Muslim Law Lectures

Muslim Law Lectures

 

PAHUJA LAW ACADEMY

MUSLIM LAW

   INTRODUCTION

MAINS QUESTIONS

 

  1. What is the statutory authority of the courts to apply the Muslim law.
  2. What are the conditions on which Muslim law not applied to Muslims.
  3. Whether the Muslim law applies to Non–Muslims.
  4. Who is Muslim? If one of the parents is Muslim what will be the religion of the child? 

MUSLIM LAW

INTRODUCTION

      • Muslim law is personal law.
      • Personal law is the branch of civil law
      • The characteristic features of personal law are as follows:-
      1. It is not of general application.
      2. It is only applicable to family matters.
      3. A person takes with him his own personal law. It is not the territorial law.
      • Muslim law is that branch of civil law which regulates the family matters of the muslim.
      • A Muslim is a person whose religion is islam.
      • Islam = submission to the will of God.
      • Islam is a religion in which it is believed that
      • God is one and only one
      • Muhammad is his messenger (Rasool).
      • According to court , a person may be Muslim either by birth or through conversion.
      • What are the statutory authority of the courts to apply the Muslim law.
      • What are the conditions on which Muslim law not applied to Muslims.
      • Whether the Muslim law applies to Non –Muslims.
      • In Islam law is of divine origin.
      • Shariat…………….
      • Fiqh ……………….

Whether it is right to use the nomenclature Muhammadan law. 

 

MUSLIM LAW

INTRODUCTION

                                                                       PRELIMINARY

      1. Religion taught by the Prophet Mohammed is

(a) Islam

(b) Mohammedan

(c) Muslim

(d) all the above.

2. Islam in Arabic means

(a) submission to the will of God

(b) deliberate adoption of a new faith

(c) adoption of the faith of Islam

(d) all the above.

3. Religion of Islam is essentially

(a) monotheistic

(b) polytheistic

(c) paganistic

(d) either (b) or (c) and not (a).

4. Muslim are governed by

(a) shariat law

(b) quran

(c) Both

(d) none of the above

5. According to shariat the child will be Muslim

      1. If both parents are Muslim
      2. Even if one of the parents is a Muslim
      3. Even if one of the parent ios a Muslim and the child is not brought up as a Hindu
      4. Both (a)and (c)

6. In India, if one of the parents is a Muslim, the child is to be treated as

      1. belonging to the religion of the mother
      2. belonging to the religion of the father
      3. belonging to the religion mutually agreed by the parents
      4. a Muslim.

 

PAHUJA LAW ACADEMY

MUSLIM LAW

  SOURCES OF MUSLIM LAW

  MAINS QUESTIONS

  1. What are the sources of Muslim law? What are the relevancy of secondary sources?
  1. What are the characteristic features of Quran?

MUSLIM LAW

 SOURCES OF MUSLIM LAW

 

  • Sources of Muslim Law may be classified into two categories:]
  1. Primary sources
  2. Secondary sources

 The primary sources are as follows:

  1. Quran
  • Derived from the Arabic word Qurra and properly signifies “ the reading” or “that which ought to be read”.
  • Revealed to Prophet Mohammad for the benefit of the mankind.
  • First source of Muslim law
  • The first revelation (Wahi) came to the Prophet in 609 A.D.
  • It continued till 632 A.D.
  • Made by angel Gabriel to the Prophet.
  • The revealed verses were collected , consolidated and systematically written under the authority of Osman who was the third Caliph.
  1. Sunna or Ahadis ( Traditions of the Prophet)
  • Whatever the Prophet said or did without reference to God, is treated as his traditions.
  • Second source of Muslim Law.
  • Sunnat-ul-Qaul
  • Sunnat-ul-Fail
  • Sunnat-ul-Taqrir
  • Narrators of the Traditions
  • Companions of the Prophet
  • Successors of the companions
  • Successors of the successors

 

  • Kinds of traditions
  • Ahadis-i-Mutwatir
  • Ahadis-i- Mashhoor
  • Ahadis-i-Ahad
  • Drawbacks of Traditions
  1. Ijma
  • Kinds of Ijma
  • Ijma of the companions.
  • Ijma of Jurists
  • Ijma of the people
  • Importance of Ijma
  • Defects of Ijma
  1. Qiyas

 SECONDARY SOURCES

  1. CUSTOMS ( URF OR TAAMUL)
  2. JUDICIAL DECISIONS
  3. LEGISLATION
  • The Mussalman Waqf Validating Act, 1913
  • The Child Marriage Restraint Act,1929
  • The Muslim Personal Law( Shariat) ApplicationAct, 1937
  • Dissolution of Muslim Marriages Act, 1939
  • Muslim Women (Protection of Rights of Divorce ) Act, 1986.

MUSLIM LAW

 SOURCES OF MUSLIM LAW

PRELIMINARY

  1. Hadith
    • are the very words of God
    • are the traditions of the Prophet – the records of his action and his sayings
    • are the dictates of‘ secular reason in accordance with certain definite principles
    • all the above.
  1. According to Shariat the kinds of religious injunctions are
    • nine
    • seven
    • five
  1. Formal sources of Islamic law are
    • two
    • four
    • six
  1. Islamic law is formally contained in
    • Koran
    • Hadith
    • Ijma & Giyas
    • all the above.
  1. Originator of the Modem theory of Islamic law is
    • Ignaz Goldziher
    • Bergstrasser
    • Sahacht
  1. Shariat Act, 1937 came into operation on
    • 7th January, 1937
    • 7th April, 1937
    • 7th July, 1937
    • 7th October, 1937
  1. Mohammadan law applies to
    • all persors who are Muslims by birth
    • all person who are Muslims by conversion
    • all persons who are Muslims either by birth or by conversion
    • all persons who are Muslims by birth only and not to Muslims by conversion.

PAHUJA LAW ACADEMY

MUSLIM LAW

ORIGIN AND SCHOOL OF MUSLIM LAW

MAINS QUESTIONS

 

  1. What are different schools in Muslim Law ?
  1. Write a short note on historical development of Islam?
  1. How the court applies the law in case of conflict between different sects of Muslim Law?

PAHUJA LAW ACADEMY

MUSLIM LAW

ORIGIN AND SCHOOL OF MUSLIM LAW

 

  • Islam was born in Arabia.
  • Before the advent of Islam, most of the customs were unreasonable and inhuman.
  • Prophet Mohammad was born in Mecca in 571 A.D.
  • Father = Abdullah
  • Mother = Amina
  • Grandfather = Abdul Muttalib
  • Uncle = Abu Talib
  • First wife = Khadija
  • Fourth wife = Ayesh Begum
  • Daughter = Fatima
  • Historical development of Muslim law
  1. The first period
  2. The second period
  3. The third period
  4. The fourth period
  5. The fifth period
  • After the death or prophet , the immediate problem was to find out his successor.
  • Majority……………Sunni
  • Minority……………Shia
  • SUNNI SCHOOLS
  1. Hanafi
  2. Maliki
  3. Shafei
  4. Hanbali
  • SHIA SCHOOLS
  1. Ithna Asharia or Imamia
  • Akhbari
  • Usuli
  1. Ismailia
  • Khoja
  • Bohra
  1. Zaydia
  • MOTAZILA

PAHUJA LAW ACADEMY

MUSLIM LAW

 ORIGIN AND SCHOOL OF MUSLIM LAW

PRELIMINARY

  1. Who was the first Caliph?
    • Abu Bakr
    • Abdul kadir
    • Ali
    • Hussain
  1. Abu Bakr is associated with
    • Sunnis
    • Shias
    • Both
    • None of the above
  1. The most of the followers of Islam in india are
    • Sunnis
    • Shia
    • Equal in number
    • None of the above
  1. Which sect of the Islam follow monogamy?
    • Sunnis
    • Shia
    • Motazila
    • All of the above
  1. Whether a Muslim can change a sect and enters into another sect of Islam.
    • Yes
    • No
    • Yes with previous permission of the court
    • None of the above

 

PAHUJA LAW ACADEMY

MUSLIM LAW

 MARRIAGE (NIKAH)

 MAINS QUSTIONS

  1. Marriage among Muhammadan is not sacrament but purely a civil contract. Discuss the statement with reference to contractual nature of Muslim Marriage.
  1. How the concept of marriage under Muslim law is different from that of under modern Hindu Law?
  1. (A) Explain the validity of the following agreements entered into between the husband and wife at the time of their marriage under the Muhammadan Law:

(i) That the parties shall not follow the Muslim law of inheritance.

(ii) That the husband shall have no right to divorce the wife.

(B) M, a Sunni Muslim marries W, a Sunni female without the presence of any witness, will it make any difference if the parties were Shias?

  1. Discuss the validity or otherwise of the following:

(A) A Sunni male marries a Shia woman in a desert where there are a witness.

(B) Marriage of A, a Shia woman was dissolved on Jan. 1,1980 on account of death of her husband B. the  marriage was not consummated. A married D on Jan.26 1980.

(C) A, a Shia married B, a Shia female in the presence of a witness Q on Jan, 12, 1980. In June 1980 he married D, who was B’s sister.

(D) A, a Sunni male marries B, a Sunni female but no Mahr was specified.

  1. Explain the concept of Iddat under the Muslim Law.
  2. State concisely what do you understand by option of puberty of a Muslim Girl.
  1. Whether a Muslim girl below the age of 18 year could contract a valid marriage-Nikah without the consent of her parents Explain in the light of the basic principle of Islamic jurisprudence.
  1. Nazma a Muslim girl was married to Ahmed when she was 13 Year old, after 6 month she went back to her father’s house and refused to come back t Ahmed’s house, Ahmed filed a petition for restitution of conjugal right. Nazma pleaded she is no longer his wife as immediately on attaining the puberty she had repudiated the marriage with him. In rejoinder Ahmed pleaded consummation of marriage and stated that she had lost the right of option to repudiate the marriage on attaining puberty. Decide who will succeed. Give reasons.
  1. A Muslim girl is given in marriage by her father. When she attained the age of 17 year she repudiated the marriage and brought a suit for dissolution of her marriage. What facts she is required to prove in order to succeed? Can the husband successfully resist the suit on any ground? Would it make any difference if the party repudiating the marriage is the husband.
  1. Akbar an NRI resides in London offers to marry Waheeda in Delhi by long distance call over the phone. Waheeda accepts the offer on phone. Is this a valid marriage under the Muslim Law? Discuss.
  1. It is often said that “Muslim Marriage is a Civil Contract”. Can parties to this contract put any condition to contract they like? Discuss.

 

PAHUJA LAW ACADEMY

MUSLIM LAW

 MARRIAGE (NIKAH)

  • In pre Islamic Arabian society
  • The position of women was very bad
  • Treated as properties
  • The only object of the marriage was procreation of children and enjoyment of sex
  • Limitless polygamy
  • No restriction in marrying a girl even in one’s close relation
  • No certainty in matrimonial status of wife
  • Islam prescribed a definite form of marriage namely, Nikah.
  • Nikah literally means to tie up together.
  • What are the definitions of marriage in Muslim law?
  • What is nature of Muslim marriage? Is it a purely civil contract?
  • What are the essentials of valid marriage?
  • Whether the registration of Muslim marriage is mandatory?
  • What are the kinds of Muslim Marriages?
  • Whether a marriage in temporary nature possible in Muslim law?
  • What is restitution of conjugal rights?

PAHUJA LAW ACEDEMY

MUSLIM LAW

MARRIAGE (NIKAH)

PRELIMINARY

  1. Muta under Mohammedan law means

(a) a temporary marriage

(b) a permanent marriage

(c) a joint venture marriage

(d) an illegal marriage.

  1. Marriage in Islam is

(a) a contract

(b) a sacrament

(c) a contract as well as a sacrament

(d) either a contract or a sacrament.

  1. Islamic law provides for

(a) monogamy

(b) unlimited polygamy

(c) controlled polygamy

(d) bigamy.

  1. In Mohammedan law marriage is a

(a) contract for the legalisation of intercourse and the procreation of children

(b) contract for the procreation of children

(c) contract for legalisation of intercourse

(d) contract for different forms of sex relationship.

  1. Essential requirements of Muslim marriage are

(a) ijab

(b) qabul

(c) both ijab and qabul

(d) either ijab or qabul.

  1. Witnesses to the marriage have been provided under

(a) Hanafi law

(b) Shiite law

(c) both (a) and (b)

(d) neither (a) nor (b).

  1. Marriage under Hanafi law must be performed before

(a) two witnesses

(b) three witnesses

(c) four witnesses

(d) six witnesses.

  1. For a valid Muslim marriage

(a) offer and acceptance must be at the same time

(b) offer and acceptance must be at the same place

(c) offer and acceptance must be at the same time and place

(d) offer and acceptance may be at different times and at different places.

  1. Under Mohammedan law legal incompetency to marriage means

(a) minority

(b) unsoundness of mind

(c) both minority as well as unsoundness of mind

(d) only unsoundness of mind & not minority.

  1. In cases of legal incompetency in Mohammedan law

(a) The guardians can validly enter into a contract of marriage on behalf of their wards

(b) The guardians of a female only can validly enter into a contract of marriage on behalf of the female

(c) The guardians of a male only can validly enter into a contract of marriage on behalf of the male

(d) The guardians cannot validly enter into a contract of marriage on behalf of their wards.

PAHUJA LAW ACADEMY

MUSLIM LAW

 DOWER

Mains

  1. What is the difference between Sunni and Shia Laws relating to dower?
  1. (a) Explain what is Mehr in relation to a Muslim marriage. Can its payment be deferred either wholly or in part?

(b) whether Mehr can be termed as debt and thus a charge on the property of the husband?

(c) can the payment of the Mehr be excused , if so, by whom?

MUSLIM LAW

DOWER

  • Unspecified dower or proper dower is dower which is fixed by the court.
  • The sum of money or property which is fixed as dower by the parties is called specified dower.
  • Dower may be specified at the time of marriage or even after the completion of marriage.
  • Whether dower may be fixed by the guardian.
  • What are the properties which may be settled as dower?
  • Prompt dower
  • Wife can demand the dower any time.
  • Deferred dower
  • The wife cannot claim it before the termination of marriage either by divorce of the death or upon happening of a specified event if so agreed.

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MUSLIM LAW

DOWER

 Preliminary

  1. ‘Dower’ under the Mohammedan law has been defined as a sum of money or other property presented by the husband to be paid or delivered to the wife in consideration of marriage by

(a) Robertson Smith

(b) Ameer Ali

(c) Justice Mahmood

(d) Hamilton.

  1. Dower/Mahr belongs

(a) absolutely to the wife

(b) absolutely to the wife’s father

(c) absolutely to the wife’s mother

(d) partly to the wife and partly to the wife’s parents.

  1. In respect of payment, the dower can

(a) be divided into three parts

(b) be divided into two parts

(c) be divided into four parts

(d) not be divided into any parts.

4.. As regards the payment, the dower can be

(a) prompt

(b) deferred

(c) both (a) and (b)

(d) only (a) and not (b).

  1. ‘Deferred’ dower is payable on the dissolution of marriage

(a) by death

(b) by divorce

(c) either by death or by divorce

(d) only (b) and not (a).

  1. ‘Dower’ ranks as

(a) a preferential debt

(b) an ordinary unsecured debt along with other creditors

(c) an ordinary debt having priority over other contractual debts

(d) a secured debt.

  1. ‘Dower’ on the basis of amount payable is classified into

(a) two categories

(b) three categories

(c) four categories

(d) six categories.

  1. In Islam, the dower can be

(a) specified

(b) unspecified

(c) either specified or unspecified

(d only specified and not unspecified.

  1. Specified dower can be fixed

(a) before the marriage

(b) at the time of marriage

(c) at any time subsequent to the marriage

(d) either (a) or (b) or (c).

  1. Under the Shia law, the proper dower cannot exceed

(a) 500 dirhams

(b) 750 dirhams

(c) 1000 dirhams

(d) 100 dirhams.

PAHUJA LAW ACADEMY

 MUSLIM LAW

  Dissolution of marriage

                                                                        Mains questions

  1. What are revocable and irrevocable divorces under Muslim Law? Can the parties to these divorces remarry?
  2. Is a stipulation between the husband and wife conferring the right on the wife to divorce herself permissible under Mohemmedan law? ‘If so , is it conditioned by prerequisites? What are the principle on which Mohammedan law recognizes such a stipulation?
  3. A Muslim wife misbehaved with her husband. She was addressed thrice the word ‘Talaaq’ pronounced by her husband there upon she apologized for her misbehavious. They continued cohabitation. A son was born to the woman from him. He was got admitted to the school by her father as his own son and brought him up as such.

         After the death of the man, his full brother laid exclusive claim to his estate. Decide the suit. The defences raised         are that divorce was revoked and that paternity of the son was acknowledged.

  1. (a) What is the effect of conversion on marital rights of a Mohammedan? Explain with special reference to “Dissolution of Muslim Marriage Act 1939”.

 (b) A Hindu woman is converted to Mohammadanism and leaves her Hindu husband she marries a Mohammadan according to Muslim rites. Has she committed any offence? Discuss.

5.A Hindu having a wife and two sons, converted to Mahomedanism and married a Muslim lady and had two sons from her. State who shall inherit his property on his death and in what shares?

A Muslim man has two muslim wives. The entire family converts to Christianity. Discuss the status of the wives and children. Can he divorce his wives by triple talaq post conversion?

7.A Mohamedon becomes convert t Christianity. The wife then marries another man before the expiration of the period of iddat. State if she is guilty of bigamy under section 494 IPC?

  PAHUJA LAW ACADEMY

  MUSLIM LAW

 Dissolution of marriage

  • A marriage may be dissolved by two ways:-
  • By act of god i.e. death of either spouse.
  • By act of the parties i.e. divorce.
  • Under Muslim law the divorce takes place by the act of parties themselves or through the court of law.
  • Divorce is an exception to the status of marriage.
  • According to Prophet amongst the things which have been permitted by law, divorce is worst.
  • A divorce may be either by act of husband or by wife.
  • A husband may repudiate the marriage without giving any reason.
  • Generally this is done by Talaq.
  • But he may divorce the wife also by Ila and Zihar which differ from a Talaq in form not in substance.
  • A wife cannot divorce her husband of her own accord.
  • Divorce By the Husband
  • Talaq is an Arabic word and its literal meaning is “to release”.
  • Although there is no direct check on the unrestricted right of husband to divorce his wife without giving any reason.
  • However, there is indirect check upon this right is the obligation of a husband to pay the dower upon the dissolution of marriage.
  • Conditions for a valid Talaq

1.Capacity

        – Muslim Husband

        – Sound Mind

        – Who has attained the age of Puberty.

        – A husband who is minor or unsound mind, cannot pronounce Talaq.

        – Such Talaq is void.

        – But if the husband is lunatic and Talaq pronounced by him during lucid interval  is valid.

        – The guardian cannot pronounce Talaq on behalf of minor husband.

– According to Tyabji  guardian of a husband of unsound mind, may pronounce Talaq on behalf of such insane husband if such Talaq is in the interest of husband.

– When such husband has no guardian then the Kazi or the judge has the right to dissolve the marriage in the interest of husband.

– Capacity of Wife.

                – Talaq pronounced against a minor wife is void and effective.

                – Talaq pronounced against an unsound mind wife is  void and effective.

  1. Free Consent

                – Consent of husband must be free.

– Under Hanafi Law, a Talaq pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc. is valid and dissolve the marriage.

– There are three things which whether done in joke or earnest, shall be considered as serious and effectual:first the marriage, second divorce and the third taking back.

  1. Formalities

                Sunni                                                                                                    Shia

  • Talaq may be oral or in writing. Talaq must be pronounced orally, except where

The husband is unable to speak.

  • No use of any particular word is Requires the use of specific Arabic words.

Required to constitute a valid Talaq.

  • Need not made in the presence of the Must be pronounced in the presence of two

Witnesses.                                                                  competent witnesses.

         Competency of witness.

  • Male Muslim
  • Sound Mind
  • Attained the age of Puberty.

Presence of Wife

  • Presence of wife at the pronouncement of Talaq not necessary.
  • Wife must be referred in the Talaq.
  • Notice to wife is not necessary.
  • Talaq becomes effective from the date of pronouncement not from the date wife comes to know about it.
  • Under Muslim Law, even if the Talaq has not been communicated to wife, the Talaq is valid and effective.
  • Knowledge of Talaq is required for the claim of dower and for claim of maintenance from former husband.

Conditional and Contingent Talaq.

  • A Talaq may either be absolute or subject to a Condition or Contingency.
  • Where a Talaq is without any condition it takes effect immediately.
  • A contingent or conditional Talaq becomes effective only upon the fulfillment of the condition or happening of the future event.
  • It is only recognized under Sunni Law.
  • Shia does not recognize conditional or contingent Talaq.
  • Condition must not be un-Islamic e.g. if the condition is that whenever the wife would demand her prompt dower there would be Talaq by husband, the condition is void.
  • Marriage dissolves as soon as the condition is fulfilled or the event takes place. Further pronouncement is not necessary.
  • Bachchoo v. Bismillah.
  • Mirjan Ali v. Maimuna Bibi.

Kind of Talaq

  1. Talaq-ul-Sunnat (revocable Talaq)
  • It may be pronounced either in Ahsan from or in Hasan form.
  • It is called Talaq-ul-Sunnat because it is based on the Prophet’s tradition.
  • Only this kind of Talaq was in practice during the wife of the Prophet.
  • It is recognized in both the sects.
  • Talaq Ahsan (Most Proper)
  • This is the most proper form of repudiation of marriage.
  • The reason is twofold:-
  • There is possibility of revoking the pronouncement before the expiry of the Iddat period.
  • The evil words of Talaq are uttered only once.
  • In this form the following formalities are required:-
  • The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. But if the woman is not subjected to menstruation, a Talaq may be pronounced at any line.
  • After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is pregnant at the time of pronouncement. The Iddat is to be followed till the delivery of the child.
  • Revocation may be express or implied. Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife.
  • When the period of Iddat expires and the husband does not revoke the Talaq either expressly or through consummation, the Talaq becomes irrevocable and final.
  • It may be noted that the characteristic feature of the Ahsan form of Talaq is a single pronouncement followed by no revocation during the period of three month’s Iddat. Therefore, where a husband makes any declaration in anger, but realising his mistake afterwards, wants to cancel it, there is sufficient time for him to do so.

(ii) Talaq Hasan (Proper)

  • This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs. The formalities required under this form are as under :
  • (a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr.
  • (b) In the next Tuhr, there is another single pronouncement for the second time. It is significant to note that the first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was made at all.
  • (c) But, if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the required Iddat.
  • It may be noted that the important feature of T alaq Hasan is its revocability before the third pronouncement and its irrevocability after the third. In order to make an effective Talaq, the words must be uttered three times in three consecutive period of purity.
  • In Ghulam Mohyuddin v. Khizer, a husband wrote a Talaqnama in which he said that he had pronounced his first Talaq on 15th September and the third Talaq would be completed on 15th November. He had communicated this to his wife on 15th September. The Lahore High Court held that this was a Talaq Hasan. The Court observed that the Talaqnama was merely a record of the first pronouncement and the Talaq was revocable. The Court further observed that for an effective and final Talaq, the three pronouncements must actually be made in three Tuhrs; only a mention of the third declaration is not sufficient.
  1. Talaq-ul-Bidaat (Irrevocable)
  • This Talaq is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The Prophet never approved a Talaq in which there was no opportunity for reconciliation. Therefore, the irrevocable Talaq was not in practice during his life. The Talaq-ul-Bidat has its origin in the second century of the Islamic-era.
  • According to Ameer Ali, this mode of Talaq was introduced by the Omayad Kings because they found the checks in the Prophet’s formula of Talaq inconvenient to them.“ Since then this mode of Talaq has been in practice among the Sunni Muslims.
  • Shia Law
  • Under the Shia Law, an irrevocable Talaq is not recognised.
  • We have already seen that in a Bid’at form there is no opportunity for the revocation of Talaq. A Bid’at Talaq becomes final as soon as the words have been uttered and the marriage is completely dissolved. A Sunni husband who wants to divorce his wife irrevocably, may do so in any of the following manners :
  • (a) The husband may make three pronouncements in a period of purity (Tuhr) saying : “I divorce thee, I divorce thee, I divorce thee”. He may declare his t triple-Talaq even in one sentence saying : “I divorce thee thrice, or “I pronounce my first, second and third Talaq.
  • (b) The husband may make only one declaration in a period of purity expressing his intention to divorce the wife irrevocably saying : “I divorce thee a irrevocably” or “I divorce thee in Bain”.
  • —Relying on Hedaya, the Patna High Court has held that an irrevocable Talaq may be pronounced even during menstruation period.
  • In the irrevocable Talaq the, emphasis is upon the husband’s intention of irrevocable Talaq than the words uttered by him. In Marium v. Md. Shamsi Alam, the wife left her husband’s place and went to her parent’s house because she found that the husband was negligent to her health. When the husband went to take her back she refused to go with him. The husband became agitated and in anger he uttered Talaq three times in one breath. But later on realising his mistake, he revoked the Talaq within the period of Iddat. It was held by the Allahabad High Court that although the word “Talaq” was uttered thrice, but since they were pronounced in one breath it is to be interpreted as one single pronouncement. It was observed by the court that in this case the Talaq was in the Ahsan form which was revocable. As the husband expressly revoked the Talaq before the Iddat he cannot be said to have intended the divorce seriously. The marriage was, therefore, not dissolved and the wife had to accompany the husband. In this case the court has interpreted the rules of Muslim law liberally in order to discourage hasty and unconsidered divorces.
  • In Rahmat Ullah v. State of U.P., the Allahabad High Court, has observed that an irrevocable Talaq (Talaq-ul-Biddat) is unlawful because this kind of Talaq is against the dictates of the Holy Quran and is also against the provisions of the Constitution, of India.
  • But, against this decision, the separated Muslim couple preferred appeal in the Supreme Court through their counsel Anis Suhrawardy. The Supreme Court disagreed with the decision of the Allahabad High Court and held that ‘triple talaq’ in one sitting was not unconstitutional. The Five-Judge Constitutional Bench held that the High Court finding could not operate as the law of the land “until and unless the same arises in an appropriate case and is decided accordingly”. According to the Apex Court, the present case was unconnected with the issue of constitutionality of ‘triple talaq’ as a mode of irrevocable divorce under Muslim law; and the Supreme Court declined to go further into this question.

Written Talaq

  • Under Shia law, the Talaq must be pronounced orally except where husband is unable to speak. But, under Sunni law the Talaq may be oral or in writing; If the words are clear and express, a written Talaq takes place immediately. That is to say, it becomes irrevocable as soon as the Talaq is written.
  • But where the writing itself indicates any specific date or event on which the Talaq shall come into force, the Talaq becomes effective from that very date or upon happening of the specified event and not on the date when the letter reaches to wife. For example, where the writing says : “when this my letter reaches you,there would be repudiation of the marriage. The Talaq comes into effect (and becomes irrevocable) only after the receipt of the letter by wife, not on the date on which it was written.

Present Position of Written Talaq in India

  • Shamim Ara v. State of U.P. the Supreme Court has disagreed with the established principles on the law of written divorce among Muslims, and has ruled that ‘talaq to be effective has to be pronounced’. The Court said that plea of talaq taken in an unsubstantiated written statement submitted before a Court not be accepted as a proof of talaq. Briefly stated, the facts of this important case are given as under :
  • Shamim Ara was married to Abrar Ahmad in the year 1968. In 1979 Shamim Ara (as ‘wife’, not as ‘divorced wife’) filed an application before a Family Court demanding maintenance for herself and for her children from husband under Section 125 Cr.P.C. on the ground that he has deserted her. In reply, the husband filed a written statement in 1990 before the Family Court making an averment that he had already divorced his wife in l987 and therefore she was not entitled to claim any maintenance. Upon this, the Family Court rejected the wife’s claim of maintenance on the ground that she had already been divorced. On appeal, the Allahabad High Court held that the communication of talaq was completed in 1990 by husband’s written statement in the Family Court and she (Shamim Ara) had already been divorced. Against this judgement, the wife preferred an appeal in the Supreme Court.
  • Held : The Supreme Court held that in order to make an effective (valid), talaq it has to be formally pronounced. The Court said that :
  • “A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of ‘talaq’ by the husband on wife on the date of filing of the written statement in the court followed by delivery of a copy thereof to the wife. So, also the affidavit ………… ..filed in some previous judicial proceedings not inter parte, containing a self-severing statements of respondent (husband) could not have been read in evidence as relevant and of any value.”
  • Elaborating the meaning of the word ‘pronouncement’ the Apex Court said : “the term ‘pronounce’ means to proclaim, to utter formally, to utter rhetorically, ‘ declare, to utter, to articulate.
  • Explaining the law on talaq, the Apex Court observed that the correct ‘talaq as ordained by the Holy Quran was that it must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters—-one from the wife’s family and the other from the husband’s and, even then if the attempts failed, talaq could be effected.
  • The Court observed further that the husband had adduced no evidence of the ‘talaq’ except for the written statement filed in the family court, “there are no reasons substantiated in justification of ‘talaq’ and no plea of proof that any effort at reconciliation precedes the talaq”.
  • In this leading case, after discussing at length all the aspects of talaq under Muslim law as applied in India, including the Holy Quran Ch. IV Sura 34, the Supreme Court said : .
  • “For the foregoing reasons the appeal (by Shamim Ara-the wife) is allowed. Neither the-marriage between the parties stands dissolved, …….. ..nor does the liability (of Abrar Ahmed—the husband) to maintenance comes to an end, (Abrar Ahmed–the husband) shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law.” “

ILA

  • Besides Talaq, a Muslim husband can repudiate his marriage by two other modes, Ila and Zihar. Ila and Zihar are the constructive divorce by a husband. The husband does not expressly repudiate the marriage but the conduct of the husband is of such nature that it is concluded that he intends to dissolve the marriage.
  • In Ila the husband takes an oath not to have sexual intercourse with the wife. Followed by -this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within the prescribed period of four months, Ila is cancelled and the marriage does not dissolve.
  • Shia Law.—Under Ithna Ashafia (Shia)” school, Ila does not operate as divorce without order of the court of law. According to this school, after the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If, there is no cohabitation even after expiry of -four months, the wife may file suit for restitution of conjugal rights against husband. If husband does not cohabit even then, the marriage is dissolved by a decree of the court.” If she does not obtain the decree of court, the marriage does not dissolve.

ZIHAR

  • Zihar is also a constructive divorce. In this mode, the husband compares his wife with a woman within his prohibited relationship e.g. mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such an objectionable comparison, the husband does not cohabit with his wife for a period of four months. Upon the expiry of the fourth month, the Zihar is complete. But the marriage as such does not dissolve. After completion of fourth month the wife has following rights :
  • (i) She may go to the court for a judicial divorce or,
  • (ii) She may go to the court for an order for restitution of conjugal rights.
  • Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. But cohabitation with a wife who had been compared with mother or sister is sinful. Therefore, in such a circumstance although the wife cannot claim a judicial divorce, yet she can compel the husband to perform penance for this sinful conduct of comparing her with his mother or sister.
  • -—The penance which the husband is required to perform for being absolved of this sinful conduct is (1) feeding sixty poor persons or, (2) observance of fast for two months or, (3) release of a slave.
  • It is to be noted that if the wife gets order of the restitution of conjugal rights she may insist the husband to perform the penance. If a wife sues for restitution of conjugal rights after her husband has made Zihar and had not made expiation(penance) the court may order him to perform penance.
  • Shia Law.— According to Shia law, the declaration of Zihar must be made in presence of two competent witnesses.
  • Ila and Zihar, as modes of divorce have now become outdated. Although the provision of such a constructive divorce still exist in the law, but it does not exist in practice. A Muslim husband who wants to repudiate his marriage may do so by Talaq which is simple and more convenient than the indirect modes of Ila and Zihar.

 

DIVORCE BY THE WIFE

  • A Muslim wife has no independent right of divorce. She cannot divorce her husband whenever she likes, as her husband may do. Under Muslim law, divorce by wife is possible only in the following situations 1
  • (a) Where the husband delegates to the wife the right of Talaq (Talaq-e-Tafweez).
  • (b) Where she is a party to divorce by mutual consent (Khula and Mubarat).
  • (c) Where she wants to dissolve the marriage under the Dissolution of Muslim Marriage Act, 1939.
  • In the first two cases the wife’s right of divorce depends upon the consent of her husband. In Talaq-e-Tafweez, unless the husband himself gives her the right to pronounce Talaq, she cannot divorce. In a divorce by mutual consent, she cannot get divorce unless the husband also gives his consent for it. Under the Dissolution of Muslim Marriages Act, 1939, the dissolution of marriage depends upon the decision of the court. In other words, a Muslim wife cannot divorce without her husband’s consent or without a judicial decree.”

Delegated Divorce (Talaq-e-Tafweez) 

  • A Muslim husband has unrestricted right to divorce his wife whenever he likes. This right is so absolute that he may exercise it either himself or may delegate his right to another person. In other words, instead of pronouncing the Talaq himself he may give his right of divorce to anyone else, including his own wife. Divorce by such other person, who acts as agent of the husband under his authority, is called -Talaq-e-Tafwejez or delegated divorce. In the delegated divorce the Talaq pronounced by that other person is as effective as if it was made by the husband himself and the marriage dissolves.
  • The husband may delegate his right of divorce to his own wife and authorise her to pronounce Talaq. According to Fyzee, this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain her freedom without the intervention of any court and is now beginning to be fairly common in India.” The authority is given to the wife under an agreement at the time of the marriage or any time after it. The delegation of the power of divorce to the wife may either be permanent or temporary i. e, only for a specified duration. A temporary delegation of power is irrevocable but a permanent delegation may be revoked by the husband.
  • The delegation (Tafweez) may be unconditional or subject to certain condition or contingency. Where the delegation is conditional, the authority of giving Talaq cannot be exercised until that condition is fulfilled. The general practice is to delegate the power of divorce to the wife upon the husband’s failure to fulfil certain conditions or upon the happening of an event. But the conditions must be of reasonable nature and must not be against the principles of Islam. Where a right of divorce has been conferred upon the wife, she may repudiate the marriage if the husband fails to fulfil that condition or upon the happening of that event. In such cases the divorce takes place in the same manner as if the husband has himself pronounced the Talaq. For example, under an agreement of Tafweez the husband may authorise his wife to divorce herself whenever his behaviour is cruel towards her or when he refuses to pay the prompt dower. In Sainuddin v. Latifunnessa, there was an agreement between husband and wife under which the husband delegated to the wife his own power of giving three Talaqs in the event of his marrying a second wife without the permission of the first. The husband took second wife without the permission of the first. Accordingly, the first wife gave herself three Talaqs under the authority of the Tafweez. It was held by the Court that as the event upon the happening of which the wife was given the authority to divorce herself was valid under Muslim law, and since that event has happened, the divorce by the wife was effective and the marriage must dissolve.
  • It is significant to note that right to delegate the authority of Talaq to another persont is husband’s own authority alone.- If the husband delegates his authority to wife in writing and the wife also puts her signature on that document the delegation continues to be his own authority given to wife; it does not become divorce by mutual agreement or does not a bilateral delegation. In Magila Bibi v. Noor Hassain,” the husband had given a written authority to his wife that she may, at her will, divorce him whenever she wanted. The document was signed by husband and wife both. After some time, when she felt that husband was cruel to her and also came to know that he was not a medical graduate as she was told before the marriage, she pronounced Talaq under the above mentioned written delegated authority. She informed her decision to husband. It was held by Calcutta High Court that only because wife too had signed the written delegation by husband, ‘the document does not become ‘bilateral delegation.’ It continues to be unilateral delegation’ and Talaq by wife is valid even without the consent of husband. The court observed further that since the Talaq under delegated authority is valid, the wife as divorced woman, is entitled to claim her right of maintenance etc. under the Muslim Women Act. 1986.
  • Where a wife is given the option to divorce herself under a Tafweez, she cannot be compelled to exercise her right. She may or may not exercise the right. Mere happening of the event under which the wife is authorised to divorce herself, is not sufficient to dissolve the marriage ; the wife must also exercise her right expressly.”
  • It is to be noted that after delegating his authority the husband himself is not debarred from pronouncing Talaq.

Difference Between Conditional Talaq and Talaq-by-Tafweez

  • (i) A conditional Talaq is a Talaq by the husband subject to a condition or upon happening of a future event. A Talaq by Tafweez is a Talaq by the wife provided she is authorised by the husband to do so.
  • (ii) In a conditional or contingent Talaq mere happening of that event is sufficient to dissolve the marriage ; the husband need not pronounce the Talaq again. In the case of a Talaq-by-Tafweez, mere happening of the specified event does not dissolve the marriage. The marriage dissolves only if the wife has actually exercised her right of divorce after happening of that event
  • (iii) Conditional or contingent Talaq is not recognised under the Shia law but a Talaq-by-Tafweez is recognised under both the schools, Shia and Sunni.

DIVORCE BY MUTUAL CONSENT

  • Under Muslim law, a divorce may take place also by mutual consent of the husband and wife.“ Existence of any prior agreement or delegation of authority by the husband is not necessary for a divorce by common consent. It may take place any time whenever the husband and wife feel that it is now impossible for them to live with mutual love and affection as is desired by God. A divorce by mutual consent of the parties is a peculiar feature of Muslim law. Under Hindu Law there was no such provision before 1976.There are two forms of divorce by mutual consent : (i) Khula and (ii) Mubarat.

KHULA

  • Literal meaning of the word Khula is, ‘to take off the clothes. In law, it means divorce by the wife with the consent of her husband on payment of something to him. Before Islam the wife had no right to take any action for the dissolution of her marriage. But in Islam, she is permitted to ask her husband to release her (as he puts off his clothes) after taking some compensation. Quran lays down about Khula in the following words :
  • ” …………….. ..and if you fear that they (husband and wife) may not be able to keep (within the limits of Allah, in that case it is no sin for either of them if the woman releases herself by giving something (to the husband).”35 . In the leading case Munshee Buzlul Raheem v. Luteefutoon Nissa,” the Privy Council describes a Khula form of divorce in the following words :
  • A divorce by Khula is a divorce with the consent and at the instance of the l wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dynmahr (due dower) and other rights, or make any other agreement for the benefit of the husband.”

Essentials of a Valid Khula

  • It may be noted that Khula is a divorce by common consent but the wife has to make the payment of some consideration to husband because she takes the initiative for dissolution of the marriage. Essentials of a*valid Khula are given below :
  • (1) Competence of the Parties
  • The husband and wife must be of sound mind and have attained the age of puberty (fifteen years). A minor or insane husband or wife cannot lawfully effect Khula. The guardian of a minor husband may not validly effect Khula on his behalf.”
  • (2) Free Consent
  • The offer and the acceptance of Khula must be made with the free consent of the parties. But, under Hanafi law’ a Khula under compulsion or in the state of intoxication is also valid.” But, under all other schools including Shia law, without free consent of the parties, the Khula is not valid.
  • (3) Formalities
  • There is an offer by the wife to release her from the matrimonial tie. The offer is made to the husband. The offer for Khula must also be accepted by the husband. Until the offer is accepted, the divorce is not complete and it may be revoked by the wife. But once the offer has been accepted, the divorce is complete and becomes irrevocable. Offer and acceptance may either be oral or in writing. The offer and acceptance must be made at one sitting i.e; at one place of meeting.
  • C Under Sunni law the presence of witnesses is not necessary. But under Shia law, the offer and acceptance of Khula must be made in presence of two competent-witnesses. Further, under Shia law, the Khula is revocable by wife during Iddat.
  • (4) Consideration
  • For her release, the wife has to “pay something to the husband as compensation. Any sum of money or property may be settled as consideration for Khuld. There is no maximum or minimum limit as is in the case of dower. But once this consideration has been settled. it cannot be increased.”
  • Generally the wife relinquishes claim of her dower for her release or fer -her Khula. She may relinquish her full dower or only a part of it. Where the dower has already been paid to the wife, the wife may give to the husband some money or property.
  • As a general rule, the exchange or consideration is to be paid immediately to the husband? But the parties may agree for the payment of consideration on a future date.“ In the Khula the marriage dissolves as soon as the proposal has been accepted even if the payment of consideration has been postponed. Therefore, if she does not pay the consideration, to husband, the divorce is valid. In such cases, the husband may sue the wife for the recovery of that amount.

MUBARAT

  • Mubarat is also a divorce by mutual consent of the husband and wife. In Khula the wife alone is desirous of separation and makes the offer, whereas in Mubarat both the parties are equally willing to dissolve the marriage. Therefore, in ‘Mubaraz the offer for separation may come either from husband or from wife to be accepted by the other. The essential feature of a divorce by Mubam! is the willingness of both the parties to get rid of each other, therefore, it is not very relevant as to who takes the initiative.” Another significant point in the Mubarat form of divorce is that because both the parties are equally interested in the dissolution of marriage, no party is legally required to compensate the other by giving some consideration.
  • Both Khula and Mubarat are divorce by common consent but in Mubarat no. consideration passes from the wife to the husband. It may be noted that divorce by Mubarat is very near to the provisions of divorce by mutual agreement under Section 24 of the Special Marriage Act, 1954 or under Section 13-B of the Hindu Marriage Act, 1955 (as amended in 1976). Like Khula, the parties must be competent also in the Mubarar ; their consent must also be a free consent.

Legal Consequences of Khula and Mubarat

  • The legal effects of a valid Khula or Mubarat are the same as that of a divorce by any other method. The wife is required to observe Iddat and is also entitled to be maintained by the husband during the period of lddat. After completion of Khula or Mubarat, the marriage dissolves and cohabitation between the parties becomes unlawful. If the consideration in Khula is not the release of wife’s dower, the wife is entitled to get her dower. Other legal consequences of Khula and Mubarat are discussed in detail in the following pages under the head ‘Legal effects of divorce.

JUDICIAL DIVORCE (FASKH)

  • By judicial divorce we mean a divorce by the order of a court of law. Islam provides for the dissolution of a marriage by a Kazi or Judge. On the application of a wife if the marriage was found to be harmful or undesirable for her, the Kazi could dissolve the marriage. The power of a Kazi or Judge to pronounce a divorce is founded on the express words of Prophet Mohammed :
  • ‘If a woman be prejudiced by a marriage, let it be broken off
  • However, despite the Quranic injunction and the traditions of the Prophet, the Anglo-Indian courts have not recognised Muslim wife’s right of judicial divorce on grounds other than Lian and impotency of the husband. Before 1939, a Muslim wife could seek her divorce by a judicial decree only on the ground of (1) false charge of adultery by the husband against her (Lian), or (2) impotency of the husband, and on no other grounds. On the other hand, the husband need not go to the court at all as all the forms of divorce (Talaq, Illa, Zihar, Khula or Mubarat) depend solely upon his will. Therefore, under pure Muslim law, a Hanafi wife could hardly get any relief against her unwilling husband on any» other ground except the above mentioned two grounds. But under the Shafie and Maliki laws a wife was entitled to get a decree from the court for dissolution of her marriage on the grounds of husband’s failure to maintain her, desertion, ‘cruelty, etc. Therefore, there were conflicting provisions in the various schools of Muslim law in respect of divorce by a wife through judicial intervention. It was felt by the right thinking persons of the Muslim soceity and also by the Government that great injustice was being done to a Muslim wife in the matter of matrimonial relief. Accordingly; the Dissolution of Muslim Marriages Act, 1939 was enacted by the Central Legislature and it came into force on the 17th March, 1939. Under this Act, a wife married under Muslim law, may seek divorce by a judicial decree on any of the grounds enumerated therein. The Act is applicable to all the wives married under Muslim law irrespective of their schools or sub-schools,

The Dissolution of Muslim Marriages Act, 1939

  • This Act may be regarded as a landmark in respect of matrimonial relief to a Muslim wife. The wife’s right of divorce, which was denied to her due to misinterpretation and misconception of Islamic law by the courts, was restored to her under the Act. Salient features of the Dissolution of Muslim Marriages Act, 1939, may be summarised as under : .
  • (a) Section 2 of the Act contains certain grounds on the basis of any one of which a wife married under Muslim law, may file a petition for divorce, There are nine grounds in Section 2, out of which seven grounds are matrimonial guilts (or faults) of the husband which entitle a wife to get her marriage dissolved by a court of law.“ Clause (vii) entitles the wife to” exercise the right of option of puberty through a judicial decree. The ninth ground in Section 2 Clause (ix) is a residuary clause. Under this clause a wife may seek divorce on any other ground recognised under Muslim law which could not be included in the first eight grounds. For example, under this clause, a wife may seek her divorce by judicial decree on the ground of false charge of adultery against her (Lian). Thus, while giving some additional grounds of divorce to a Muslim wife, the Act has not affected her right of divorce on the ground already available under pure Muslim law.
  • (b) The grounds for matrimonial relief in Section 2 of the Act are available only to the wife, not to the husband. This is obvious because Muslim law has already given an absolute right to the husband to divorce his wife without judicial intervention and without any reason.
  • (c) For filing a petition for divorce under this Act, formerly there was a controversy as regards the age of the wife, but now there is no controversy. The Civil Procedure Code now provides that parties to a suit must be of eighteen years in all the cases including those relating to marriage, dower, divorce, etc.“ Thus, although under Muslim law the age of majority is fifteen years (age of puberty) for purposes of marriage, dower and divorce but after this amendment, a Muslim wife cannot file petition for divorce without a ‘next friend‘ if she has not attained the age of eighteen years.
  • (d) Section 4 of the Act provides that if the wife renounces Islam and ceases to be a Muslim, the marriage does not dissolve ipso-facto. This is a new provision because before 1939 the law on this point was different. At present, therefore, even after renouncing her religion, -the wife is entitled to exercise her rights of divorce etc., under this Act. The grounds of divorce are available to a “woman married under Muslim law,” therefore, at the time of filing of petition under this Act, she need not be a Muslim wife. Thus, a non-Muslim can also invoke the provisions of this Act if she was married under Muslim law.
  • (e) The Act extends to the whole of India except Jammu and Kashmir. It applies to Muslim wives of any sector school. It has, therefore, made a uniform law in respect of judicial divorce by a wife in any part of the country.

Grounds for Judicial Divorce by Wife

  • Section 2 of the Dissolution of Muslim Marriages Act, 1939, provides that a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the grounds enumerated therein. It is to be noted that benefits of this section may be given to a wife whether her marriage was solemnized before or after the commencement of the Act. That is to say, the provisions of Section 2 may be given retrospective effect. The specified grounds are as under:

(i) The husband is missing for Four Years

  • Section 2(i) provides that if the husband is missing and his whereabouts are not known for a period of four or more years, the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife, or any such person who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce on this ground, she is required to give the names and addresses of all such persons who would have been legal heirs of the husband upon his death. Paternal uncle and brother of the husband must also be included even if they are not legal heirs. The court issues notice to all such persons to appear before it and to state if they have any knowledge about the missing husband. If it is fully established that nobody knows about the whereabouts of the husband for the last four or more years, the court passes a decree for dissolution of the marriage. The decree passed by the court on this ground becomes effective only after the expiry of six months, from the date of such decree. If before expiry of six months the husband reappears in person or communicates to the court through his agent and satisfies the court that he is prepared to perform his conjugal duties, the court shall set aside the said decree and the marriage is not dissolved.

(ii) Husband’s failure to maintain the wife for Two Years

  • Section 2(ii) provides that if the husband has neglected or failed to provide maintenance to the wife for two (or more) years, the wife is entitled to obtain a decree for the dissolution of her marriage. It is a legal obligation of every husband to maintain his wife. If he fails to maintain the wife, she may seek divorce on this very ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide the maintenance. In both the cases, it amounts to failure of the husband to maintain which entitles the wife to seek dissolution of her marriage. If the husband is unable to maintain his wife due to poverty, unemployment, imprisonment, ill-health or any other misfortune, even then the wife has a right to get the decree for dissolving her marriage.”
  • It is to be noted that husband’s obligation to maintain his. wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her for maintenance under Muslim law.“ The faulty conduct of the wife due to which she is not entitled to get maintenance under Muslim law is a very good defence against her suit for judicial divorce. Thus, if a wife leaves the matrimonial home after a minor quarrel and does not come back for two years, she cannot get judicial divorce under this clause. In other words, if the wife remains away from the husband without any reason and after two years files a petition for divorce under Section 2(ii) the divorce cannot be granted. But, if the wife is living separately because of some reasonable excuse (e.g. completing her studies at another place) and husband does not provide her maintenance for two years, she has a right of judicial divorce under this clause. Where the wife lived separately because the husband had not paid her prompt dower on demand, it was held by the Patna High Court that since there was a reasonable excuse for living separately, the wife was entitled to get a decree’ for divorce on the ground of not providing maintenance to her.
  • It is to be noted that maintenance here means maintenance of the wife under the provisions of Muslim law and it has nothing to do with Section 125 of the Criminal Procedure Code, 1973 which contains independent provisions for the maintenance of wives.
  • In Yusuf Rowthan v. Swarmma, the Kerala High Court has taken a different view and held that the reason why the husband has not maintained the wife for two- years is immaterial. Even if the wife lives separately without any reasonable excuse she is entitled to get at decree of dissolution of the marriage on the ground of failure of husband to maintain her. It was held by the court that ” …. ..a Muslim woman, under Section 2(ii) of the Act can sue for dissolution, on the score that she has not as a fact been maintained, even if there is acause for it ….
  • It appears that in this case the court has laid emphasis more on the fact of mental incompatibility between husband and wife rather than on husband’s failure to provide maintenance for two years. On behalf. of the court, V.R. Krishna Iyer, J. said thus :
  • “The Islamic law’s serious realism on divorce, when regarded in the correct perspective, excludes blameworthy conduct as a factor and reads the failure to provide maintenance for two years as an index of irreconcilable breach, so that the mere fact of non-maintenance for the statutory period entitles the wife to sue for dissolution.”
  • if – However, it is respectfully submitted that the view taken by the Kerala High Court needs reconsideration, and the correct law on this point appears to be that under this clause ‘a wife may get a-judicial divorce only where the husband does not maintain her without any reasonable excuse. .

(iii) Imprisonment of the husband for Seven Years

  • Section 2(iii), read with proviso (a), lays down that a wife is entitled to get her marriage dissolved by an order of the Court of law if her husband has been sentenced to imprisonment for a period of seven or more years. The wife’s right of judicial’ divorce on this ground begins from the date on which the sentence has become final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court.

(iv) Husband’s failure to perform marital obligations for Three Years

  • Under Section 2(iv) a wife is entitled to the dissolution of her marriage if her husband fails to perform his marital obligations for a period of three years without any reasonable excuse. The Act does not define ‘marital obligations of the husband’. There are several matrimonial obligations of the husband under Muslim law. But for purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act. It is submitted, that where the husband deserts the wife or does not cohabit with her without any reasonable excuse, it amounts to failure of the husband to perform marital obligations. Such failure of the husband without reasonable justification for at least three years entitles the wife to get a decree for dissolution of the marriage. But, if the husband does not cohabit with wife for three years due to some reasonable excuse e.g. illness, or remains away from her because of his business or studies etc., the wife cannot get the decree of dissolution of marriage under this clause.

(v) Husband’s Impotency

  • Under Section 2(v) of the Act a wife may sue for dissolution of her marriage on the ground of husband’s impotency. But, for getting a decree, the wife has to prove the following two facts : (i) that the husband was impotent at the time of the marriage, and (2) that he continues to be impotent till the filing of the suit. The wife can- get divorce on this ground only if both the above mentioned facts are fully estab1ished.52’Before passing a decree of divorce on this ground, the court is bound to give to the husband one year’s time to prove his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree of divorce without delay. Where the husband is successful in proving his potency within the period of one year, the decree of divorce cannot be passed. But if he fails to contradict the allegation of the wife, ad decree dissolving the marriage is passed.
  • In Gulam Mohd. Khan v. Hasina,“ the wife filed a suit for dissolution of marriage on the ground of husband’s impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency and husband produced certificate of the Medical Board that he was potent and competent to perform sexual intercourse. But the court ordered that husband should re-examine himself by another Medical Board. The husband preferred an appeal against this order. The Jammu & Kashmir High Court held that the court has no authority to make order for re-examination by another Medical Board and that the certificate by first Medical Board is to be relied upon. In the certificate of first Medical Board husband was declared competent to perform sexual intercourse.
  • A husband is said to be impotent if he is unable to perform sexual intercourse with his wife. Impotency here means impotency with respect to his wife, not with respect to any other woman. A husband may be impotent for his wife but may be competent to perform sexual-intercourse with any other woman or may be vice-versa. Therefore, if a husband claims that he ceases to be impotent, he must satisfy the court that he is now capable of performing sexual intercourse with his wife. For establishing this fact the co-operation of the wife is necessary. But curiously enough, the Mysore High Court has held that a wife cannot be compelled to submit herself to the husband and give her co-operation for proving the fact that he is now competent to perform sexual-intercourse with his wife.
  • Husband’s impotency as a ground of judicial divorce was recognised also in the old law and before 1939 the wife was entitled to get a decree for divorce on this ground. But the Act has made some important changes in the law on this point. Main differences in the old and the present law are as under :
  • (a) In the old law, it was necessary for the wife to prove that she had no knowledge of husband’s impotency at the time of her marriage. Now, under the present law, she can obtain a divorce on this ground even if she knew this fact at the time of her marriage.
  • (b) In the old law, the wife’s suit was adjourned by the court for one year (during which the husband had to prove his potency) even if the husband did not apply for that. The present law is that the suit is adjourned only on the application of the husband. If the husband does not make any application, the decree for dissolution of marriage is passed immediately.

(vi) Husband’s insanity, leprosy or venereal disease

  • Section 2(vi) entitles a wife married under Muslim law, to obtain a divorce on the ground that her husband is insane or is suffering from leprosy or venereal disease. The husbands insanity, must be for two or more years immediately preceding the presentation of the suit. But the Act does not specify whether unsoundness of mind should be curable or incurable. However, it is submitted that the insanity of the husband must be incurable.
  • Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable (permanent); The Act neither specifies the form of leprosy nor its duration. It is submitted, therefore, that courts have discretion .to give any meaning which does justice to the spouses.
  • Venereal disease is a disease of the sex-organs. The Act provides that this disease must be of virulent (permanent) nature i.e. incurable. It may be of any duration. Moreover, even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground.

(vii) Option of Puberty by wife

  • This ground for the dissolution of marriage is not based on any ‘fault’ of the husband. It is an independent provision under which a marriage is voidable at the option of the wife. Under Section 2(vii) a wife can obtain a decree for dissolution of her marriage if her marriage was contracted by her father or any other guardian during her minority. Thus, this clause gives her the option to repudiate the marriage before attaining the age of eighteen years, provided the marriage has not been consummated. As discussed earlier, this right was available to the wife also under the old law. But this Act has made following changes in the law of option of puberty (Khyar-ul-B-ulugh) by a wife:
  • (1) Under the old law, option of puberty was not available where the minor’s marriage was contracted by father or father’s father. But now a wife may exercise this right even if she was given in marriage by her father or father’s father.
  • (2) Under the old law, the option of puberty by a wife was to be exercised by her immediately after attaining the age of puberty. Now, the Act provides that a wife can exercise this right up to the age of eighteen years, provided the marriage is not consummated earlier.

(viii) Cruelty by the husband

  • Section 2(viii) provides that a wife can sue for divorce if her husband treats her with cruelty. Cruelty of the husband was recognised as sufficient ground for divorce also before 1939. But its scope was limited only to physical tortures ; mental cruelty by husband was not a sufficient ground for dissolution of The Act has now enlarged the scope of the term. Cruelty now includes also mental torture. The Act defines cruelty by laying down following acts of the husband which are regarded as cruelty against the wife-
  • (a) Habitual assault on the wife or making her life miserable by cruelty of conduct if such a conduct does not amount to» physical ill treatment : Any conduct of the husband, which may not be a physical ill-treatment, but is of such a nature which makes the life of the wife miserable, is also a cruelty against her. If the husband stops talking to his wife for a considerably long period, or deliberately ignores her, it may make her life miserable although there is no physical assault in it. Similarly, if the husband habitually abuses the wife or repeatedly makes insulting statements against, her character, the conduct of the husband may be regarded as mental cruelty against the wife.
  • The Indian courts are now giving a wide meaning to the term ‘curelty’. Syed Ziauddin v. Parvez Sultana,” is a case which clearly illustrates the court’s attitude of giving a wide meaning to the expression ‘cruelty’ under this clause. The facts of the case are given below. Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziauddin promised in writing that he would give financial help to Parvez Sultana, for pursuing her medical studies provided she marries with him. Parvez Sultana married him. But after the marriage, Ziauddin refused to comply with his promise. Parvez Sultana then filed a suit for the dissolution of her marriage on the ground of fraud and non-fulfilment of a written promise which was the basis of her Nikah. Ziauddin also filed suit for the restitution of conjugal rights. In defence of husband’s suit for restitution of conjugal rights, the wife gave certain statements. After this, Ziauddin filed a criminal complaint under Section 499 I.P.C. for alleged defamation by the wife in her written statement. It- was held by the court that the criminal complaint was filed by the ‘husband to drag the wife to the court. In the present circumstances it amounted to cruelty under this clause. Moreover, the cruelty by husband was also established by the fact of deliberate withholding of money and facilities needed by the wife for her education when the husband had the means necessary to provide for the same. Accordingly the divorce was given to the wife and husband’s suit for the restitution of conjugal rights failed.
  • (b) As regards mental cruelty as a ground for judicial divorce, two significant points must be noted. First, mental cruelty cannot be defined. Therefore, any type of husband’s conduct which causes mental tension and hurts the feelings of the wife is a cruelty against her under this clause. Secondly, any single incident of assault or use of insulting language by the husband will not be regarded as a cruelty by the husband under this clause. Decree for the dissolution of marriage on the ground of mental cruelty is to be given only when the husband frequently ill-treats the wife, and the court is satisfied that due to malicious behaviour of the husband it is impossible for the spouses to live together.
  • (c) Association of the husband with women of evil repute or that he leads an infamous life : Here again, we find that a single incident of the association of husband with any bad woman (e.g. prostitute or call-girl) will not attract the provision of this clause. The husband’s conduct is cruelty against his wife only when he habitually associates with women of bad character or prostitutes.
  • (d) The husband attempts to force his wife to lead an immoral life : It would be a great mental torture for a chaste and pious wife if she is compelled by her husband to live in corruption and immorality against her wishes. Where a husband compels his wife to lead an immoral life, his conduct is obviously a mental cruelty against his wife. The husband disposes of her property or prevents her from exercising her legal rights over it : This conduct of a husband is regarded as cruelty only where he sells or otherwise transfers a substantial portion of his wife’s property without her consent and this disposal hurts the feelings of the wife. It would be wrong to say that the husband’s conduct is cruel where he sells a nominal property (say valuing Rs. one or two) or where he sells the ornaments of the wife for medical expenses in the wife’s illness or for the advancement of her career. In Zubaida Begum v. Sardar Shah,59 a case from Lahore High Court, the husband sold the ornaments of his wife with her consent. It was held by the Court that the conduct of the husband cannot be treated as cruelty against the wife, Abdul Rahman, J. observed : ” …. ..I should interpret the word ‘property’ in the sense of a substantial portion of a wife’s property and its disposal in the sense of getting rid of that property not for the wife’s benefit but for the selfish ends of the husband, not with the object of meeting a pressing need but more in the sense of waste …. ..
  • However, it is submitted that the test whether a disposal of wife’s property is cruelty against her is neither the valuation of the property nor the circumstances in which it has been disposed off. The real test is, whether the disposal hurts the feelings of the wife or not. For example if a husband sells the wedding-ring of the wife against her wishes then although its value may be small, but it may be sufficient to hurt her sentiments. Mulla rightly observes that “sub-clause (d) should be read with the opening words of Section 2(viii) and the disposal by the husband of wife’s property must be of such a nature as to amount to cruelty to the wife. This is a question of fact in each case.
  • (e) The husband obstructs her in the observance to her religious profession or practice : But under this clause the husband’s restrictions on wife’s religious practice must be of such nature which affects the fundamental religious belief of the wife. A direction restraining the wife not to follow blindly the orthodox rituals, may not be cruelty. In Aboobacker v. Mamu Koya, the husband used to compel his wife to put on a Sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought a divorce under Section 2(viii)(e) of the Act saying that since the husband compels her to do something which is against her religious profession and practice, it is mental cruelty by the husband. It was held by the Kerala High Court that the conduct of the husband cannot be regarded as curelty because mere departure from standards of suffocating orthodoxy does not constitute un-Islamic behaviour.
  • (f) If the husband has more wives than one and he does not treat her equitably in accordance with injunctions of Quran : The Quranic provision regarding equal treatment to two or more wives has already been discussed. If a husband, having two wives, favours one and ignores the other, the wife so ignored may sue for divorce on the ground of mental cruelty.  Where one of the wives left the husband because of his ill-treatment, and the husband made no efforts to persuade her to come back, inequality was established and the wife was entitled to the judicial decree on the ground of cruelty.
  • Regarding the husband’s cruelty as a ground for dissolution of marriage, it may be concluded that cruelty under the present Act means not only physical assault by the husband which endangers the life of the wife, but it also includes the mental torture. What amounts to mental torture has clearly been defined in Section 2(viii) of this Act. But the courts are, it is submitted, free to include any other conduct of the husband as ‘mental cruelty‘ against the wife. The court is not bound to interpret the word cruelty only under the defined instances of Section 2(viii) of the Dissolution of Muslim Marriages Act, 1939. In It wari v. Asghari,53 Allahabad High Court rightly observed that Indian law does not recognise various types of cruelty such as ‘Muslim cruelty‘, ‘Christian cruelty’, ‘Hindu cruelty‘ and so on, and that the test of cruelty is based on universal and humanitarian standards ; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health.

(ix) Any other ground which is recognised as valid for the dissolution of marriage under Muslim law

  • Section 2(ix) a residuary clause under which a wife may seek dissolution of her marriage on any ground which could not be included in this section, but is recognized under the Muslim personal law. As discussed earlier, before,1939, a false charge of adultery by the husband against his wife (Lian) was a sufficient ground for judicial divorce under Muslim law. This ground of divorce may be invoked by a wife under this clause.
  • Lian (False charge of adultery against the wife)
  • If a Muslim husband accuses his wife of adultery and of being unchaste, he has to prove it. If the husband fails to prove the charge of adultery and his allegation is found to be false, then wife is entitled for the dissolution of her marriage on the ground of Lian. It is to be noted that mere false allegation of the adultery by a husband does not dissolve the marriage, the wife has to file a suit for it. Where a wife files suit in a court of law, the husband is called upon to confirm his allegations on oath. At this stage, the husband has two alternatives, He may either withdraw his charges or confirm on oath that –his allegations are true. If the husband withdraws his allegation the wife cannot get divorce. The husband may withdraw his allegations any time before the end of the trial.“ If the husband does not withdraw his charges, he has to establish it in the court. If he is successful in establishing that his wife is actually guilty of adultery, the wife’s suit for divorce fails. But, if the husband is unable to prove the charge, a decree for the dissolution of her marriage is passed by the court.
  • However, it is only a ‘voluntary and aggressive charge’ of adultery made by the husband which, if false, would entitle the wife to get decree of divorce on the ground of Lian. Where a wife hurts the feelings of husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.
  • Clause (ix) : A Residuary Clause
  • It is significant to note that clause (ix) of Section 2 of the Dissolution of Muslim Marriages Act is not limited to Lian. The wife may seek the decree for dissolution of her marriage “on any other ground which is recognised as valid under Muslim law” but could not be included in the above-mentioned clauses of Section 2 of this Act. This has been interpreted to mean that if a wife finds that it is impossible for her to continue the marriage and that her marital life has totally been broken down then she should not be compelled to live with the husband for want of any defined ‘ground’ for divorce. Where the court is satisfied that marital-relations between the spouses have actually been broken-down beyond reasonable doubt, the court may include any reason or ground for giving relief to wife. In Muhammad Usman v. Sainba Umma,“ the Kerala High Court has held that Section 2(ix) is a residuary ground where courts have an area of discretion and freedom to dissolve the marriage. In this case, the wife filed petition for dissolution of marriage under the Act. But she did not mention any specific ground for her divorce. Although the husband was a drunkard but the wife had not expressly admitted even mental cruelty by husband in clear terms. However, the wife said that she was living separately since 1981 and that she hated her husband. The court observed that if spouses are “living with hostility for considerable number of years, it is legitimate to draw inference that the marriage has broken down in reality and the law should recognise it and try to end the relationship”. Accordingly, the Court dissolved the marriage. It may be noted that although there was no ‘express ground‘ as mentioned in the Dissolution of Muslim Marriages Act, the court in this case has granted judicial divorce at the instance of wife because of mental incompatibility between the spouses.
  • Section 2 (ix) has been regarded as the ‘residuary clause’ because it is the last clause which entities a wife to seek decree for dissolution of her marriage in absence of any of the grounds expressly provided under the Act. This clause has been interpreted by courts to give new dimensions to ‘mental cruelty’ in the light of changing socio-economic changes in the Muslim community of the modern sensibility. Under this clause complete ‘break-down’ of matrimonial relations or total mental incompatibility in itself, has been regarded as a ‘reasonable ground’ for dissolution of the marriage. Such interpretation of this clause would not only be rational, realistic and modern approach but generally it would also be in consonance with Islamic policy of dissolution of marriage.

Effects of Apostasy on Marriage

  • Apostasy means renouncing or giving up one’s religion. Before 1939 if either of the party to a marriage renounced Islam, the marriage dissolved immediately whether the renunciation of Islam was by husband or by the wife. But after the commencement of the Dissolution of Muslim Marriages Act, 1939 law on this point has been modified by Section 4 of this Act. The present law relating to the effects of apostasy by husband or wife, may be summarised as under:
  • (1) Apostasy by Husband : If a Muslim husband renounces Islam the marriage dissolves immediately. Section 4 of the Dissolution of Muslim Marriages Act, 1939, does not apply to apostasy by a husband. The result is that apostasy by the husband is still governed by the old law under which renunciation of Islam by the husband operates as immediate dissolution of the marriage.
  • Where a Muslim husband converts to another religion (say Christianity), his marriage is immediately dissolved and the wife ceases to be a Muslim wife of that husband. As such, the wife is not governed by Muslim law and is free to marry another person (immediately) without waiting for the Iddat period.
  • (2) Apostasy by Wife : If a Muslim wife renounces Islam, the marriage is not dissolved. In other words, the apostasy by a Muslim wife does not operate as immediate dissolution of the marriage. She continues to be a wife married under Muslim law. Moreover, even after renouncing Islam, if the wife wants, she may obtain a decree for the dissolution of her marriage on any of the grounds specified in Section 2 of the Act.
  • (3) Exception : The provision given in (2) above, does not apply if the wife was not a Muslim by birth. That is to say, where the wife was a converted Muslim at the time of her marriage, and such converted Muslim wife renounces Islam and again embraces her original religion, then the marriage dissolves immediately. Thus, an apostasy by a converted Muslim wife results in the immediate dissolution of her marriage.
  • Note : Section 4 of the Act has no retrospective operation. Therefore, apostasy by a wife before 1939 dissolved the Marriage immediately i.e. as soon as she renounced Islam.

LEGAL EFFECTS OF DIVORCE

  • Whatever be the mode, a divorce operates as a complete severance of the matrimonial relationship between husband and wife. After completion of every form of divorce, the marriage is dissolved and the parties cease to be husband and wife. Effects or the legal consequences of a divorce are given below :
  • (1) Cohabitation becomes illegal Cohabitation between the husband and wife becomes unlawful after completion of the divorce.
  • (2) Iddat : The wife is required to observe an Iddat of three lunar months after the divorce or, if pregnant, till the delivery of the child. However, if the divorce takes place before consummation, the wife need not observe Iddat.
  • (3) Maintenance during Iddat During the period of Iddat, the divorced wife is entitled to be maintained by her former husband. Maintenance of divorced wife is now governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. Under this Act to the former husband is liable to maintain the divorced wife only up to the period of Iddat.
  • (4) Right to contract another marriage Both the parties are free to contract another marriage with other persons. Thus, husband can marry another woman immediately after the divorce. But a divorced wife cannot marry another husband before the expiry of the period of Iddat. If their marriage had dissolved before the consummation, the wife is also free to contract another marriage immediately after the divorce. However, if the—husband has four wives at a time and one of them has been divorced, the husband too cannot contract another marriage during the lddat of the divorced wife.
  • (5) Dower : The unpaid dower becomes immediately payable to the divorced wife. Whether the dower is Prompt or Deferred, the divorced wife is entitled to it immediately after the divorce.
  • If the marriage was consummated, she is entitled to the full amount of her Specified Dower ; if the divorce takes place before consummation then she is entitled to only half of the Specified Dower. Where dower was not specified, she is entitled to Proper Dower ; but if divorce takes place before consummation, she is entitled to get only some presents.
  • It is to be noted that Section 5 of the Dissolution of Muslim Marriages Act, 1939, provides that the Act does not affect, in any manner, the right to dower –which a married woman may have under Muslim law on the dissolution of her marriage. Therefore, where a wife seeks a judicial divorce under this Act her right to claim dower is not lost she is entitled to dower in accordance with the rules of Muslim personal law.
  • (6) Remarriage between the divorced couple : After completion of divorce, the parties cease to be husband and wife. There is no restriction in their re-marriage with other persons. But, there is some restriction in the re-marriage of the divorced couple. Muslim law prescribes certain special rules for the re-marriage between divorced husband and wife. These special rules are given below :
  • (a) The re-marriage of the divorced couple must be a fresh contract of marriage S with all the essential formalities including fresh dower. If the divorced couple resume cohabitation without contracting a fresh marriage, their union would be unlawful.
  • (b) The divorced couple cannot remarry even by a fresh contract without adopting the following special procedure :
  • (i) After completion of divorce the divorced wife observes the required Iddat. When lddat is completed, the divorced wife contracts a valid marriage with another person. This marriage with the other person should not be merely a formality. It must be consummated.
  • (ii) The marriage with such other person dissolves. The husband either voluntarily divorces the wife or is himself dead and the wife observes Iddar.
  • (iii) Now, after the expiry of this Iddar, the wife may lawfully remarry the former husband.
  • Thus, we find that for a lawful remarriage between the divorced couples, two conditions are necessary : First, there must be a fresh contract of marriage between them and secondly the prescribed ‘special procedure‘ must be followed. If there is fresh contract but special procedure has not been followed, the marriage is irregular. But, if there is no fresh contract, the marriage is void. That is to say, if there is mere resumption of cohabitation there is no re-marriage and the union is void.
  • Rashid Ahmad v. Anisa Khaum, is a leading case on this point. Briefly, the facts of this case were : Ghiyasuddin, a Sunni husband, divorced his wife Anisa Khatun irrevocably by pronouncing three Talaqs. He pronounced the Talaq under the undue influence of his parents when the wife was not present there. After sometime, the husband resumed cohabitation without formally remarrying and without adopting the special procedure. Five children were born to them after this resumption of cohabitation. After the death of the husband, the children and the widow Anisa Khatun, claimed their share in the property as heirs of the deceased. Their claim to inherit the property was challenged by Rashid Ahmad, who was brother of the deceased husband. Rashid Ahmad pleaded that after triple divorce the marriage of Ghiyasuddin and Anisa Khatun was dissolved. In their re-marriage, the conditions prescribed by Muslim law for re-marriage of divorced couple were not followed. Since they resumed cohabitation without fulfilling these conditions, the re-marriage was void and Anisa ‘Khatun (widow) and her children have no right of inheritance. The Privy Council ‘held that : as there was nointermediate marriage (with another person) the bar to remarriage was not removed. The court further observed that there was no proof of any regular re-marriage ; the parties simply resumed cohabitation. In view of these circumstances, the court held that the union of ‘Ghiyasuddin and Anisa Khatun after the triple divorce, was void. The children, thereforeywere held to be illegitimate and neither the children nor the widow could inherit the properties.
  • Khadija v. Muhammad,” is an interesting case from Kerala High Court. The husband had divorced his wife irrevocably by three pronouncements. After a long period, the husband ‘remarried’ her under a fresh contract of marriage and took her to his house. But in the meantime, the wife had not married any other person as required under Muslim law. After few months of this remarriage, they quarelled and the husband divorced his wife onceagain. But during this short period cohabitation had taken place and a child was conceived and later born. The wife claimed maintenance for this child under Section 125 of the Cr.P.C. The husband objected her claim on the ground that his ‘remarriage’ was not lawful according to the provisions of Muslim law as there was no intervening marriage with a stranger. He further argued that their union after the remarriage was adulterous and illegal union, therefore, the child was illegitimate and not entitled to maintenance. It was held by the Kerala High Court that if there is an irrevocable divorce by three Talaqs the spouses cannot remarry without fulfilling the prescribed conditions. But if the spouses remarry (with all the required formalities of a fresh marriage) then although the prescribed condition of marriage with another person and subsequent divorce by that person has not been followed, the remarriage is not void ; it is merely irregular. Children of irregular (fasid) marriage are legitimate. As such, the child was legitimate and was entitled to maintenance under Section 125 of the Criminal Procedure Code.
  • (7) Mutual rights of inheritance ceases ; Upon the completion of a divorce i.e. when it becomes irrevocable, the mutual rights of inheritance between the spouses cease. That is to say, if husband dies after the divorce, the wife is not entitled to inherit his properties. In the same manner, if the wife dies, the husband cannot inherit her properties. But, if the divorce was pronounced during the husband’s death-illness (Marz-ul-Maut), this general rule is not applicable.

Divorce During Death-illness (Marz-ul-Maut)

  • Death-illness is that illness which causes apprehension of death in the mind of a person that his (her) death is certain and that person subsequently dies due to that very illness. Death-illness is not the name of any particular illness or disease. Any disease or illness can be death-illness, provided it causes apprehension of death in the mind of the person. Muslim law presumes that during death-illness a person does not have ab normal state of mind. Therefore, special rules have been provided for activities during death- illness of a person. Where a husband divorces his wife during death-illness, the wife’s rights of inheritance are subject to following rules:
  • (a) Under Sunni law, if the husband dies during wife’s lddat, the divorced wife is entitled to inherit provided the wife herself had not requested for the divorce. But, if wife dies during Iddat, the former husband cannot inherit her properties.
  • (b) Under Shia law, if the husband dies within one year after the divorce, the divorced wife is entitled to inherit the husband’s properties. But, in case wife dies (within one year of divorce) her husband is not entitled to inherit her properties.
  • (c) In the above circumstances, if the divorced wife has married another person (before, death of former husband) she is not entitled to inherit her former husband’s properties.

          PAHUJA LAW ACADEMY

        MUSLIM LAW

         Dissolution of marriage

       Preliminary

  1. A Muslim can divorce his wife

(a) whenever he so desires without assigning any cause

(b) whenever he so desires but only with a cause

(c) whenever he so desires without assigning any cause but only in the presence of the wife

(d) either (b) or (c).

  1. A Muslim can divorce his wife

(a) in the presence of his wife

(b) in the absence of his wife

(c) either (a) or (b)

(d) only (a) & not (b).

  1. When the divorce proceeds from a Muslim husband, it is called

(a) talaq

(b) khula

(c) mubara

(d) talaq-e-tafusid

  1. A Muslim wife

(a) can divorce herself from her husband without his consent

(b) cannot divorce herself from her husband without his consent

(c) can divorce herself from her husband without assigning any cause

(d) both (a) & (c) are correct.

  1. A strict adherence of certain form of divorce has been prescribed under

(a) Hanafi law

(b) Ithna Ashari law

(c) both (a) & (b)

(d) neither (a) nor (b).

  1. Pronouncement of talaq can be

(a) revocable

(b) irrevocable

(c) either revocable or irrevocable

(d) only irrevocable and not revocable.

  1. A talaq can be effected

(a) orally by spoken words

(b) in writing

(c) only (a) and not (b)

(d either (a) or (b).

  1. ‘Ahsan’ is a kind of

(a) talaq-al-sunna

(b) talaq-al-bida

(c) both (a) and (b)

(d) neither (a) nor (b).

  1. A single pronouncement of divorce made during a tuhr followed by abstinence from sexual intercourse for the period of iddat is called

(a) talaq hasan

(b) talaq ahsan

(c) talaq-ul-bidaat

(d) talaq-i-badai.

  1. Talaq ahsan is

(a) revocable during the tuhr in which it has been pronounced

(b) revocable until the next successive tuhr

(c) revocable during the period of iddat

(d) irrevocable.

 

MUSLIM LAW

GIFT

MAINS Questions

 

  1. A father made a gift inter vivos to his minor son. Critically examine the validity of the said gift in the light of the essentials of hiba under Mohammadan law.

 

  1. Rehman is suffering from blood cancer and is bedrideden. When he came to know it he gave all his property in favour of his wife by way of gift. Six month later he dies. His legal heirs challenge the gift (HIBA). Will they succeed?

 

  1. a Muslim executed a deed of gift of a house in favour of D. At the same of gift the house was in possession of A who claimed it adversely to C.D sues A to recover possession of the house as donee of the property and joins C also as defendant. C in his written statement admits claim of D. A contends that the gift is void since C had no possession of the house at the date of the gift and no possession was ever given to D. decide.

 

4.A gift of a house was made by donor X to donee Y without delivering the title deed, no mutation of name was effected and the donor continued t pay the house tax. Comment whether gift is valid?

 

  1. Explain the gift of Mushaa.

   

MUSLIM LAW

GIFT

  • Gift is transfer of property in which ownership is transferred by a living person to another living person and transfer is made without any consideration.
  • A transfer inter vivos.
  • Gift is a gratuitous transfer.
  • When a Muslim transfers his property through gift , it is called Hiba. The religion of the person to whom the gift is made , is not relevant.
  • Gifts made by Muslims are governed by Muslim personal law but gifts made by non Muslim are governed by Transfer of Property Act,1882.
  • Hedaya defines Hiba, Hiba is an unconditional transfer of ownership in an existing property , made immediately and without any consideration.
  • Mulla defines gift as “ Hiba is transfer of property , made immediately, and without any exchange, by one person to another , and accepted by or on behalf of the latter.
  • The characteristic features of gift are as follows:
  1. Gift is a transfer by act of the parties not a transfer which takes place by operation of law.
  2. It is a transfer of an absolute interest in the property. There cannot be a gift of limited or partial interest of a property.
  3. It is a transfer of property without any consideration.
  4. The property must be in existence at the time when the gift is made . gift of a future property is void.
  5. In a gift , the transferor intends to transfer the property immediately to the transferee.

ESSENTIALS OF VALID GIFT

  1. Declaration
  2. Acceptance
  3. Delivery of possession

 

  1. Declaration of gift
  • donor and donee
  • under muslim law writing is not necessary to make the gift valid whether the property is movable or immovable.
  • S .123 of TPA provides that gift of immovable property must be in writing and registered.
  • In Ilahi samsuddin v. Jaitunbi Maqbul, the supreme court held that under Muslim law, declaration as well as acceptance of gift may be oral whatever may be the nature of the property gifted. Where a property is made in writing , this is called Hibanama . This gift deed need not be on stamp paper and also need not be attested or registered.
  • Hesabuddin v. Md. Hesaruddin , Muslim woman made a gift of her immovable properties to her son. The gift was written on ordinary paper and was not registered. The Guahati High Court held that the gift was valid because under Muslim law writing and registration is not essential condition for the validity of gifts.
  • The declaration must be made in clear words.
  • Free consent of Donor
  • Bona fide intention.
  • Donor must be a competent person. Every Muslim is competent to make a gift if he has capacity as well as right.
  • Capacity
  1. The donor must be adult at the time of making gift.
  2. Sound
  3. Muslim
  • Right

A donor has right to make gift of only those properties of which he is owner.

Any person including Muslim does not have right to declare a gift of non transferable  properties.

  1. Acceptance of gift.
  • Gift is a bilateral transaction.
  • Acceptance signifies the intention of the transferee to take the property and become its owner.
  • The donee may be any person in existence.
  • Whether the gift can be made in favour of the child in the womb.
  • Is it possible to make gift in favour of minor and insane ?
  • Whether the gift can be made in the favour of Juristic person.
  • Gift to two or more donees must be accepted by all of them separately.
  • A gift to two or more donees without specifying their respective shares and without giving them separate possession has also been held to be valid. In such cases the donees take the property as tenant-in-common.

 

  1. Delivery of Possession
  • Under Muslim law, a gift is complete only after the delivery of the possession. Therefore, the gift takes effect from the date on which the possession of the property is delivered to the donee; not from the date on which the declaration was made.
  • The donor must divest himself of not only the ownership, but also of possession in favour of the donee to complete the gift. Delivery of possession is so important in the Muslim law of gifts (Hiba) that without delivery of possession to the donee, the gift is void even if it has been made through a registered document.
  • Muslim law does not presume transfer of ownership rights from donor to donee without the delivery of possession of the property.
  • A delivery of possession may be either (i) actual or (ii) constructive.

(1) Actual Delivery of Possession

  • Where a property is physically handed over to the donee, the delivery of possession is actual.
  • Generally, only the tangible properties may be actually delivered to the donee. A tangible property may be movable as well as immovable. For example jewels, money, vehicle etc. is tangible movable property and house, land etc. is tangible immovable property. Where the property is movable, it must be actually transferred and handed over to the donee; a mere entry in a register or account book is not sufficient and does not constitute a delivery of possession.
  • Similarly, where the property is immovable, its actual delivery of possession is also necessary to validate the gift. But the immovable properties cannot be picked up and handed over to the donee. Therefore, if the gifted property is a land, house or a garden, the donor may deliver the possession by giving up all dealings with the property and by placing it at the complete disposal of the donee so that the donee may use it as he likes. Thus, where the donor makes a gift of his house in which he is residing, he must vacate it and ask the donee to live in it. Delivery of possession in case of a garden may be ‘completed’ by giving to the donee full control over it, including all rights to enjoy the fruits and the flowers. Similarly, where the subject matter of a gift is an agricultural land, its delivery may be made by allowing the donee to plough the field or to reap the crops.

 (2) Constructive Delivery of Possession

  • Constructive delivery of possession means a symbolic transfer of property. Delivery of possession is constructive if property is not actually delivered but the donor has done some act due to which it is legally presumed that the possession has been given to the donee. Where the property is of such a nature that its physical possession is not possible and it cannot be delivered actually, a constructive delivery of possession is sufficient to complete the gift. Constructive delivery of possession is sufficient to constitute a valid gift in the following two situations :

(i)            Where the property is intangible property.

(ii)           Where the property is tangible property but, under the situations, its actual or physical delivery of possession is not possible.

  • Intangible Properties
  • It is interesting to note that there are certain properties which have no physical existence i.e., they cannot be perceived through senses. Such properties are called intangible or incorporeal properties. Although an incorporeal property cannot be possessed but it can be owned and its owner may make a lawful gift of it. Therefore, in the gifts of incorporeal properties, only constructive delivery of possession is possible which, under the law, fulfils the requirement of a valid gift. Any such act of the donor which indicates a clear intention that he has relinquished all the benefits of the property, gifted, may be regarded as constructive delivery of possession.
  • All that is required to constitute a constructive delivery of possession is an ‘overt act’ by the donor. Therefore, the modes of constructive delivery of possession may differ from case to case. Thus, where a gift is made of certain Zamindari rights, the delivery of possession is legally presumed by mutation of names i.e., by change of names in the revenue records.
  • It must be noted that an act of the donor may amount to a constructive delivery of possession only where such an act is sufficient to give to the donee the rights over the gifted property.
  • In the leading case, Aga Mohamed Jafler v. Koolsom Beebee if a husband gave to his wife a bank receipt issued in his favour from a bank where he had deposited some money. After giving the bank receipt to his wife, he said, after taking a bath, In shall go to the bank and transfer the account in your name”. Unfortunately, the husband died before he could transfer the money in favour of his wife. The widow as a donee, claimed the amount on the ground that there was a declaration and acceptance of the Hiba and there was also a delivery of possession because the husband (donor) had handed over the bank-receipt to her. But, the Privy Council held that giving of the bank receipt to the wife does not amount to a constructive delivery of possession because this was not an appropriate method of transferring the account. If the account could have been transferred, the delivery of possession could have been construed; the widow had no right to draw the money without the transfer of account in her name. Moreover, it was found that the margin of the receipt contained the words, ‘not transferable‘. Accordingly, the court held that Hiba in favour of the widow was not valid because there was no delivery of possession, sufficient to give rights to the donee, under the law.

Property held Adversely to Donor

  • A property is said to be held adversely to donor if it is in wrongful possession of some other person. Where the property is held adversely to donor, the donor must first of all obtain the possession himself and thereafter deliver it to the donee. If the donor whose property is held ‘adversely to him, does nothing except declaring the gift of that property, the gift is void. In Maqbool Alam Khan v. Mst. Khodaija, the Supreme Court has held that if the gifted property is in the wrongful possession of a trespasser, a mere declaration and acceptance would not complete the gift. In such cases, there must be either (actual) delivery of possession or some overt act by the donor to put the property in power of the donee to obtain possession. The Court observed further that if apart from making declaration of gift of a property held adversely to him, the donor does nothing else the gift is invalid.
  • Where a donor whose property is in the adverse possession of another person, has done everything which entitles the donee to get the possession, a constructive or symbolic delivery of possession takes place although the possession is not given immediately to the donee. A whose property is held in adverse possession by Z, makes a gift of that property to B. The gift is duly executed by A and is accepted by B. The donee B, files a suit against Z for obtaining the possession and also joins A (donor) as the defendant party. In the written statement A admits the claim of-B whereas Z argues that gift to B is void because there was no delivery of possession by A to B. In this illustration we find that although there was no actual delivery of possession by the donor, as he himself had no possession, yet his admission, of B’s claim in the written statement must be taken as a constructive delivery of possession. In Mahomed Buksh v. Husseini Bibi, where the facts were similar to the illustration given above, their Lordships of the Privy Council observed that under these circumstances there can be no objection as to the validity of the gift on the ground that donor had no possession at the time of the gift which could be given‘ to the donee. The Court further observed that the donor did all that ‘could perfect the contemplated gift and that nothing more was required from the donor to complete the gift. But, it must be remembered that where the property is in the adverse possession, there must be some ‘overt act’ on the part of the donor to indicate his intention of parting with the possession.

Registration Neither Necessary Nor Sufficient

  • Under Muslim law, registration is neither necessary nor sufficient to validate the gifts of immovable properties. A gift of an immovable property made by any person in India, except a Muslim, is not valid unless it is-in writing and is duly registered. According to Section 123 of the Transfer of Property Act, 1882, in the gift of movable properties, registration is-not compulsory but in a gift of immovable property, registration is necessary irrespective of the valuation of the property. A transaction which is required to be registered under the law, must be in writing, signed by transferor and attested by two competent witnesses. But, as pointed out earlier, Section 129 of the Transfer of Property Act specifically provides that the abovementioned provisions are not applicable to gifts made by Muslims. The result is that the only mode of effecting a gift by a Muslim is the delivery of possession, whether the property is movable or immovable. A Hiba of moveble or immovable property is valid whether it is oral or in writing; whether it is attested and registered or not, provided the delivery of possession, has taken place canning to the rules of Muslim law. Thus, writing and registration is not necessary to Iii a gift of any kind of property whether movable or immovable.
  • Under Muslim law registration is also not necessary to constitute a valid Hiba. A Hiba is valid only where the actual or constructive delivery of possession has taken place an ii has been made through a duly registered deed. In a gift made by a Muslim, the manual cure the want of the delivery of possession, For example, if A makes gift of house to B through a duly registered deed (Hibanama), but does not give possession to B, the gift is void.
  • In Abdur Rahman v. Athifa Begum, where possession of the gifted property was not given to the donee and the donee had no actual or symbolic possession of property till death of donor, it was held by Karnataka High Court that gift was not valid.
  • —It is interesting to note that although under Muslim law registration is not necessary to complete a gift, yet the common practice among the Muslims in India is that quit from the delivery of possession, they make the Hiba also by registering the document. The reason is simple. Registration has got an important evidenciary value and is regarded as the legal proof of a transfer of property. Where a Hiba is made without registration, it may be difficult to prove the transfer on any subsequent date if the witnesses have died or the document itself is lost or destroyed.

When the delivery of possession is completed ?

  • Under Muslim law, a gift is complete only after the delivery of possession. If the delivery of possession itself is incomplete, the gift also remains incomplete and the title of the property does not pass on to the donee. As to when a donee becomes the owner of the property depends upon the fact as to when the delivery of possession was completed.
  • In respect of movable properties, the delivery of possession is said to have taken place at a time when the property is physically transferred to the donee. But, in respect of the immovable or incorporeal properties, it is difficult to prove the exact time of the delivery of possession. However, in India, there are two judicial ‘views regarding the exact time of the completion of delivery of possession.
  • First, a constructive delivery of possession is complete as soon as the donee starts getting benefits out of the gifted properties. This may be called as the benefit theory. The real test is : from which date the donee is reaping the benefits of the property? Where the donor continues to derive the benefits, the transfer is not complete. But, if the donee enjoys the benefits, the delivery of possession is deemed to have taken place.
  • Tyabji observes : “Where there is any immediate benefit to be derived from possession, the reaping of that benefit is taking possession, and though symbols may be useful to fix the exact point of time, they cannot take the place of actually deriving the benefit from the subject of the gift nor of exercising acts of ownership over it.
  • This judicial proposition lays emphasis upon the fact of donee’s benefits from the gifted property instead of the act which symbolises constructive possession. According to this approach, the delivery of possession takes place on the date from which the done derives the benefit directly or indirectly. Thus, where a house on rent has been gifted, the delivery of possession is given to the donee from the date on which the donee gets the rents, front the tenant.
  • Secondly, the delivery of possession is completed on the date on which the donor intends‘ to transfer the possession to the donee. This view may conveniently be called as the ‘Intention theory’. The intention of the donor is to be proved on the basis of facts which may differ from case to case. But there must be some cogent proof of the intention of the donor that he has physically done everything what he could in the given circumstances. For example, where donor and donee are living in the same house which is the subject matter of gift, the donor’s intention to part with the possession is sufficiently proved if the donee has been authorised to manage the house.
  • In other words, a delivery of possession is deemed to have taken place at a time when the bona fide intention of the donor to complete the gift is fully established. Further proof of the date from which the donee reaps the benefits of the property donated, is not necessary. But a clear proof of the intention of the donor is difficult. It depends upon the facts such as, the conduct “of the parties or the circumstances in a particular transaction, and also the nature of the property and these facts are not always easy to establish.
  • However, none of the two approaches are self-sufficient to explain the exact moment of the completion of delivery of possession in each and every case. It is therefore submitted that in- some cases the exact time of the completion of the delivery of possession may be ascertained by the benefit theory whereas in others, by taking into account the intention of the donor.

Who may Challenge the Delivery of Possession ?

  • The question whether a’ delivery of possession has taken place at all or not, is relevant only when it has actually been challenged in a gift. It is not necessary to prove separately in each and every case that the delivery of possession was completed.
  • But, only donor or donee or persons claiming under them, can challenge the validity of a gift on the ground that delivery of possession has not taken place. stranger has no right to challenge the validity of gift. In S. Chen v. Batulbai, a Muslim woman made a gift of a portion of her house to her daughter. The gifted portion of the house was occupied by a tenant who used to pay the rents regularly to the daughter (donee) as landlady. After sometimes, the tenant refused to recognise the daughter (donee) as his landlady on the ground that gift in her favour was void because there was no delivery of possession. The Madhya Pradesh High Court held that objection as to the validity of gift on the ground of absence of delivery of possession cannot be raised by “the tenant who is a stranger to the transaction of gift. The court observed that the question whether possession has been delivered by donor to donee is relevant only when an issue is raised between donor or those claiming under him on one side, and the donee or those claiming under him on the other.

Gift to Minor or Lunatic

  • A gift in favour of a minor or insane person is valid. But, the gift to a minor or lunatic must be accepted by the guardian of the minor or lunatic. The delivery of possession is also completed by such guardians. That is to say, where a gift is made to a minor or to a lunatic, the gift is complete if the guardian has taken actual or constructive possession of the property on behalf of such persons. The persons who are entitled to act as guardians for taking possession of the property are: (i) father, (ii) father’s executors, (iii) paternal grandfather, and (iv) paternal grandfather’s executors. These persons act as guardians for the purposes of gifts in the same order of priority as given above, In the absence of any of the above-mentioned legal guardian, the possession may be taken by any person having lawful custody of the minor, or the de facto guardian.
  • According to Tyabji, “The Fatwa Alamgiri and Hedaya lay down that possession of a gift may be  taken, on behalf of a minor, by a person who is the guardian not of the minor’s property, but of his person ; and as an extension of this rule, anyone who has the actual care and custody of the person of a minor, is so authorised. The transfer of possession to such a person (the defect guardian) is however, valid only in case the father is absent.
  • Where a gift to a minor or lunatic is made in which the delivery of possession is taken by a person who is neither a legal guardian nor a de facto guardian the gift is ineffectual and void. For example, a gift was made by a maternal grandfather to his minor grandson. The possession was taken by the minor’s mother while the father was alive, the gift was held to be void. Similarly, where a person gifted his properties to his paternal grandson without giving the possession to minor’s father, the Privy Council held the gift void because delivery of possession was not taken by any competent guardian.
  • However, it is interesting to note that the strict rule of Muslim law that a gift to a minor must be accepted by a competent guardian, has been relaxed on several occasions: In some cases, where the gift is made to a person who is mature enough to understand the nature of the transfer but is under the age of eighteen years, the gift has been held valid although the acceptance and possession was made by incompetent guardian. Whether the minor has reached at the age of discretion (i. e. age of understanding) or not is decided by the courts. This rule has got its authority from Hedaya which provides as under:
  • “If an infant should himself take possession of a thing given to him, it is valid provided he be endowed with reason; because such an act is for his advantage and he has a capability of performing it, as capability depends on reason and understanding, which he possesses.
  • Katheessa Umma v. Narayanath Kunhamu, is a leading case on this point. In this case, a Muslim husband made a gift to his wife who was about sixteen years old. As the donee (i.e. the wife) was minor, the gift was accepted by the donee’s mother Katheessa Umma. The gift was registered. Unfortunately, after two years the husband died and the donee (wife) also died soon after the death of her husband. The validity of the gift was challenged by Kunhamu, the elder brother of the husband (donor) on the ground that the gift to the minor donee was accepted by her mother who is not a lawful guardian under Muslim law and as such, there was no lawful delivery of possession. The question before the Supreme Court was : Whether a gift by a Muslim husband to his minor wife and accepted by the wife’s mother on her behalf, is valid? The Supreme Court held that the gift was valid although the delivery of possession was not made to any competent guardian on behalf of the minor donee. The Court observed that it is well established rule of Muslim law that mother is not a legal guardian of the minor’s property therefore, she is not competent to take the delivery of possession on behalf of the minor donee. But, where a minor donee has no legal guardian to accept the gift, the completion of the gift for minor’s benefit, is the sole consideration. The court further observed that the donee in the present case had already attained puberty (fifteen years) which means that she had reached the age of discretion and was competent to accept the gift herself.

 

Muslim law on gifts to minors may now be summarised as under:

(a) As a general rule, a gift to minor must be accepted and possession must also be taken on his (her) behalf by a competent guardian.

(b) The order of priority of the guardians of the minor’s property must be strictly followed.

(c) In the absence of a ‘guardian of property‘, acceptance of the gift may be made by any person having custody of the minor.

(d) Where a gift is made to a minor who has attained puberty, i.e. has attained the age of discretion, the gift is valid even if the acceptance of the gift and its delivery of possession has been taken by a person who has no authority to accept the gift on behalf of the minor.

The above mentioned rules apply also in respect of gifts to lunatics.

Gift Through the Medium of a Trust

  • Under Muslim law, a person can make a gift of his properties through the medium of a trust. The difference between a direct gift and a gift through trust is that in the former the donee gets the property directly from the donor whereas, in the latter the done gets it through the trustees. The trustees simply possess and safeguard the property so that its benefit may ultimately be given to the donee. In a gift through the medium of trust, all the elements, of a Hiba namely, the declaration, acceptance and the delivery of possession are necessary to validate it. In such gifts, the acceptance of the gift and also the delivery of possession, whether actual or constructive, must be made by the trustees. However, the execution of the trust-deed by the trustees is sufficient to indicate that the trustees have accepted-the gift and have taken the possession of the property on behalf of the donees. In Sadik Hussain v. Hashim Ali, a Shia Muslim made a gift of his immovable properties for the benefit of his wife and children through the medium of a trust. Three persons were made trustees. The deed was duly signed by the donor (settler) and was also registered but the trustees (had not signed the deed. The property was also not transferred in the name of any of the trustees and the donor continued to receive the rents of the properties as before. It was held by the Court that a gift through the medium of a trust must be accepted by the trustees. The possession, actual or constructive, must also be taken by the trustees on behalf of the beneficiaries (donees). Since there was neither acceptance of the gift nor any delivery of possession to the trustees, therefore, the gift was void.

When Delivery of Possession is Not Necessary

  • Under Muslim law, the general rule is that a gift is not valid without a delivery of possession. But, there are certain exceptions to this general rule. In the following cases a gift is valid without actual or constructive delivery of possession:
  • Where Donor and Donee Live Jointly in the Gifted House.– Where the gift is of a house in which donor and the donee both reside, any formal delivery of possession is not necessary to complete the gift. The donor, who is owner of the house, may complete the gift without asking the donee first to vacate the house and just after that, to take the possession as a donee. In other words, if the donee is already continuing the possession of the house in some other capacity, there is no need of giving him the same possession afresh in a different capacity of donee. But, there must be some ‘overt act or apparent activity on the part of the donor from which his intention to transfer the possession may be inferred. In Humera Bibi v. Najmunnissa, a Muslim lady executed a gift-deed of her house in favour of her nephew who was living with her in the same house. The property was transferred in the name of the nephew but she continued to live with him as before. But after the gift, the rents were collected in the name of the donee. The Allahabad High Court held that the gift was valid although there was neither any physical transfer to the donee nor any physical departure of the donor from the house. In another case, where the donor and the donee both were residing in the house which was the subject-matter of gift, merely the papers were delivered to the donee and the donor consented that he would get the name of the donee entered in the municipal records, it was held that the gift was complete without any physical delivery of possession.
  • In N. Sherufuddin v. Mehrunnissa there was a gift of a house by mother (owner) to her daughter; both were living together. The Madras High Court held that gift was valid and there was no need of any formal delivery of possession to complete the gift. It is therefore clear that when donor and donee live jointly in the house gifted, actual transfer of possession is not necessary; all that is required to validate the gift is the change in the status of the donor and donee.
  • Gift by Husband to Wife or by Wife to Husband.—Where la gift of an immovable property is made by husband to wife or by wife to husband, no transfer of possession is necessary. The reason behind this rule is simple. The husband and wife are so related to each other that one has to perform the matrimonial obligations against the other which is possible only if they live together. Moreover, in the Indian societies the properties of a wife are usually looked after and managed on her behalf by the husband. If the condition of delivery of possession‘ is” strictly followed then the husband and wife would first vacate the house, then wife alone would take the possession and after that the husband would join the wife as he is entitled to live with his wife wherever she lives. Or if the property is not in their joint use, the husband would hand over the possession to wife then again accept the same possession on behalf of the wife as her agent for looking after that property. All this may appear to be a drama and such a tamasha is not required by law. In Amina Bibi v. Khatija Bibi, the husband made a gift of his house and certain other properties (small outhouses) to his wife. The husband after delivering the keys of the houses to the wife left the house. But, he came back after sometime to live with his wife and also collected the rents from the tenants of the outhouses. The gift was held to be valid. Similarly, in Ma Mi v. Kallandar Ammal, a gift of certain immovable property was made by the husband in favour of his wife. Wife’s name was duly entered in the records as proprietor of the properties, but the husband continued to collect the rents as before. The Privy Council held the gift valid on the ground that once it is proved that wife’s name was duly entered in the records as proprietor, the presumption was that each and every dealing of the husband in respect of the gifted property was on behalf of his wife; the husband acted simply as an agent of his wife.
  • It is significant to note that because of the proximate relationship of husband and wife, even the mutation of name or a formal entry of wife’s name in the public records is not necessary. The gift of an immovable property by a husband to his wife, or vice-versa, is valid if the gift-deed merely declares that possession has been given, and this deed is handed over to the wife. In C.T.D.A. Pathumma v. Pokku, the Kerala High Court has held that where done is the wife, no mutation. of names is necessary if the deed of gift declares that husband delivered possession to the wife the deed is handed over to her and retained by her. In Noohu Pathuammal v. Ummathu Amina, the Madras High Court, held that the fact that husband continues to live in house or receives rent after the date of the gift, will not invalidate the gift; the presumption in such a case being that joint residence was on account of matrimonial obligation and that the rents are collected on behalf of the wife and ‘not on his own account. The court further observed that no mutation of names is necessary if the deed of gift declares that possession has been transferred and the deed is handed over to her.
  • Gift by Guardian to Ward.—In a gift to a minor or insane person the possession of the property is taken by the guardian. But, where the guardian himself makes any gift to his ward; the delivery of possession is not necessary.” Where a father makes a gift to his minor son, the father would have to transfer the possession in the capacity of a donor and would have to accept the same possession as a guardian of his minor son. Therefore, the rule in such cases is that the gift is valid without any formal change in possession, provided there is a real and bonafide intention on the part of the father, or other guardian, to give up the ownership in favour of his ward. But, where a gift has been made by a person to two or more donees of which some are minor or insane and the rest are adult and sane, the gift is not complete without any formal delivery of possession. In T. N. Sharufuddin v. Mehrurzissa, a father made a joint gift of his properties for the benefit of his minor daughter and her adult husband through the medium of a trust. There was no formal delivery of possession and it could got, be proved as to who accepted the gift on behalf of the minor daughter. Madras High Court held that the gift was void.
  • It is to be noted that guardian here means the ‘guardian of property’. Mother is not a guardian of property under Muslim personal law. Therefore, if a mother makes a gift to her son, the gift is not valid unless the delivery of possession is taken by father or his executor or the paternal grandfather or his executor. Similarly, paternal grandfather is a ‘guardian of property’ only in the absence of father. Therefore, if a paternal grandfather makes a gift to his grandson, the delivery of possession can be exempted only where the father is dead or is otherwise not available. Even if it could be proved that the minor or the insane has been brought up and was always living with the grandfather, the acceptance of the possession by the father is necessary to complete the gift made by a grandfather. Thus, the delivery of possession is exempted only in those cases where the ‘guardianship of property’ of the minor or the insane person vests in the donor himself.
  • Gift of Property Already in Possession of Donee.—The object of delivery of possession is to give to the donee the physical control over the gifted property. But, where the subject-matter of the gift is already in possession of the donee, there remains nothing with the donor which may be transferred to such donee. Accordingly, the rule is that where a donee is in possession of the property in some other capacity, the gift is complete merely by declaration and acceptance; no formal delivery of possession is required to complete the gift. For example, if A, who is owner of a house which is on rent, makes gift of that house in favour of the tenant, the gift is valid by A’s declaration and its subsequent acceptance by that tenant. It is not necessary that the tenant first of all vacates the house and thereafter resumes the same possession as a donee: Similarly, where the gift is made to a bailee, there is no need of any delivery of possession because the property is already in his custody (possession).

THE SUBJECT-MATTER OE GIFT : PROPERTY

  • The subject-matter of a gift is the property which is transferred by a donor to the donee. Any kind of property which the donor owns at the time of making the gift may be the subject matter of gift. However, the property must be transferable under Section 6 of the Transfer of Property Act, 1882. As a matter of fact, any property (mal) over which ownership may be exercised, may be transferred through a gift. Gift is a transfer of ownership (absolute interest) of the property, therefore, the donor must own it at the time of the declaration. Once it is established that a person owns a property and he has right to transfer it, he can make a gift of that property whether movable or immovable. Tangible as well as intangible property may be the subject-matter of a gift. Gift of certain specific kinds of properties is discussed below.

Gift of Future Property

  • Gift of a future property is void. The property, which is the subject-matter of a gift, must be in existence at the time of the declaration. Through a gift, the donor transfers the legal control or ownership in a property. For ownership the existence of the property is necessary; there is no ownership without any property. Therefore, if the property does not exist, the ownership also cannot exist and if ownership does not exist, what is to be transferred? Therefore, the gift of a property which is not in existence at the time of declaration, though it may come into existence on a future date, is unlawful. Fatwai Alamgiri, provides thus:
  • “The thing itself must be in existence at the time of the gift, so that if one should give the fruit that may be produced by his palm-tree this year or what is in the womb of his sheep or in the udder, the gift is unlawful though power be given to take possession at the time of production…, so also as to the butter in milk, the oil in sea same or the flour in wheat with similar powers.”

Gift of Spes-Successionis

  • Gift of the Spes Successionis is also void. Spes Successionis means a mere expectation of getting certain properties through succession. A son after the death of his father inherits his properties as legal heir and such properties are vested in him. But, before the death of father, the son has simply a chance or expectation of getting his property through inheritance because he may or may not survive his father. Therefore, during the life of his father, the son’s interest in father’s property is merely a future possible interest, i.e. spes- successionis. As such, this future property cannot be the subject matter of a gift. Similarly, a property given under a will is the future possible interest of the legatee. The property vests in the legatee only after the death of legator provided such legatee himself is alive at the death of legator and the will is not revoked. The gift of a property by a legatee ‘given to him under a will is also a gift of spes- successionis and as such void. Moreover, Spes Successionis is a non-transferable property under Section 6 of the Transfer of Property Act, 1882. Any transfer, including gift of any non-transferable property is void.

Gift of Actionable Claims : Intangible Properties

  • Actionable Claim is an intangible property. Intangible or incorporeal property has no physical existence but it may be owned by a person. As such, its owner may transfer it through a gift. Under Section 3 of the Transfer of Property Act an ‘actionable claim’ has been defined as: (a) an unsecured debt, or (b) any interest in a movable property, not in possession of the claimant. Thus, if A has given certain money to B on loan, and the loan has not been secured by any kind of B’s property, then A has a right to claim the money by maintaining an action in a court of law against B. A’s ‘right to claim the money from B is A’s actionable claim which -is his property and he may lawfully make a gift of this right. In other words, A can gift this right to X, the donee, in which case X would be entitled to get the money from B. Further, the right of A to claim his movable property e.g. motor-car which is in the possession of another person, is also his actionable claim and this ‘claim’ may also be gifted by him. Actionable claim is regarded as incorporeal movable property.
  • Any other beneficial interest which is owned by a person may also be the subject matter of gift. Where the beneficial interest exists in an immovable property, the interest is intangible immovable property. Thus, right to collect rents is incorporeal property, and a gift of this right is lawful. Similarly, gift of a Government Promissory Note or of the Zamindari Rights, held under Government is valid. In the same manner, a right to receive specific share of the offerings made by the pilgrims at a shrine, may also be a subject-matter of gift. It may be noted that in the case of a gift of the ‘right to receive’ the offerings, the subject-matter is the ‘right to receive’ and not the offerings which are to be made in future. Therefore, gift of a right to receive the offerings is not a gift of future property, it is a gift of the present beneficial interest’ and is transferable through a gift. In brief, it may be stated that all forms of actionable claims and also the beneficial rights in the movable and immovable properties may be the subject-matter of a gift. But, such rights or interests must be vested in the donor at the time when the gift is made.
  • Actionable claims and other incorporeal properties cannot be possessed, therefore, actual delivery of possession is neither possible nor required under the law. The gift may be completed merely by establishing the fact that the donor has a bona fide intention to give, and that he has done everything which was necessary to give possession to the donee. However, a gift of an actionable claim may be made only according to the provisions of the Transfer of Property Act. 1882 because transfer of actionable claims has been separately dealt with (Ch. VIII of the Act) and the contrary rules, if any, of the Muslim law are not applicable on the trasier of actionable claims even if the transferor is a Muslim. Accordingly, where Muslim gifts away an actionable claim, it is not valid unless it is in writing and is signed by him.

Gift of Insurance Policy

  • Gift of Insurance Policy is valid. The policy-holder, whether he is Muslim or non- Muslim, has an interest in the sum insured. The policy-holder owns this interest. However, this interest is his contingent interest. As gift of contingent interest is void under Muslim law, the gift of insurance policy cannot be made by a Muslim policy-holder under Muslim law. But, under Section 38 of the Insurance Act, 1938, gift (assignment) of insurance policy is lawful. In Sadiq Ali v. Zahida Begum,“ the Allahabad High Court held that the expression, ,”any law or custom having the force of law to the contrary”, in Section 38(7) of the Insurance Act, 1938, are wide enough to exclude the contrary rules of Muslim law on gifts. The result is that where a Muslim makes a gift of his insurance policy the gift is valid because the Insurance Act, 1938, would be applicable and not the contrary rules of the Muslim personal law.

Gift of Dower (Mahr)

  • Gift of dower by a Muslim wife in favour of her husband is valid. This is called as Hiba-e-Mahr i. gift of dower. But, wife can make the gift of her dower only in favour of her husband. Dower (Mahr) is a debt which is due to the wife against her husband. Right to claim a debt is an actionable claim, therefore, wife’s ‘right to dower‘ is her actionable claim and as such it may be a subject-matter of Hiba. It may be noted that dower is a personal right of the wife and personal obligation of the husband. Therefore, it can neither be transferred by any person except wife nor can be transferred to any person other than husband. Gift of dower, to any person other than husband is void.
  • Under Muslim law, provision has been made that wife may remit the claim of her dower in favour of her husband. In the language of law, remission of dower by a wife is at gift of her dower in favour of the husband. However, in a gift of dower following two rules are significant:

(i) The wife may make the gift of her dower to husband either unconditionally or subject to some conditions. If the gift to husband is subject to conditions, the gift to husband is revoked upon non-fulfillment of that condition.

(ii) A gift of dower to a dead husband is also valid. It operates to extinguish the right of the widow to claim the Mahr.

The gift of dower is a gift of an actionable claim, therefore, it is submitted that such gift must be made in writing. It cannot be effected orally. However, registration is not necessary.

Gift of Services

  • The subject matter of gift must be some property whether tangible or/intangible. Services or the ‘natural love and affection are not properties, therefore, they cannot be the subject matter of a Hiba. Gift of services or that of love and affection is no gift at all.

Gift of Mushaa : The Hanafi Doctrine of Mushaa

  • The word Mushaa has been derived from the Arabic word Shuyua which literally means ‘confusion’. Under Muslim law, Mushaa signifies an undivided share in a joint property. Mushaa is therefore, a co-owned or joint property. If one of the several owners of this, property makes a gift of his own share, there may be a confusion as to which portion or part of the property is to be given to the donee. In other words, there may be a practical difficulty in the delivery of possession if gift of a joint property is made by a donor without partition of the gifted share. To avoid any such confusion and difficulty at the stage of delivery of possession, the Hanafi jurists have evolved the principle of Mushaa. Where the subject-matter of a gift is co-owned or joint property, the doctrine of Mushaa is applied for examining the validity of the gift.
  • Under the Hanafi doctrine of Mushaa, gift of a share in the co-owned property is invalid (irregular) without partition and actual delivery of that part of the property to the donee. However, if the co-owned property is not capable of partition or division, the doctrine of Mushaa is inapplicable. Hedayaat lays down this doctrine in the following words : “A gift of part of thing which is capable of division is not valid unless the said part be divided off and separated from the property of the donor; but a gift of part of an indivisible thing is valid ………..
  • A Mushaa or, undivided property may be of two kinds : (a) Mushaa indivisible Le. a property in which the partition or division is not possible and (b) Mushaa divisible i.e. property which is capable of division. Law” relating to both the kinds of Mushaa properties is given below-

Mushaa Indivisible

  • Gift of Mushaa indivisible is valid. There are certain properties which are by nature indivisible. ‘Hie physical partition or division of such properties is not practical. Moreover. if against the nature of such properties, their partition or division is effected at all, their identity is lost ; they do not remain the same properties which they were before the partition. For example, a bathing ghat, a stair case or a cinema house etc. are indivisible Mushaa properties. If, on the bank of a river or tank, there/is bathing that which is in the co-ownership of two or more persons, then each owner has right to deal with his share as he likes including the right to make a gift of his share. But, if a sharer attempts to separate his share, the utility of the that would be finished. Where a stair case is coowned by, say two persons, then’ each being the owner of half of they stair-case, is entitled to make a Hiba of his share. But, if the stair-case is divided into two parts, it would either be too narrow to be used by any one, or the upper half may come in the share of one and the remaining lower half in the other’s share. In both the cases the stair case would become useless for both of them and also for the donee.
  • The doctrine of Mushaa is not applicable where the subject-matter of gift is indivisible. According to all the schools of Muslim law. a gift of Mushaa indivisible is valid without any partition and actual delivery of possession. Thus, a gift of a share in the business of a Turkish-bath, or a gift of an undivided share in the banks of a tank (or river) are valid gifts even if made without separating the specific shares.

Mushaa-Divisible

  • Under Hanafi law, gift of Mushaa-divisible property is irregular (fasid) if made without partition. A co-owned piece of land, house or a garden, isMushaa-divisible. The land may be divided and the specific share may be separated by a visible mark of identification. Similarly, a co-owned house may be divided by a partition wall without changing its identity. In other words, .a Mushaa-divisible may be divided easily without changing the nature and without affecting the utility of the property.
  • Where the subject-matter of a Hiba is Mushaa,-divisible, the Hanafi doctrine of Mushaa is applicable and the gift is not valid unless the specific share, which has been gifted, is separated by the donor and is actually given to the donee. However, under the Hanafi doctrine of Mushaa, the gift without partition and actual delivery “of possession is not void ab initio, it is merely irregular (fasid). The result is that where such a gift has been made, it may be regularised by a subsequent partition and by giving to the donee the actual possession of the specified share of the property; It is evidet it, therefore, that the doctrine of Mushaa is limited, both in its application“ as well as in its effects. The operation of the rule is subject to following limitations :

(i) The rule of Mushaa is not applicable where the property is indivisible.

(ii) Where the property is divisible, the doctrine is applicable but only under the Hanafi school. In other words, the doctrine of Mushaa is applicable only where the donor is a Hanafi-Sunni.

(iii) ‘Even under the Hanafi school, if a gift is made against the rule of Mushaa the gift is not void, it is merely irregular (Fasid).

(iv) Hanafi law recognises certain exceptions to this doctrine and in those exceptional cases the gift is valid, though made in violation of this doctrine.

Exceptions to the Doctrine of Mushaa

  • The doctrine of Mushaa is limited in it’s application and is subject to certain exceptions where the doctrine is not applicable. Exceptions to the doctrine of Mushaa are given below :

(1) Gift of Mushaa to Coheir.—Donor and the donee are co-heirs, if they are entitled to inherit simultaneously the properties of a person. Gift of undivided property is valid even if made without partition where donor and donee are co-theirs. If a person dies leaving behind a son, a daughter and the mother, then the son, daughter and mother are all heirs as they all are entitled to inherit the properties of the deceased. Thus, after the death of a Muslim male, his widow and his daughter are the co-heirs, therefore, the widow i.e. mother of the daughter) can make a lawful gift of her undivided share in the lands to her daughter without separating her share physically.“ In Mahomed Buksh v. Hosseini Bibi,“ a Hanafi woman died leaving her mother, son and a daughter, as her only heirs. The mother of the deceased made a gift of her share to the son, without separating her 1/6 share in the properties of the deceased. It was held by the Privy Council that the gift of the undivided 1/6 share by grandmother to her grandson or to the grand daughter or to both jointly, was valid even without partition.

(2) Gift of Share in Zamindari.—Where a part of the erstwhile Zamindari or Taluka was gifted away by one of its co-sharers, the doctrine of Mushaa was not applicable. In the Zamindari systems, it was possible that two or more persons were the co-sharers having their definite shares of which they used to be respective owners. If any of them made a gift of his share, the gift was valid without actual delivery of possession and without physical partition of the gifted share from the rest of the property. Similarly, a gift of Kaimi raiyati land”(undivided’ share) was held valid although there was no actual division of the share before the gift was made.

N0te.—This exception is only of academic interest because the Zamindari system has now been abolished in India;

(3) Gift of a Share in Landed Company.—The Hanafi doctrine of Mushaa ii originated with an object of avoiding confusion at the stage of taking the possession by donee. In the landed companies or big commercial establishments where the ownership consists of several definite shares, gift of a share by separating the share physically from the rest, would create confusion and inconvenience and this would be against the very purpose of this doctrine. Therefore, in such cases, the doctrine is inapplicable. In Ibrahim Goalam Arif v. Saiboo the donor owned a large number of shares in six limited liability companies together with several pieces of freehold land and some buildings thereon in Rangoon. He notionally divided the whole property into one thousand shares and made a gift of I00 such shares each to four donees and also 25 such shares each to the two other donees. The whole property could be, inconveniently though, physically partitioned from the rest. But no such partition was made by the donor. It was held by the Court that the gift was valid without actual division because the property was not conveniently divisible. The Court further observed that it would be inconsistent to apply the doctrine of Mushaa to shares in the companies because the doctrine originated for very different kinds of properties.

(4) Gift of Share in Freehold Property in Commercial Town.—Where a freehold landed property situates in commercial towns or in big cities, its frequent partition is dis favoured. In big cities the houses are well planned and the partition may require approval of a fresh map which may take considerable time. Therefore, where a part of such property is gifted, the gift is complete without any prior partition. Gift of a part of a house situated in Rangoon was held valid without prior partition because the house was situated in a large commercial town. Similarly, it has been held that the doctrine of Mushaa has no application in a commercial towns like Lahore, Bombay or Calcutta.

Device to Overcome the Doctrine of Mushaa

  • The Hanafi doctrine of Mushaa is applicable only to gifts. It is not applicable to any other kind of transfer e.g. sale, exchange etc. We have already seen that the strict application of the doctrine invalidates the gifts of co-owned properties and operates disadvantageously in most of such cases. Because of this reason, the Hanafi jurists themselves have evolved a method by which the mischief of the doctrine is avoided. The device to overcome the doctrine of Mushaa is simple. The donor may sell the undivided share without any prior partition and may return the consideration (price) immediately to the donee. Legally, this transaction would be a sale in which the doctrine is not applicable; but, in effect it would mean a gift. According to Ameer Ali :
  • A gift of a moiety of a house (which otherwise would be bad for Mushaa), may validly be effected in this way… the donor should sell it first at a fixed price and then absolve the debtor of the debt, that is, the price.

Doctrine of Mushaa in the Present Society

  • In the present Indian society, the doctrine of Mushaa is neither legally required nor has any practical significance. As mentioned earlier, the doctrine of Mushaa originated for avoiding confusion in the simple cases of gifts of small undivided properties. In the old days, no such technical formalities were needed in making divisions of the joint properties as are required to-day. But, at present, instead of avoiding the confusion the application of this doctrine may create inconvenience and complications. In the present commercially advanced society, the Mushaa doctrine may operate as a restriction upon the right of a person to deal with his properties. Gifts are not trade oriented transactions; they are voluntary and gratuitous transfers. Therefore, the gifts should be free from as much restrictions as possible. Moreover, where a constructive delivery of possession is sufficient to complete the gift, there is no need of making actual division ; a symbolic possession by the donee of the gifted share in property validates the gift. In Masoom Sab v. Madan Sab, the Andhra Pradesh High Court held that a gift of Mushaa is not invalid if the donor: makes a constructive delivery of possession therefore, there is no legal difficulty if the Mushaa doctrine is not applied to a gift of an undivided property. The devices to avoid the Mushaa rule have been favoured by the courts. In Sheikh Muhammad Mumtaz v. Zubaida Jan75 the Erivy Council too had observed that the doctrine of Mushaa is unadaptable to progressive state of society and would be confined within strictest limits. It is submitted, therefore, that the Hanafi doctrine of Mushaa is neither legally necessary nor practically meaningful for the present society.

Shia Law

  • Shia law does not recognise the doctrine of Mushaa. Under the Shia law, a gift of a share of divisible joint property is valid even if made without partition.

CONDITIONAL AND CONTINGENT GIFTS

Conditional Gifts

  • By ‘conditions’ in a gift, we mean such stipulations or terms which the donee has to fulfill after getting the property. Where a gift has been made subject to any condition, the donee is under an obligation to fulfill that condition. It is to be noted that here the ‘condition’ is a condition subsequent i. e. the condition is required to be fulfilled by the donee after the gift has already become complete.
  • Under Muslim law, if a gift is made subject to some condition, the gift is valid but the condition is void. Where a donor has made a gift of his properties subject to some condition which the donee is required to fulfill, the condition being void, need not be fulfilled by the donee. Non-fulfillment of the condition by the donee does not affect the validity of the gift and the gift is treated as if no condition was attached to it. The reason behind this rule is simple. Gift is unconditional transfer of property in which ownership or the absolute interest is given to the donee. Therefore, when a gift has been made, it is legally presumed that the donee has got full ownership and control of the property. Any condition, which derogates from the completeness of the grant, or is inconsistent with the full ownership, must be void ; but the grant or the transfer of ownership, being complete, remains intact: This‘ rule may be explained with the help of following illustrations :

(i) A makes a gift of his properties to B with a condition that B must marry his sister to A. The gift is valid but the subsequent condition is void. Therefore, B is not bound to fulfil this condition. Similarly, where A transfers certain properties in gift to B subject to condition that B must contract a marriage within one year. The gift remains valid even if B does not marry within the stipulated time or does not marry at all. .

(ii) A makes a gift of his house to B on condition that B shall not sell it subsequently. The gift is valid and B gets full ownership and is free to enjoy the house as he likes, or, sell or otherwise transfer the house as he likes.

(iii) A makes gift of his house to B subject to the .condition that B may sell the house subsequently only to C or D or E and to none else. The gift is valid but the restraint although partial, is void and B is free to sell it to anyone.

(iv) A makes a gift of Rs. 1000 to B with a condition that B shall return back Rs. 500 to A after one year. The condition is void but the gift is valid. Therefore, B is not bound to return Rs. S00 to A. Similarly, where A makes a. gift of a piece of land to B with a condition that B shall give back 1/4 part of the land to A or to A’s heirs after five years, the condition is void but gift is valid. Accordingly, B is not bound to give back 1/4 part of the land either to A or A’s  heirs.

(v) A who is Sunni Muslim makes a gift of his house to B with a condition, the gift is ‘only for the life’ of B. After B’s death, the condition provides that the house shall become the property of A or A’s legal heirs. Here, the gift is vaid and condition that it is only for B’s life’ is void. The result is that the gift to B is only for life, B shall get the house absolutely.  Therefore, after B’s death the house shall not be given to A or A’s heirs, the house shall go to B’s heirs.

Note:- This example explains the rule that under Sunni law gift ‘for life’ or gift of  is not possible. Even where a Sunni Muslim makes a gift of ‘life interest’ in favour of donee, the donee gets absolute interest which, after his death is inherited by his (donee‘s) legal heirs. But, under Shia Law, gift ‘for life’, or gift of ‘life-interest‘ is possible. Where a Shia Muslim makes a gift ‘for life‘ the gift and the condition of ‘for life‘ both are valid. The result is that donee gets the property only for his life. After donee’s death, the property reverts back to donor or donor’s heirs.

(vi) A makes a gift of some Government promissory notes to ‘B with a condition that B must return one fourth part of it to A. The condition of the return of a part of the gifted property is void and B gets an absolute interest in the whole promissory notes gifted to him.

(vii) A who is a Sunni Muslim gifts his properties to B for life. After the death of B to C for life, and after the death of C to D absolutely. Here, the gift in favour of B is valid but the condition ‘for life’ is void because Sunni law does not recognise a gift ‘for life‘. Therefore, B gets the properties absolutely, as if no condition ‘for life‘ was attached to it. The result is that after B’s death the properties would be inherited by B’s heirs. C and D would have no interest at all in that property and would get nothing. In this example too if the donor would have been a Shia Muslim, the gift of ‘life-estate,‘ in favour of B, C and D would have been valid.

Condition Reserving the Income or Benefit

  • Condition reserving the benefit or income of the “gifted-property is valid. The donee is bound to fulfill this condition. There are two parts of any property (i) the corpus which is the main property in existence i.e. the subject-matter of the gift, and (ii) the usufruct which is the income or the benefit of that main property. For example, where the property is a garden, the garden as such is its corpus and its periodical produce of flowers and fruits are the usufruct.
  • Under Muslim law, if a condition affects the ownership of the donee in respect of any part of the corpus, the gift is valid but the condition is void. But, if there is any condition under which the donor simply reserves only the income or usufruct during his life, or during the life of any other person without affecting the corpus, the condition and the gift both are valid. Therefore, where a person makes a gift of his properties subject to condition that one-fourth of the income or the produce (usufruct) of the gifted property should be given to the donor or to any one else during the life of the donor, or during the life of a specified person, the condition is valid and donee is bound to fulfill this condition. For example where A makes a gift of his house to B on condition that B should give one-third of the income of the house to A’s grandson C during the life of C, then both, the gift as well as the condition is valid and B is bound topay one-third of the income to C so long as C is alive. It may be noted that here the condition is not in respect of the return of one-third of the house, it is in respect of the return of one-third of the income of the house. ‘Validity of such conditions may also been plained on the basis of creation of a trust in favour of the donor for his maintenance. According to Mulla :
  • “Such stipulation (condition) may also be enforced as an agreement raising a trust and constituting a valid obligation to make a return of the proceeds during the time stipulated.
  • It is well established rule of Muslim law that a condition reserving the income of the gifted property for the life of the donor or for the life of any other person nominated by the donor is valid and enforceable. Such condition and the gift is valid also under the Shia law. Following examples illustrate this rule clearly:

(i) A makes a gift of some Government promissory notes to his son B with a condition that B should pay the income of the promissory notes to A during the life of A. Both, the gift as well as the condition attached to it are valid, and B is bound to pay the income of the promissory notes to A till the life of

(ii) A makes a gift of his properties to B on condition that B should pay out of ‘ income of the properties Rs. 100 per year to C during the life of C and to divide the remaining income equally between himself (B) and D during the life-time 01′ D. The gift as well as the condition is valid.

(iii) A makes a gift of his whole properties subject to condition that donee should satisfy all the debts incurred by A. The gift is valid and the condition is also valid but the donee is liable to pay the debts only to the extent of the property gifted.

(iv) A Muslim lady makes a gift of certain properties to her nephew B on condition that he shall pay her Rs. 1000 annually for her maintenance. The gift is not valid because payment of Rs. 1000 is not dependent on the income of properties. If the condition is payment of Rs. 1000 out of the income of the properties then condition as well as the gift is valid.

 

GIFT OF LIFE-INTEREST OR LIFE-ESTATE

  • Under the Sunni law, gift of the ‘life-interest’ or ‘life estate‘ is not possible because a gift for life operates as an absolute gift. But, under Shia law, the gift of life-interest (or life-estate) is possible. Where a Shia donor makes a gift ‘for life‘, the donee can enjoy the property during his life but after his death the property reverts back to donor or to donor’s legal heirs.
  • Under Muslim law, whenever the term property is used in its general sense it means and includes its corpus as well as the usufruct. Therefore, ordinarily a transfer of property means transfer of the corpus together with all the beneficial interests (usufruct) of that property. In other words, unless otherwise provided, in the transfer it is implied that the transferee would have all the incidental benefits i.e. usufruct. But technically, the ownership of the corpus i.e. the property itself may be distinguished from the ownership of the usufruct of that property. For example, a garden is the corpus and is owned by its owner but its usufruct, that is to say, the produce of the garden (fruits and the flowers) may be allowed to be owned for sometime by another person. Thus, where the owner of a mango-grove sells only the mangoes to another person for one year, the purchaser gets the ownership in all the mangoes for one year but he does not get the ownership of the mango-grove as such. As the owner of a property can sell the usufruct while retaining the property with him, he may also make a gift only of the usufruct for a specified duration. In such a case, the donee may not get any interest in the property but he may get the absolute interest in its produce or benefits for a specified duration. This distinction between the ownership of a corpus and the ownership of an usufruct of ,a property has been the basis of validating a gift of life-interest under the Shia law in Nawazish Ali Khan’s case given below:

Nawazish Ali Khan v. Ali Raza Khan

Facts. —- Nawab Nasir Ali Khan, a Shia Muslim, executed a will under which he appointed his nephew Fateh Ali Khan as the successor of his properties with all the powers, including the power of possession and enjoyment as owner provided he be alive.

The Will further provided that after the death of Fateh Ali Khan, Mohd. Ali Khan would be the successor of the said properties. After the death of this successor (i.e. Mohd. Ali Khan) testator’s another nephew Hidayat Ali Khan was made the successor, provided he was alive. The Will further provided that the last successor (Hidayat Ali Khan) was authorised also to nominate his own successor of the said properties. But Hidayat Ali Khan died before the death of Mohd. Ali Khan therefore, Mohd. Ali Khan, became the last successor. And, under the power of ‘appointment (given under the will to the last surviving successor) he appointed Nawazish Ali Khan (son of Hidayat Ali Khan) to succeed after his death. In the language of law, successive life interests were granted.

Under this will and the last successor was given also the vested remainder.  This appointment was challenged by Ali Raza Khan who was a grandson of the testator Nawab Ali Khan. The questions to be decided in this case were:

(i) whether the creation of successive life interests was valid under Muslim law

and

(ii) whether Muslim law recognises a vested remainder ?

 

Decision.—The Privy Council held that if it is found that a» gift has been made of limited interest, the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed. In other words, gift of a limited or life interest is valid because it may be accepted as a gift of absolute interest in the usufruct of the property for a fixed period. Regarding the second issue, namely, the validity of the power of appointment given to a life tenant, the Privy Council held that the power of appointment was not valid because no concept of vested remainder is recognised under Muslim personal law. The court observed that where an lthna Asharia Shia testator bequeaths his property to A, B and C successively, and then provides that the last surviving devisee should have the power to nominate his successor from among the descendents of the three life tenants, such power was not known to any, school of Muslim law as received in India. Accordingly, it was held by the Court that Fateh Ali Khan and Mohd. Ali Khan took the life interests lawfully and after the death of Mohd. Ali Khan, the property should revert back to the natural heir of the testator. Thus, Ali Raza Khan, being the grandson of Nawab Nasir Ali Khan (testator) was entitled to succeed the properties as a natural heir in preference to Nawazish Ali Khan.

Note. — It may be noted that the interest created in favour of the last two successors were contingent interests. Contingency was their survival at the death of the preceding successor. Being contingent interests, the interest of the last two successors were void. But neither of the parties to the litigation was interested in raising this point.

The reasoning and the law laid down in the above case was followed in another Shia case, Anjuman Ara v. Nawab Asif Kadar, where the Calcutta High Court, after analysing all the provisions of Muslim law on the point, observed:

“In the Mahomedan law, there is a clear distinction between the corpus or ‘the substance’ and the usufruct. Over the corpus that law recognizes only absolute, complete and indivisible ownership and there it countenances no detraction or limitation. In the usufruct however, limited interests can be created and the limitation may well be in point of time or duration, e. g. for life or for a fixed period.

It is interesting to note that the validity and enforceability of a gift of life interest has been recognised also in a Sunni case. In Shaik Mastan Bi v. Shaik Bikari Sahab, which was a Sunni case, the Andhra Pradesh High Court held-that although a Hanafi Muslim cannot make a gratuitous transfer of ownership of a property with limitation for the life of the donor but when the absolute ownership is transferred to A, and only the enjoyment of the property is reserved to B, then both the gifts are valid. In other words, the court held that limitations in the enjoyment of a property is permissible but limitations in the ownership is not allowed. According to Fyzee, normally Hiba is a gift of the corpus therefore, Hiba for life is not valid; Ariyat on the other hand, is gift of the usufruct, therefore, Ariyat for life is legal and permissible in the Hanafi law.

REVOCATION OF GIFTS

Gift is a voluntary and gratuitous transfer of property. The donor makes a gift of the properties of his own free will and the transfer is without any consideration or exchange. In the transfer of property by way of gift there are three stages: declaration, acceptance and the delivery of possession. At the first two stages namely, the declaration and acceptance, the gift is simply a contract for the transfer of property. The gift is not complete before the delivery of possession. Without actual or constructive delivery of possession there is no gift at all; it is merely a promise.

Revocation Before Delivery of Possession.— Under Muslim law, a gift may be revoked by the donor at any time before delivery of possession. A mere declaration by the donor that he has revoked the gift is sufficient. In Riazan Khatun v. Sadrul Alam, the Patna High Court has held that since gift itself is not deemed to be complete before delivery of possession, therefore, the donor may cancel or revoke the gift any time before delivery of possession. After the revocation, the donee is not entitled to get any compensation because for the breach of a gratuitous promise the donor is not liable. However, only donor is entitled to revoke the gift. If the donor dies before delivery of possession his heirs have no right to revoke the gift.

Revocation After Delivery of Possession.— After delivery of possession, the gift cannot be revoked by donor through declaration. But, gift may be invalidated by the decree of a court of law even after the delivery of possession. The court may invalidate the gift on the ground of mistake of fact or, that the consent was not free or, on any other sufficient cause. Thus, after the delivery of possession, a gift cannot be revoked except by the decree of a court of law. Until a decree invalidating the gift is passed, the gift stands and the donee is entitled to enjoy the property as owner including the right of transferring the property. But, if the gift is of irrevocable nature, it cannot be revoked even by the court. Muslim law recognises certain situations in which a gift is irrevocable.

Shia.law.— Under the Shia law, even after the delivery of possession, a gift may be revoked by the donor merely by declaration ; decree of a court of law is not necessary. But, under the Shia law too, if the gift is irrevocable, it cannot be revoked after the delivery of possession even by the court.

Irrevocable Gifts

Irrevocable gifts are those gifts which, after the delivery of possession, cannot be revoked even by court. In the following cases, the gifts are irrevocable:

  • A gift by husband to wife or by wife to husband.— i.e. where the donor and the donee are spouses.

Shia law— Under the Shia law, a gift by husband to wife or vice-versa, revocable even after the delivery of possession.

  • Where donor and the done are within the prohibited relationship.— Where the donor and the donee are so related to each other that their marriage is void on the ground of consanguinity, affinity or fosterage, they are within prohibited relationship. In such a case, gift by one to another is irrevocable. For example, gift by a brother in favour of his sister is irrevocable.

Shia law—Under the Shia law, if donor and donee are related through blood, though not within the prohibited relationship, the gift is irrevocable.

  • Where the donor or donee is dead.— After the death of the donor or donee, a gift becomes irrevocable. This is obvious, because gift begins with a declaration (offer) and the acceptance, and the parties to the contract of gift are the donor and the donee. If, after the completion of a gift a court attempts to invalidate it, then decree would have to be passed against the heirs of the donee. This is not possible because heirs of the donee or donor were not party to the transaction of the gifts.

 

  • Where the donee has transferred the property to another person.— After completion of the gift the donee becomes an absolute owner of the gifted property. As such, the donee may transfer that property to another person. If a gift is revoked when the donee has already transferred the property to a third person, then interest of that third person would be affected and he would be put to loss without any fault of his own.

 

  • Where the property is lost or has been destroyed.—-After revocation of a gift, the property should revert back to the donor but if it is lost or destroyed there would remain nothing to be given back to the donor. Therefore, where the gifted property is lost or is otherwise not available, the revocation would be meaningless.

 

  • Where the value of the property increases subsequently— The value of the property may increase by accretions or, by accidental discovery of gold or coal mine or due to some other reason. After completion of a gift, if the value of the property is increased, it is natural that the donor would be interested in the revocation of gift. Muslim law negatives the possibility of revocation of gift by donor due to such temptation.

 

  • Where the property given is changed beyond identification—Where the shape, size and identity of the property has been changed and it is not possible to recognise that it is the same property which was the subject matter of gift, the gift becomes irrevocable. For example, if a piece of gold or bag of wheat is given in gift and the donee has converted it into ornaments and flour respectively, the original subject-matter cannot be identified. In such a circumstance, the gift is irrevocable because after cancellation off the gift, the same property cannot be given back to the donor.

 

  • Where the gift has been made to secure religious or spiritual benefits— Where a gift is made not out of natural love and affection, but with religious motives, its revocation may amount breach of a religious promise which is not permissible. A gift for religious or spiritual purposes is called Sadqa which is irrevocable.

 

  • When a gift is in the form of Hiba-bil-iwaz.—That is to say, where the donor has accepted something as consideration of the gift; the transfer becomes irrevocable. As is discussed in the following lines, Hiba-bil-iwaz is not a gift at all ; it is treated either as a sale or an exchange, therefore, it is irrevocable.

HIBA-BIL-IWAZ (GIFT WITH EXCHANGE)

Hiba-bil-iwaz is a peculiar concept of the Muslim personal law. Hiba means gift and Iwaz means consideration or return. Hiba-bil-iwaz, is, therefore, ‘a gift with an exchange‘ or a ‘gift for consideration‘. Under all the systems of law there cannot be any consideration or exchange in the transaction of gift. But Muslim law recognises a gift with an exchange as a kind of Hiba. If a gift has duly been made and completed, but subsequently’ the donee also gives something to the donor in lieu of this gift, then the gift is called Hiba-bit-iwaz. For example, where A makes a gift of his house to B, and subsequently B also makes a gift of a car to A saying that the car was being given in return of the gift made to him, then the gift of the house from A to B is a Hiba-bil-iwaz. Thus, the second gift is actually not any gift, it is consideration for the first gift. In the Hiba-bil-iwaz, as accepted and recognised in India, there is a direct reference that the second gift is return (Iwaz) of the original gift. Therefore, this is a‘ Hiba only for the name’s sake. The legal nature of this transfer is that it is either a sale or an exchange, depending on whether the consideration is money or some property. The result is that the rules of Muslim law of Hiba do not apply on it. As a matter of fact Hiba-bil-iwaz is a gift in its inception, but it becomes sale or exchange afterwards when the donee takes possession of the property and donor takes possession of the Iwaz.

Essentials of Hiba-bil-iwaz

The essential feature of Hiba-bil-iwaz is that it is a gift for something in return. The following two conditions are therefore, necessary to render a transfer as Hiba-bil-iwaz:

(a) A valid and complete gift by the donor.—There must be a gift, valid and complete in all respects. The three essential conditions namely, the declaration, acceptance and delivery of possession must be fulfilled. It is necessary that there is a bonafide intention on the part of the donor to transfer the ownership of the property. The property owned by the donor must be an existing property and must also be made presently i. e. immediately. In other words, the original transfer by the donor in favour of the donee must be duly completed gift according to the provisions of Muslim law. Every Hiba-bil-iwaz is pure gift in its inception. Even if the declaration of this original gift mentions that it is being made for some consideration, it remains a pure gift. But, as soon as the donee also makes a gift in return of the original gift, the original gift becomes Hiba-bil-iwaz.

(b) Actual payment of consideration (iwaz) by the donee.—The donee must pay something to the donor after the completion of the gift. A mere declaration in the gift that it is being made for some consideration, is not sufficient ; the consideration referred in the gift must be actually transferred by the donee to the donor. If donee pays the consideration, the gift is Hiba-bil-iwaz. If the donee does not pay, the gift continues to be pure Hiba.

In Ranee Khujooroonnissa v. Mst. Roushan Jehan, the facts were that Raja Deedar Hossein executed a gift-deed under which he gave one-third of his properties of his Zamindari to his eldest son Inayat Hossein in consideration of Rs. 10,000. But the consideration was never paid. Moreover, there was neither actual nor constructive delivery of possession in favour of the donee. It was held by the Privy Council that although the deed referred the transaction to be gift for consideration yet, it could not be treated as Hiba-bil-iwaz because there was no proof that the consideration was ever paid to the donor Raja Deedar Hossein. The Court further observed that in a gift for consideration two conditions at all events must concur, namely, an actual payment of the consideration on the part of the donee, and a bonafide intention on the part of the donor to divest himself of the property and to confer it upon the donee. As the consideration was not paid to the donor the deed was not a transfer by way of Hiba-bil-iwaz. The Court observed that it was a simple gift in which delivery of possession is necessary. Moreover, as there was neither actual nor constructive delivery of possession, the gift too was held to be void.

It is significant to note that the donee must mention it clearly that he is transferring the property to donor in return of a gift made to him. An independent transfer of property by the donee to donor, cannot be regarded as a consideration for the original gift. There is no Hiba-bil-iwaz if the return (iwaz) is independent of the original gift.

However, the consideration (iwaz) Paid by the donee to the donor, need not be equal to the value of the property gifted. It may be a nominal consideration or less in value as compared to the subject matter of the gift. In Khujooroonnissa’s case, their Lordships of the Privy Council rightly observed:

“Undoubtedly, the adequacy of the consideration is not the question. A consideration may be perfectly valid which is wholly inadequate in amount when compared with the thing given. Some of the cases have gone so far as to say that even a gift of a ring may be a sufficient consideration.”

A copy of Quran or, even a prayer-carpet or rosary (Tasbih) has been held to be a good consideration in the Hiba-bil-iwaz. However, the consideration must be of some monetary value. Where A makes a gift to B saying: “It is a gift in consideration of your being my son,” the gift is not a Hiba-bil-iwaz. This is pure Hiba. In the same manner, where the consideration is services rendered by the donee or, cordial behaviour or love and affection of the donee towards the donor, it cannot be regarded as an iwaz of a gift; it will be a case of pure gift. Similarly, where a gift was made compensating the donee for the good services rendered by his father to the donor, it was held that the gift was pure Hiba and not a Hiba-bil-iwaz. But in Tajunissa v. Rahmat, the Madras High Court has held that a promise by the donee to marry donor’s son, was a good consideration for a gift and, the transaction was a Hiba-bil-iwaz.

Legal Incidents of Hiba-bil-iwaz

In India, the Hiba-bil-iwaz is a Hiba only for its name’s sake. Legally speaking, this kind of transfer cannot be a gift because transfer of ownership in return of something of value, can never be regarded as a gift. The legal consequences of Hiba-bil-iwaz are given below:

  • Hiba-bil-iwaz is either a sale or an exchange, depending on the nature of the property given by donee as consideration (iwaz) for the gift. Where the consideration is money, the transaction is a sale. Similarly, where the iwaz is some property movable or immovable, the transaction is an exchange. Therefore, the rules of Muslim law of Hiba do not apply to the Hiba-bil-iwaz. This transfer cannot be completed merely by declaration, acceptance and delivery of possession. For a valid Hiba-bil-iwaz, the same requirements and formalities are necessary as are required for a valid sale or exchange. If the iwaz is money, the transaction is regarded as a sale which must be completed according to the provisions of Section 54 of the Transfer of Property Act, 1882. That is to say, if the gift is of immovable property exceeding Rs. 100 in value, it must be in writing and must also be duly attested and registered. Where the iwaz is some property, the Hiba-bil-iwaz is treated as an exchange. According to Section 118 of the Transfer of Property Act, 1882, this transaction must be completed in the same manner as that of a sale i.e. only through a registered document if the value of property exceeds rupees one hundred.

 

  • Delivery of possession, which is an essential element in Hiba, is not necessary for the validity of a Hiba-bil-iwaz. The gift made by a husband to wife in lieu of her dower is a sale. Delivery of possession is not required. But since a gift in lieu of unpaid _dower is sale, its registration is necessary and, such a transfer cannot be made orally. In Mahabir Prasad v. Mustafa Hussain, it was held by the Privy Council that a gift by husband to wife in lieu of dower is a sale, delivery of possession is not needed but registration is necessary. Allahabad, Madras and Patna High Courts have also held that a transfer of property by husband to wife in lieu of her unpaid dower is a sale in which delivery of possession to wife is not necessary. It may be noted that a gift by husband to wife in lieu of dower is a peculiar form of Indian notion of Hiba-bil-iwaz and is called Bye mukasa which is equated with a sale.

 

  • Hiba-bil-iwaz, being a sale or an exchange, is irrevocable. As discussed earlier, except in few cases, a Hiba is revocable. But, Hiba-bil-iwaz is a transfer for consideration therefore it is either sale or exchange and law does not allow its revocation.

 

  • The doctrine of mushaa which is applicable to gifts of undivided properties under the Sunni law, is not applicable to hiba-bil-iwaz. In other words, where an undivided share in a co-owned property has been gifted in return of some consideration, the gift is perfectly valid even without partition and delivery of possession. The reason is that a hiba-bil-iwaz is not a gift, it is treated as a sale or exchange, and the doctrine of mushaa is inapplicable on sale and exchange. It is interesting to note that the Indian form of hiba-bil-iwaz was introduced in this country as a legal device for validating the gifts of mushaa properties without effecting any partition and delivery of possession.

 

  • Hiba-bil-iwaz is a sale if consideration (iwaz) is money. Therefore the right of pre-emption is exercisable by a pre-emptor. Pre-emption is a right under which a person is entitled to re-purchase an adjoining property which has been sold to some other person. This right is available only where the transfer is a sale. If it is gift, or any other kind of transfer, this right is not exercisable. In a Hiba the right of pre-emption is not exercisable but, in the case of Hiba-bil-iwaz, the right is exercisable.

HIBA-BA-SHARTUL-IWAZ (GIFT WITH CONDITION PRECEDENT)

  • A gift with a condition for something in return is called a Hiba-ba-shartul-iwaz. In this transaction the donee does not pay the consideration voluntarily; it is paid by the donee because it is a condition precedent for the gift. In other words, the gift and the iwaz go hand in hand not one before the other. Payment of consideration is a prior condition (shart) for the gift. Therefore, subsequent gift by done to donor is the condition precedent for the first gift in favour of the donee. The subsequent gift by donee to donor is not consideration of the first gift. The result is that in a Hiba-ba-shartul-iwaz the original gift is a pure gift at its inception and the payment of Iwaz is also an independent gift. Accordingly, Hiba-ba-shartul-iwaz is nothing but a set of two independent gifts in which the second gift is condition precedent for the first. Any kind of property may be stipulated as return.

Legal Incidents of Hiba-ba-shartul-iwaz

  • The legal incidents of a Hiba-ba-shartul-iwaz are given below :
  • As the whole transaction is a set of two independent gifts, therefore, it must be completed by declaration, acceptance and delivery of possession. Registration is neither necessary nor sufficient for any of the two gifts.
  • It is revocable in the beginning (i.e. when only the original gift, has been made by donor to donee). But, as soon as the donee makes the gift of his property in furtherence of fulfilment of condition, the transaction becomes irrevocable.
  • Since Hiba-ba-shartul-iwaz is legally a set of two independent gifts therefore, the right of pre-emption is exercisable in it. But the doctrine of Mushaa may be made applicable to the transaction of Hiba-ba-shartul-iwaz.
  • However, it is to be noted that Hiba-ba-shartul-iwaz is only of academic importance. This kind of transaction is not common amongst the Indian Muslims.

 

Difference Between Hiba-bil-iwaz and Hiba-ba-shartul-iwaz :

(i) In Hiba-bil-iwaz the consideration is paid by donee voluntarily whereas in Hiba-ba-shartul-iwaz its payment is a condition precedent.

(ii) In Hiba-bil-iwaz the consideration is at the will of the donee but in Hiba-ba-shartul-iwaz the value and kind of consideration is at the direction of the donor.

(iii) Hiba-bil-iwaz is not Hilba ; it is either sale or exchange whereas Hiba-ba-shartul-iwaz is treated as Hiba.

(iv) Doctrine of Mushaa is not applicable to Hiba-bil-iwaz whereas this doctrine is applicable to Hiba-ba-shartul-iwaz.

(v) Since Hiba-ibil-iwaz is not gift; it is either sale or exchange, therefore, it must be in writing and registered. On the other hand, writing and registration is neither necessary nor sufficient for Hiba-ba-shartul-iwaz.

SADQA (RELIGIOUS GIFTS)

Where the object of a gift is to secure religious or spiritual gains, the transaction is called sadqa. A Hiba is made out of mutual love and affection i. e. just to please a person in whose favour it is made. On the other hand, sadqa is made to please the God. Thus, hiba is a secular or non-religious gift whereas, a sadqa is a religious gift. Wilson observes thus:

“The Muhammadan Law distinguishes two kinds of gifts (properly so called) by the terms sadqah and hiba. Both are voluntary transfers of property without consideration ; but whereas the use of the term sadqah indicates that the special motive for the gift is to acquire religious merit or ‘nearness to God,‘ the presumed motive of hiba is either to manifest affection towards, or to win the affection of an individual donee.”

As regards the nature of this transaction, except the motive behind the gift, there is no difference between hiba and sadqa. The essential requirements of a valid sadqa are the same as that of a Hiba i.e. there must be declaration, acceptance and the delivery of possession. Sadqa may be made in favour of rich or poor donee. Even if the sadqa is made to a rich donee with an object of getting religious merits, it is valid. Any property which may be the subject matter of a gift, may also be the subject matter of a sadqa. The Hanafi doctrine of mushaa is applicable also to ta sadqa. However a sadqa differs from hiba in the following respects:

(i) Express acceptance is not necessary, it may be implied and inferred from the circumstances.

(ii) A sadqa is not invalid if made to two or more persons without specifying their shares and without dividing the property.

(iii) A sadqa is irrevocable ; once made it cannot be revoked subsequently.

It may be noted that the object of waqf is also religious and charitable. But, there is a fundamental difference between a waqf and a sadqa. In a waqf the subject-matter is ‘tied up’ for ever and only its usufruct is utilised. That is to say, the property becomes non-transferable but its benefit is used for the religious or charitable purposes. On the other hand, when a sadqa is made, its religious object is achieved as soon as the property is transferred to the donee. Thereafter, the donee becomes the owner of the property and he may transfer the property as he likes.

AREEAT

Gratuitous transfer of the ‘right to-enjoy a property‘ for any specific period, is called Areeat. Gift is the transfer of ownership whereas, Areeat is transfer of only the usufruct of a property: The transfer of usufruct i.e. benefits or the produce of property, is made without any consideration. In Areeat the transferee is made the owner only of the usufruct for a limited period. The transferee (donee) may enjoy the benefits only so long as the transferor (donor) pleases. In other words Areeaz is like a grant in favour of a person under which he is entitled to use and enjoy the property for a specified period. It is simply a permission to a person to use the grantor’s property for limited period ; therefore, the formalities of declaration and acceptance, as are required to complete a Hiba, are not necessary for the validity of this transfer. In brief, the legal incidents of an Areeat are as under:

  1. Areeat is a temporary license without consideration. In other words it is a permission to a person to use the property of another person (grantor).
  2. It is only for a definite period.
  • It is always revocable at the instance of the donor (grantor).
  1. Being a personal right of the done (grantee), it is neither transferable nor heritable.
  2. Where a ‘right to usufruct’ of a property is transferred in favour of a person by way of maintenance grant, the transaction is an areeat not a hiba.

 

MUSLIM LAW

WILLS

  1. P, a Muslim has a son S, a wife W and a grandson g from a predeceased son D. P make a will of his whole property in favour of G. decide the validity of this bequest.

 

  1. Mahmood has got property worth Rs.10lacs. he has to pay Rs. One lac to his creditor and 50,000 to his wife as dower He bequeaths his entire property by will in favour of his son. Mahmood dies without discarging his debts. Whether the son will succeed on ‘Wasiyat’, Discuss.

 

  1. Explain the gift of Mushaa. 

 

MUSLIM LAW

WILLS

Introduction

  • Gratuitous transfer of ownership in a property may be made in two ways.
  • First, the transfer may be made inter vivos i.e., between living persons. Gratuitous (without consideration) transfer of ownership between living persons is called gift.
  • Secondly, the gratuitous transfer of ownership may be made testamentary. Testamentary transfer is called transfer under a will. Will is a gratuitous transfer of ownership but, it takes effect only after the death of the transferor.
  • A gift takes effect immediately after its completion whereas, a will operates only after the death of the transferor.
  • Accordingly, in all the systems of law, rules have been made to honour the last desires of a person regarding the devolution of his properties. Devolution of property means transmission of property.
  • In a will to the property passes on to the person in whose favour the will is made. But a will is not governed by the provisions of Transfer of Property Act, 1882. The Transfer of Property Act regulates only those transfers which are made between living persons. The transfer under a will takes place after the death of transferor. Where a person dies after making any will the devolution of his properties after his death is to be governed by his personal law e.g. will by a Hindu is governed by Hindu Law and will by a Muslim is governed by Muslim law etc. Where a person marries under the Special Marriages Act, 1954, the will executed by him is regulated by the provisions of the Indian Succession Act, 1925.
  • A will executed by a Muslim is called wasiyat. The person who executes the will is called legator and the person in whose favour the will has been made, is called the legatee. A will is also called a testament. The person who makes a will may also be called a testator and the person who gets properties may be called a testatrix.
  • In respect of wills it is significant to note that it actually modifies or sometimes negatives the distribution of properties of a deceased under the law of inheritance. Under the law of inheritance, including under Muslim law, the legal heirs and their respective shares in the properties of the deceased are clearly defined. On the other hand, under a will the properties of the deceased devolve only upon the person of his choice. What share or quantity of the property is to be given to that person is also according to the wishes of the deceased. Thus, the distribution of the property under specific and well defined rules of inheritance may be changed by the last desires of a person which is expressed in the form of a will. It may be objected that a will made by a deceased Muslim may amount modifications in the law of inheritance which is based on the rules laid down in Quran. But, the provisions for making the wills have also been sanctioned by Quran and the traditions of the Prophet.
  • In Islam, wills are allowed for correcting the law of inheritance in some genuine cases. Lawfulness and the object of wills under Muslim law, is given by a noted Jurist Sautayra, in the following words:
  • A will from the Mussulman’s point of view is divine institution, since its exercise is regulated by Quran. It offers to the testator the means of correcting to a certain extent the law of succession, and of enabling some of those relatives who are excluded from inheritance, to obtain a share in his goods, and of recognizing services rendered to him by a stranger or the devotion to him in his last moments. At the same time the Prophet has declared that the power should not be exercised to the injury of the lawful heirs
  • It is interesting to note that Muslim law maintains a very reasonable balance between the law of inheritance and the devolution of properties under a will. Under Muslim law, a person cannot make any will of his entire property without consent of legal heirs. Only one-third of the whole property may be bequeathed without the consent of heirs. Thus, Muslim may transfer his whole property during his life, but he cannot do the same under a will without the consent of his legal heirs.

Definition of Will

  • According to Tyabji, Will means a legal declaration of the intentions of a Muslim with respect to his property, which he desires to be carried into effect after his death.
  • According to Baillie, Will is a device for conferring a right of property in a specific thing, or in a profit or advantage, in the manner of a gratuity, postponed till after the death of the testator.

ESSENTIAL CONDITIONS FOR A VALID WILL

  • Under Muslim law, following essential conditions are necessary for a valid will :

(i) The legator and the legatee must be competent ;

(ii) There must be a free consent ;

(iii) Formalities must be completed ;

(iv) The property must be bequeathable property, and

(v) The legator must possess the testamentary right.

Competency of the Legator :

  • The person who makes a will is called legator or testator. The legator must have the capacity to make a will.
  • Every (i) Muslim of (ii) sound mind who has  attained the age of majority, has capacity to make a will.

 

  1. Muslim
  • The legator must be a Muslim at the time of making of the will. Where a Muslim has contracted his marriage under the Special Marriages Act, 1954, the will executed by him is governed by the provisions of the Indian Succession Act, 1925. It may be noted -that a will operates only after the death of the legator; before his death, it is simply a mere declaration on the basis of which the legatee may get the property in future. There may be cases where a person was Muslim at the time when he made the will but, has subsequently renounced Islam and at the time of his death he was a non-Muslim. If a will has been executed by a Muslim who ceases to be a Muslim at the time of his death, the will is valid under Muslim law. But, according to Maliki law the testator must be a Muslim also at the time of his death.
  • It may be noted that Sunni and Shia laws relating to wills differ on many points. The will is governed by the rules of that school of Muslim law to which the legator belonged at the time of execution (making) of the will. For example, if the legator was a Shia Muslim at the time when he wrote the will, only Shia law of will is made applicable.
  1. Soundness of Mind
  • At the time of execution of a will (i.e., when it is being made), the testator must be of sound mind.
  • A will executed by an insane person is void.
  • The legator must be capable of knowing fully the legal consequences of his activities not only for a brief period when the declaration was made, but much after that.
  • According to Ameer Ali, a will executed by a person during soundness of mind is void if the testator does not remain of sound mind at least for six months from the date of execution of the will.
  1. Age of Majority
  • The testator must also be adult. He must have attained the age of majority at the time of execution of the will. For purposes of making a will, the age of majority is governed by the Indian Majority Act, 1875. A will executed by a minor is void. But, if an person who had made a will during his minority, ratifies the will upon attaining majority, the will becomes valid.

Suicide Attempt by Legator

  • Under the Shia law, if a person executes any will after attempting to commit suicide, the will is void. For example, where a person seriously wounds himself or, takes poison to end his life and then makes any will before his death, the will is void. The reason behind this rule is that where a person has attempted suicide, he cannot be said to be in his normal state of mind. After the attempt has been made, his mental capacity is completely disturbed. But under Sunni law, the will executed in such circumstances is perfectly valid.
  • However, if the testator executes a will before attempting to commit suicide, the will is valid both under Sunni as well as under the Shia law.
  • In Mazhar Husen v. Bodha Bibi, a Shia Muslim Expressed his will through a letter addressed to his attorney. After giving in detail the scheme of distribution of his properties, he wrote the following words: In consequence of having suffered to a certain extent and the exposure being so great that I could not show my accused face to any one, I thought it advisable to put an end to my life, and therefore, took poison and died today. Please begin to take all the proceedings after pursuing this letter. It was held by the Privy Council that on the basis it may be said that the testator had made the will first attempted suicide. The will was, therefore, held valid.

Competency of the Legatee:

  • Legatee is the person in whose favour a will is made. Any, person may be a competent legatee provided he (or she) is in existence at the time of the death of the testator. It is to be noted that devolution of property under, a will takes place only after the death of the testator, not from the date of making of the will. Therefore, legatee must be a person in existence at the time of testator’s death.
  • A Muslim can lawfully make a will in favour of any person irrespective of religion, age, sex and the state of mind in other words, any person who is in existence, is deemed to be competent to hold property’ and may be a lawful legatee. Will in favour of a non-Muslim or a Hindu female‘ or minor and insane person, is valid. At juristic person is also a competent legatee. For example, an institution for a religious or charitable object, may be a competent legatee and a bequest (will) in its, favour is lawful.

Child in Mother’s Womb as Legatee

  • A child in its mother’s womb is treated as a living person in existence. Therefore, a child in womb may be a competent legatee. But a will in favour of a child in womb is valid subject to two conditions:

(i) The child must be in existence in mother’s womb at the time of testator’s death.

(ii) The child in mother’s womb must be born alive within six months from the date of testators eat.

Murderer of Legator

  • A person who has caused the death of the legator, cannot be a competent legatee. If a person, in whose favour a will has been made, kills or causes the death of the legator either intentionally or unintentionally, he is disqualified for getting any property under the will. The reason for such a rule is simple. A will operates only after the death of a legator therefore, a greedy and impatient legatee may cause the legator’s death to get the properties immediately. A common sense rule is that no person should be allowed to be benefitted out of his own wrongs.
  • However, under the Shia law, if a legatee causes the death of the legator negligently or accidently, he is not disqualified and the will in his favour is valid.

Joint Legatees

  • A bequest may be made to two or more legatees jointly. Where a will is made jointly to several legatees and no specific share of any of them has been mentioned, the property is divided equally amongst all the legatees. Where a will is made in favour of a specified class of persons, the class as such is treated as a single legatee and each person gets the property equally. For example, if a testator makes a will under which his properties are to be given to the Fakirs and the ‘poor people of his locality‘ then, half of the bequeathable property is to be given (equally) to the Fakirs and the remaining half is to be distributed equally amongst the poor persons of that locality. But, where the legato himself has specified the respective shares of the. legatees then, each legatee would get the shares allotted to him.

Lapse of Legacy : Legatee Dies Before Legator’s Death

  • We have already seen that a legatee must be in existence at the time of the legator’s death. Where a legatee dies before the legator’s death, the will fails. This is called the lapse of legacy. Where a will lapses because the legatee does not survive the legator, the property given under the will is not given to the heirs of the legatee. It remains with the legator as if no will was made at all. It is relevant to note that in such cases, the will automatically fails. Whether the testator revokes it or not, it is deemed to be revoked.
  • Where a will has been made to two or more legatees jointly without specifying their shares and, one of such legatee dies before the testator’s death, the whole property is given to the surviving legatee. But, if their shares are specified, the surviving legatee gets only his own share; the share of the predeceased legatee reverts back to the lestator’s heirs.
  • Shia law.—Under the Shia law, if the legatee dies before the death of the testator, the will does not lapse. The property under the will is given to the legal heirs of the legatee after the death of the testator. Where the legatee has no heirs at all, the will lapses and property remains with the testator. However, as a testator is always free to to revoke a will any time during his life, he may revoke it when he finds that the legatee is now dead.

Consent of Legator

  • The will must be executed by a legator with his free consent. Where a will is proved to have been executed by the legator under compulsion or, by fraud, or undue influence, the will is void and the legatee would not be entitled to get any property under that will. There is a general presumption that a sane person having capacity to make a will, has executed it with free consent, understanding fully the nature of the transaction. But where the testator is a Pardanashin lady, this general presumption is not applicable. Any woman who generally lives in seclusion and does not move outside her house is a Pardanashin lady. It is supposed that such a woman has no opportunity to know about the dealings in properties and, may be easily influenced by others. Law, therefore, gives a protection to such ignorant women of the society. Where a will has been executed by a Pardanashin lady, the legatee must prove of his ownself, that there was no undue influence and that she had executed the will with her free consent exercising an independent discretion in the matter.

Consent of Legatee

  • Consent of the legatee is also necessary. After the testator’s death the legatee must give his consent for taking the property. The consent may either be express or implied. If the legatee does not give his consent for taking the property given to him, i.e. if he declines to become the owner of the bequeathed property, his title to the property is not complete. A legatee who survives the legator but dies without assenting or disclaiming the legacy, is presumed to have given his consent and, the property under the will automatically devolves upon the legatee’s heirs. But under the Shia Law, if a legatee, dies without assenting or disclaiming the will, the property does not devolve automatically upon legatee’s heirs. The legatee’s heirs may accept or disclaim the property given under that will.
  • The reason for the rule that the title of the property given to a legatee is not complete unless the legatee gives his consent is simple. Even a beneficial interest cannot be thrust upon any person against his wishes. Nothing enters the proprietorship (ownership) of a person without his express or implied consent except inherited property.

The Formalities

  • Muslim law does riot provide any special formality for the validity of at will. The only essential requirement is that there should be a manifestation of the intention of testator that after his death, he wants to confer the ownership upon the legatee..Once this intention is established, the form of the will is immaterial.
  • A will may be made either orally or in writing. If in writing, it is not necessary that it should also be attested and registered. It need not be even signed by the testator, provided it is in his handwriting. A will may be written on any piece of paper. Where a testator wrote a letter, shortly before his death, in which he gave directions for the distribution of properties after his death, the letter was regarded as a valid will. Moreover, it is also not necessary that the document be named as a will. Irrespective of the name given to the document, if it contains the essential elements of a will, it may operate as a will. It is the intention of the testator which is decisive; the name given to the document is not relevant. According to Wilson:
  • “If a person executes a deed purporting to transfer ownership of certain property to another person, but providing that the latter shall only obtain possession after the death of the executant, such an instrument cannot operate as a gift for want of immediate possession but will take effect, subject to the usual restrictions, as a will.
  • Whether a document is a will or not depends neither upon the name given to it nor upon its form. Any document in which it is clearly expressed that the creator of the document provides manner of devolution of his properties after his death, may be a document of will. It depends upon the legal import of the transaction which decides whether it is to operate as a will or not. Where a deed was named as a deed of assignment (Tamlik-nama) but it had the character of a will i.e. ownership to be given after the death of the transferor, it was held to be a deed of will. However, the intention of the transferor that the property is to devolve upon the transferee after his death must be expressed in clear and unambiguous terms. Where a Muslim executed a document in which he stated: “I have no son, and I have adopted my nephew to succeed to my property and title,” the Privy Council held that the document was not a will.

Oral Wills

An oral will is valid. Any declaration in which a person expresses his intention that after his death the specified property should be given to the legatee, may operate as a will. But, proof of the genuineness of an oral will is always difficult. An oral will must be proved with utmost precision and the declaration must clearly indicate the intention of the testator. Sufficient proof must be given to the court regarding the testamentary effect of the words spoken and it must be convinced, beyond any reasonable doubt, that the speaker intended nothing but a will.” It is interesting to note that under Muslim law, even the words of mouth are not necessary; a will made only through gestures and signs, is valid. Thus, where a testator is illiterate and is also unable to speak, he may express his intention through signs and gestures. A will expressed through gestures is valid provided, it clearly indicates the intention of the testator. According to Baillie:

“A sickman makes a bequest and being unable to speak from weakness give a nod with his head, and it is known that he comprehends what he is about in these circumstances if his meaning be understood, the bequest is lawful.

THE SUBJECT-MATTER OF WILL : BEQUEATHABLE PROPERTY

Any kind of property, movable or immovable, corporeal or incorporeal, may be the subject-matter of a will. A testator may make a will of any property subject to two conditions:

(i) the property is owned by the testator at the time of his death, and

(ii) the property is transferable. The property which is bequeathed under a will may or may not exist at the time of making of the will but, it must exist and must be in the ownership of the testator at the time of his death. The reason is simple. A will operates only after the death of the testator. Thai is to say, the transfer of property under a will takes place from the moment of testator’s death, not from the date on which the will was made. For example, A makes will of his all properties in favour of B. At the time of making the will A has only a house. After sometime A purchases a garden and when he does he owns the house as well as the garden. B is entitled to get the house as well as the garden under the will although the garden was not owned by A when the will was executed.

Will of Usufruct

Under Muslim law, it is possible that a will is made only of the usufruct of a property. That is to say, a testator may make a will only of the produce or the benefits. In such cases, the legatee is entitled to get only the benefits of the property and has no right over the corpus. The bequest of usufruct of a property in favour of a legatee may be for a limited period or for the life of that legatee. The result would be that after the death of the testator, the corpus would be inherited by the legal heirs of the testator whereas, the benefits or the produce of the property would go to the legatee. Tyabji, observes:

“The right to occupy a house during a future period of time or to take the rents or future produce or usufruct (or part of the rents, produce or usufruct) of movable or other property for a limited time, or for life time of the legatee, may validly be the subject-matter of a bequest.

Thus, if a testator makes a will..for the right of rent of a house to a legatee then, after the death of the testator, the legatee is entitled only to the rent, her cannot live in that house. Similarly, where right to occupy a house for a limited period has been bequeathed, the legatee can only live and has no other right in respect of that property; other rights pertaining to it e.g. right to maintain or manage the house, would be: exercised by the legal heirs of the testator.

Will of Life-Interest

As discussed earlier corpus and usufruct of a property are separable for purposes of disposition. Accordingly, under Muslim law, it is possible that a testator makes will of the corpus to one person and of its usufruct to another. Under a will, the property as such may be given to A, whereas its produce or benefits may go to another legatee B, either for a fixed duration or for the life of B. Under Muslim law, t-he life-interest may be a lawful subject-matter of a will. In a will of life-interest the legatee has right only over the usufruct of the property during his (her) life.

TESTAMENTARY RIGHT : THE BEQUEATHABLE ONE-THIRD

A Muslim can transfer his entire property through gift but he has no right to make a will of his whole property. Under Muslim law, the testamentary right i.e. the right to transfer the properties through will, is restricted in two ways:

Firstly, there is a restriction upon the quantity of property bequeathed.

Secondly, in respect of the person (legatee) to whom the property is given.

When a person dies, first of all his funeral expenses and the debts, if any, are satisfied out of the property left by him. The property, which remains after payment of funeral expenses and debts incurred by a deceased person is called the bequeathable property if the deceased had made any will. Under other systems of personal law e.g. under Hindu law or Christian law etc. a legator can make a will of the entire property. Except under Muslim law, a testator has right to make a will of his total assets and there is no restriction either in respect of the quantity of property or in respect of the legatee. But, the right of a Muslim testator to dispose off his properties through will is restricted to one-third of his total assets. That is to say, where the testator is a Muslim, he is authorised to make will only of one-third of the bequeathable property i.e. one-third of what remains after payment of his funeral expenses and debts, if any. For example, upon the death of a Muslim, if the value of his entire property is Rs. 5,000 and if his funeral expenses and debts are Rs. 500 and Rs. l500 respectively, then, after deducting these two expenses the remaining Rs. 3000 would be called the bequeathable property or the total assets left by him. One-third of this bequeathable property would be Rs. 1,000. Thus, in this example, Rs. 1,000 is the bequeathable one—third. Moreover, besides the limit on the quantity of property bequeathed, the testamentary right of a Muslim depends also upon the fact whether legatee is an heir of the testator or a stranger (non-heir). Accordingly, the testamentary right of a Muslim may be studied separately under the following two heads :  (a) bequest to a stranger and, (b) bequest to an heir.

 

(a) Bequest to Stranger (non-heir)

A Muslim can make a will of one-third of his total assets to a stranger (i.e. non-heir). In respect of a will to a non-heir, under Shia law as well as under Sunni law a Muslim has an unconditional testamentary right upto one-third of his property. For a will of more than one-third property, the consent of the legal heirs of testator is necessary. In other words, a will in favour of any non-heir legatee is subject to the approval of heirs of testator if the property bequeathed exceeds one-third of the total assets. It is significant to note that this limit (of 1/3) is based on a tradition of the Prophet. The Prophet once said to Abu Vekas that he was not entitled to make any will of his whole property, nor even of two-third, not of one-half, but only of one-third of his properties.

If the legal heirs of a testator give their consent, the bequest to a stranger in excess of one-third is valid. When a Muslim makes will of his entire property to a stranger and his heirs give their consent, the will is valid. This is obvious, because the object behind this restriction is to protect the interests of the testator‘s heirs. If a Muslim be allowed to dispose of his entire assets to a stranger, his legal heirs would get nothing through inheritance. But, if the heirs give their free consent for a will in excess of the legal third then, there is no harm in validating the will. The heirs may assent to such a will either because they are competent enough to make their livelihood without inheriting or, because they give preference to the last desires of the testator over their own interests. It is relevant to mention here that in this respect, Muslim law appears to be very reasonable. On one hand, there is provision for carrying out the last desires of a testator whereas, on the other hand, it also makes room for giving honour to the rules of inheritance. However where a Muslim has no heir at all, he is entitled to bequest any amount of property to a stranger. It may be noted that when a person dies intestate (i.e. without making any will) and has also no heir to inherit his -properties, the government is authorised to take over his properties through escheat. But, a testamentary disposition by an heirless testator defeats the government’s right to take his properties. An heirless Muslim has absolute testamentary right in respect of his properties and his will, of whatsoever amount it may be, would not be void for want of heir’s consent.

Note.—Where a Muslim testator has only his wife as the only surviving heir, he is entitled to bequeath 5/6 of his total assets to a stranger. Similarly, where the Muslim testator is a woman and her husband is her only surviving heir, she may make a will of 2/3 of her properties to a stranger. This peculiar testamentary right of a Muslim testator having only wife (or husband) as surviving heir, may be explained by following illustrations:

(i) A Muslim makes a will of his entire properties to a stranger. His only heir at the time of his death his widow. In this case, first of all the stranger would get 1/3 as a legatee and his widow would get 1/4 of what remains after this will as Quranic heir. That is to say, the widow would get 1/4 of (1-1/3) i.e. 1/6.  Secondly, after this normal distribution of properties, we find that there remains (1 – 1/3 – 1/6) out of the testator’s property. This remaining property (1/2) also goes to the legatee. In this manner, the legatee’s share would become (1/3 + 1/2) = 5/6.

(ii) A Muslim woman makes a will of her entire property to a stranger. She is survived by her husband as her only heir. Here, in the normal course the legatee would get 1/3 in the first instance and her husband would get 1/2 of the property which remains after giving to legatee; That is to say, the husband would get 1/3 as Quranic heir. After distributing property in the normal course (i.e. 1/3 to the husband as heir and 1/3 to the legatee) there still remains 1/3 of the testator’s whole property. This remaining property would again go to the legatee in the second instance and the legatee’s share in property would become 2/3 (1/3 in the normal course plus 1/3 as residue).

(iii) A Muslim woman makes a will of 1/2 of her properties to a stranger. Her sole surviving heir is her husband. In this case; in the first instance, the legatee gets 1/3 in the normal course and the husband gets l/3 (1/2 of 2/3) as Quranic heir. Now there remains 1/3 of the testator‘s total assets. We find that as against bequest of 1/2 the legatee has got only 1/3 (i.e. short of 1/6, to make it .1/2). The will shall be honoured as far as possible and legatee would get, 1/6 more in the second instance so that his final share as legatee would become 1/2. But we find that after honouring the will (1/2) and giving share to the Quranic heir, (1/3) there still remains 1/6 of the testator‘s whole property. The residue of 1/6 is the surplus property after legacy and inheritance, this 1/6 should normally go to the government by escheat. But, now in India, both under Shia as well as under Sunni law, husband or wife as sole surviving heirs of each other, are entitled to return as against escheat. Therefore, the remaining 1/6 would go to husband in return. Thus the husband shall get 1/3 + 1/6 = 1/2 of the property.

(b) Bequest to an Heir

Where the legatee is one of the legal heirs of a testator, consent of the remaining legal heirs is necessary even though’ the property given is one-third or less. In other words, irrespective of the quantity of property bequeathed, will to an heir of the testator is valid only if other heirs give their consent. A bequest to an heir is always subject to approval by rest of the heirs, whatsoever be the amount given under a will. The reason behind this rule has been explained by Muslim jurists as under. When a Muslim testator makes any will in favour of one of his heirs, such heir (legatee) gets double advantage, out of the testator’s properties. He gets the property given to him under the will and, would also get some property as a legal heir of the testator. This may amount undue favour to such an heir (legatee) as against rest of the heirs. Obviously, this may cause jealousy and enmity among the heirs. Such an unpleasant situation has been avoided by Muslim jurists by making a rule that a bequest to an heir would not be valid without consent of other heirs. Hedaya lays down the object of this rule as under:

“If a man makes a bequest in favour of a part of his heirs, it is not valid ; because of a traditional saying : “God has allotted to every heir his particular right”, and also because a will in favour of a part of the heirs is an injury to the rest; and therefore, if it were ‘deemed legal, would induce breach of the ties of kindred.

In the leading case, Ranee Khajooroonissa v. Mst. Rowshan Jehan,” a Sunni Muslim, Raja Deedar Hussain executed a will in favour of his eldest son lnayat Hussain. Under this will, he gave the sole management of some of his properties to Inayat Hussain and authorised him to expend a portion of that property by way of pilgrimage or charity, as he may think proper. The will further authorised Inayat Hussain to retain the remaining property for his exclusive use. It was observed by the Privy Council that through this will, Raja Deedar Hussain has attempted to give his properties to one of his legal heirs to the total exclusion of other heirs. It could not be proved before their Lordships that any of the remaining heirs had ever given their consent. Accordingly, the Privy Council held that as there was no consent of other heirs of the testator, the will in favour of lnayat Hussain was void.

Who is Legal Heir ?

It is relevant to note that bequest to an heir means bequest to a person who is entitled to inherit the properties of the testator at the time of his death. A will in favour of any close relative of the testator needs no consent of the heirs if such relative is not entitled to inherit testator’s properties. In other words, a will to a relative who is not an heir at the time of testator’s death, is valid (up to one third) without the consent of the heirs because, such a will would be treated in favour of a stranger i.e. non-heir. For example, a Sunni Muslim makes a will in favour of his paternal grandfather. At the time of his death his only relatives are the paternal grandfather, his father and, his son. Out of these surviving persons, the testator’s father and son are his legal heirs. The paternal grandfather is excluded from inheritance by the presence of father. Therefore, a bequest to paternal grandfather is not a bequest to an heir; it is a bequest to a stranger and is valid (upto the legal third) without consent of the legal heirs namely, the testator’s father and son. Moreover, a legatee may be an heir at the time of execution of a will but may cease to be an heir at the time of testator’s death. Will in favour of such a legatee is also valid (up to one-third) without the consent of other heirs. For instance, a Muslim executes a will in favour of his brother. At the time of execution of the will, his only heirs are his brother and a daughter. If he dies leaving only these two heirs, the consent of the daughter is necessary to validate the will. But in case a son is born to the testator after sometime then, after testator’s death his surviving relatives would be his brother, daughter and the son here son excludes the brother from inheritance. The brother now becomes a non-heir and the will in his favour, upto the legal third, needs no consent of the remaining heirs son and the daughter. Similarly, where a Muslim dies leaving his son, widow and a son of predeceased son (grandson), the bequest to his grandson is valid without the consent of his son and widow provided the will is within the legal limit.

Shia law.—Under the Shia law, there is no difference between a bequest to an heir and a bequest to a non-heir. Where the testator is a Shia Muslim, a bequest to an heir upto one-third is valid without consent of his remaining heirs: The consent of other heirs is necessary to validate a will only where the bequest to an heir exceeds the legal third.

Bequest made Jointly to an Heirs and Non-heir

Where, under the same will, some property is given to a non-heir and some to an heir, the whole will is interpreted in two separate parts. The will in favour of the non-heir is valid upto one-third, without consent of the testator’s heirs. But, that part of the will, which is in favour of an heir, is not valid without consent of .the remaining heirs whatsoever be the quantum of property given to him.” However, where the testator is a Shia Muslim, there would not be two different interpretations and the whole will i.e. (to an heir and to non-heir) would be valid upto one-third without consent of the testator’s heirs.

 

 

Consent of the Testator’s Heirs

We have already seen that the consent of the testator’s heirs is required to validate a will in the following circumstances:

(a) where the bequest to stranger exceeds one-third, whether testator is Sunni or Shia;

(b) where the testator is a Sunni and the bequest is made to one of his heirs; and

(c) where the testator is a Shia and a bequest to an heir is made in excess of one- third.

Rules relating to the consent of heirs, necessary to validate at will, may be summarised as under:

(1) The consent of the heirs must be obtained only after the testator’s death. Consent given during the life of a testator is no consent at all. But, under the Shia law, the consent of heirs may be obtained either before or after the testator’s death. That is to say, if the testator is a Shia Muslim, the consent given by his heirs during his life, is a valid consent for purposes of validating the will ; such a consent need not be ratified by the heirs after testator’s death.

(2) Consent of the heirs means consent of those persons who are testator’s Heirs at the time of his death. Consent of a presumptive or would-be heir cannot validate a will. As discussed earlier, a person may be testator’s heir at the time of execution of a will, but may not be his heir at the time of his death. Consent of such persons is not relevant.

(3) Consent may be express or implied. In other words, it may be given by an heir in express words or may be inferred from his conduct and the circumstances. For example, a Muslim makes a will of his entire properties to a stranger. The will is in writing and is attested by testator’s two sons, who are his only heirs. After the testator’s death, the legatee takes possession of the properties bequeathed to him. The fact that possession is being taken by the legatee, is known fully to the two sons but, they do not raise any objection. The conduct of the sons (attesting the will and not objecting to the taking of possession) suggests that the two sons have given their consent impliedly. The will is, therefore, valid although the two sons (heirs) have not given their consent in express words.” However, a mere silence on the part of a legal heir does not amount his implied consent. In a will all the female heirs of the testator were excluded. When the mutation of name in favour of legatee took place, the female heirs kept silence because they could not know the nature of the proceedings. It was held by the Court that it cannot be inferred from the silence of the female heirs that they have given their implied consent becuase, they had no opportunity at all to know about the transfer of possession and raising any objection.

(4) Once the consent to a will is given by an heir, it cannot be rescinded by him. That is to say, after giving the consent, a legal heir is bound by it; he cannot withdraw it subsequently.

(5) By giving consent, an heir approves the will only in respect of his own share in the testator‘s property. Where some of the heirs consent and the others do not, the bequest (in so far as its validity needs consent) is payable out of the shares of the consenting heirs alone.

(6) The consent of the heirs must be a free consent. A consent obtained by undue influence, compulsion, force or fraud etc. is no consent at all and an heir is not bound by it.

Abatement of Legacies

Where a will is made to stranger in excess of one-third, the consent of testator’s heirs is necessary. If there is only one legatee who has to get more than the legal-third and, the testator‘s heirs do not give their consent for the bequest in excess, then there would be no difficulty and the legatee would get only one-third property even though the will is for more. But, where there are several legatees and the sum total of the properties bequeathed to each of them exceeds the legal-third then, the‘ share of each legatee is determined under the rules of abatement of legacies which under Sunni and Shia laws are different. Under Sunni law, the distribution is rateable whereas under Shia law the distribution is preferential.

Rateable Distribution Under Sunni Law

Under Sunni law, the legacies (i.e. the wills) abate rateably. Abatement means, ‘to deduct’ or to make less. Rateably means ‘proportionately’. That is to say, without the approval of testator‘s heirs, the property given to each legatee is reduced in proportion of the share allotted to him in such a manner that the aggregate of the property given to all of them does not exceed bequeathable one-third. But this deduction is not made from the share of one or two legatees. The deduction is made from the share of each legatee in the ratio of what they have got under the will. The Sunni rule of rateable distribution may well be explained with the help of following illustrations:

(1) T, a Sunni Muslim makes a will of half of his properties to A who is a non- heir. The heirs of T refuse to give their consent. A would get only 1/3.

(2) T, a Sunni Muslim makes a will to A, B and C. All the legatees are non-heirs. Under the will, T distributes his property to each of the legatee as follows:

A 1/2

B 1/4

C 1/4

Here the testator has attempted to give half of the whole property to A, and one fourth of the whole to B and C each. In this manner he has bequeathed his whole property. But without heir’s consent, the bequeathable property is only one-third of the nett assets, not the whole. To deduct the excess property from the shares of A, B and C, in proportion of their shares, the bequeathable property would be taken to be 1/3 as against the whole (one) and their respective shares would remain unaffected. Thus, the three legatees would finally get as under:

A 1/2 of 1/3 = 1/6

B 1/4 of 1/3 = 1/12

C 1/4 of 1/3 = 1/12

Now, under this distribution, the sum total of properties given to A, B and C is l/3 (l/6 + 1/12 + 1/ 12) and in this way it does not violate the rule of bequeathable third. At the same time the proportion (or the rate) of the shares of property given to each legatee under the will, has also not been changed.

(3) A Sunni Muslim makes a will of his properties to A and B who are not his legal heirs. His heirs do not approve the will.

Distribution of property under the will is as under:

A 1/2

B 1/4

Here, the total property given to A and B is 3/4 (1/2 + 1/4), which exceeds the legal third by 5/12 (3/4 – 1/3). This excess property must be deducted from the share of each legatee. But the reduction of their shares must be rateably or proportionally. There is at simple method for this. By taking the ratio of the shares of A and B, we find that their shares are in the ratio of 2 : 1 i.e. 2/3 and 1/3 respectively. Now, without the consent of the heirs, the bequeathable property is only 1/3. Therefore, the respective shares of A and B would be as under:

A 2/3 of 1/3 = 2/9

B 1/3 of 1/3 = 1/9

Thus, we find that total property given to the legatees is 1/3 (2/9 + 1/9) and the ratio of their shares has also not been disturbed.

Note.—It is significant to note that for abatement of legacies, a will under Sunni law may be classified into two categories (a) secular wills and (b) religious wills. A secular will is that under which there is no religious “motive whereas, a religious will is executed to secure religious or spiritual benefits. If there is a will in which one part consists of a bequest for secular object and the other for a religious object then, both of them are treated equally. That is to say, the religious part is not given any preference over the secular one. The result is that if the sum total of property bequeathed exceeds the legal-third, the excess share is deducted proportionally from both. For example, the total assets of a Sunni testator are Rs.l5,000. He executed a will under which he attempts to give Rs. 3,000 to A and B in equal shares (on account of personal reasons) and another Rs. 3,000 for religious or pious purposes. The heirs have not given their consent. Now, we find that the total amount directed to be given under the will is Rs. 6,000 whereas in the absence of the heirs’ consent, the bequeathable property is only Rs. 5,000 (1/3 of 15,000). Therefore, out of this bequeathable one-third (Rs. 5,000), Rs. 2,500 would be given to A and B, to be shared by them equally and, Rs. 2,500 would be left for the religious purpose.

  

Preferential Distribution Under Shia Law

The principle of rateable distribution is not recognised under the Shia law. According to this school, if the sum total of the shares given to different legatees exceeds one-third and, testator’s heirs refuse to confirm then, their legacies take effect in order of preference. The preference is determined by the order in which they are mentioned in the will. The share of each legatee is not reduced and remains intact. The legatee mentioned first in the will gets his share as mentioned under the will. After giving this share, the remaining goes to the second legatee. If there still remains something, it goes to the third and so on. As soon as the one-third property is exhausted the distribution is stopped and the next legatee does not get anything. Thus, we find that here a legatee either gets his share or gets nothing at all. The Shia law on this point may therefore, be called as the rule of ‘preferential distribution’. Following illustrations would explain this rule clearly:

(1) T, a Shia testator makes a will of his properties to A, B and C giving them the following shares:

A 1/3

B 1/4

C 1/6

Here, the aggregate of what T attempts to give to the three legatees exceeds one- third of his total assets. But the heirs of T, refuse to give the consent. The result is that by applying the Shia rule of preferential distribution, A would get his share of 1/3 because he is the -legatee who has been mentioned, first. After giving the A’s share there remains nothing, therefore, B and C would get nothing.

(2) T, a Shia Muslim, executes a will in favour of three persons, A, B and C and specifies their shares as under:

A 1/12

B 1/4

C 1/6

The sum total of all the properties given to these legatees exceeds one-third. T’s heirs refuse to give consent; therefore, the principle of preferential distribution, would be application. Thus, A, the first legatee would get his share 1/ 12. But there still remains (1/3- 1/12) = 1/4. This remaining ¼, which is also the share of B would go to B. After giving the property to A and B the bequeathable one-third exhausts and therefore C would get nothing. In this example, if the shares of A, B and C would have been 1/12, 1/2 and 1/6 then A’s share would be 1/12 as he is the first legatee. Next to him, in the order of preference, is B who has to get 1/2 under the will. But, after giving to A there remains only ¼ out of the legal-third. Thus, B is unable to get the share given to him under the will; he could get only what remains after giving the property to the first legatee. Accordingly B would get only 1/4 whereas, C would get nothing because one-third property exhausts after giving the properties to A and B.

Exceptional Rule

There is an exception to the Shia rule of preferential distribution. Where a Shia testator makes a bequest of exactly 1/3 of his property to two legatees, the order of preference is reversed and the legatee mentioned in the last gets preference over the earlier legatee. For example, a Shia testator makes a will of 1/3 of his properties to A, and 1/3 to B. Generally, under the Shia rule, A should get his 1/3 share and since the legal third exhausts, B should get nothing. But, under the exceptional Shia rule B would get 1/3 and the first legatee namely, A would get nothing.

The reason behind this peculiar rule is that where a will is made of exactly one-third, the Shia jurists regard the last will as implied revocation of the first. However, it may be noted that this exceptional rule applies only where’ two legatees are given exactly 1/3 each. Where A is given 1/3 and B is given 1/6 this rule would not apply and A will take his 1/3 under the Shia rule of preferential distribution, whereas B would get no property.

CONDITIONAL AND CONTINGENT WILLS

Conditional Will

A will made subject to certain conditions is called a conditional will. A conditional will is valid but the condition attached to it is void. Where a testator makes any will and provides that the legatee’s interest would depend upon the fulfillment of certain conditions then, the will is enforceable as if no condition was attached to it. The condition so attached need not be fulfilled and the legatee gets absolute unconditional interest in the property bequeathed to him. For example, a Muslim makes a will of his properties to a stranger. The will contains a condition that the legatee cannot sell the property. The will is valid and enforceable and the legatee gets unconditional interest in the property; he is not bound by the condition. Similarly, a Muslim makes a bequest in favour of A subject to condition that upon the death of this legatee, the property would pass on to B. ‘Here, A would take the property absolutely as if no condition at all was attached in the bequest. The result would be that after the death of A, property would be inherited by ‘A’: legal Heirs and B would not get anything because the condition under which he had to get, is void.

Bequest for Life

It is relevant to note that like a gift, a bequest is also a transfer of absolute interest. Any condition which derogates from completeness of the grant is void. Accordingly, under Sunni law, where a Sunni testator makes a will in which he gives life-interest to a legatee, the condition of ‘for life‘ is void but the will is valid. The result is that the legatee gets absolute interest in respect of the property bequeathed to him. But, under the Shia law, a will for the life of legatee is possible. Where a Shia testator makes any will for the life of a legatee, the will as such and also the condition that it is only a life-interest, both are valid. As discussed earlier in the case of Nawazish Ali Khan v. Ali Raza Khan, a bequest of successive life interests by a Shia testator was held valid and enforceable. However, it is submitted that under Shia law too any other type of condition is not valid and is, therefore, not enforceable.

Contingent Will

A contingent will is void. That is to say, where the vesting of interest in a legatee depends upon some uncertain future event, the will is void and does not operate. The legatee would not get any property even though the contingency happens. The basic feature of a transaction by way of will is that the interest in the bequeathed property vests in a legatee only upon the death of the testator. Therefore, nothing except the event of testator’s death may cause vesting of interest in favour of a legatee.

However, an alternative bequest is valid. In an alteranative bequest, the testator gives his property to a legatee but also provides that if that legatee does not survive him then the property is to be given to the second legatee. Now, in case the first legatee survives the testator, he would get the property. But, if he dies before the testator’s death, the will in his favour fails and the property is given to the second legatee.

REVOCATION OF WILLS

A will may be revoked by a testator any time during his life. The testator has every right to repudiate a will before it begins to operate. Revocation may either be of the whole bequest or only of a part of it. A will may be revoked either expressly or impliedly. Implied revocation is by implication. Where a will has been revoked by a testator either expressly or impliedly, the legatee does not get the property bequeathed to him.

Express Revocation

Revocation of a will is express if the testator makes a statement that he has rescinded the will executed by him. The statement of revocation may either be oral or in writing. But, it must be in clear and unambiguous terms. Destruction of an unregistered will by tearing it off or, by burning it, is also an express revocation as it clearly indicates the testator’s intention to nullify the bequest. A testator may also revoke the will expressly by making a statement to that effect before a court of law. Such a statement revokes the will even though the will has not been destroyed. However, a mere denial by the testator of the validity of a bequest made by him, or of the fact of his having made it, does not operate as revocation of the will.

Implied Revocation

Revocation of a will may also be implied. The testator may not revoke the will expressly but his intention to rescind the will is inferred from his conduct. Where a testator does something in respect of the property bequeathed by him which is violative of his own rights as owner of that property, the testator’s conduct suggests nothing but the revocation of that will. For example, when a testator destroys or transfers the bequeathed property he himself to be the owner of that property and the will becomes meaningless. According to Hedaya:

“If the testator performs, upon the article he had bequeathed, any act which, when performed on the property of another, is the cause of terminating right of the proprietor ……………… such act is a retraction of the bequest.

It may be stated that where a testator extinguishes his own right in bequeathed property the legatee’s  right to take that property after testator’s death, is also extinguished. For example, where a testator has made a bequest of his goat but subsequently slaughters the same goat, the will of that goat is automatically rescinded. Similarly, a bequest of a piece of copper is impliedly revoked if the testator subsequently converts it into a pot. Or, where a testator has made a will of a bag of wheat but subsequently converts it into flour, the bequest of the bag of wheat is revoked. The testator’s right over the bequeathed property is extinguished’ also where he transfers its ownership to another person during his life. Therefore, where a” testator sells or makes a gift of the same property of which he had made a will, the will is impliedly revoked. It is to be noted that the revocation is valid even if the testator re-purchases the same-property or repudiates the gift. Moreover, there is also an implied revocation of a will if the testator makes any substantially addition to the bequeathed property in such a manner that the property cannot be given to the legatee without that addition. For example, a testator makes a will of his plot of land, later-on the constructs a building on that plot. The bequest of the plot of land stands revoked because the plot cannot be given in legacy without giving also the subsequent addition i.e. the building.

A subsequent will in favour of another legatee, of the same property which was the subject-matter of an earlier will, also revokes the earlier will. Where a testator makes a will in favour of a legatee X and after sometime makes another will of the same property to another legatee Y, the first will is automatically revoked without any express declaration of revocation because, only the last will prevails.

DEATH-BED GIFTS AND ACKNOWLEDGEMENTS

Death-Bed Gifts (Donatio Mortis Causa)

Gifts made by Muslims during ‘death-illness’ (Marz-ul-maut) are regarded as wills. Where a Muslim makes any gift of his properties while on his death-bed, the legal effects of the transaction are not of a Hiba but of will. There are two aspects of a gift made during death-illness ; in its formation it is a pure gift but in its legal consequences it is a will. Describing the nature of a ‘gift during death-illness’ (donatio mortis causa) Buckley, L.J. observed that it is a gift of amphibious nature; not exactly a gift nor exactly a legacy but partaking of the nature of both.” The doctrine of death-bed gifts is based on the donor’s state of mind at the time of the transfer. When a person makes a gift during death illness, he intends to distribute his properties according to his own scheme giving up all the hopes for his life. A person suffering from mortal-disease believes, beyond reasonable doubt that he would die very soon. With this apprehensions in mind, he attempts to give away his properties. The result is that although the transfer is inter-vivos but the idea behind such transfer is that it is likely to take place only after the donor’s death. Through a gift, a Muslim donor on his death-bed may transfer his properties without any restriction of its quantity although in its effects, the transaction is a will. This may frustrate the very purpose of one-third rule in respect of Muslim wills. Accordingly, in order to prevent the evasion of restrictions on the testamentary capacity of a Muslim, a death-bed gift is interpreted as a will.

 

 

Essentials of a Death-bed Gift

A gift during death-illness is a pure Hiba in its formation but after the donor’s death it operates like a will. Therefore, the essential conditions for a gift during death-illness are: (i) there is a valid and complete gift, and (ii) this gift is made during death-illness (Marz-ul-maut) of the donor.

(i) A valid and complete gift.—The only difference between a simple gift and a death-bed gift‘ is that if a gift is made by a donor during his death-illness, the gift is testamentary ; if it is made normally, the gift is inter vivos i.e. pure Hiba. Thus, in a death-bed gift all the essentials of a valid Hiba are necessary. There must be declaration, acceptance and the actual or constructive delivery of possession. In brief, the gift must be valid in all respects according to the provisions of Muslim personal law.

(ii) Death-illness (Marz-ul-mqut).—Death-illness is an illness which ultimately results in the death of a person. However, there must also be a reasonable apprehension in the mind of that person that he would die on account of that illness. In other words, any disease or ailment may be regarded as a death-illness if the person suffering from it believes that there are no chances of his survival. It is to be noted that the crucial test for Marz-ul,-maut is the subjective apprehension of death in the mind of the donor. The seriousness of the disease or apprehension of death caused in the minds of other persons is not relevant. Whether a disease is a death-illness or not depends upon the donor’s state of mind rather than the gravity of that disease. According to Tyabji, for establishing the existence of death-illness following conditions are necessary:

(a) the illness, must have caused death;

(b) there must have been proximate danger of death, so that there was preponderance of apprehension of death (i.e. at given time death is more probable than life) ;

(c) some degree of subjective apprehension of death in the mind of sick person ; and

(d) some external indicia, chief among which are inability to attend to ordinary avocations.

There cannot be any objective criterion for determining the existence of death- illness. If a disease causes the death and the donor thought it highly probable that this illness would soon end fatally, it is death-illness. Whether an illness is mortal-illness or not is a question of fact and each case must be examined in the light of evidence produced before the court. It has been held that paralysis is not a death-illness. In Mohammad Gulshere v. Mariyam, it was held by the Allahabad High Court that boils or corbuncle for long continuance for over an year, may not cause apprehension of death, therefore, it cannot be regarded as death-illness. Similarly, asthama, lingering consumption and sudden bursting of blood-vessels have not been regarded as death- illness. But, all rapid consumption, tumour in the stomach and a tuberculosis of the last stage have been held to be death-illness. A serious case of pneumonia was held to be a death- illness. In Abdul Hafiz v. Sahib Bi, an aged Muslim of over eighty years remained ill very seriously for four days. On the last day, i.e. just before his death, he made a gift. It was held by Bombay High Court that the gift was made during a death-illness. The Court observed that what is required to be proved upon the preponderance of probabilities is, whether the gift was made by the ailing person while under the apprehension of death and, that whether in such ailing he died. During the delivery of a child, the pains of child-birth may also be regarded as death-illness.

It is to be noted that a gift during Marz-ul-maut is established only where the donor dies. If the donor survives that illness, the transaction continues to be a gift.

Legal consequences of death-bed gifts

Gifts made during mortal-disease have testamentary effects. That is to say, although the transaction may be constituted as a gift but, it would be interpreted like a will. In its operation, such a gift is governed by the Muslim law of wills. Accordingly, where the donee is a stranger or non-heir, he cannot get more than one-third of total assets without consent of the donor’s legal heirs. Where donee is one of the legal heirs of the donor, the consent of the remaining legal heirs is necessary even though the property given is less than one-third. However, if the donor is a Shia Muslim, a gift during death-illness is valid upto one-third even if the donee is an heir of the donor. To conclude, in the words of Wilson:

“A gift made in mortal sickness is so far regarded as a bequest that it cannot operate on more than one-third of the testator’s net assets unless with the consent of all the heirs nor in favour of one heir without the consent of all heirs.

Death-Bed Acknowledgement of Debts

Acknowledgement of debt by-a person means acceptance of the fact that he owes certain debts to another person. Acknowledgement of debts may be made by a Muslim during his death-illness. A Muslim may acknowledge a debt during his death-illness either in favour of a stranger i.e., non-heir or, in favour of a person who is one of his heirs.

(a) Acknowledgement in favour of stranger.—Where a Muslim makes –any statement during Marz-ul-maut that he owes certain debts to a person (who is not his heir) the acknowledgement is binding on the legatees and also on the legal heirs of the deceased. That is to say, an acknowledgement during death- illness is a conclusive proof of the debts. But, such acknowledgement is subject to the following two conditions:

(i) The acknowledgement of a debt in normal health prevails over an acknowledgement during death-illness, and .

(ii) if any debt has been proved otherwise than acknowledgement in death-illness then, the debt proved otherwise would prevail over a debt acknowledged during death-illness.

(b) Acknowledgement in favour of heir.— Acknowledgement of debt during death-illness, in favour of an heir, is not a conclusive proof of that debt. Where a Muslim makes a statement during his death-illness that he owes certain debt to an heir, the heir cannot rely solely upon that acknowledgement. Such an heir will have to prove the debt by some other evidence. In other words, unless corroborated by some other evidence, the heir of a deceased Muslim cannot get the payment of debt only on the basis of an acknowledgement made during death-illness.

MUSLIM LAW

  WILLS

  1. A Mohammedan will in writing

(a) needs attestation by two witnesses

(b) needs attestation by four adult witnesses

(c) needs attestation by one adult male & one adult female witnesses

(d) needs no attestation.

  1. A bequest to an heir is

(a) valid generally

(b) valid only when the other heirs consent to the bequest after the death of the testator

(c) valid only when the other heirs consent to the bequest before the death of the testator

(d) not valid at all.

  1. According to the Shia law, a testator leaving a legacy to an heir is

(a) valid without the consent of other heirs, so long as it does not exceed one third of his estate

(b) valid without the consent of other heirs even if it exceeds one third of his estate

(c) valid only with the consent of other heirs and that too when it does not exceed one third of his estate

(d) not valid at all.

  1. Under the Shia law, a testator leaving a legacy to an heir exceeding one third of his estate, is

(a) valid without the consent of other heirs to such legacy

(b) valid only if the other heirs consent to such legacy

(c) not valid at all

(d) valid only to the extend of one third of the estate.

  1. Consent by the other heirs to the bequest of more than one third of the estate to an heir, under the Shia law, can be given

(a) after the death of the testator

(b) before the death of the testator

(c) either before or after the death of the testator

(d) only after the death and not before the death of the testator.

  1. A bequest for pious purposes can be made by a Muslim

(a) of his entire estate

(b) to the extent of one half of his estate

(c) to the extent of one-third of his estate

(d) to the extent of one-fourth of his estate.

  1. A bequest to a person who is not in existence at the testators death is

(a) void

(b) valid

(c) voidable

(d) invalid.

  1. A bequest made to a child in mother’s womb is

(a) void

(b) voidable

(c) valid only if the child is born within normal span of gestation from the date of the Will

(d) valid only if the child is born within six months from the date of the Will.

  1. For the validity of a bequest

(a) it is necessary that the property bequeathed should be in existence at the time of making the will

(b) it is necessary that the property bequeathed should be in existence at the time of the testator’s death

(c) both (a) and (b)

(d) either (a) or (b).

  1. Which of the following bequests are valid

(a) bequest in future

(b) contingent bequest

(c) alternative bequest

(d) all the above.

PAHUJA LAW ACADEMY

MUSLIM LAW

INHERITANCE

MAINS

  1. How the property will devolve in the following cases

 

  • A Sunni Muslim dies leaving behind his (a) father, (b) father’s, father, (c) mother, (d) mother’s mother, (e) two daughters and (f) son’s daughter.

 

  • If the only heirs of a propositus are mother and father

 

 

  • A (Sunni propositus dies leaving behind the (a) father (b) father’s mother (paternal grandmother) and (c) mother’s mother (maternal grandmother).

 

  • The heirs of a Sunni propositus are (a) two full sisters and, (b) two uterine sisters.

 

 

  • The surviving heirs of a propositus are (a) widow (b) mother and (c) daughter

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MUSLIM LAW

INHERITANCE

Introduction

Succession to the properties of a deceased person may either be testamentary or intestate. The testamentary succession is called a legacy and takes place under a Will. Intestate succession is called inheritance under which the legal heirs of the deceased succeed to his properties in well defined shares fixed under the law.

Upon the death of a Muslim, his properties are, in the first instance, utilised for payment of his funeral expenses, government dues and, his unpaid debts. In the second instance, the remaining property is succeeded by the legatees, if any, under the law of Wills. After making these payments, the residue or the remaining property, is called the heritable property. In the last instance, this heritable property is given to the legal heirs of the deceased so that they may inherit it in their respective shares.

Pre-Islamic Customs

Before the advent of Islam, the properties of a deceased used to devolve upon his heirs according to the customary practices prevalent in the Arab societies. But, most of the customs were unreasonable, indiscriminate and against all notions of equity and justice. Females were treated as properties; therefore, they were not entitled to inherit any property from anyone.

Some important pre-Islamic customs on inheritance are briefly stated as under:

(1) Females and cognates had no rights of inheritance. .

(2) Normally, the nearest male agnates (i.e., persons inheriting through males) used to succeed to the properties of a deceased.

(3) Descendants were preferred over parents and other ascendants.

(4) Where the agnates were equally distant, the devolution of property among them was per-capita.

The Islamic Reforms

After the advent of Islam, new principles of inheritance were promulgated by Quran and traditions of the Prophet. The Quran deals elaborately with the rules relating to inheritance.

Some of the main reforms introduced by the Islamic system of inheritance, may be summarized as under:

(1) The females and the cognates are competent to inherit.

(2) Husband and wife have been made each other’s legal heir.

(3) Parents and ascendants are entitled to inherit even in the presence of descendants.

(4) Normally, the share of a female is half of the share of a male.

GENERAL PRINCIPLES OF INHERITANCE

(1) Nature of the Heritable Property

  • Heritable property is that property which is available to the legal heirs for inheritance.
  • Under Muslim law, every kind of property may be a heritable property. For purposes of inheritance, Muslim law does not make any distinction between corpus and usufruct or, between movable and immovable, or, corporeal and incorporeal property.
  • Under English law, there is some difference in the inheritance of movable and immovable property. But, under Muslim law there is no such distinction ; any property, which was in the ownership of the deceased at the moment of his death, maybe the subject-matter of inheritance.
  • Under the Shia law, a childless widow is entitled to get her share (1/4) in the inheritance only from the movable property left by her deceased husband.

(2) Joint or Ancestral Property

  • Whenever a Muslim dies, his properties devolve on his heirs in definite share of which each heir becomes an absolute owner. Subsequently, upon the death of such heir, his properties are again inherited by his legal heirs, and this process continues. Thus, unlike Hindu law, there is no provision for any ancestral or joint-family property. Accordingly, under Muslim law of inheritance, no distinction has been made between self-acquired and ancestral property. All properties, whether acquired by a Muslim himself or inherited by his ancestors, are regarded as an individual property and, may be inherited by his legal heirs.

(3) No Birth-Right

  • Inheritance opens only after the death of a Muslim. No person may be an heir of a living person. Unlike Hindu law, the Muslim law of inheritance does not recognise the concept of ‘right by birth.
  • Under Muslim law, an heir does not possess any right at all before the death of an ancestor. It is only the death of a Muslim which gives the right of inheritance to his legal heirs. They are simply his heir-apparent and have merely a ‘chance of succession, (spes successionis). If such an heir-apparent survives a Muslim, he becomes his legal heir and the right of inheritance accrues to him.

(4) Doctrine of Representation

  • Doctrine of representation is a well known principle recognised by the Roman, English and Hindu laws of inheritance. Under the principle of representation, as is recognised by these systems of laws, the son of a predeceased son represents his father for purposes of inheritance. The doctrine of representation may be explained with the help of the diagram given below. P has two sons A and B. A has got two sons C and D and B has a son E.

 

 

 

  • During the life of P, his family members are his two sons (A and B), and three grandsons (C, D and E). Unfortunately, B pre-deceases P, i.e. B dies before the death of P. Subsequently, when P also dies, the sole surviving members of the family of P are A and three grandsons, C, D and E. Under the doctrine of representation, E will represent his pre-deceased father B and would be entitled to inherit the properties of P in the same manner as B would have inherited had he been alive at the time of P’s death.
  • But,Muslim law does not recognise the doctrine of representation.
  • Under Muslim law, the nearer excludes the remoter. Accordingly, in the illustration given above, E will be totally excluded from inheriting the properties of P. Both, under Shia as well as under Sunni law, E has no right to inherit the properties of P. The result is that E cannot take the plea that he represents his pre-deceased father (B) and should be substituted in his place. Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is to say, if there are two heirs who claim inheritance from a common ancestor, the heir who is nearer (in degree) to the deceased, would exclude the heir who is remoter. Thus, between A and E, A will totally exclude E because A is nearer to P in degree whereas, E belongs to the second degree of generation. The Muslim jurists justify the reason for denying the right of presentation on the ground that a person has not even an inchoate right to the property of his ancestor until the death of that ancestor. Accordingly, they argue that there can be no claim through a deceased person in whom no right could have been vested by any possibility. But, it may be submitted that non-recognition of principles of representation under the Muslim law of inheritance, seems to be unreasonable and harsh. It is cruel that a son whose father is dead, is unable to inherit the properties of his grandfather together with his uncle.

 

 

 

(5) Per-Capita and Per-Strip Distribution

  • Succession among the heirs of the same class but belonging to different branches, may either be per-capita or per-strips.
  • In a per-capita distribution, the succession is according to the ‘number of heirs’ (i.e. heads). Among them the estate is equally divided; therefore, each heir gets equal quantity of property from the heritable assets of the deceased.
  • In a per strip distribution, the several heirs who belong to different branches, get their share only from that property which is available to the branch to which they belong. In other words, in the stripital succession, the quantum of property available to each heir depends on the property available to his branch rather than the number of all the heirs. Under Sunni law, the distribution of the assets is per-capita. That is to say an heir does not in any respect represents the branch from which he inherits. The per-capita distribution may be illustrated by the following diagram.

M has got two sons A and B. A has three sons, S1, S2 and S3. B has two sons S4 and S5; When M dies there are two branches of succession, one of A and the other of B. Suppose, A and B both die before the death of M so that the sole surviving heirs of M are his five grandsons. Now, under the per-capita scheme of distribution (as recognized under Sunni law) the total number of claimants (heirs) is five and the heritable property would be equally divided among all of them irrespective of the branch to which an heir belongs. Therefore, each of them would get 1/5 of the total assets of M.

  • Shia law: Under the Shia law, if there are several heirs of the same class but they descend from different branches, the distribution among them is per strip. That is to say, the quantum of property inherited by each of them depends upon the property available to that particular branch to which they belong. In the above-mentioned illustration, A and B constitute two branches, each having 1/2 of M’s property. Both, A and B pre-decease M. But, the quantum of property available to each of their branch would remain the same. Therefore, the surviving heirs of A namely, S1, S2, S3 would get equal shares out of ½ which is quantum of property available to the branch of A. Thus S1, S2 and S3 would get 1/6 each. Similarly, the quantum of property available to the branch of B is also 1/2 but the descendants from this branch are only two. Accordingly, the 1/2 property of B would be equally shared by S4 and S5. Therefore, S4 and S5 would get 1/4 each. It is significant to note that for a limited purpose of calculating the share of each heir, the Shia law accepts the principle of representation. Moreover, under the Shia law this rule is applicable for determining the quantum of share also of the descendants of a pre-deceased daughter, pre-deceased brother, pre-deceased sister or that of a pre-deceased aunt.

(6) Female’s Right of Inheritance

  • Males and females have equal rights of inheritance.
  • Normally the share of a male is double the share of a female. In other words, although there is no difference between male and female heir in so far as their respective rights of inheritance is concerned but generally the quantum of property inherited by a female heir is half of the property given to a male of equal status (degree).
  • The principle that normally the share of a male is double the share of a female has some justification. Under Muslim law, while a female heir gets (or hopes to get in future) an additional money or property as her Mehr and maintenance from her husband, her male counterpart gets none of the two benefits. Moreover, the male heir is primarily liable for the maintenance of his children whereas, the female heir may have this liability only in an extraordinary case.

(7) A Child in the Womb

  • A child in the womb of its mother is competent to inherit provided it is born alive. A child in embryo is regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.

(8) Primogeniture

  • Primogeniture is a principle of inheritance under which the eldest son of the deceased enjoys certain special privileges. Muslim law does not recognise the rule of primogeniture and all sons are treated equally.
  • However, under the Shia law, the eldest son has an exclusive right to inherit his father’s garments, sword, ring and the copy of Quran, provided that such eldest son is of sound mind and the father has left certain other properties besides these articles.

(9) Step-Children

  • The step-children are not entitled to inherit the properties of their step-parents. Similarly, the step-parents too do not inherit from step-children. For example, where a Muslim H marries a widow W having a son from her previous husband, the son is a step- son of H, who is step-father of this son. The step-father and step-son (or daughter) cannot inherit each other‘s properties. That step-child is competent to inherit from its natural father or natural mother. Similarly, the natural father and natural mother can inherit from their natural sons or daughters.
  • However, the step-brothers (or sisters) can inherit each other‘s properties. Thus, in the illustration given above, if a son (or daughter) is born out of the marriage of H and W, the newly born child would be a step-brother (or sister) of the son from wife’s previous husband. These sons or daughters are competent to inherit each other’s property. The step-brothers or sisters may either be uterine or consanguine. Muslim law provides for mutual rights of inheritance between uterine and consanguine brothers or sisters.

(10) Simultaneous Death of two Heirs

  • When two or more persons die in such a circumstance that it is not ascertainable as to who died first (i.e. who survived whom) then, both of them cease to be an heir for each other. In other words, where two or more heirs die simultaneously and, it is not possible to establish as to who died first then under Muslim law, all the heirs are presumed to have died just at one moment. The result is that such heirs are regarded as if they did not exist at all; the inheritance opens omitting these heirs? For example, A and B are each other‘s legal heirs in such a manner that after the death of any ‘one of them’, the surviving person would inherit the property of the deceased one. But, both A and B die simultaneously say, in an aeroplane crash and it could not be established as to who survived whom. Under Muslim law, neither A would inherit B nor B would inherit A. Thus, the legal heirs of A would inherit A is property as if there was no B at all. Similarly, the heirs of B would inherit B’s property as if A did not exist at all.

(11) Missing Persons

  • According to the texts of Hanafi law, a missing person was supposed to have been dead only after ninety years from the date of his birth; till then the inheritance of his properties did not open. But, now this rule has been superseded by Sec. 108 of the Indian Evidence Act, 1872 which provides as under:
  • “When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it”.
  • Accordingly, where a Muslim is missing for at least seven years and if it could not be proved that he (or she) was alive then, that person is legally presumed to be dead and the inheritance of his (or her) properties opens . It has been held by the courts that Hanafi rule of ninety years of life of a missing person, was only a rule of evidence and not any rule of succession; therefore, this Hanafi rule must be taken as superseded by the provisions of Indian Evidence Act 1872.

(12) Escheat

  • Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat(the reversion of property to the state on owner’. State is regarded as the ultimate heir of every deceased.

(13) Marriage under the Special Marriage Act, 1954

  • Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or her) properties do not devolve under Muslim law of inheritance. The inheritance of the properties of such Muslims are governed by the provisions of the Indian Succession Act, 1925 and Muslim law of inheritance is not applicable.

RULES OF EXCLUSION

  • Every heir is entitled to inherit a property unless he (or she) is debarred from inheritance under any rule of exclusion. Under Muslim law, if an heir is disqualified on any of the following grounds, he (or she) is excluded from inheriting the property. However, insanity, want of chastity or any physical deformity is not regarded as any disqualification for inheritance. Adulterous women, insane or infirm persons are equally competent to inherit a property.

(a) Homicide

  • A person who causes the death of another, is disqualified for inheriting the properties of the said deceased. It is a rule of common prudence that law cannot allow a person to derive benefits out of his own wrongs. Under Hanafi law, an heir who causes the death either intentionally or negligently, is a disqualified heir and cannot inherit properties of the deceased. Thus, even if the death is caused due to negligent or accidental act of an heir, the heir is debarred from inheritance.
  • Shia Law
  • Under the lthna Asharia law, an heir is excluded from inheritance only where the death is caused intentionally. If the death is caused accidentally or negligently, the Ithna Asharia heir is not debarred from inheritance

(b) Illegitimacy

  • Under Sunni law, an illegitimate person is not entitled to inherit the properties of his (or her) father. But an illegitimate person is competent to inherit the properties of mother. It is to be noted that under Sunni law, an illegitimate child is entitled to inherit not only the mother’s properties but through her also the properties of mother’s other relations.
  • In Bafatun v. Bilaiti Khanum, a Sunni female died leaving her husband and an illegitimate son of her sister as her sole surviving heirs. The husband took 1/2 of her assets and the remaining 1/2 was inherited by her sister’s illegitimate son who was the only distant relative of the deceased. It was held by the court that under Sunni law, an illegitimate son was competent to inherit his mother and through his mother could inherit also the properties of his mother’s sister. However, an illegitimate child is not entitled to inherit mother’s those relations who became relatives by any subsequent remarriage of the said mother.

(c) Difference of Religion

  • Under the Islamic texts, a non-Muslim is excluded from inheriting the properties of a Muslim. But under the Muslim law as administered in India, difference of religion is not any disqualification for inheritance. A legal heir of the deceased Muslim cannot be debarred from inheritance on the ground that such heir was not a Muslim at the time of death of the deceased. Under the Caste Disabilities Removal Act, 1850, renunciation of religion by any heir does not affect his (or her) rights of inheritance under the personal law to which that heir belonged‘ before conversion. Accordingly, a converted heir will continue to be governed by the Muslim law of inheritance. Following illustration will clarify this rule. A Muslim has a son and a daughter. The son renounces Islam and converts to Christianity. At the time of father’s death i.e. when the inheritance opens, the daughter continues to be a Muslim but the son is a Christian. The non-Muslim son is not excluded from inheritance and is competent to inherit the properties of his father together with his Muslim sister.
  • However, it may be noted that religion of the propositus i.e. deceased, is an important factor because the properties devolve under the personal law to which the propositus belonged just before his death. For example, if a Hindu becomes a Muslim through conversion and then dies as a Muslim, his properties would be inherited by heirs under Muslim law ; the heirs under Hindu law cannot claim inheritance. In K.P. Chandrashekhar v. Govt. of Mysore, a Hindu woman converted to Islam died as a Muslim. She had no heir under Muslim law. Her Hindu brother claimed inheritance. It was held by the court that her Hindu brother could not inherit because he was not an heir under Muslim law.

(d) Exclusion of Daughters under Custom or Statute

  • At certain places daughters are sometimes excluded from inheritance under any local custom or under some specific enactment. For example, among the Gujars and Backkerwals of Kashmir, there is a custom that daughters cannot inherit in the presence of any male descendant of the grandfather. Similarly, under the Watan Act, 1886, enforced in Bombay, a daughter is excluded from inheritance in the presence of a paternal uncle.

EXPLANATION OF CERTAIN TERMS

Propositus

  • Propositus means a deceased whose property is subject of inheritance. Thus, a person whose properties are inherited by his (or her) legal heirs, is called the propositus. In general, the term includes ‘the person proposed’ of a person from whom the ascending or descending line is traced in the succession of properties.

Ascendants

  • Persons who are in the higher degrees (generations) from the propositus, are called ascendants of the said propositus. Ascendants may be from paternal as well as from maternal sides and may belong to any degree how high so ever. For; example, if P is the propositus then, the father, father’s father, father’s ‘father’s father etc. of P are the ascendants of P from paternal side. Similarly, the mother, mother’s mother etc. of P are called ascendants of P from maternal side.

Descendants

  • Persons, belonging to lower degrees (generations) from the propositus, are called descendants of the propositus. A person may have male as well as female descendants in the line of descent how low soever. Thus, the son, son’s son, son’s son’s daughter etc. or, the daughter, daughter’s daughter, daughter’s daughter’s son etc. are all descendants of a person.

Collaterals

  • Descendants of the ascendants of a propositus are called collaterals of the propositus. According to Tyabji, collateral means a person having a common ancestor with the deceased (either on the side of the father or mother and through male or female links) : but who is neither a descendant nor ascendant of the deceased.” It may be noted that one of the descendants of one’s ancestor (father and mother) is the propositus himself; but, ‘besides him there may be other descendants, like him. Such other descendants of his ancestor (ancestor may be how high soever) are collaterals of the said propositus. Accordingly, the brother, sister, nephew; niece, cousin, uncle, aunt; grand uncle or grand aunt etc. of the propositus are included in the term collateral of a propositus.

Agnates

  • Agnate is a person who is related to the propositus through males. All the persons whose descent from a propositus could be traced only through the males (without intervention of any female) are called the agnates of the deceased.) However, it is not necessary that an agnate must be a male; a female may also be an agnate provided the female inherits through a male. For example, the son, son’s son, son’s daughter, father, father’s father, father’s mother are agnates of a deceased.

Cognates

  • Cognate is a person who is related to the propositus through one or more females. In the line of succession from the propositus, if there intervenes any female then that person is cognate of the propositus. Thus, a daughter’s son, daughter’s daughter, mother’s mother, mother’s father, or father’s mother’s father etc. are cognates.

True Grandfather, True Grandmother

  • In the language of the law of inheritance, paternal, grandfather is called a true grandfather. That is to say, true grandfather is an agnatic grandfather, If there is no intervention of any female between a male ancestor and the propositus, the male ancestor is called; true grandfather of the propositus. For example, the father’s father, or the father’s father’s father etc. how high soever, are the true grandfathers.
  • The paternal grandmother is called a true grandmother. If between a female ancestor and the propositus there is no intervention of any maternal grandfather, the female ancestor is true grandmother of the propositus. Thus, father’s mother, father’s father’s mother, father’s mother’s mother, and mother’s mother, mother’s mother’s mother are true grandmothers. It may be noted that between the propositus and the above mentioned relations, there is no intervention of any maternal grandfather.

False Grandfather, False Grandmother

  • The maternal grandfather of a person is technically called as his false grandfather. If, between a grandfather and the propositus there is an intervention of one or more females, the said grandfather is termed as a false grandfather of the porpositus. For example, the mother’s father, mother’s mother’s father, mother’s father’s father and, father’s mother’s father etc. are the false grandfathers because, between the propositus and the male ancestor there is a female ancestress.
  • If there intervenes any maternal grandfather between a female ancestor and the propositus then the said female ancestor is a false grandmother of that propositus. For instance, mother’s father’ mother is false grandmother of a propositus. The false grandfather and false grandmothers belong to the class of distant kindred.

Uterine Brothers and Sisters

  • Where the mother of two or more persons is common, but their fathers are different, these persons are uterine brothers or sisters. In- other words, children of one mother but from different fathers, are uterine brothers or sisters. Such children are uterine relations because they are related to each other through common mother (uterus). For instance W, a widow having a son S from her deceased husband, marries H and from the union of W and H a daughter D is born to them. Here S and D are uterine brother and sister because although their fathers are different persons yet, their mother is common. Uterine relations are cognates because they inherit through ‘a female (the common mother).

Consanguine Brothers and Sisters

  • Children of a common father but different mothers, are called consanguine brothers or sisters. To illustrate, if a widower H having a son S from his deceased wife, remarries with W and a daughter D is born to them then, although the mothers of S and D are different yet, they have a common blood (consanguinity) of the father. They are, therefore, consanguine brother and sister. Consanguine relations are agnates because they inherit through the father.

Full Brother and Sister

  • Real brothers or sisters are called full brothers or sisters. That is to say, brothers or sisters of a common parents are full brothers or sisters.

Acknowledged Kinsman

  • Kinsman is any person from a common stock or common ancestor. An acknowledged kinsman is a person who does not actually belong to the common stock but, the propositus had made an acknowledgement of kinship (common descent) for him. Thus, an acknowledged kinsman is a person who has fictitiously been admitted by the Acknowledge to belong to his common stock. However, a person may acknowledge the common descent of another only through some other person, not through himself. For instance a person may acknowledge another as his brother (descendant of his father) or uncle (descendant of grandfather); but he cannot acknowledge a person as his own descendant i.e. as his son.

THE SUNNI (HANAFI) LAW OF INHERITANCE

Classification of Heirs

The legal heirs of a Sunni Muslim are classified into following categories:

(A) The Principal Classes

The following three classes of heirs may be termed as principal classes of legal heirs? The heirs included in any of the following classes are related to the propositus by blood except the husband and widow who are related through marriage.

(1) Sharers or Quranic Heirs

A Sharers are those heirs who are entitled to get a prescribed share from the heritable property. The Sharers and their respective shares in the property of a deceased are given in Quran. The Sharers are, therefore, also called as Quranic heirs. In the distribution of property, the Sharers get preference over the other class of heirs, therefore, first of all the respective share is allotted to each Sharer. It may be noted that Sharers are those heirs whose respective shares are given in Quran; therefore, their shares cannot be altered by any human effort.

(2) Residuaries or Agnatic Heirs

Residuaries are those heirs who inherit only the residue of the property after, allotment of respective shares to the Sharers. Obviously, the Residuaries have no specific, share of their own. After giving the property to the Sharers in their fixed shares, if there remains some property that ‘remaining property’ (residue) is available to the Residuaries. The residue may differ from case to case. If there are no/Sharers, the whole is inherited by the Residuaries. Residuary heirs are also termed as Agnatic heirs because they inherit through male relations.

(3) Distant Kindred or Uterine Heirs

All those persons who are related to propositus through blood but could not be included as heirs in the class of Sharers or of Residuaries, are called distant kindred. If a popositus has neither Sharers nor Residuaries, the properties are inherited by his Distant Kindred. Distant Kindreds cannot inherit in presence of any Sharer or Residuary. The heirs included in this class are also termed as uterine heirs.

(B) Subsidiary Classes

Besides the above-mentioned three classes of heirs, there are four more categories of legal heirs. The heirs included in any of the following classes are called subsidiary heirs and inherit only in exceptional cases;

(1) Successor by contract

(2) Acknowledged kinsman

(3) Universal legatee, and

(4) The State, (through the process of escheat).

Scheme of Distribution

In the distribution of property among legal heirs of a Sunni propositus, the following scheme is followed. First of all, it is ascertained as to who are the Sharers (Quranic heirs) of the deceased: After ascertaining the Sharers, their respective shares, which are already fixed for them, is allotted to each of them. If the whole property exhausts after distribution of the shares among each of them,‘ the process of distribution does not proceed further.‘ But, if there still remains some property, then the second step is to distribute the “remaining property” (residue) among the Residuaries who constitute Class II of legal heirs. However, where a propositus has no Sharers at, all, the whole property is inherited directly by the Residuaries. If the propositus has neither any Sherer nor any Residuary then, in the third instance, the property is distributed among the Distant Kindreds.

It is to be noted that a Distant Kindred cannot inherit in presence of any heir belonging to the class of Sharers or Residuaries. Where a propositus has no heir belonging to any of the three principal classes (although such cases are rare) the property devolves directly upon the successive subsidiary heirs, one by one in the order of priority. In other words, if a propositus has-no Sharer, Residuary or a Distant Kindred as his heir, his property is inherited by a successor by contract, if any, and in his absence, by an acknowledged kinsman, if there be any and, in his absence, too, it is inherited by the universal legatee if there is such a legatee under any will left by the deceased. But, if there is none from among the above mentioned classes of heirs, the properties of the deceased are ultimately inherited by the State. State is the ultimate heir of every propositus.

However, the practical allotment of respective shares to each legal heir is not as simple as it appears from the scheme of distribution stated above. There are various rules and exceptions which make the distribution difficult. For instance, there are rules of exclusions under which one heir (of the same class) may be excluded by the presence of some other heir. In certain cases, an heir may not be totally excluded but, his share may be reduced in presence of some other heir. Moreover, in some cases an heir may inherit in double capacity e.g. father is a Sharer but, in certain cases he inherits also as a Residiary. In the following lines attempt has been made to enumerate the heirs of each class, their respective shares and, the rules relating to the distribution of properties among them.

The Sharers : Class I Heirs

Sharers or the Quaranic heirs are Class I legal heirs of a propositus. The legal heirs of this class get preference over heirs of other classes. When the inheritance opens, following facts are to be ascertained:

(1) Who are the heirs of Class I, i.e. who are the Quranic heirs of the propositus

(2) What is the respective share of such heir or heirs

(3) Whether such heir is excluded by, or his share is reduced, in presence of any other heir of the same class

(4) Any other fact which may affect his inheritance.

On the basis of these facts, the heritable property is distributed first of all, among his Sharers if The Sharers, their respective shares and the conditions under which they inherit, is given in brief in the list given below. It is to be noted that the relations mentioned in the list are relations of the propositus e.g. widow means widow of the propositus or, child means child of the propositus etc.

Relations by Affinity

  1. Husband

(i) The husband gets 1/2 if there is no (a) child or, (b) child of son how low soever (hereinafter-called h.l.s.)

(ii) The husband gets 1/4 if there is (a) child, or (b) child of son h. l.s.

That is to say, in the absence of children, the husband’s share is 1/2 whereas, in the presence of children his share is 1/4.

  1. Widow

(1) The widow gets 1/4 if there is no (a) child, or (b) child of son h.l.s.

(2) The widow gets 1/8 if she is with (a) child, or (b) child of son h.l.s.

(3) If the propositus had-left more than one widow, all the widows share equally out of the 1/4 or 1/8 share, as the case may be.

Relations by Blood

III. Father

(1) Father without (a) child or, (b) child of son h.l.s is treated as Residuary i. e. ceases to be a Quranic heir and is entitled to get the residue after allotment of shares to other Quranic heirs.

(2) Father together with (a) child, or (b) child of son h.l.s. gets 1/6. In other words, in the absence of children the father becomes a Residuary whereas in presence of the children his share is 1/6.

  1. True Grandfather

(1) True grandfather is entitled to inherit only in the absence of father. That is to say, if the propositus dies leaving behind both, father and a true grandfather, the true grandfather cannot inherit.

(2) If there is no father, the true grandfather inherits like a father. That is to say, if there is no father, the true grandfather would become Residuary in the absence of children. But, in presence of the children a true grandfather gets 1/6.

  1. Mother

(1) The share of mother is 1/3 in the absence of:

(a) child, or

(b) child of a son h.l.s., or

(c) two full sisters, or

(d) two full brothers, or a

(e) one brother plus one sister, whether full, consanguine or uterine.

In other words, if together with mother there are none of the above-mentioned relations, her share is 1/3.

(2) The share of mother is 1/6 in the presence of:

(a) child, or

(b) child of son h.I.s., or

(c) two full sisters or

(d) two full brothers, or

(e) one brother plus one sister whether full, consaguine or uterine.

In other words, if there are any one of the above-mentioned relations from (a) to (e) the share of mother is reduced to 1/6.

(3) If mother is with father and there is also widow (or husband) the mother gets 1/3 of what remains after deducting the share of widow (or husband). In this peculiar combination the mother (without children) does not get 1/3 of the whole property because in that case father’s share would become half of mother which is against the general principle that share of a male should be double the share of female.

  1. True Grandmother

(1) The true grand-mother inherits only where she is not excluded by the presence of any of the relations given below.

(2) If not excluded, the share of true grandmother is 1/6 whether she is one or more than one. Two or more grandmothers get 1/6 jointly.

(3) A maternal grandmother is excluded from inheritance in the presence of:

(a) mother, or

(b) a nearer maternal or paternal true grandmother.

(4) A paternal grandmother is excluded from inheritance in the presence of:

(a) mother, or

(b) father, or

(c) a nearer true-grandmother whether maternal or paternal.

In other words, a maternal true-grandmother gets her 1/6 share only in the absence of mother and any nearer grandmother. A paternal true-grandmother gets her 1/6 share only in absence of mother, father and any nearer true grandmother.

VII. Daughter

(1) The share of one daughter is 1/2.

(2) If there are two or more daughters, the share is 2/3 to be divided equally among them.

(3) Daughter together with son, is treated as agnatic heir i.e. inherits as Residuary.

VIII. Son’s Daughter

(1) The son’s daughter inherits only in the absence of :

  • two or more daughters, or
  • son, or
  • higher son’s son, or
  • two or more higher son’s daughter.

In other words the son’s daughter is entirely excluded from inheritance in presence of the above relations.

(2) In the absence of above relations, the son’s daughter gets 1/2 if single and, 2/3 if more than     one.

(3) If son’s daughter is together with one daughter, the share of son’s daughter is 1/6 whether such son’s daughter is single or more. For example, if there is a daughter and two son’s daughters, the share of son’s daughters would be 1/,6 which would be divided equally among them i.e. each son’s daughter would get 1/12.

(4) Son’s daughter together with son’s son is treated as agnatic heir i.e. inherits as Residuary.

  1. Full-Sister

(1) The share of one full sister is 1/2.

(2) The share of two or more full sisters is 2/3 to be divided equally among them.

(3) If full sister is together with full brother, she becomes an agnatic heir and inherits as Residuary.

(4) A full sister is excluded from inheritance in the presence of:

  • child, or
  • child of son h.l.s., or
  • father, or
  • father’s father.
  1. Consanguine-Sister

(1) The share of one consanguine sister is 1/2.

(2) The share of two or more consanguine sisters is 2/3 to be divided equally among them.

(3) With one full-sister, the share of consanguine sister is 1/6 whether single or more.

(4) The consanguine sister is excluded from inheritance in the presence of :

  • child, or
  • child of son h.l.s., or
  • father, or
  • father’s father, or
  • two full sisters, or
  • one full brother.

(5) With consanguine brother, the consanguine sister becomes agnatic heir and inherit as Residuary.

  1. Uterine- Brother

(1) The share of one uterine brother is 1/6.

(2) If there are two or more uterine brothers, their share is 1/3 to be equally divided among them.

(3) Uterine brother is excluded from inheritance in the presence of :

  • child, or
  • child of son h.l.s., or
  • father or
  • father’s father.

XII. Uterine-Sister

The share and the conditions under which an uterine sister inherits a property is the same as that of uterine brother. That is to say

(1) The share of one uterine sister is 1/6.

(2) If there are two or more uterine sisters their share is 1/3 to be divided equally among them.

(3) Uterine sister is excluded from inheritance in the presence of (a) child, (b) child of a son, (c) father, and (d) father’s father.

Allotment of Shares : Illustrations.

(1) A Sunni Muslim dies leaving behind his (a) father, (b) father’s, father, (c) mother, (d) mother’s mother, (e) two daughters and (f) son’s daughter. The allotment of their respective shares would be as under :

Father 1/6 (because there is a child, daughter)

Father’s father excluded by father

Mother 1/6 (because there are children i.e., daughters)

Mother’s mother excluded by mother

Two daughters 2/3

Son’s daughter excluded by two daughters

After allotment of the respective shares to each of them the sum total of the shares is 1/6 + 1/6 + 2/3 = 6/6 =1. Thus, we find that the total property has been exhausted. It is significant to note that heritable property is taken to be one (i.e. suppose the property is one). Now the sum total of shares given to the heirs also come out to be one. Therefore, the property is neither less nor in excess of the shares. In this case, as the property is exhausted, the distribution is complete and there is no need of proceeding further.

(2) The propositus leaves behind her (a) husband and (b) father as her legal heirs.

The allotment of the shares to each heir is given below:

Husband 1/2 (without children)

Father Residuary (without children)

In the absence of children, the father ceases to be a Sharer and becomes a Residuary. Residuaries get the residue i. e. the property which remains ‘after giving to the Sharers. Thus, the respective shares of the husband and father are as under:

Husband              1/2

Father                   1/2 (1-1/2).

The sum total is 1/2 + 1/2 = 1 and the property exhausts.

(3) A Sunni Muslim dies leaving behind the (a) mother, (b) two sisters and (c) father. Their respective shares are given as under:

Mother                1/6  (because there are two sisters).

Father Residuary (without children).

Two sisters (excluded by father).

In this illustration, it is to be noted that the mother’s share is reduced to 1/6 in the presence of two sisters. Secondly, as there are no children (child or, child of son h.l.s.) of the propositus, the father is treated as Residuary. Thirdly, the two sisters themselves have been excluded from inheritance in the presence of father. Thus, mother as a Sharer gets 1/6. After giving to mother, the remaining property is 5/6 (1-1/6). This 5/6 residue goes to father. Accordingly, the shares are:

Mother                1/6

Father                   5/6 (residue)

Two sisters         Nil

——-

6/6

As the property exhausts, the distribution is closed.

(4) If the only heirs of a propositus are mother and father, the allotment of their shares is as under:

Mother 1/3 (because there is no child)

Father 2/3 (residue, because in the absence of child the father is a Residuary).

The sum total is 1/3 plus 2/3 i.e. unity, that is to say, the property exhausts.

(5) A Sunni Muslim dies leaving behind (a) mother, (b) father (c) brother and (d) sister. The respective shares may be allotted as under:

Mother 1/6 (because there is one brother plus one sister)

Father Residuary (because there are no children)

Brother excluded by father

Sister excluded by father.

Here, we notice that mother does not get her normal share 1/3 because there is one brother and one sister. In presence of a brother plus a sister, her share is reduced to 1/6. Secondly, without children (of the propositus) the father becomes Residuary. Thirdly, a brother and sister (whether the brother or sister are full or, consanquine or uterine) are excluded in the presence of father. Therefore finally the respective shares are:

Mother                1/6

Father                   5/6 (1-1/6)

Brother                Nil   Excluded from inheritance.

Sister                     Nil

——-

6/6=1 ; that is to say, the property exhausts.

(6) A Sunni Muslim dies leaving behind her (a) husband (b) mother and (e) father. The shares of each of them are:

Husband      1/2 (because there are no children)

Mother        1/3 of what remains after giving to husband

Father Residuary (because there are no children)

This is a peculiar case. In the absence of children, normally the share of the mother is 1/3. But, if the mother is together with father, and there is also the husband (or wife) she gets 1/3 of what remains after giving to the husband (or wife) she gets 1/3 of whole. Thus the share of mother is 1/3 of (1-1/2) i.e. 1/3 of 1/2. Thus in this case mother’s share is 1/6. In the absence of children the father becomes Residuary and therefore gets 1-(1/2+1/6) or 1/3 which remains after giving to the Quranic heirs (husband and mother). It is to be noted that reason behind this peculiar rule is that if mother gets her normal share 1/3, then the residue for the father would be only 1/6. This will be against the general rule that share of a male is double the share of a female. Accordingly, the final distribution of shares in this case is as under:

Husband              1/2

Mother                1/6  (1/3 of 1/2)

Father                   1/3  (as Residuary)

The sum total of the shares is l/2 plus 1/6 plus 1/3=’6/6:1 and the property exhausts.

(7) It may be noted that only the father (with husband or wife) reduces the share of a mother. The father’s father does not reduce her share. In the following illustration, the father’s father being a Residuary gets only that much property which is available after allotting the shares of widow and mother. Thus, the father’s father gets l—(1/4+1/3) = 5/12. Finally, the shares of each of them may be given as under:

Widow                  1/4  (without children)

Mother                1/3  (without children)

Father’s father 5/12  (Residuary)

The sum total of their shares is 1/4+1/3+5/12=12/12= 1. That is to say, the property exhausts.

(8) A (Sunni propositus dies leaving behind the (a) father (b) father’s mother (paternal grandmother) and (c) mother’s mother (maternal grandmother). The respective position of each of the legal heir may be given as under:

Father                                   Residuary

Father’s mother               Excluded by father,

Mother’s mother             1/6 (Quranic heir)

It may be noted that the father’s mother is paternal true grand-mother and is excluded by the mother. But mother’s mother being a maternal grandmother, may be excluded only by any nearer true grandmother (paternal or maternal). As there is no nearer grandmother, the mother’s mother is not excluded from inheritance and gets her share of 1/6. Accordingly, the respective shares are:

Father                                   5/6  (Residuary)

Father’s mother               excluded by father

Mother’s mother             1/6  (Quranic heir)

Here, if the heirs were father, father’s mother and mother’s mother’s mother, the father would have taken the whole as Residuary because father’s mother is excluded by father and mother’s mother’s mother is excluded by father’s mother (a near grandmother).

(9) A Sunni Muslim dies leaving behind (a) father (b) mother (c) daughter and (d) son’s daughter. The allotment of their respective shares is given below:

Father                   1/6

Mother                1/6

Daughter             1/2

Son’s daughter 1/6

In this illustration, all the heirs are Shares or the Quranic heirs. Together with children (i.e. daughter and son’s daughter) the shares of father and mother is 1/6 each. The share of single daughter is 1/2. The son’s daughter gets 1/6 in presence of one daughter. Had there been two daughters, the son’s daughter would have been excluded. However, in presence of a daughter the share of son’s daughter is reduced to 1/6 whether, single or more. Thus, in this illustration, if there had been four son’s daughters the 1/6 share was to be inherited by them collectively and the 1/6 had to be divided equally among all the four son’s daughters each getting 1/24.

(10) The heirs of a Sunni propositus are (a) father, (b) mother (c) son’s daughter and, (d) son’s son’s daughter. Allotment of their respective share is given below:

Father                                   1/6

Mother                                1/6

Son’s daughter                  1/2

Son’s Son’s daughter      1/6

It may be noted that in the absence of daughter, the allotment of shares between son’s daughter and son’s son’s daughter is the same as between a daughter and son’s daughter. Therefore, there being only one son’s daughter, the son’s son’s daughter is not excluded but her share is only 1/6. Had there been two or more son’s son’s daughters their shares would have been the same (1/6) to be divided equally among them. Moreover, had there been two son’s daughters, the son’s son’s daughter would have been entirely excluded from inheritance.

(11) The heirs of a Sunni propositus are (a) two full sisters and, (b) two uterine sisters. Allotment of their shares is as under:

Two full sisters                  2/3 (each taking 1/2 of 2/3)

Two uterine sisters         1/3 (each taking 1/2 of 1/3)

It is to be noted that the same shares are available also to consanguine sister and uterine brother. Therefore, if the heirs are (a) two consanguine sisters and (b) two uterine brothers, the shares are the same.

Two consanguine sisters               2/3 (each taking 1/2 of 2/3)

Two uterine brothers                     1/3 (each taking 1/2 of 1/3) .

(12)  A Sunni Muslim dies leaving behind (a) mother (b) three full sisters (c) a consanguine sister and (d) a uterine sister (or, a uterine brother). The respective shares of these legal heirs are:

Mother                                                                1/6 (Because there are more than one full sisters)

Three full sisters                                               2/3 (each taking 1/3 of 2/3)

Consanguine sister                                          Excluded by two or more full sisters.

Uterine sister (or, uterine brother)          1/6

It is significant to note that in all the illustrations given above, the sum total of the shares comes out to be unity. This means that after allotment of shares to the Sharers, the property exhausts ; the property is neither in excess nor falls short of the number of shares. After adding all the shares, if the fraction is say x/y then, the numerator (x) denotes the number of shares whereas, the denominator (y) denoted the fractions or pieces of the property. If x becomes equal to y, then it means that number of piece of property is exactly the same as the number of shares. The result is that the sum total of the respective shares becomes unity.

But, these illustrations have been specially arranged to make the sum total unity and may be said to be the simplest cases in distribution of shares among the heirs. In most of the cases we may find that after allotment of the shares the sum total is either more than unity or is less than unity. That is to say, there may be cases where either the share is in excess of property or, the property is in excess of the shares. In such a circumstance, the doctrine of increase or the doctrine of return, as the case may be, is applied for distribution of property in order to make the sum total (of shares) unity.

Doctrine of Increase (Aul)

After allotment of the respective shares to Sharers, if the sum total exceeds unity, the doctrine of increase (Aul) is applied. As discussed in the. preceding lines, in the fraction of the aggregate of shares, the numerator denotes total number of shares and the denominator denotes the pieces of heritable property. For example, if the aggregate of the shares is 13/12 then, 13 represents the number of shares and 12 represents fragments or pieces of the property. In this case, therefore, the number of shares exceeds the number of fragments of property. In other words, the fragments or pieces of the property is less than the number of shares.

In the distribution of shares among legal heirs, two things must be taken into account ; firstly, the sum total must come out to be unity and, secondly, the respective shares of the Sharers cannot‘ be changed because they are specified-I/in Quran. Therefore, for making the aggregate unity without changing the respective shares, the fragments, of property is increased by adopting the following method :

Keeping the numerator intact, the denominator is increased in such a manner that the denominator (i.e. total number of fragments” of property) becomes equal to the numerator (total number of shares). Thus, instead of altering the respective shares which are of divine origin, the pieces of heritable property is enhanced. By this process the aggregate of the shares is made unity. This signifies that the property (presumed to be one) exhausts without affecting the shares. For example, if the aggregate is 13/12, we find that denominator is short of one (piece) therefore, by adding one to denominator (12+1) it becomes 13 i.e. equal to the numerator. Similarly, if the aggregate is 15/13 we have to add two to the denominator (13+2) to make it equal to numerator.

Shia law: Under the Shia law, as discussed in detail in the following pages, the excess share is directly deducted from the share of (a) daughter or (b) full sister.

Illustrations

(1) A Sunni propositus dies leaving her (a) husband, and (b) two full sisters. The normal shares are:

Husband                              1/2 (Sharer)

Two full sisters                  2/3 (Sharer)

Here, the sum total of the shares is not unity, it is (1/2 X 2/3)= 7/6 which is greater than unity. Thus the aggregate of the shares of husband and two full sisters may be given as under:-

1/2 + 2/3 = 3 + 4/6 = 7/6

or, 3/6 + 4/6 = 7/6

By applying the doctrine of increase, we add one to the denominator so that it becomes (6 + 1) = 7. Thus, we have increased the number of fragments of property without altering the shares. Now, taking this increased denominator (i.e. 7) as the common denominator, we may allot the respective shares.

Husband                              3/7

Two full sisters                  4/7

7/7

 

Shia law : Under the Shia law the excess share (1/6) is deducted from the share of two sisters. Thus the share of the two sisters becomes 2/3 – 1/6 or 4/6 — 1/6 = 3/6. Accordingly, the respective shares under Shia law are:

Husband                              3/6

Two full sisters                  3/6

6/6 = 1

Note : (1) It may be noted that although the principle is that the Quranic shares cannot be altered by any human effort and in the application of this doctrine apparently the shares have not been affected but, -if we examine it minutely, we find that the quantum of property which each heir has to~ get as Quranic Sharer is reduced. However, the ratio or the proportion in which they normally get the shares and which they now got after application of the doctrine, remains the same. It is ‘therefore submitted that by applying the doctrine of increase, although in principle the shares remain unchanged yet, in practice the quantum of their share is reduced. In the following illustrations, the new shares (after application of the doctrine) are given as shares reduced to, which indicates the shares with the enhanced denominator.

(2) A Sunni Muslim dies leaving behind her (a) husband (b) two full sisters and (c) mother. The allotment of their shares is given below:

Husband                              1/2

Two full sisters                  2/3

Mother                                1/6

The sum total of their shares is 1/2 X 2/3 X 1/6 = 8/6. Accordingly, the doctrine of Aul is to be applied. First of all, let us make a common denominator of all the fractional shares:-

Husband                              1/2 or 3/6

Two full sisters                  2/3 or 4/6

Mother                                1/6

8/6

Now, for applying the doctrine of increase we have to enhance the denominator by two (6 + 2 = 8). This enhanced denominator is made the common denominator of the shares. Thus, finally the respective shares are:

Husband                              1/2 or 3/6 reduced to 3/8

Two full sisters                  2/3 or 4/6 reduced to 4/8

Mother                                1/6 or 1/6 reduced to 1/8

The answer is therefore, that final shares of (a) husband (b) two full sisters and (c) mother are 3/8, 4/8 and 1/8 respectively.

(3) If the heirs of a Sunni propositus are (a) husband (b) mother (c) two daughters, the shares of each of them is asunder:

Husband                              1/4 (in presence of daughters)

Mother                                1/6 (in presence of daughters)

Two daughters                  2/3 (collectively).

As the aggregate of their shares is 13/12, the doctrine of increase is to be applied by enhancing the denominator to 13 and making common denominator of the respective shares:

Husband                              1/4 or 3/12 reduced to 3/ 13

Mother                                1/6 or 2/12 reduced to 2/13

Two daughters                  2/3 or 8/12 reduced to 8/ 13 (each taking 8/26).

(4) The heirs of a Sunni propositus are (a) husband (b) mother (c) daughter and (d) son’s daughter. The legal heirs are Sharers or Class I heirs and the sum total of their shares is more than unity. The doctrine of increase is applicable:

Husband                              1/4 or 3/ 12 reduced to 3/13

Mother                                1/6 or 2/ 12 reduced to 2/13

Daughter                             1/2 or 6/12 reduced to 6/13

Son’s daughter                  1/6 or 2/12 reduced to 2/13

13/12 13/13 = 1

(5) The heirs of a Sunni Muslim are his (a) widow (b) two full sisters and, (c) two uterine sisters. The heirs are Sharers and the sum total of their shares is more than unity:

Widow                                  1/4 or,  3/12 reduced to 3/15

Two full sisters                  2/3 or,  8/12 reduced to 8/15

Two uterine sisters         1/3 or,  4/12 reduced to 4/15

15/12                        15/15 = 1

(6) The heirs of a Sunni propositus are (a) husband (b) father (c) mother and (d) three daughters. All the legal heirs are Sharers and the sum total of their shares is more than one, therefore, the doctrine of increase is applicable:

Husband                              1/4 or 3/ 12 reduced to  3/15

Father                                   1/6 or 2/12 reduced to   2/15

Mother                                1/6 or 2/ 12 reduced to   2/15

Three daughters              2/3 or 8/ 12 reduced to   8/15

15/12                           15/15 = 1

(7) A Sunni Muslim dies leaving behind (a) widow (b) two full sisters (c) two uterine sisters and, (d) mother. The allotment of their shares, after application of the doctrine of increase, is as under:

Widow                                  1/4 or   3/12 reduced to   3/17

Two full sisters                  2/3 or   8/12 reduced to   8/17

Two uterine sisters         1/3 or   4/12 reduced to   4/17

Mother                                1/6 or   2/12 reduced to   2/17

17/12                         17/17 = 1

(8) A Sunni propositus dies leaving his (a) widow (b) father (c) mother and (d) two daughters. The allotment of their shares, after application of the doctrine of increase, is given below:

Widow                                 1/8 or 3/24 reduced to 3/27

Father                                   1/6 or 4/24 reduced to 4/27

Mother                                1/6 or 4/24 reduced to 4/27

Two daughters                  2/3 or 16/24 reduced to 16/27

27/24                         27/27 = 1

Doctrine of Return (Radd)

Where the sum total of shares is less than unity, the doctrine of return is applicable. As discussed earlier, in the fraction of the sum total of shares, the numerator represents as the total number of shares and denominator denotes the number of pieces of property. Therefore, where the sum total of all the shares comes out to be less than unity, it implies that number of shares are less than the number of fragments of property. For example, if the sum total of shares is 5/12 this means that shares are 5 whereas the pieces of heritable property are 12. This situation indicates that after alloting the respective shares to the Sharers there still remains some (fragments of) property and there are no Residuary or other heirs to get this residue. In such cases the doctrine of return (Radd)-is applied under which the excess property is returned back and is added to the respective shares of the legal heirs, in proportion of their own shares. According to Mulla:

“If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the residue reverts to the sharers in proportion to their shares. This right of reverter is technically called ‘Return’ or Radd.

The residue is added to the shares of the respective Sharers according to following rules:

  • The residue is added to the shares of each heir in proportion of their own share. Thus, in the above example where the sum total was 5/12 the residue is (1 – 5/12) i.e. 7/12. This 7/12 is to be added to the share of say, father and sisters in proportion of their own shares i.e. in the ratio of 1/6 and 1/2 respectively.
  • The husband and widow do not participate in return. If, among the legal heirs of a propositus, there is a husband or widow the surplus is not added to their shares. That is to say, the residue returns to all the heirs (in proportion of their own shares) except the husband or widow. However, if widow (or husband) is the sole surviving heir of a Sunni Muslim, she inherits the whole property. For example, if widow is the sole surviving heir of a deceased, the widow gets 1/4 as Sharer-and would also get the remaining 3/4 in return (Radd). In such cases the surplus 3/4 is not escheated to the Government. Similarly, this rule may be applicable if husband is the only heir of a propositus.

Shia law: Under the Shia law, besides husband or widow, in some exceptional cases, the mother and uterine brother and sister also do not participate in return.

The Method

The method of adding the surplus property among heirs (except husband or widow) in proportion to their own shares, is given below:

(a) First of all the respective Quranic shares are allotted‘ to all the Sharers.

(b) If there is a husband or widow among the heirs, his (or her) share is left apart. That is to say, this share remains unaffected from further calculations.

(c) Out of one property (as the heritable property is always supposed to be one)             the share of husband or widow, as the case may be, is deducted. In this manner, after giving the share of husband (or widow) the ‘remaining heritable property’ is obtained.

(d) Now, the proportion or ratio of the respective shares of remaining heirs is calculated. For example, if the remaining heirs are a daughter and mother, their Quranic shares are 1/2 and 1/6 respectively. The ratio of these shares is 1/2 : 1/6. Thus, the ratio of the daughter’s and mother’s share is 3:1. In other words, if property is 4, daughter’s share is 3/4, and mother’s share is 1/4.

(e) Now, ‘the remaining heritable property’ is divided among the heirs (excepting husband or widow) in the ratio of 3:1. For instance, after deducting the Quranic share of say widow (1/8) the remaining heritable property is (1-1/8) = 7/8. This is distributed among the daughter and mother in the ratio of 3:1. Accordingly, the shares of the daughter and mother are 3/4 of 7/8 and 1/4 of 7/8 respectively. It is significant to note that by application of the doctrine of return, the quantum of the share of each heir (except husband or widow) is increased. However, this increase or addition is in the same proportion as is the ratio of their own shares.

Illustrations

(1) A Sunni Muslim dies leaving her (a) husband and (b) mother. Their shares may be calculated as under:

Husband                              1/2 (Sharer)

Mother                                1/3 (Sharer)

The sum total of their shares is 1/2 + 1/3 = 5/6, whereas, the property to be distributed is one. “Thus, there is a surplus property. The surplus property is (1-5/6) i.e. 1/6. This surplus property would return back to the heirs. But, husband (or widow) do not get the surplus. Here, we find that excepting husband the only surviving heir is the mother.  Therefore, this surplus would be added to the share of mother. Thus, the share of mother is 1/3 + 1/6 = 1/2. In this manner, finally the shares of husband and mother are:

Husband                              1/2 (Sharer)

Mother                                1/2 (1/3 as Sharer + 1/6 in return)

(2) The surviving heirs of a Sunni Muslim are (a) husband and (b) daughter. The allotment of their normal shares is as under:

Husband                              1/4 (Sharer)

Mother                                1/2 (Sharer)

Total of their shares is 1/4 + 1/2 = 3/4. Thus, we find that out of one property, there still remains a surplus of 1/4. As the husband cannot participate in return this surplus goes to daughter and her share in the property is now 1/2 + 1/4 = 3/4. Finally, the shares are:

Husband                              1/4 (Sharer)

Daughter                             3/4 (1/2 as Sharer + 1/4 in return)

(3) The surviving heirs of a Sunni Muslim are (a) husband (b) mother and (c) daughter. In calculating the shares of each of them, first of all we may allot the normal shares:

Husband                              1/4 (with child)

Mother                                1/6 (with child)

Daughter                             1/2 (single)

11/12

Thus the property has not been exhausted and there still remains (1-11/12) i.e. 1/ 12, property to be distributed among the heirs. The doctrine of return (Radd) is to be applied in the following manner : As the husband does not participate in return, his share (1/4) is left apart. The property to be distributed is one and after excluding husband’s share we have -=3/4 property. If this 3/4 is distributed among the remaining heirs (i.e. mother and daughters) in the ratio of their initial shares, they would automatically get a share in which the surplus 1/ 12 is already included. The ratio of mother and daughter’s share is 1/6 : 1/2 i.e. 1 : 3. In other words, the mother’s share is 1/4 and daughter’s share is 3/4. But, after deducting the husband’s share, we have 3/4 to be distributed among rest of the heirs. Therefore, the mother’s share is now 1/4 of 3/4 and the daughter’s share is 3/4 of 3/4. Finally, the respective shares of each of the given heirs are:

Husband                              1/4 (not participating in return)

Mother                                1/4 of 3/4 = 3/16

Daughter                             3/4 of 3/4 = 9/16

For the sake of uniformity in the denominator, the husband’s share 1/4 may also be changed to 4/16. Now the shares of husband, mother and daughter are 4/16, 3/16 and 9/16 respectively.

(4) The surviving heirs of a propositus are (a) widow (b) mother and (c) daughter. The shares of each of them may be calculated in the following manner: –

Widow                                  1/8

Mother                                1/6

Daughter                             1/2

19/24

Thus, the doctrine of return is to be applied. Leaving apart the widow’s share (1/8) there remains 7/8 property. If 7/8 is distributed among mother and daughter in the ratio of their own shares (1/6 :~l/2) then the mother’s and daughter’s share would automatically be increased and the surplus is included in their respective shares. The ratio of the shares of mother and daughter being 1 : 3 the shares of each of them are as under:

Widow                                  1/8                                                  = 4/32

Mother                                1/6 increased to (1/4 of 7/8) or 7/32

Daughter                             1/2 increased to (3/4 of 7/8) or 21/32

We find that after application of the doctrine of return the respective shares of the widow, mother and daughter come out to _be 4/32, 7/32 and 21/32 the, sum total of which is unity. This also indicates that the calculation is mathematically correct.

(5) A Sunni Muslim dies leaving his (a) widow (b) mother (c) uterine sister and (d) uterine brother. Thus normal shares of each of them may be given as under:

Widow                                  1/4 (without children)

Mother                                1/6 (because there is one uterine brother +one uterine sister).

Uterine sister                    1/6 (single)

Uterine brother                                1/6 (single)

 9/12

The sum total of normal shares is less than unity which indicates that there remains a surplus property; therefore, the doctrine of return is to be applied. Leaving apart ¼ share of the widow who does not participate in return, we get 3/4 property which is to be distributed among mother, uterine brother and the uterine sister. The ratio of the normal shares of mother, uterine sister and uterine brother is 1/6 : 1/6 : 1/6 i.e. 1 : 1 : 1. In other words, according to this ratio any property is to be divided equally among them. Thus if the property is one, each would get 1/3. But the property which is available for distribution among mother, uterine brother and uterine sister is 3/4. Accordingly, after application of the doctrine of return, the respective shares are

Widow                                                                                  1/4 or 3/12

Mother                                1/6 increased to (1/3 of 3/4) = 3/ 12

Uterine sister                    1/6 increased to (1/3 of 3/4) = 3/12

Uterine brother                1/6 increased to (1/3 of 3/4) = 3/ 12

 12/12

(6) The surviving heirs of a Sunni Muslim are (a) widow, (b) mother and (c) two son’s daughters. Their respective Quranic shares are as under:

Widow                                  1/8 (with children)

Mother                                1/6 (with children)

Two son’s daughters                      2/3 (collectively)

23/24

As the sum total of normal shares is less than unity, the doctrine of return is to be applied. Keeping apart the widow’s share (1/8) there remains 7/8 property which is to be divided among mother and the two son’s daughters in the ratio of 1/6 : 2/3. The ratio of mother and son’s daughter’s share may be calculated as under:

1/6 + 2/3 or 1/6 + 4/6 = 5/6

This means that if the property is 5 the mother and the two son’s daughters would get 1/5 and 4/5, respectively. But, after deducting widow’s share (1/8) we have 7/8 property which is to be distributed among mother and son’s daughters. Thus, after the application of the doctrine, finally the shares are:-

Widow                                  1/8 or 5/40

Mother                                1/5 of 7/8 =   7/40

Two son’s daughter        4/5 of 7/8 = 28/40

 40/40 = 1

(7) A Sunni Muslim dies leaving (a) widow, (b) full sister and (c) consanguine sisters. Their normal Quranic shares are as under:

Widow                                  1/4

Full sister                             1/2

Consanguine sister          1/6

11/12

The sum total is less than unity, therefore, the doctrine of return is applied.

Widow                  1/4                                                         or    4/16

Full sister             1/2 increased to (3/4 of 3/4)            = 9/16

Consanguine sister 1/6 increased to (1/4 of 3/4)      = 3/16

16/16

It may be noted that in the above mentioned illustrations among the heirs, one heir is either husband or widow of the propositus. As the husband and widow do not participate in return, their shares have been left apart and the remaining property has been distributed among the other heirs in the ratio of their initial shares. In the following illustrations, there is neither husband nor widow among the surviving heirs of the propositus.

(8) A Sunni Muslim dies leaving (a) mother; (b) daughter and (c) son’s daughter as the surviving heirs. Let us allot their respective normal shares.

Mother                                1/6

Daughter                             1/2

Son’s daughter                  1/6

5/6

As the sum total is less than unity, the doctrine of Return is to be applied. Now, in this illustration, there is neither husband nor widow. Therefore, none of the heir has to be kept apart for purposes of return ; all the heirs would get the surplus (1/6) property. This means that if we distribute the whole property (i. e. 1) among all the heirs in the ratio of 1/6 2 1/2 : 1/6 the whole property would be exhausted and there would be an automatic increase in the share of each heir. For calculating the ratio of the shares, the following method is adopted:

1/6 + 1/2 + 1/6 or 1/6 + 3/6 + 1/6 = 5/6

Now, making ‘the sum of numerators (i.e. 5) as the common denominator we find that if the property is 5 the mother’s share would be 1/5, and the daughter’s share would be 3/5 and the son’s daughter’s share would be 1/5. As the property to be distributed among them is one, the respective shares are asunder:

Mother                                1/5 of  1 = 1/5

Daughter                             3/5 of  1 = 3/5

Son’s daughter                  1/5 of  1 = 1/5

 5/5

(9) Mother, full sister and uterine brother are the legal heirs of a Sunni propositus. The allotment of their Quranic shares is given below:

Mother                                1/6 (because there is one brother + one sister)

Full sister                             1/2

Uterine brother                1/6

5/6

As the sum total is less than unity, the doctrine of return is to be applied for distribution of the property. There is neither husband nor widow, therefore, the whole property (one) is to be distributed among the heirs in the ratio of 1/6 : 1/2 : 1/6. The ratio of these shares is calculated as under:

1/6 + 1/2 + 1/6 or 1/6 + 3/6 + 1/6 = 5/6

Taking sum total of numerators (i. e. 5) as common denominator, the required ratio is 1/5 : 3/5 : 1/5. The property is one, therefore, the respective shares would be as, under:

Mother                                1/5 of 1 = 1/5

Full sister                             3/5 of 1 = 3/5

Uterine brother                1/5 of 1 = 1/5

 5/5 = 1

(10) The only surviving heirs of a Sunni Muslim are (a) mother and (b) a son’s daughter. There normal shares:

Mother                                1/6

Son’s daughter                  1/2

4/6

As the sum total is less than unity, the doctrine of return is to be applied. The ratio of the shares may be calculated as under:

1/6 + 1/2 or 1/6 = 3/6 = 4/6

Accordingly,’ the ratio of the shares of mother and son’s daughter is 1 : 3 or 1/4 and 3/4, respectively. As the property is one, the final shares, after application of the doctrine of return, is given, below:

Mother                                1/4 of 1 = 1/4

Son’s daughter                  3/4 of 1 = 3/4

  4/4 = 1

(11) A Sunni Muslim dies leaving behind (a) full sister, (b) a consanguine sister and (c) a uterine sister. The shares may be allotted as under:

Full sister                             1/2

Consanguine sister          1/6

Uterine sister                    1/6

5/6

The sum total of shares being less than unity, doctrine of return is applicable. The ratio of the shares of each heir is 1/2 : 1/6 : 1/6 or 3/6 : 1/6 : 1/6. The total of numerators is 3+1+1=5. Taking 5 as the common denominator, the ratio is 3 : 1 : 1 or 3/5, 1/5, 1/5. As, all the heirs are participating in return the whole (i.e., 1) property may be distributed among these heirs in the above ratio. Finally, the respective shares come out to be:

Full sister                             3/5 of 1 = 3/5

Consanguine sister          1/5 of 1 = 1/5

Uterine sister                    1/5 of 1 = 1/5

5/5

(12) The surviving heirs of a Sunni Muslim are (a) father’s mother, (b) mother’s mother and (c) two daughters:

Father’s mother                               1/6   (both are grand mothers and do not exclude each other.

They get 1/6 whether single or more)

Mother’s mother

Two daughters                                  2/3

5/6

The ratio of the share of grandmothers and two daughters is 1/6 : 2/3 or 1/6 :4/6. That is to say 1/5 and 4/5. Accordingly, the respective shares are:

Father’s mother                               1/6   (jointly) increased to (1/5 of 1) = 1/5

Mother’s mother

Two daughters                                  2/3   (jointly) increased to (4/5 of 1) = 4/5

5/5

Thus, the share of each grandmother is 1/10 and that of each daughter is 4/10.

The Residuaries : Class II Heirs

The Residuaries constitute Class H of the heirs of a Sunni propositus. Where a propositus has no Sharer at all, the whole property is inherited by the Residuaries. Secondly, if there are Sharers but after giving the property to them, there remains a residue and among heirs there are also the residuaries, the residue is distributed among such Residuaries.3 It may be noted that in certain combinations the Sharers themselves are treated as Residuaries e.g., daughter with son, sister together with brother. A father without children (of the propositus) is treated as Residuary. It is significant to note that residuary heirs have no fixed share. Their shares depend upon the amount of property left as residue which may vary from case to case. The Residuaries may be from among the descendants, ascendants or collaterals. A list of Residuaries and rules relating to their inheritance is given below:

Descendants

  1. Son

(i) When there is no daughter, the son takes the entire residue.

(ii) When the son is together with a daughter, the son gets double the share of daughter.

  1. Son’s son h.l.s.

(i) Nearer son’s son excludes the remoter,

(ii) Two or more son’s sons inherit equally,

(iii) Son’s daughter together with son’s son becomes Residuary but the son’s son gets double the share of Son’s daughter.

Ascendants

  1. Father

As a Residuary., the father gets the entire residue.

  1. True Grandfather

A true grandfather also takes the entire residue but a nearer true grandfather excludes the remotor.

Collaterals : Descendants of Father

  1. Full Brother

(i) If there is no full sister, the full brother inherits the entire residue.

(ii) If there is also a full sister, the full brother inherits with her but his share is double the share of a sister.

  1. Full Sister

In the absence of full brother and other Residuaries enumerated in the preceding lines from (1) to (4), the full sister is treated as Residuary provided there is (1) daughter(s) or (2) son’s daughter h.l.s. or (3) one daughter and a son’s daughter h.l.s.

  1. Consanguine Brother

A consanguine brother inherits together with consanguine sister but the share of consanguine brother is double the share of consanguine sister.

  1. Consanguine sister

In the absence of consanguine brother and any of the Residuaries given above from ( 1) to (6) the consanguine sister is treated as Residuary and takes the residue provided there is (1) daughter(s) or (2) son’s daughter(s) h.l.s. or (3) one daughter and a son’s, daughter(s) h. l. s.

  1. Full Brother’s sons
  2. Consanguine Brother’s son In default of the above mentioned
  3. Full Brother’s Son’s son Residuaries they take entire residue
  4. Consanguine Brother’s Son’s son in order of priority.

Collaterals : Descendants of T.G. F.

  1. Full paternal uncle
  2. Consanguine paternal uncle
  3. Full paternal uncle’s son
  4. Consanguine paternal uncle’s son
  5. Full paternal uncle’s son’s son
  6. Consanguine paternal uncle’s son ‘s son

Distribution of property among Residuaries

Where Residuaries are the only legal heirs of a propositus the whole property is distributed among them. If all the Residuaries are males,‘ the property is divided among them equally. But, if the Residuaries include also females, the property is divided in such a manner that share of a male is double the share of a female.

Where, among the legal heirs of a propositus there are Sharers and Residuaries both, the whole property is not given to the Residuaries» In such circumstance the specific shares of the Sharers are allotted first and, the remaining property is distributed among the Residuaries. The distribution of property among Residuaries may be understood with the help of following illustrations.

(1)  A Sunni Muslim dies leaving a son and a daughter. Here, we find that daughter is a Sharer but because she is together with son, she is treated as Residuary. As there are no other heirs, the whole property is to be given to the son and the daughter. But it is to be given to them in such a manner that share of a son is double the share of daughter. In other words, the ratio of the share of son (male).and daughter (female) is to be 2 : 1. That is to say 2/3 and 1/3. Thus, the respective shares of the son and daughter are:

Son                        2/3 of  1 = 2/3

Daughter             1/3 of  1 = 1/3

3/3

(2) The only heirs of a Sunni Muslim are (a) two sons and (b) three daughters. For determining the ratio of males and females, following simple formula may be applied.

(Number of males) X 2 + (Number of females) = X

Now, making X as the denominator and number of males and the number of females as the numerators, the shares of males and females may be obtained.

Thus, in the present illustration.

2 (i.e. number of males) X 2 + 3 (i.e. number of females)

or, 4 + 3 = 7

Accordingly, the shares are

Two sons                             4/7 (share of each son being 4/7 X 1/2 = 2/7)

Three daughters              3/7 (share of each daughter being 3/7 X 1/3 = 1/7)

(3) The only heirs of a Sunni propositus are (a) Son’s son and (b) son’s daughter: In this case, although son’s daughter is a Sharer but she is together with son’s son, therefore, she is treated as Residuary.

No. of male x 2 + No. of females = 3

Son’s son             2/3

Son’s daughter 1/3

(4) A Sunni Muslim dies leaving her (a) husband, (b) mother, (c) son, and (d) daughter. In this case, we find that heirs of the deceased include Sharers as well as Residuaries. Their normal shares are given below:

Husband                              1/4 (Sharer)

Mother                                1/6 (Sharer)

Son

Residuaries

Daughter

After giving the property to husband and mother, there remains some residue which is 1 – (1/4 + 1/6) = 7/12. This 7/12 residue is to be distributed between son and daughter in the ratio of 2 : 1. That is to say, the son and daughter would get 2/3 and 1/3, respectively if property is 3. But, here the residue is only 7/12. Therefore, in this residue, the son and daughter would get (2/3 of 7/ 12) and (1/3 of 7/12), respectively. Finally, the shares of the legal heirs are as under:

Husband              1/4 or,                                   9/36

Mother                1/6 or,                                   6/36

Son                        (2/3 of 7/12)   =                 14/36

Daughter             (1/3 of 7/ 12)  =                 7/36

36/36

(5) The only heirs of a Sunni propositus are (a) mother and (b) father. Their respective shares are:

Mother                                1/3 (Sharer)

Father                                   2/3 (Residuary without children)

(6) Where the only heirs are (a) daughter and (b) father, the shares are:

Daughter                             1/2 (Sharer)

Father                                   1/6 (Sharer) + 1/3 (Residuary)

Here, we find that daughter and father both are Sharers and as such get their definite Quranic shares 1/2 and 1/6 respectively. But, there still remains a residue of 1/3. This 1/3 is given to father as Residuary. As is evident from this illustration, a father inherits in double capacity when he is together with daughter or son’s daughter.

(7) However, where the father is together with son or son’s son, he inherits only as Residuary. In such cases he does not inherit in double capacity.

Father                                   1/6 (Sharer)

Son (or son’s son)            5/6 (Residuary)

(8) The heirs of a Sunni propositus are (a) husband, (b) mother, (c) brother, and (d) sister. Here, except brother, all the heirs are Sharers. But, sister together with brother is treated as Residuary. Therefore, after allotting the shares of husband and mother, the residuary (1/3) is divided among the brother and sister in a ratio of 2 : 1.

Husband                              1/2 (Sharer, without children)

Mother                                1/6 (Sharer, with one brother + one sister)

Brother                                2/3 of 1/3 = 2/9

Residuary

Sister                                     1/3 of 1/3 = 1/9

For uniformity, we may have a common denominator and the respective shares may be given as under:

Husband                              1/2 or    9/18

Mother                                1/6 or    3/18

Brother                                2/9 or    4/18

Sister                                     1/9 or    2/18

18/18 = 1

(9) The heirs of a Sunni propositus are (a) widow, (b) mother and (c) paternal uncle. Here, widow and mother are Sharers but paternal uncle is a Residuary. Therefore the residue goes to him:

Widow                                  1/4 (Sharer)

Mother                                1/3 (Sharer)

Paternal uncle                   1 — (1/4 + 1/3) = 5/12 (Residuary)

(10) The heirs of a Sunni propositus are (a) full sister, (b) consanguine sister, (c) mother and (d) brother’s son. Here, the first three heirs are the Sharers but the last one is a Residuary.

Full sister                                             1/2

Consanguine sister                          1/6

Mother                                                1/6

Brother’s son                                     1 – (1/2 + 1/6 + 1/6) = 1/6 (Residue)

The Distant Kindreds : Class III Heirs

In the absence of Sharers and Residuaries, the properties devolve upon the Distant Kindreds or the Uterine Heirs of the propositus. However, there is an exception to this general rule. Where the only heirs are the husband (or widow) and the Distant Kindreds, the Distant Kindreds get the residue after allotment of share to husband (or widow). In other words, normally the Distant Kindreds are excluded by Sharers and Residuaries but in the exceptional situation, the Distant Kindreds are entitled to inherit together with a Sharer husband (or widow).

Classification of Distant Kindreds

The Distant Kindreds are classified into four classes, given below in the order of priority:

Class I. Descendants of the propositus other than Sharers and Residuaries. In this class following relations are included:

(i) Daughter’s children and their descendants.

(ii) Children of son’s daughter h.l.s. and their descendants.

Class II. Ascendants of the parents of propositus other than Sharers and Residuaries. This class comprises of:

(i) False grandfather h.h.s.

(ii) False grandmother h.h.s.

Class III. Descendants of the parents of propositus other than Sharers and Residuaries. This class of Distant Kindreds consists of:

(i) Full brother’s daughter and her descendants.

(ii) Consanguine brother’s daughter and her descendants.

(iii) Uterine brother’s children and their descendants.

(iv) Daughters of full brother’s sons h.l.s. and their descendants.

(v) Daughters of consanguine brother’s sons h.l.s. and their descendants.

(vi) Sister’s (full, consanguine or uterine) children and their descendants.

Class IV. Descendants of ascendants h.h.s. other than Residuaries. This class includes descendants of immediate grandparents (true or false) and the descendant of remoter ancestors h.h.s. (true or false).

The descendants of immediate grandparents are given below:

(i) Full paternal uncles daughter and their descendants.

(ii) Consanguine paternal uncle’s daughters and their descendants.

(iii) Uterine paternal uncles and their children and their descendants.

(iv) Daughters of full paternal uncle’s sons h.l.s. and their descendants.

(v) Daughters of consanguine paternal uncle’s sons h.l.s. and their descendants.

(vi) Paternal aunts (full, consanguine or uterine) and their children and descendants.

(vii) Maternal uncles and aunts and their children and their descendants.

After these Distant Kindreds, follow the descendants of remoter ancestors how high soever (true or false).

Distribution of property among Distant Kindreds

As discussed earlier, the Distant Kindreds, or the uterine heirs, have been included in four classes. Class I excludes Class II, Class II excludes Class III and Class III excludes Class IV. Within a particular class or group of Distant Kindreds, the distribution of property is according to following principles:

Class I : Descendants

In this class the order of priority is:

(i) Daughter’s children.

(ii) Son’s daughter’s children.

(iii) Daughter’s grandchildren, and

(iv) Son’s son’s daughter’s children and the remoter heirs.

It is to be noted that heirs of a group. are entitled to inherit strictly according to the order of succession given above. That is to say, relations in (ii) above may inherit only in absence of relations in (i) and so on. Allotment of the shares among Distant Kindreds of this class (descendants) is made in accordance with the following rules:

Rule (1)

Where the intermediate ancestor of the claimants are of similar sex, the property is divided among them as per capita subject to the general rule that share of a male is double the share of female. For example, if the Distant Kindreds are (a) daughter’s son (b) daughter’s daughter, the sex of intermediate ancestor of both of them is the same. But, as the claimants themselves differ in sex, therefore, the property is distributed among the male and female claimants in the ratio of 2 : 1.

P

                                           daughter                                                                                  daughter

son (2/3)                                                                             daughter (1/3)

Similarly, where the Distant Kindreds are (a) daughter’s son’s son and (b) daughter’s son’s daughter, the estate would devolve as under:

P

 

                                           daughter                                                                                  daughter

                                            son                                                                                               son

son                                                                                             daughter

(distant kindred) 2/3                                                                 (distant kindred) 1/3

Here the intermediate ancestor of the claimants is son. The property is to be divided between the claimants in the ratio of 2 : 1 as they differ in sex.

Rule (2)

Where the intermediate ancestor of the claimant (distant kindred) differ in sex, the property is distributed according to following rules:

  • When there are two Distant Kindreds one claiming through one line and the other claiming through another line then, the following method is applied. Beginning from propositus, one has to stop at the first line of descent in which the sexes of intermediate ancestors is different. At this stage, the shares are allotted to these ancestors. Now, the same shares descend to the claimants. For example, the Distant Kindreds are (a) daughter’s son’s daughter and (b) daughter’s daughter’s son.

 

P

I line      daughter (dead)                                                                              daughter (dead)

II line       son (dead) 2/3                                                                             daughter (dead) 1/3

III line           daughter                                                                                        son

                        (distant kindred) 2/3                                                                 (distant kindred) 1/3

Here, we find that ancestors differ in their sex in the second line. At this stage we have to divide the property among son and daughter in the ratio of 2 : 1. Now, the descendant of son would get son’s share and the descendant of daughter would get her share. Thus, the daughter’s son’s daughter would get 2/3 and daughter’s son would get 1/3.

  • When there are three or more Distant Kindreds claiming through-different line of descent, the rule is to stop at the stage where the sexes of the intermediate ancestor differ and to assign the shares to male and female ancestors in the ratio of 2 : 1 ; but unlike (a) above the individual share of each ancestor does not descend to his or her descendants. The collective share of all the male ancestors will be divided among all the descendants claiming through them, and the collective share of all the female ancestors will be divided among their descendants? This rule may be illustrated by the following example. A Muslim dies leaving (a) daughter’s son’s daughter (b) daughter’s daughter’s son and (c) daughter’s daughter’s daughter.

P

I line              daughter                                     daughter                         daughter

 

II line                  son                                            daughter                          daughter

 

III line           daughter                                           son                                  daughter

 

Here, the ancestors differ in sexes in the second line of descent. In this line we find one male and two females. Applying the general rule that share of a male is double the share of a female, we may distribute the property at- this stage. Thus we find that shares of the ancestors of this line are as under:

Daughter’s son                                  1/2

Daughter’s daughter                      1/4         Collective share of females ancestors

being 1/4 + 1/4 = 1/2

Daughter’s daughter                      1/4

Now, we find that in the. H line of descent, the son (i.e. daughter’s son) stands alone, therefore his share (1/2) descends to his daughter (i.e. daughter’s son’s daughter). Again, we find that the collective share of two daughters is 1/2. This property is to be divided among the son (daughter’s daughter’s son) and the daughter (daughter’s daughter’s daughter) in the ratio of 2 : 1. Thus, finally the shares are:

Daughter’s son’s daughter                           1/2 or 3/6

Daughter’s daughter’s son                           2/3 of 1/2 = 2/6

Daughter’s daughter’s daughter                1/3 of 1/2 = 1/6

Class II : Ascendants

In the absence of Distant Kindreds of Class I, the estate devolves upon Class II of the Distant Kindreds which consists of the ascendants of the propositus. The property is distributed among the Distant Kindreds of this group in the following order of succession:

(i) Mother’s father.

(ii) Father’s mother’s father and monther’s mother’s father in the ratio of 2 : 1.

(iii) Mother’s father’s father and mother’s mother’s father in the ratio of 2 : 1.

The property among the above mentioned relations is distributed in accordance with the following rules:

Rule (1)

The heir who is nearer in degree excludes the remoter heir.

Rule (2)

Among the claimants of the same degree, those connected with the propositus through sharers are preferred over those who are connected through Distant Kindreds.

Rule (3)

Where the claimants belong to the paternal as well as to maternal side, 2/3 is assigned to the paternal side and 1/3 to the maternal side. Thereafter, the share assigned to the paternal side (2/3) is divided among the ancestors of the father and the share assigned to the maternal side (1/3) is divided among the ancestors of the mother.

Class III : Collaterals : Descendants of Parents

The descendants of brothers and sisters who are neither Sharers nor Residuaries, are included in Class IH of the Distant Kindreds. In the devolution of estate among the heirs of this class, following rules are applicable:

Rule (1)

The nearer in degree excludes the remoter. For example, the children of the brothers and sisters being nearer in degree, exclude the grand children of such brothers and sisters.

Rule (2)

Where the claimants belong to the same degree of relationship, the children of Residuaries are preferred to the children of Distant Kindreds. Thus, a brother’s son’s daughter (i.e. child of the Residuary, brother’s son) is preferred to sister’s daughter’s son (i.e. child of a distant kinswoman, sister’s daughter).

Rule (3)

Among the claimants of the same degree of relationship [who are not excluded under Rule (2) above, the descendants of full brother exclude the descendants of consanguine brothers and sisters.

However, the descendants of full sisters do not exclude the descendants of consanguine brothers and sisters and get the residue. The descendant of full or consanguine sisters also do not exclude the descendants of the uterine brothers and sisters. They inherit simultaneously.

Class IV : Collaterals : Descendants of Ascendant h.h.s.

This category of Distant Kindreds consists of uncles (or aunts) and the descendants of the uncle and aunts. It may be noted that practically the cases relating to the devolution of estate among the Distant Kindreds of this class are rare. A detailed account of the rules of distribution of estate among the heirs of this category has, therefore, been avoided. However, a curious student may find full treatment of the rules of distribution of estate among the heirs of this complicated class of Distant Kindreds in authorities like Mulla, Tyabji and Wilson.

 

SHIA LAW OF INHERITANCE

Classification of Heirs

Under the Shia law, a person may become the legal heir of a propositus either because of his relationship through marriage or because of relationship through blood. Thus, the heirs may be either (a) heirs by marriage or (b) heirs by consanguinity.

Heirs by Marriage

The heirs related to the propositus by marriage are husband or wife. Marriage is regarded as a special cause for heirship.

Heirs by Consanguinity

The heirs by consanguinity have been divided into following three classes :

Class I

This class includes—

(i) parents, and

(ii) the children and other lineal and descendants how low soever.

Class II

This class includes-

(i) grandparents how high soever (true as well as false); and

(ii) brothers and sisters;

(iii) descendants h.l.s. of brothers and sisters.

Class III

Under this class are included—

(i) the paternal, and

(ii) maternal uncles and aunts of the propositus and of his parents and grandparents                      h.h.s. and also their descendants h.l.s.

Respective Shares of the heirs

For purposes of determining the respective share of each heir, the Shia law classifies them into two categories, the Sharers and the Residuaries. As against Sunni law, there is no separate category of Distant Kinelreds. There are nine sharers whose shares are already assigned. The first two namely, the husband and wife are heirs by affinity or marriage and the rest are heirs by consanguinity. The Sharers, their shares and rules relating to allotment of the shares to each of them has been given in brief, in the following list:—

  1. Husband
  • Without children or lineal descendants, the husbands’ share is 1/2.
  • With children or lineal descendants, the husband’s share is 1/4.
  1. Widow
  • Without children or lineal descendants, the widow’s share is 1/4.
  • With children or lineal descendants, the widow’s share is 1/8.
  • A childless widow gets her 1/4 share only out of the movable properties of the deceased husband.
  1. Father
  • Without children or lineal descendants, the father inherits as Residuary.
  • With children, the father’s share is 1/6.
  1. Mother
  • In the absence of (a) child or lineal descendant or (b) two or more full or consanguine brothers or (c) one such brother and two such sisters or (d) four such sisters with father, the share of mother is 1/3.
  • In the presence of (a) child or lineal descendants (b) two or more full or consanguine brothers (c) one such brother and two such sisters or (d) four such sisters with the father, the share of mother is 1/6.
  1. Daughter
  • Share of a single daughter is 1/2
  • Share of two or more daughters is 2/3 to be inherited collectively.
  • In the presence of son, the daughter becomes Residuary.
  1. Full Sister
  • The share of a single full sister is 1/2 and that of two or more full sisters is 2/3.
  • The full sister gets the above-mentioned share in the absence of (a) parents (b) lineal descendant (c) full brother and (d) father’s father.
  • In the presence of (a) full brother and (b) father’s father, the full sister inherits but as a Residuary.
  1. Consanguine Sister
  • The share of a single consanguine sister is 1/2 and that of two or more consanguine sisters is 2/3.
  • The above share is .inherited by consanguine sister in the absence of (a) parent (b) lineal descendant (c) full brother (d) full sister (e) consanguine brother and (f) father’s father.
  • In the presence of (a) consanguine brother and (b) father’s father, the consanguine sister inherits as Residuary.
  1. Uterine Brother
  • The share of one uterine brother is 1/6 and that of two or more uterine brothers is 1/3.
  • The above share is inherited by uterine brother in the absence of (a) children or lineal descendants, and (b) parents.
  1. Uterine Sister

Same as Uterine brother.

As regards the Sharers, and their respective shares, the following significant points may be noted:—

Firstly, out of the nine Sharers, mentioned above, first two are heirs by marriage and the next three heirs, i.e. father, mother and daughter are heirs through consanguinity and belong to Class I. The remaining four heirs belong to Class II. It is to be noted that in Class III there are no Sharers.

Secondly, the list of Sharers under Shia law is the same as that under Sunni law except that under the Shia law (i) true grandfather (ii) true grandmother and (iii) son’s daughter are not recognised as Sharers. According to Shia law these three heirs are Residuaries.

Thirdly, under the Shia law the descendants h.l.s. of the Sharers are also regarded as Sharers. Thus, the descendants or (i) daughter, (ii) full sister (iii) consanguine sister (iv) uterine brother and (v) uterine sister are also Sharers. However, there is an exception to this rule. The descendants of (i) husband, (ii) wife, (iii) father and (iv) mother are not regarded as Sharers.

Distribution of Property

Class I

Class I includes husband or wife and parents, children, grandchildren and also the remoter lineal descendants, of the propositus. When the inheritance opens, the heirs of this class are entitled to inherit first of all. For distributing the property among the heirs of this class, following procedure is adopted. First of all the shares are allotted to the husband or widow, as the case may be. Next the shares are allotted to those heirs who inherit only as Sharers. Thereafter, the residue if any, is divided among the Residuaries. In cases where there is residue but there are no Residuaries, the doctrine of Return (Radd) is applied. Similarly, where the shares are in excess of the property, the property is distributed by applying the doctrine of Increase (Aul).

Illustrations

(1) A Shia Muslim dies leaving her (a) husband (b) mother and (c) father. The respective position of each heir is given below:

Husband                      Sharer

Mother                        Sharer

Father                                           Residuary (because there are no children);

Here, the share of husband is 1/2. Mother is also a Sharer and without children her share is 1/3 of the estate. Father without children is Residuary, and gets the residue which remains after allotment of the shares of husband and mother. The residue is 1 – (1/2 + 1/3) = 1/6 which goes to father.

Accordingly, the respective shares of each heir is as under :

Husband                              1/2     (Sharer without children)

Mother                                1/3     (Sharer without children)

Father                                   1/6     (Residuary)

6/6 = 1

Note.—It is significant to note that under Sunni law, in this particular combination of heirs (where mother is together with father and husband or wife), the mother is entitled to her 1/3 share not out of the whole estate. According to Sunni law, as discussed earlier, in this case the mother gets 1/3 of what remains—after giving to the husband i.e. 1/3 of (1 – 1/2). In other words, had propositus been a Sunni Muslim, the shares would have been as under:

Husband                              1/2

Mother                                1/3   of 1/2 = 1/6

Father                                   1/3   (Residue)

(2) A Shia Muslim dies leaving (a) widow (b) mother and (c) father. The respective shares are as under:

Widow                                  1/4   (Sharer)

Mother                                1/3   (Sharer)

Father                                   1 –   (1/4 + 1/3) = 5/12 (Residuary)

Here again, under Sunni law, the share of mother is 1/3 of (1 – 1/4) i.e. 1/3 of 3/4 = 1/4. Accordingly, the residue is 1 – (1/4 + 1/4) = 1/2 which is inherited by father as Residuary.

(3) A Shia Muslim dies leaving his (a) father (b) mother and (c) son. The respective shares are:

Father                                   1/6 (Sharer)

Mother                                1/6 (Sharer)

Son                                        1 — (1/6 + 1/6) = 4/6 (Residuary).

Note.—If, instead of son there had been a son’s daughter, she would have represented her father (i.e. son) and would have taken the share (4/6) of her predeceased father.

Class II

This clause of heirs includes (i) grandparents h.h.s. (ii) brothers and sisters, and (iii) descendants h.l.s. of the brothers and sisters. In the absence of any of Class I, the estate is distributed among the heirs of Class H after deducting the share of husband or widow, if there by any one of them. However, if a male co-exists with a female of the same degree, the general rule, that share of a male is double the share of a female, is applied in the distribution of property among them.

Illustrations

(1) A Shia Muslim dies leaving (a) father’s father and (b) mother’s mother. Here, we find that both the surviving heirs are grandparents of the propositus. One belongs to the paternal side and the other belongs to maternal side. The male getting double the share of female, the respective shares of these grand-parents, in the ratio of 2 : 1, are given below:

Father’s father                  2/3

Mother’s mother             1/3

(2) The surviving heirs of a Shia Muslim are (a) father’s father (b) father’s mother and (c) mother’s mother. Here, there are two grand-parents from the paternal side and one from maternal side. The grand-parents from paternal side would get 2/3 jointly whereas 1/3 is available to the maternal grandparent. The respective shares are:

Father’s father, Father’s mother               2/3 (Jointly)

Mothers mother                                              1/3

Now, we find that in the grand-parents from paternal side one is male and the other is female. Therefore, the 2/3 share available to them jointly would be divided between them in the ratio of 2 : 1. Thus, finally the shares are as under:

Father’s father                  2/3 of 2/3 =4/9

Father’s mother               1/3 of 2/3 = 2/9

Mother’s mother             1/3 or 3/9

(3) A Shia Muslim dies leaving her (a) husband (b) full brother and (c) full sister. Here we find that among the surviving heirs, there are no grand-parents.

Husband                                              1/2 (Sharer)

Full brother, Full sister                   Residuary

Now, after giving 1/2 to the husband the residue is 1/2 which is divided between brother and sister in the ratio of 2 : 1. Accordingly the respective shares of each heir is as under:

Husband                              1/2 or 3/6

Full brother                        2/3 of 1/2 = 2/6

Full sister                             1/3 of 1/2 = 1/6

Note.—If, among the surviving heirs there are brothers and sisters, but no ancestors, the property is distributed in the same manner as under Sunni law. Therefore, in the present illustration, had propositus been Sunni the results would have been the same.

(4) A Shia Muslim dies leaving (a) uterine brother (b) maternal grandmother and (c) two full sisters. We find that among the heirs, brothers and sisters are together with a grand-parent. Here the rule is that maternal grandmother counts as a uterine sister and therefore, property is distributed as if there were uterine brother, uterine sister and two full sisters. Accordingly, the respective shares are as under:

To full sisters                                                                      2/3 (Sharer)

Uterine brother                                                                1/3 each

Maternal grandmother = (uterine sister)              taking 1/6

Class III

In the absence of the heirs of Class I and Class II, the estate is divided among the heirs of Class III after deducting the share of husband or widow, if any. It may be noted that the heirs of this class are all Residuaries; there are no Sharers in Class HI. The rules of distribution of estate among the heirs of this class (which consists of uncles, aunts and -their descendants) have been explained in brief, with the help of following examples:

(1) A Shia Muslim dies leaving (a) full paternal uncle and (b) full paternal aunt. The respective shares of these Residuaries are in the ratio of 2 : 1, as if they were brothers and sisters:

Full paternal uncle           2/3

Full paternal aunt             1/3

(2) A Shia Muslim dies leaving (a) uterine maternal uncle and (b) full maternal uncle. Here, the uterine maternal uncle would inherit as if he was uterine brother and therefore, his share is 1/6. The residue 5/6 goes to full maternal uncle. Accordingly, the respective shares are:

Uterine maternal uncle                                 1/6

Full maternal uncle                          5/6

(3) The only heirs of a Shia propositus are (a) full maternal uncle, and (b) full maternal aunt. Here, it is significant to note that the maternal uncle and maternal aunts inherit equally as if they are not of different sexes. In other words, in this case the general rule that share of a male is double the share of a female, is not applicable. Thus the shares are:

Full maternal uncle          1/2

Full maternal aunt           1/2

Doctrine of Increase (Aul.)

When the sum total of all the shares exceeds unity i.e. the shares are in excess of the fragments of property, the doctrine of increase is applied for ‘distribution of the estate. But, the Sunni doctrine of increase under which the share of -each heir is reduced proportionately, is no recognised under Shia law. Under the Shia doctrine of increase, the excess share is deducted invariably from the shares of:

(a) the daughter, or

(b) the full sister, or

(c) the consanguine sister.

The share in excess is not deducted from the share of uterine sister.

Illustrations

(1) A Shia Muslim dies leaving her (a) husband (b) daughter (c) father and (d) mother. The respective normal shares are:

Husband              1/4 or 3/12

Daughter             1/2 or 6/12

Father                   1/6 or 2/12

Mother                1/6 or 2/ 12

Total      13/12

 

We find that the sum total exceeds unity. The excess share is 1/12 which is directly deducted only from the share of daughter. Accordingly, the final shares are:

Husband              3/12

Daughter             (6/12 — 1/12) = 5/12 .

Father                   2/12

Mother                2/ 12

12/12

(2) A Shia Muslim dies leaving her (a) husband and (b) two full or consanguine sisters. The normal shares are:

Husband                                                              1/2 or 3/6

Two full sisters (or cons. Sister)                                2/3 or 4/6

 7/6

The excess share 1/6 is deducted from the share of the two sisters. Thus, finally the shares may be worked out as under:

Husband                                                              1/2 or                    3/6

Two full sisters (or cons. Sister)                                (4/6 — 1/6) =     3/6

6/6 = 1

(3) A Shia Muslim dies leaving (a) husband (b) uterine sister (or brother) and (c) full (or consanguine) sister. Here, the normal shares are:

Husband                                              1/2 or 3/6

Uterine sister (or brother)           1/6

Full sister  (or cons.)                        1/2 or 3/6

 7/6

The share in excess is 1/6. This excess share is to be deducted from the share of full (or consanguine) sister only not from the share of uterine sister (or brother). Accordingly, the final shares are:

Husband                                              3/6              = 3/6

Uterine sister (or brother)           1/6              = 1/6

Full sister  (or cons.)                        (3/6 – 1/6) = 2/6

  6/6

(4) A Shia Muslim dies leaving his (a) widow (b) uterine sister (c) mother and (d) two full sisters. The sum total of the shares comes out to be more than unity (15/12), therefore, the doctrine of increase is to be applied and the excess share (3/12) is to be deducted from the share of two full sisters. The normal share of each heir is given below:

 

Widow                                                  1/4 or 3/ 12

Uterine sister                                    1/6 or 2/12

Mother                                                1/6 or 2/12

Two full sisters                                  2/3 or 8/12

 15/12

After deducting the excess share (3/12) from the share of the two sisters, finally the shares are as under:

Widow                                                                  3/12

Uterine sister                                                    2/12

Mother                                                                2/12

Two full sisters (8/ 12 — 3/ 12)               = 5/12

 12/12

Doctrine of Return (Radd.)

Where the sum (total of all the shares is less than unity and there is no Residuary in the class to which the Sharers belong, the residue reverts back to the Sharers in proportion of their own Shares.

Exceptions: There are three exceptions to this rule:

Exception (1).— The husband or widow never participate in return. Accordingly, the property in excess does not revert back to the husband or the widow, if they happen to be among the heirs. However, where widow is the sole surviving heir of a propositus, she is entitled to participate in return and the result is that whole estate devolves upon her.

Exception (2).— Mother is also excluded from return if the heirs of a propositus are  mother, father, one daughter and also any one of the following:

(i) two or more full (or consanguine) brothers, or

(ii) one such brother plus two such sisters, or

(iii) four such sisters.

Exception (3).— The uterine brothers or uterine sisters are also excluded from return if they are together with full sisters. That is to say, in presence of full sister, the uterine brother (or uterine sister) is not entitled to participate in return. It may be noted that the method of adding the residue is the same as that under Sunni law, discussed earlier.

Illustrations

(1) A Shia Muslim leaves his (a) mother (b) father and (c) daughter. The normal share of each heir is given below:

Mother                                1/6

Father                                   1/6

Daughter 1/2 or                3/6

5/6

The sum total being less than unity, doctrine of return is applicable. Under Shia law, father has no double capacity. Therefore, the excess property would be distributed among all the heirs in proportion of their own shares. Now the ratio of their normal shares is 1/6 : 1/6 : 3/6 or 1/5 : 1/5 : 3/5. In other words, if the property is 5 the shares of mother, father and daughter are 1/5, 1/5 and 3/5 respectively. But, here we have to distribute the whole property (i.e. one). Accordingly, the final shares of each heir is as under:

Mother                1/5 of 1 = 1/5

Father                   1/5 of 1 = 1/5

Daughter             3/5 of 1 = 3/5

 5/5

Note:—Under Sunni law the father has double capacity and as such the residue 1/6 would have returned only to father to make his share (1/6 + 1/6) = 1/3.

(2) A Shia Muslim dies leaving (a) mother (b) father (c) daughter and (d) two full brothers. The normal shares of each heir is given below:

Mother                                1/6

Father                                   1/6

Daughter                             1/2

Two full brothers             Excluded

5/6

Now, the excess property (1/6) is to be returned back. But, under exception (2) stated above, the mother is also excluded from return if she is together with father, daughter and two full brothers‘. Therefore, the residue would be added only to the shares ‘of father and daughter in proportion of their own shares. The ratio of, the shares of father and daughter is 1/6 :1 1/2 or 1/6 : 3/6 i.e. 1/4 and 3/4. Now, we find that excluding 1/6 property of mother (who does not participate in return) we have 5/6 property which is to be distributed between father and daughter in proportion of their own shares. Accordingly, the final shares are as under:

Mother                1/6 (excluded from return)                         =    4/24

Father                   1/6 increased to (1/4 of 5/6)                       =    5/24

Mother                1/2 or 3/6 increased to (3/4 of 5/6)          =  15/24

24/24

The two full brothers are already excluded from inheritance.

(3) Shia Muslim dies leaving his (a) widow (b) uterine sister and (c) full sister. The normal shares of each heir is given below:

Widow                                  1/4 or  3/12

Uterine sister                    1/6 or  2/12

Full sister                             1/2 or  6/12

 11/12

Here, the residue 1/12 is to be added only to the share of full sister. Widow is always excluded from return. The uterine sister is excluded from return in presence of the full sister under exception (3) above. Accordingly, the residue will go exclusively to the full sister. The final shares are, therefore, as under:

Widow                                                                      3/12

Uterine sister                                                        2/12

Full sister 6/ 12 (sharer) + 1/12 (return) =  7/12

 12/12

MISCELLANEOUS

  1. Some More Illustrations

In the following illustrations, the shares have been allotted after working out the problems both under Sunni as well as under Shia law, to further clarify the difference between these two systems:

 

(1)

P

 

                          Father         Mother                                Widow                  2 Sons                  3 Daughter               Brother

Sunni Law         1/6              1/6                         1/8               Res-26/48                         – Res                    (Excluded)

or                      8/48           8/48                         6/48             4/7 of 26/48            3/7 of 26/48                    – – –

or                    56/336       56/336                 42/336                  104/336                        78/336                     – – –

(2)

P

 

Husband                         Mother                                Daughter                Son’s daughter

Sunni Law                                     1/4                                   1/6                          1/2                                     1/6

Or                                                   3/12                                 2/12                       6/12                              2/12 = 13/12

Doctrine of Increase               3/13                                 2/13                       6/13                              2/13 = 13/13

Shia Law                                        1/4                                   1/6                          1/2                                     Excluded

Or                                                   3/12                                 2/12                        6/12                                    – – = 11/12

Doctrine of Return                   1/4                           1/4 of 3/4                 3/4 of 3/4

Or                                                   4/16                               3/16                           9/16                                   — = 16/16

(3)

P

 

Widow                             Father                   Mother                                          Daughter

Sunni Law                                     1/8                                   1/6                          1/6                                     1/2

Or                                                   3/24                                 4/24                        4/24                            12/24 = 23/24

Residue 1/24

Father has double                   3/24          4/24 (Q.h.) + 1/24 (Res.)      4/24                             12/24 = 24/24

capacity

Shia Law                                        1/8                                   1/6                          1/6                                         1/2

Doctrine of Return                   1/8                           1/5 of 7/8                 1/5 of 7/8                            3/5 of 7/8

Or                                                   5/40                               7/40                           7/40                            21/40 = 40/40

(4)

P

 

Husband                                         Father                                             Daughter

Sunni Law                                     1/4                                                   1/6                                                      1/2

Or                                                   3/12                                                 2/12                                             6/12 = 11/12

Father has double                   3/12                               2/12 (Q.h.) + 1/12 (Res.)                                      6/12 = 12/12

capacity

Shia Law                                        1/4                                                 1/6                                                1/2 = 11/12

Doctrine of Return                   1/4                                          1/4 of 3/4                                             3/4 of 3/4

Or                                                   4/16                                               3/16                                              9/16 = 16/16

(5)

P

 

Widow                                             Mother                                                          Father

Sunni Law                                     1/4                                         1/3 of (1 – 1/4)                                 Residuary

Or                                                    1/4                                                1/3 of 3/4                                    Residuary

Or                                                   3/12                                                   3/12                                      1 – (3/12 + 3/12)

Or                                                    3/12                                                 3/12                                            6/12 = 12/12

Shia law                                         1/4                                                     1/3                          1 – (1/4 + 1/3) Residuary

Or                                                   3/12                                                   4/12                                           5/12 = 12/12

 

(6)

P

 

Husband                                         Mother                                                          Father

Sunni Law                                     1/2                                         1/3 of (1 – 1/2)                                 Residuary

Or                                                    3/6                                                     1/6                                        1 – (3/6 + 1/6)

Or                                                    3/6                                                     1/6                                              2/6 = 6/6

Shia law                                         1/2                                                     1/3                                      1 – (1/2 + 1/3)

Or                                                    3/6                                                     2/6                                              1/6 = 6/6

(7)

P

 

Full Brother                                    Full Sister                           Consanguine brother

(or sister)

Sunni Law                            Residuary                                       Residuary                         Excluded by full brother

(or sister)

2/3                                                     1/3                                                      Nil

Shia Law                               Same as under Sunni Law

(8)

P

 

Son                                                                                                      Grandson

from a predeceased son

Sunni Law                                 Whole                                                                                                  excluded by son

Shia Law                               Same as under Sunni Law.

(9)

P

 

Widow                             Mother                                2 Full Sister                  Ut. Sister

Sunni Law                                     1/4                                   1/6                          2/3                                     1/6

Or                                                   3/12                                 2/12                       8/12                              2/12 = 15/12

Doctrine of Increase               3/15                                 2/15                       8/15                              2/15 = 15/15

Shia Law                                        1/4                                   1/6                Ex. by mother                  Ex. by mother

Or                                                   3/12                                 2/12                                                                      = 5/12

Doctrine of Return                  3/12                  2/12 + 7/12 (by return)                                                   Nil

Or                                                   3/12                               9/12                                                                      = 12/12

(10)

P

 

Widow                                                Son                                          Two Daughters

Sunni Law                                     1/8                                            Residuary                                        Residuary

Or                                                    1/8                                            2/4 of 7/8                                 2/4 of 7/8 (jointly)

Or                                                   4/32                                                   14/32                 14/32 (each taking)

14/64 = 32/32

Shia Law                                               Same as under Sunni Law

 

 

 

(11)

P

 

Father’s mother                               Full Father                               Daughter’s son

(T.G.M.)

Sunni Law                                     1/6                                               Residuary                                     Excluded

Or                                                    1/6                                                1 – 1/6 = 5/6                                Nil = 6/6

Shia law                                         Excluded                                        Excluded                             Whole Property

 

(12)

P

 

Husband                         Father                   Mother                                        3 Daughters

Sunni Law                                     1/4                                   1/6                        1/6                                2/3 (jointly)

Or                                                   3/12                                 2/12                       2/12                              8/12 = 15/12

Doctrine of Increase               3/15                                 2/15                       2/15                              8/15 = 15/15

Shia Law                                        1/4                                   1/6                      1//6                                   2/3

Or                                                   3/12                                 2/12                       2/12                               8/12 = 15/12

Excess 3/12

Doctrine of Increase               3/12                                2/12                        2/12                               (8/12 – 3/12)

Or                                                   3/12                                 2/12                       2/12                              5/12 = 12/12

 

(13)

 

 

 

P

 

Widow                                             Ut. Sister                                       Full Sister

Sunni Law                                     1/4                                                    1/6                                                     1/2

Or                                                   3/12                                                  2/12                                             6/12 = 11/12

Doctrine of Return                   1/4                                               1/4 of 3/4                                      3/4 of 3/4

Or                                                   4/16                                                  3/16                                            9/16 = 16/16

Shia law                                         1/4                                                    1/6                                                     1/2

Or                                                   3/12                                                   2/12                                           6/12 = 11/12

Doctrine of Return                  3/12                                                   2/12                                   6/12 + 1/12 (Return)

Or                                                   3/12                                                   2/12                                            7/12 = 12/12

 

(14)

P

 

Daughter             Son’s Daughter            Father                              Mother

Sunni Law                                     1/2                                   1/6                        1/6                                       1/6

Or                                                    3/6                                   1/6                        1/6                                  1/6 = 6/6

Shia Law                                        1/2                                Excluded               1/6                                       1/6

Or                                                    3/6                                   ____                     1/6                                 1/6 = 5/6

Doctrine of Return                   3/5                                  ____                      1/5                                 1/5 = 5/5

 

(15)

 

 

P

 

Father                                              Mother                                                              Son

Sunni Law                                     1/6                                                    1/6                                             Residuary

Or                                                    1/6                                                    1/6                                          1 – (1/6 + 1/6)

Or                                                    1/6                                                    1/6                                                4/6 = 6/6

Shia law                                         Same as under Sunni Law

  1. Differece Between Sunni and Shia Law of Inheritance

It is evident from the preceding lines that there is a marked difference between the Sunni and Shia laws of inheritance. The significant points of difference between the two systems may be summarized as under:

Sunni Law Shia Law
1. A childless widow inherits 1/4 out of movable as well as immovable property. A childless widow inherits 1/4 only from the movable property.
2. Principle of representation is not recognized. Son of a predeceased son is excluded. Principle of representation is recognised and the son of a predeceased son represents his father.
3. Illegitimate child is entitled to inherit the properties of the mother. Illegitimate child is not entitled to inherit any property either from father or from mother.
4. A person who caused the death of the propositus either intentionally or negligently, is excluded from inheritance. A person may not be excluded from inheritance if he has not caused the death intentionally.
5. The Sunni system has retained the pre-Islamic principle of agency and the agnatic heirs continue to be the most important heirs of a propositus. The Shia system has not recognised the principle of agency. Shias adopted the principle of consanguinity and the agnates and cognates have been placed on equal footing.
6. Under Sunni law, the heirs are classified as (a) Sharers (b) Residuaries and (c) Distant kindreds. Under Shia law, the classification of heirs is (a) Sharers and (b) Residuaries.
7. Under the Sunni doctrine of Increase, the excess share is deducted from the shares of all the heirs in proportion of their normal shares. Under the Shia doctrine of Increase, the excess is deducted only from the shares of daughter or sister.
8. Under the Sunni doctrine of Return, all the surviving heirs, except husband or widow, participate in return of the excess property. Under the Shia doctrine, besides husband or widow, in certain cases the mother and uterine brother (or ut. Sister) also do not participate in return.
9. Succession among the heirs of one class but of different branches is per capita. Succession among the heirs of a class but belonging to different branches is per strips.
10. The rule that nearer excludes the remoter is applied only in respect of agnatic heirs. The rule of nearer excludes the remoter is applicable to all the classes of heirs.
11. If a propositus leaves behind father and one daughter, the residue goes to the father who has double capacity. In such cases, the residue is added to the Sharers under the doctrine of return.
12. Doctrine of primogeniture is not recognised and an eldest son has no preferential right in respect of any property. Doctrine of primogeniture is recognized for certain purposes; the eldest son has exclusive right over the seal, sword, Quran and the wearing apparel of the propositus.

 

 

MUSLIM LAW

INHERITANCE

                                                                       reliminary

  1. Child in the womb is regarded as
  • Living person
  • Non living person
  • Entitled to inherit if born alive
  • Both (a) and (c)
  1. A person who causes the death of the Propositus is disqualified from inheriting the property of the deceased under
  • Shia law
  • Sunni law
  • Both (a) and (b)
  • Shia law only
  1. Who is false grandfather
  • Paternal grandfather
  • Maternal grandfather
  • Both
  • None of the above
  1. Under Sunni law husband gets ___________in the absence of child
  • 1/2
  • 1/4
  • 1/5
  • 1/6
  1. Under Sunni law the share of two or more full sisters is ________ to be divided equally among them
  • 2/3
  • 1/2
  • 1/6
  • 1/8

 

 

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