Prophet Muhammad (PBUH) was reported to have said:
“A strong Muslim is better than a weak one”.
The word strong here includes wealth as well. In another hadith the Prophet said:
“It is better for you to leave your dependents rich than leaving them asking people for sustenance”.
Both of these hadith suffice to show us wealth is not only allowed but also commendable in Islam. In Islam, wealth is prerequisites to many religious obligations such as zakat and pilgrimage to Mecca. Even to perform basic religious duties such as daily prayers a Muslim must have proper clothing. Clothes have to be owned. Ownership of a property in Islam as well as in other cultures is normally through wealth acquisition.
From the above statements, no further elaboration is needed on the lawfulness of wealth acquisition in Islam. The points that need explanation is how to spend it. Another point which stems from both questions is what kind of wealth that a Muslim is allowed to own? These are some basic legal questions which largely have been dealt with in greater details by our Islamic jurists. This paper will therefore only outlines some important points discussed by our fiqh on this matter. The next interesting question, which is the concern of this paper, is how properties owned by Muslims can be better managed according to the market force and current trends of a modern society but at the same time compliant to the requirements of the Sari‘ah or Islamic law. Before answering this question, the paper attempts to show some problems faced by Muslims in managing their properties especially in relation to bequest, waqf and gift.
Property in Islam
Islam appreciates property that is beneficial for the use of human kind. Benefit here means within the parameters approved by the Sari’ah. Nevertheless, there is a great similarity between Islam and other cultures in what can be regarded as beneficial or otherwise, since what is deemed beneficial, good or bad to human kind is universal. The Muslim jurist is of the view that a thing is considered a property or mal when it is clean, beneficial and worthiness which they technically term as mutaqawwim. The meaning of property and its transaction are limited within these conditions. Clean and pure (tahir) take in two forms: physical and abstract. In the former, things viewed by the Sari’ah as impure such as swine, dog, liquor, animal’s waste etc. In the latter, wealth acquired through illegal means such as theft, robbery, bribery, etc. Similarly, a thing is not considered a property if it has no direct benefit to Muslim or its purpose is contradictory to the aims of the religion: in the former, things such as wild animals and in the latter, things such as musical instruments, playing cards etc. Worthiness (mutaqawwim) means such a thing must have value. Hence, a pebble or a handful of sand is not a property since they are of no value.
Devolution and management of Property
How to spend one’s wealth is not a serious question to be bothered with. In a free market society like ours, it is entirely left to the will of the property’s owner. Limitation of the law is of course must be observed. To spend what one has gained entails surplus in the income. Surplus would mean after all necessities for the sustenance of live have been satisfied. Naturally, spending of the property is first made on the basic needs like foods, clothing and shelter. Then come other considerations depending how one culture sees it such as education, health, transportation, vocational tools, religious obligation, leisure etc. There is little disagreement between Islam and others in this respect. Nevertheless it is on the spending of the surplus of the income that Islam may probably differ from others. In modern life such as today people invest or save the surplus of their income in many ways that the market has to offer. Such investments or savings are for all sort of reasons; future security, future spending, risk management or just simply making profit. Many of these reasons are in accordance with Islam.
Waqf management in Islam
Definition of Waqf
Section 2(1) the Musslaman Waqf Validating Act, 1913, defines waqf as under:
“Waqf means the permanent dedication, by a persons protesting mussalman faith, of any property for any purpose recognized by the mussalman law as religious, pious or charitable.”
The Muslim jurists have also defined waqf almost in the same world. Abu Yusuf and Imam Muhammad defined waqf in the following words:
Waqf is permanent dedication of specific things in the implied ownership of god whence the appropriations rights s extinguished and it become the property of god for the advantage of this creature. According to his jurists, Waqf is a religions Act the effect of which is to tie up the corpus or substance of things and to leave its usufruct free.
Kinds of waqf
Broadly, waqfs are of two kinds: public and private. But the most accepted is its three fold classification i. public ii. queasy public and private.
i. Public waqfs
Those which are dedicated to the public at large having no restriction of any kind regarding its use: for example, constructing wells, roads, etc.
ii. Quays public waqfs
Those which are partly public and partly to private for the benefit of a particular individual or class of individuals which may be the settlors family.
iii. Private waqfs
Those which are for the benefit of private individuals including the settlers family or relation. Such a waqf is termed as waqf alat aulad.
Characteristic of waqf
i. Perpetuity-In a waqf the property is settled permanently so that its retract is always available for an identifies period. There can not be waqf for a limited period.
ii. Non transferability-When a waqf is created, the property vested in the implied ownership of god. The result is that its property becomes non transferable. Even according to Abu Hanifa, who holds that property does not vest in god, the founder has no right to transfer the waqf property.
iii. Irrevocability -Once it is created, the waqf can not be revoked. As the property is deemed to vest in god, the waqf can not revoke it subsequently.
iv. Absoluteness -The settlement of the property in waqf is unconditional and absolute. A conditional on contingent waqf is void.
v. Religions or charitable use of usufruct -The produce and benefits of the waqf property are utilized only for such purposes which are recognized as religions, pious or charitable under Muslim law.
Essentials of a valid Waqf
The essentials o a valid waqf may be briefly summarized as follows
- There must be clear intention on the part of waqif to create the waqf.
- Waqif must declare his intention either orally or is writing.
- Waqif must be the owner of the property to be dedicated as waqf.
- The waqf must be perpetual; although no express mention of perpetuity waqf is essential and it is presume a nevertheless it waqfnama says that the waqf is for, say, 50 years, it is invalid.
- The objects of waqf should not be in conflict with the Islamic principles.
- The waqf must be of sound mind and major and a Muslim, However waqfs by non Muslims are recognized under certain conditions.
- Waqf must not be contingent or conditional.
Who can make a waqf
The person who constitutes the waqf of his properties is called the founder of waqf or waqf. The waqf must be a competent persons at the time of dedicating the property in waqf for being a competent waqf a person must possess the capacity as well as the rights to constitute the waqf.
a. Capacity to make waqf:
Every Muslim who is of sound mind and has attained the age of majority, has capacity to constitute a waqf.
In other words a regards capacity of a Muslim for making a waqf the are only tow requirements.
- Soundness of mind and
A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transactions. Waqf constituted by an insane prison is void. The waqif must also be adult. For the purpose of making waqfs the age of majority is eighteen years (on twenty one years it the mains is under supervision of courts of wards). Thus, a person below the age of eighteen years on twenty are years as the every may be is a minor and has no capacity to constitute any waqf. Waqfs constituted by minors are void ab initio and can not be validated by any subsequent notification. They guardian of a minor can not make any waqf on behalf on the minor. Waqfs constituted by guardian’s ob behalf of minor are void ab initio.
Capacity alone is not sufficient. The waqif must also possess the right to make the waqf when a waqf is constituted there a permanent transfer of ownership of the prosperity. Therefore the settler must be owner of the property dedicated. If the subject matter of a waqf is not owned by the settler at the time when the waqf is made, the settler has no right to make waqf. A person having the capacity but so right, can not constitute a valid waqf. For example a Muslim of sound mind and having attained the age of majority can not dedicated the properties owned by other. It is therefore necessary that absolute interest in the dedicated property must be vested in the waqf. Whether a person has right to constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the ownership of the property on not. A person, who was actually the owner of the a property but was under a wrong impression that we was only its mutually. It was held by the court that he had the right to constitute a waqf at that property. A lessee or a tenant has no right to make any waqf on the property under his possession because, he has no ownership, similarly a usufructrary mortgage has no right to constitute any waqf of the property in his no right to constitute any waqf of the property in his possession because he has no dominion over that property. In brief, the dedication must have the title or absolute interest in the subject matter at the time of making of waqf. A widow can not constitute any waqf of the property which she holds in lieu of her unpaid down of the property. Consent of waqf must be free. The waqf must apply his independent mind in dedicating a property.
That is to say, the waqf must have been made with free consent6 of its founder. Where it is proved that waqf was constituted under compulsion, under influence, coercion, force etc. The waqf is void.
Amount of property dedicated
A dedication is entitled to constitute a waqf of his entire properties without leaving anything for his heir. But is 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 records, in the case of inter vivo 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 their of his properties without consent of this legal heir.
Subject of waqf
The subject of waqf under waqf Act may be “any properties”. A valid waqf may, there fore, be made only of immovable property, but also of movables, such as shares in joint stock companies government promissory notes and even money.
The property dedicated by way of waqf must belong to the waqif (dedicator) at the time of dedication. A periods who is in fact the owner of the property but is under the benefit that he is only a mutawalli there of is competent to make a valid waqf of the prosperity to make a valued waqf of the property. What is to be seen in such cases is whether or not that person had a power of disposition over the property.
Objects of waqf
The purpose for which waqf may be created must be one recognized by the Mohammedan law as “religious, pious on charitable” (Musslaman Waqf Validating Act, 1913, Sec. 2 (1)]. A waqf may also be created in favor of the settlior’s family, children and descendants(Musslaman Waqf Validating Act, 1913, Sec.3)
The following are valid objects of a waqf
- Mosques and provision for imams to conduct worship therein.
- College and provision for professors to teach in colleges.
- Aqueducts bridges and caravanserais.
- Distribution of alms to poor persons, and assistance to the poor to enable them to perform the pilgrimage to macca.
- Celebrating the birth of Ali murtza
- Keeping tazias in month muharram and provision for camels and dulled for religions procession during Muaharram.
- Repairs of imambarars.
- The maintenance of a khankah
- Burning lamps in a mosque
- Maintenance of poor relations and dependents
Doctrine of Cypress
Cypress literally means “as nearly as possible” this term is essentially applicable to trusts and in its technical sense means the it the wishes of the author of a thrust can not be carried out literally, they will be carried out as nearly as possible in the way desired by he author.
The above doctrine is applicable to waqfs also. Thus it from change of circumstances and lapse of time or for some others proper reasons, it has become impossible to apply the property of the waqf is the manner directed by the waqf, the court may apply for similar purposes by different means nearly as possible, to the original intentions of the guarantor or for the benefit of the poor by various means and it is also the power to very the scheme accordingly.
In Sulebhai v. Bai Safiabu, their lordship held where the testator has indicated a general charitable intention in the bequest made by him, and it these bequests fail, the court can devote the property to religions charitable purposes, according to the cypress doctrine.
In Kulsoom Bibee v. Chaulam Hussain, it was held that where the clear intention is expressed in the instrument of waqf, it will not be permitted to fail become the objects, it specified, happen to fail, but the income will be applied for the benefits of the poor or as near as possible to the objects which failed.
Contingent or conditional Waqf
When the creation and validity of a waqf are subjected a contingency, It becomes void. For example, if the waqf is made Contingent on the death of a person without leaving children, it will be void. similarly if a Mohammedan lady creates a waqf for herself and her children, and provides that the children should take possession of property on attaining majority and the event of her death without leave children, the waqf income should be devoted to certain religious usages, it was held that the waqf was void, it is depend upon a contingency, namely, the event of her death without leaving children. The waqf should also not be conditional. Thus, if a condition is imposed that when the property dedicated ins mismanaged, it should be divided among the heirs of the waqif, or that the waqif has a right to revoke the waqf in future, such waqfs would be invalid. But a direction to pay debts, or to pay for improving, repairing and or expanding the waqf property or conditions relating to the appointment of mutawalli, etc. Would not invalidate the waqf.
When a waqf is created, all rights in the property vest in the Almightily. The mutually is the person who has the right to administer the waqf property. The property of the waqf does not vest in the mutually, as it does in a trustee. He is merely entrusted with the fulfillment of the objects of the waqf and his liability is that of trustee. He is not bound to allow such use of the waqf property however laudable, as is not shown to have been one of the objects of the waqf.
Appointment of Mutawalli
The powers of appointment can be exercised only when there is no one appointed under the term of the deed of waqf and when the right of any peons to act as mutawalli is disputed, provided, of course, their is an existing vacancy in the office of the mutawalli of the waqf. Such appointment shall be made for such period and on such condition as the board may think fit, is indicative and suggestive of the fact that it is not a regular appointment of the muttawalii that is contaminated by section 42 of the waqf act. There is no provision in the waqf act for appointing a person as mutawalli under section 42 of the waqf act it there is a successor named in the waqf deed.
Who can appointed as Mutuwalli
A mutuwalli can be appointed by the following in the given order:
a. The waqif himself.
b. His exceutior
c. The mutuwalli
d. The Court
a. By the waqif himself: It is lawful for the waqif to reserve the mutuwalliship for himself. And where a waqf has been created, but the waqif has appointed on mutawalli for the administration of the waqf , nor has reserve the mutuwalliship for himself, the office would nevertheless appertain to him qua waqif. In Ali Azghar v. Farid Uddin, the waqif appointed himself as the first mutaualli and after his death Ali Asghar.
b. His executor: Should the waqif die without making any express appointment, the power of appoint a mutawalli devolves upon lies executor
c. By the mutawalli: A mutawalli can appoint his successor under very restricted conditions, which are as follows-
i. Waqif and his executor both dead
ii. Waqif deed is silent on the point of succession of mutawalliship
There is no positive custom regarding such devolution.
iv. The waqf deed authorizes him to this effect.
d. By the court : It no such appointment is made the court may appoint a mutawalli. But court should select by preference a member of the founder family. It there by any fit persons possessing that qualification. If the members of the founders family is not a person possessing that qualification, the court may appoint a stranger, as happened in the case of Shabar Banoo v. Aga mahomed.
Powers and functions of Mutawalli
The mutawalli is manager of the waqf property. His primary duty is to preserve the property like this own, but to manage and spend it like a servant of God. As discussed earlier a mutawalli is not owner of the waqf property, the property vest in God, not in him. Although his functions are similar to that of a trustee under the Indian trust Act, 1882 yet, the not a trustee is its technical senses unlike a trustee, the property close not vest in mutawalli. The mutwalli simply holds the office as manager of the property. But, he is not allowed to manage the property at his own choice. He has to administer the property strictly according to the object and direction laid down by the founder. He has no right to spend the benefit of waqf for purposes which may be religious or charitable according to him but are not specified as objects or the waqf.
Power of mutawalli to sell or montage
A mutalwalli has no power, without the permission of the court, to mortgage, sell or exchange waqf property or any part there of unless he is expressly empowered by the deed of waqf to do so.
Removal and new appointment of Mutawalli
If a mutawalli is incapable of carrying on the duties of a mutuawalli the court shall have the power of removing him on reasonable grounds. At the time of appointing a mutuwalli, however, the court as far as possible shall have to the wishes of the creator of waqf and shall appoint as for as possible, a suitable person as mutuwalli from the family of the waqif.
Gift (Hiba) management in Islam
Definition of Gift
Hedaya defines gift in the following words:
“Gift is an unconditional transfer of ownership in an existing property, made immediately and without any consideration”.
Baillie defines gift as under:
“Gift is a transfer which confers the right of property, in something specific, without an exchange.”
Kinds of Gift
The Muslim law recognized four kinds of gifts.-
(i) Hiba- gift properly called,
(ii) Sadaqa- Alms
(iii) Hiba- bil-iwaz-gift with exchange; and
(iv) Hiba-ba-shart-ul-iwaz-gift with a stipulation for a return.
Hiba is a transfer of properly, made immediately, and without any exchange or consideration. In practice this is only kind for which the term “hiba” on gifts is used.
The “Sadaqa” is a gift with religious motive. The word has been used in Quran for alons. Sadaqa is a gratuitous transfer in the same manner as a gift. It is a gift in the nature of charity. The delivery of the property is essential.
The hiba-bil-iwaz is a transaction made up of two district donations, separate acts of hiba, between two person, each of whom is alternately the donor of one gift and the donee of the other. In other words, when the donce of a certain gift makes a gift of the original donor signifying his wish that the present gift is by way of iwaz (return or exchange) for the original gift.
It is a hiba-bil-iwaz form of with a shart on condition. Where a gift is made with a stipulation for a return, it is called hiba-ba-shart-iwaz. As in the case of a hiba, so in the case of a hiba-ba-shart-ul-iwaz, delivery of possession is necessary to make the gift valid.
Essentials of a valid gift
It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the doncee. It these condition are complied with, the gift is complete.
Declaration does not mean simply an announcement of the gift but it also entails that the donor should have a real intention of making the gift. Tyabji says: “Where there is no real and bona fide intention to transfer the ownership of the subject of gift, an alleged gift may be of no effect.
The donee must accept the gift. This acceptance may be express or implied (that is, by conduct). But the gift of a debt to a debtor or his is valid without acceptance and is not invalidated by his rejection.
(3) Delivery of possession
When the donor makes a declaration of a gift and the donee accept, then the possession of the thing gifted should also be given to the doree. Such delivery of possession may be actual or constructive.
Normally, the question as to whether possession law been delivered to make the gift complete is considered relevant only when such an issue is raised between the donor or those claiming under him on the other. Once the donee accepts the gift and was also specifically found to have been, even on the date of the gift deed, in possession of the property, it is not given to persons other that the donor, who was alive, to challenge the validity of the gift on the ground of want of delivery of possession.
When the delivery of possession is completed
Under, Muslim Law, a gift is complete only after the delivery of possession. If the delivery of possession itself is incomplete, the gift, also remain incomplete and the title of the property does not pass on to the donee. As to when a donee become the owner of the properly depend upon the fact as to when the delivery of possession was completed.
In respect of movable properties, the delivery of possession is said to have taken place at a time when the property is physically transferred to the donee. But, in respect of the immovable or incorporeal properties, it is difficult to prove the exact time of the delivery of possession.
When delivery of possession is not necessary
The general rule of gift under Muslim law is that the possession of the property must be delivered by the donor to the donee; to this rule there are following exceptions:-
(1) Residence in the same house
No delivery of possession is necessary where the donor and donee both are residing at the time of gift in the same house which is the subject of gift. But there must be some unequivocal manifestation by the donor of an intention to transfer possession to the donee (Humera Bibiu. v Najmunnissa).
(2) Property in the occupation of tenant
The delivery of possession of immovable property means the physical (actual) departure of the donor from the premises with all his goods and chattles, and the donee formally enters into possession. But gift of land in the occupation of tenant may be completed by-
(a) a request to the tenant by the donor to attorn to the donee, or
(b) delivery of the title-deeds; or
(c) mutation in the revenue register (Khatauni), or Municipal Register (Shaik Ibrahim v. Shaik Suleman).
(3) Property by husband to wife
The delivery of possession is not a necessary condition to the validity of a gift when the gift is from husband to wife.
The gift was made by the husband to his wife, and the mutation of names was duly effected in the public records and the wife’s name was entered as proprietress. But the husband continued to live in the house and continued to receive the rent from tenants even after the gift was made. “In the case by a husband to his wife, once mutation of names has been proved, the nature presumption arising from the relation of husband and wife existing between them is that the husband’s subsequent acts with reference to the property were done on his wife’s behalf and not on his own”.
In Mohammad Sadiq v. Fakhr Jaman the Privy Council went a step further and held that where the deed of gift declared that the husband had delivered possession to the wife and the deed was handed over to her even a mutation of names was not necessary. The Madras High court is Noohu Pathummal v. Ummathu Ameena observed that, “the fact that the husband continued to lie in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case being that the residence was on account of matrimonial obligation and that the rents are collected by the husband on behalf of the wife and not on his own account.”
(4) Gift to a minor by father or other guardian
It a gift of property takes place from a father or other guardian to a minor, on delivery of possession is required and all that is necessary is to establish a bona fide intention to give. In Amirunnisa v. Abdunnisa the Privy Council said: “where there is on the part of the father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of possession, and will presume the subsequent holding of the property to be on behalf of the minor.”
Oral gifts, writing and registration
Under the Muslim law writing is not essential to the validity of a gift either of movable or of immovable property. Section 122 to 129 of the Transfer of Property Act, 1882, deal with gifts. By section 123 of this Act it is provided that a gift of immovable property must be effected by a registered instrument signed by the donor and attested by at least two witnesses, and that a gift of movable property may be effected either by a registered instrument signed as a foresaid or by delivery. But the provisions of section 123 do not apply to Muslim gifts. Section 129 of the Transferred of Property Act states, inter alia, that nothing in the chapter shall be deemed to affect any rule of Mohammedan Law.
Constitutional validity of oral gift
In a judgment delivered by Mr. Justic V.R. Krishna Iyer in Makku Rawther v. Mana-hapara charayi, it was held that oral gift of “Secular” as distinguished from gift of “religious” nature should conform with the requirements of writing, attestation and registration as laid down in section 123 of the Transfer of Property Act, 1882, in order to survive the security of Article 14 of the Constitution. By classifying gifts in to religious and secular categories, this judgment imports in to the fabric of Islamic law something which was hither to unknown. It therefore requires a close consideration.
Who can make gift
Every Muslim who has attained majority and is of sound mind can make a gift. A woman has the same right to make a gift as a man, and marriage does not entails any disabilities. The ordinary presumption is that a person making a gift understands what he is doing; but if the donor is a woman designated as pardanashin, the presumption does not arise. The suspicion of the court is aroused and the court is aroused and the court extends to the woman the same protection that a court of chancery would to the weak, the ignorant and the infirm. In such circumstances, in order to show that the gift was free from the effects of undue influence, it is necessary for the donee satisfy the court that the act was the free act of the woman. For this purpose, the proof of independent outside advice is the usual mode of discharging the burden on the donee.
Power to make gift
A Muslim may make a gift of the whole of his property. His power of making a gift of his property is unfettered except in the case of deathbed gifts.
A gift may be made in favour of the following:
(i) Any living person who is capable of holding property: Thus, strictly speaking, a gift to an unborn person is invalid. Take the example of A, who makes a gift to B, and after B’s death, to his male heirs. B has got no male heirs at the time of the gift. The gift is invalid.
(ii) Child in the womb: A gift to an unborn person may be made provided the child is born within six months from the date of the gift, because, in that case, it is presumed that the child was actually existing as a distinct entity in the womb.
(iii) Unborn person: A gift of limited interest in the unufruct to the property (ariat) may be made to an unborn person provided that such person is in existence when the interest opens out for him.
(iv) Juristic persons: Gifts may be made validly to such juristic persons as mosques, durgahs and charitable institutions like schools.
(iv) Non-Muslim: A gifts may be made to a non-Muslim. The gift property will be subject to the personal law of the donee, once the gets possession of it.
Conditional, Contingent and Future gift
It a gift of the corpus of the property is subject to a condition which derogates from the completeness of the grant, the condition becomes void and the gift takes effect as if no condition has been attached to it.
A gift cannot be made dependent on any thing contingent. The word “contingent” implies that no present interest exists, and that whether such right or interest will ever exist depends upon a future uncertain event.
A gift can not be made to take effect at any future period. Therefore a gift of the future produce or income of any property or estate is invalid.
Revocation of gift
The donor is entitled to revoke his gift at any time before making over possession of the gift property.
The donor is entitled to revoke his gift even after making over possession of the gift property except when-
(a) The donor is the husband and the donee is the wife or vice versa;
(b) The donee is the blood relation within prohibited degree;
(c) The donee is dead;
(d) The gift property is either lost or gone waste;
(e) The basic character of the gift property is changed;
(f) Some other thing is so mixed up with the gift property that its separation from it be not possible
(g) The gift is wit exchange.
It shall be essential to obtain a decree from the court, for the revocation of gift after making over possession.
Will (Wasiyat) management in Islam
Definition of Will
According to Durrul Mukhtar “Will is a assignment of property to take effect after once death”. According to Hedaya, “wasiyat means an endowment with the property of any thing after death- as it once person should say to another, ‘give this article of mine’, after my death, to a particular person.” According to Tyabji, “Will means a legal declaration of the intentions of a Muslim with respect to his property, which he desires to be carried into effect after his death.”
Forms of will
A will, under Muslim law, may be made verbally or by writing. No particular form is required. It sufficient it the intention of the testator is clear and ascertained. It is effected thus: “I bequeath this property to that person.” In a case, a letter written by the testator shortly before his death and containing directions as to the dispositions of his property, the Privy Council held that it constituted a valid will.
It the will is in writing, it need not even be signed by the testator or attested by the witnesses, because the terse in the Quran regarding witnesses is considered merely as a recommendation, and is not mandatory. However, in majority of cases, wills are for obvious reasons, in writing. In the case of Aulia Bibi v. Alauddin, it was found that a document purporting to be the will a Muslim lady was in fact draw up in accordance with instructions given by the testatrix to a lawyer at a time when she was competent to make a will. All Allahabad High Court held that such a document was a valid will notwithstanding the absence of the signature of the testatrix.
Essentials of a will
Under Muslim law, following essential conditions are necessary for a will
i) The legato and the legatee must be competent;
ii) There must be a free consent;
iii) Formalities must be completed;
iv) The property must be bequeath able property; and
v) The legator must process the testamentary right.
Who can make will
A Muslim who is of sound mind and is major can make a will although according to Muslim law majority is dependent upon the age of puberty, which is supposed to be reached at 15 years of age, yet the Indian majority act recognized only, the age of 18 years as a requisite for the purpose of will.
But if a guardian of his person or property has been appointed by court or his property has come in charge of the court of wards, will attain majority on completion of 21 years.
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 (iii) attained the age of majority, has capacity to make a will.
The legator must be a Muslim at the time of making of the will. Only that will would be governed by Muslim personal law in which the legator was a Muslim at the time of execution. Where a Muslim has contracted him marriage under the special marriage at, 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 atten the death of the legator; before his death, it is simply a mere deliration on the basis of which the legatee may get the property in future.
ii) 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 excited by an insane person is void. Under Muslim law, the legator must have a perfectly, disposing mind; that is to say, 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 of six months from the date of execution of the will.
iii) 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 The Majority Act, 1875, under which, a person attains majority on completion of eighteen years or completion of twenty one years, if he is under supervision of courts of wards. Thus, the testator must be of eighteen or twenty-one years, as the case may be, at the time of execution of the will. A will executed by a minor is void. But, if a person who had made a will during his minority, ratifies the will upon attaining majority the will become valid.
Who can take Will Property
Legatee is the person is whose favour a will 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 non- Muslim or a Hindu female or minor and insane person, in valid. A 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.
Consent of heirs to bequest
The Consent of the heirs must be given after the death of the testator. Consent given during his life is invalid. A will in favour of heirs not assented to by them after the testator’s death is invalid.When the consent of the heirs is signified to bequest in a will in favour of an heir, the legatee takes from the testator.The consent does not operate as a transfer by the heirs who signify their consent. Where the consenting heirs are insolvents, their consent is equally effective in validating the legatee and in the receiver. It some heirs are minors, consent must be given by them after attaining majority. No validity attaches to a consent give by their guardian during majority, in which case on attaining majority, they are tree dispute the validity of the will and to claim their shares according to Muslim Law.
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 them has been mentioned. the property is divided equally amongst all the legatees. Where a will is made in favour of a specific class of persons, the class 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, hall of the bequeath able property is be given (equally) to the Fakirs and the remaining halt is to be distributed equally among the poor person of that locality. But where the legator himself has specified the respective shares of the legqatee then, each legatee would get the shares allotted to him.
Subject of will
A bequest of any property capable of being transferred is valid, provided that it is in existence at the time of the death of the testator. But it may or may not be in existence at the time when the will is made.
Testamentary power and its limits
The testamentary capacity of a Muslim is limited in two ways. He does not possess an unlimited. Power of making his position by will. There are two fold restrictions on the power of a Muslim to dispose of his property by will. The two-fold restrictions are in respect of the person in whose favor the bequest is made, and as to the extent to which he can dispose of his property.
(i) Limitation as regards the person:
The general rule, in the regard has been very clearly laid down in Ghulam Mohammed v. Ghulam Hussain. It was held in this case that a bequest in favour of an heir is not valid unless the other heirs consent to the bequest after the death of the testator.
In Fukan v. Mst. Mumatz Begum,where the plaintiff respondent Mustaz Begum filed a suit for possession allegation that the land in dispute was given to her by her father under a will and she was forcibly dispossessed by the defendant (Appellant) of the will and pleaded that he had been in possession after the death of Mehrab Dhan (father of Mumtaz Begum) as his heir as being as son of his brother In fan khan, the Rajastan High court and confirmed the well-settled principle that a bequest in favour of an heir, even to the extent of one-third was not valid under the Hanafi Law, unless the other heirs consented it, expressly or impliedly after the death of his testator.
In Abdul khan v. Murtaza Khan, the court held that a bequest in favour of an heir is invalid unless the or her heirs consent to it after the transfer’s death. A provision has been made a law to obtain consent of the heirs after the death of the testator; if any person of a will more than 1/3 of the properties is sought to be bequeathed to an outsider, and to any extent to a heir.
(ii) Limitations as regards the property
The general rule with regard to the extent of property that may be disposed of by will is that no Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. In proof of this the following tradition is quoted, as delivered by Abu Vikas :
“In the way of the conquest of Macca, being taken so extremely ill that my life was despaired of the prophet of God came to pay me a visit of consolation. I told him that by the blessing of God, having a great estate, but no heirs, except one daughter, I wished to know of I might dispose of it All by will.”
Kinds of 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 an 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.
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 basis 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 Will
A bequest may be revoked by the testator either expressly or impliedly, or by a subsequent will. Express revocation is one where the testator revokes the bequest in express terms either orally or in writing. But a mere denial by the testator that he did not make a will does not act as revocation of another wise valid will. Implied revocation is one where the testator does an act from which revocation may be inferred. For example, bequest of a price of land is revoked, it the testator subsequently builds a house
Gift under Hindu law and Mahommedan laws
The rule of Mohamedan law about gifts is not affected by the Transfer of Property Act. No writing is necessary in respect of any gift of either movable or immovable property, (i) declaration, (ii) acceptance and (iii) delivery of possession are the three essential conditions of gift, registered of a deed does not cure the defect of want of delivery of possession. A gift is different from a surrounded by a Hindu widow having a limited interest in the property where she does not in fact on in law purport to transfer any interest in the property surrendered. The widow simply withdraws herself from the estate and the reversioner steps into the inheritance as a matter of law. But in a case of transfer of the whole estate, the reversioner takes the same subject to the liability for her maintenance. So in the case of relinquishment, the reversioner remains responsible for her debts.
Will under Muslim law and Hindu law
Among the Mahomedans the leading authority on the subject of will is Headaya which was com posed by Shaik Burhan-ud-Din Ali in the twelfth century who belonged to the Hanafi school of Mahomedan law. The Fatawa Alamgir is another authority complied in the seventeenth century during the reign of Emperor Aurangzab, So the idea of will was known to the Mahomedans from very ancient times long before the arrival of the British in India. The Indian succession at 1925, does not apply to the Mahomedans. So a will is valid and effective in Mahomedan law even not attested. In Mahomedan law no particular writing is necessary to make a valid will not even any particular form, so long the declaration is sufficiently clear. A letter by a testator shortly before his death containing directions as to disposal of his estate after death was held by the privy council as the constitute a valid will. Another special feature of the Mahomedan will is that the testamentary power is limited to one-third of the surplus estate after payment of funeral expresses and debt and no bequest to any heir is valid in the absence of the consent of the other heirs after the death of the testator. A Mahomedan will is admissible in evidence after due proof although no probate has been obtained and further no letters of administration are necessary to establish any right to the estate of a deceased Mahomedan except as regards debts due to the same. The executor of the will of a Mahomedan, if he accepts the office from the date of the testator’s death, has power to alienate the estate for the purposes of administration. A child in the womb and a child, i.e. son adopted by the widow of a deceased after his death, are considered as persons in existence of the time of death in Hindu law, but in Mahomedan law a child in the womb loses the legacy unless born within six months from the date of the will. Muslim law does not recognized adoption.
Hindu law contains no provision for wills. The will was not expressly mentioned in the documents given by Sanskrit writers. But it cannot be said that wills were wholly unknown to Hindu law. It is significant to point out that it was in the then Bengal that the testamentary power of a Hindu was first recognized and settled. The right of Hindu, governed by the Dayabhaga law, to bequeath ancestral property-movable or immovable to the exclusion of son was affirmatively laid down in case of Gopee Raja Krishna and Rentoonoo v. Ram Gopal.
The testamentary power of a Hindu was first admitted in the united Bengal where the power of alienation was most exercised. Now the provisions of Succession Act 1925 (Act XXXIX of 1925) apply with respect to Hindu wills. The Hindus acquired the right to make will through legislation. The term “will” is defined in section 2(h) of Succession Act 1925, as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. From the wording of the definition formulated in section 2(h) of the succession act, that a will is a declaration which possesses the following essential elements.
i) it must be legal;
ii) it must relate to disposition of property.
iii) it must relate to the testator’s property on to the property; over which he had the disposing power.
iv) it must dispose of it so as to take effect from the testator’s death; and
v) it must be revocable at the testator’s pleasure.
Every Hindu who is of sound mind and not a minor may dispose of his property by will. So every Hindu who is of sound is mind and major i.e. not under eighteen years on where the guardian of property6 has been appointed by court, not under twenty one years may dispose of his property by will.
Waqf under Muslim law and Hindu law
Waqfs is the dedication of property in perpetuity substantially for charity or for religious objects and purposes. The term waqf literally means detention. The legal meaning of waqf, according to Abu-Hanifa, is the detention of a specific thing ownership of the waqf or appropriator and the devoting or appropriating of its profits or usufruct in charity on the poor or other good objects. A waqf may be made in writing or the dedication may be oral. There must, however, be appropriate words to show an intention to dedicate the property. The use of the word ‘waqf’ is neither necessary non conclusive. The word ‘waqf’ means detention or stoppage. There is extinction of the proprietor’s ownership and detention in the implied ownership of God. Mariam Babi v. Mohd. Abdul Rahiman Sait.
A waqf means property dedicated to God which is ultimately to be devoted to pious, religious on charitable purpose though the intermediate beneficiaries may be members of the waqifs family. A mutawalli is usually appointed to manage the property and to apply it or the income and profits from it for the purpose of the waqf. Where the intermediate beneficiaries are the waqifs family and descendants the waqf is alled “waqf-alal-aulad.” There is no essential phrase on them prescribed for the constitution of a waqf. A waqf may be made orally on in writing.
The supreme court has in relation to the Muslim law of waqf quoted with approval the following passage from Mr. Ameer Ali’s Judgment in Viday Varuthi v. Balaswami.It owes its origin to a rule laid down by the prophet of Islam; and means, the trying of the property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. As a result of the relation of a waqf, the right of waqf is extinguished that the ownership is transferred to the Almighty. The manner of the waqf is the Mutawalli, the governor, superintendent or curator. But in that capacity, has not right in the property belonging to the waqf; the property is not vested in him and he is not trustee in the legal sense.
The Hindu law is silent about waqf.
In Islam, wealth and property belongs to Allah. A Muslim is not an absolute owner of his or her property. A Muslim must only spend his or her property in the ways that Allah enjoins since wealth given to him is a trust. A trustee must administer the property as instructed by his principal. No deviation is allowed. Principally, a Muslim should spend his property for the maintaining and sustaining of oneself, family and community at large. Devolution of property for this purpose could be either obligatory or commendable. It is therefore a duty of a husband to maintain his family. The family members who are dependent on this payment have the rights to claim, if the payment is not made to them. Likewise, the better-off members of the community are obliged to pay a fixed amount of money or goods to the poor known as zakat or alms. But unlike payment of maintenance to family members, this payment is not enforceable by the poor as their rights. In certain cases, it is the government which will enforce the payment. In other, it is left to the conscience of a Muslim to observe it. Thus, devolution of property in Islam is prioritized for fulfilling the basic needs of oneself and family and obligation towards the poor through alms.
Charitable donation is indeed commendable and encouraged in Islam. This is done whether the needs of a person and his family have been satisfied or not. The Prophet Muhammad (PBUH) and his Companions were said to have donated most of their properties towards the cause of Islam and barely left them with provisions. In normal circumstance, donation is taken from the surplus. It is also commendable to gift present to close relatives and friends. Gifts can also be given to orphans, travelers and others who are in need. These are deeds of piety and do not have any contractual consequence. Islam allows Muslims to invest property with a view to accrue profits. Similarly, there is no harm to transfer one’s property gratuitously to another by means of contractual obligation. Bequest (wasiyyah), gift (hiba) and trust property (waqf) are some of the common gratuitous contracts in Islam. They are deemed as gratuitous as no consideration is needed or required.