National Law School of India University

FAMILY LAW II

LIFE INTEREST AND THE RULE

AGAINST PERPETUITY

SUBMITTED BY:
ARJUN SINGAL
I.D. NO. 2366
II YEAR B.A., LL.B. (HONS.)

DATE OF SUBMISSION –1rd January, 2019

TABLE OF CONTENTS

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Contents
TABLE OF AUTHORITIES.....................................................................................................4

CASES...................................................................................................................................4

A. English Jurisprudence..................................................................................................4

B. Indian Jurisprudence....................................................................................................4

LEGISLATIONS...................................................................................................................4

INTRODUCTION.....................................................................................................................6

THE RULE AGAINST PERPETUITY.....................................................................................7

HISTORICAL DEVELOPMENT.........................................................................................7

THE MODERN RULE AGAINST PERPETUITY...............................................................7

IMPORTANCE......................................................................................................................8

DRAWBACKS AND CRITICISMS.....................................................................................9

EXCEPTIONS.....................................................................................................................10

WAQFS AND TRANSFER OF PROPERTY BY HINDUS, CHRISTIANS AND PARSIS.10

WAQFS IN MOHAMADDEN LAW..................................................................................10

PROVISIONS IN THE WAQF AND RULES OF INHERITANCE IN MUSLIM LAW..11

FAMILY WAQFS...............................................................................................................12

PROVISIONS FOR TRANSFER OF PROPERTY FOR HINDUS, CHRISTIANS AND

PARSIS................................................................................................................................12

DIFFERENTIAL TREATMENT: IS IT JUSTIFIED?........................................................12

BIBLIOGRAPHY....................................................................................................................16

BOOKS................................................................................................................................16

JOURNALS AND ARTICLES...........................................................................................16

GOVERNMENT REPORTS...............................................................................................17

NEWSPAPERS....................................................................................................................17

WEBSITES..........................................................................................................................17

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TABLE OF AUTHORITIES
CASES
A. English Jurisprudence
1. Duke of Norkfolk (1682) 3 Ch Cas 1; 22 ER 931
2. Stephens v. Stephens (1736) Cases Temp. Talbot 228; 25 ER 751
3. Whitby v. Mitchell (1890) 44 Ch. D. 85

B. Indian Jurisprudence
1. Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer AIR 1953 SC 7
2. Cowasji v. Rustomji (1896) 20 Bom 511
3. Girish Dutt v. Data Din AIR 1934 Oudh 35
4. Soundara Rajan v. Natarajan (1925) 48 Mad 906
5. Pan Kuer v. Ram Narain AIR 1929 Pat 353
6. Ram Newaz v. Nankoo AIR 1926 All 283
7. Padmanabha v. Sitarama AIR 1928 Mad 28
8. K. Naina v. A.M. Vasudevan Chettiar (2010) 7 SCC 603
9. Shuk Lai Poddar v. Bikani Mai (1893) ILR 20 Cal 116
10. Mughurool Huq v. Puhraj Ditarey Mohapuattur 13 WR 235 (1870)
11. Shayara Banno v. Union of India Writ Petition (Civil) No. 118/2016
12. Jamsed v. Soonabai (1911) 33 Bom 122
13. Prafulla v. Jogendra Nath (1905) 9 Cal WN 528
14. Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945
15. Biswanath v. Sri Thakur Radha Ballabhji AIR 1967 SC 1044

LEGISLATIONS
1. The Constitution (First Amendment) Act 1951
2. The Constitution (Forty-fourth Amendment) Act 1978
3. Land Acquisition, Rehabilitation and Resettlement Act 2013
4. Transfer of Property Act 1882
5. Indian Succession Act 1925
6. Mussalman Wakf Validating Act 1913

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7. Wakf Act 1954

8. Hindu Succession Act 1956
9. Civil Procedure Code 1908
10. Charitable And Religious Trusts Act 1920
11.

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INTRODUCTION
The right to property has always been a controversial issue in India. Reduced from a
fundamental right to a legal right in 1978 1, there has always been a state interest in private
property ranging from the introduction of the Ninth Schedule which exempted land reform
laws from the scope of judicial review in 19512 to the 2015 ordinance on land acquisition.3
The central focus of the debate on these laws has been on the nature of the right to property –
whether it is an absolute right of the owner to decide how the property is to be controlled as
per principles of classic liberalism, or if all property must generate some benefit to the entire
public as per principles of socialism and therefore restrictions on enjoyment of property by
the State is justified.4
The owner of the property enjoys the right of alienation i.e. freedom to sell, gift or bequeath
their property, which also extends to distribution of property after death of the owner, usually
by execution of a will.5 The property need not be transferred to a living person only, but an
interest in an unborn person may also be made. 6 However, such right is not absolute. In the
historic Duke of Norkfolk7 case and later in Stephens v. Stephens8, the English Court laid
down the rule against perpetuity which made transfers of property void if the interest is not
vested to the ultimate beneficiary within a certain period of time.
In the Indian context, the rule against perpetuity is predominantly covered in the Transfer of
Property Act 18829 and the Indian Succession Act 1925.10
This paper is divided into two parts – through the first part the researcher seeks to explain the
rule against perpetuity in detail, examining its historical development, its modern form,
importance, drawbacks and exceptions to the rule. The second part shall deal with family
waqfs in particular and assess whether the differential treatment of the rule to Muslims and

1
The Constitution (Forty-fourth Amendment) Act 1978
2
The Constitution (First Amendment) Act 1951
3
Land Acquisition, Rehabilitation and Resettlement Act 2013
4
Tibor Machan, ‘The Right to Private Property’, Internet Encyclopedia of Philosophy
<https://www.iep.utm.edu/property/> accessed 25 November 2018
5
Mumtaj & Sushila. ‘Law of Testamentary Succession in India’ [2014] 5(7) CASIRJ 91, 92
6
Transfer of Property Act 1882, s 13
7
(1682) 3 Ch Cas 1; 22 ER 931
8
(1736) Cases Temp. Talbot 228; 25 ER 751
9
Transfer of Property Act 1882, s 14
10
Indian Succession Act 1925, s 113 and s 114

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testators of other faiths is justified or not. Finally, the paper shall conclude with a look at
possible alternatives to address such differential treatment.

THE RULE AGAINST PERPETUITY

HISTORICAL DEVELOPMENT
In feudal England, the nobles and feudal lords sought to retain their property within their
family for as long as possible because the area of land owned determined their status, position
in military, appointment in public offices etc.11
Scared that after their death or after their daughter’s marriage the property would be
squandered away, the nobles executed wills which created an interest for their grandchildren
which was upheld as a valid restriction.12 An alternative method was to create private trusts
which would lead to the property being tied up for many generations and which inspired the
creation of spendthrift trusts in American jurisprudence in which a special clause in the will
restricts the use of the trust for the specific purpose.13
The earliest variant of the rule against perpetuity was given in Whitby v. Mitchell14, where the
creation of a chain of successive life interests was struck down. In later judgements, the rule
was expanded to have two important elements – i) the property must be vested initially to a
living person; and ii) the interest must vest in the ultimate beneficiary before a time period of
remaining life of living person and years until they reach majority is completed.15
On this basis, the modern rule against perpetuity was developed and must now be understood
in order to understand its importance.

THE MODERN RULE AGAINST PERPETUITY

The modern rule against perpetuity is given in Sections 13 and 14 of the Transfer of Property
Act 1882 which are almost identical to Sections 113 and 114 of the Indian Succession Act
1925 respectively. The former is concerned with what kind of property 16 and in what

11
William Searle Holdsworth, A History of English Law vol 3 (2nd edn, Methuen 1922) 73
12
The Law Reform Commission, The Rule Against Perpetuity And Cognate Rules (LRC 62 – 2000) para 5.36
13
William H. Wicker, ‘Spendthrift Trusts’ [1974] 10 Gonz. L. Rev. 1
14
(1890) 44 Ch. D. 85
15
See Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer AIR 1953 SC 7
16
As per Cowasji v. Rustomji (1896) 20 Bom 511: the section is applicable to both movable and immovable
property.

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mechanism can it be transferred to an unborn person while the latter is concerned with the
maximum period in which the property must be vested to an unborn person.17
There are two necessary conditions which must be fulfilled for a transfer of property to an
unborn person to be valid:
i) The transfer must be of entire remaining interest of the transferor in the property
and not a limited interest. In Girish Dutt v. Data Din18, the bequest was struck
down because it only transferred a limited interest. This means a transfer is valid
only if it bestows full ownership for life on the ultimate beneficiary.
ii) The vesting of interest must not take place after the life in being and minority of
the unborn person.19 In India, the minority ends at 18 years, as opposed to the age
of 21 years fixed in other jurisdictions. Accordingly, in Soundara Rajan v.
Natarajan20, the bequest was struck down since it would vest when the ultimate
beneficiary would become 21 years of age. In this context, life in being refers to
remaining life of the person who is the initial beneficiary, after whose death the
interest must vest with the unborn person.21

IMPORTANCE
The rule against perpetuity was developed for two reasons: i) the opposition to the ‘dead-
hand control’; and ii) removal of property from commerce. Both of these must be weighed
against the criticisms.
i) The maxim “cajus est dare, ejus est disponere” (he who has the right to give has the right to
dispose it as he pleases)22 is the underlying principle behind allowing a person to make a will.
However, the enjoyment of this right leads to a ‘dead-hand control’ i.e. an individual
directing how their property is to be used after their death.23 Now, in order to give effect to
the testator’s will, the right of alienation of the new owner is infringed upon. As per the
opinion of jurists, the right to alienation should not lead to its own destruction i.e. the

17
DF Mulla, The Transfer of Property Act (Solil Paul ed, 9th edn, Butterworths 2000) 175
18
AIR 1934 Oudh 35
19
<http://www.mondaq.com/india/x/366482/wills+intestacy+estate+planning/A+Brief+WriteUp+On+Transfer+
Of+Property+For+The+Benefit+Of> accessed 25 November 2018
20
(1925) 48 Mad 906
21
‘Understanding the Measuring Life in the Rule Against Perpetuities’ {1974} 2 Washington University Law
Review 265, 281
22
<https://definitions.uslegal.com/c/cujus-est-dare-ejus-est-disponere/> accessed 25 November 2018
23
Ronald Chester, From Here To Eternity? Property And The Dead Hand (Vandeplas 2007).

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testator’s right to alienate doesn’t extend to restricting the right of the new owner. 24 This has
severe consequences on the ability of the new owner to respond to changes in their
environment which might have improved their living conditions or wealth etc.25
ii) The removal of property from the market is an important justification of the rule. Perpetual
holding of property leads to a massive loss of revenue to the State as lower rates of taxes are
paid on a property held as compared to tax paid when a property is sold in the market. 26 In
addition, the property may remain idle when it could be used for more productive purposes.
Therefore, the rule against perpetuity is aimed at securing both the interest of the individual
and of the public.
Now, the drawbacks of the rule against perpetuity must be discussed in order to understand
why it has been abolished in certain foreign jurisdictions.

DRAWBACKS AND CRITICISMS

Despite its importance, the rule against perpetuity suffers from major drawbacks: i)
complexity; and ii) disruption of innocent gifts.
i) The rule against perpetuity is a complex doctrine. In practice, numerous wills have violated
this rule due to various reasons – the difficulty in assessing what can be considered a ‘life in
being’27 and misinterpretation of intention of the testator leading to incorrect drafting by
lawyers.28
ii) Since the rule against perpetuity is only concerned with occurrence of possible events and
not actual events29, transfers of property which are actually valid are struck down. In Ram
Newaz v. Nankoo30, the transfer of land was held to be void even though it was operated in
the period allowed since there was a possibility that the transfer would not take place for
around 100 years. Although this has led to the adoption of the ‘wait-and-see’ approach by
Courts in which the occurrence of actual events is relied upon in order to save transfers which
24
Oliver S. Rundell, ‘The Suspension of the Absolute Power of Alienation’ [1921] 19(3) Michigan Law Review
235, 238
25
Laurence M. Jones, ‘Reforming the Law – the Rule Against Perpetuities [1962] 22(4) Md. L. Rev. 269, 270
26
Tanushree Venkataraman, ‘40% rise in property tax rates soon, Mumbaikars start feeling the pinch’ The
Indian Express (Mumbai, 30 January 2015) <https://indianexpress.com/article/cities/mumbai/40-rise-in-
property-tax-rates-soon-mumbaikars-start-feeling-the-pinch/> accessed 25 November 2018; Pritam P. Hans,
‘Ensuring A Softer Grip’, Business Today (November 2012)
<https://www.businesstoday.in/moneytoday/tax/property-selling-profit-lowering-tax-
liability/story/189407.html> accessed 25 November 2018
27
Lawrence W. Waggoner, ‘Perpetuity Reform’ [1983] 81(8) Michigan Law Review 1718, 1721
28
W.B. Leach, ‘Perpetuities in a Nutshell’ [1938] 51(4) Harv. L. Rev. 638, 643
29
As given in Pan Kuer v. Ram Narain AIR 1929 Pat 353
30
AIR 1926 All 283

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would otherwise violate the rule against perpetuity 31, this approach is subject to the problem
of determination of the perpetuity period.32

EXCEPTIONS
The rule against perpetuity is not absolute – it doesn’t apply to agreements which do not
create an interest in property such as a covenant for redemption of mortgage 33 or the right to
pre-emption.34 Importantly, a transfer of property to for ‘benefit of public’ is exempted under
Sec. 18 of the Transfer of Property Act 1882 which includes gifts made to charitable and
religious trusts. Bequests made by Hindus, Muslims, and Parsis for advancement of their
respective religions are all exempted.35

WAQFS AND TRANSFER OF PROPERTY BY HINDUS, CHRISTIANS

AND PARSIS
One of the exceptions to the rule against perpetuity is a waqf, which is a permanent
dedication by a person, who professes Islam of any movable or immovable property for any
purpose which is recognized as pious, religious or charitable under Muslim law36, and in Shuk
Lai Poddar v. Bikani Mai37, it was held that the words ‘charitable purpose’ must not be
interpreted restrictively but understood as per Muslim literature.
It is important to understand the concept of waqfs since no other personal law allows for
perpetual holding of property for benefit of one’s family. Accordingly, it must be assessed
whether such differential treatment is justified or not, and possible solutions must be looked
at.

WAQFS IN MOHAMADDEN LAW

The creation of a valid waqf requires fulfillment of three conditions38:

31
Ronald Maudsley, ‘Perpetuities: Reforming the Common-Law Rule How to Wait and See’ [1975] 60(3)
Cornell L. Rev. 355, 362
32
Lawrence W. Waggoner, ‘Perpetuities: A Perspective on Wait-and-See’ [1985] Colum. L. Rev. 1714, 1724
33
See Padmanabha v. Sitarama AIR 1928 Mad 28
34
See K. Naina v. A.M. Vasudevan Chettiar (2010) 7 SCC 603
35
As given in Jamsed v. Soonabai (1911) 33 Bom 122 ; Prafulla v. Jogendra Nath (1905) 9 Cal WN 528 ;
Mussalman Wakf Validating 1913
36
Wakf Act 1954, s 3(l)
37
(1893) ILR 20 Cal 116

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i) The property must be dedicated permanently by the waqif (the person who makes
the dedication) for any purpose recognized as pious, religious or charitable by
Muslim law. A waqf made for a limited duration or with a condition attached to it
is invalid. In Mughurool Huq v. Puhraj Ditarey Mohapuattur 39, it was held that
the primary purpose of any waqf must be chartiable, any benefits to the waqif’s
family must be secondary or derivative of the primary purpose.
ii) The waqif must be an adult who is mentally sound and capable of transferring
their property.
iii) The subject matter of the waqf must be owned by the waqif when waqf is made
i.e. whether or not the waqif has a legal right to transfer the ownership of the
property or not must be considered.
As soon as a property is to be allocated in a waqf, there are three restrictions placed on it
– i) the property cannot be revoked by the waqif; ii) the property continues to be held in
perpetuity; and iii) the property cannot be alienated as Allah is deemed to be its owner.40

PROVISIONS IN THE WAQF AND RULES OF INHERITANCE IN MUSLIM LAW

The law of making a will (wasiyyat) in Islamic law restricts the individual from bequeathing
more than one-third of their estate and prohibits restrictions on use of property after death. It
is only with the consent of the legal heirs that a wassiyat may ignore these limitations. 41
Further, the rules of inheritance are strict and lay down exactly how much share is each heir
entitled to claim.42 However, the creation of a waqf allows circumvention of these rules due
to existence of provisions allowed by the Hanafi school43:
i) The provisions of ‘ziyadah’ (increasing) and ‘nuqsan’ (decreasing) allow the
increase or decrease in the shares of beneficiaries in order to provide for a

38
Mohammad Abdullah, ‘Comparing the effectiveness of Waqf and English charitable trusts’
<https://www.researchgate.net/publication/285409807_Comparing_the_effectiveness_of_Waqf_and_English_c
haritable_trusts1> accessed 25 November 2018
39
13 WR 235 (1870)
40
Paul Stibbard et al, ‘Understanding the waqf in the world of the trust’ [2012] 18(8) Trusts & Trustees 785,
789
41
Aharon Layish, ‘The Family Waqf and the Shari Law of Succession in Modern Times’ [1997] 4(3) Islamic
Law and Society 352, 354
42
<https://www.al-islam.org/a-summary-of-rulings-makarim-shirazi/rules-inheritance#miscellaneous-issues-
inheritance> accessed 25 November 2018
43
Mazen Eikhatib, ‘Waqf, its Rules and Applications in Islamic Finance’
<https://www.researchgate.net/publication/299207143_Waqf_its_Rules_and_Applications_in_Islamic_Finance
> accessed 25 November 2018

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particular beneficiary who requires more funds but would be entitled to less
according to the inheritance rules.
ii) The provisions of ‘idhkal’ (addition) and ‘ikhraj’ (removal) allow for the addition
or removal of a beneficiary in order to provide for a particular beneficiary who is
more urgent need for funds.
iii) The provisions of ‘ita’ (granting) and ‘hirman’ (depriving) allow for grant of
either a part of the entire waqf to a beneficiary for a specified time period and
deprive a beneficiary from a part or the entire waqf to accommodate any
emergency.
iv) The provisions of ‘taghyir’ (replacement) and ‘tabdil’ (conversion) allow for the
change in use of the waqf revenue and change in the purpose for which the waqf
was created respectively.
v) The provisions of ‘istibdal’ (substitution) and ‘ibdal’ (exchange) allow for sale of
a non-profitable waqf property to acquire a profitable waqf property.

FAMILY WAQFS
A unique feature of waqfs is that they can be made for the benefit of the family of the waqif,
known as ‘waqf al-aulad’.44 This provides a tremendous advantage to Muslims, as a waqf is
exempt from the rule against perpetuity which means that they can continue to hold property
indefinitely within the family. Further, given that the flexibility allowed in the provisions of
the waqf essentially allow the waqif to circumvent the rules of inheritance and instead divide
their property as they wish and not be worried about such transfer being declared void.

PROVISIONS FOR TRANSFER OF PROPERTY FOR HINDUS, CHRISTIANS AND

PARSIS
Testamentary succession for other religious communities such as Hindus, Christians and
Parsis are governed under two prominent legislations – The Hindu Succession Act 1956 and
the Indian Succession Act 1925.
Sec. 30(1) of the Hindu Succession Act 1956 and Sec. 58(2) of the Indian Succession Act
1925 causes any bequest of property by the will of the testator to be subject to the rule against
perpetuity given in Sec. 14 of the Transfer of Property Act 1882. 45 However, testamentary

44
Danial Latifi, ‘Muslim Law’ [1979] Annual Survey of Indian Law 143, 146
45
Hindu Succession Act 1956, s 30(1) and Indian Succession Act 1925, s 58(1)

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succession to any property owned by Muslims is exempted from the purview of this
legislation and accordingly, it is governed by Muslim law which protects it from violating the
rule against perpetuity.46

DIFFERENTIAL TREATMENT: IS IT JUSTIFIED?

It is clear that there is differential treatment of transfer of property based on religion of the
testator. It is necessary to consider whether or not such differential treatment is justified and
if it isn’t, should it be held violative of fundamental rights.
It is crucial to note that there are similarities and dissimilarities between differential treatment
in this case and differential treatment arising out of personal laws in other cases. For instance,
consider the practice of triple talaq being struck down in Shayara Banno v. Union of India 47
or divorced Muslim women getting the right to claim maintenance in Mohd. Ahmed Khan v.
Shah Bano Begum48. On comparison with the special treatment of waqfs, we find that both
cases exhibit:
i) An unequal advantage given to a certain section of society/religious community
ii) Significant monetary consequences for those who possess this unequal advantage

However, there are significant differences in both cases also:

i) The practice of triple talaq and not paying maintenance to divorced wives faced
opposition from the Muslim community itself49, but the creation of family waqfs
does not. In fact, family waqfs are seen as crucial to the community for serving
the dual purpose of ensuring the family’s well-being as well as social charity.50
ii) The practice of triple talaq and not paying maintenance to divorced women had an
element of protection of women51, family waqfs do not cause any such harm to the
members of the community.

46
Indian Succession Act 1925, s 58(2)
47
Writ Petition (Civil) No. 118/2016
48
AIR 1985 SC 945
49
Saif Khalid, ‘What is ‘triple talaq’ or instant divorce?’ Al Jazeera (22 August 2017)
<https://www.aljazeera.com/indepth/features/2017/05/tripple-talaq-triple-divorce-170511160557346.html>
accessed 25 November 2018
50
Mochammad Arif Budiman, ‘The Significance of Waqf for Economic Development’ <https://mpra.ub.uni-
muenchen.de/81144/1/MPRA_paper_81144.pdf> accessed 25 November 2018
51
Balaji Srinivasan, ‘Why triple talaq Ordinance: For law without justice is wound without cure’ The Indian
Express (New Delhi, 24 September 2018) <https://indianexpress.com/article/explained/why-triple-talaq-
ordinance-for-law-without-justice-is-wound-without-cure-5371018/> accessed 25 November 2018

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iii) The economic consequences of holding these practices as void has an impact only
on wealth of individuals. However, if a family waqf is held to be void, it can have
significant consequences on the entire economy as property can no longer be tied
up perpetually with a single family. This property can be utilized for more
productive economic purposes. As per a report by the Rajindar Sachar Committee,
there are around sixty lakh acres of land held as waqf property with a net value of
Rs. 60 billion.52 Even if a small percentage of this property held as family waqfs,
bringing that land into the market may have a positive impact on the economy.

Keeping these similarities and differences in mind, there are three possible ways of
addressing this differential treatment:
(A) Bringing family waqfs under the scope of the rule against perpetuity
 It must be noted that the rules of making a will in Muslim law are strict as compared
to the freedom given in making wills to testators belonging to other religions and the
waqf is necessary to bypass those restrictions and place the waqif on an equal footing
with testators of other religions.

(B) Allowing testators of other religions to perpetually tie-up their property for benefit of
their family
 While this option will ensure equality, it is a bad decision for economic policy.
Currently, Muslims form a small percentage of population (13%) compared to the
majority of Hindus (80%).53 This means that allowing testators of other religions to
perpetually tie-up their property for the benefit of their family will remove a
significant amount of property from the market which means that tax revenue
received by the government will be drastically reduced.

(C) Amend/abolish the rule against perpetuity

 Similar to broadening the exemptions to the rule against perpetuity, abolishing it has
severe economic consequences since it all property-holder can perpetually hold their
property for the benefit of their family.

52
Prime Minister’s High Level Committee, Social, Economic, and Educational Status of the Muslim
Community of India (2006) 217
53
<http://worldpopulationreview.com/countries/india-population/> accessed 25 November 2018

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 Amending the rule against perpetuity is necessary to simplify the rule and prevent
disruption of innocent gifts. However, reducing or increasing its scope will definitely
cause economic regression or protests from communities. In this light, viable
alternatives must be found.

CONCLUSION
It is clear that the rule against perpetuity remains as a necessary safeguard for economic
development and thus should not be abolished. Exceptions such as family waqfs do get
exempted, but instead of addressing this issue by changing the rule against perpetuity and
potentially opening up ways for perpetual tying-up of property, there can be other measures
used: the Mussalman Wakf Validating Act 1913 can be amended to have a stricter definition
of ‘ultimate benefit expressly or impliedly reserved for the poor’54 in order to make it difficult
for the waqif to perpetually tie-up their property by creating a family waqf under the Act. 55
Such an amendment would make it easier to extinguish any benefit in creating family waqfs
solely for perpetual holding as the entire property can be sold off. 56 Moreover, the petition
can be easily filed under Section 3 of the Charitable and Religious Trusts Act 1920 which
allows the Court to direct an inquiry against the same. 57 As all the requirements given
Biswanath v. Sri Thakur Radha Ballabhji58 are fulfilled (there is creation of a trust of
charitable/religious nature for benefit of the public, there is a breach of trust or direction of
court and the relief claimed is given in Sec. 92 of the Civil Procedure Code), a the incentive
of creating a family waqf for perpetual holding can be reduced.
Another possible solution could be to create economic incentives which encourage waqifs not
to create family trusts. Such a policy has worked before, when the ‘Beti Bachao Beti Padhao
Yojana’ programme was launched in order to encourage people in rural areas to educate their
daughters and not prioritise marriage (due to dowry) since the government would fund the
education.59 Similarly, a policy in which the economic support or renumeration is given to a
waqif who doesn’t create a family waqf can be drafted.

54
Wakf Validating Act 1913, s 3
55
Wakf Validating Act 1913, s 3(a)
56
Civil Procedure Code 1908, s 92(f)
57
Charitable And Religious Trusts Act 1920, s 5
58
AIR 1967 SC 1044
59
<http://www.wcd.nic.in/bbbp-schemes> accessed 25 November 2018

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Finally, taxation of property held perpetually due to a family waqf can be changed from a
fixed rate to a progressive rate. In addition to considering the monetary value, the number of
years for which the property is held in excess of the time period which would otherwise
violate the rule against perpetuity if the testator belonged to a different religion should be an
important factor.
Therefore, it can be concluded that the rule against perpetuity is necessary given the harm
which can be caused to our economy if it were to be abolished.

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BIBLIOGRAPHY
BOOKS
1. DF Mulla, The Transfer of Property Act (Solil Paul ed, 9th edn, Butterworths 2000)
175
2. Ronald Chester, From Here To Eternity? Property And The Dead Hand (Vandeplas
2007).
3. William Searle Holdsworth, A History of English Law vol 3 (2nd edn, Methuen 1922)
73

JOURNALS AND ARTICLES

1. ‘Understanding the Measuring Life in the Rule Against Perpetuities’ {1974} 2
Washington University Law Review 265, 281
2. Aharon Layish, ‘The Family Waqf and the Shari Law of Succession in Modern
Times’ [1997] 4(3) Islamic Law and Society 352, 354
3. Danial Latifi, ‘Muslim Law’ [1979] Annual Survey of Indian Law 143, 146
4. Laurence M. Jones, ‘Reforming the Law – the Rule Against Perpetuities [1962] 22(4)
Md. L. Rev. 269, 270
5. Lawrence W. Waggoner, ‘Perpetuities: A Perspective on Wait-and-See’ [1985]
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6. Lawrence W. Waggoner, ‘Perpetuity Reform’ [1983] 81(8) Michigan Law Review
1718, 1721
7. Mazen Eikhatib, ‘Waqf, its Rules and Applications in Islamic Finance’
<https://www.researchgate.net/publication/299207143_Waqf_its_Rules_and_Applica
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November 2018
9. Mohammad Abdullah, ‘Comparing the effectiveness of Waqf and English charitable
trusts’
<https://www.researchgate.net/publication/285409807_Comparing_the_effectiveness
_of_Waqf_and_English_charitable_trusts1> accessed 25 November 2018

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10. Mumtaj & Sushila. ‘Law of Testamentary Succession in India’ [2014] 5(7) CASIRJ
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GOVERNMENT REPORTS
1. Prime Minister’s High Level Committee, Social, Economic, and Educational Status
of the Muslim Community of India (2006) 217
2. The Law Reform Commission, The Rule Against Perpetuity And Cognate Rules (LRC
62 – 2000) para 5.36

NEWSPAPERS
1. Balaji Srinivasan, ‘Why triple talaq Ordinance: For law without justice is wound
without cure’ The Indian Express (New Delhi, 24 September 2018)
<https://indianexpress.com/article/explained/why-triple-talaq-ordinance-for-law-
without-justice-is-wound-without-cure-5371018/> accessed 25 November 2018
2. Pritam P. Hans, ‘Ensuring A Softer Grip’, Business Today (November 2012)
<https://www.businesstoday.in/moneytoday/tax/property-selling-profit-lowering-tax-
liability/story/189407.html> accessed 25 November 2018
3. Saif Khalid, ‘What is ‘triple talaq’ or instant divorce?’ Al Jazeera (22 August 2017)
<https://www.aljazeera.com/indepth/features/2017/05/tripple-talaq-triple-divorce-
170511160557346.html> accessed 25 November 2018
4. Tanushree Venkataraman, ‘40% rise in property tax rates soon, Mumbaikars start
feeling the pinch’ The Indian Express (Mumbai, 30 January 2015)
<https://indianexpress.com/article/cities/mumbai/40-rise-in-property-tax-rates-soon-
mumbaikars-start-feeling-the-pinch/> accessed 25 November 2018

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WEBSITES
1. <http://worldpopulationreview.com/countries/india-population/> accessed 25
November 2018
2. <http://www.mondaq.com/india/x/366482/wills+intestacy+estate+planning/A+Brief+
WriteUp+On+Transfer+Of+Property+For+The+Benefit+Of> accessed 25 November
2018
3. <http://www.wcd.nic.in/bbbp-schemes> accessed 25 November 2018
4. <https://definitions.uslegal.com/c/cujus-est-dare-ejus-est-disponere/> accessed 25
November 2018
5. <https://www.al-islam.org/a-summary-of-rulings-makarim-shirazi/rules-
inheritance#miscellaneous-issues-inheritance> accessed 25 November 2018
6. Tibor Machan, ‘The Right to Private Property’, Internet Encyclopedia of Philosophy
<https://www.iep.utm.edu/property/> accessed 25 November 2018<https://www.al-
islam.org/a-summary-of-rulings-makarim-shirazi/rules-inheritance#miscellaneous-
issues-inheritance> accessed 25 November 2018

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