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HIBA

Introduction –
In Muslim law, gifts are called “hiba”. The gifts in India are governed by Transfer of Property Act,
1872. However, the provision of Transfer of Property Act, 1872 does not apply to Muslim law. The
English term, ‘gift’ is of a wider connotation and applies to all transactions where one transfer’s
one’s property to another without any consideration. The term hiba has a narrow meaning.
According to Ameer Ali, “A hiba is a voluntary gift without consideration of property or the
substance of thing by one person to another so as to constitute the done the proprietor of the
subject-matter of the gift.” Muslim law allows a Muslim to give away his entire property by a gift
inter-vivos, even with the specific object of disinheriting his heirs. [Abdul vs. Ahmed, (1881) 8 IA 25]

Essentials of a Hiba
According to Ameer Ali, a hiba will be valid if the following conditions are fulfilled:-

1. The manifestation of the wish to give on the part of the donor,

2. Acceptance of the gift, express or implied, by the done, and

3. Taking of possession of the subject-matter of the gift by the donee, either actually or
constructively. [Jamela vs. Abdul Rahman, 2001 Guj. 175]

Capacity to make a Hiba


Mental capacity – Every Muslim, male or female, married or unmarried, who has attained the age of
majority and who is of sound mind has the mental capacity to make a gift. The rule of Muslim law of
majority, i.e. attainment of puberty, does not apply to gifts. A person of unsound mind can make a
valid gift during lucid intervals. The Muslim law-givers recognize the doctrine of ikrash or
compulsion, and a gift-deed executed under compulsion is not valid. In such a case the gift is
voidable, and it can be avoided by the donor whose consent was so obtained.
Financial capacity – The Malikis hold the view that a person under insolvent circumstances or
extremely involved circumstances has no capacity to make a gift. On the other hand, the Hanafis
hold the view that insolvency does not create incapacity to make a gift, but the kazi has the power to
render such gift nugatory if it is made with a view to defrauding the creditors. The Indian courts
follow the Hanafi view. In every gift, there must be a bona fide intention on the part of the donor to
transfer property to the donee. And, if a gift is made with an intention to defraud the creditors, the
gift I invalid. [Abdul vs. Mir Md, (1886) 11 IA 10]

Subject-matter of Gift
All forms of property over which dominion could be exercised, or anything which could be taken into
possession, or which could exist as a specific entity, or as an enforceable right, maybe the subject-
matter of a valid gift. Muslim law, in this context, makes no distinction between ancestral or self-
acquired or between movable and immovable property.

Gift of Musha
The word “musha” means an undivided share or part of a property, movable or immovable. Among
the Shafis and Ithana Asharis, the gift of musha is valid, if the donor withdraws his dominion and
allows the donee to exercise control. [Sadiq vs. Hashim, (1916) 43 IA 212]
But the rule is otherwise among the Hanafis. The general rule is thus laid down in the Hedaya, “A gift
of a part of a thing which is capable of a division is not valid unless the said part is divided off and
separated from the property of the donor, but a gift of an indivisible thing is valid.”
The doctrine of musha has been subject to much criticism. It has been said that the doctrine is
“wholly unadapted to a progressive society”. [Sheikh Md. vs. Zabeda, (1889) 16 IA 205] The doctrine
has been confined to within the strictest rules by judicial interpretation and has been cut-down
considerably.

Donee
Under the Muslim law, a gift may be made to any person without any distinction of age, sex or
religion. Under the Hanafi law, the donee must be must be legally in existence at the time of hiba.
Thus, a gift to an unborn person, one not in existence, either actually or presumably, is invalid.
Under the Shia law, a gift to an unborn person can be validly made provided the gift commences
with a person in existence.

Formalities: Delivery of Possession


Under Muslim law, a gift may be made orally or in writing, irrespective of the fact whether the
property is movable or immovable. [Ibrahim vs. Noor Ahmed, 1984 Guj. 126] The only formality that
is essential for the validity of a Muslim gift is “taking a possession of the subject-matter of gift by the
done either actually or constructively”. [Mohammed vs. Fakr, (1922) 49 IA 195]

Who can Challenge a Hiba or Gift


A stranger cannot challenge the validity of a gift on the ground that the gift is bad as no delivery of
possession has been made. A gift on this ground can be challenged only when the issue is raised
between the donor or those claiming under him on one side and the done and those claiming under
him on the other.

Conditional or Contingent Hiba or Gifts


The contingent or conditional gifts are those which are made dependent for their operation upon
the occurrence of a consistency. A contingency is a possibility, a chance, an event, which may or may
not happen. In Muslim law, contingent or conditional gifts are void.
In Muslim law, a gift is not rendered invalid, by involving an invalid condition. Hanafi law clearly lays
down that in such a case the gift is valid and the condition is valid.
Under Shia law, if the conditions attached to a gift is subsidiary, then both the gift and the condition
are valid.

Revocation of Gifts
Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is
a well-established rule of Muslim law that all voluntary transactions, including gifts, are revocable.

Modes of Revocation

1. Revocation of gifts before the delivery of possession

2. Revocation of gifts after the delivery of possession

Revocation of gifts before the delivery of possession


Under Muslim law, all gifts are revocable before the delivery of possession is given to the done. The
fact of the matter is that under Muslim law no gift is complete till the delivery of possession is made,
and therefore, in all those cases where possession has not been transferred, the gift is incomplete.
The revocation of such a gift, therefore, merely means that the donor has changed his mind and
does not want to complete it by the delivery of possession.

Revocation of gifts after the delivery of possession


Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not
sufficient to revoke a gift. Until a decree of the court is passed revoking the gift, the donee is entitled
to use the property in any manner, he can also alienate it. [Mahboob vs. Abdul, 1964 Raj 250]
The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by
his heirs after his death. A gift can also not be revoked after the death of the donee. (There are some
exceptions in Hanafi School)

WASSIYAT
Introduction
A wassiyat or will under Muslim law is a divine institution, since its exercise is regulated by Koran.
Will is the translation of Latin word “voluntas”, which was a term, used in the text of the Roman law
to express the intention of a testator. Under Muslim law, every Muslim has the testamentary power
of disposing of his property. But his testamentary power is limited to the disposal of only one-third
of his property.
A wassiyat 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/or recognizing the services rendered to him by a stranger, or the devotion to him in his
last moments.” This seems to be the reason why the word “wassaya” or “wassiyat” has two
meanings; it means a will and it also signifies a moral exhortation. The word wassiyat also means a
specific legacy or the capacity of the executor.

Capacity to make a Wassiyat or Will,


Every Muslim, who is of sound mind and of the age of majority, has the capacity to make a will.
Under the Shia law, a will made by a person, who has taken poison, or, has wounded himself with a
view to committing suicide, is invalid. But a will made by a person, who subsequently commits
suicide is valid.
A will made by a person under coercion, undue influence, or fraud is invalid. Similarly, the court will
scrutinize the will of a pardanaseen lady very carefully before admitting it.

Formalities of a Wassiyat or Will


Muslim law requires no specific formalities for the execution of a will. A will may be oral or in
writing. When the will is in writing, no specific form is laid down. It may not even be signed by the
testator or attested by the witnesses. [Ramjilal vs. Ahmed, 1952 MB 56] However, it is necessary
that the intention of the testator should be clear and unequivocal. In Mazhar vs. Bodha, 21 All 91 a
letter was written by a Muslim shortly before his death, containing directions for the disposition of
his property, was accepted to constitute a valid will.
When a will is oral, no form of declaration is necessary. Obviously, the burden of establishing an oral
will is very heavy, and an oral will must be proved with utmost precision and with every
circumstance of time and place. [Venkat vs. Namdeo, (1931) 58 IA 362]

Subject-Matter of Wassiyat or Will


Any type of property, immovable or movable, corporeal or incorporeal, which is capable of being
transferred, may form the subject-matter of a bequest. Under Muslim law, it is possible that a
testator may give to one person and the usufruct to another.

Construction of Wassiyat or Will


The general rule governing the construction of the will is that – a Muslim will is to be construed in
accordance with the rules of construction of the will laid down in Muslim law, the language used by
the testator and the surrounding circumstances. It is also a general rule of construction of wills that
unless a different intention appears, a will speaks from the death of the testator, and the bequests,
contained in it take effect accordingly. It is a universal rule of construction of wills that the courts try
to give effect, as far as possible, to the intention of the testator.

Revocation of Wassiyat or Will


Under Muslim law, a testator may revoke his will or any part of it anytime, either expressly or by
implication.

Express revocation
If a testator makes a bequest of some property to a person, and by the subsequent will, he bequests
the same property to another person, the first bequest is revoked. A will may be expressly revoked
by tearing it off, or by burning it.

Implied revocation
Any act inconsistent with the bequest will go to revoke the will. For instance, bequest of a plot of
land is revoked when the testator builds a house on it; or bequest of a house is revoked when the
testator sells or makes a gift of it to another.

WAQF
Introduction:
A wakf under Muslim law is essentially a religious and pious obligation, though provision is
sometimes also made for charities and for the benefit of oneself, one’s children and descendants
(alal-aulad). The origin of wakf is traced to an utterance of the Prophet. The utterance is often
quoted and is considered the briefest definition of Wakf – “Tie up the substance and give away the
fruit”. However, in early days of Islam, the law of wakfs suffered from great uncertainty. It was only
in the second century after the flight that a body of rules based on ijma (consensus) were developed
which might be considered to be the basis of the law of wakfs.
In the centuries that followed not merely the land but all type property, movable and immovable
were made the subject matter of wakfs. In the course of time, the Muslims world found that the
“dead hand” (as wakfs were figuratively called and which in fact they had become) was trying to
strangulate all progress and prosperity. Vast stretches of land and all other types of properties were
dedicated to wakfs all over the Muslims world. In India, there are about one lakh wakfs valued at
more than a hundred crores of rupees.
Instances of the mismanagement of the wakfs are numerous; the incompetence and corruption of
the mutawallis are appalling and abysmal; more often than not, the properties of the wakfs are
squandered away.
Under Muslim law, there are several religious institutions for which a wakf can be created.
Important among them are a mosque, graveyard, dargah, takia, khanqah, and imambara.

Definition of wakf:
The word wakf literally means ‘detention’. Abu Hanifa defined wakf as “the tying up of the substance
of a property in the ownership of the wakif and the devotion of the usufruct, amounting to an aryia,
or commodate loan for some charitable purpose.” This means that, according to him, the ownership
in wakf property continued to be vested in the owner, and its usufruct was spent for the charitable
or pious purpose. Also, he believed that the tying up of the property was not of a permanent nature.
His two disciples, however, took a different view.
According to Abu Yusuf and Imam Mohammed, wakf is the “tying up of the substance of a thing
under the rule of the property of Almighty God for any purpose by which its profit may be applied
for the benefit of His creatures.” However, Muhammed thought that the right of the wakif was not
extinguished until he appointed a muttawali, while Abu Yusuf took the view that the right of the
wakif was extinguished the moment he made the declaration.

Abu Yusuf’s definition came to be established in view of the wakf and of the Hanafi School. The
definition of wakf has three essential elements:

1. The ownership of the wakif is extinguished;

2. The property is vested in the ownership of God perpetually and irrevocably; and

3. The usufruct of the property is used for the benefit of the mankind.

The Shia law defines a wakf in a different manner. According to Sharia-ul-Islam, a wakf is a contract,
the fruit or effect of which is to tie up the original of a thing and to leave its usufruct free.
The Wakf Act, 1913, Section 2, defines wakf. Accordingly, it means the permanent dedication by a
person professing the Mussalman faith of any property for any purpose recognized by the
Mussalman law as religious, pious or charitable. Thus the purpose must be religious, pious, or
charitable, the dedication of property must be permanent, and the usufruct must be utilized for the
good of mankind. [Kani Ammal vs. Tamil Nadu Wakf Board [1983 AP 188]

Doctrine of Cypres
Cypres literally means “as near as possible”, the doctrine lays down that if a charitable intention has
been expressed by the dedicator, a wakf (or trust) will not be allowed to fail because the object
specified by the settler has failed; in such a case the income will be applied for the benefit of the
poor or to objects as near as possible.

Essentials/Characteristics of a Wakf

 Property vests in god – Once the dedication of the property is made to the wakf, the
ownership of the wakf is transferred to god. [Md. Ismalia vs. Thakur Sabif Ali, 1962 SC
1722] Under the Shia law also the property of wakf vests in god. Thus it seems to be that in
respect of wakf property in god there is no distinction between a Shia wakf and Sunni wakf
or a public wakf or private wakf.

 Wakf must be Permanent – A Muslim wakf must be created for an unlimited period. In
short, perpetuity is an essential feature of a wakf. Even in the case of a family wakf, the
ultimate benefit must be expressly or impliedly reserved for the poor or for any other
purpose of a permanent character. [Rahlman vs. Bagridan, 1936 Oudh 213]

 Wakf must be Irrevocable – The irrevocability is another characteristic feature of a wakf.


Once constituted validly, a wakf cannot be revoked. If in a wakfnama a condition is
stipulated that the wakif reserves to him the right of revoking the wakf or the wakf will stand
revoked on the happening of any event, then such a wakf is void. [Asoobai vs. Noorbai,
(1906) 8 Bom LR 18]

 Wakf properties are Inalienable – Once a property is dedicated to the god, they can’t be
alienated. However this rule is not absolute and in some circumstances, it is permissible that
a mutawalli may alienate the wakf properties, a mutawalli may sell or grant a lease of the
wakf properties with the prior permission of the court. When a wakfnama allows selling
wakf properties in some circumstances, then the mutawalli has the power to alienate wakf
properties in those circumstances.

Who can make a wakf: Capacity to make a wakf


Any Muslim who has attained the age of majority i.e. 18 years, and who is of sound mind, may make
a wakf. A wakf cannot be made by a guardian on behalf of the minor, such a wakf is
void. [Commissioner of Wakf vs. Md. Mohsin, (1953) 58 Cal WN 252]
The Mussalman Wakf Validating Act, 1913, and the Wakf Act, 1954, contemplate that a wakf can be
made only by a Muslim. Similarly, the Wakf Act, 1954, defines a wakf as meaning a permanent
dedication by a person professing Islam. But the Nagpur High Court has expressed the view that a
non-muslim can also make a wakf – the law only requires that “the object should be lawful and in
consonance with Islam”. [Moti Shah vs. Abdul Gaffar, 1953 Nag 38]

Subject-matter of Wakf
In the beginning, the subject matter of wakf consisted of properties of a permanent nature, such as
land, fields, gardens, etc. But gradually all sorts of properties were made the subject matter of the
wakfs. It is necessary that at the time when a wakf of a property is made it must be under the
ownership of the person making it. [Commissioner of Wakf vs. Md. Mohsin, (1953) 58 Cal WN
252]A property subject-matter to mortgage or lease can also be given for the creation of valid wakf.
A wakf which forms part of a transaction to fraud on the heirs is void and totally ineffective. [Har
Prasad vs. Fayaz Ahmed, 1933 PC 83]

How is wakf created?


Muslim law does not recognize any form of creating a wakf. A wakf may be made in writing or may
be oral. There must be appropriate words to show an intention to dedicate the property. The use of
the word wakf is neither necessary nor conclusive. To constitute a wakf it is not necessary that the
word ‘wakf’ should be used. A grant to the Kazi is compulsory for the purposes of his performing
religious or pious duties to constitute a wakf.
1. By an act inter vivos – It means during the lifetime. Thus a wakf is created during the
lifetime of the wakif and takes effect from that very time.

2. By will– It stands in contradiction with the wakf. It takes effect after the death of the wakif
and also called testamentary wakf. A wakf by will cannot operate upon more than one-third
of net assets, without the consent of the heirs.

3. During death illness (Marz-ul-maut) – The wakf made during the deadly illness will operate
only to the extent of one-third of the property without the consent of the heirs of the wakif.

4. By immemorial user – wakf may be established by evidence of immemorial user. For e.g.
when a land has been from time immemorial use for the purpose of a burial ground, it is a
wakf by the immemorial user.

Statutory control over Wakfs – The Wakf Act, 1995


It is no longer a secret that the most of the religious institutions are badly managed and bad
management of wakf with regards to their funds and abuse of the setup have reached menacing
proportions.
The Government of India being aware of this state of affairs passed the Wakf Act, 1923. During the
British rule, several provinces passed statutes to control the management of religious institutions.
Some of these applied to wakf also. But things did not improve. The Wakf Act, 1923 was replaced by
Wakfs Act, 1954, which was amended in 1964. But things still did not improve much. Parliament
then passed the Wakf Act, 1995 for the better administration of wakfs and connected matters
thereof.
The Act provides for the survey of all wakfs and registration of wakfs. A Central Wakf Council is
stipulated to be established for overseeing, advising and looking after the working of Wakf Boards.
The Act is also stipulated to establish Wakf Boards in each state, if necessary, separate Wakf Board
of Shia and Sunni Wakfs. The Wakf Board is the main instrumentality for the management of Wakfs.

Registration of Wakfs (Section 36, The Wakf Act, 1995)


The Act makes registration of every wakf compulsory. Mutawallis of wakfs are required to move an
application for registration of wakfs. Such an application can also be made by a wakf or his
descendants or a beneficiary of a wakf. The application should state the following particulars:

1. a description of the wakf properties sufficient for the identification thereof;

2. the gross annual income from such properties;

3. the amount of land revenue, cesses, rates and taxes annually payable in respect of the wakf
properties;

4. an estimate of the expenses annually incurred in the realisation of the income of the wakf
properties;

5. the amount set apart under the wakf for—

 the salary of the mutawalli and allowances to the individuals;

 purely religious purposes;


 charitable purposes; and

 any other purposes;

 any other particulars provided by the Board by regulations.

The Board may require the applicant to supply any further particulars or information that it may
consider necessary.
On receipt of an application for registration, the Board may, before the registration of the wakf
make such inquiries as it thinks fit in respect of the genuineness and validity of the application and
correctness of any particulars therein and when the application is made by any person other than
the person administering the wakf property, the Board shall, before registering the wakf, give notice
of the application to the person administering the wakf property and shall hear him if he desires to
be heard.
In the case of wakfs created before the commencement of this Act, every application for registration
shall be made, within three months from such commencement and in the case of wakfs created
after such commencement, within three months from the date of the creation of the wakf: Provided
that where there is no board at the time of creation of a wakf, such application will be made within
three months from the date of establishment of the Board.