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Alienating The Property Under Muslim Law

The alienation of the property is multifaceted and intricate subject matter under Muslim law, provides a starting point for comprehending the complex legal and cultural aspects that regulate the transfer of assets and distribution of wealth in Islamic communities. The processes of Hiba (gift), Will, Waqf (endowment), and Inheritance provide a multidimensional prism through which to examine the dynamics of property ownership and succession.

The fundamental facet of Islamic law is justice, which is reflected in all facets of property transactions. Hiba is a voluntary gift-giving practice that exemplifies the charitable and giving nature of Islam. Knowing the concept of Hiba sheds light on the societal responsibilities and family relationships that are common in Muslim societies.

According to the Islamic law, Muslim person who owns the property is not his exclusive property even if he has the ownership of the property. The person who able to own the property is only by the god's grace. Hence, the person cannot say that he has his exclusive property or he at his will can dispose the property to anywhere and to anybody. It is true that the if the person has ownership of the property, then he can alienate the property at his will. But the Muslim law gives certain restrictions to the person while alienating the property.

There are different ways to alienate the property as per Muslim law that are by way of Hiba, Will, Waqf, and Inheritance. Section 2[1] of the Muslim Personal Law (Shariat) Application Act, 1937 talks about the application of personal laws to Muslims which says that concept of gifts(Hiba), intestate succession, waqf, inheritance shall be governed by the Muslim personal law. There has not been any concept of self-acquired or ancestral property in Muslim law.

The property will be exclusive at the hand of the owner as long as he alive and no one can take or capture the property going against the will of the owner's property. There are also several ways of alienating the property during the person lifetime as well as the after demise of the person. In this project, I am going to discuss about the different ways one can alienate the property under Muslim law. Further in this project will see whether there is any restriction relating to alienate the whole or only certain amount of property.

Hiba Under Muslim Law

Hiba is a transfer of determinate, voluntary, unconditional and immediate transfer of property from one person who is the ownership of the property to the other person. In Hiba, the person who transfers the property is called the donor and the person to whom the property has come is called donee. The concept of gift in Muslim law is a old concept which is originated from 610 AD to 650 AD.

Hiba is a Arabic term which generally means gift. The concept of gift has been discussed under Chapter VII of Transfer of Property Act, 1882. Section 122 the Transfer of Property Act has defined the term gift. "Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee."[2]

We can see that the definition of gift is similar to the Hiba but the Section 129[3] clearly says that the transfer of property act will be applicable to all the gifts which has been made in India but it won't be applicable to the Mohammedan Law or Muslim gifts. So, to apply the concept of the Muslim gifts, we have to see the Shariat Act, 1937 which is governed by Muslim personal law.

Section 1 of All India Muslim Personal Law Board defined the term Hiba, "If a person transfers with immediate effect the ownership of his movable or immovable property to another person and that other person himself or someone else with his consent takes possession of the property gifted. It is called Hiba."[4] Section 3[5] of All India Muslim Personal Law Board talks about the essential elements of the valid Hiba.

Hiba Has Been Defined By Many Jurists:
  • Hedaya: "Hiba is an unconditional and immediate transfer of Ownership in an existing property, made without any consideration."
  • Ameer Ali: "Hiba is a voluntary gift of property from one person to another without any consideration, resulting in the donee becoming the proprietor of the gifted property."
  • Mulla: "Hiba is the immediate and unconditional transfer of the property from one person to another, and the gift can be accepted by the donee or on behalf of the donee."
  • Fyzee: "Hiba is the immediate and unqualified transfer of the Ownership of the property without any expectation of return."
Gift can be done under two situations that the first one is during lifetime and other one is after the death of the person that is by way of testamentary instrument. In both the situations the owner of the property can transfer the property but only difference between the two is that when the person is transferring the property during the lifetime, he can transfer unlimited amount of his property to anyone that is without taking consent of anyone. But while transferring intestate, that's called it Marz-ul-maut.

The person when suffering from the death illness can make the will to gift his property. But here the restriction is there, the person in marz-ul-maut can only gift, 1/3rd of his property to someone. He can gift more than 1/3rd of his property only if heirs' consent is there.

Hiba Is Of Different Kinds:
  • Pure Hiba
  • Hiba-bil-Iwaz
  • Hiba-ba-Shart-ul-Iwaz
  • Marz-ul-maut

Pure hiba is a type of hiba where the donor bestows the property to the donee without taking any consideration. It is an absolute transfer of the corpus as well as the usufruct of the property. It is an immediate transfer of the property, gift made in future is not recognised as pure hiba. The property should be in existence while making a gift and there is immediate transfer of the possession of the property.

Hiba-bil-Iwaz is kind of gift where first all the essentials of the valid gift should be there that means that donor should make the gift to the donee, which will come under the ambit of valid gift. Then to called a gift as Hiba-bil-Iwaz, the donee will make a return gift to the donor. Here, it is not necessary that the return gift which will donee make to the donor will have the same value of the property which donor gifted, it can be of any value of consideration. Return gift is the after thought process which means this is not mandate on the side of donee to return the gift, it's the voluntary act of the donee.

In Hiba-bil-Iwaz, donor cannot give only the usufruct, he has to give the whole property but it can be possible to give only the usufruct of the property when the donee is making the return gift. Under this kind of gift, registration plays an important role. Once the registration is completed, the gift becomes irrevocable. In addition to it, this kind of gift is also applicable to the gift of Musha in case of divisible property.

Hiba-ba-shart-ul-Iwaz is a kind of gift where there is a pre-conceived agreement between the donor and the donee where both of them have decided that donor will make the gift to the donee and in return the donee will give something to the donor. Here the donee is bound to give I return after the donor has made the gift. In this kind of gift, doctrine of musha will not be applicable.

Extent Of The Donor To Make The Gift

A donor's ability to donate is typically unfettered. As determined by the Privy Council in the "Ranee Khajoorunissa vs. Mst. Roushan Jahan"[6] decision, a donor is permitted to gift all or any portion of their property, even if doing so it will be going to affects the rights of the heirs. Under Muslim law, the donor can choose how much of their property they want to give, he has not had to take the consent of the heirs during intervivos transfer.

There is one exception to this rule. On their deathbed (Marz ul Maut), a person's ability to give is limited in the following ways:
  • Donor is not permitted to gift any of their heirs
  • Donor is not permitted to gift more than 1/3rd of their property
  • These limitations are intended to stop any possible abuse or manipulation of gifts given by people whose health may put them in a vulnerable situation.

Doctrine Of Musha Applicability

As per Hanafi law, When the property is divisible but the gift is being done without dividing the property, doctrine of musha will apply and make the gift, the gift is not void-ab-initio but merely it will be voidable or irregular. If the property is capable of division but not gifting by dividing the property for the better enjoyment of the property then gift will be valid. But as per Shia and Shafii law, gift will remain valid irrespective of the fact that whether the gifting property is divisible or indivisible.

Waqf Under Muslim Law

Waqf is one of the kinds to alienate the property. Waqf means detention or to prevent or to restrain. Waqf is the permanent dedication of the owner's property to the god's ownership. Waqf once done cannot be revocable. The waqf should not be created by contingent or conditional, if made it will be void waqf. The origin of the waqf cannot be traced back to one source. The origin of waqf can be come under the sunnah as once the prophet said that person who holds the property is only by the mercy of the god. In addition to this, prophet said that the property is owned by the person but he can not say it his exclusive property, he has to alienate the property in a way that the poor also gets benefitted.

In Shia law, they are strict about creating waqf that there should not be contingent condition should be there. But in Sunni law, it says that waqf with contingent condition to some extent is permissible.

Section 2(1) in The Mussalman Wakf Validating Act defines the term Waqf. "Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable."[7]

Modes Of Creating Waqf

There are different modes of creating waqf. First one is the Public waqf which means waqf has been made for the beneficial enjoyment of the general public. Here the waqf has not been created to the specified person. For example- graveyard, mosque, wells, etc. The second one is the private waqf. Private waqf again divided into three kinds that is waqf exclusively made to the family, waqf made more for the family and the remaining to the charity, waqf made more for the charity and to some extent to the family.

In these three kinds of private waqf, the first waqf will be void because the object of the waqf is for the pious, religious and charitable purpose, if the waqf is made exclusively to the family then the object of waqf is not fulfilled and hence it will be void waqf. The second and third kind of waqf are valid private waqf. The third mode of creating waqf is waqf by user which means that the owner of the property has not given the property for waqf but by the use of the property by group of people over a time that is for perpetuity for pious, religious and charitable purpose make that property is being waqf.

Whether The Waqf Is Revocoble Or Irrevocable?

The intervivos waqf is irrevocable. But if waqf made by the will or the waqf made during marz-ul-maut can be revocable. As the person who has make the will of waqf can revoke it by making a subsequent will. The person in the marz-ul-maut has made the waqf can be revocable if the person does not die. The extent of doing waqf is not limited in intervivos transfer, any amount of the property can be waqf. But the waqf made by will or by marz-ul-maut is limited to the 1/3rd of the property. The excess of 1/3rd is not allowed. Shia and Sunni law say that excess of 1/3rd of the property can only be permissible if there is consent of heirs are there.

Mutawalli is the person in charge of the waqf; he is merely the administrator and is not permitted to give anyone ownership of the waqf. To be mutawalli, the person must attain the age of puberty, sane, sound mind and should be impartial that not having any kind of interest in the subject matter of the property. He is merely a superintendent of the property and not the owner of the property. He has to take the responsibility of legitimise use of the usufruct of the property as per the wish of the waqif, if specified purpose has mentioned by waqif.

The Supreme Court ruled in Ahmad G.H. Ariff v. Commissioner of Wealth-Tax [8] that a mutawalli cannot sell, mortgage, or lease wakf property unless the Court grants prior authorization or unless the power is expressly granted to the mutawalli in wakfnama.

From the above case, it was understood that the mutawalli has not right over the property to do anything related to sell, mortgage or lease the waqf property. It is simply because when one is appointed as Mutawalli, he does not become the owner of the property. Hence, that's why, mutawalli has to take prior permission from the court in the case where he does not have any authority over it.

Will Under Muslim Law

Instruments are of two types; one is testamentary instrument and the other one is non-testamentary instrument. Testamentary instrument, in another term called as a Will. A Will, also known as a wasiyat, is a document which is made by the legator for the benefit of the legatee, becoming valid upon the testator's demise. No one has the right to make wills over the entirety of property under Muslim law.

There is an extent to which the legator can make the Will. The rationality behind doing so is to honour the prophet's word in order to secure the rightful heirs' share. The Quran declares Wills to be legal, even if it does not mention the testamentary constraint of one-third. Sa'd Ibn Abi Waqqas and Bukhari both cite a Hadis of the Prophet that establishes the permissibility of bequests up to one-third.[9]

A Will is simply a legal document that expresses the testator's (the will maker's) intentions about the disposal of their property that becomes effective upon their death. The testator retains complete ownership and control of the property as long as they are living. In no way, especially prior to the testator's passing, is it binding on them. It is reversible by formal cancellation or by another will made on the same property in the future. Legatee executed Will also become void if, after execution, they lose their state of mind or become insane.

It means that to make the will effective the legator has to be of sound mind which is one of the essential requirements of making a Will. Will also be void if a legator is insane and remain in a same state until death then the Will is void. Similarly, if in a state of insanity, the person has made the Will then it will be null and void, even if the person recovers later.

Extent Of The Legator To Make The Will

In both Shia and Sunni, legator can bequest the property only to the extent of 1/3rd, more than 1/3rd of the property can only be bequest if there is consent of the heirs. In Sunni law, consent of the heirs should be taken after the death of the testator but in Shia law, its says that consent of the heirs can be taken before or after the death of the testator. If the legatee predeceased the legator then as per Sunni law, the Will come to the end or it will be lapsed but in Shia law, the Will be executed by the heirs of the legatee. In Sunni law, the property bequeathing irrespective of the shares to the legal heirs is void but as per Shia law, bequeathing the 1/3rd property to the heirs is valid.

As per Sunni law and Shia law, the Muslim testator without the consent of the heirs, can bequest the property up to 1/3rd of his property. In case, when the testator wants to bequest the property more than 1/3rd and the heirs denied to give the consent then the entirety of the Will does not become invalid or inoperative. Rather than the as per Sunni law, the property will be distributed rateably and in Shia law, the shares will be distributed preferentially to the extent of 1/3rd of the property, as stated in the Hedaya.

In the case of, Damodar Kashinath Rasane v Shahzadi Bi [10], it was held that Muslim testator cannot bequeath more than the 1/3rd of his property irrespective of the fact that it is being done in favour of heirs or stranger. Further, it was also held that if the bequeathing of the property has been done more than the 1/3rd of the property then the rule of abatement will be applied which is different in Sunni and Shia Law.

The legator if commits suicide then as per Sunni law the execution of the Will by the legator will not be valid but as per Shia law, it will be valid Will after taking the intention into consideration. The legatee has murdered the legator, as per Sunni law the Will becomes invalid but in Shia law, it will not be ipso facto void, here in Shia law, the intention is taken into consideration. If the intention of the legatee is not to murder the legator for execution of the will then as per Shia law, the Will be valid.

Legatee cannot be the unborn child. But Shia and Sunni law gives certain relaxation to this rule. As per Sunni law, if the child takes birth within 6 months from the date of making the Will, then it will be valid Will but as per Shia law, if the child takes birth within 10 months from the date of making the Will, then it will be valid Will.

Inheritance Under Muslim Law

Inheritance is also the one of the ways to alienate the property. Here, the owner of the property is not himself alienating the property, how so ever alienation takes place because of relationships with the deceased. That's why this alienation is different from hiba, waqf, and will. In general term, Inheritance means the property of the deceased is transfer to the legal heirs of the deceased person. Muslim personal laws, which draw from primary scriptural sources such as the Holy Quran, the Sunnah, the Ijma, and the Qiyas, as well as pre-Islamic customary succession rules, regulate the devolution of inheritance for Muslims.

The Prophet's enumeration of Islamic or Quranic teachings is the foundation of the concept of inheritance. Islamic jurisprudence does not acknowledge joint tenancy, and the successors are tenants-in-common, meaning they are only eligible to inherit the shared portions of the property. The court noted in the 1989 case of "Abdul Raheem v. Land Acquisition Officer"[11] that Muslims do not adhere to or recognise the joint family system when it comes to inheritance and that a Muslim person's rights, title, and interest in his estate pass away upon his death and become the property of others.

There are two types of succession, as one may know: testamentary, which occurs when a will was made prior to the death of the decedent, and non-testamentary, which occurs when a person passes away intestate, that is, without leaving a will. Muslim laws distinguish between testamentary and non-testamentary succession. While the Muslim Personal Law (Shariat) Application Act, 1973 governs non-testamentary succession, different Shariat laws apply to the Shia and Sunni sects of Islam. The Quran and Hadith are the sources of the distinctive mechanism used in Muslim inheritance laws to divide successors into "sharers" and "residuary" categories.

Comparative Analysis Of Shia And Sunni Law Of Inheritance In India

The Hanafi school of law rule the Sunni community in India. In order to avoid depriving the customary heirs of their share, the Hanafi rules only provide a portion of the inheritance to the Quranic heirs, so attempting to establish a more harmonious relationship between the Quranic and customary laws. It is significant to remember that the preference of agnates over cognate heirs persisted in the newly formed class of heirs, notwithstanding the inclusion of females. In other words, the Quranic class acknowledges that, like their male counterparts, female agnates have the right to inherit a portion.

The broad guidelines of Ithna-Ashari law serve as the foundation for Shia inheritance law. In contrast to the rigid interpretation adhered to the Sunni law, the Quranic precepts are construed extremely broadly here. Shia laws result in a highly significant divergence in the concepts and guidelines of succession, giving them an essentially autonomous system of succession. Shia law divides property among heirs according to the strip to which each one belongs, a practice known as per strip distribution.

In terms of inheritance, males over females or agnates over cognates are not given preference in Shia law. The rights of a husband and wife do, however, have one exception: the deceased's estate belongs equally to their blood relatives, and women are only given half of what men are granted in each class. Because the descendants, ascendents, and collaterals all inherit side by side, there is no hierarchy about who gets the estate first.

In conclusion, exploring the topic of alienating property under Muslim law reveals a nuanced understanding of the various mechanisms available for transferring property rights. We have studied the four main ways that property can be alienated in this project: waqf (endowment), hiba (gift), will, and inheritance. Each of these methods has a unique legal and cultural importance in Islamic law. The Islamic concept of kindness and generosity is reflected in the concept of hiba, or gift, which permits the voluntary transfer of property during one's lifetime.

In addition, studying wills in Islamic law reveals the ways in which people can specify how their possessions will be divided when they pass away, making sure that their religious and family duties are met. Comprehending the complexities of testaments clarifies the significance of testamentary liberty and the function of the courts in maintaining the testator's desires.

Furthermore, waqf arises as a novel mechanism for property alienation, in which assets are committed to support particular institutions or charity endeavours. We learn more about the function of social welfare and philanthropy in Islamic civilizations by examining the legal framework and societal ramifications of waqf. Last but not least, the inheritance clarifies Islamic succession law and emphasises the righteous division of property among heirs as required by Islamic law. We can understand the importance of justice, family unity, and wealth preservation in Muslim societies by looking at inheritance laws.

The examination of property alienation under Muslim law, in conclusion, highlights the complexity of Islamic jurisprudence and its significant influence on legal, social, and economic frameworks. By gaining a thorough understanding of hiba, wills, waqf, and inheritance, we may better comprehend Islamic law and its practical implications in modern circumstances. We also get insight into the principles directing property transactions and wealth distribution in Muslim countries.

Muslim law gives number of ways to alienate the property so that there is a fruitful utilisation of the property. As under Muslim law, there was a saying that the wealth is given to the person to test the strength and it will define the quality of the person who is holding the property. As discussed, under Muslim law, the owner of the property cannot be said to be the absolute owner and he cannot use the property as he thinks. That's why there are multiple ways provided under Muslim law where the person can alienate the property and property will be used in a better way.

  • Muslim Personal Law (Shariat) Application Act, 1937
  • The Mussalman Wakf Validating Act, 1913
  • Compendium of All India Muslim Personal Law Board
  1. Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937
  2. Section 122 of Transfer of Property Act, 1882
  3. Section 129 of Transfer of Property Act, 1882
  4. All India Muslim Personal Law Board, section 1 of part III of Law of Gifts
  5. All India Muslim Personal Law Board, section 3 of part III of Law of Gifts
  6. Ranee Khajoorunissa vs. Mst. Roushan Jahan AIR 1876
  7. Section 2(1) in The Mussalman Wakf Validating Act, 1913
  8. Ahmad G.H. Ariff v. Commissioner of Wealth-Tax (1966) 59 ITR 230(CAL)
  9. Dr Ananad Kumar Tripathi, The Concept of will under Muslim law: A Study,, last visited on 31st March, 2024
  10. Damodar Kashinath Rasane v Shahzadi Bi AIR 1989 Bom 1
  11. Abdul Raheem v. Land Acquisition Officer AIR 1989 AP

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