The document discusses various legal concepts related to gifts, wills, and religious endowments in Muslim law. It defines key terms like gift (hiba), will (wasiyat), and waqf (endowment). For a valid gift under Muslim law, there must be a donor, donee, subject matter of the gift, declaration of gift, acceptance, and immediate delivery of possession. A will allows disposition of up to 1/3 of property after death, with some exceptions. A waqf involves the permanent dedication of property for religious or charitable purposes. The document outlines requirements, types, and other details related to gifts, wills, and waqfs in Muslim legal tradition.

1. Gift, Will and Religious
Endowments in Muslim Law

2. Introduction to Gift
• Transfer of Property, 1882 (Hindu Law) Section 122 to 129 on Gift
• Shariat Law (Muslim Law)
• Disposition of property
1) Inter vivos (Between living persons) : No limit in Muslim Law
2) Testamentary or Intestate(After death of propositus): 1/3 limit set for
testamentary disposition and 2/3 heritable property for intestate succession
in Muslim Law

3. Introduction: Hiba/ Gift (Muslim Law)
Gift is the transfer of certain existing movable or immovable property made voluntarily and without
consideration by one person called the donor to another called the donee (accepted by or on behalf of
the donee), followed by immediate delivery of possession of the subject matter of the gift.
The donor gets the title, a right to possess and enjoy the property and a right to sell it at his pleasure if
he is otherwise competent to do it or absolute right over the property gifted.
Gifts can be made with a specific purpose or simply out of love and affection. A gift made to one son so
as to strengthen his financial position in comparison to other sons who are financially better placed than
him is perfectly valid. A gift can be made even with the object of disinheriting an heir.
3 Basic requirements for validity in gift :
1) The parties : Donor and Donee
2) Subject matter of the gift
3) Ingredients of making the gift
-Declaration by Donor (Ijab)
- Acceptance by Donee (Qabool)
- Immediate delivery of possession(Qabza)

4.  The Donor
Any Muslim (Male or Female, regardless of marital status), who is major and of sound mind i.e. competent to
contract can make a gift of his property. The age of majority for determining the competency of gift is eighteen
years in ordinary cases, and is twenty-one years where a guardian has been appointed by the court.
 The Donee
For a donee, competency to contract is not an essential requirement. A donee can be a minor or even a person of
unsound mind. The only requirement is that he should be a natural or even a juristic person, capable of holding
property, eg (Mosque). The donee can be of any sex, any age and even of any religion. He
can be a relative or even a stranger. Property can validly be gifted to a female irrespective of her marital status
Gift to unborn child/ In womb
Gift to a non muslim

5. • Subject Matter of the Gift
1) The subject-matter of gift can be property that is capable of being owned.
It can be movable as well as immovable
property, ancestral or self-acquired, corporeal or even incorporeal property.
Copyrights
Receive share in the offerings by pilgrims to shrine/charitable institutions
Negotiable instruments (cheques/bonds/promissory notes)
Property on lease/mortgage
2) Property must be in existence
The subject-matter of the gift must be in existence on the date of making the gift. If the subject-matter itself will come
into existence at a future date, the gift would be void. (Chance of happening) But Gift of specific share in rent
-Good Title to the property
-Actual possession and Constructive possession
-Contingent gifts are invalid; Conditional Gift (Absolute ownership, conditions to be ignored by Donee)…..not usufruct
-Corpus/Thing itself Usufruct/ Produce from a thing
(Hiba) Absolute/Transferable or Heritable (Ariyat)/Not absolute/Neither transferable/Nor Heritable
Eg: Land, car Rent, Gift of life interest

6.  Ingredient to Gift
Declaration by Donor (Ijab)
-Voluntarily declared : Public statement/witness (Not unilateral or in isolation)
- Oral or written/ registered
-Free consent
-Bona Fide
Acceptance (Qabool)
-Capacity to accept or incapable of accepting( on behalf)
-Natural and Testamentary guardian
Delivery of possession (Qabza)
-Transfer and delivery of possession determines the validity of gift : Absolute ownership
-Comes into effect as soon as gift deed is signed.
-Relinquishment of donors enjoyment to property gift : Exception: Husband to Wife; Father to Child

7. Mushaa
• Mushaa means undivided share in the property (Immoveable or moveable).
• There may be practical difficulty in the delivery of possession if gift of a joint property is made by a donor without
partition of the gifted share.
• Doctrine of Mushaa is applicable only to gifts and not any other kind of transfer such as sale or exchange etc.
• With respect of Mushaa or undivided share, two situations are possible:
(i) undivided share can be in a property, which is capable of division without effecting its value or character
substantially; and
(ii) undivided share is in a property that is incapable of being divided. In trying to divide it, either the property
will be destroyed or its intrinsic value will be lost or it will be rendered useless, e.g. two brothers inherit a
house that has a common entrance, staircase or a right of way, a utensil, a carriage, tapestries, artefacts,
well, clothes, ornaments etc.
Doctrine of Mushaa is a solution to the difficulty with regard to undivided property in order to immediate delivery of
possession, as a requisite for making a valid gift.

8. Under Shia law, the gift of an undivided share in a property (Mushaa) capable of
division or not (divisible or indivisible) is valid provided the donor gives to the
donee possession of the property by vacating or permitting the donee to control it.
Under Sunni law, the gift of Undivided property (Mushaa) in a property capable of
division (divisible) is not valid and is irregular (Fasid) which can be remedied by
separating or specifying the subject of the gift.
The question of Doctrine of Mushaa is inapplication if the property is in-capable of
being divided.
Exception to the rule of Mushaa in Sunni Law:
1) Gift by one heir to another heir
2) Gift by a co-sharer/constructive possession

9. Gifts with exchange (Hiba Bil Iwaz)
• Muslim law also recognizes gifts with an exchange (as against gratuitous gifts). These gifts are called ‘hiba-
bil-iwaz’ and have two basic essentials:
(i) a bona fide and voluntary intention on part of the donor to make the gift and to divest himself of the
complete rights over the property and vest it in the donee; and
(ii) payment of consideration by the donee
• Consideration could be in the form of money, or performance of an obligation (promise to marry, return
of favour, relinquishing a claim, in lieu of payment of dower)
• Delivery of possession is not necessary
• Hiba Bil Iwaz has essentials of sale so, Parties have to be competent to contract
1) Offer (Bona Fide intention) 2) Acceptance 3) Consideration

10. Revocation of gift
• Ordinarily, till the gift is complete, it is revocable. In other words till all the essentials of gift are
complied with, it is open to the donor to withdraw his offer. Where the possession of the property has
been delivered, the gift becomes complete, but because it is purely a voluntary transaction it can be
revoked even after its completion.
• Revocation of gift before (easier process by declaration by donor) and after the delivery of possession.
• Revocation of gift after the delivery of possession can be with the consent of the donee or in the
absence of his consent, by a decree of the court (court not required in shia law).
• The right of revocation is only with the donor (personal right of disposition of his own property) and
can never be exercised by his heirs.

11. A gift which has been completed in the manner specified by law would be absolutely irrevocable in the
following
cases:
(i) when either the donor or the donee is dead;
(ii) where the donor and the donee are husband and wife or vice versa;
(iii) where the donor and donee are within prohibited degrees of relationship.
(iv) where the donor has received a return for the gift;
(v) where the subject-matter of the gift has been lost, destroyed or has been converted in such a manner that it
has lost its identity;
(vi) where the subject-matter has passed out of the hands of the donee by a transfer such as by way of a sale,
gift etc.;
(vii) where the gift has substantially increased in value;
(viii) where the gift was for obtaining religious merit (Sadaqah)
Accordingly, a gift made by a man to his wife, by a brother to his sister, by the father to the daughter would be
Irrevocable.

12. OTHER GRANTS THAN GIFTS:
Sadaqah (Voluntary religious act of Gift/charity)
In case of gift as it is generally understood, it can be the predominant purpose may be love and affection towards
the donee, or in the nature of a return for the services rendered by the donee in the past or it can be a simple act of
gratuity or benevolence or it may be in expectation of a return by way of a favour or reward in future. Besides
these materialistic or human wants, the purpose can also be to obtain religious merit or simply to confer a benefit
on the public at large.
‘Sadaqah’ is a gift primarily with religious motive. It is this specific religious purpose, that makes it different from
a simple gift. Secondly, a simple gift may be revoked under certain specific circumstances, but Sadaqah is
irrevocable. The consent or express acceptance of the donees in a Sadaqah is not a mandatory condition for its
validity.
Delivery of possession is a mandatory requirement for the validity of the Sadaqah and it does not admit of any
exceptions unlike a simple gift, and therefore Sadaqah is not valid if the subject-matter of gift is an undivided
share in the property, that is capable of division. Sadaqah can be made to two or more persons jointly with the
incidence of joint tenancy provided they are poor.

13. Ariyat (Usufruct)
‘Ariyat’ is a gift of the right to enjoy the usufruct in a specific property for a specific time period and is revocable
at the pleasure of the granter. In fact it is more in the nature of a licence. It is personal in character and is neither
heritable nor transferable. It is revocable and does not confer on the grantee any right in the corpus, but only in
the income coming out of the property or the profits. In case of a simple gift, it is the transfer of property itself
with all incidents of ownership of property that is transferred.
Waqf (Islamic Endowment, Literally means detention)
In case of an ordinary gift, the donees are mortals or humans. ‘Waqf’ is a permanent dedication of the property to
God, with the intention that the usufruct of the property may be utilised for a religious, pious or charitable
purpose. The corpus belongs to God and therefore cannot be consumed, it is only the income coming out of the
property that can be used for the desired purposes. In case of Sadaqah, though the predominant motive is
religious, the complete property including the corpus and the income if any, can be used for achieving the desired
purpose but property settled by way of Waqf is in the nature of permanent dedication and therefore is irrevocable.

14. Concept of Waqf under Muslim Law:
• Waqf created once, is irrevocable: Dedicated to Allah (Religious, Socio-Economic acitivities)
• Governed by the Waqf Act, 1995
• The two essentials of Waqf are:
1) Permanent Dedication: If the wakf is made for a limited period it won’t be a valid wakf and also there
should be no condition or contingency attached otherwise it will become invalid. Should be absolute and
unconditional.
2) The motive of Wakf: religious/charitable
Creation of Waqf: 1)Inter-Vivos 2)Testamentary 3) Marz ul Maut (Death bed Gift)
Types of Waqf:
1) Public Waqf : Public own welfare
2) Private waqf : Settlors own family or descendants
• The one who creates Waqf is called Waqif: Should be Muslim person (Male/Female), Sound mind, Major/
Competent to ownership of property/Property in existence/ Good title to property

15. • Mutawali: Manager of the Waqf who is appointed by Waqif/ Executor/court
Mutawali should be major and sound minded person
Powers of Mutawali:
1) He has the authority to use the usufructs to the best interest of the wakf.
2) He can take authorisation from the court to sell or borrow money by showing the existence of appropriate
grounds or the existence of urgency.
3) He can file a suit to protect the interests of the wakf.
4) He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the
court for getting it enhanced.
Doctrine of Cypress
The word cypress means ‘as nearly as possible.’ The doctrine of cypress is a principle of the English law of
trusts. Under this doctrine, a trust is executed, or carried out as nearly as possible, according to the objects laid
down in it.
Where a settlor has specified any lawful object which has already been completed or the object cannot be
executed further, the trust is not allowed to fail. In such cases, the doctrine of cypress is applied and the income
of the property is utilised for such objects which are as nearly as possible to the object already given.
The doctrine of cypress is applicable also to waqfs. Where it is not possible to continue any waqf because of (a)
lapse of time or, (b) changed circumstances or, (c) some legal difficulty or, (d) where the specified object has
already been completed, the waqf may be allowed to continue further by applying the doctrine of cypress.

16. Introduction to Wills (Wasiyat)
• Testamentary disposition that takes effect on the date of death of the testator.
• Revocability of Will : Multiple amendments; Final Amendment
• Chance of getting the property by testament: Full power of testator
• Quantum for testamentary disposition in Muslim Law: 1/3 of the property after funeral expenses, debt
payment etc..
• The object of the Will is therefore twofold. First, it prevents a person from interfering and
defeating the claims of his lawful heirs. So the restriction ensures that at least two-thirds of the property
must go by succession. It is applicable only in those cases, where the testator enjoys his property during
his lifetime and does not dispose of his assets inter vivos. [Intestate]
• Secondly, by permitting the testator to bequeath one-third of his property, he is empowered to settle just
claims of people, at his pleasure, who might not figure in the ‘heirs’ category. These persons might be
relatives other than heirs or even strangers to the family. Can also be given by way of charitable or
religious purpose [Testate]

17. The exceptions to the rule of 1/3 property by testamentary disposition are:
(i) When the testator does not have any heir. In such cases, if the restriction of permissible one-third is
applied to him, then the beneficiary will be the government, who will take the property by doctrine of
escheat, while the primary purpose of applying the bequeathable permissibility to the extent of one-third is
to protect the rights of the heirs, and not that of the government. An heirless person, can thus make a
bequest of his total property.
(ii) Where the heirs themselves consent to the bequest in excess of one-third for testamentary disposition.
As the chief objective of the restriction is to safeguard the interests of the heirs, if these heirs whose shares are
likely to be adversely affected by the excess bequest themselves give their consent (that should be voluntarily
given), the excess bequest will be validated.
• Consent by the heirs can be given orally, written or implied by conduct
• Under Shia law, the bequest in favour of an heir is valid, without the consent of other heirs (can also be given before
testators death) provided it does not exceed the bequeathable one-third limit. If it is in excess of one-third, then the
consent of those heirs is necessary, whose share is likely to be adversely affected, by this bequest.
• Under Sunni law, a bequest cannot be made to an heir at all, not even to the extent of one-third of the property except
when the other heirs give their consent (after the death of the testator).

18. Will under Muslim Law can be oral/written/ signed/non signed/Attested/Non attested/
registered/unregistered
Essentials of a Valid will:
(i) competency of the testator
Muslim (Man/Woman); Majority, sound mind
(ii) competency of the legatee/testatee
Male/female; Muslim/Non Muslim; Juristic institutions of Islamic culture or pro-social activities.
(iii) valid subject-matter of bequest;
Property which is transferable; property in existence
Conditional Will is Void as to the condition.
Contingent Will will be void ab-initio.
(iv) bequest to be within permissible limits.

19. ABATEMENT OF LEGACIES
Sunni Law : The general rule is that a bequest in excess of one-third of the estate of the deceased would take
effect with respect to one-third, with the excess going by inheritance. Where there are more than one legatees and
the property given to them exceeds one-third, the shares of each of the legatees would be reduced proportionately
or Rule of Rateable or Proportionate Deduction
Illustration (i) A Muslim man executes a Will giving Rs. 30,000 to A and Rs. 20,000 to B. He leaves behind
property that comes to Rs. 75,000 after payment of his funeral expenses. Here, the bequeathable limit (for
testamentary disposition) would be one-third i.e. Rs. 25,000 while the bequest (towards A & B) is for Rs. 50,000.
The bequest in favour of A and B will be proportionately reduced. The ratio of the bequest will be the same, but
both the bequests will be reduced to half i.e. the bequest due to A would become Rs. 15,000 and that of B would
become 10,000. The sum total of these bequests would be Rs. 25,000 and thus this Will would be considered valid.

20. Shia Law :Under Shia law if the legacy is given to two or more legatees under the same Will, and it exceeds the
bequeathable one-third, with heirs refusing to consent to the bequest, the rule of chronological priority is followed.
The legatee whose name appears first in the Will is to be given his share, followed by the second legatee and then
the third and so on. The moment the bequeathable one-third is exhausted, full effect has been given to the Will. Any
other legatee whose name follows, after one-third of the assets have been distributed, will not be given anything.
Illustration (i) A testator dies leaving behind assets worth Rs. One lakh twenty thousand. He leaves a Will under
which he gives Rs. 20,000 to A, Rs. 30,000 to B and Rs. 40,000 to C. As the total assets of the testator are to the
tune of Rs. 1,20,000 bequeathable one-third is 1,20,000 1/3 = Rs. 40,000. Following the rule of chronological
priority, as A’s name appears first he will be given Rs. 20,000. The rest of Rs. 20,000 will be given to B. C will not
get anything as the one-third ie Rs. 40,000 is already exhausted.

21. Bequest of Exact One-third
The rule of chronological priority is not applicable in cases where under one legacy two or more persons have been
given an exact one-third of the total assets. In such cases, the legatee whose name appears last gets the one-third
given to him under the Will, and the legatees whose names appear prior to him will not get anything.
Illustration A testator dies leaving behind net assets worth Rs. 1,20,000 and a legacy under which he gives Rs.
40,000 each to A, B and C in that order.
As the bequest is of an exact one-third, C whose name appears last, gets the total property while A and B will not
get anything. The bequest here in favour of each of them, A, B and C, is treated as an independent bequest, with
the subsequent revoking the former. The first bequest was in favour of A, the second in favour of B and the last in
favour of C. Legacy in favour of B revokes the one in favour of A, and the legacy of C revokes the Will in favour of
B. Hence C alone will take the legacy: Rs.40,000.

22. Revocation of Will
• Testator has unfettered power to revoke the will during his lifetime.
• Express Revocation: Oral/Writing by the testator
Clear intention
• Implied Revocation
For example, the testator bequeaths Rs. 10 lakh cash to X. After one month he purchases a
house with this amount. The bequest in favour of X is automatically revoked. Similarly
where the testator gives land to his friend under a Will but an year later gifts the same to his
daughter, the bequest in favour of the friend is automatically revoked.

23. Marz-ul-Maut (Death Bed Will)
• Gifts executed by a person under an immediate apprehension of death, stand on a different footing than
ordinary gifts executed by a person under no such apprehensions (or threat/undue influence/urgency) , and
which are a result of a well thought out act with the ability to comprehend the consequences of his action.
• Marz ul Maut/ Gift made during death bed illness usually made under the haste with the realization that the
death is close/any near point of time and is imminent. Thus, the nature of this type of gift is different from the
ordinary gift.
• Essentials of Marz ul Maut (SC 1991 Comm of Gift tax, Ernakulum v. Abdul Mohd) :
1) Suffering from chronic illness (not old age….chronic asthma…but pneumonia)
2) Subjective apprehension of death in the mind of the sick person [death within one year/close nexus between
illness and death]
3) Certain physical incapacities that indicate the degree of illness
Note: The mental faculties of the donor during the apprehension of death.

24. • A gift made by a person during marz-ul-maut is treated as a combination of both a gift as well as a
Will (Wasiyat).
• All the three essential ingredients of a valid gift must be complied with, namely, a declaration by the
donor, its acceptance by the donee himself or on his behalf by a competent person followed by
immediate delivery of possession of gifted property during the lifetime of the donor.
• In addition to this, as it is also treated as a Will, it cannot be made of more than one-third of the total
property unless the heirs whose share would be adversely affected give their consent for the validity
of the excess bequest after the death of the donor. The legal position on this point is the same under
Sunni and Shia law.
• Gifts under Marz ul maut divests the donor of his property with immediate effect.
• If the donor recovers from illness, the gift would not be valid as Marz ul Maut but ordinary gift.
• Validity of gift of Marz ul maut to be thoroughly scrutinized by the courts
• Onus of proof on the person who brought the suit: Facts and evidence supporting the argument.
• Different from Donatio Causa Mortis (Indian Succession Act, 1925): Only moveable property/No
quantum/No gift at all if donor recovers.

25. Doctrine of Pre-emption (Shufa)
• “The right of shufaa or pre-emption is a right which the owner of an immovable
property possesses to acquire by purchase another immovable property which has
been sold to another person.” [Preferential right]
• If an heir is allowed to dispose of his share without offering it to the co-
heirs/neighbours, then it is likely to lead to the introduction of strangers into a part
of the estate with resultant difficulties and inconveniences.
• Restrictions on the owner’s unfettered right of transfer of property to strangers

26. • Who can Pre-empt or the Classification of Pre-emptors:
1) The shafi-i-sharik or a co-owner in the property.
2) The shafi-i-khalit or a participator in appendages. (easements as a right of way, or discharge of water.)
3) The shafi-i-jar or owner of an adjoining property.
• The right of pre-emption arises only in two types of transfer of property – sale, and exchange.
The right of pre-emption does not exist in respect of a gift, sadaqah, wakf, inheritance or lease.
• Parties involved are: 1) Pre-emptor 2) Vendor 3) Vendee
Formalities required for Pre-emption:
1) First demand or talab-i-muwasibat
This requirement lays down that the pre-emptor asserts his claim immediately on hearing of the sale, but not before.
No specific form of asserting this demand has been laid down. It is imperative that the first demand must be made
as soon as the fact of sale becomes known to the pre-emptor. Any improper or unreasonable delay will imply an
election not to exercise the right of pre-emption. No need for witnesses for valid first demand.

27. 2) Second demand or talab-i-ishhad
The pre-emptor should, as soon as practicable, affirm the intention of asserting his right by making the second
demand wherein he refers to the fact that he had already made the right demand.
It is imperative that the second demand should be made in the presence of two witnesses and in the presence
of the vendor (if he is still in possession of the property), or in the presence of the buyer.
3) Third demand or talab-i-tamlik
The occasion of talab-i-tamlik will arise only if the claim is not conceded, and, therefore, the pre-emptor files a
suit to enforce his right. Thus, the third demand is not an essential formality.
The right of pre-emption may be lost in the following cases:
a) by acquiescence or waiver,
b) by the death of the pre-emptor (Cant be continued by his legal representatives)
c) by misjoinder, and
d) by released by pre-emptor