGORIES OF HIBA
There are several types of Hibas under Muslim law:
1. Simple Hiba – purest form of gift in the ordinary sense
2. Hiba-bil-Iwaz (Iwaz means return) – Gift with something in return
3. Hiba-shartul-bil-iwaz – Gift with a condition imposed that the donor needs something
In the two gifts other than the simple Hiba, owing to such consideration (something in
return/condition), they are irrevocable in both Shia and Sunni law.
In Hiba-bil-Iwaz, the consideration given by the donee is voluntary and the donor accepts the
consideration given in return.
In Hiba-shartul-bil-Iwaz, the consideration is not entirely voluntary – the donee is compelled
to give something in return.
Sadaqah is another form of gift which is irrevocable.

ARIAT (also spelled as Aariat, Ariat, Ariyar or Areeat)

Definitions
Fatwai Alamgiri – It is the giving of the usufruct without any return.
Mulla – To take and enjoy the usufruct of a thing.

Ariat does not involve a transfer of ownership, but only the usage and enjoyment of the
usufruct. Ariat involves the transfer of a right to usufruct or fruits or profit of property.

Validity
Formalities of declaration is the same. However, possession is not as important since there is
no transfer of ownership to the donee. The only thing to be proven is that based on the
declaration, the donee is enjoying benefits of the usufruct.
In contrast to a Hiba, where future Hiba is not permissible, a future Ariat is valid.
For instance, the donor can declare that the donee is entitled to the crops that will be grown
three months from now.
It is also possible that the crops get destroyed because of rains. This contingent form of Ariat
is also possible.
Moreover, Ariat is a temporary gift. Thus, the donor is free to make it a future gift, or a
contingent gift or even fix the tenure of the gift. The donor is empowered to restrict the use of
the usufruct by the donee.
Unlike a Hiba, possession is not crucial.

REVOCABILITY
Ariat can be revoked at the instance of the donor, at the donor’s pleasure. This applies to both
Shias and Sunnis.
But the benefits already enjoyed by the donee cannot be claimed by the donor.
The donor and donee cannot contract to make the Ariat irrevocable.

01.05.2020
Self-Study
Musha

Concept of trust: Post revocation, if the property is in the possession of the donee, then he
holds it as trustee (constructive trust).

SADAQAH/SADAQA
A gift of some property with the object of acquiring some religious or spiritual benefit or
merit.
Since it is given for spiritual and religious merit and benefit, it is irrevocable.
The donor must be a major.
The main distinction between the Hiba and Sadaqah is the object of the gift itself.
Sadaqah is done for the Almighty – to acquire some merit religiously. It is not done out of
llove and affection as in the case of Hiba.
In Sadaqah, the property is not dedicated to God, as in the case of Waqf. In Sadaqah, the
ownership of the property goes to a person for a religious purpose.
HIBA-BIL-IWAZ AND HIBA-BA-SHART-UL-IWAZ
Gift with a return or gift for a consideration.
Iwaz means return.
Simple Hiba is not conditional in nature.
The prevalence in India is different from how it conceptualized by the Islamic jurists.
What used to happen was the donee used to give something in return voluntarily. They started
terming such a Hiba to be Hiba-bil-iwaz. These used to be two separate gifts or hibas.
In India, the concept of Hiba-bil-iwaz is almost in the form of sale – because both the hibas
are taken as part of the same transaction (mischaracterization in India).
Both are forms of two mutual hibas – but India’s characterization is falsified.
Possession is not a key requirement in Hiba-bil-iwaz. However, in shartul iwaz, possession is
important.
The moment consideration has been accepted; it is irrevocable.
Completion: Reciprocity of consideration

MARZ-UL-MAUT
Death bed gift
Concept:
If a person, due to any illness, has an apprehension that he will die, makes a gift, such gift is
called Marz-ul-Maut (MM). There must be a proximate danger of death associated with the
illness the person is suffering from. There must be a strong apprehension of death in the mind
of such person. Other people must also be able to sense it – reasonably.
Paralysis is not considered as Marz in these cases. Mere suffering cannot be considered as
reason to make it MM.
Any major can make MM. Females can give MM.

04.05.2020
MM – Is It gift or will?
It is a hybrid of gift and will. It has to fulfill all the criteria for gift in a complete sense.
The gift is made under the pressure of the sense of the imminence of death.
MM operates as a will, i.e., after the death of the person. However, for this to occur, it must
have completed all the essentials of gift during the lifetime of person.

Essentials of Marz-ul-Maut
 - Illness
- Death
- Reasonable or genuine apprehension of death
- Declaration
- Delivery of possession

Courts have broadly interpreted the ambit of illness. For instance, if a person is on death bed
due to illness/accident, given that such injury gives a reasonable apprehension of death, it can
come under the ambit of Marz-ul-Maut.

Ideally, when disease continues for more than one year, it does amount to MM. (Durr-ul-
Mukhtar by Muhammad Ala-Ud-Din Haskafi (1070 Hijri)). This not an absolute universal
rule. For example, if it is Stage 4 Cancer and the person survives for nearly a year while
battling the disease, it could be considered MM.
Some degree of subjective apprehension of death – Tayabji
MM depends on the facts of each case.

Limitation and Extent of Marz-ul-Maut

Both Shia and Sunni accept the concept of MM. But since MM operates as a will, i.e., it takes
effect only post the death of the donor, there are differences in the two schools.
If the donor survives: Generally, if donor survives, the MM does not have validity, because
MM operates post death. However, if the donor has specifically ratified, then the gift may
still exist if he does not die.
The reason for this is simple – the intention with which the donor makes the gift is not of
making a transfer inter vivos – he does it with the apprehension that he is going to die. The
intention of the donor is to make a testamentary alienation.
A similar concept is also present in Roman law – donatio mortis causa
Section 191 Indian Succession Act 1925 – Gift made in contemplation of death
Similar concepts are existent in other laws. These are also forms of testamentary alienation.
They are no intended to occur when the person is alive.
However, the procedural aspects of these different types death bed gifts differ.

Considerations:
The Court will take various considerations while assessing validity of MM:
 - Whether the illness was the immediate cause of death, under the apprehension of
which he gave the gift?
- Whether the illness is such that it gives rise to an apprehension of death in the mind of
the person?
- Whether the illness is such that the person suffering from it has become incapable of
carrying out his daily pursuits and ordinary avocations? (not an absolute rule)
The 1/3rd rule, which is applicable to wills in Muslim law, applies to MM as well (as it
operates as a will). In case the property bequeathed is more than 1/3 rd, then consent must be
taken from all the legal heirs.
However, with respect to the 1/3rd rule, Shias and Sunnis have divergent views.
In favour of stranger: It is not invalid, but it is considered as a sin.
Both Shias and Sunnis say that in case of MM in favour of stranger, not more than 1/3rd of the
testator’s total property may be transferred.
No divergent view.
In favour of one legal heir:
Sunni law says that bequeathing property through will, only to one legal heir is invalid.
Shia law, however, permits bequeathing to only one legal heir, provided that it follows the
1/3rd rule. It applies the same standard of stranger in this case as well.
Divergent views exist.

06.05.2020
WILL UNDER MUSLIM LAW
Prior to the advent of Islam, there was no restriction with respect to the devolution of
property through will. However, with the advent of Islam, restrictions were introduced.
The 1/3rd rule has not been laid down in the Quran. It has been laid down under different
scriptures. A follower of the Prophet was very ill. The Prophet came to see him. He asked the
Prophet how he could devolve his property, since he had only one daughter. To him, the
Prophet said, do not give more than 1/3rd to a stranger or another. Give the rest to your legal
heir, your daughter. The 1/3rd rule, therefore, came from the advice given by the Prophet to
his follower. This is to ensure that the heirs do not become poor.

Will means the legal declaration of the intention of a person with respect to his property,
which he desires to take effect after his death. It is a unilateral document and takes effect after
the death of the person making it. It can be revoked or altered by the maker of it at any time
he is competent to dispose his property.
This is defined under the Indian Succession Act, 1925, under Section 2(h): “Will” mean 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.
Differences between Hiba and will
In case of will, it is not essential that the property belongs to the testator. It can come to him
at any time before his death. Unlike Hiba, where the property must be in existence,
testamentary property may come into existence later.
Hiba is immediate and transfer of possession must be immediate. In case of will, property
devolves only after the death of the testator.
Hiba becomes effective as soon as the requirements are fulfilled. Will becomes effective after
death of the testator.
In case of gift, there is no restriction placed on the right of the donor with respect to the ratio
of property he may devolve. However, in case of will, the 1/3rd rule will be applicable.

The will, Wasiyat, is a unilateral deed, but it involves two parties – the testator or legator,
Moosi, and the legatee, Wasilahoo.

COMPETENCY TO MAKE A WILL

- Majority (Shia/Sunni/ Indian Majority Act 1875 – Section 3)
Shia law recognized the will made by a 10-year-old. But in India, a minor cannot
make a will.
- Sound mind
Same rules as contract law – in the intervals when he is sound, he can make will.
- Free consent
- Suicide by testator
Divergent views by Shia and Sunni as the validity of will when the testator commits
suicide
Situation 1: Person takes poison, i.e., an act of committing suicide and writes will
Situation 2: Person has made a will, but after some time, they commit suicide
Shia law dictates that when it comes to bequeathing through will, the will is valid only
in Situation 2, where the will has already been made and subsequently at some point
in time that person commits suicide.
 In situation 1, Shia law considers such a will made after the taking of active step of
suicide is invalid.
Mazhar Hussain v. Hodha Bibi
In this case, the Court said that in Shia law, Situation 1 is invalid and Situation 2 is
valid.
Sunni law, however, takes a different approach. There is no specific provision under
the Hanafi law that dictates effect of suicide on will.
Amir Ali has stated that in both cases it would be invalid.

08.05.2020
LIMIT OF TESTAMENTARY POWER
Restriction with respect to person: Can give strangers up to 1/3rd
Restriction with respect to property: 1/3rd of property may be bequeathed by will
Any devolution exceeding these limits, the consent of legal heirs is required.
But there exist divergent views with respect to taking consent from heirs.

Shia law says that 1/3rd of the property is the complete right of the testator – no consent needs
to be taken. This applies even in those cases where the testator under Shia law seeks to give
1/3rd or a percentage of 1/3rd to legal heirs (no consent needs to be taken).
But the moment it exceeds 1/3rd, consent must be taken even in Shia law.

Sunni law states that 1/3rd of the property is the complete right of the testator to the extent of
a stranger. However, not even a small percentage of such 1/3 rd can be given to a legal heir
without the consent of all the remaining heirs (since one heir is getting more benefit in
comparison to other heirs). Thus, any bequeath on behalf of a legal heir even within the 1/3 rd
limit would be invalid without the consent of all remaining heirs.

When should consent be taken? – Divergent views

Sunni – Consent must be given after death; no value of consent given before the death of the
testator
[There are subsects as well]
Shia – Either before or after the death of the testator
Once consent is given by legal heirs, it is final and binding. It cannot be revoked later.
Debt on Testator
Debt needs to be discharged first.

How will is to be made?

ISA and the Registration Act make the registration of will optional. But probate is
importance. ISA states that will must be probated – the document becomes conclusive and it
is considered genuine. Section 213(2) of the ISA, 1925 states that the requirement of probate
does not apply to Mohammadeans (exception for probate as a mandatory requirement).

There is no specific format as to how the will is made – it can be made orally or in written
form. In either case, it must clearly indicate the intention of the testator. Intention is
important and conclusive.
If it is in writing, it is not even necessary that it must be signed.
There is no need for witnesses when will is in writing. However, when it is done orally, it is
preferred that there is witness to prove that there was an intention to make will.
Mohomed Atlaf v. Ahmed Buksh (1876)
The Privy Council said that when it comes to will, it can be oral or written, so long as
intention is clear.

Acceptance by legatee
Acceptance can be actual or constructive/ express or implied (by taking possession, paying
dues, etc.). Under Sunni law, acceptance has to be given after death of the testator.
Acceptance during the lifetime of the testator has no value in Sunni law.
Under Shia law, acceptance may be given during the lifetime of the testator as well. If it is
rejected during the lifetime of the testator, then the legatee may, after the death of the testator
accept it. But what is done after death is the final and binding acceptance/rejection.

11.05.2020
Will in favour of Apostate
Will can be made in favour of non-Muslim as well.
Under traditional Muslim law, a Muslim could not bequeath to an apostate. Now, by virtue of
the Caste Disabilities Removal Act of 1850, a Muslim can make a will in favour of an
apostate.
A Muslim who has married under the SMA
Sayeeda Shaku Khan v. Sajid Phaniband (2006) – Bombay HC
A Muslim married under the SMA is allowed to bequeath his/her entire property. The 1/3 rd
rule does not apply to Muslims who have married under the SMA. However, all the rigors of
the ISA will be made applicable to the devolution (i.e. will has to be probated, etc.).
13.05.2020
SHUFAA (PRE-EMPTION)
Shufaa is a right for Muslims.
Under this right, the owner of an immovable property is entitled to repurchase an adjacent
property which has been sold to someone else.
Shufaa actually means conjunction – in the context of an adjacent property. It gives a right
for a person to exclude a stranger from purchasing an adjacent property.
In simple words, Shufaa is the right of repurchase given to a Muslim who may use this right
of substitution to dislodge a person from entering into his neighborhood.

Prophet: A neighbor has a right, superior to that of a stranger, in the lands adjacent to his
own; and the neighbor of a house has a superior right to that house and the neighbor of the
lands has superior rights to those lands, and if he be absent, the seller must wait his return.

Mulla: The right of Shufaa or pre-emption, is a right which the owner of an immovable
property possesses to acquire by purchase another immovable property which has been sold
to another person.

Nature of right of pre-emptor

Primary right: First offer to be made to the pre-emptor (this right exists before the sale takes
place)
Secondary right: This is a remedial right that arises after a valid sale has taken place. This
right exists against the purchaser of the said property.