Gift

1.1 Introduction of Gift

In Muslim law, gifts are called “hiba”. A gift is generally considered as the exchange or
transfer of ownership of any property from one person to another where the sender
willingly transfers his/her property to the receiver without any compensation i.e., without
considering any monetary value. A gift is often called a form of reward. It may be given by
sender to receiver during any events like Wedding Ceremony, Birthday Party etc. A gift may
be in the form of moveable property or immovable property. When the sender will have
intention to deliver any gift to the receiver of that gift and when the receiver will accept that
gift without any consideration from sender by law then this gift should be recognized as a
legal gift by law. A gift may become revoked and void by law when the essential elements of
a gift are not implemented properly. The most essential element of Hiba is the declaration “I
have given”.1

1.2Concept of Gift or Hiba

The conception of the term ‘gift’ as used in the Transfer of Property Act, 1882 is somewhat
different from the practice under the Muslim Law. Under the Muslim Law, a gift is a transfer
of property or right by one person to another in accordance with the provisions provided
under Muslim law. Hiba (Tamlik al ain), is an immediate and unconditional transfer of the
ownership of some property or of some right, without any consideration or with some
return (ewaz); and the term ‘hiba’ and ‘gift’ are often indiscriminately used but the term
hiba is only one of the kinds of transactions which are covered by the general term ‘gift’. The
other types of gifts include Ariya (Tamlik al manafe), where the only usufruct is transferred
and Sadqah where the gift is made by the Muslim with the object of acquiring religious
merit.

A man may lawfully make a gift of his property to another during his lifetime, or he may give
it away to someone after his death by will. The first is called a disposition inter vivos; the
second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but
while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is
limited to one-third of the net estate. Muhammadan law allows a man to give away the
whole of his property during his lifetime, but only one-third of it can be bequeathed by will.

The Hanafi lawyers define hiba as ‘an act of bounty by which a right of property is conferred
in something specific without an exchange’. The Shias hold that ‘a hiba is an obligation by
which property in a specific object is transferred immediately and unconditionally without
any exchange and free from any pious or religious purpose on the part of the donor’.
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.2
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The Mohammedan law define Hiba or gift transfer of a determinate amount of property
without any exchange from one person to another and accepted by on behalf of the latter.
Until acceptance the gift has no operation. A further condition relating to it is that donors
should complete his intention by delivering possession of property to the Donee, until then
property remains entirely at the disposal of the donor and upon his death it will descend to
his heirs. If position is given afterward in pursuance of the gift they need not be a renewal of
the gift.3

1.3 Definition of Gift

A Hiba is an immediate Transfer of Property for transfer of ownership of some movable

property, right by one person to another without any consideration.

Different jurists define as a gift,

According to Hedaya– “Hiba is an unconditional transfer of ownership in an existing

property, made immediately without any consideration.”

According to Ameer Ali– “A Hiba is a voluntary gift without consideration of property by one
person to another so as to constitute the donee the proprietor of the subject-matter of the
gift.”

According to Mulla– “A Hiba is a transfer of property, made immediately and without any
exchange by one person to another and accepted by or on behalf of the latter.”

According to Fyzee– “Hiba is the immediate and unqualified transfer of the corpus of the
property without any return.”4

1.4 Salient Features of a Hiba

After anatomizing the definitions and meaning, some prominent features of Hiba emerge as
follows:

1. Hiba is a transfer of property by act of the parties and not by operation of law. It
means that any transfer of property done by the court of law or any transfer of
ownership by the Muslim law of inheritance will not be considered as Hiba.
2. Under Hiba, a living Muslim voluntarily transfers the ownership of any property to
another living person. Hence, it is a transfer inter vivos.
3. The transferor transfers ownership of the property in absolute interest and the
transferee gets the complete title in respect of the property given to him.
Conditions, restrictions or partial rights in the gifted property are averse to the
concept of Hiba under Islamic law.
4. Hiba is operative with immediate effect and deprives the transferor of his control
and ownership over the property. Moreover, as the property is passed immediately

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 to the transferee, the property must be in existence at the time when the gift is
made. A gift made for a property which will exist is future is termed as void.
5. A Hiba is a transfer of property without any consideration. If anything of any value is
taken by the transferor in return or exchange, such a transfer of property is not a
gift.

1.5 ESSENTIALS OF Gift or HIBA

Since Muslim law views the law of Gift as a part of the law of contract, there must be an
offer (izab), an acceptance (qabul), and transfer (qabza).

In Smt Hussenabi v Husensab Hasan, a grandfather made an offer of a gift to his

grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no
express of implied acceptance was made by a major grandson. Karnataka HC held that since
the three elements of the gift were not present in the case of the major grandchild, the gift
was not valid. It was valid in regards to the minor grandchildren.

Thus, the following are the essentials of a valid gift-

1. A declaration by the donor:

There must be a clear and unambiguous intention of the donor to make a gift. A
declaration is a statement which signifies the intention of the transferor that he
intends to make a gift. A declaration can be oral or written. The donor may declare
the gift of any kind of property either orally or by written means. Under Muslim law,
writing and registrations are not necessary.

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul, it was held that under
Muslim Law, declaration, as well as acceptance of the gift, may be oral whatever may
be nature of property gifted. When the gift is made in writing, it is known as
Hibanama. This gift deed need not be on stamp paper and also need not be attested
or registered. In the famous case of Md. Hesabuddin v Md. Hesaruddin, where the
gift was made by a Muslim Woman and was not written on a stamp paper, Gauhati
High Court held that the gift was valid.

The declaration made by the donor should be clear. A declaration of Gift in

ambiguous words is void. In Maimuna Bibi v. Rasool Mian, it was held that while the
oral gift is permissible under Muslim law, to constitute a valid gift it is necessary that
donor should divest himself completely of all ownership and dominion over the
subject of the gift. His intention should be in express and clear words. According to
Macnaghten, “A gift cannot be implied. It must be express and unequivocal, and the
intention of the donor must be demonstrated by his entire relinquishment of the
thing given, and the gift is null and void when he continues to exercise any act of
ownership over it.” The declaration should be free from all the impediments such as
inducement, threat, coercion, duress or promise and should be made with a bona
fide intention.
 2. Acceptance by the donee

A gift is void if the donee has not given his acceptance. The legal guardian may
accept on behalf of a minor. Donee can be a person from any religious background.
Hiba in favor of a minor or a female is also valid. A child in the mother’s womb is a
competent done provided it is born alive within 6 months from the date of
declaration. A juristic person is also capable of being a donee and a gift can be made
in their favor too. On behalf of a minor or an insane person, any guardian as
mentioned under the provisions of Muslim law can accept that gift. These authorized
people include:

 Father,
 Father’s Executor,
 Paternal Grand-Father, and
 Paternal Grand Father’s Executor.

3. Delivery of possession by the donor and taking of the possession by the done:

In Muslim law, the term possession means only such possession as the nature of the
subject is capable of. Thus, the real test of the delivery of possession is to see who –
whether the donor or the donee – reap the benefits of the property. If the donor is
reaping the benefit, then the delivery is not done and the gift is invalid.

The mode of delivery of possession depends completely upon the nature of the
property. Delivery of possession may either be: Actual, or Constructive.

1. Actual Delivery of Possession: Where the property is physically handed over to the
donee, the delivery of possession is actual. Generally, only tangible properties can be
delivered to the done. Tangible property may be movable or immovable. Under
Muslim law, where the mutation proceedings have started but the physical
possession cannot be given and the donor dies, the gift fails for the want of delivery
of possession[xviii]. However, in such cases, if it is proved that although the mutation
was not complete and the done has already taken the possession of the property,
the gift was held to be valid.
2. Constructive Delivery of Possession: Constructive delivery of possession is sufficient
to constitute a valid gift in the following two situations:

 Where the Property is intangible, i.e. it cannot be perceived through senses.

 Where the property is tangible, but its actual or physical delivery is not possible.

Under Muslim law, Registration is neither necessary nor sufficient to validate the gifts of
immovable property.  A hiba of movable or immovable property is valid whether it is oral or
in writing; whether it is attested or registered or not, provided that the delivery of
possession has taken place according to the rules of Muslim Law. 5
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1.6 SUBJECT MATTER OF GIFT UNDER MUSLIM LAW

Now the question which we have in mind is what can be a subject matter of Hiba, under
Muslim law. As per the provisions of Transfer of Property Act, 1882, the subject matter of
the gift must be certain existing movable or immovable property. It may be land, goods, or
actionable claims. It must be transferable under Section 6. But it cannot be future property.
A gift of a right of management is valid, but a gift of future revenue of a village is invalid.

These cases were decided under Hindu and Mohammedan law respectively but they
illustrate the principle. In a Calcutta case, it was said that the release of a debt is not a gift,
as a gift must be of tangible property. It is submitted that the release of a debt is not a gift as
it does not involve a transfer of property but is merely a renunciation of a right of action.

It is quite clear that an actionable claim such as a policy of insurance may be the subject of a
gift It is submitted that in a deed of gift the meaning of the word ‘money’ should not be
restricted by any hard and fast rule but should be interpreted having regard to the context
properly construed in the light of all the relevant facts. Therefore, in order to constitute a
valid gift, there must be an existing property. In Mohammedan law, any property or right
which has some legal value may be the subject of a gift.

Under Muslim law, following constitute the subject matter of Hiba:

1. It must be anything (moveable or immovable, corporeal or incorporeal) over which

the right of property may be exercised or anything which exists either as a specific
entity or an enforceable right, or anything designable under the term mal (property).
2. It must be in existence at the time when the gift is made. Thus, the gift of anything
that is to be made in the future is void. For example, a donor makes a gift the fruits
of his mango garden that may be produced this year. This gift is invalid since the
mangoes were not in existence at the time of making the gift.
3. The donor must possess the gift.
4. A gift of a part of a thing which is capable of the 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. For example, A, who owns a house, makes a gift to B of the
house and of the right to use a staircase used by him jointly with the owner of an
adjoining house. The gift of A’s undivided share in the use of the staircase is not
capable of division; therefore, it is valid.
5. According to Hanafi law, the gift of an undivided share in any property capable of the
division is, with certain exceptions, incomplete and irregular (fasid), although it can
be rendered valid by subsequent separation and delivery of possession. For instance,
a makes a gift of her undivided share in certain lands to B, and the share is not
divided off at the time of the gift but is subsequently separated and possession
thereof is delivered to B, the gift although irregular (fasid) in its inception, is deemed
valid by subsequent delivery of possession.
 Exceptions: Gift of such undivided share is valid which is incapable of division: a) Hiba by
one co-heir to the other; For instance, A Muslim woman died leaving a mother, a son,
and a daughter. The mother made a gift of her unrealized one-sixth share jointly to the
deceased’s son and daughter. The gift was upheld by Privy Council.

b)      Hiba of a share in freehold property in a large commercial town; For instance, A
wins a house in Dhaka. He makes a gift of one-third of his house to B. The property
being situated in a large commercial town; the gift is valid.

c)      Hiba of a share in a zamindari or taluka; According to Ameer Ali, the doctrine of
Musha is applicable only to small plots of land, and not to specific shares in large
landed properties, like zamindaris. Thus, if A and B are co-sharers in a zamindari,
each having a well –defined share in the rents of undivided land, and A makes a gift
of his share to B, there is no regular partition of the zamindari, the gift is valid.

d)     Hiba of a share in a land company

Muslim law recognizes the difference between the corpus and the usufructs of a
property. Corpus, or Ayn, means the absolute right of ownership of the property
which is heritable and is unlimited in point of time, while, usufructs, or Manafi,
means the right to use and enjoy the property. It is limited and is not heritable. The
gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a
property is called Ariya.

In Nawazish Ali Khan vs Ali Raza Khan, it was held that gift of usufructs is valid in
Muslim law and that the gift of corpus is subject to any such limitations imposed due
to usufructs being gifted to someone else. It further held that gift of a life interest is
valid and it doesn’t automatically enlarge into the gift of corpus. This ruling is
applicable to both Shia and Sunni.

Hence critical scrutiny of the concept of Gift under Muslim law gives us the following
instances regarding what can be the subject matter of Hiba:

 anything over which right of property may be exercised.

 anything which may be reduced to possession.
 anything which exists either as a specific entity or as an enforceable right.
 anything which comes within the meaning of the word mal.In Rahim Bux vs Mohd.
Hasen, it was held that gift of services is not valid because it does not exist at the
time of making the gift.6

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1.7 Qualifications of donor
Every Muslim donor must possess the following qualifications-
(a) He must be major;
(b) He must be a man of sound mind or sane and
(c) He must be an owner of the thing given at the time when the gift is made.
Explanation
A minor cannot make a valid gift, because minority stands on the way of making gift. A
donor must have to attain majority. A lunatic also cannot make a valid gift because of his
insanity. A donor should also hold the title of the thing to be gifted. A woman is free to
make a valid gift of her property, but if she is a pardanoshin lady, she is presumed to be
weak and ignorant and likely to be imposed upon by undue influence. unless the contrary is
shown.
If the donor has been suffering from death illness or Marz-ul Maut. such a gift is neither
exactly a gift, nor exactly a will, but a mixture of both. A gift made during Marz-ul Mautl
cannot take effect beyond one third estate of the donor, after paying funeral expenses and
debts. If any, unless the heirs have their consent, after the death of the donor. Again, a gift
(will) to heirs will be effective with the consent of other heirs, after the death of the donor.
An insolvent may make gift with bonafide intention, but a gift to defraud the creditors is
voidable their option. The donor, therefore. must have sanity, majority, ownership, free
mind or free from undue influence.7

1.8 Qualifications of a donee

(a) Gift in favour of legal Person

According to Islamic law, a done qualification. In the absence of those qualifications. it shall
be deemed that the donee lacks legal capacity and as such this gift Will become invalid. Gift.
therefore, must be made in favour of the following persons:

1. Donee must be in existence: -

a) A gift can be made in favour of any person natural or juristicwho is in existence and is
capable of holding or owning property. Gift to a lunatic or minor is valid provided the
possession of the gifted movable property is transferred to their legal guardians.

(b) Gift in favour of an unborn person:-

An unborn person means a person not in existence and so is incapable to hold or own any
property. A Gift made in favour of an unborn person is invalid.

(c)Gift in favour of a child in the womb: -

A gift to an unborn child may be made provided the child is born within six months from the
date of the gift. The argument is that this is the shortest period of gestation. But if a child is
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born after six months from the date of gift. it is invalid as there is possibility that it
Was conceived after the gift was made.

2. Gift in favour of juristi person:-

Gift made in favour of a juristic person like mosque is valid because a mosque is
recognized as a juristic person.

3. Gift to a non- MuslimA Gift made to a non-Muslim is valid. Once the donee (non-
Muslim) accepts the gift. the property becomes the subject to his personal law.

4. Identity of the donee: -

It is necessary for the validity of the gift that the donee is to be identified. otherwise, it shall
be invalid.8

1.9 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.

(i) Hiba

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.

(ii) Sadaqa

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.

(iii) Hiba-bil-iwaz

The hiba-bil-iwaz is a transaction made up of two district donations, separate acts of hiba,
between two persons, 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.

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(iv) Hiba-ba-shart-ul-iwaz

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.

1.10 REVOCATION OF GIFT

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. The Muslim law-givers have approached the subject of revocability of
gift from several angles.

From one aspect, they hold that all gifts except those which are made by one spouse to
another, or to a person related to the donor within the degrees of prohibited relationship,
are revocable.

The Hedaya gives the reasons thus:

“The object of a gift to a stranger is a return for it is custom to send presents to a person of
high rank that he may protect the donor; to a person of inferior rank that the donor may
obtain his services; and to person of equal rank that the donor may obtain an equivalent
and such being the case it follows that the donor has the power of annulment, so long as
the object of the deed is not answered, since a gift is capable of annulment”.

The texts of Muslim law lay down a long list of gifts which are irrevocable. The contents of
the list differ from school to school, and the Shias and the Sunnis have the usual differences.
The Muslim law-givers also classify gifts from the point of view of revocability under the
following two heads[xxxiii]:

 Revocation of gifts before the delivery of possession, and

 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
donee. Thus, P makes a gift of his motor-car to Q by a gift deed. No delivery of possession
has been made to Q. P revokes the gift.

The revocation is valid. In this case, it will not make any difference that the gift is made to a
spouse, or to a person related to the donor within the degrees of prohibited relationship.
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, and whether or not it is revoked, it will not be valid till the
delivery of possession is made to the donee.

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. For the revocation of such
gifts, no order of the court is necessary. Fyzee rightly says that this is a case of inchoate gift
and it is not proper to apply the term revocation to such a gift.

 Revocation 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. Till 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.

It seems that:

 all gifts after the delivery of possession can be revoked with the consent of the
donee,
 revocation can be made only by a decree of the court.

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.

According to the Hanafi School with the exception of the following cases, a gift can be
revoked even after the death of the donee.

According to the Hanafi School, with the exception of the following cases, a gift can be
revoked even after the delivery of possession. The exceptions to the same are:

 When a gift is made by one spouse to another.

 When the donor and the donee are related within the prohibited degrees.
 When the donee or the donor is dead.
 When the subject-matter of the gift is no longer in the possession of the donee, i.e.,
when he had disposed of it by sale, gift or otherwise or, where he had consumed it,
or where it had been lost or destroyed.
 When the value of the subject-matter has increased.
 When the identity of the subject-matter of the gift has been completely lost, just as
wheat, the subject-matter of gift, is converted into flour.
 When the donor has received something in return (iwaz).
 When the object of the gift is to receive the religious or spiritual benefit or merit,
such as sadaqa.

The Shia law of revocation of gifts differs from the Sunni law in the following respects: First,
gift can be revoked by a mere declaration on the part of the donor without any proceedings
in a court of law; secondly, a gift made to a spouse is revocable; and thirdly, a gift to a
relation, whether within the prohibited degrees or not, is revocable. 9

1.11 Gift to Minor

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Any gift made in favour of a minor or insane person is valid. They may not have the capacity
to understand the legal consequences but they are persons in existence and thus, are
competent donee. But such gifts are valid only if accepted by the guardian of the minor or
insane donee. A gift is void without the acceptance by the guardian.

For the purpose of acceptance of the gift, the guardian of a minor or insane donee are as
under in the order of priority:

1. Father
2. Father’s executor
3. Paternal grandfather
4. Paternal grandfather’s executor

Therefore, in the presence of the father, the paternal grandfather is not allowed to accept
the gift on behalf of the minor or insane and so on. If all the above-mentioned guardians are
not present, then the gift is accepted by the ‘guardian of the property of minor or insane’.

If a guardian himself makes a gift in favor of his ward, he will declare the gift acting as a
donor and has the capacity to accept the gift as the guardian of the minor or insane.

It is to be noted here that the mother is not recognized as the guardian of the property of
her minor child. Hence, she is not entitled to accept the gift on behalf of her minor child.

Where a gift is made to a minor or lunatic, the gift is complete only if the guardian has taken
the actual or constructive delivery of possession of the property on behalf of such persons.
If the possession is taken by any other person who is neither a legal guardian nor a de facto
guardian, the gift becomes ineffective and void.

Katheessa Ummand v. Naravanath Kumhamuand is a leading case on this point.

Facts: In this case, a Muslim husband made a registered gift to his wife who was a minor.
The gift was accepted by the donee’s mother. Unfortunately, after two years, the husband
died and soon after it the donee (wife) also died. The validity of the gift was challenged by
the elder brother of the donor (husband) on the ground that there was no delivery of
possession as a gift to the minor was accepted by her mother who is not a legal guardian
according to the Islamic law.

Issue: The question before the court was whether a gift by a Muslim husband to his minor
wife and accepted by the mother on behalf of the minor wife, is valid?

Held: The court, in this case, held that it is a well-established rule under Islamic law that
mother is not a legal guardian of the minor’s property, therefore, she is incompetent to take
the delivery of the possession on behalf of the minor donee. But, in case there is no legal
guardian to accept the gift, the completion of the gift for the benefit of the minor has the
utmost significance.

If the donee had already attained the age of puberty, the gift is valid even if it is accepted by
a person who has no authority to accept the gift on behalf of a minor. In this case, the gift
was held to be valid although the delivery of possession was not accepted by any competent
guardian on behalf of minor but since the minor had reached the age of discretion (fifteen
years) and was competent to accept the gift herself. 10

1.12When 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.11

1.13 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.

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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.”12

1.14 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 favor 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 usufruct 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.

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(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.

1.15 Consideration

A „gift‟ is a transfer. But it does not contain any element of consideration. Complete
absence of monetary consideration is the main, hallmark, which distinguishes a „gift‟ from a
grant, sale, exchange, or any other transactions for valuable or adequate consideration.
Where there is any equivalent of benefit measured in terms of money in respect of a „gift‟,
the transaction ceases to be a „gift‟. Love, affection, spiritual benefit and many other factors
may enter in the intention of the donor to make a „gift‟. The word 'consideration' has not
been defined in the T.P. Act, but means the same as in the Contract Act excluding natural
love and affection. If not, and if the transfer involved consideration, the transaction would
amount to a sale within the meaning of sec. 54 or to an exchange within the meaning of sec.
118. The essence of a „gift‟ inter vivos must be without 'consideration' of the nature
defined in sec. 2(d) of the Contract Act. A „gift‟ in lieu of conferring spiritual benefit to the
donor is not a transfer with consideration, but is to be treated as a „gift‟. Where a mother
„gift’s property to her only daughter, who promises to maintain the former throughout her
life, the promise is not enforceable in law because the „gift‟ has to be for natural love and
affection and not for any consideration. A minor may be a donee and the minor's natural
guardian can accept the „gift‟ on behalf of the minor. But if the „gift‟ is onerous, the
obligations cannot be enforced against the minor during his minority. But on his attaining
majority, the minor must accept the burden or return the „gift‟. The donee can even be a
child in its mother's womb.13

1.16 Void Gifts

Conditional 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.

Contingent gift

A gift cannot be made dependent on anything 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.

Future gift

A gift cannot 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.

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Gift to unborn person

A Gift Cannot make to unborn person. But a gift of life interest in favor on an unborn person
is valid if he comes into existence when such interest opens out.
 Chapter 2

Will
2.1 Introduction

“A will or Wassiyat” is a device or can we say as an instrument with the help of which an
owner of the property makes a disposition of his property, that is, to take effect after the
death of such a person and by the virtue of its nature is rescindable.

A will turns into an enforceable handiest after the demise of the testator. It offers, in reality,
no rights to the legatee (the individual that inherits till the loss of life of the testator). It has
no impact on the course of the lifetime of the testator. The regulation on Muslim Wills is
different from the regulation governing Wills made by using Hindus or those made below
the Indian Succession Act, 1925. This is because, under Muslim law, the testamentary
disposition of belongings is considered to be Divine in nature and attracts on the Quran. The
Muslim Will isn’t always governed via the Indian Succession Act, 1925. The Muslim personal
legal guidelines in India, or the Shariat law, decrees certain regulations and rules and
approaches in which a man or woman can dispose of his/her belongings. A will carried out
by means of someone may also be revoked if loses his sanity and will become of unsound
mind next to the execution of a will.14

2.2 Meaning and nature of Will

Conventionally, a Will, also called ‘testament’ is an implement which enables a person to

dispose of his own property to someone whom he wants to give after his death. A Will
comes into effect only after the death of the person who created the Will. A Will is a legal
declaration of transfer of property by a person after his death.

In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The person who executes
the Will is called ‘legator’ or ‘testator’ and the person in whose favour the Will is made is
known as ‘legatee’ or ‘testatrix’. A very famous Muslim scholar ‘Ameer Ali’ defined a Will
from the point of view of Mussalman as a divine institution because its exercise is regulated
by the Holy Quran. At the same time, Prophet had proclaimed that such testamentary
powers must not exert any damage to the lawful heirs.

There is a strict rule in Islamic law that governs the validity of a Will. According to this rule, a
Muslim can make a Will in favour of anyone, only to the extent of one-third of his total
property. If the Will is made beyond one-third of the property, the consent of the legal heirs
is mandatory no matter in whose favour the Will is made. It can be hypothesized that a Will
is a kind of gratuitous transfer of ownership made through a testamentary document which
comes into play after the death of the legator. As far as the legal concept of Will is
concerned, basically it is a gift testamentary. 15

2.3 Origin of Will

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Underneath Muslim Laws, no person is entitled to make the will of the complete property.
Barriers are imposed in making a will. The purpose is to pay the honor to the word of
Prophet so that you can ensure the stocks of the legal heirs. Wills are declared lawful in the
supreme rule book of Muslims Quran, although the Quran does not say anything about wills.
The limit up to which one can bequest his own property is only 1/3 of his estate traced to a
Hadith of the Prophet which has been said via Sa’dIbnAbiWaqqas and the information was
scattered by Bukhari.

The story behind this was one of the fellow associates of Prophet was very ill and there
were chances of his death, as was very old as well, also he canceled his Mecca due to ill-
health. He was asked by the Prophet about the distribution of his wealth, for which replied
that he will give all his property in charity (not to the family), to which Prophet said he
should give only 1/3 of his total property to any one of his choices so that the major portion
remains within the family and they will not become destitute in future.

2.4 Object of Will

Everybody likes to make sure that the life he has led has been significant and is concerned
approximately his property after his loss of life. Someone can make sure as to how his assets
must devolve and to whom it shall devolve, after his death, through a will. If someone dies
without leaving behind his will, his belongings might devolve by using manner of regulation
of intestate succession and not testamentary succession (i.e. in accordance to the need)
hence, it’s miles top-rated that one needs to make a will to make certain that one’s real
intension is observed and the assets is devolved as a result. Will is a vital testamentary
device via which a testator can give away his belongings according to his needs. Prior to the
devolution of the property of the deceased who’s difficult to Islamic laws, it must be glad
that his funeral prices and money owed are fully paid. Wills under the Islamic regulation
traced its basis and suggestions from the holy Quran, consequently, the making of a will is a
divine mandate and the will itself should be made with the purest of coronary heart. It
offers the testator the possibility to make provisions for his heirs and dependents. It’s also a
manner of fending for the terrible and worthwhile deserving friends and servants. 16

2.5 Formalities of Making a Will:

 There are no specific formalities as to make a will. There’s neither any layout nor any
requirement laid down because it needs to be written.
 If it is in writing, then it wants now not to be signed.
 It does not require any attestation if attested then no need for registration.
 Even the instructions of the testator on a blank paper would constitute a Will.
 In Mazhar vs. Bodha, 21 All 91 a letter was written by a Muslim just before dying,
made a Will, that directs the ratio of transactions of his property, which was later
accepted as a valid will.17

2.6 The importance of the will

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The importance of the Islamic will (wasiyya) is clear from the following two hadith:

 "It is the duty of a Muslim who has anything to bequest not to let two nights pass
without writing a will about it." (Sahih al-Bukhari)
 "A man may do good deeds for seventy years but if he acts unjustly when he leaves
his last testament, the wickedness of his deed will be sealed upon him, and he will
enter the Fire. If, (on the other hand), a man acts wickedly for seventy years but is
just in his last will and testament, the goodness of his deed will be sealed upon him,
and he will enter the Garden." (Ahmad and Ibn Majah)

the will gives the testator an opportunity to help someone (e.g. a relative need such as an
orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will
can be used to clarify the nature of joint accounts, those living in commensality,
appointment of guardian for one’s children and so on. In countries where the intestate
succession law is different from Islamic law it becomes absolutely necessary to write a will. 18

2.7 Void wastyat or will

A Wasinat may be valid or void. A wastyat is treated as valid if it satisfies all the requisite
conditions. But a void wasiyat does no satisfy the essential conditions and thus it becomes
inoperative. Some examples of void wasival are the following:

1. Bequest in future

A bequest in future is void. I he subjects of bequest is to be present at the time of death of

the testator.

2. Contingent bequest

A contingent bequest is void. A bequest which is to take effect on the happening of a

contingency is void, unless permitted by a lawful custom.

3. Conditional bequest

A bequest of the corpus of any property made with a condition which derogates from the
completeness of the wasiyat, such condition is void and the legatee is entitled to the
ownership of the property, as if no conditions were attached to it. For examples. bequest in
favour of an heir subject to condition that the legatee (her) should not sell the property
bequeathed. The other heirs gave their consent to the bequest. Here the condition is void
and hence the legatee would take the property absolutely.

4. Wasiyat to heir is void

A wasiyat in favour of an heir is void. unless it is consented by other heirs.

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 5. Bequest more than one-third

Bequest more than one-third is void, if the other heirs refrain forgiving their consent.

6. Bequest to an unborn child

Bequest to an unborn child is void. But it is valid if the child is born within six months from
the date of wasiyat.

7. Refusal to accept the legacy

Refusal to accept the legacy by legatee is of no effect. A legatee is at liberty to refuse the
legacy as nobody can be compelled it against his intention. The legacy will fail in this case.

8. Death of legatee

If the legatee dies before the death of the testator, the legacy becomes ineffective.

9. Wasiyat in favuor of a murderer

A bequest in favour of a person who intentionally causes the death of the testator is void
according to all schools. But to Hanafis, a bequest is not lawful to a person who causes the
death of the testator even unintentionally, by accident of misadventure, unless the person
causing the death is an infant or an insane person.

10. Bequest in favour of infidel

According to all schools, a wasivat by a Muslim in favour of an alien infidel is void.

11. Intention of the testator

A Wasiyat shall be deemed to be void if it is made with the intent to deprive the heirs. 19

2.8 Three main principles of a wasiyat

A valid wasivat must follow certain cardinal principles which are as follows:

1. Wasiyat becomes effective only after the death of the testator

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Wasiyat or will comes into force after the death of the testator and not before that. A
wasivat will be ineffective if the legatee dies before the death of the testator. The testator,
however. can revoke thewasiyat at any time before his death.

2. No bequest to heir

It is one of the principles that bequest cannot be made in favour of any heir. The argument
in favour of this principle is that the heirs are entitled to inherit the property of testator who
is also propositus by virtue of their rights prescribed in the Islamic law of inheritance. So a
testator is prevented from interferring by wasivat with the course of devolution of property
among his heirs according to law. It also safeguards practice of faouritism and prejudice and
violation of Quranic law of inheritance. A bequest to heir, therefore. is not valid unless the
other heirs consent to it after the death of the testator. lf one heir gives his consent, he
binds his Own share and none of his heirs can challenge it subsequently. Bequest in favour
of a disabled child. for example, who has been deprived of educational or financial
opportunities enjoyed by other members of the family. is a good ground.

3. Limit of testamentary power

By wasivat a Muslim cannot dispose of more than one-third of his estate left after the
payment of funeral expenses and debts. This is in accordance with a Hadith narrated by Abu
waqqas stated above, but in case of bequest which is more than one-third. the consent of
other heirs must be required after the death of testator. But consent given by them during
the life time of the testator is of no legal effect. The following illustration is given for easy
understanding: Abdullah died leaving tk. forty thousand as his gross assets; one thousand. is
spent for funeral expenses: he had debt amounting to nine thousand, his net asset is thirty
thousand. Here bequethable third amounts to ten thousand taka. So any amount more than
this is invalid.20

2.9 Essentials/ Requisites of a valid will

A will to be valid, the following conditions are to be satisfied:

1. Capacity/Competence of Testator (Al-musi)

2. Competence of Legatee (Al-musa lahu)

3. Subject Matter

1. Capacity/Competence of Testator:
Every adult Muslim with reasoning ability has the legal capacity to make a will. An adult
for this purpose is someone who has reached puberty. Evidence of puberty is
menstruation in girls and night pollution (wet dreams) in boys. In the absence of
evidence, puberty is presumed at the completion of the age of fifteen years. The Maliki
and Hanbali fiqh also consider the will of a discerning (tamyiz) child as valid.

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 Under English Law you must be at least 18 years of age to make a valid will (similarly in
most of the United States of America) unless you are some military personnel in which
case you may make a valid will at the age of 17.
the testator must have the legal capacity to dispose of whatever he bequests in his will.
When making a will the testator must be of sane mind, he must not be under any
compulsion and he must understand the nature and effect of his testamentary act. The
testator must of course own whatever he bequests. The testator has the right to revoke
his will by a subsequent will, actually or by implication. In traditional Sunni Islamic law,
the power of the testator is limited in two ways:
firstly, he cannot bequest more than 1/3 of his net estate unless the other heir’s consent
to the bequest or there are no legal heirs at all or the only legal heir is the spouse who
gets his/her legal share and the residue can be bequeathed.
Narrated Sa‘d ibn Abi Waqqas (RA): "I was stricken by an ailment that led me to the
verge of death. The Prophet came to pay me a visit. I said, "O Allah's Apostle! I have
much property and no heir except my single daughter. Shall I give two-thirds of my
property in charity?" He said, "No." I said, "Half of it?" He said, "No." I said, "One-third of
it?" He said, "You may do so, though one-third is also too much, for it is better for you to
leave your offspring wealthy than to leave them poor, asking others for help..." (Sahih al-
Bukhari, Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)
secondly, the testator cannot make a bequest in favour of a legal heir under traditional
Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a
legal heir providing the bequest does not exceed the bequeathable one-third. Legal heir
in this context is one who is a legal heir at the time of death of the testator.
Narrated Abu Hurayrah (RA): Allah’s Prophet (SAWS) said, "Allah has appointed for
everyone who has a right what is due to him, and no bequest must be made to an heir.
(Abu Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn Majah,
Ahmad and others.21
2. Competence of Legatee:
Generally speaking, for a bequest to be valid, a legatee must be in existence at the time
of death of the testator except in the case of a general and continuing legatee such as
the poor, orphans etc.
the legatee must be capable of owning the bequest. any bequest made in favour of any
legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless
consented to by other legal heirs. an acknowledgement of debt in favour of a legal heir
is valid.
acceptance or rejection of a bequest by the legatee is only relevant after the death of
the testator and not before. generally speaking, once, a legatee has accepted or rejected
a bequest he cannot change his mind subsequently.
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 if the legatee dies without accepting or rejecting the bequest, the bequest becomes part
of the legatee’s estate according to the Hanafi fiqh because non-rejection is regarded as
acceptance. According to the other three main Sunni madhahib, the right to accept or
reject the bequest passes onto the heirs of the legatee.
there is difference of opinion as to the time at which ownership of a bequest is
transferred from the testator (or his heirs) to the legatee. According to the Hanafi and
Shafii fiqh the transfer of ownership is at the time of death of the testator, according to
the Maliki and Hanbali fiqh the transfer of ownership is at the time of accepting the
bequest.
all the Sunni madhahib agree that if the legatee dies before the testator, the bequest is
invalid since a bequest can only be accepted after the death of the testator.
if there is uncertainty as to whether or not the legatee survived the testator, such as a
missing legatee, the bequest is invalid because the legatee must be alive at the time of
death of the testator for the will to be valid.
if the testator and legatee die together, such as in an air crash, and it is not certain who
died first, the bequest is invalid according to the Hanafi, Maliki and Shafii fiqh. But
according to the Hanbali fiqh, the bequest devolves upon the legatee’s heirs who may
accept or reject it.22

3. Subject Matter:

Any type of property, immovable or movable, corporeal or incorporeal, which is capable of

being transferred, may form the subject-matter of a bequest. It is not necessary that the
subject-matter of the will should be in existence when the will is made, it is sufficient, if it is
in existence at the time of testator’s death.
The bequest may consist of the corpus or of the usufruct. Under Muslim law, it is possible
that a testator may give to one person and the usufruct to another. Thus, a right to occupy a
house during a future period of time, or to take the rents, or future produce, or usufruct for
a limited time, or for the life time of the legatee may validly constitute the subject-matter of
a will.
As has been stated earlier, the testamentary power of a Muslim is limited to the
bequeathable one-third.
Bequeathable one-third:
The bequeathable one-third means a third of the estate of a testator as it is left after the
payment of his funeral expenses, debts and other charges. The law in this respect may be
stated thus:

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(i) All schools of Muslim law, except the Ithana Ashari School, hold that the bequest of more
than the bequethable one-third is invalid unless consented to by the heirs after the death of
the testator. Consent can be inferred from the conduct.
Mere silence by other heirs by not participating in the concerned proceedings and by
remaining ex parte cannot be considered as implied consent.
(ii) According to the Ithana Ashari School, the consent of the heirs, to validate a bequest of
more than one-third, may be given even during the life time of the testator, and it does not
need ratification after the death of the testator.
The Ithana Asharis also hold that a bequest of any part of the estate even more than
bequeathable one third may be made for the performance of the obligatory religious duties
or by way of muzaribat or qeraz (both words have the same meaning, an enterprise in which
one invests his capital and another his labor with mutual participation in profit is known as
mazari bat or qeraz) on the terms of equal division of profits between the legatee and the
heirs.
(iii) Under a valid custom, a Muslim may be allowed to dispose of his entire property under
his will. The Shariat Act, 1937 does not apply to wills, and, therefore, a Muslim, who has the
power to dispose of his entire property under a will, can do so even now. (See Chapter I of
this work for details).
(iv) If a testator has no heirs, he may dispose of his entire property by a will. The right of the
State to take the property by escheat does not prevent an heirless testator from
bequeathing his entire property.
v) A bequest of more than one-third may be validated by the consent of heirs. The rationale
behind this rule is that the limitation on the testator’s power of disposition is solely for the
benefit of the heirs, and if they want to forego the benefit, they are free to do so.
The consent of heirs may be express or implied. For instance, P bequeaths his entire
property in favor of X, a stranger. The will is attested by P’s two sons, A and B, who are the
only heirs.
After P’s death X enters into possession of the property and recovers rents with the full
knowledge of A and B. These facts are sufficient to indicate the implied consent on the part
of A and B. Consent once given cannot be rescinded.
(vi) Where a testator dies leaving behind only a wife/husband as the sole heir and no blood
relations, then if the testator is a male, he can bequeath 5/6 of his estate, and if the testator
is a female, she can bequeath 2/3 of the estate. For instance, a Muslim woman makes a will
under which she bequeaths one-half of her properties to her husband. She dies leaving
behind her husband and no blood relation.
Under Muslim law, bequests to the heir upto 1/3 of property are valid. Thus, the husband
will take 1/3 of the estate (the bequeathable 1/3 under the will and 1/2 of the remaining as
an heir. In all he takes 2/3—1/3 under the will and 1/3 as an heir).
Ordinarily, the remaining 1/3 will go to the State by escheat, but on account of the bequest
of 1/2 to him (a woman can bequeath upto 2/3 under these circumstances), he again takes
1/6 of the remaining 1/3 to complete the one-half estate that is bequeathed to him. In the
result the husband takes 1/3 as heir and 1/3 + 1/6, as a legatee, Le, in all he takes 5/6; the
remaining 1/6 goes to the State by escheat.
(vii) An heirless Muslim can bequest his entire property. A Muslim who has only his wife as
an heir can bequest the entire property minus the share of the wife.
(viii) If a Muslim had married or got his marriage registered under the Special Marriage Act,
1954, then Muslim law of succession does not apply to him. He is governed by the
Succession Act, 1925, and, therefore, he can bequeath his entire property by a will.
A bequest in future and contingent bequeaths:
A bequest in future is void; so is a contingent bequest. When a Muslim makes a bequest
with a condition, then the condition is void, and the bequest is valid. But this should be read
subject to what has been said about life-estates in Chapter X.
Bequest for pious purposes:
A bequest may be made for pious purposes. Such bequests fall under three categories : (i)
bequests for Jaraiz, Le., for purposes expressly ordained by the Koran such as haj
(pilgrimage), zakat (tithe) and expiration, (ii) bequests for wajiwat, Le., which are themselves
necessary and proper, though not expressly ordained, such as sadaka, Jilrat, charity given on
the day of breaking of the fast, and sacrifices, and (iii) bequests for nawafil, or the bequests
of purely voluntary nature, such as bequest for the poor, for building mosque, a bridge or an
inn.
The one-third rule applies to bequests for pious purposes also. The bequests for Jaraiz have
priority over the other two, and the bequests for Jaraiz, a bequest for haj has priority over
zakat and expiration, and zakat over expiation.
When a bequest violates the one-third rule, and some of the heirs consent to it, while
others do not, the bequest is payable out of the shares of the consenting heirs only.
Abatement of legacies:
When a testator bequeaths in violation of one-third rule and the heirs refuse to give
consent, the bequests, under the Hanafi law, abate rateably. Thus, if a Sunni Muslim
bequeaths 1/2 of his estate to P and 1/4 to Q, since the total exceeds one-third, the legacies
will be rateably reduced at the ratio of 1/2: 1/4. Or, suppose a dies leaving behind a will
under which he directs Rs. 100 to be paid to his relatives, Rs. 100 to the Fakirs, and Rs. 40
for expiration of prayers that he missed. He leaves behind an estate worth Rs. 216. The total
amount of legacies comes of Rs. 240. While the bequeath able one-third is only Rs. 72.
Hence, the legacies must abate in the proportion of 72 to 240, Le; they will be reduced to
40, 30 and 12, respectively.
Under the Shia law, the rule is different. Bequest of prior date takes priority over those of
later date unless the later bequest was intended to revoke the earlier. For instance, a Shia
bequeaths 1/3 of his estate to A, 1/4 to В and 1/2 to C.
The heirs do not consent. The result will be that A will take 1/3, while В and С will not take
anything. Or, suppose a gives 1/12 to P, 1/4 to Q and 1/6 to R. Then P will take 1/12 and Q
will take 1/4. Since this completes the 1/3 estate, R will take nothing but if the same 1/3
successively bequeathed to A, В and C, then it means that the last bequest is in revocation
of the former two. Then С will take 1/3, and A and В will take nothing. 23
2.10 Construction of a Will
Generally, a Will has to be construed in accordance with the rules laid under Islamic law and
scrutinizing the language and intention of the legator. A Will is a document which is made by
a person during his lifetime and comes into effect after his death. So, a Will must be
interpreted to accomplish the intentions of the legator after his death. At certain times, the
language may not be clear and the intention of the legator is ambiguous. In such
circumstances, it is left to the discretion of the heirs to elucidate such Will in whatever way
they want.
For example, a legator bequests a house and a shop for his two sons but doesn’t specify
what is given to whom. Here, the content of the bequest is perplexed. Thus, it is up to the
option of heirs to mutually decide who wants to take what.24
2.11 THE REVOCABILITY OF A WILL:
Since a Will by its nature is revocable. Unless the testator dies with his last declaration of a
Will, he can change or alter anytime or can cancel it either expressly or orally or even by
implied gestures.

 Express Revocation: The express revocation consists of an oral or written declaration

made by the testator. It can be done either orally or even in writing. The intention to
revoke i.e., the reason behind such revocation should be unequivocal.
Codicil to the Will
If a testator intends to make a few changes to the will, without converting the whole will, he
can accomplish that by creating a codicil to the desire. The codicil may be finished in a
comparable way as the desire.

 Implied Revocation: In this state of affairs, the behavior of the testator is to be

inquired into to ascertain whether he has revoked the deed or any of the disposition
in it.
In both mentioned above instances, the working principle is that the testator should exhibit
animus revocandi that is the Latin maxim for the purpose to abrogate the Will the testator
must reveal the intentions for such action.

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Where there provides reason of sickness someone is laid low with he could make disposition
of his belongings supplied there’s a critical apprehension of approximately his demise. That
is comparable to the Latin maxim donatio mortis causa, items or bequests made in
pondered of dying.
Notwithstanding its recognition under the Islamic law, the bequest on this situation must
now not exceed one-third of the property of the testator.

Also few more circumstances as discussed:

 Attempt to suicide by Testator

If a will is executed via a person who has attempted to commit suicide, this sort of will is
pondered as void under the Shia regulation. The good judgment behind this rule is that if a
person has attempted suicide, he can’t be held in his everyday country of thoughts instead,
he is assumed to be mentally volatile and disturbed. But, under Sunni law, a will performed
in such occasions is completely legitimate.

 Murderer of testator
A will comes into effect best after the death of testator. Thus there’s a probability that a
greedy and impatient legatee may motive the demise of the testator with a purpose to
snatch the property as quickly as feasible. A legatee kills or reasons the loss of life of the
testator both intentionally or accidentally isn’t always allowed to take the need and
normally disentitle to take the belongings. However, under Shia regulation, if a legatee
reasons the dying of the testator either by chance, negligently or accidentally, then he’s
certified to take the assets and the desire is treated as a legitimate will.
Death of the legatee before the will is performed:
Under Sunni law, the bequest will lapse and on the death of the testator, the bequeathed
will go to heirs of testators.
Whereas under Shia Law, the legacy will only lapse if the legatee does not have any heir. 25
1. COMPARATIVE STUDY BETWEEN SHIA AND SUNNI LAWS:

SHIA LAWS SUNNI LAWS

Bequest to an heir is invalid even if it is one-

Bequest to an heir is valid only if it is one-third.
third.

In order to pass property more than 1/3 to

Consent of the heirs must be given before or any other person through of the testator,
after the death of the testator. consent of the heirs is necessary to be taken
after the death of the testator.

Bequest in favor of the child in womb of her Bequest in favor of the child in womb of her
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 mother is valid subjected that the child is
mother is valid subjected that the child is born
born within 6 months of date of declaration
within 10 months of date of declaration of will.
of will.

A will by the testator, when written or

A will by the testator who later commits suicide
declared in his all senses, who later commits
is invalid.
suicide is valid.

Legacy must be accepted before or after the Legacy must be accepted after the death of
death of the testator. the testator.

Legatee committing murder or causing death of

Legatee committing murder or causing death
the testator intentionally cannot claim the
of the testator cannot claim the property of
property of the testator, but if accidently or
the testator later.
negligently then he can claim the legacy.

If the legatee dies before testator the legacy If the party in whose favor the Will is
lapses if he dies without any heir or the testator transferred dies before the testator, the
himself revokes the Will. legacy is lapsed.

Chapter 3

Comparison Table Between Will and Gift

Comparison Between Will and Gift26:

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 Parameter of
Will Gift
Comparison
This type of transfer of property
This type of transfer of property is
Type will take effect after the death of
immediate.
the person executing the will.
Will is prepared according to the
A gift deed is prepared by any person who is
family structure. This provision
mentally stable and has attained the age of
Nature enables the person to draft the
18 years or more. There needs to be a blood
will to either divide the property
relation to draft a gift deed.
equally or unequally.
Registration of will is not Gifts that involve immovable property need
compulsory, but to avoid disputes to register under transfer of property act;
Registration
in the future, registering the will is Stamp duty should be paid based on the
advisable. value of the property.
In a gift deed, the asset is transferred
The division of the will can be directly. A gift comes in action during a
made as per the terms of the lifetime, unlike a will. The person giving the
testator. The property need not gift is an heir, and the person receiving a gift
Significance be divided evenly. This process is the heiress. The drafts of gift deed can be
can be altered and hence requires revoked only by the heiress. The heir cannot
an attested document to avoid change the mind once the transaction is
ambiguity. done. Drafting a gift deed is better action to
avoid disputes.
For a will to be valid, two
witnesses’ signature is a must. For a gift deed to be valid, it needs to be
The date and place should be registered mandatorily to have legal
Witnesses – precise, all the terms need to be standing in the present or future. There
and their role transparent and liable. Proving needs to be the presence of at least two
the legator is physiologically witnesses and approval of donee in the
stable during the making of the form of signature.
will is essential.
A gift deed can be challenged by filing a suit;
A will, when want to, is
Tenure – can there are some rules to be followed. This
challenged within 12 years from
gift deed and deed can be challenged only if one can
the date of the death of the
will be establish the act was not as per the wish of
person. The genuineness of will
challenged? the donor. This argument is valid if the
can be questioned in the court.
transaction is fraud or misinterpreted.
 Conclusion
At last we can conclude that, any gift is the transfer of any object which can be moveable
property or immovable property. To make a gift valid it is essential to maintain rules and
regulations which are absence of consideration, Presence of Donor & Donee, Subject matter
of the gift in the form of moveable properly or immovable property, Intention of the Donor,
Delivery of the gift, Acceptance of the gift by donor, paying taxes on gifts by donor except
gift situated in abroad and charity & religious related gifts etc.
A Will is a document which provides right to property to the legatee in a gratuity manner
and is available after the death of the legator. It provides the right and opportunity to the
testator to correct the law of succession to some extent. The Muslim Law of Will confer a
right to person to devolve his property upon a person of his choice while keeping in mind
the rational balance between the law of inheritance and devolution of property under a
Will. The gift and will are two different things under Islamic law.
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