Suggestion to Mr.Sethi and which Deed prefer to draft for Mr.

Sethi
(Assignment No. 1)

Course Legal Drafting (II)

Submitted to Ma’am Hina Qayum

Submitted by Fehmida kanwal

(2017-LLB-05)

Semester: LLB-IV (2017-2022)

Spring 2020

Date of submission April 20, 2021

Department of Law
Fatima Jinnah Women University, Rawalpindi
Contents
Abstract .......................................................................................................................................................... i
1. Introduction .......................................................................................................................................... 1
2. Adoption of a Child in Islamic Law ........................................................................................................ 1
3. Adoption in Pakistan ............................................................................................................................. 3
4. Right of adopted child in inheritance.................................................................................................... 4
Suggestion to Mr. sethi ................................................................................................................................. 4
5. What is Gift? ......................................................................................................................................... 5
6. Comparison between Inheritance, Gift and Will .................................................................................. 5
6.1 Inheritance .................................................................................................................................... 5
6.2 Will ...................................................................................................................................................... 6
6.3 Gift....................................................................................................................................................... 6
7. GIFT UNDER TRANSFER OF PROPERTY ACT 1882 ................................................................................. 6
8. Case laws ............................................................................................................................................... 6
8.1 Sher Afzal v Shamim Firdaus ......................................................................................................... 6
8.2 Abdus Salam v. A. D. J. Jhang ........................................................................................................ 7
8.3 Muhammad Aslam v. Shazia Bano ................................................................................................ 7
9. Conclusion ............................................................................................................................................. 7
10. GIFT DEED ......................................................................................................................................... 8
11. Bibliography .................................................................................................................................... 11
Abstract

Despite the fact that Islamic and Pakistani law forbid adoption, it is still done in Pakistan.

Paternity cannot be changed under Islamic law, and the identification of biological parents is

emphasized. This article looks at the laws of Islamic adoption, as well as the differences between

validity by acknowledgement and adoption, as well as fosterage and adoption. This will be

accompanied by a discussion of Pakistani law as well as applicable provisions of the 1989

Convention on the Rights of the Child. This article argues that absolute prohibition does not

imply a lack of adaptation. Adoption is legal in Pakistan. But the adopted parents have to follow

some rules regarding the transfer to property.

i
Suggestion to Mr.Sethi and which Deed prefer to draft for Mr.Sethi

1. Introduction
The laws governing child adoption in Islamic and Pakistani law, as well as the issues that arise

when these rules are put into practice. Since Muslims in Pakistan and elsewhere practice

adoption, there is a need to provide an alternative for worried parents and children. A

comparison of Islamic and Pakistani law is conducted to demonstrate how Islamic law has

affected legislators’ approaches. The legal establishment of a parent-child relationship, with all

the obligations and rights that entails, between the child and adults who are not his or her

biological parents, with the concomitant permanent severing of all bonds and relationships with

the biological parent according to the definition of adoption.1

2. Adoption of a Child in Islamic Law

In pre-Islamic Arabia adoption was a well-established institution. Arabs used to treat their

adopted sons as natural sons and prohibition of marriage was created among the parties

involved2. The status of adoption in Islamic law is derived from the following verses of the

Qur’ān:

The distinction between real son and adopted son is described as under: ‘Allah has not made for

any man two hearts in his (one) body: nor has he made your wives whom ye divorce by Zihār3

your mothers: nor has he made your adopted sons your sons. Such is (only) your (manner of)

speech by your mouths. But Allah tells (you) the truth, and He shows the right way.4

1
Faisall Kutty, Islamic Law and Adoption, Researchgate, June 2014, at 04
2
Robert Roberts, The Social Laws of the Qur’an, (London: Williams and Norgate Ltd, 1925), 49.
3
Zihār was an Arab custom, by which the husband divorces his wife by comparing her to his mother.
4
Al-Qurān, Al-Ahzab:4

1
The Islamic method of adoption is known as 'Kafala,' which literally means sponsorship but

derives from the root word 'to feed,' and is also known as 'foster parenting.' It is a commitment to

provide for the upkeep, education, and security of a minor without charge, in the same way as a

father would for his children.

The Prophet (PBUH) said, "I and the guardian of an orphan will be in Paradise or Jannah like

These two fingers and he joined his two fingers. (Al-Bukhari)"5

So, the Adoption is allowed in Islam. However, changing the family name of the adopted child is

Not allowed. Allah says in Quran: "And He (Allah) has not made your claimed [adopted] sons

your [true] sons. That is [merely] your saying by your mouths, but Allah says the truth, and He

guides to the [right] way. Call them [i.e., the adopted children] by [the names of] their fathers; it

is more just in the sight of Allah. But if you do not know their fathers, they are your brothers in

religion.6 If the child was two years old or younger at the time of adoption and was breastfed

directly by the adoptive mother for at least a day and a night (or fifty times in total), the child

will become mahram to the new family and hijâb will not be needed. However, if the infant was

not breastfed by the adoptive mother, he or she would be considered non-mahram by the new

family. Adoption, whether riza'i or non-riza'i, does not grant the adopted child the right to inherit

the adoptive parents' estate, nor does it exclude him or her from inheriting the estate of the real

parents. However, the adoptive parents have the option of writing up to 1/3rd of their estate for

their adopted child.7

5
Ingrid Mattson, Adoption and Fostering, 2016, Academia. edu, 02
6
AL- QURAN, SURAH AL-AHZAB (33: 4-5).
7
Sayyid Muhammad Rizvi, Adoption In Islam (feb. 02. 2009, 10:04 PM), http://www.islamic-
laws.com/pdf/Adoption%20in%20Islam.pdf.

2
 3. Adoption in Pakistan

In Pakistani law adoption is not recognized unless there is a special custom of adoption in any

family or tribe.According to the Guardians and Wards Act 1908 the guardian court has authority

to appoint a guardian if this is in the welfare of the minor. Pakistan’s stand on adoption can be

seen from the reports submitted on the Convention on the Rights of the Child by Pakistan in

which Pakistan said that legal adoption is un-Islamic and being an Islamic State provisions

related to adoption will not be applied in the case of Pakistan. It provides a model of alternative

care that unlike legal adoption preserves the blood ties between the child and its biological

parents. Children in especial situations are placed under the guardianship of their near relatives

or suitable person appointed by Court. In that case the children do not automatically adopt the

parentage of their guardians.8

They will have legal access to all social and economic rights, with the exception of inheriting

property from their guardian. Parental rights are not relinquished by natural parents. Instead, they

make arrangements for their child's upbringing with others through mutual agreement. 'Kafala' is

also a practice recognized by the United Nations under the Convention on the Rights of the

Child, to which Pakistan is a signatory. A child who is temporarily or permanently separated

from his or her family life is entitled to special care and assistance from the state, according to

Article 20 of the UN Convention on the Rights of the Child. Foster placement, Kafalah,

adoption, or, if possible, placement in appropriate facilities for the care of children are examples

of such security or care.9

8
David Pearl and Werner Menski, Muslim Family Law, (London: Sweet and Maxwell, 1998), 409
9
Zafar Iqbal Kalanauri, Islamic Law and Adoption in Pakistan, 2013 Academia.edu. 1, 4

3
During that time of security, the racial, religious, cultural, and linguistic backgrounds of the child

must be taken into account. The Guardian and Wards Act, 1890, is used by Muslims in Pakistan

to seek legal guardianship of an infant. This establishes a child's right to be preserved and cared

for by the guardian, but it does not remove the child's right to be maintained and cared for by the

guardian.does not give you the right to inherit from your adoptive parents' property.10

4. Right of adopted child in inheritance

Muslim follow their respective fiqh for Inheritance as Family Laws of Pakistan in case of

Muslims are based on Shariah. As a result, the concept of inheritance is not recognized in Islamic

law.

Because no line of inheritance can be established in Islam without a blood relationship, adoption

is a viable option. As a result, the principle of inheritance is not recognized in Islamic law.

Since no line of inheritance can be formed in Islam without a blood connection, adoption is a

viable choice. Adopted children cannot inherit anything under Islamic law, but a guardian may

include him/her in his/her Will (which cannot exceed 1/3 of the deceased person's estate).11

5. Suggestion to Mr. sethi

After considering Islamic law and Pakistani Family Laws in relation to adoption, I would prefer

Mr. Sethi's adoptive parents to make a gift deed in his favor. He will receive a share of his

adoptive parents' property as a gift because the whole property (1 house and 2 open plots) is

10
David Pearl and Werner Menski, Muslim Family Law, (London: Sweet and Maxwell, 1998), 409
11
Prof. M. Zubair, Prof. Sadia Khattak, Hidayat-ur-Rehman & Prof. M. Aqeel, The Laws of Inheritance in Islam,
4(8) J. Basic. Appl. Sci. Res. 84, 89 (2014)

4
transferred to him only through a gift deed. In that case, he must register the gift deed in

accordance with section 123 of the 1882 Transfer of Property Act.

6. What is Gift?
The capacity of the donor of hiba to dispose of it is unrestricted under Islamic law. A Muslim

can freely give all or part of his or her property to whomever he or she wishes during his or her

lifetime. A Hiba is a transfer of land ownership without thought. It is an uncompensated

exchange in which one party willingly transfers his or her property to another.12

Under Shia Law, Hiba is defined as, "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."

For a gift to be valid, the following elements must be present:

 Declaration of gift by the donor

 Acceptance of gift by the done

 Delivery of possession13

7. Comparison between Inheritance, Gift and Will

7.1 Inheritance

In the event of an inheritance, an adopted child has no right to inherit the property of his or her

adoptive parents because Pakistani family law is based on Shariah, which states that although an

12
Samarth Trigunayat, Concept of Gift under Muslim Laws, (Sept 2, 2014, 11:02 PM).
13
id

5
adopted son is not entitled to inherit from his or her adoptive parents, he does have a right to

inherit from his or her real parents.14

6.2 Will
In the case of a will, both Islamic law and Pakistani law give someone the right to bequeath or

will their property to someone up to one-third of their total assets, but not more than one-third.15

6.3 Gift
In the case of a gift, both Islamic law and Pakistani law allow a person to freely give his or her

entire estate to someone they love and care for.16

8. GIFT UNDER TRANSFER OF PROPERTY ACT 1882

As per Sec 122, for a Gift to be valid:

 The property that is to be gifted must be in existence at the time of making the gift,

 The donor must be the lawful owner of the property,

 Must be voluntary,

 Must be without consideration,

 Must be accepted by the donee.

As per S. 123, if the gift is of an immovable property, the gift deed must be registered and

Attested.17

9. Case laws

9.1 Sher Afzal v Shamim Firdaus

14
Zafar Iqbal Kalanauri, Law of Inheritance in Islam, 2014 Academia. edu. 3.
15
M. ZUBAIR ABBASI & SHAHBAZ AHMED CHEEMA, FAMILY LAWS IN PAKISTAN 327 (2018).
16
id
17
EHTSHAM MEHMOOD, THE TRANSFER OF PROPERTY ACT, 1882 283 (2017-2018).

6
 the Supreme Court of Pakistan said that there is no institution of adoption in Islamic

law’18.As Pakistan follows the rule of binding precedent, the decision of the Supreme Court

is binding on all lower courts.

9.2 Abdus Salam v. A. D. J. Jhang

The Supreme Court of Pakistan decided that an adopted child cannot inherit from her

adoptive parents but has a right to inherit from her biological parents.19

9.3 Muhammad Aslam v. Shazia Bano

The mother of three minors applied for their maintenance, one of them was an adopted child.

The father argued that he is not obliged to maintain the adopted child although he said that if

the adopted child is given into his custody he is ready to pay maintenance. The Lahore High

Court held that an adopted child is not entitled to inherit from its adopted parents but it is

entitled to maintenance20.

10.Conclusion

The status of an adopted son is not the same as that of a biological child. In Islam, an adoptive

parent has certain responsibilities that must be met during the adoption process. In the above

scenario, Mr. Sethi's parents can transfer their entire property to him through a gift deed during

their lifetime, while they are only allowed to transfer 1/3rd of their property through a will. Mr.

Sethi would not be able to claim his share of the inheritance from his adoptive parents' estate if

they die later.

18
PLD 1980 SC 228; also see Arif Mansoor Ahmed v. Fayyaz Ali, 2000 YLR Lahore, p.2317
19
Abdus Salam v. A. D. J. Jhang, 1988 SCMR 608
20
2010 YLR Lahore, 1327

7
 11.GIFT DEED

THIS DEED OF GIFT IS MADE

AT APRIL THIS 15 DAY OF 2020 ON THIS DAY BETWEEN

Mrs. Ahmed, W/o Muhammad Ahmed, House 20, Street 5, Phase II saddar,

Rawalpindi.

(“The donor”)

AND

Mr. Sethi Ahmad S/o Ahmad R/o House 20, Street 5, Phase II saddar, Rawalpindi.

(“The donee”)

WHERE AS

1. That donor the absolute owner and is in possession of his three properties i.e., 1 house and

2 open plots situated at Pakistan town Islamabad. The estimated value of which is Rs.45,

500,000/- (Forty Crore fifty five lac Rupees only).

2. The donor and donee are related to each other as parents and adopted son.

3. that out of natural love and affection of the donor's for the donee, the donor is desirous of

Conveying the said property as gift to the donee.

4. That the donor have no other child and has only one adopted son

5. That the donee has been taking care of the donor's in his old age.

6. That the donor are also living with the donee.

7. That the donor are of sound mind and is not under any intoxication, undue influence, or
Coercion while making this gift deed.

THIS GIFT DEED WITNESSES

8
That the Donor without any monetary consideration and in consideration of natural love and

Affection, which the Donor bears to the DONEE, doth hereby grant and transfer by way of gift 1

House and 2 open Plots situate at Islamabad and more particularly described in the Schedule

Hereunder written together with all and singular the buildings, and structures. Thereon and all

the things permanently attached thereto or standing thereon and all the liberties, privileges

easements and advantages appurtenant thereto and all the estate, right, title, interest use,

Inheritance, possession benefit, claims and demand whatsoever of the Donor To Have And To

Hold the same unto and to the use of the DONEE absolutely but subject to the payment of all

taxes, rates, assessments, dues and duties now and hereafter chargeable thereon to the

Government or other Local Authority.

AND he the Donor doth hereby covenants with the DONEE;

(a) That the Donor now has in himself, good right, full power and absolute authority to grant the

Said piece of land and the other premises hereby granted as gift in the manner aforesaid.

(b) The DONEE may at all times hereafter peaceably and quietly enter upon have occupy.

possess and enjoy the said piece of land and premises and receive the rents, Issues, and profits

and rents thereof and every part thereof to and for his own use and benefit without any suit,

lawful eviction, interruption, claim or demand whatsoever from or by the Donor or his heirs,

executors administrators and assigns or any person or persons lawfully claiming or to claim by,

from, under or in trust for the Donor.

(c) That the said land and premises are free and clear and freely and clearly and absolutely and

9
Forever released and discharged or otherwise by the Donor and well and sufficiently saved, kept

Harmless and Indemnified of and from and against all former and other estate, titles, charges and

Encumbrances whatsoever, had made, executed, occasioned or suffered by the Donor or by any

Other person or persons lawfully claiming or to claim by. From, under or in trust for the Donor.

(d) AND FURTHER that the Donor and all persons having or lawfully claiming any estate or

Interest whatsoever to the said land and premises or any part thereof from under or in trust for

the Donor or his heirs, executors. administrators and assigns or any of them shall and will from

time to time and at all times hereafter at the request and cost of the DONEE do and execute or

cause to be done and executed all such further and other acts, deeds, things, conveyances and

assurances in law whatsoever for better and more perfectly assuring the said land and premises

and every part thereof unto and to the use of the DONEE in the manner aforesaid as by the

DONEE, his heirs, executors, administrators and assigns or counsel in law shall be reasonably

required

Schedule

(Subject Property)

[Subject Matter of Gift (1 House and 2 open Plots)]

Detail of the Subject Property with boundary description North, South, East, and West

The Plots are shown on the Plan annexed hereto with the border Red and the Plan is treated as a

part of this Deed.

IN WITNESS WHEREOF the Donor as well as the Donee (by way of acceptance of the said

gift) have put their respective hands the day and year first hereinabove written.

10
IN WITNESS WHERE OF, the donor's get and subscribe his signature and deliver in presence of

The witness.

April 15, 2020

Ahmed

AJ Corporation, Aftab plaza, near qalma chowk, Rawalpindi DONOR'S

WITNESS 1

Obaid ullah S/o Amaan ullah R/o House B45, Street 14, Mohan pura Rawalpindi

CNIC NO 1-8764390-2

Signature

WITNESS 2:

Ali asghar s/o Asghar Chauhan R/o House 2, lane 2, Westridge, Rawalpindi

CNIC NO 9-65278392-5

Signature

ACCEPTANCE Accepted by the said Donee

(Signature of Donee)

DONEE

Name Mr. Sethi Ahmad

Address House 20, Street 5, Phase II saddar, Rawalpindi.

12.Bibliography

AL- QURAN, SURAH AL-AHZAB (33: 4-5).

11
AL-QURAN, SURAH AL-BAQARAH (2: 215).

hamid khan, the islamic law of inheritance (2017).

ehtsham mehmood, the transfer of property act, 1882 (2017-2018).

m. zubair abbasi & shahbaz ahmed cheema, family laws in pakistan (2018).

Ingrid Mattson, Adoption and Fostering, 2016, Academia. edu, 02.

Faisall Kutty, Islamic Law and Adoption, Researchgate, June 2014, at 04.

Prof. M. Zubair, Prof. Sadia Khattak, Hidayat-ur-Rehman & Prof. M. Aqeel, The Laws of

Inheritance in Islam,

4(8) J. Basic. Appl. Sci. Res. 84, 89 (2014).

Zafar Iqbal Kalanauri, Islamic Law and Adoption in Pakistan, 2013 Academia.edu. 1, 4.

Zafar Iqbal Kalanauri, Law of Inheritance in Islam, 2014 Academia. edu. 3.

PLD 1980 SC 228; also see Arif Mansoor Ahmed v. Fayyaz Ali, 2000 YLR Lahore, p.2317

Abdus Salam v. A. D. J. Jhang, 1988 SCMR 608

2010 YLR Lahore, 1327

12