MUSLIM LAW

MAINTENANCE

LECTURE 6

MAINS QUESTIONS

 

1. Discuss the law relating to right of Muslim Women to claim maintenance?

 

2. Trace the history from the Shah Bano judgment which led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and critically analyse the provisions of this legislation. Discuss the issues in relation to the constitutionality of this Act as raised before the supreme court in Danial Latifi and union of India.

 

3. Discuss whether there is an obligation on father-in-law to maintain the widow of his son?

 

4. Discuss the law relating to maintenance of parents?

 

5. Is a widow entitled to get maintenance out of the properties of her deceased husband during her Iddat? Explain.

 

MAINTENANCE

LECTURE 6

INTRODUCTION

• Maintenance means provisions for fooding, lodging and other essential requirements for the livelihood. Duty to maintain’ is an obligation under which a person is legally bound to provide fooding, lodging, clothings etc. to another person.
• Muslim law of maintenance which is enforceable in India is based on the Muslim personal law laid down by the courts and the law incorporated in the enactments such as the Indian Majority Act, 1875, the Criminal Procedure Code, 1973. (Chapter IX), and the Muslim Women (Protection of Rights on Divorce) Act 1986. In the language of Muslim law, maintenance is called
• Persons Entitled to Maintenance
• Under Muslim law, a person may have the right to be maintained by the other on the basis of: (a) the marriage, and (b) the blood-relationship. In this manner, under Muslim law the following persons are entitled to maintenance:

(i)wife,

(ii)young children,

(iii)the necessitous parents, and

(iv)other necessitous relations within the prohibited degrees.

 

MAINTENANCE OF THE WIFE

• Under Muslim law, the wife’s right to be maintained by her husband is absolute. The right arises out of her status.
• It is a legal obligation of every husband to maintain his wife even if the wife may have her own means to support herself and even if the husband has no means to provide her maintenance.
• A Muslim wife’s right to be maintained by her husband gets priority over the right of maintenance of all other persons. It is interesting to note that in maintenance, the wife is preferred even over the young children because wife is considered to be the source or root(asl) and a child is the offspring
• Wife’s right of maintenance is regulated by Muslim personal law and also by the statutory provisions of the Criminal Procedure Code, 1973 (Sections 125-128).

 

Conditions for the Wife’s Right of Maintenance

• Wife’s right to claim maintenance from her husband is an independent right. This right does not depend on any separate agreement for maintenance. The husband is bound to maintain her even if there is no agreement. The wife’s right exists whether she is Muslim or a non-Muslim, rich or poor, of sound health or invalid, young or old.

 

wife’s right to maintenance is subject to following conditions:

(1) Under Muslim law, the wife is entitled to maintenance from her husband only where the marriage is valid (sahih). If the marriage is void (batil) or irregular (fasid), the husband is under no obligation to maintain the wife.

(2) However, according to Tyabji, where the marriage is irregular merely because of the absence of witnesses, the wife is entitled to claim maintenance.

A Muta marriage is also valid under Shia law. But the wife is not entitled to maintenance under Muslim personal law. However, since Muta-marriage is recognised as a valid marriage, it had been held that, a Muta-wife may claim maintenance from her husband under Section 125 of the Criminal Procedure Code. 1908.

(3) The husband’s duty to maintain commences only from the date when the wife attains puberty (fifteen years) and not before that.

Where a wife is too young for sexual intercourse and lives with her parents, she has no right to claim maintenance.

(4) Although a Muslim wife’s right to be maintained by her husband is an absolute right yet, she must be faithful and obedient to him in respect of all the matrimonial affairs.

If the wife’s conduct is justified in the eyes of law, the husband is bound to maintain her, although for some reasons, he himself may not be able to exercise his matrimonial rights over his wife. In such circumstances; the wife would not lose her right of maintenance.

 

According to Tyabji, a wife would not lose her right to maintenance in the following cases:

(a)Where she refuses access to her husband on some lawful ground, or

(b)Where the marriage cannot be consummated owing to

(i) the husband’s minority or

(ii) due to her absence from him with his permission, or

(iii) because of her illness, or

(iv) due to malformation (defect) in wife’s organs.

 

Maintenance of Wife Under Criminal Procedure Code, 1973

• In Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor, the Supreme Court held that irrespective of a Muslim husband’s right to contract a second marriage, his first wife would be entitled to claim maintenance. In this case, the husband married a second wife whereupon the first wife left the house and lived separately. Living separately, she claimed maintenance under Section I25 of the Criminal Procedure Code, 1973. Elaborating the provisions of the Explanation to Section 125(3) of the Criminal Procedure Code, the Supreme Court held that from the point of view of a neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her husband’s matrimonial life is another wife permitted under (personal) law to be married and not a mistress. The court observed that the ‘Explanation has to be construed from the point of view of the injury to matrimonial rights of the wife and not with respect to the husband’s right to marry again.’

 

Enforcement of Wife’s Right of Maintenance

• A Muslim wife, whose husband neglects to maintain her without any lawful justification is entitled to file a suit for her maintenance in a civil court under her personal law. She is also entitled to enforce her right under the Criminal Procedure Code, 1973.

 

MAINTENANCE OF THE DIVORCED WOMEN

• Maintenance of a divorced Muslim woman may he discussed under the following heads:
• Muslim Personal law,
• Section 125 Criminal Procedure Code, 1973 and,
• The Muslim Women (Protection of Rights on Divorce) Act, 1986.

 

(A) MAINTENANCE OF DIVORCED WOMAN UNDER MUSLIM PERSONAL LAW.

The Quran provides for the maintenance of a divorced wife in the following words:

• For the divorced women let there be a provision in kindness; this is an obligation for those who are mindful of God.
• However, under Muslim personal law as applied in India, a divorced wife can claim maintenance from the former husband only for that period during which is observing her Iddat. The duration of Iddat on divorce is three menstruation periods or, if pregnant, till delivery of the child.
• In Mohommed Ali v. Fareedunnissa Bagum, the marriage was contracted in 1950, and a son was born to the couple. But, thereafter, the husband neglected the wife and refused to maintain her. The trial court passed a decree in her favour. The wife was informed by written notices from the husband that she had been divorced by him on the night of their wedding. The first notice was served on 12.5.1960. The husband’s plea was that as the wife had been divorced on the very first night, he was under no obligation to maintain her. It was held by the court that when a Talaq is pronounced through notice, the wife is required to observe “Iddat of divorce” from the date on which the notice is served on her. The wife was therefore, entitled to maintenance during the period of Iddat which began from the date of the first notice i.e. 12.5.1960. Under Muslim law a divorced wife cannot claim her past maintenance unless the claim is for the arrears of maintenance under any specific agreement.

 

• Muslim law does not prescribe any maximum or minimum amount to be given during Iddat of the divorced wife. The court is competent to fix any amount keeping in view the socio-economic status of the husband and wife.

 

(B) MAINTENANCE or DIVORCED MUSLIM WOMAN UNDER CRIMINAL PROCEDURE CODE.

Under Section 125 of the Criminal Procedure Code, 1973, the term ‘wife’ includes a ‘divorced wife’. This enactment is applicable to all the persons in India irrespective religion, caste and creed. Therefore, Section 125 is applicable also to a divorced Muslim wife. It may be noted that the term ‘divorced wife’ includes also that Muslim wife has obtained a decree for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939.

As stated earlier, under Muslim personal law, the husband’s liability to maintain his divorced wife terminates after the expiry of Iddat even if she remains unmarried But under the Criminal Procedure Code, divorced wife is entitled to be maintained by her former husband beyond the period of Iddat provided she remains unmarried.

However, a divorced wife’s claim of maintenance is subject to Section 127(3) of the Act which provides that the order for the maintenance in favour of a divorced woman shall be cancelled, and such woman shall not be entitled to maintenance, on the following circumstances:

• where the divorced woman has remarried,
• where such woman has received the whole sum due to her on divorce under

any customary or personal law, and

• where the woman, after obtaining divorce from her husband, has voluntarily surrendered her right to maintenance

 

It is interesting to note that the expression “she has received ……. the whole of the sum which under any customary or personal law of the parties was payable on such divorce ……………..” as provided in Section 127(3)(b) may be interpreted to mean that a divorced Muslim wife is not entitled to maintenance if she has obtained her dower and the maintenance during her Iddat.

But, in Bai Tahira v. Ali Hussein, the Supreme Court held that a divorced Muslim wife is entitled to maintenance even if she has already received the whole amount due to her under her personal law. Briefly, the facts of this case were that Ali Hussain had married Bai Tahira in 1956 and a son was born to them. Tahira was living in one of the flats of her husband. In 1962 Ali Hussain divorced his wife Bai Tahira and transferred the ownership of the flat to his divorced wife in lieu of dower and maintenance during Iddat. Bai Tahira remained unmarried. Some years later, she found herself in financial difficulties and filed a petition for her maintenance under Section 125 of the Criminal Procedure Code, 1973. The Magistrate ordered for a monthly maintenance allowance. Ali Hussain challenged this order on the ground that since she has already received maintenance during Iddat and also the ‘whole sum due to her under personal law’ (i.e. dower) in the form of a house, she was not entitled to get any further allowance under the Criminal Procedure Code. The Bombay High Court decided in favour of the husband. Bai Tahira then made an appeal in the Supreme Court which restored the maintenance allowance granted by the Magistrate and reversed the judgment of the Bombay High Court.

The Supreme Court held that irrespective of the amount settled as Mahr, a reasonable amount is always due to a Muslim wife for her maintenance. The court observed that payment of Mahr money, as a customary discharge, is within cognizance of Section 127(3)(b) but until this [reasonable amount) is discharged the divorced woman continues to be entitled to maintenance under Section 125 of the Criminal Procedure Code, 1973. The Court further observed that wife’s surrender of her right to dower does not in any way defeat her right under Section 125 of the Criminal Procedure Code, 1973 if she be entitled to it otherwise and has not remarried. The appeal was accordingly allowed and the Apex Court held that Bai Tahira was entitled to the maintenance allowance granted by the Magistrate.

In Mohd. Ahmad Khan v. Shah Bano Begum, the Supreme Court reiterated its stand and held that a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for the purposes of Section 125 and is entitled to maintenance from her former husband.

 

Mohd. Ahmad Khan v. Shah Bano Begum

Facts.-—Mohd. Ahmad Khan married Shah Bano in 1932. Two sons and three daughters were born to them. In 1975  Mohd. Ahmad drove away his wife Shah Bano out of the matrimonial home. Thereupon she filed a petition under Section 125 of the Criminal Procedure Code in the court of Judicial Magistrate, Indore asking for maintenance at the rate of Rs. 500 per month. In November 1978, Mohd. Ahmad Khan divorced his wife Shah Bane pronouncing irrevocable Talaq. After her divorce, Shah Bano did not remarry. In defence to Shah Bano’s petition for her maintenance, Mohd. Ahmed Khan took the plea that since she ceased to be his wife after Talaq, he has no obligation to maintain her. As regards the maintenance during Iddat (as required under Muslim personal law and the payment of dower, his contention was that he had already paid the required maintenance to her at the rate of Rs. 200 per month for about two years -and that he had deposited Rs. 3,000 in the court by way of dower. However, the Magistrate directed Mohd. Ahmad Khan to pay a nominal amount of Rs. 25 per month to his divorced wife Shah Bano. Against this order of the Magistrate Shah Bano filed a revision application in the Madhya Pradesh High Court praying for the enhancement of maintenance allowance. The High Court enhanced the maintenance rate to Rs. 179.20 per month. Mohd. Ahmad Khan preferred an appeal to the Supreme Court. The Supreme Court dismissed the appeal and confirmed the judgment of the High Court.

 

Held.—The Supreme Court held that clause (b) of Expl. to Section 125(1) of the Criminal Procedure Code which defines ‘wife’ as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. The court observed that the right available under Section 125 is a statutory right and remains unaffected and also overrides the provisions of personal law if there be any conflict between the two. However, the court observed that there is no conflict between Section 125 and rules of Muslim law as regards the husband’s liability to maintain his divorced wife. Section 125 deals with cases in which a person who is possessed of sufficient means neglects or refuses his wife (including divorced wife who had not married) who is unable to maintain herself.

 

The Muslim personal law, which limits the husband’s liability to provide for the  maintenance of divorced wife upto the period of Iddat, does not contemplate the situation envisaged by Section 125, i.e. whether or not the divorced wife is capable of maintaining herself. The true position, is therefore, that ‘if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of Iddat If she is unable to maintain herself she is entitled to take recourse to Section 125 of the Code. The court concluded that because of these reasons there is no conflict between the provisions of Section 125 and the rules of Muslim law.

 

As regards Section 127(3)(b) under which the divorced wife cannot claim maintenance if she had received the whole sum due to her under her personal law ‘on divorce’, the court held that Mahr is not the amount payable by husband to wife ‘on divorce’. Mahr is given by husband to wife as a mark of respect towards her, therefore, it cannot be said that it is that amount which is payable on divorce. One may settle a sum upon his wife as a mark of respect for her but he cannot divorce her as a mark of respect. Accordingly, the court held that Mahr does not fall within the meaning of Section 127(3)(b) and a divorced wife is entitled to claim maintenance even though she had already received the whole amount due to her by way of Mahr.

 

Rejecting the plea taken by husband that provisions of the Criminal Procedure Code in respect of maintenance to divorced wife beyond the period of Iddat was un-Islamic, the Supreme Court held that these provisions are not un-Islamic. Quoting Ayats 241 and 242 of Sara II of the Holy Quran, the Supreme Court observed that these Ayats leave no doubt that the Quran imposes an obligation on a Muslim husband to make provisions for the divorced wife. Accordingly, the court held that Section 125 Criminal Procedure Code is not un-Islamic.

 

It is significant to note that the Supreme Court’s judgment in the Shah Bano’s case had become a much debated verdict in the recent time. A section of the Muslim community in India opposed this verdict as being against the Shariat and alleged that maintenance to a divorced wife beyond the period of Iddat is un-Islamic. Whereas the others among the Muslim community favoured this judgment being in accordance with Shariat and in the larger interest of Muslim women. The spate of arguments of the two groups in support of their stand and also the socio-political developments, is beyond the scope of this book and is being avoided. However, conceding to the demands of a section of the Muslim community, the Parliament enacted Muslim Women (Protection of Rights on Divorce) Act, 1986.

 

(C) MAINTENANCE UNDER THE MUSLIM WOMEN ACT, 1986

The Muslim Women (Protection of Rights on Divorce) Act, 1986 is the outcome of the controversy that usurped the attention of the Muslim community all over India after the Shah Bano Begam’s case. Besides other provisions, this Act was enacted to negative the law laid down in Shah Bano’s case.  In so far as divorced Muslim woman’s claim of maintenance beyond Iddat, is concerned. The Act extends to the whole of India and makes provisions for the maintenance of a divorced Muslim woman during and after the period of Iddat and also for enforcing her claim to unpaid dower and other exclusive properties.

The Act is applicable to every such divorced woman who was married according to Muslim law and has been divorced by, or has obtained divorce from her husband under the provisions of Muslim law. Thus, the Act is applicable to a woman who had contracted marriage according to the provisions of Muslim personal law and her marriage dissolves through any of the kinds of judicial or extra-judicial divorce recognised under Muslim law such as, Talaq, Ila, Zihar, Khula or Mubarat and also under the Dissolution of Muslim Marriages Act, 1939.

 

PAHUJA LAW ACADEMY

MAINTENANCE

Pre Questions

1. In which of the following cases the Supreme Court has held that although the Muslim Law limits the husband’s liability to provide for maintenance of the divorced wife to the period of Iddat, it does not contemplate or countenance the situation envisaged by section 125 of the Code of Criminal Procedure, 1973?

(a) Bai Tahira v Ali Hussain

(b) Fuzlunbi v Khader

(c) Mbhd. Ahmed Khan v Shah bano

(d) None of the above

 

2. Which of the following sections of Muslim Women (Protection of Rights on Divorce) Act, 1986, deals with order for payment of maintenance?

(a) Section2

(b) Section 3

(c) Section 4

(d) Section 5

 

3. Where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain after the iddat period, he may make an order directing ………………… ..

(a) Her relatives, who would be entitled inherit her property on her death according to law, to pay such reasonable and fair maintenance to her

(b) The Mahal authorities to pay maintenance

(c) Both (a) and (b)

(d) None of the above

 

4. Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her ………………….. ..

(a) Within the iddat period

(b) Within six months of divorce

(c) Within two years of divorce

(d) None of the above

 

5. The emphasis of section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 is

(a) On the nature of duration of any ‘provision’ or ‘maintenance’.

(b) On the time by which an arrangement for payment of provision and maintenance should be concluded

(c) Both (a) and (b)

(d) None of the above

 

6. Who said ‘Divorce is good in law not in theology’?

a) Justice Mitter

b) Justice Bacholar

c) Justice baharul Islam

d) Justice Amir Ali

 

7. According to Anderson, ‘there is no aspect of the (Muslim) law in which the logical and technical Excellences of the Islamic system are more advantageously displayed than in the law of-

a) Inheritance

b) Marriage

c) Adoption

d) Gift

 

8. Is the jurisdiction of the family Court ousted by the enactment of Muslim women (Protection of Rights on Divorce) Act?

a) Yes

b) No

c) Depends

d) None of the above

 

9. In the absence of either principle or subsidiary heirs, the whole estate would go to…

a) Wakf

b) State

c) Mahal

d) None of the above

 

10. Moonshe Buzloor Ruheem v Shum-soonissa Begum is a leading case on

a) Dower

b) Option of puberty

c) Restitution of conjugal rights

d) None of these above

 

11. Which of the following judgement of the kerala High Court expressed concern over Polygamy

a) Saidali v Saleena

b) Abdul Khander v Salima

c) Ayesha v Mohd. Younus

d) None of the above

 

12. In which of the following cases, the Supreme Court overruled Muslim Personal law relating to maintenance?

a) Danial Latifi case

b) Sha bano case

c) Sarla Mudgal case

d) None of the above

 

13. All India Muslim personal Law board was established in the year

a) 1979

b) 1980

c) 1985

d) 1973

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.

 

2. 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?

 

3. 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?

 

5. Explain the gift of Mushaa.

 

6. When the delivery of possession is completed? Who may Challenge the Delivery of Possession?

 

PAHUJA LAW ACADEMY

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.
• 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.

 

2. 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.

 

3. 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.

 (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.

 

Gift to Minor or Lunatic 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

When Delivery of Possession is Not Necessary

• Where Donor and Donee Live Jointly in the Gifted House.
• Gift by Husband to Wife or by Wife to Husband.
• Gift by Guardian to Ward.
• Gift of Property Already in Possession of Donee.

 

 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 Spes-Successionis
• Gift of Actionable Claims : Intangible Properties
• Gift of Insurance Policy
• Gift of Dower (Mahr)
• Gift of Services

 

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.
• 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.

 

CONDITIONAL AND CONTINGENT GIFTS

Conditional Gifts

• 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.

 

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:

1) 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.

 

2) 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.

 

3) 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.

 

4) 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.

 

5) 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.

 

6) 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.

 

7) 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.

 

8) 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.

 

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

SADQA (RELIGIOUS GIFTS)

AREEAT

 

 

LECTURE 7

GIFT

PRELIMINARY QUESTIONS

1. Hiba under the Mohammedan law means

(a) immediate and unqualified transfer of the corpus of the property without any return

(b) immediate and unqualified transfer of the profits of the property without the corpus and without any return

(c) immediate but qualified transfer of the corpus of the property for a consideration

(d) immediate and unqualified transfer of the corpus of the property for a return.

2. Mohammedan law permits a disposition inter vivos

(a) unfettered as to quantum

(b) restricted to two third of the estate

(c) restricted to one third of the estate

(d) restricted to one fourth of the estate.

3. A gift made with intent to defraud the creditors of the donor is

(a) valid

(b) voidable at the instance of the creditors

(c) void

(d) invalid.

4. A gift made to a person not in existence is

(a) valid

(b) voidable at the instance of the heirs

(c) void

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

5. In Hanafi law, a gift is valid when

(a) there is a declaration ‘of the gift by the donor

(b) there is a declaration by the donor and acceptance by the donee

(c) there is a declaration by the donor, acceptance by the donee and delivery of possession

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

6. In Fatimid law, for a valid & effect gift

(a) declaration is not necessary

(b) acceptance by donee is not necessary

(c) delivery of possession is not necessary

(d) none the above is correct.

7. Which of the following cannot be the subject matter of gifts

(a) actionable claims

(b) incorporeal property

(c) insurance policy

(d) none the above.

8. Validity of gifts made by Muslim is to be tested

(a) solely by Mohammedan law

(b) solely by the transfer of Property Act

(c) solely by the Indian Registration Act

(d) all the above.

9. A gift of immovable properties by a Mohammedan can be made

(a) orally

(b) in writing

(c) either (a) or (b)

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

10. A gift of immovable properties made by a Muslim, through an instrument of gift, that instrument of

gift

(a) is compulsorily registrable

(b) is optionally registrable

(c) is not registrable

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

11. Which if the following are the essential ingredients of a valid gift?

a) Hiba

b) Wakf

c) Shufa

d) None of the above

12. Under Muslim law oral gift is

a) Valid

b) Irregular

c) Void

d) None of the above

13. A gift in death illness takes place

a) Once it is made

b) Once it is executed

c) When the donor dies

d) None of the above

14. Can gift be made to juristic persons?

a) Yes

b) No

c) Depends

d) None of the above

15. Can gift be made to a Non- Muslim?

a) Yes

b) No

c) Depends

d) None of the above

16. Can gift be made to a Minor?

a) Yes

b) No

c) Depends

d) None of the above

17. The usufruct from property can be given as

a) Hiba

b) Ariya

c) Shufa

d) None of the above

18. Transfer of ownership for a consideration is called

a) Mushaa

b) Ariya

c) Shufa

d) Hiba bil ewaz

19. An undivided share in an immovable property is called

a) Mushaa

b) Ariya

c) Shufa

d) Hiba bil ewaz

20. In shafii law, Mushaa is

a) Valid

b) Void

c) Irregular

d) None of the above

21. The gift of Mushaa of a property which is capable of being divided is

a) Valid

b) Void

c) Irregular

d) None of the above

22. A contingent gift is

a) Valid

b) Void

c) Irregular

d) None of the above

23. Gift of a future property is

a) Valid

b) Void

c) Irregular

d) None of the above

24. A gift cannot be revoked at any circumstances. The statement is

a) True

b) False

c) Partly correct

d) None of the above

25. Reciprocal gifts are called

a) Mushaa

b) Ariya

c) Shufa

d) Ewaz

26. When a gift is made with a stipulation for a return, it is called

a) Mushaa

b) Ariya

c) Hiba bas hart ul ewaz

d) Hiba bil ewaz

MUSLIM LAW

WILLS

 

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

2. 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 discharging his debts. Whether the son will succeed on ‘Wasiyat’, Discuss.

3. Explain the gift of Mushaa.

4. Where the legatee is one of the legal heirs of a testator, whether the consent of remaining legal heirs required? Explain.

5. Is a Juristic person also a juristic legatee? Explain in the light of the concept of Competency of Legatee.

 

LECTURE 8

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.
• 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 Tayabji, 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.

 

2. 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.

 

3. 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.

Tayabji, 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 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.

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.

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.

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.

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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.

 

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.

 

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.

 

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:

• the illness, must have caused death;
• 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) ;
• some degree of subjective apprehension of death in the mind of sick person ; and
• 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

PRE QUESTIONS

 

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.

 

2. 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.

 

3. 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.

 

4. 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.

 

5. 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.

 

6. 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.

 

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

(a)void

(b)valid

(c)voidable

(d) invalid

8. 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.

 

9. 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).

 

10. Which of the following bequests are valid

(a) bequest in future

(b) contingent bequest

(c) alternative bequest

(d) all the above.

PAHUJA LAW ACADEMY

PRE-EMPTION

MAINS QUESTIONS

 

1. Is the right of pre emption a right of repurchase from a buyer, or, is it an incident of property? Discuss, bringing out the true nature of the right of pre-emption.

2. What are the formalities that a pre-emptor must perform in order to succeed in a suit for pre-emption by him.

3. What are the consequences upon the death of Pre-emptor?

4. What are the legal effects of Pre-emption?

5. What are the grounds on which the right of Pre-emption becomes applicable to a person?

 

MUSLIM LAW

PRE-EMPTION

Introduction

Pre-emption (Shufa) is a right. Under this right owner of an immovable property is entitled to repurchase an adjacent property which has been sold to someone else. Exercising this right, the owner of an immovable property can compel the purchaser of his adjacent property to sell it to him at the same price at which it was purchased by the said purchaser. In other words, it is the preferential right of the owner of an immovable property, to acquire an adjacent property. The person who claims this right is called a pre-emptor or Shufee.

The origin of the law on pre-emption may be traced back to the traditions of the Prophet.

The Prophet is reported to have said:“A neighbour has a right, superior to that of a stranger, in the lands adjacent to his own”; and “the neighbour of a house has a superior right to that house and the neighbour of lands has superior right to those lands, and if he be absent, the seller must wait his return…”

 

Definition

Mulla defines pre-emption in the following words:

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

In Gobind Dayal v. Inayat Ullah, Mahmood, J. defined pre-emption in the following words:

     “Pre-emption is a right which the owner of certain immovable property, possesses as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer proprietary possession of certain other immovable property not his own, on such terms as those on which such latter immovable property is sold to another person.”

 

Essential Elements of Pre-emption

On the basis of the definitions given above, the ingredients of the right of pre-emption may be stated as under:

(i) Pre-emption is a right which is available to the owner of an immovable property.

(ii) Under this right, the owner of an immovable property can claim his substitution in place of the buyer of an immovable property which is adjacent to the property of claimant (pre-emptor).

(iii) The claimant of this right is entitled to re-purchase that adjacent property at the same price and on same conditions on which it was purchased by the buyer.

(iv) The right of pre-emption is in the form of a special privilege which is available for quiet enjoyment of an immovable property.

(v) Being a proprietary right, it can be enforced against any purchaser irrespective of religion, caste or creed.

 

Nature of the Right of Pre-emption

it may be said that the right of pre-emption is a right in rem, i.e. it can be claimed against all the persons who may purchase a property adjacent to the pre-emptor‘s property.

The nature of the right of pre-emption has been a subject of some judicial controversy. Fortunately, it was held by certain courts that pre-emption was a personal right of the claimant. Another view was that it was a proprietary right i. e. incident of property. However, now this controversy has been resolved. The settled law on the nature of the right of pre-emption is that it is purely a personal right.

Earlier in Bishan Singh v. Khazan Singh, the Supreme Court had approved the view taken in Gobind Dayal’s case and has held that the right is proprietary rather than personal.

But subsequently in Bhoop v. Matadin Bhardwaj the Supreme Court has held that the right of pre-emption is purely a personal right. According to the Apex Court this right may be founded in a statute or custom or personal law but in every case the sole object of this right is to keep away an objectionable stranger from the neighourhood.

 

Constitutionality of Pre-emption

Before Forty-Fourth Amendment

Before the Forty-Fourth Constitutional Amendment in 1978, there was Art. 19 (1)(f) in the Indian Constitution. Art. 19 (1)(f) provided that all citizens had a fundamental right to acquire, hold and dispose of property. Clause (5) of this Article provided the reasonable restrictions may be imposed on this right in the interest of general public. Although the right of pre-emption operates against the right of a person to acquire, hold and dispose of a property yet it was protected under clause (5) of Art. 19. Further, the right held constitutional whether it was exercised under some enactment or under Muslim personal law.

But in 1962, in the case of Bhau Ram v. Baij Nath, the Supreme Com overruled this view, and held that pre-emption only on the ground of vicinage was unconstitutional and cannot be enforced. The court held that unless the pre-emptor and the vendor are co-sharers or participators in some immunities, the right cannot be protected.

Accordingly, claim of pre-emption on ground of being co-share or participator common privilege, was constitutional but pre-emption only on ground of neighbourhood was unconstitutional.After Forty-

 

Fourth Amendment

However, pre-emption still continues to be a legal right. It is therefore, submitted that the reasonableness of the right of pre-emption can still be examined under Arts, 14 and 15 of the Constitution.

In Atma Prakash v. State of Haryana, the Supreme Court held that claim of pre-emption on ground of consanguinity i.e., on the ground that pre- emptor is co-sharer of the vendor, is ultra vires the Constitution.

While examining the constitutionality of Section 15 (1)(a) Thirdly, of the Punjab Pre-emption Act 1923 (as amended in 1960) which provided pre-emption to the co-sharers or kinsfolk of a vendor, the Supreme Court held that the claim of pre-emption on the ground of consanguinity is the relic of feudal past and is totally inconsistent with the constitutional scheme. The Court observed that the reasons which justified pre-emption in the past namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession, are totally irrelevant. The court held that the claim for possession by way of pre-emption only on ground that claimant had superior rights being father’s brother‘s son of the owner, cannot be sustained. Accordingly, Clause (1)(a) Thirdly of Section 15 of the Act was held to be unconstitutional by the Supreme Court because there was no reasonable classification’ of the co-sharers entitled to claim pre-emption. It is submitted that claim of pre-emption by a co-sharer as such, had not been declared unconstitutional.

 

Constitutionality of pre-emption on the basis of Supreme Court’s decisions may now be summarised as under:

(i) The statutory right of pre-emption only on the ground of vicinage is now unconstitutional (Bhau Ram).

(ii) Pre-emption on the ground of being co-sharer is constitutional provided the classification of claimant is not unreasonable.

(iii) It is necessary for a pre-emptor to satisfy the court that without claiming this right there would be personal inconvenience to him.

1. Razaq Saheb v. Ibrahim: Haji Md. Hussain

In this case the suit property was a house. There was a partition or house in three parts. One portion of the house was given to the brother and he remaining portion was divided equally among the two sisters. The two sisters sold their shares jointly. Upon this, the brother claimed pre-emption on the grounds of ‘vicinage’ (Shufa-i-jar) and ‘co-sharer’ (Shrifa-i-Sharik). Reiterating its views in Sant Ram and Baijnath Singh’s decisions, the Supreme Court held that the claim of pre-emption by the brother is void and it cannot be accepted under the law. It may be noted that claim of pre-emption was rejected by the Apex Court because pre-emptor could not establish personal inconvenience to him.

 

Whether Right of Pre-emption is Transferable? 

Being a personal right pre-emption is non-transferable right.

 

Classification of Pre-emptors: Who Can Pre-empt?

Once it is established that the law of pre-emption is applicable to a person (on the ground of equity, custom or statute) he may exercise this right. A person who is entitled to claim this right, is called a pre-emptor. Under Muslim law, pre-emptors are classified into three categories, given below, in the order of merit.

(1) The Co-sharers (Shafi-i-sharik)

The persons who are entitled to inherit the properties of a common ancestor are called co-sharers. Where the vendor and pre-emptor are co-sharer, the pre-emptor is called a shafi-i-sharik and has the preferential right of pre-emption against any other class of pre-emptors.

For example, brothers or two sisters are the co-sharers. If one of them sells his or her house, the other is entitled to claim pre-emption. Co-sharers are given preference against other categories of pre-emptors because they are common blood- relations tie related to each other on the ground of consanguinity. Therefore, if one co- sharer sells his share of property, his nearest blood-relation would be the person worst affected by substitution of a stranger. However, since the list of blood-relations may be very large, the category of consanguine (blood) relations entitled to claim preferential right of pre-emption must not be unreasonable.

In Atma Prakash v. State of Haryana, the Supreme Court held that if the classification of pre-emptors on the ground of consanguinity is ‘unreasonable’ the classification is unconstitutional. It is submitted that co-sharer as a class of pre-emptors, as such, has not been declared unconstitutional. Recently, in Krishna v. State of Haryana, the Supreme Court has held that right of pre-emption to co-sharers is valid and it is not violative of Articles, 14, 15 and 16 of the Constitution.

 

(2) The Participators in Immunities (Shafi-i-khalit)

Where two or more persons enjoy a common privilege e.g. a common right of way or, drainage or any other common right to use a property, they are participators in immunities. In Bhau Ram v. Baij Nath, the Supreme Court has held that participation in certain appendages e.g. a common entrance to the property or a common stair case, was a reasonable ground for the claim of pre-emption. However, preemption on the basis of participation exists only in the easements of way and water on private lands. It does not extend to any other easement such as easements of air and light.

 

(3) The Owners of Adjacent Properties (Shafi-i-jar).

The neighbours, who are owners of immovable properties, constitute a class of pre-emptors on the basis of vicinage. There is vicinage if two properties are adjacent to each other. Only the owners of properties may be pre-emptors, not their tenants. Moreover, the right of pre-emption on this ground exists only in respect of houses, gardens and small lands. Pre-emption on the ground of vicinage does not exist in respect of large estates e.g. Zamindaris or Villages.

However, as discussed earlier, after the Bhau Ram’s case in 1962, the claim of pre-emption only on the ground of vicinage has now been declared to be unconstitutional. This means to suggest that claim of pre-emption only on the ground that pre-emptor is owner of a property which is adjacent to the property sold, is not valid. In A. Razak Safari Saheb case stated in the preceding lines, the Supreme Court, reiterating its earlier decisions held that claim of pre-emption only on the ground of ‘vicinage’ or, being ‘co- sharer’ is now unconstitutional.

 

Classification of Pre-emptors in Order of Priority

That is to say if there are two or more pre-emptors of different categories, then the co-sharer would be preferred over a participator in immunity and a participator would exclude neighbour.

Pre-emptors of the same class are treated equal. No distinction is made between the pre-emptors of the same class; they are entitled to claim pre-emption simultaneously. Muslim law does not recognise degree of nearness in the same class of pre-emptors.

For example, A and B are two pre-emptors. A is a participator in immunities and is also living in neighbourhood but B is only a participator. Here both A and B belong to the category of shafi-i-khalit but A cannot claim any preference over B on the ground that he is also a neighbour. Accordingly, both of them would have equal rights and each of them would be entitled to re-purchase the sold property in equal shares (tie. half each). Similarly, a co-sharer who is neighbour of the vendor has no priority over another co sharer who is not a neighbour, both have equal rights of pre-emption.

 

Vendee himself as Pre-emptor

In certain cases the purchaser himself may be a pre-emptor in respect of the property sold to him. In such a circumstance, vendee (purchaser) would be subject to the same rules as any other pre-emptor. That is to say, if the vendee pre-emptor belongs to second or third class of pre-emptors, he would be excluded by a pre-emptor of class one. But, where he comes within the same class of pre-emptors, he would not be excluded by the other pre-emptors and is entitled to claim the right equally. For example, if the purchaser himself is a co-sharer then, together with other co-sharers he too is entitled to pre-empt. The property sold to him would be divided equally between them.

 

Shia Law

(a) Shia law recognises co-sharers (Shafi-i-Sharik) as the only class of pre-emptors. The other two categories namely, the participators and the neighbours cannot become pre-emptors.

(b) Under the Shin law, the co-sharers are entitled to pre-empt only where their number does not exceed two; if there are more than two co-sharers, the right is not available to any one of them.

(c) Under the Shin law, if there are two co-sharers, they are entitled to pre-empt only in proportion of their respective shares. Their right of pre-emption is simultaneous but not equal in magnitude.

 

For example, A and B are the two Shin co-shavers having 2/3 and 1/3 shares respectively. Upon the sale of pre-empted property, A is entitled to re- purchase 2/3 of the property whereas B is entitled to re-purchase only 1/3 of it.

 

Transfer of Ownership in Immovable Property

Essential condition for the claim of pre-emption is that (i) there is sale (transfer of ownership with money consideration) of immovable property and, (ii) the claimant himself is owner of an immovable property.

Pre-emption is available only to the owners of immovable properties. A person who is simply in possession of house, cannot claim pre-emption. Thus, a tenant (or lessee), usufructuary mortgagee or, any other person having merely the possession of an immovable property, has no right of pre-emption.

Recently, in Mohd. Noor v Mohd. Ibrahim, it was held by the Supreme Court that right to pre-emption is not available in the transfer of tenancy. A co-sharer can claim the right of pre-emption only if it is sale of ownership.

The claimant himself must be owner of the property in respect of which pre- emption is being claimed. The owner may claim pre-emption even if he is not in possession of the property. Where the owner of the property is a minor, the claim on behalf of such minor may be made by his guardian.

 

Difference of Religion

(a) Where the pre-emptor, seller and the purchaser, all are Muslims, the Muslim law of pre-emption is applicable.

(b) Where purchaser is a non-Muslim, the judicial opinion is conflicting. According to Allahabad and Patna High Courts, the purchaser need not be a Muslim. Accordingly, the Muslim law of pre-emption may be applicable against a non-Muslim purchaser. In other words, the right of pre-emption may be enforced by a Muslim pre-emptor against a Hindu or Christian purchaser. But according to Calcutta and Bombay High Courts, the Muslim law of pre-emption cannot be applied if purchaser is a non-Muslim.

(c) As stated above, where the pre-emption is claimed under custom or under an enactment, the claim is determined by uniform customary or statutory law, irrespective of religion of the parties. Where the basis of this right is contract, there too the religion of the parties is irrelevant; the claim of pre-emption is determined according to terms and conditions of that contract.

 

Difference of Sect

The pre-emptor, seller and the purchaser may all be Muslims but they may belong to different sects. Because of difference in their sects their personal laws may also differ. In such circumstance, following rules are followed:

(a) Where the pre-emptor and the seller belong to one sect, the rule of that particular school shall apply.

(b) Where the sect of seller and purchaser is different, the courts apply law of pre-emption of that particular school in which the right is narrower or limited. For example, if pre-emptor is Sunni and seller is a Shia the pre-emption under Shia law (which is narrower than Sunni law of pre-emption) would be applicable. The result is that if a Sunni pre-emptor claims pre-emption on the ground of vicinage or participation in immunities, his claim must fail because Shia law does not recognise pre-emption on these grounds.

 

ENFORCEMENT OF THE RIGHT

Pre-emption is a right. For getting the benefit of this right, it is to be enforced by the pre-emptor. Essential conditions for enforcement of this right are:

• The-re is sale or exchange of the adjacent property.
• The formalities i.e. the ‘three demands’ necessary for the enforcement of this right, are duly completed.

 

Sale or Exchange is Necessary

A pre-emptor can enforce his right only upon the sale or exchange of the adjacent property. If there is any other kind of transfer of property, there is no right of pre-emption. That is to say, if the property is transferred through gift, lease, mortgage, etc. the pre-emptor {who may be otherwise competent) may not enforce his right against the transferee. Moreover, a transfer of property takes place also under a will or through inheritance. But in such transfers too there is no pre-emption.

Mortgage: Mortgage is not a transfer of ownership; therefore, the right of pre- emption does not arise in the case of mortgage of the pre-empted property. But, when a mortgage has been foreclosed, the mortgagee gets an absolute interest or ownership; accordingly, the right of pre-emption may arise in the case of foreclosure of a mortgage.

 

Exchange: Exchange is transfer of ownership of a property in consideration of transfer of ownership in some other property. Therefore, the right of pre-emption is enforceable upon the exchange of an adjacent property. But, in the exchange of properties, if the parties have agreed that the exchange would be cancelled at the option of any one of them during their life, the transfer of ownership is not absolute and there is no pre-emption. However, where one of the parties to such conditional exchange dies without cancellation, the transfer becomes absolute and, the right arises.

Transfer in lieu of Dower: Transfer of property by a husband to his wife in lieu of unpaid dower, is a transfer of ownership for money consideration. Such transfer is a sale. Accordingly, the Allahabad High Court has held that the right of pre-emption arises when there is a gift of adjacent property by husband to wife in lieu of her unpaid dower But the Chief Court of Oudh has held that a gift in lieu of unpaid dower is Hiba-bil-Ewaz and not a sale, therefore, the right of pre-emption does no arise.

 

FORMALITIES: THE THREE DEMANDS

Muslim law prescribes certain formalities for the claim of pre-emption. No person is entitled to the right of pre-emption unless he observes these formalities strictly and at proper time. The right of pre-emption is a weak right because its operation hits directly against the very concept of ownership and freedom of contract.

In Mohd. Noor v Mohd. Ibrahim, the Supreme Court held that availability of is weak or archaic right has to be construed strictly. Muslim law of pre-emption is a law of technicalities and the availability of the right depends upon the full and complete observance of formalities. If the formalities are in any way incomplete or defective, the right of pre-emption is not available to the pre-emptor. The formalities for the claim of this right consist of three demands. The demand must be made by the pre-emptor step by step and, at proper time.

 

The First Demand (Talab-i-Muwasibat)

First demand is the initial step for enforcing the right of pre-emption. The first demand is immediate declaration by which the pre-emptor expresses for the first time his intention to enforce his right. Significant features of the first demand are given below:

(i)This demand is made only after lawful completion of the sale (or exchange) of me property. The first demand cannot be made before the sale is completed.

(ii)The first demand is to be made immediately after getting the information that sale is completed. Promptness is an essential element in the claim of pre-emption. Law requires that a pre-emptor must assert his claim without any delay.

(iii) It is not necessary that Talab-i-Muwasibat is made personally by the pre- emptor. It may be made by any person authorised by the pre-emptor. But, unless a person is specifically appointed by a pre-emptor for this purpose, he cannot place the demand lawfully even though he might be a close relative of the pre-emptor. Where the pre-emptor is a minor, this demand may be validly made by his (or her) guardian.

(iv) Talab-i-Muwasibat must be made in express words so that the intention of the pre-emptor is evidently clear. If it is not clear, the first demand is not valid and the claim fails. For example, where the pre-emptor filed a petition before the Sub-Registrar for staying the sale of pre-empted property it was held by the Court that filing of the petition was not any assertion of the claim of pre-emption, therefore, it was not Talab-I-Muwasibat. In Alimon Nessa v. Sudhir Chandra Day, the owner of a property offered the sale of his property to the owner of adjacent property. The owner of the adjacent land accepted the offer but in turn offered to purchase it on installment basis. The owner of the property did not agree to it and sold it to another person. Thereupon, the owner of the adjacent land claimed pre-emption and said that his offer to purchase the land on installment was his first demand. The Guwahati High Court held that owner of the adjacent land has no right of pre-emption because offer made by him to purchase the property in installments cannot be regarded as evidence of placing his first demand.

(v) The first demand may be made orally or, in writing. It may also be made through a letter.

(vi) For placing the first demand, presence of witnesses is not necessary under Muslim law. First demand without witnesses is valid and lawful. However there must be some evidence of the fact that this demand was made properly and in time.

 

The Second Demand (Talab-i-Ishhad)

After making the first demand the next step in the formality is to place the second demand. The second demand is repetition of the first demand, therefore, it is also called as the confirmatory demand or, Talab-i-Taqrir. The second demand is in the form of making the second declaration. This too may be made orally or in writing. It may also be made through a letter. Like first demand, the Talab-i-Ishhad may also be made by any other person authorised by the pre-emptor. The second demand too can be placed by guardian of the minor pre-emptor. Essential features of the second demand are given below:

(i) The second demand is effective only when the first demand was lawfully made at an earlier date.

(ii) There should be least practical delay in making the second demand. Although it is not necessary that second demand is made immediately after the first, yet, there should not be any unreasonable interval of time between the two demands.

(iii) In Talab-i-Ishhad, the pre-emptor must mention that he has already placed his first demand and now he is asserting the claim for the second time.

(iv) The second demand should be addressed either to the seller or, to the purchaser. If both of them are not available, the second demand should be addressed to the property sold. Where the second demand is addressed to the purchaser, it should be addressed to all the purchasers, if there are more than one. If a pre-emptor addresses his demand only to some of the purchasers and not to all then he can claim pre-emption only against those purchasers to whom he had addressed the demand. However, where the pre-emptor addresses the demand to seller of the property, all the purchasers are bound by the demand. It may be noted that where the demand is addressed to the property sold, it is not necessary that pre-emptor should enter into it. It is sufficient that pre-emptor makes the second demand near the premises, say house, and touches the walls of that house.

(v) The second demand must be made in presence of two competent witnesses. Without testimony of the witnesses, the second demand is not valid and the claim fails. According to Allahabad High Court it is not necessary that witnesses have been specially called to testify the demand. But the Patna and Calcutta High Courts have held that inviting the witnesses to bear testimony to this demand is necessary for its validity.

(vi) While making the second demand, payment of the price is not necessary. The pre-emptor need not tender the price to the purchaser then and there. It is sufficient that the pre-emptor has expressed his readiness and willingness to pay the price.

Note- In certain cases, the first two demands may be combined together. If, per chance, the pre-emptor gets the opportunity of having two witnesses and also the purchaser or seller (or the premises itself) he may make the declaration satisfying the requirements of both the demands.

 

The Third Demand (Talab-i-Tamlik)

After the first two demands, if the purchaser sells the property to him, the claim of pre-emption is materialised No further formality is required and the pre-emptor is substituted in place of vendee. In such a case, there is no need of any further formality.

But, if after the first two demands, the pre—emptor fails to re-purchase the property, then he has to take legal action. In other words, the third and the last step is to maintain an action in a court of law. Filing of a suit for the claim of pre-emption is known as the third demand. This is also termed as Talab-i Khusumat or ‘demand of possession’. The third demand is, therefore, not always necessary.

The suit must be filed within one year of the completion of sale. Where pre-emptor is a minor, the suit may be filed by his or her guardian But, the guardian too should file the suit within the period of limitation referred above. The pre-emptor claims re-purchase from the vendee, therefore, vendee is a necessary party in the suit for pre-emption. But, if the vendor (seller) is still in possession of the property sold, the suit must be filed against both.

In a suit for pre-emption, the pre—emptor must claim the whole of his interest. He cannot claim pre-emption only for a part of the property sold. For example, where some part of the preempted property is beneficial and the rest is useless, the pre-emptor cannot claim pre-emption only in respect of beneficial part. His claim must be for the whole property; there cannot be a partial claim. The suit must include the entire property. If the suit does not ask for the right of pre-emption in respect of entire property, the suit cannot be entertained by the court and, claim of- the pre-emptor is defeated. Malta explains the rule against partial pre-emption in the following words:

“The principle of denying the right of pre-emption except as to the whole of the property sold is that if the pre-emptor were allowed to split up the bargain, he would be at liberty to take the best portion of the property and leave the worst pan of it with the vendee”.

However, if under one sale-deed two or more properties have been sold, some of which are not subject to pre-emption, the pre-emptor is entitled to exclude these properties from his suit. Similarly, where the sale-deed is one but it contains two separate transactions of sale, the pre-emptor can pre-empt in respect of one property and exclude the other from his claim.

Another significant point to be noted in this respect is that the pre-emptor must have a right to pre-empt not only at the time of the sale of the adjacent land but also at the time of filing of the suit for pre-eruption and this right must continue till the decree in that suit is passed by the trial court.

 

Transfer of Property After The Demands

Once a pre-emptor has made the demands lawfully, he is supposed to have completed the formalities. If the purchaser transfers the property after valid demands by pre-emptor, the pre-emptor need not repeat his demands against the new transferee. The demands made against the original purchaser would operate also against the new transferee.

 

Death of Pre-emptor

Where a pre-emptor dies after making the first demand, his legal heirs are not entitled to make the second demand. That is to say, if a pre-emptor has made first demand but dies before making his second demand, the claim cannot be continued by his legal heirs and the right is extinguished.

Similarly, if the pre-emptor dies before he could file the suit, his legal heirs cannot file the suit of pre-emption in continuation of the first two demands made by the deceased pre-emptor.

When the pre-emptor dies during pendency of the suit for the claim of pre-emption, his legal representatives cannot continue the proceedings. But under the Shin law, if a pre-emptor dies during pendency of the suit, his legal heirs are substituted in place of the deceased pre-emptor. Death of pre-emptor, before he could get the decree, does not affect his claim of pre-emption. The Shafie law is the same as Shia law on this point.

Section 306, Indian Succession Act, 1925.– Under the provisions of Section 306 of the Indian Succession Act, 1925 if a pre-emptor dies during pendency of the suit, his legal representatives or heirs may be substituted in place of the deceased pre-emptor. According to Mulla, this section applies also to Muslims whatever be the sect to which the parties belong. Therefore if a pre-emptor dies during pendency of the suit, the suit may be continued by his heirs on obtaining letters of administration. In other words, even if a Sunni pre-emptor dies during the suit, the right is not extinguished and his heirs are entitled to be substituted in his place.

In Hazari v. Neki the Supreme Court has held that right of pre-emption under Section 15(i)(a) of the Punjab Pre-emption Act can be continued after the death of pre-emptor by the legal representatives brought on record.

 

LEGAL EFFECTS OF PRE-EMPTION

1. Once the right of pre-emption is established in favour of a pre-emptor, he is entitled to repurchase the property on the same terms and conditions on which it was purchased by the original purchaser. The original purchaser becomes the seller and pre- emptor becomes the buyer.
2. The pre-emptor gets ownership of the pre-empted property only after obtaining its possession. Unless the original purchaser gives possession to the pre-emptor, the title is not transferred to him. However, a pre-emptor may insist the original purchaser to hand over the possession only under a decree from court of law. The decree ordering for the delivery of possession to pre-emptor is passed under Order 20 Rule 14 of the Civil Procedure Code 1908. Such a decree specifies the date on which the property is to be transferred and also the date on or before which the price-money is to be paid. It may be noted that under the decree of pre-emption, the property vests in the pre-emptor from the date when he pays the purchase money to the original purchaser.
3. Between the original sale and re-sale of the property to the pre-emptor, the original purchaser is entitled to continue its possession. Accordingly, he is entitled to enjoy the rents and profits i.e. the usufruct of that property. But, after payment of the purchase money as directed under the decree, the ownership vests in the pre-emptor; therefore the pre-emptor may claim meme profit if the property continues to be in possession of the original purchaser.
4. It is significant to note that the pre-emptor does not get the title of the pre-empted property through original purchaser. He simply enters in the shoes of original purchaser in respect of all the rights and obligations of that property. Therefore, where the property was mortgaged, upon re-sale, the pre-emptor would get this property subject to that mortgage. Where the mortgagee has also the possession, the court may direct that the pre-emptor would get possession only after redemption of the mortgage.
5. A pre-emptor is entitled to get the property in the same state or condition in which it was purchased by the original purchaser. Where the original purchaser has made some improvements in the property between the original sale and its re-sale the pre- emptor must pay the cost of improvement. If the improvement is of temporary character, he may insist the original purchaser to remove it from the property. Where the property deteriorates and its market value is considerably reduced due to negligence of the buyer, the pre-emptor may waive his right and refuse to re-purchase the property.
6. Where a valid and complete sale has been made but, price could not be paid fully or, the price is to be paid on any future date, the pre-emptor‘s right of repurchase remains unaffected. In such a circumstance the pre-emptor can substantiate his claim and get the possession after paying full consideration to the vendor instead of paying to the vendee. The pre-emptor may pay the full price either immediately or on the stipulated future date. However, the pre-emptor is entitled to get the possession only after paying full amount to the vendor.
7. As discussed earlier, the right of pre-emption is not affected by any attempted transfer of pre-empted property. Transfer of the pre-empted property by original purchaser to any other person would not defeat pre-emptor’s right to get the property. Similarly, the death of original purchaser before re-sale to pre-emptor, also does not effect the pre-emptor’s right of re-purchase. The pre-emptor is entitled to re-purchase and get the possession from legal heirs of original purchaser.
8. The decree of pre-emption is non-transferable. A pre-emptor cannot transfer the decree of pre-emption to any other person; such transferee is not entitled to get possession on the basis of this decree. The reason is simple. The decree of pre-emption establishes the personal right of a pre-emptor. Being a personal right of the pre-emptor, it is non-transferable right.

 

EXTINCTION OF THE RIGHT

When the Right of Pre-emption is Lost?

The right of pre-emption is extinguished in the following circumstances:

(1) Acquiescence or Waiver: Where a pre-emptor waives his right, it is lost forever. A pre-emptor may waive his right by acquiescence i.e., by not asserting his claim. Upon the sale of the pre-empted property, a pre-emptor may either assert his right by making first and second demands or, may willingly forego his claim by not making any demand. Knowing that sale has been made, if a pre-emptor deliberately fails to observe the formalities or demands, he is supposed to have abandoned his right.

In Indira Bar v Nand Kishore, the Supreme Court observed that pre-emption is a weak right and in Muslim law it is settled law that the right of pre-emption is lost by estoppel and acquiescence.

 

(2)Misjoinder of Co-plaintiffs

Where a bona fide pre-emptor joins with himself such persons as claimants who are not entitled to pre-empt, the suit for pre-emption is dismissed and the pre-emptor’s right is extinguished. However, where the co-plaintiffs, joined by the pre-emptor, who are otherwise competent pre-emptors but could not make the required demands properly, ‘the suit is not dismissed and the pre-emptor’s right is not lost. But in such a situation the co—plaintiffs would not get the right of pre-emption.

 

(3) Forfeiture:

The right of pre-emption is lost by forfeiture in the following circumstances:

(i) The right of pre-emption is lost by forfeiture if a pre-emptor releases the right in consideration of something paid to him by the seller. However, under Hanafi law a pre-emptor cannot lawfully claim payment of the consideration for any such release whereas, under the Shia law, be may lawfully claim the consideration amount.

(ii) The right of pre-emption is extinguished if a pre-emptor transfers his own property (the subject of pre-emption) to any stranger. Upon transfer of property, the pre-emptor ceases to be its owner whereas, a pre-emptor must be owner of some immovable property.

(iii) Where the original sale is avoided or, it is impossible for the pre-emptor to carry it out, the re-sale to pre-emptor cannot take place and the right is lost. It may be noted that in the original sale, there may be an option (either with the seller or with the purchaser) to dissolve the contract of sale. Where the original sale itself has been dissolved under such option, the pre-emptor has no right to claim repurchase from the vendee. Similarly, if the price cannot be determined or in the case of exchange, if the consideration has perished, the pre-emptor cannot carry it out, therefore, his right is automatically extinguished.

(iv) Where the right of pre-emption may be claimed only by co-parceners, the right is forfeited upon partition amongst them.

(v) Lastly, the right of pre-emption may be forfeited if there is any statutory disability on the part of pre-emptor to repurchase the pre-empted property. In such a circumstance a pre-emptor who may otherwise be competent to enforce the right, is unable to claim the right because of statutory disability.

(4) Death of Pre-emptor:

As discussed earlier, if a pre-emptor dies after the first demand or, after the second demand or, during the pendency of the suit for pre-emption, his right is extinguished. However, under the Shia and Shafi laws, if “a pre-emptor dies during pendency of the suit, the right is not lost.

 

MUSLIM LAW

 

PRE-EMPTION

Pre-Questions

 

1. Gobind das v inayatullah is a leading case on…

a) Hiba

b) Ariya

c) Shufa

d) Ewaz

 

2. Right to pre-emption is ………… ..

(a) A right to re-purchase

(b) A right of substitution

(c) Both (a) and (b)

(d) None of the above

 

3. The right of pre emption is

a) A right to the thing sold

b) A right to the offer of a thing about to be sold

c) Both (a) and (b)

d) None of the above

 

4. The pre-emptor has ……………. .. right to follow the thing sold.

(a) No

(b) Primary

(c) Secondary

(d) None of the above

 

5. There is no right of pre emption

(a) In sadaqa

(b) In wakf

(c) In bequest

(d) All the above

 

6. Shufa entitles the pre-emptor in the shoes of the

(a) Seller

(b) Purchaser

(c) Creditor

(d) None of the above

 

7. According to Mulla, who among the following entitle to claim partition

(a) A co-sharer

(b) A participatory

(c) Owner of the adjacent property

(d) All the above

 

8. Can a child in mothers womb considers as heir

(a) Yes

(b) No

(c) Depends

(d) none

 

9. Holy Quran is related to

(a) prophet mohammad

(b) prophet ahmad

(c) prophet Ibrahim

(d) all above

 

10. prophet mohammad was born in

(a) 550AD

(b) 560AD

(c) 570AD

(d) 590AD

 

11. When the Right of Pre-emption is Lost?

(a) Acquiescence or Waiver:

(b) Misjoinder of Co-plaintiffs:

(c) Forfiture

(d) all the above

 

12. Pre- emptor deals with

(a) immovable property

(b) movable property

(c) both

(d) either of them

 

MUSLIM LAW

WAQF

Mains Question

 

 

1. Explain fully the concept of Waqf. Discuss the effects of the Mussalman Waqf Validation Acts of 1913 and 1930.

2. What is meant by Waqf? Is waqf valid without designating a Mutawalli? How can a Mutawalli be appointed and by whom?
3. Where the particular object laid down in a waqf fails because of some reason, will the waqf come to an end?
4.  Explain the powers and functions of Mutawalli?

 

 

MUSLIM LAW

WAQFS

Introduction

• Literal meaning of the word waqf is ‘detention’. In the language of law, waqf means detention of a property so that its produce or income may always be available for religious or charitable purposes.
• The institution of waqf was not known in the pre-Islamic Arabian society. In Quran too, we do not find any clear provision regarding waqfs.

 

Definition of Waqf

Section 2(1) of the Musslaman Waqf Validating Act, 1913, defines Waqf as under:“Waqf means the permanent dedication, by a person professing Mussalman faith, of any property, for any purpose recongnised by the Mussalman law as religious, pious or charitable.”

 

Characteristic Features of Waqf

(i) Perpetuity: In a waqf, the property is settled permanently so that its usufruct is always available for an indefinite period. There cannot be waqf for a limited period.

(ii) Non-Transferability: When a waqf is created, the property vests in the implied ownership of God. The result is that its property becomes non- transferable.

(iii) Irrevocability: Once it is created, the waqf cannot be revoked. As the property is deemed to vest in God, the waqif cannot revoke it subsequently.

(iv) Absoluteness: The settlement of the property in waqf is unconditional and absolute. A conditional or contingent waqf is void.

(v)Religious or charitable use of usufruct: The produce and benefits of the waqf property are utilised only for such purposes which are recognised as religious, pious or charitable under Muslim law.

 

ESSENTIALS OF A-VALID WAQF

The essential conditions for a valid waqf are given below:

(i) There must be a permanent dedication.

(ii) The founder of the waqf must be a competent person.

(iii) The subject-matter must be a transferable property.

(iv)The object of the waqf must be religious, pious or charitable, under Muslim law.

(v)The formalities required to constitute the waqf must be duly completed.

 

(1) Permanent Dedication.

Waqf is a transfer of ownership without any consideration made generally with religious motives. This gratuitous transfer is made in such a manner that after constitution of the waqf the substance or corpus of the property must be detained. In order to detain the property, it is dedicated to God.

By transferring the ownership to God, the dedication becomes ‘permanent. Under Muslim law, perpetuity is an essential condition for every waqf.

 

 (2) Competency of the Waqif: Who Can Create a Waqf?

The person who constitutes the waqf of his properties is called the ‘founder of waqf or, Waqif.

(a) Capacity to Constitute Waqf

Every Muslim, who is of sound mind and has attained the age of majority, has capacity to constitute a waqif .

Waqf by Non-Muslims.– Waqf is an institution of Muslim personal law; therefore, the dedicator is generally a Muslim. But a non-Muslim can also constitute a valid waqf. According to the Waqf Act, 1954, and the Waqf Validating Act, 1913 the waqif must be a person professing Islam. The dedicator must profess Islam i.e., believes in the principles of Islam; he need not be a Muslim by religion. Ameer Ali observes:

“Islam is not a necessary condition for the constitution of a waqf. Any person of whatever creed, may create a waqf but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic ‘doctrines.

 

 (b) Right to Make Waqf

The waqif must also possess the right to make the waqf. When a waqf is constituted there is a permanent transfer of ownership of the property. Therefore, the settlor must be owner of the property dedicated. If the subject matter of a waqf is not owned by the settlor at the time when the waqf is made, the settlor has no right to make waqf.

Amount of Property Dedicated.– A dedicator has right to constitute a waqf of his entire properties without leaving anything for his heirs. But, in the case of a ‘testamentary waqf, the founder has no right to constitute a waqf of more than one third of his properties. In other words, in the cases of inter vivos waqfs the founder is competent to constitute a waqf of his entire properties whereas, in respect of testamentary waqf the founder has no right to constitute waqf of more than one-third of his properties without consent of his legal heirs.

 

(3) Subject-Matter of Waqf: The Property

Any property, whether movable or immovable, tangible or intangible, may be the subject-matter of a waqf.

After 1913, the courts in India have followed the definition of waqf given in the Waqf Validating Act.

Under Section 2(1) of this Act, ‘any property’ may be dedicated in waqf. At present, a waqf may be constituted of both the kinds of properties, movables as well as immovable. Moreover, the expression ‘any property’ means not only tangible property but, it also includes intangible properties.

 

Doctrine of Cypres

The word cypres means ‘as nearly as possible.’ The doctrine of cypres is applicable also to waqfs.

 

(5)The Formalities: Modes of Creation

Formalities

Muslim law does not prescribe any special formality for the creation of a waqf. It may be made orally or in writing. Writing is not necessary even if the property dedicated is an immovable property of high valuation. Registration is not necessary for the validity of a waqf even though the property dedicated is immovable. As discussed earlier, even writing is not necessary. But, where a waqf of some immovable property is constituted through writing and the value of property is Rs. one hundred or more, the deed must be registered.

 

Delivery of Possession

A waqf may be lawfully constituted only by declaration. Delivery of possession and the appointment of mutawalli (manager of the waqf-property) is not an essential condition for its validity. In Garib Das v. Munshi A. Ahmad, the Supreme Court held that for the validity of a waqf it is not necessary that a mutawalli is appointed simultaneously. Mutawalli may be appointed ‘subsequently. The delivery of possession, actual or constructive, is also not necessary.

 

Shia law

Under the, Shia law a waqf cannot be created by mere declaration. Delivery of possession of the property is necessary for the completion of waqf. Therefore, the mutawalli must also be appointed simultaneously so that he may accept the property.

 

Modes of Creation

A waqf may be created by any of the following methods:

• By dedicating the property immediately i.e. inter-vivos.
• By dedicating the property under a will i.e. testamentary waqf; and
• By immemorial user.

 

THE MUTAWALLI

Mutawalli is manager of the waqf-property. After dedication, ownership of the property is vested in God and becomes His property. There must be some person or a human agency who could look after the dedicated property on behalf of God. The person who supervises or takes over the management of a waqf, is called the mutawalli. He is superintendent of the property. He also distributes the benefits of the property according to the directions laid down in the waqf. A mutawalli has no beneficial interest in the property. He is merely a servant of God, managing the property for the good of His creatures. Therefore, besides legal duties, a mutawalli has also the religious and moral obligation to take care of the waqf- property. Any mismanagement or negligence on his part may amount disrespect towards God. The office of a mutawalli is similar to that of a trustee, but his powers and functions are different.

 

Who Can Appoint Mutawalli?

A mutawalli may be appointed by any one of the following:

• by founder of the waqf,
• by executor of the founder,
• by a mutawalli on his death-bed,
• by the court, and
• by congregation.

 

Who May Be Appointed as a Mutawalli?

Any person who is, (a) of sound mind and, (b) has attained the age of majority, is qualified to be appointed as a mutawalli. Under Muslim law, the general rule is that soundness of mind and majority are the only qualifications for being a competent mutawalli.  Any person whether male or female Muslim or non-Muslim, may be appointed as a mutawalli.

 

Minor Mutawalli

Generally a minor cannot be appointed as mutawalli. But, where the office of mutawalli is hereditary and, after the death of last mutawalli the person entitled to succeed to that office is a minor, then the office may be held by that minor. The office of mutawalli is hereditary in following two cases : (a) Where the founder has laid down the line of succession in the waqf-deed and ; (b) Where the succession to this office is allowed by a local custom.

 

Females and Non-Muslim Mutawalli

Females and the non-Muslims are legally qualified to be appointed as a mutawalli. A mutawalli is primarily concerned with the superintendence or management of the waqf property. Supervision and management is a non-religious activity. Therefore, a female or a non-Muslim is not disqualified for discharging the functions of mutawalli. But, where the mutawalli is required to discharge also some religious functions, a female or a non- Muslim cannot act as mutawalli. Accordingly, in the following cases, a female and a non-Muslim cannot be appointed as mutawalli:

• Where the mutawalli is to act as Sajjadnashin or a spiritual head.
• Where the mutawalli is to act as imam, i.e. where he is required to lead the assembly of people for religious prayers.
• Where the mutawalli is to act as a Mulla. A land assigned to a Mulla as remuneration of his office, cannot be succeeded by any female successor.
• Where the mutawalli is required to give religious preaching i.e. where he has to act as Khatib.
• Where the mutawalli is required to act as mujavar of a Durgah.

 

Remuneration of Mutawalli

A mutawalli is entitled to get some remuneration in return of the services discharged by him. Generally, the founder himself provides for the remuneration of mutawalli.

 

Powers and Functions of Mutawalli

The mutawalli is manager of the waqf-property. His primary duty is to preserve the property like his own, but to manage and spend it like a servant of God.

 

Mutawalliship Non-Transferable

Possessory Right

In respect of the waqf-property, the mutawalli has only a possessory right. But, his right to possess the property is perfect and absolute against all other persons. The possession of a mutawalli can never be regarded as an adverse possession against the founder of the waqf. Therefore, if a mutawalli has been dispossessed by the founder or any other person, he is entitled to maintain an action in a court of law for getting back his possession.

 

Power of Sale and Mortgage

A mutawalli is not owner of the waqf-property. Therefore, as a general rule, he has no right to transfer the property by sale, exchange, gift, or mortgage. However, a mutawalli can transfer the waqf-property in following situations:

(a) Where the founder has expressly authorised the mutawalli to sell, exchange etc., or mortgage the property, or

(b) Where the mutawalli has taken a prior permission of a court of law for transferring the property.

 

Removal of Mutawalli

The court has unrestricted power to remove a mutawalli from his office in any of the following circumstances:

• where a mutawalli has become insolvent
• mismanagement of the waqf property due to negligence or dereliction of duty;
• failure of a mutawalli to perform religious services where. it is an essential part of his duties.
• where the mutawalli utilises the waqf-property or its benefits for his private use;
• where a mutawalli applies the income of the waqf-property against directions of the waqf deed.
• where a mutawalli otherwise exceeds his powers in dealing with the property, or
• where the mutawalli suffers from any physical or mental incapacity.

 

FAMILY WAQF : WAQF-ALAL-AULAD

A waqf may either be public or private. A public waqf is that in which the beneficiaries are public generally. Where the beneficiaries are only the members of the founder’s family or his descendants, the waqf is private. A private-waqf is also called as a family-waqf or a waqf-alal-aulad. Through a family-waqf, the founder may make provisions for the maintenance of his children and descendants of coming generations.

 

Law Under the Waqf Validating Act, 1913

The family waqf is now being governed by the Mussalman Waqf Validating Act, 1913. This enactment has removed the strict judicial conditions for the validity of a family-waqf. Under this Act, it is now lawful for a Muslim to constitute a waqf-al-al-aulad for the benefit of his family or children without any concurrent and substantial gift to charity. The relevant provisions regarding family-waqfs are given in Sections 3 and 4 of the Act. A brief account of these provisions may be stated as under:

 

Section 3 of the Act

Section 3 of the Act lays down that it shall be lawful for any person, professing Mussalman faith to create a waqf which in all other respects is in accordance with the provisions of Muslim law, for the following, among other, purposes:-

• for the maintenance and support wholly or partially of his family, children or descendants, and
• where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated:

Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.

 

Shia Law

The Waqf Validating Act, 1913 makes no difference between Shia and Sunni law in respect of family-waqfs. The provisions of the Act are equally applicable to both. But, Section 2(b) is applicable only to Hanafi Muslims. Accordingly, a waqf for the benefit of one’s own self may be created only by a Hanafi settlor. If the settlor is Shia, he cannot constitute any waqf for his own benefits such as for his own maintenance or for payment of his debts.

 

MUSLIM LAW

 

WAQF

PRELIMINARY

1. Wakf is a

(a) Central subject

(b) State subject

(c) Concurrent subject

(d) None of the above

 

2. A donates rupees thousand for purchasing copies of Quran to be distributed among poor. This is

(a) Sadaqa

(b) Wakf

(c) Hiba

(d) None of the above

 

3. In Wakf the ownership of property is transferred to ……………. ..

(a) Mahal

(b) Mutawalli

(c) Almighty God

(d) None of the above

 

4. Wakf created for the benefit of individual including the settler’s family relations is termed as ……

(a) Public Wakf

(b) Quasi public Wakf

(c) Wkfalal aulad

(d) None of the above

 

5. A pious dedication which is not permanent is

(a) Sadaqa

(b) Wakf

(c) Hiba

(d) None of the above

 

6. In Wakf the ownership of property is transferred to

(a) Mahal

(b) Mutawalli

(c) Almighty God

(d) None of the above

 

7. In Public Wakf… belongs to the God

a) Corpus

b) Usufruct

c) Both (a) and (b)

d) None of the above

 

8. Once Wakf is created

a) It cannot be revoked

b) It can be revoked by the Walkif

c) It can be revoked by Mutawalli

d) None of the above

 

9. Wakf must be perpetual. The statement is

a) True

b) False

c) Partly correct

d) None of the above

 

10. A Wakf property may be subject to

a) Sale

b) Mortgage

c) Hiban

d) None of the above

 

11. Is the office of Mutawalli, hereditary?

a) Yes

b) No

c) Depends

d) None of the above

 

12. The Wakf Act, 1995 came into force on

a) 1 January 1995

b) 1 January 1996

c) 1 April 1995

d) 1 April 1996

 

13. Which of the following Durgah is exempted from the application of the Wakf Act 1995?

a) Ajmer

b) Nizamudin

c) Ullal

d) None of the above

 

14. Which of the following sections of the Wakf Act, 1995 defines the term “Wakf”?

a) Section 2(p)

b) Section 2(q)

c) Section 2(r)

d) Section 2(s)

 

15. Wakf property shall be

a) Movable

b) Immovable

c) Either (a) or (b)

d) None of the above

 

16. Can a founder of a Wakf become the first Mutawalli?

a) Yes

b) No

d) None of the above

 

17. Can a Non-Muslim create a Wakf as per the Wakf Act 1995?

a) Yes

b) No

c) Depends

d) None of the above

 

18. A Wakif himself can be the beneficiary of wakf under….

a) Hanfi law

b) Shafii law

c) Shia law

d) Hanbali law

 

19. A man must necessarily be poor to have benefits of a wakf. The statement is

a) True

b) False

c) Partly correction

d) None of the above

 

20. The Manager of Wakf property is called

a) Wakif

b) Mutawalli

c) Pirene

d) Mujawar

 

MUSLIM LAW

LECTURE 11

INHERITANCE

 

 

1. Enumerate and comment upon the main difference between the Sunni and Shia rules of inheritance. Are these differences justifiable?

2. Write short but critical note on impediments to inheritance.

3. What are the general principles of succession under the Hanafi Law? Explain.

4. How the allotment of shares is made among collaterals under the Muslim Law of inheritance.

5. Write short note on classification of heirs under the Shia Law of Inheritance.

6. What are the rights of an illegitimate child against his putative Muslim father? Explain and refer to relevant case-law.

7. (a) Explain the doctrine of ‘Aul’.

(b) A Muslim male of Hanafi School dies leaving after him his father, his mother, two daughters and a son’s daughter. Determine the shares of the heirs in the property of the deceased.

8. Enumerate the various classes of heirs according to Sunni and Shia schools. A dies leaving his widow, mother, full brother. Divide his property according to Hanifi Law.

9. What do you mean by doctrines of ‘Aul and Radd’.

10. A Muslim died leaving behind 5 grand children, three children Gl, G2, G3 of his predeceased son Fazal, and two children G4 and G5 of his predeceased son Abdul. What is the quantum of share of each under the Sunni law and Shia law?

11. A Muslim, who died leaving behind her husband, made a will of her entire property in favour of her friend “F”. What is the maximum share to which ‘Fr is entitled to under Muslim Law?

 

MUSLIM LAW

INHERITANCE

 

• Succession to the properties of a deceased person may either be testamentary or intestate.
• 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.

 

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 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.

 

(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).

 

(4) Doctrine of Representation

• 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.
• Muslim law does not recognise the doctrine of representation.
• Under Muslim law, the nearer excludes the remoter.

(5) Per-Capita and Per-Strip Distribution

• Under Sunni law, the distribution of the assets is per-capita.
• 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.

 

(6) Female’s Right 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.

 

(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.

 

(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.

 

(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.

 

(12) Escheat

• Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat (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

(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 Ithna 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.
• 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.
• In 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.

 

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.

 

The Sharers: Class I Heirs

Relations by Affinity

I. 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.

 

II. 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.

 

IV. 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.

 

V. 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.

(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, consanguine or uterine.

(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.

 

VI. 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.

 

IX. 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.

 

X. 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.

 

XI.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.

Allot the shares 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.
• The propositus leaves behind her (a) husband and (b) father as her legal heirs.
• A Sunni Muslim dies leaving behind the (a) mother, (b) two sisters and (c) father.
• If the only heirs of a propositus are mother and father,

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.

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

 

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)

 

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.

 

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.

 

2. Son’s son h.l.s.
   • Nearer son’s son excludes the remoter,
   • Two or more son’s sons inherit equally,
   • Son’s daughter together with son’s son becomes Residuary but the son’s son gets double the share of Son’s daughter.

 

Ascendants

3. Father

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

 

4. True Grandfather

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

 

Collaterals : Descendants of Father

5. 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.

 

6. 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.

 

7. Consanguine Brother

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

 

8. 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.

9. Full Brother’s sons
10. Consanguine Brother’s son In default of the above mentioned
11. Full Brother’s Son’s son Residuaries they take entire residue
12. Consanguine Brother’s Son’s son in order of priority.

 

Collaterals : Descendants of T.G. F.

13. Full paternal uncle
14. Consanguine paternal uncle
15. Full paternal uncle’s son
16. Consanguine paternal uncle’s son
17. Full paternal uncle’s son’s son
18. 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)

 

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).

 

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.

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 Kindreds. 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.

2. 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.

3. Father

• Without children or lineal descendants, the father inherits as Residuary.
• With children, the father’s share is 1/6.

 

 

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

 

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

 

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 III. 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

 

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:

• the daughter, or
• the full sister, or
• 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

 

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:

• two or more full (or consanguine) brothers, or
• one such brother plus two such sisters, or
• 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.

 

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:

 

MUSLIM LAW

INHERITANCE

PRELIMINARY QUESTIONS

 

1. Child in the womb is regarded as

(a) Living person

(b) Non living person

(c) Entitled to inherit if born alive

(d) Both (a) and (c)

 

2. A person who causes the death of the Propositus is disqualified from inheriting the property of the deceased under

(a) Shia law

(b) Sunni law

(c) Both (a) and (b)

(d) Shia law only

 

3. Who is false grandfather

(a) Paternal grandfather

(b) Maternal grandfather

(c) Both

(d) None of the above

 

4. Under Sunni law husband gets _________ in the absence of child

(a) 1/2

(b) 1/4

(c) 1/5

(d) 1/6

 

5. Under Sunni law the share of two or more full sisters is _____ to be divided equally among them

(a) 2/3

(b) 1/2

(c) 1/6

(d) 1/8

 

6. What is the share of wife when there is a child or child of a son under Hanafi law?

a) One fourth

b) Half

c) One eighth

d) None of the above

 

7. Where is the share of single daughter when there is no son under Hanafi law?

a) One fourth

b) Half

c) One eighth

d) None of the above

 

8. What is the share of father when there is a son under Hanafi law?

a) One fourth

b) Half

c) One eighth

d) None of the above

 

9. The process by which the shares are reduced it is called

a) Doctrine of aul

b) Doctrine of Radd

c) Doctrine of representation

d) None of the above

 

10. The process by which the shares are increased it is called

(a) Doctrine of aul

(b) Doctrine of Radd

(c) Doctrine of representation

(d) None of the above

 

11. Shia law of inheritance is based as

a) Nasab

b) Sabab

c) Both (a) and (b)

d) None of the above

 

12. Life interest may be created by

a) Will

b) Family wakf

c) Family settlement

d) All of the above

 

13. The right of the owner of a property which Is in conjunction to another property to subsequent purchase of the adjacent property is called

a) Mushaa

b) Ariya

c) Shufa

d) Ewaz

 

14. In which section of the Hindu Succession Act, 1956 general rules of succession in the case of female Hindus is provided?

a) Section 15

b) Section 14

c) Section 18

d) Section 16

 

PAHUJA LAW ACADEMY

MUSLIM LAW

GUARDIANSHIP

MAINS QUESTIONS

1. Who is entitled to guardianship of a Muslim wife who has not attained the age of puberty?

2. Who are the guardian of a Muslim minor under Mohammedan law ?

3. Can a muslim in the exercise of hi right as a natural guardian of his children claim the custody of his 9 years old daughter from her mother? Explain in the light of the concepts of wilayat and hizanat under muslim law.

4. Why is natural guardian also called a De-jure or the legal guardian?

5.When is the Mother’s Right of Custody lost?

 

MUSLIM LAW

GUARDIANSHIP

 

Introduction

Law prescribes certain age-limit before which a person is said to be a minor. A minor has no capacity to understand the legal consequences of his or her activities. The legal position of a person who has not attained the age so prescribed, is called minority. The legal position of a person who has attained that age, is called the age of majority.

Under Muslim law, the age of majority is regulated by two systems: (1) the classical Muslim law and (2) the statutory law(Indian Majority Act, 1875).

Under the classical Muslim law, a person is said to be minor if he or she has not attained the age of puberty. The age of puberty is fifteen years. But, as already discussed, fifteen years is the age of majority only for marriage, dower and divorce. Thus, for purposes of marriage, dower and divorce, a Muslim who has not attained the age of puberty is called a minor.

A minor is supposed to have no capacity to protect his or her own interests. Law therefore, requires that some adult person must safeguard the minor’s person or property and do everything on his (her) behalf because such a minor person is legally incompetent.

A person who is authorised under the law to protect the person or property of a minor, is called a guardian. Under Muslim law guardians are required for purpose of marriage, for protecting the minor’s person (including the custody of the minor) and for protecting the minor’s property.

 

CLASSlFlCATl0N OF GUARDIANS

Muslim law recognises following kinds of guardians:

• Natural or legal guardian.
• Testamentary guardian,
• Guardian appointed by Court or statutory guardian, and
• Defacto

 

Natural Guardians

Natural guardian is a person who has a legal right to control and supervise the activities of a child. Father is recognised as the natural guardian of his child under all the schools of Muslim law.

The father’s right to act as guardian of the minor is an independent right, and is given to him under the substantive law of Islam.

Natural guardian is also called Dejure or the legal guardian. But in the absence of father, the father’s executor may also act as legal guardian. Executor is a person who is appointed by father or grandfather to act as guardian of his minor child on his behalf. In the absence of father or his executor, paternal grandfather or paternal grandfather’s executor acts as legal guardian.

Thus, the natural (or legal) guardians of a minor, in order of priority, are as under:

• Father
• Executor of father.
• Paternal Grandfather.
• Executor of paternal-grandfather.

Under Muslim law, in the absence of any of the above mentioned persons, nobody else is recognized as the natural or legal guardian of a minor.

Shia Law: According to Shia law, in the absence of father only paternal grand-father may act as natural or legal guardian. Thus, in presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a child.

 

Testamentary Guardians

Testamentary guardian is a person who is appointed as guardian of a minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a testamentary guardian. No special formality is required for the appointment of a testamentary guardian but, as is obvious, such a testamentary guardian must be competent to act as guardian. That is to say, he should be adult and sane person. A non-Muslim and a female may also he appointed as a testamentary guardian.

Shia law:  A non-Muslim cannot be appointed as testamentary guardian.

 

Guardians Appointed by Court

In the absence of a natural and testamentary guardian, the court is empowered to appoint a guardian for the protection of the minor’s person or property or for both. The appointment of guardians by court is governed by the Guardians and Wards Act, 1890 which is applicable to all the Indians irrespective of their religion. In India, the courts appoint the guardians for minor’s person or property under this Statute. Therefore, such guardians are also called Statutory Guardians.

It may be noted that no provision has been made under this Act for the guardianship for marriage. The result is that except the guardians for marriage, the guardians for a Muslim minor’s person or property may be appointed by a court of law.

In some cases, there may be a conflict between Muslim personal law and the Guardians and Wards Act. In cases of such a conflict, provisions of the Guardians and Wards Act will prevail over the provisions of Muslim personal law. Court here means court of the District Judge.

The courts are empowered to appoint the guardians for a minor upon an application. Such application may be made by any of the following persons:

• any person desirous of being or claiming to be the guardian of the minor, or
• any relative or friend of the minor, or
• the Collector of the district in which the minor generally resides.

 

lf the court is satisfied that it is for the welfare of the minor that an order should be made, then it may make an order-

• appointing a guardian of minor’s person or property, or both, or
• declaring a person to be such a guardian?

Section 17(2) of the Act provides that in considering the welfare of a minor, the court shall have regard to the age, sex and religion of the minor; the character and capacity of the proposed guardian and his nearness of kin to the minor; the wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property. Moreover, if the minor is old enough to form an intelligent preference the court may consider that preference too.

It may be noted that although the Act lays down a uniform rule for the guardianship of all the persons in India irrespective of religion, yet the religion and the personal law of the minor may be taken into account while appointing a guardian.

In Smt. Farzanabai  vs. Ayub Dadamiya, the Bombay High Court observed that under Guardians and Wards Act, the personal law of the parties is a factor which is to be kept in mind by courts subject to the interest of the child. However, as the central idea should be the welfare of the minor; therefore, the rules of Muslim personal law may be considered by the court only where they are conducive to his welfare.

 

De-facto Guardians

A de facto guardian is a person who is neither a legal guardian nor a testamentary or statutory guardian, but has himself assumed the custody and care of a child. According to Tyabji a de fecto guardian means an unauthorised person who, as a matter of fact (defacto), has custody of the person of a minor or of his property. It may be said that a defacto guardian is a person having no authority for the guardianship but under the circumstances has taken the responsibility to act as the guardian of a minor.

 

POWERS AND FUNCTIONS OF GUARDIANS

The powers and functions of the guardians in respects of minor’s person, property and for marriage are different. Therefore, the powers and functions of the guardians are discussed in the following lines separately in respect of (i) the person of a minor, (ii) the property of a minor, and (iii) the marriage of a minor.

 

GUARDIANSHIP OF THE ‘PERSON’

Guardianship of the minor’s person means an overall supervision of the minor’s personality. It means care and welfare of the child including the liability to maintain it. It is more than simply the custody of the child upto a certain age.

Under Muslim law, ‘guardianship of the minor’s person’ is called Wilayat-e-nafs and the ‘custody of the minor’ is called Hizanat. They are sometimes taken to mean the same thing. But, under Muslim law, these two aspects of the guardianship are different and are governed by distinct rules. The guardianship of a child’s person means overall supervision of the child during its minority. Father (or his executor) or in his absence, the paternal grandfather, being the  natural guardian, are incharge of the minor‘s person.

On the other hand ‘custody of the child’ (Hizanat) simply means a physical possession (custody) of the child upto a certain age. Although mother is not natural guardian under Muslim law, but she has a right to the custody of her child till the child attains a specific age. But, father or the paternal grandfather has a control over the person of the minor during the whole period of minority.

Tahir Mahmood states thus:”The guardianship of person in relation to a child belongs primarily to its father, the mother’s being only a pre-emptive right to keep the father away for a legally  prescribed period only from a particular aspect of guardianship of person, namely,  ‘ the custody and physical upbringing of the child”.

It may be said therefore, that mother has a right to the custody of her child for some time, because except her, no one else can nurse and handle a child during its infancy. But her custody of the child is subject to the supervision of the father who, as a legal guardian, is under an obligation to provide means for upbringing of the child.

 

Mother’s Right of Custody (Hizanat) of the Child

Under all the schools of Muslim law, the general rule is that mother is entitled to the custody (Hizenat) or the physical possession of her child upto a certain age. This rule is based on the presumption that on account of her peculiar relationship with the child, she is obviously the best person to give that natural love and affection which a child requires during its infancy including its dependence for feeding. Nature itself has given to the mother the custody of her child’s embryo even before it comes in the worldly existence.

 

Where the child is a son, the mother is entitled to his custody till he attains the age of seven years. Where the child is a daughter the mother’s right to the custody continues till the daughter attains puberty (fifteen years).

It may be noted that mother is entitled to the custody of her child (under the age of seven years or below puberty, as the case may be) even if she has been divorced by the husband or has become widow provided she remains unmarried.

In S. Rehan Fatima vs. Syad Bdinuddin Perviz, the dispute was regarding the custody of a child aged three years six months. The Andhra Pradesh High Court held that under Muslim law, the mother’s right to the custody of her child continues even after the dissolution of her marriage by Talaq. The court observed further that in absence of any other alternate arrangement, under the Guardians and Wards Act too her right to the custody of child continues even after the divorce.

Being a legal privilege, the mother‘s right is not lost even if she ceases to be a Muslm. In Zaynab vs. Md. Ghouse, the Madras High Court has held that conversion of the mother to any other religion does not deprive her of the right of Hizanat. In this case, the court allowed to the mother the custody of her child although she had become a Christian. It was also observed by the court that even if the mother was living separately, she would not lose her right to the custody of her child.

As discussed earlier, the mother is given the custody because of her typical relationship with the child therefore, she cannot surrender it to another person. Poverty or inability of the mother to maintain the child can neither deprive her of the right to custody nor can she surrender this right on the ground of her poverty. In case where the mother is poor, the father has an obligation to provide for the child during the custody of its mother.

 

When Mother’s Right of Custody (Hizanat) is Lost?

A mother is considered to be disqualified for the physical possession of the infant, and her right to the custody is lost in the following circumstances:

• Where the divorced or the widowed mother, having custody of a child, has remarried another husband.
• Where the mother leads an immoral life or is of had character or is otherwise found guilty of such conduct which is against the interest of the child.
• Where she is unable to take proper care of the child. -In certain cases, the mother’s inability to take proper care of her child might be due to her own self-created problems for example, over-business in her career or, her modem style of life. According to Fyzee: the ancient doctors would obviously have frowned upon the modern society mother who goes out for bridge (playing Cards) or social service in the morning, has lunch with a friend and comes home late in the evening after a dance at the club”.

In the absence of mother, or where she is disqualified on account of the abovementioned grounds, the following female relations of the child are entitled to the custody, in the order of priority given below:

• Mother’s mother;
• Fathers mother;
• Mother’s grandmother;
• Fathers grand mother
• Full sister
• Uterine sister;
• Full sister‘s daughter;
• Uterine sister’s daughter;
• Full maternal aunt;
• (it) Uterine maternal aunt, and
• Full paternal aunt.

 

Shia Law.-Under the Shia Law, a mother is entitled to the custody of her infant son only upto two years, and of her daughter upto the age of seven years. lf the mother dies before the son attains two years, or the daughter attains seven years, the custody is to be given to the father. In the absence of the father, the father’s father is entitled to the custody of the infant child.

 

Father’s Right of Custody (Hizanat) of a Child

Father is entitled to the custody at the following two stages of the child’s minority-

• In respect of a minor boy under the age of seven years, and a girl under puberty, the father is entitled to the custody of the child only in the absence (or disqualification) of mother and other -female relations of the child.
• In respect of a boy over the age of seven years and an unmarried girl over the age of puberty (fifteen years) the father is entitled to the custody of the child as a natural guardian till the child becomes adult, e.g.; attains the age of eighteen years.

The minority of a child for purposes of its custody by father is divided in two stages. The first stage of minority is upto the age of seven years in the case of male child, and upto puberty where the child is female. The second stage begins after the age of seven years till the age of eighteen years in case of a male, and after puberty upto eighteen years in the case of a female child, provided she remains unmarried. During the first stage, the custody primarily belongs to the mother and during the second stage it belongs to the father. Thus, father is entitled to the custody of a minor child in two circumstances:

First, where the child is within the age limit, in which mother or female relations are legally authorised to have the custody, but they are either disqualified or not available.

Secondly, after the age limit beyond which the mother or other female relations have no right to the custody of a child.

It is to be noted that in the circumstances mentioned above, the father is entitled to have the custody and this right is available to him because he is regarded as a natural guardian under the Muslim personal law. The court has no power to appoint any other person to have custody of a child where the father is alive except where the father is found by the court to be unfit or unsuitable for this purpose. In siddiqunnisaz vs. Nizamuddin, it was held by the Allahabad High Court that under Muslim law, the father status is the creation of law, not requiring even a declaration; therefore, in presence of a father, who is not unfit for guardianship, the court cannot appoint any other person as guardian. The disqualification of a father due to which he is deemed to be unfit for having the custody of a child is a matter of fact to be decided by the court. In deciding Guardians and Wards Act, 1890, in the light of the interests and welfare of the child. However, merely a second marriage by father has not been regarded as a disqualification of the father for having the custody of a child by the first wife.

In the absence of the father, the custody of a child belongs to the paternal male relations in order of priority given below:

• Nearest paternal grandfather
• Full brother;
• Consanguine brother
• Full brother’s son;
• Consanguine brother’s son;
• Full brother of the father;
• Consanguine brother of the father;
• Son of father’s full brother; and
• Son of father’s consanguine brother.

But the custody by the above mentioned male relations is subject to a condition that no male is entitled to custody of an unmarried girl unless he stands within the prohibited relationship to her. For example, a male child may have the custody of a son paternal uncle’s son) but a female child cannot be put in his the prohibited relationship and their marriage is possible under Muslim law. The purpose of this rule is to avoid the possibility of any exploitation of the custody of an unmarried girl.

Father, or in his absence the paternal grandfather, has a right to appoint a testamentary guardian of the minor’s person, provided the father himself was entitled to the custody of that child at the time of execution of the will.

In the absence of the above-mentioned male relations and any testamentary guardian, or here they have been found unfit, the court is empowered to appoint a guardian for the custody of the child under the Guardians and Wards Act, 1890.

 

Custody of Illegitimate Child

Guardianship of an illegitimate child belongs to its mother. Therefore, only she is entitled to have the custody of such a child as a natural guardian. In the absence of the mother, her substitutes are entitled to the custody of an illegitimate child. Putative father of an illegitimate child is not regarded as its natural or legal guardian.

 

Custody of Minor Wife

Where a Muslim girl has been married before attaining the age of puberty, the custody of the girl is not given to her husband till she attains the age of puberty (fifteen years).

In Nur Kadir v. Zuleikha Bibi,

it was held that under Muslim law, the mother or in her absence a substitute of the mother, is entitled to the custody of a minor wife against the husband. Thus, the custody of a Muslim girl, under age of puberty, belongs to her mother and not to her husband. But, under Section 19 of the Guardians and Wards Act, 1890, the husband is the guardian of his minor wife and the court cannot displace him from this position unless he is found to be unfit. Thus, there is a conflict between the provisions of this Act and the rules of Muslim law. However, the rule of Muslim law that the custody of a minor wife (under the age of puberty) belongs to the mother and not to the husband, may be reconciled by considering husband as ‘unfit’ under Section 19(b) of this Act for custody of his wife until she attains puberty.

 

Guardianship for marriage

Marriage of a boy or a girl under the age of puberty, is not valid unless it is contracted by a marriage-guardian.

A ‘marriage-guardian’ is a person who, under Muslim law, is authorised to contract the marriage of a minor. This authority is termed as ‘guardianship for marriage’ (Wilayar-e-Nikah or Wilayat-e-Jabar). Guardianship for marriage is different type of guardianship and must be distinguished from the guardianship of the person or the guardianship of the property.

A person appointed as guardian of the person or the property of a minor does not become a guardian also for contracting the marriage.

The provisions of the Guardians and Wards Act, 1890,

Apply only to the guardianship for the marriage. Therefore, the guardianship for the marriage is governed only by the pure Muslim law. A marriage-guardian is required to contract not only a minor’s marriage, but also that of an insane boy or girl of any age. It is to be noted that under Muslim law, the marriage-guardian has a right to confer the status of marriage on the minors against or without their consent.

Fyzee observes thus:

“It is the substantive law itself that declares who for the purposes of marriage, possesses the putria porestas; the court cannot appoint a wali (marriage-guardian) although in some cases, the kazi (or the court) himself could act as a marriage-guardian.

 

Who are the Marriage-Guardians?

The following persons, in the order of priority, are entitled to act as guardians for the marriage of a minor:

• father;
• paternal grand-father, how high soever;
• brother or other male members of the fathers family, one after the other in the line of agnatic heirs;
• mother;
• maternal relations, such as maternal uncle (Mama) or maternal aunt (Mausi) and other maternal relations within prohibited degrees, and in absence of the maternal kindreds,
• the Kazi or the Court.

Shia Law.- According to Shia law, the only guardians for the marriage are (1) the father, and (2) the paternal grandfather.

The order of priority of the above-mentioned persons entitled to act as marriage guardians, must be followed strictly. A marriage-guardian, who is entitled to contract the marriage of the minor, has no authority to change this order or to appoint any other person under a will to act as a marriage-guardian for that minor. A nearer guardian excludes the remoter, and in presence of a nearer guardian the remoter guardian cannot contract the minor‘s marriage. Where a nearer guardian of a minor is alive but the marriage is contracted by a remoter guardian without the approval of the nearer the marriage is void and even the consummation cannot validate such marriage.

In Abdul Ahmad v. Shah Begum, a person contracted the marriage of a minor girl by declaring himself as her guardian (wali). He was not a ‘marriage guardian. It could also not be established that he had ever been given any such authority by a competent marriage-guardian.

The Jammu -Kashmir High Court held that this marriage was void ab anitio and for annulment of this marriage repudiation of marriage by the girl through her right of option of puberty is not needed. However, it a marriage has been contracted by a remoter guardian out of his turn, the marriage may be validated by a subsequent ratification by the proper marriage-guardian.

Where a proper marriage-guardian, say father, is incompetent by reason of mental incapacity to exercise his right of Jabar, the guardian neat to him may exercise that right. Similarly, when the father is at such a distant place that from there it is difficult for him to act as guardian, the guardian nest in order can lawfully contract a child in marriage.

 

Apostasy of Marriage-Guardian

It is not clear whether a Muslim father may lawfully act as a marriage-guardian after renouncing Islam. Under Muslim law if the marriage-guardian renounces Islam, he has no right to contract the marriage of the minor.

In the matter of Mohin Bibi, the Bombay High Court has held that a non-Muslim father has no right to act as a marriage-guardian. The facts of this case were that a Shia female married a Muslim husband and a daughter was born to them. After sometime, the husband converted to Jewism, and renounced Islam. The daughter remained with the mother, who later on married her to a Shia Muslim acting as the marriage-guardian for her daughter. The husband (who had become Jew) contended in an application that the marriage contracted by the mother was not valid because he has not given consent to it. It was held by Macpherson, J. that “Under the Mahommedan Law, an apostate is not entitled to exercise the right of assenting to the marriage of his children, who have been contracted by the guardian next in order to him; and that, therefore, the marriage of the applicant’s daughter was valid without his assent.” However, it is difficult to reconcile this decision with the provisions of the Caste Disabilities Removal Act 1850 and all that can be said in this regard, is that the law on this point is not certain.

Marriage- guardianship or the right of Jabar comes to an end as soon as the child, whether male or female, attains the age of puberty. But under the Shafie and the Maliki schools, the right of Jabar in the case of a female child continues till she is married.

 

GUARDIANSHIP OF THE PROPERTY

Legal guardians of the miner’s property

Under Muslim personal law, the following persons, in the order of preference, are recognised as the legal guardians of a minor‘s property

• father;
• executor appointed by father under a will;
• paternal grandfather;
• executor appointed by paternal grandfather under a will.

The guardianship of a minor’s property belongs primarily to the father who is a natural guardian. After his death it belongs to the executor appointed by the father under a will. Such an executor, under the authority of the father’s will, acts as a legal guardian of the minor’s property.

‘Executor-guardian’ is also termed as testamentary guardian because he is appointed under the father’s will. Where there is no will appointing any person as an executor (or where the executor, also dies) then, after the father’s death, the paternal grandfather is entitled to the guardianship of the minor’s property as a legal guardian. After the death of the paternal grandfather, his executor if any acts as guardian of the minor’s property. In the absence of father or his executor, paternal grandfather or his executor, guardian for the property of a minor is appointed by the court under the Guardians and Wards Act, 1890.

Thus, we find that under Muslim law, the only relatives entitled to act as guardians of a minor’s property, are the father and the paternal grandfather. No other relation, such as, the mother, brother or uncle of the minor is given this status. However, the father and the paternal grandfather have authority to appoint any person as their executors who may, as testamentary guardians, exercise the right of guardianship of the minor’s property. The mother, brother, uncle, etc., therefore, may act as guardians of the property of a minor only if they have been appointed testamentary guardians either by father or by grandfather.

The mother or other near relations of the minor have no right of their own to act as guardians of the minor’s property.

 

Powers of the Legal Guardians

The guardian of the property of a ward is bound to deal with it as carefully as a man of ordinary prudence would deal with his own, and subject to the provisions of the Guardians and Wards Act, 1890, he may do all reasonable and proper acts for the realization, protection or benefit of the minor‘s property. The powers of a legal guardian to deal with the properties of a minor depend upon the nature of the property i.e. whether the property is movable or immovable, it also depends upon the nature of the transfer of property by such guardian i.e. whether it is a sale, mortgage or lease etc. It may be noted that under Muslim law, the guardians power to transfer the movable property of the minor is wider. In respect of an immovable property, the legal guardian has a very limited right of transfer.

 

Transfer of Immovable Property by Legal Guardians

Keeping in view the Muslim personal law and also the provisions of the Guardians and Wards Act, 1890, the courts in India have laid down specific rules relating to guardian’s powers over the minor’s immovable properties. The extent and the legal limits of a guardian’s powers of disposition of the minor‘s immovable properties, are given below.

Sale.— A legal guardian has no authority to sell the immovable properties of his ward. But, in the following exceptional circumstances the legal guardian is authorised to sell the immovable properties of the minor—

• Where by sale, the guardian can get double the value of the property.
• Where the sale is absolutely necessary for the maintenance of the minor i.e. there is neither any movable property nor any other alternative for the livelihood of the minor.
• Where the sale is necessary for the satisfaction of a debt incurred by the deceased from whom the minor inherited the property.
• Where there are some general provisions in the will of the testator such as the payment of legacies, which cannot be complied with without sale of the property.
• Where the property ceases to be a beneficial property, i.e. its expenses such as taxes or its maintenance charges, exceed the income.
• Where the property is in the hands of an usurper (who has wrongfully assumed its possession) and the guardian has a reasonable belief that the property cannot be recovered from such person.
• Where the property is decaying or is being destroyed, or there is an imminent danger of its being lost.

It is evident from the preceding lines that the guardian’s power of disposing off the minor’s property by sale is very limited.

According to Ameer Ali, guardian may not sell his ward’s real (immovable) property into his own hands or into the hands of arty one connected with him under any circumstances. This is obvious, be-cause the guardian-ward relationship is of utmost confidence and there should be no room for any doubt regarding the integrity of the guardian.

Mortgage.— The legal guardian’s right to mortgage the minor’s properties is the same as that for a sale. A guardian is not authorised to mortgage his ward’s properties except in the interest of the minor or in the interest of the property itself.

Lease.— The guardian’s power to grant lease of the minor’s property is also subject to condition that it must be for the advantage of the minor or is otherwise urgently required. The legal guardian is, therefore, authorised to lease out the property only if it is for the benefit of the ward. However, it is submitted, the guardian’s power to lease out the minor’s property does not extend beyod the minority of the ward, therefore, the lease must be for a term not exceeding the minority.

 

 

Transfer by Guardian is Voidable

Transfer of property by a legal guardian against the provisions of the Muslim law is not void but only voidable at the instance of minor on attaining puberty. But where the transfer is according to the rule of Muslim law, it is binding on the minor and on attaining majority he cannot ignore the liability.

For example, if a minor possesses small items of several properties, the total income of which is not adequate to meet his expenses the legal guardian can lawfully sell any one item of the property for his maintenance and such a transfer would be binding on the mirror.

 

Transfer of Movable Property by Legal Guardians

Under Muslim law, the legal guardian has right to deal with the movable properties of his ward. The guardian is authorised to sell, pledge or pawn the movable property of the minor, provided it is urgently required in the interest of the minor e.g. for minor’s fooding, clothing or nursing etc. According to Ameer Ali a guardian is allowed to borrow money for the support and education of his ward, even if he has to pledge the minor’s property.

 

Right to enter into contracts

Formerly, the Privy Council’s view was that a legal guardian was competent to enter into a contract on behalf of a minor for purchase of an immovable property. Such a contract, it was observed by the Court, would not be binding either on the minor personally, or upon its estate.

But later on in the case of Sri Kakulam vs. Kurra Subba Rao, the Privy Council held that a dc jure or legal guardian is empowered to enter into contracts on behalf of the minor and such contracts are binding on the minor as well as on minor‘s estate provided such contracts were for the benefit of that minor. The court further observed that such a contract can be enforced against the minor and the minor too can specifically enforce the contract against any other party. The Indian law on this point is now well settled and the courts have recognised the guardians authority to enter into contracts for the benefit of a minor.

Amir Ahmad vs. Meer Nizam Ali, the High Court of Hyderabad has held that a de jure Muslim guardian has power to bind a minor by personal contract, even if the contract is for the purchase of an immovable property subject to the condition that such a contract is necessary for the benefit and welfare of the minor.

However, according to Tyabji and Malla, the guardian is not competent to bind a minor or his estate by an agreement for the purchase of immovable property. Such agreement, according to these jurists, would be void.

 

Exercise of pre-emption

A legal guardian is competent to exercise the right of pie-emption on behalf of the minor. The guardian is also empowered to refuse to exercise the right of pre-emption if it is in the interest of the ward.

 

 

Acknowledgement of Debt

The legal guardian is empowered to acknowledge a debt on behalf of his ward so as to give the creditor a fresh start. Acknowledgement of a debt by the guardian is recognised under Muslim law because it is in the interest of the minor to get the debt acknowledged so that he may get further time to pay it to the creditor.

 

Testamentary Guardians of Minor’s Property

As discussed earlier, the father and die paternal grandfather have right to appoint executors by a will to discharge the functions of the natural guardians after their death. Such executor-guardians are called testamentary guardians because they get the authority to act as natural guardians under a testament (will) from the father or paternal grandfather. As such, testamentary guardian too can act as legal guardian under Muslim law. In so far as the powers of the testamentary guardians to deal with the minor’s properties are concerned, it is same as that of a father or paternal grandfather. As a matter of fact, the testamentary guardians are supposed to be the substitutes of natural guardians.

 

Guardians of Property Appointed by Court

In the absence of the legal guardian i.e. father, paternal grandfather and their executors (testamentary guardians), the guardians for the property of a minor is appointed by the Court. We have already discussed the rules relating to the appointment of such guardians. A guardian by court is also termed as Certificated Guardian.

 

Powers of Testamentary Guardians

The powers and the duties of a guardian appointed by court is governed by the provisions of the Guardians and Wards Act, 1890.

 

Transfer of Immovable Property

Under Section 33 of this Act the court has authority to define, restrict or extend the powers of a guardian from time to time. In brief, the powers of testamentary guardians to deal with minor’s properties are given below: A guardian appointed by a court of law has no authority to deal with the minor’s property without the sanction of the court. Such a guardian cannot sell, exchange, mortgage, charge, or otherwise transfer the immovable property of the minor without a previous permission of the court. The court gives the permission for transfer of property only in cases of absolute necessity or where it is manifestly advantageous to the minor.” The court may give the permission subject to some condition. If the court has given conditional permission, the transfer of property by the guardian may be effected strictly according to that condition.

 

Lease.— A guardian appointed by court is empowered to lease out the minors property for a period of five years, or for any term not extending more  one year beyond the date on which the minor attains majority. For a lease extending the above mentioned periods, the guardians must take the previous permission of the court. However, transfer of an immovable property by a guardian appointed by court against any of the above rules, is not void, it is merely voidable at the option of the minor upon his attaining majority. Such transfer is voidable also at the option of any other person affected thereby.

 

Movable Property.— A guardian appointed by court is empowered to deal with the movable properties of the minor without any previous permission of the court. But the guardian must deal with minors movables as carefully as a man of ordinary prudence would deal with his own property.

 

De facto Guardian of Mirror’s Property

A de facto guardian is a person who is neither a guardian under Muslim personal law, nor a guardian under the Guardians and Wards Act, 1890, but has assumed the powers and functions of a guardian. A de facto guardian is no guardian m the eyes of law and is simply an unauthorised person who deals with the minor s properties. Legal effects of the dealings by de facto guardians in respect of minor’s properties are given below.

Immovable Property.- A de facto guardian has no authority to deal with the immovable property of a minor. Transfer of any right or interest in the minors immovable property by a de facto guardian is void ab initio. In Mohd. Amin vs. Vakil Ahmad, the Supreme Court has held that unless a brother, uncle or other relatives of a minor have been specifically appointed as testamentary guardian or a guardian appointed by court, they have no authority to transfer immovable properties by sale, exchange, mortgage, or lease etc. A non-guardian person who acts as guardian of the property, has no power to enter into any contract on behalf of the minor and has no authority to enter into any family settlement in regard to the miner’s immovable property . In Gayasuddin vs. Allahtala Waqf Mansooma, a mother executed a Waqf of the properties of her minor son on his behalf. The mother was neither a testamentary guardian nor a guardian appointed by court. She, being mother, used to take care of her minor son’s properties as a de facto guardian. The Allahabad High Court held that mother whose legal status is merely a de facto guardian, has no right to execute Waqf of properties of minor son on his behalf and the Waqf is void. The court observed further that since the Waqf is void ab initio, the minor son cannot ratify and validate it on attaining the age of majority.

In Mata Din vs. Ahmad Ali, the Privy Council held that a sale or mortgage by a de facto guardian is void even where it was made to satisfy a debt of the deceased from whom the minor inherited the property. The court further observed that such a sale (or mortgage) was not binding on the minor. As the transfer of a minor’s immovable property by a de facto guardian is void ab initio; it cannot be validated by the minor on attaining majority. The minor, on attaining majority, has every right to challenge the transfer made by a de facts guardian. But, if he does not challenge this transfer, any other person on his behalf, has no right to challenge and get it declared void.

Movable Property.- A de facto guardian is empowered to sell and pledge the movable properties of a minor provided such a transfer is urgently required for the basic needs such as fooding or nursing of the minor. It is therefore, evident that a de facto guardian’s power to alienate minor’s movables is subject to basic requirements of the minor which may be urgently needed for the miner’s subsistence. A transfer of minor‘s movable property is not valid if it has been made for any other purpose.

 

PAHUJA LAW ACADEMY

MUSLIM LAW

GUARDIANSHIP

 

PRELIMINARY QUESTIONS

1. De-jure guardian means

(a) legal guardians

(b) guardians appointed by the court

(c) both (a) and (b)

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

 

2. De-facto guardian means

(a) a legal guardian

(b) guardians appointed by the court

(c) a person who intermeddles with the property of the minor

(d) all the above.

 

3. De-facto guardians are the custodians of the person or the property of the minor and have

(a) all the rights

(b) all the obligations

(c) both all the rights and the obligations

(d) no rights but only obligations.

 

4. Sale of minor’s immovable property by a de-facto guardian is

(a) valid

(b) voidable

(c) void

(d) invalid

 

5. Who amongst the following is not the legal guardian of the property of the minor

(a) mother

(b) brother

(c) uncle

(d) all the above

(e) only (b) and (c).

 

6. A legal guardian of the property of a minor can sell the immovable property of the minor

(a) where he can obtain the true market value of the property

(b) where he can obtain double of its value

(c) where he can obtain thrice of its value

(d) where he can obtain half the true market value but it should be more than the purchase price.

 

7. An agreement by the guardian of a minor for the purchase of immovable property on behalf of the minor is

(a) void

(b) voidable

(c) valid

(d) invalid.

 

8. Disposal of immovable property by a guardian of minors property appointed by the court, without the previous permission of the court is

(a) void

(b) voidable

(c) valid

(d) invalid.

 

 

9. Movable property of a minor can be sold for the minor’s necessity by

(a) De-jure guardian

(b) De-facto guardian

(c) both (a) and (b)

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

 

10. Guardianship in Islam terminates

(a) when the minor attains puberty

(b) when the minor attains the age of 18 years

(c) when the minor attain the age of 21 years

(d) when the minor if female attains the age of 18 years & if male, attains the age of 16 years.

 

11. The main sources of Muslim law are

a) Sunnat and Ahadis

b) Koran, Ijma and Qiyas

c) Both (a) and (b)

d) Neither (a) nor (b)

 

12. A Muslim illegitimate child is kept in the custody of

a) Mother

b) Paternal Grandmother

c) Both father and mother

d) Neither father nor mother

 

13. Under Muslim law who is only the natural guardian?

a) Mother

b) Paternal Grandmother

c) father

d) Neither father nor mother

 

14. Which of the following is not recognized under wadib- ui-arz

a) Right of irrigation

b) Right of drinking water

c) Right of easement

d) None of the above

 

15. Which of the following is not personal matter within the meaning of section-2 of Shariat Act, 1937?

a) Wakf

b) Guardianship

c) Pre-emption

d) Maintenance

 

16. On the ground of Fosterage a Muslim Marriage is?

a) Voidable

b) Void

c) Nullity

d) None of the above

 

17. The Dissolution of Muslim Marriages Act, 1939 gives a right of judicial divorce, on any of the grounds mentioned in it, to

a) Both husband and wife

b) Husband only

c) Wife only

d) None of the above

 

18. If a Shia male marries with a Sunni female, the marriage will be

(a) Batil

(b) Sahi

(c) Fasid

(d) None of the above

 

19. A Sunni Muslim marries with Kitabya girl, the Marriage is

(a) Valid

(b) Void

(c) Irregular

(d) None of the above

 

20. What is recognition of Muta Marriage among Sunni Muslims?

(a) Valid

(b) Void

(c) Invalid

(d) Voidable