Monday, 7 March 2016

mohammedan law - sem 6



Development of Islamic Law
Introduction
Islam means “submission to the will of God and establishment of peace”. Muslim Law had its origin in Arabia, where the Prophet Mohammed started it and the Mohammedan invaders in India brought the religion to India. Before the advent of Islam in Arabia, the Arabians were following various superstitions and were not leading a disciplined life.
According to the Muslim religion, God created the universe and He prescribes a pattern of behavior which the human beings must observe.
The Holy Quran
It is the divine communication of Prophet Mohammed with the Allah, the only God according to the Muslim religion.
The Quran is the holy of sacred book and the basic text of the Muslim religion.
The Muslim Law is founded upon Quron.
The Shariat
Stages in the development of Mohammedan Law
Stage of Quranic precepts
Stage of Collection
Stage of Theoretical study
Stage of evolution of Ijtihad and Taqlid
The Fifth period
Sources of Islamic law
Classical Sources of Mohammedan Law
  1. Quran or The Holy Kuran
  2. Sunna
  3. Ljmaas
  4. Qiyas


Position of Classical Sources in India
Taglid means that the court should not give their own interpretation of Quran. However, traditionally settled legal principles must be accepted as such, though it is contrary to Quran. The settled laws must be followed as such even if they are not modern, just or logical. News rules of law cannot be introduced.
Other Sources of Muslim Law in India
  1. Legislative Enactments
  2. Judicial precedents
  3. Texts of Jurisprudence
Customary practices
Mohammedan people  are governed by both codified laws that are enacted by the State as well as the informal laws based on customary practices which differs from cultural, social and political scenario.
  • Shariat Application Act
  • Dissolution of Muslim Marriage Act
  • Muslim Women (Protection on Divorce) Act
Schools of Islamic Law
Sunni School
On the death of the Prophet, Mohammed Abubeker was elected as the successor. Those who supported the election were called Sunnies. They are predominant Muslims in India.
Sub Schools among the Sunnies
  1. The Hanafi School
  2. The Maliki School
  3. The Shafei School
  4. The Hanbali School
  5. The Zaydi School
  6. The Jafari School
  7. The Ismaili School
  8. The Ibadi School
Popular Schools in India
  1. The Hanafi School
  2. The Shafei School
  3. The Jafari School
  4. The Ismaili School
Shia School
Those persons who did not support the election  to fill the vacancy of the Prophet were considered Shias. They supported the succession to the office by inheritance and by election.
Concept of Marriage: Definition, object, nature, essential requirements of a Muslim marriage
Introduction
According to Mohammadan law, the marriage is a civil contract and not a sanctity. So, all the requirements of a valid agreement are also required for Mohammadan marriage. But for the capacity of parties, the Mohammadan law prescribes 15 years as puberty.
Abdul Khader vs. Salima
Essentials of a valid marriage
According to Muslim Law, Marriage or `Nikah` as the Muslims call the nuptial ceremony is an agreement underlying a permanent relationship based on mutual approval.
Essential Features of Muslim Nikah 
  • A Muslim marriage requires proposal called the Ijab from one party and acceptance or Qubul from the other as is necessary for a contract.
  • There can be no marriage except for the free consent and such consent should not be obtained by means of compulsion, deception or unjustified influence.
  • Just as in case of agreement, entered by a guardian, on attaining majority, so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.
  • The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial agreement, which is enforceable by law, provided it is sensible and not opposed to the policy of Islam. In the case with a contract the same policies are folowed.
  • The terms of a marriage contract may also be changed within the legal limitations to suit individual cases.
  • Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also provision for the violation of marriage contract.


Requirements of Muslim Nikah
The solemnization of a Muslim marriage needs strict following of certain rules and regulations. They are called the basic fundamentals of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be.
The essentials of Muslim marriage are as follows:
  • Proposal and Acceptance
  • Competent Parties
  • No legal Disability
Absolute Prohibition
There is absolute prohibition of marriage in case or relationship of consanguinity. In this case the situation is such that the relationship has grown up of the person through his/her father or mother on the ascending side, or through his or her own on the descending side. Marriage among the persons associated by affinity, such as through the wife it is not permitted. Marriage with foster mother and other related through such foster mother is also not permitted.
Procedure for Muslim Nikah
  • According to Muslim Law it is necessary that a man or someone on his behalf and the woman or someone on her behalf should give their consent to the marriage at one meeting and two adult witnesses should witness the agreement.
  • The words meaning proposal and acceptance must be spoken in each other`s presence or in the presence of their agents, who are called Vakils or Qazi.
  • The other circumstance for a valid marriage is that the contract must be completed at one meeting. A proposal made at one meeting and an acceptance at another meeting does not constitute a valid marriage.
  • There must be exchange of views between offer and acceptance. The acceptance must not be restricted.
  • Under the Sunni Law, the proposal and acceptance must be made in presence of two males or one male and two female witnesses who are sane, adult and Muslim. Under Shia Law, witnesses are not necessary at the time of marriage. They are required at the time of dissolution of marriage.
  • The parties arranging the marriage must be giving their free will and consent.

Divorce – Marriage under Islam is only a civil agreement and not a sacrament. A husband can leave his wife without any reasons or merely by pronouncing the word “Talak” thrice. However, for a Muslim woman to obtain divorce certain circumstances are necessary. The husband and the wife with mutual agreement can also put an end to the marriage.
Like Hindu law, followers of Islam have their own personal law, which states that Nikaah or marriage is a contract, may be permanent or temporary, and permits a man four wives if he treats all of them equally. There should be a proposal or `offer,` made by or on behalf of one of the two parties;
The Muslim marriage law also states that to have a valid marriage under the Muslim law, if a person is of sound mind, normal and has attained puberty at the age of 15 his or her marriage cannot be performed without his or her consent. There are certain prohibited relationships, whose marriage is considered void. Like mother and son, grandmother and grandson, uncle and niece, brother and sister and nephew and aunt.
  • An `acceptance` of such proposal or `offer` by or on behalf of the other party;
  • The `offer` and `acceptance,` both, must be expressed in the same meeting. There is no prescribed form for proposal and acceptance. However, a proposal, made at one meeting and an acceptance, made at another meeting, will not constitute a valid marriage;

  • The offer and acceptance must be made in the presence of two male witnesses, or one male and two female witnesses, who must be adult Mohammedans of sound mind; iv. A marriage, contracted without witnesses, is not void but is considered irregular. Such irregularity can be cured by consummation.
  • However, according to Shia law, the presence of witnesses is not necessary in any matter.
A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: 
  • That the whereabouts of the husband have not been known for a period of four years;
  • That the husband has neglected or has failed to provide for her maintenance for a period of two years;
  • That the husband has been sentenced to imprisonment for a period of seven years or upwards;
  • That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
  • That the husband was impotent at the time of the marriage and continues to be so;
  • That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease.
  • That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years.
Classification of marriage
Legal effects of valid
Void and irregular marriage
Relative Prohibitions
  • Unlawful union
  • Marrying a fifth wife
  • Marrying a woman undergoing iddat
  • Marrying a non-Muslim
  • Absence of proper witnesses
  • Woman going for a second marriage even after the existence of the first marriage.
  • Marrying pregnant women
  • Marrying during pilgrimage
  • Marrying own divorced wife
Muta marriage
  1. It means a temporary marriage.
  2. The marriage is for a fixed period.
  3. This type of marriage is recognized in the Shia Law – IthnaAshari School
Essentials of Muta Marriage
  1. The amount of dower must be fixed. It is not fixed then the marriage becomes void.
  2. If the marriage is consummated, half the amount of the dower should be paid to the wife.
  3. The period of co-habitation must be fixed. If the period is not fixed, then it is not a Muta Marriage but becomes a normal marriage.
  4. A Shia can make a valid Muta Marriage with a non-Mohammedan woman. But a Shia female cannot marry a non-Mohammedan male
  5. The Muta marriage comes to an end when the fixed period is over. Even after expiry of the fixed period, if they live together then it is presumed that the term of Muta marriage is extended.
  6. Divorce cannot take place in Muta marriage but the husband by paying the full amount of dower, can put an end to the marriage even before the expiry of the term
  7. The children born out of the Muta marriage are legitimate. They can inherit the property of the parents. But the wife and husband cannot inherit the property of each other. The Muta marriage is obsolete in India.
State regulation
Polygamy
The Muslim law permits a Muslim man to have four wives, provided he treats all of them equally.
Child marriage
Pre-emption
Wakf
Dower
Introduction
Dower is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of marriage, It is an obligation imposed upon the husband at the time of the marriage as a mark of reverence to the wife. The wife can receive it by instituting an action as if it was a debt due to her.
This is primarily because Mohammedan marriage contract is easily dissoluble, and the husband has the freedom of divorce and also in order to restrict polygamy, the concept of payment of dower was introduced.
The object of dower
  • to create an obligation on the husband to place his wife in respect
  • to restrain the frequent use of divorce by the husband; and
  • to provide for the wife’s living after the dissolution of her marriage or death of her husband
Types of Dower
Specified Dower: 
  1. In this case, the amount of dower is stated in the marriage contract. It can be settled by the parties to the marriage either before the marriage or at the time of the marriage or even after the marriage.
  2. The minimum dower amount is ten dirhams. However, Shia Law does not fix any minimum amount of dower.
  3. According to the Prophet, the Muslim husbands who are not in a position to pay even 10 dirhams to the wife as dower, should teach Quran to the wife in lieu of dower.
  4. In the case of marriage of a minor, the guardian contracting the marriage of a minor or lunatic boy can fix the amount of dower.
Types of Specified Dower
Specified dower is divided into Prompt Dower & Deferred Dower.
Prompt Dower
  • Prompt Dower is payable on demand by the wife, unless otherwise stated at the time of the Marriage.
  • The entire dower is considered as prompt dower in the Shia Law whereas it is usual to regard half as prompt dower and half as deferred dower in Sunni or Hanafi Law.
  • It can be paid any time before or after the marriage.
  • If the prompt dower is not paid, the Wife may refuse herself to her husband.
  • If the wife is minor, her guardian may refuse to allow her to be sent to the husband’s house till the payment of Prompt Dower.
  • In such circumstances, the husband is bound to maintain the wife.
  • Ever after the consummation of marriage, amount of prompt dower can be sued for recovery.
Masthan Sahib Vs. Assam Bibi
The wife refused for consummation of marriage until the prompt dower is paid. Even after consummation of marriage, the amount of prompt dower is not paid on demand by the wife. If the husband sues for restitution of conjugal rights, a conditional decree may be granted by the Court, that the husband should pay the prompt dower within the times fixed by the Court.
When the wife makes a demand for prompt dower, it becomes a debt and as such the wife can sue for the recovery of the debt within a period of three years.
Deferred Dower
Deferred dower is payable only on the dissolution of the marriage or on the death of the husband. But if there is any agreement as to the payment of deferred dower earlier than the dissolution of marriage, such agreement would be valid and binding.Since, the husband can divorce his wife at any point of time without assigning any reasons, the deferred dower acts as a security to the wife and is usually very hih.
If there is no divorce, then the deferred dower becomes payable only on the death of the husband.
Immediately on the death of the husband.the deferred dower becomes a debt, which is recoverable within a period of three years subject to the Law of Limitation.
Proper Dower or Customary Dower:
In the case of dower not fixed by the parties to the marriage before the marriage or if there is a condition that the wife should not claim for any dower amount, still the wife got a right to claim dower. Such dower is called ‘Proper Dower’ or ‘Customary Dower’.
It is determined after considering the personal qualifications of wife such as age, social position of her family, economy condition of her husband, etc.
Remedies for a divorced woman or widow to enforce the dower debt
In the case of divorce
If the husband is alive and if the wife is not yet divorced, the prompt dower is immediately payable on demand by the wife. However, the deferred dower becomes payable only after divorce by the husband.
The dower debt is an unsecured debt and so it is an actionable claim and ranks with the other unsecured debts of the deceased husband.
The limitation period is three years as in case of a general debt.
If the wife is in possession of her husband’s property after the divorce, she can utilise the property to satisfy her debt. There is no limitation period for this.
In the case of death of husband
When there is no divorce, the deferred dower becomes payable only after the husband’s death.
If the prompt dower is not demanded by the wife during the husband’s lifetime, then it becomes payabe only after the husband’s death.



MainaBibi vs. ChaudaryVakil Ahmed
Muinuddin died leaving his widow MainaBibi. He had left immovable property which was retained possession by MainaBibi until dower was paid.
The respondents instituted a suit against the widow for the immediate possession of their shares of the estate, for which the widow defended that she is entitled to the possession of the estate till payment of dower. The Trial Court held that the respondents were entitled to possession on the condition that they paid to the widow Rs.25,357/- within 6 months, and in default of payment, the suit shall be dismissed. The widow continued to be in possession,  since the respondents did not pay the money.
After some years, MainaBibi executed absolute gifts of her husband’s estate in favour of some donees and gave absolute title and possession to them. The respondents filed a suit against the widow and her alienees, that the widow had only right of retention until payment of dower and could not transfer the properties.
Judgment:
The Privacy Council held that the possession of the property once peacefully and lawfully acquired, the widow gets the right till the dower is paid and such right is conferred by Muslim Law. She has no right to alienate the property by sale, mortgage, gift etc.

Origin of Muslim Law
Muslim Law or the Islamic Law is believed to have been originated from the divine. The Divine communicated it to Prophet Muhammad who prescribed them in Quran. In the later days, the disciples of Prophet Muhammad (or Muslim jurists) have refined and polished these principles. The provisions of Quran are vast and dealt with almost all aspects of human life.
A Muslim is a person who follows the religion of Islam. From the point of law, the Court is interested if the person
1. Believes in one God and 2. Prophet-hood of Muhammad.
These two points are the minimum and fundamental rules for a person to be called a Muslim.
There are two ways in which a person can be regarded a Muslim.
1. Muslim by Birth
2. Muslim by Conversion

    • To whom does Muslim Law apply?
    • When is Muslim law not applied to Muslims?
    • When is Muslim law applied to non-Muslims?
    • Fiqh and Shariat
Schools of Muslim Law
  • Sunni School
  • Shia School
  • Motazila Muslims
Sources of Muslim Law
  • Quaran as the source of Muslim Law
  • Primary and Secondary Sources
  • Customs
  • Judicial Decisions
  • Legislation
Marriage
  • Polygamy nature of Muslim marriage
  • Essentials of a Muslim marriage
  • Iddat
  • Kinds of marriage
  • Irregular marriage
  • Muta marriage
  • Restitution of conjugal rights
Dower
  • Concept of Dower
  • Proper Dower
  • Specified Dower
  • Prompt and deferred dower
  • Remission of dower
  • Rights of dower
Dissolution of Marriage
  • Divorce by husband
  • Talaq
  • Kinds of talaq
  • Ila
  • Zihar
  • Divorce by wife
  • Delegated talaq
  • Divorce by mutual concent
Parentage and Legitimacy
  • Parentage
  • Maternity
  • Paternity
  • Legitimacy
  • Presumption of legitimacy under Islamic Law
  • Acknowledgement of paternity
  • Adoption according to Islamic Law
  • Differences between Adoption and Acknowledgement
Guardianship
  • Types of Guardians according to Islamic Law
    • Natural Guardian
    • Testamentary Guardian
    • Guardian appointed by Court
    • De-facto Guardian
  • Powers and functions of Guardians
  • Mother's rights of custody (Hizanat) of child
  • Father's rights of custody (Hizanat) of child
  • Custody of Illegitimate Child
  • Custody of Minor Wife
  • Guardianship for marriage
  • Guardianship of property
Maintenance
  • Maintenance of Wife
  • Maintenance of Divorced Wife
  • Maintenance of Widow
  • Maintenance of Children
  • Maintenance of Illegitimate Children
  • Maintenance of Parents
  • Maintenance of Relatives
  • Maintenance of Daughter-in-law
Gift (Hiba)
  • Definition of Hiba
  • Constitutional validity of Hiba
  • Declaration of Gift
  • Acceptance of Gift
  • Gift to a child in womb
  • Gift to a juristic person
  • Gift to a Minor or lunatic
  • Gift through a trust
  • Gift of insurance policy or life estate
  • Gift of dower
  • Gift of services
  • Doctrine of Musha
  • Conditional and Contingent Gifts
  • Revocation of gifts
  • Irrecoverable gifts
Wills
  • Definition of a Will
  • Essential conditions of a will
  • Joint legatee
  • Lapse of legacy
  • Subject-matter of will
  • Abatement of legacies
  • Conditional and Contingent Will
  • Revocation of wills
  • Death-bed gifts
  • Death-bed acknowledgement of gifts
Waqfs
  • Definition of Waqfs
  • Essentials of a valid Waqf
  • Waqf by non-muslim
  • Waqf of Musha
  • Difference between Waqfs and Trust
  • Doctrine of Cyprus
  • Modes of creation of Waqf
  • Muslim religious endowments
  • Public and private mosques
  • Idga
  • Khankah
  • Imambara
  • Qbristan
Pre-emption
  • Doctrine of Pre-emption
  • Essential elements of Pre-emption

Administration of Estates
  • Executor and Administrator
  • Vesting of the estates
  • Payment of debts
  • Widow as creditor
  • Legatee's liability
Inheritance
  • Pre-Islamic Customs
  • Islamic Reforms
  • General principles of Islamic inheritance
  • Sharers
  • Doctrine of Increase
  • Doctrine of Return
  • Differences between Sunni and Shia law of inheritance
Related Statutes
Indian Muslim Law
Acts
Rules
  • Muslim Women (Protection of Rights on Divorce) Rules, 1986






Q. What is Talaq? Who can pronounce Talaq? Identifying differences between shia and sunni, explain the different modes/types of Talaq. What is Talaq e tafweez? What is the difference between Talaqulsunnat and Talaqulbiddat. Can a muslim wife give Talaq to her husband? If yes, under what circumstances? What are the grounds on which a muslim woman can demand Talaq? State the consequences that arise from Talaq under muslim law.

The word Talaq originally meant "repudiation" or "rejection". In Muslim law, it means release from a marriage tie, immediately or eventually. In a restricted sense it means separation effected by the use of certain appropriate words by the husband and in a wide sense it means all separations for causes originating from the husband. It is also generic name for all kinds of divorce but it is particularly applied to the repudiation by or on behalf of husband.

In MoonsheeBuzloor Rahim vsLateefutoonNissa, it was said that Talaq is a mere arbitrary act of a muslim husband, by which he may repudiate his wife at his own pleasure with or without cause.

Who can pronounce Talaq?

As per Islamic law, only the husband has a right to pronounce Talaq. Under Talaq-e-tafweez, a husband may delegate the authority to the wife to pronounce talk on his behalf. The husband must posses the following qualifications to be able to pronounce a valid Talaq -

Shia - He must be of sound mind and attained the age of puberty. It must be pronounced orally in the presence of two witnesses unless he is unable to speak. Further, Talaq must not be pronounced under duress or compulsion otherwise Talaq is void. It must be spoken in Arabic terms and strictly in accordance to sunnat.

Sunni - Only two requirements - Sound mind, attained majority. A Talaq pronounced under compulsion or intoxication is effective.

It is not necessary that Talaq must be pronounced in the presence of wife. In FulchandvsNavab Ali Chaudhary 1909, it was laid that Talaq should be deemed to have come into effect on the date on which the wife came to know of it.

Intention is not necessary for a Talaq to take effect. If unambiguous words denoting irrevocable Talaq are pronounced even by mistake or in anger, it is a valid Talaq.

Talaq can be effected orally or in writing (Talaqnama). If the words are express and well understood as implying divorce (e.g. "I have divorced thee"), no proof of the intention is required. If the words are ambiguous (e.g. "Thou art my cousin, the daughter of my uncle, if you goest"), then intention of the user must be proved.

After the passing of Muslim Marriage Dissolution Act 1949, a muslim wife can also get a divorce on certain grounds. (Explained below)

The following diagram shows various types of divorces -  (Note that technically, Talaq is not same as divorce, but in the exam when these morons ask about types of Talaq, they actually mean types of divorce!)

types











Type of Talaq
Shia
Sunni
By Husband
Talaqulsunnat - It is a Talaq which is effected in accordance with the traditions of Prophet. It is further divided in two types - Ahasan and hasan.

Ahasan - It is the most approved and considered to be the best kind of Talaq. The word ahasan means best or very proper. To be of Ahasan form, it must satisfy the following conditions -
  1. the husband must pronounce the formula of divorce in a single sentence.
  2. the pronouncement of divorce must in done when the wife is in state of tuhr (purity), which means when she is free from her menses.
  3. husband must abstain from intercourse for the period of iddat.
If the marriage has not been consummated, if the spouses are away from each other, or the wife is beyond the age of mensuration, Talaq may even be pronounced while the wife is in menses.
Pronouncement in this form is revocable during the period of iddat. Such revocation may be either express or implied.It becomes irrevocable at the expiry of iddat.
  • Written Talaq is not acceptable unless the husband is unable to speak.
  • Two male witnesses are required.
  • Intention to divorce is required on the part of husband.
  • Written Talaq is acceptable.
  • No witnesses are required.
  • Talaq pronounced even by mistake is binding. 
Hasan - Hasan in arabic means "good" and so this form of Talaq is considered to be a good form of Talaq but not as good as Ahasan. To be in this form, it must satisfy the following conditions -
  1. there must be three successive pronouncements of the formula of divorce.
  2. in case of a menstruating wife, the three pronouncements must be made in three consecutive tuhrs.
  3. in case of a non-menstruating wife, the three pronouncements must be made during the successive intervals of 30 days.
  4. no sexual intercourse must take place during these three periods of tuhr.
It can be revoked any time before the third pronouncement. It becomes irrevocable on the third pronouncement.

Talaqulbiddat - It is a disapproved and sinful form of Talaq. It was introduced by Ommeyyads in order to escape the strictness of law. To be of this form, it must satisfy the following conditions -
  1. three pronouncements may be made during a single tuhr either in one sentence (e.g. "I divorce thee thrice." ) or in three sentences (e.g. I divorce thee, I divorce thee, I divorce thee).
  2. a single pronouncement made during a tuhr clearly indicating an intention to dissolve marriage irrevocably (e.g. "I divorce thee irrevocably").
It becomes irrevocable immediately when it is pronounced irrespective of iddat.Thus, once pronounced, it cannot be revoked. One a definite complete separation has taken place, they cannot remarry without the formality of the woman marrying another man and being divorced from him.


In Saiyyad Rashid Ahmad vsAnisaKhatoon 1932, one GhayasUddin pronounced triple Talaq in the presence of witnesses though in the absence of the wife. Four days later a Talaqnama was executed which stated that three divorces were given. However, husband and wife still lived together and had children. While the husband treated her like a wife, it was held that since there was no proof of remarriage, the relationship was illicit and the children were illegitimate.

It has been said that this type of Talaq is theologically improper. In FazlurRahmanvs Aisha 1929, it was held that Quran verses have been interpreted differently by different schools. Thus, it is legally valid for Sunnis but not for Shia.
Shias and Malikis do not recognize this form.

Shia law does not recognize any form of irrevocable Talaq.
Recognized but considered sinful.
Ila - (Vow of continence) - Where the husband is of sound mind and of the age of majority, swears by God that he will not have sexual intercourse with his wife and leaves the wife to observe iddat, he is said to make ila. If the husband after having pronounced ila abstains from having sexual intercourse with wife for four months, the marriage is dissolved with the same result as if there had been an irrevocable divorce pronounced by the husband. This requires following conditions -
  1. Husband must be of sound mind and above the age of majority.
  2. must swear by God or must take a vow.
  3. vow must be that he will not have sexual intercourse with his wife.
  4. must abstain from sexual intercourse with his wife for four months or more after taking the vow.
It can be canceled by - resuming sexual intercourse within the period of four months or by a verbal retraction.
It is not in practice in India.

Zihar - Injurious Assimilation - If a husband compares the wife with his mother or any other female relative within prohibited degree, the wife has a right to refuse herself to him until he has perfomed a penance such as freeing a slave or fasting for a month. In default of expiation by penance, the wife has the right to apply for judicial divorce. Ingredients -
  1. husband must be sane and adult
  2. husband compares wife to his mother or any other female relative within prohibited degrees.
  3. then the wife has a right - a) to refuse to have sexual intercourse with him till he has expiated himself by penance, b) to apply in court for an order directing him for a penance or to decree her a regular divorce.
Legal Effects-  Zihar by itself does not terminate the marriage nor does it cause the wife to lose her right to maintenance even in case of default of penance. It causes the following -
  1. sexual intercourse becomes unlawful
  2. husband is liable for penance
  3. wife can claim judicial separation if the husband persists in wrong doing.
The comparison must be done intentionally  and with disrespect. If the husband makes a comparison to show respect to his wife, an expiation is not necessary.
This form has become obsolete.
Comparison must have been done in presence of two witness.
Muta marriage may be dissolved by Zihar.
No such requirement.
By Wife
Talaq e tafweez - A husband may delegate his power to give Talaq to any third party or even to his wife. This delegation is called tafweez. An agreement made either before or after the marriage providing that the wife is at liberty to divorce herself from her husband under certain specified conditions (e.g. husband taking a second wife), is valid, provided that such power is not absolute and unconditional and that the conditions are reasonable and are not opposed to public policy.

In Mohd Khan vsMstShahmali AIR 1972, there was a pre-nuptial agreement in which the defendant agreed to live in plaintiff's parental house after marriage and if he left the house, he would pay a certain sum to the plaintiff, the default of which the condition would act as divorce. It was held that the condition was not unconscionable or opposed to public policy.

Note that a wife does not divorce her husband but gets herself divorced from the husband.
Ameer Ali gives three kinds of tafweez - (This is given in Aqil Ahmed's book. I have no idea what is the difference between the three).
Ikhtiar - giving her authority to Talaq herself.
Amr-bayed - leaving the matter in her own hands.
Mashiat - giving her the option to do what she likes.

This does not deprive the husband from his right to give Talaq.
Talaq e taliq - It means contingent divorce. Under the Hanafi law, pronouncement of divorce may take effect immediately or at some future time or event. 

By Agreement
Khula - Divorce at the request of wife - A wife has a right to buy her release from marriage from her husband. It must satisfy the following conditions -
  1. there must be an offer from the wife.
  2. the offer must be accepted with consideration (evaz) for the release.
  3. the offer must be accepted by the husband.
It becomes effective as well as irrevocable (Talaqulbain) as soon as it is accepted by the husband and the wife is bound to observe iddat.

As a consideration for release by the husband, everything that can be given in dower can be given. If the wife fails to give the consideration that was agreed upon at the time of Khula, divorce does not become invalid but the husband has the right to claim the consideration.

In MoonsheeBuzloor Rahim vsLateefutoonNissa, Khula was defined as a divorce by consent in which the wife gives or agrees to give a consideration to the husband for her release from the marriage tie. Khula is thus the right of divorce purchased by the wife from her husband.
Husband must be adult, sane, free agent (mukhtar), and must have intention to divorce her.

Husband has no power of revocation but wife can reclaim the consideration during iddat. In this case, the husband can revoke Khula.
Only two conditions - Husband must be adult and sane.

It is irrevocable and partners cannot resume sexual intercourse until a fresh marriage is arranged.
Mubarat - Divorce by mutual agreement - It is a form of dissolution of marriage contract, where husband and wife both are averse to the marriage and want to separate. It requires following conditions -
  1. Either of husband or wife can make the offer.
  2. The other one must accept it.
  3. As soon as it is accepted, it become irrevocable and iddat is necessary. Since it is a mutual agreement, there is no question of consideration.

By Judicial Decree

Lian - False charge of adultery - When the husband charges the wife with adultery and the charge is false, the wife is entitled to sue for and obtain divorce.  In ZafarHussainvsUmmaturRahman 1919, the Allahabad HC accepted the doctrine of Lian. The following conditions must be satisfied -
  1. Husband, who is adult and sane, charges his wife with adultery or denies the paternity of her child.
  2. Such charge is false.
  3. The marriage is a Sahih marriage.
Features of Lian -
  1. Such false charge does not dissolve the marriage automatically but only gives a right to the wife to sue for divorce. The marriage continues till the decree is passed.
  2. Wife must file a regular suit and just an application will not suffice.
  3. Judicial separation due to Lian is irrevocable.
  4. Lian is applicable only to Sahih marriage and not to Fasid ones.
Retraction - A husband may retract the charge. However, the retraction must be bona fide and unconditional. It must be made before the closing of evidence.

Fask - Cancellation - Muslim law allows a lady to approach a qazi for dissolving the marriage under the following conditions -
  1. if the marriage is irregular.
  2. if the person having an option to avoid a marriage has exercised his options.
  3. if the marriage was within prohibited degrees or fosterage.
  4. if the marriage has been contracted by non-Muslims and the parties have adopted Islam.
Before the enactment of Muslim Marriage Dissolution act, this was the only way for a muslim woman to repudiate a marriage.

Judicial Divorce - Section 2 of Muslim Marriage Dissolution Act 1939 gives the following grounds to wife belonging to Shia as well as Sunni sects, upon which she can ask for divorce -
  1. Absence of husband - 4 yrs. Decree passed on this ground will take affect only after 6 months of passing and if the husband shows up during the 6 months he can request the court to set the decree aside.
  2. Failure to maintain - for 2 yrs. Cause is immaterial. Poverty, incapacity is no excuse. There is no agreement among HCs regarding the conduct of wife. In FazalMahmoodvsUmmaturRahman AIR 1949, Peshawar HC held that if a wife is not faithful or obedient, the husband is under no obligation to maintain her and her suit for divorce was dismissed. However, in MstNurBibivsPirBux AIR 1950, Sind HC held that a wife is entitled to divorce if the husband has failed to maintain her for two years preceding the suit even though she may not be entitled to maintenance owing to her bad conduct.
  3. Imprisonment of husband - for 7 yrs or more.
  4. Failure to perform marital obligations - for 3 yrs
  5. Impotency of husband - If the husband was impotent at the time of marriage and continues to be so.
  6. Insanity, leprosy, or venereal disease - For insanity, 2 yrs are required. For disease, no time period is required.
  7. Repudiation of marriage - If the wife was married before she was 15, she can repudiate the marriage before she turns 18.
  8. Cruelty of husband - cruelty involves -  habitual assault, associates with women of bad repute, attempts to force her to lead immoral life, disposes off her property, obstructs her practice of religion, does not treat all his wives equally.
  9. Grounds allowed by muslim law - This covers all the grounds such as Ila, Zihar, Khula, and Mubarat, which are provided by muslim law.

Section 4 of this act removes apostasy as a ground for granting divorce automatically. However, if a woman reconverts back to her original faith, the marriage will stand dissolved.


Can a muslim wife give Talaq to her husband? If yes, under what circumstances? What are the grounds on which a muslim woman can demand Talaq?

As per the definition of Talaq propounded in MoonsheeBuzloor Rahim vsLateefutoonNissa, Talaq is a mere arbitrary act of a muslim husband, by which he may repudiate his wife at his own pleasure with or without cause. Thus, a muslim wife does not have any right to give Talaq to her husband. However, there are ways through which a muslim wife can repudiate her marriage and get a divorce from her husband. These are as follows -

1. Talaq e tafweez

2.Khula

3.Zihar

4.Lian

5.Fask

6. Dissolution of muslim marriage act 1939

Consequences arising from Talaq
  1. Marriage - Parties are entitled to contract another marriage. If the marriage was consummated the wife has to wait until the period of iddat is over, otherwise, she may remarry immediately. If the marriage was consummated and if the husband had four wives at the time of divorce, he can take another wife after the period of iddat.
  2. Dower - Dower becomes payable immediately if the marriage was consummated, otherwise, the wife is entitled to half of the amount specified in dower. If no amount is specified, she is entitled to 3 articles of dress. Where the marriage is dissolved due to apostasy of the wife, she is entitled to whole of the dower if the marriage has been consummated.
  3. Inheritance - Mutual rights of inheritance cease after the divorce becomes irrevocable.
  4. Cohabitation - Cohabitation becomes unlawful after the divorce has become irrevocable and children from such intercourse are illegitimate and cannot be legitimated by acknowledgment as held in In Saiyyad Rashid Ahmad vsAnisaKhatoon 1932.
  5. Remarriage - Remarriage between the divorced couple is not possible until
    1. the wife observes iddat
    2. after iddat she lawfully marries another man
    3. this intervening marriage is consummated
    4. the new husband pronounces divorce or dies
    5. the wife again observes iddat
 A marriage done without the fulfillment of the above is irregular, not void. But mere cohabitation after an irrevocable divorce is void.
  1. Maintenance - The wife becomes entitled to maintenance during the period of iddat but not during the iddat of death.















Q. What is Mahr? What is the importance of Mahr in muslim marriage? "Dower is a debt in nature.", what are its legal consequences? What are the rights of a wife at the non-payment of dower? What are the rights of a muslim widow to retain possession of her husband's estate in lien of her dower.Who can change the Mahr? Discuss various kinds of Mahr. What is the difference between deferred and non-deferred Mahr?

In pre Islamic Arabia, when the institution of marriage as we know it today was not developed, many forms of sexual relationships existed. Some were hardly better than prostitution. Men, after despoiling their wives, often turned them out, helpless and without any means. Under this background, Islam tried to provide a just treatment for wives. In Muslim Law, a husband can divorce his wife at his whim and to ensure that the woman is not left helpless and without any means, the concept of Mahr was brought in. It forces the husband to pay a certain amount to the wife either at the time of marriage or at the time of dissolution of marriage. This amount acts as a security to the wife in case she is turned out by the husband or in her old age.

Definition - As per Tyabji, Mahr is a sum that becomes payable by the husband to the wife on marriage either by agreement between the parties or by operation of law. It may either be prompt (Mu ajjal) or deferred (Mu wajjal). According to Amir Ali, Mahr is a consideration which belongs absolutely to the wife.

In SaburunnessavsSabdu Sheikh AIR 1934, Cal. HC held that Muslim marriage is like a contract where wife is the property and Mahr is the price or consideration. However, it is also true that non-payment of Mahr does not void the marriage, so Mahr is not purely a consideration.

Importance of Mahr
Marriage in Muslim Law provides an absolute power to the husband to divorce his wife. It also allows the husband to have multiple wives. This often results in a desperate situation for women because they are left with no means to support themselves. Mahr mitigates this issue to certain extent.  Therefore, Mahr is very important for balancing the rights of the husband and wife. Mahr is an absolute requirement of a Muslim marriage and so, even if Mahr is not specified at the time of marriage, the law will presume it by virtue of the contract of marriage itself. Even if a woman stipulates to forgo the Mahr, her declaration will be invalid.
In Abdul KadirvsSalima AIR 1980, J Mahmoodhas observed that the marriage contract is easily dissoluble and the freedom of divorce and of polygamy to a husband place the power in the hands of the husband, which the Muslim law intends to restrain by the mechanism of Mahr. Thus, right of wife to her Mahr is a fundamental feature of the marriage contract.
Thus, Mahr serves the following purposes -
  1. to impose an obligation of husband as a mark of respect to wife.
  2. to place a check on the power of husband to divorce and polygamy.
  3. to provide for subsistence of wife in the event she is divorced by the husband.
Nature of Mahr
Mahr is an essential requirement of a muslim marriage. Thus, it is obligatory for the husband to pay Mahr to wife upon marriage. A wife has an unrestricted right to demand Mahr from husband. In Abdul KadirvsSalima AIR 1980, J Mahmoodobserved that Mahr may be regarded as a consideration for concubial intercourse by way of analogy to the contract for sale. It provides the woman with the right to resist the husband until Mahr is paid. This right is akin to the right of lien of a vendor upon sold goods while they remain in his possession and so long as the price for the goods has not been paid. In SmtNasra Begum vsRizwan Ali AIR 1980, it was held that right to dower precedes cohabitation. Thus, a wife can refuse consummation of marriage until Mahr is paid.

The right of wife to her dower puts her in a similar position as that of other creditors. Just like other creditors, she must be paid out of the property of the husband. Thus, it can be said that Mahr is a kind of debt upon the husband incurred in marriage. However, at the same time, payment of Mahr is not a charge upon the estate of the husband, unless an agreement is made to that effect. The interest that a wife has over the property of her husband in lieu of dower debt is limited to existing lawful possession towards her self enjoyment only. It does not give her the right to alienate the property. After the death of the husband, she can sue the heirs for the dower but heirs are not personally liable for it. They are liable only to the extent of their share in the inherited property.
A dower can also be secured by an agreement just like any other debt. In Syed SabirHussainvsFarzandHussain, a father stood surety for payment of dower by his minor son. After his death, his estate was held liable for the payment of his son's dower.

Legal Consequences of Mahr (Rights of wife in case of non payment of Mahr)
  1. Dower is like a debt and the husband is liable to pay it to the wife before the consummation of marriage. Until it is paid, the wife has a right to resist cohabitation with the husband.
  2. If the wife is in possession of husband's property, she has a right to retain it until dower is paid. She does not get a title to the property and does not get a right to alienate it.
  3. Wife can sue heirs of the husband for payment of dower.
  4. If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due to divorce or due to death.
  5. Dower is a vested right and not a contingent right. Thus, even after the death of the wife, her heirs can demand it.
  6. If dower has not been agreed upon at the time of marriage, courts can decide the amount of dower by taking financial status of the husband, age of wife, cost of living, property of wife, into consideration.
Right of wife over husband's property
Dower ranks as debt and the wife is entitled, along with other creditors, to have it satisfied on the death of husband out of his estate. Her debt, however, is no greater than any other unsecured creditor except that if she is lawfully in possession of the husband's property, she is entitled to that possession until she is able to satisfy her debt by the rents or issues accruing out of the property. She is also entitled to the possession against the heirs of the husband until her dower is satisfied.

Limitations on right of retention -  
This right arises only after the death of the husband or after divorce. During the course of marriage, a wife does not have any right to retain the property.
She should have obtained the possession lawfully.
Right to retention is not analogous to mortgage. Thus, she does not get title to the property in case dower is not paid. Further, if the property is mortgaged, the wife cannot retain possession against the mortgagee.
Wife cannot alienate the property. She has to satisfy the dower only though the rents or other issues accruing from the property.

In a leading case of MainaBibi vs ChaudharyVakil Ahmad 1924, one Moinuddin died leaving his widow MianaBibi and some property. The respondents instituted a suit against the widow for immediate possession of the property. However, the widow claimed that she had the right to possession until her dower was paid. It was held that the respondents could have the possession of their share of the property after paying the dower to the widow. The respondents did not pay and the widow continued possession. Later, the widow sold the property. The deed showed that the widow tried to convey an absolute title to the property. The respondents again filed the suit claiming that the widow did not have the right to transfer property because she only had a right to retain and did not have any right to title for herself. It was held by the privy council that a widow has the right to retain the possession of the property acquired peacefully and lawfully, until she is paid her dower. Further, she has no right to alienate the property by sale, mortgage, gift, or otherwise.

Who can change Mahr
A husband can increase the amount of debt at any time, though he cannot decrease it.
A wife can remit the dower wholly or partially. The remission of Mahr by wife is called Hibe e Mahr. However, she should have attained puberty to do so. She does not have to be a major to relinquish Mahr, only attaining puberty is sufficient. The remission made by the wife should be with free consent. Thus, in Shah BanovsIftikhar Mohammad 1956 Karachi HC, when a wife she was being ignored by husband and thought that only way to win him back was to waive Mahr, her remission of Mahr was considered without her consent and was not binding on her.

Kinds of Mahr

Mahr is of two kinds - Specified (Mahr i Musamma) and Customary or Proper (Mahr i Misl)

Specified Dower means the dower that has been agreed upon by the parties at the time of marriage. Such a dower can be settled before marriage, at the time of marriage, or even after the marriage. In case of a minor or a lunatic, the guardian can fix the amount of dower. Dower fixed by the guardian is binding upon the boy and after attaining puberty or majority, he cannot take the plea that he was not a party to it.
A husband can settle any amount as dower to his wife, even if that leaves nothing to the heirs but he cannot settle for less that 10 dhirams in Sunni Law. Shia law has no minimum. For those Muslims who are so poor that they cannot even pay 10 dhirams, they can teach the wife Quran in lieu of paying Mahr.

Specified dower can further be divided into two categories -  Prompt (Mu Ajjal) and Deferred (Mu Wajjal).
Mu Ajjal- As the names suggest, Mu ajjal dower means that the dower is payable immediately upon the marriage.
  1. The wife has a right to refuse cohabitation with the husband until she is paid the dower. 
  2. If the wife is a minor, the guardian can refuse to allow the wife to be sent to the husband until dower is paid. 
  3. Only after the payment of dower, the husband is able to enforce the conjugal rights. However, if the marriage is consummated, the wife cannot refuse cohabitation after that. 
  4. Prompt dower does not become deferred after consummation and the wife has the right to demand and sue for it any time. 
  5. The period of limitation starts after demand and refusal and it is of three years.

Mu Wajjal - It means that the dower is payable upon dissolution of marriage either by divorce or by death of husband.
  1. Even though it is deferred, an agreement to pay be before is valid and binding. 
  2. A wife does not have a right to claim dower but a husband can treat it as prompt and transfer property as payment. 
  3. A widow can relinquish her claim to dower at the time of the funeral of the husband by reciting a formula, but her relinquishment must be a voluntary act. 
  4. The interest of wife in deferred dower is a vested one and her heirs can claim it after her death.
Customary or Proper Mahr (Mahr i Misl)
When the amount of dower is not fixed in the marriage contract or even if the marriage has been contracted on the condition that she will not claim any Mahr, the wife is entitled to Proper Dower.  The amount is to be arrived upon after taking into consideration the amount of dower settled for other female members of the father's family. It is also regulated with reference to the following factors -
  1. age, beauty, fortune, understanding and virtue of wife.
  2. social position of the father
  3. dower given to her female paternal relations.
  4. economic condition of the husband.
  5. circumstances of the time.
There is no limit on the maximum limit in Sunni Law, but shia law prescribes a maximum limit of 500 dhirams, which was the amount paid by Prophet Mohammad for his daughter Fatima.

Differences between Shia and Sunni Law on Mahr
Sunni Law
Shia Law
Minimum of 10 dhirams for specified dower.
No minimum limit. 
No maximum limit for proper or specified dower.
Dower above 500 dhirams is considered abominable but legal.
If dower was not decided or marriage was done on condition that no dower will be paid, dower shall be payable if marriage is dissolved by death irrespective of whether the marriage was consummated or not.
Dower shall be payable only if the marriage was consummated in this case.
An agreement that no dower shall be payable is void.
Such an agreement by sane and adult wife is valid.
In absence of a contract, only a reasonable part of the dower is considered to be prompt. Rest is deferred.
Whole of dower is presumed to be prompt.

Q. Define Gift/Hiba. What are the three essentials of Gift? Who can give gift? What are the kinds of Gift? State the circumstances in which delivery of possession of immovable property is not required in making a gift. What gifts are void? What is Mushaa? Explain with illustration. What is the difference between HibaBilIwaz and Hiba Ba ShartulIwaz? 

Gift is a generic term that includes all transfers of property without consideration. In India, Gift is considered equivalent to Hiba but technically, Gift has a much wider scope than Hiba. The word Hiba literally means, the donation of a thing from which the donee may derive a benefit. It must be immediate and complete. The most essential element of Hiba is the declaration, "I have given".

As per Hedaya, Hiba is defined technically as, "unconditional transfer of property, made immediately and without any exchange or consideration, 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.

The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.

Essential Elements of a Gift

Since muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance (qabul), and transfer (qabza). In SmtHussenabivsHusensabHasan AIR 1989 Kar, a grandfather made an offer of 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.
  2. Acceptance by the donee - A gift is void if the donee has not given his acceptance. Legal guardian may accept on behalf of a minor.
  3. Delivery of possession by the donor and taking of the possession by the donee. 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 - reaps the benefits of the property. If the donor is reaping the benefit then the delivery is not done and the gift is invalid.
The following are the conditions which must be satisfied for a valid gift.

1. Parties - There must be two parties to a gift transaction - the donor and the donee.
        Conditions for Donor -  (Who can give)
  1. Must have attained the age of majority - Governed by Indian Majority Act 1875.
  2. Must be of sound mind and have understanding of the transaction.
  3. Must be free of any fraudulent or coercive advice as well as undue influence.
  4. Must have ownership over the property to be transfered by way of gift.
        A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin woman is also valid but in case of a dispute the burden of proof that the transaction was not conducted by coercion or undue influence is on the donee.

        Gift by a person in insolvent circumstances is valid provided that it is bona fide and not merely intended to defraud the creditors.

        Conditions for Donee (who can receive)
  1. Any person capable of holding property, which includes a juristic person, may be the donee of a gift. A muslim may also make a lawful gift to a non-muslim.
  2. Donee must be in existence at the time of giving the gift. In case of a minor or lunatic, the possession must be given to the legal guardian otherwise the gift is void.
  3. Gift to an unborn person is void. However, gift of future usufructs to an unborn person is valid provided that the donee is in being when the interest opens out for heirs.

2.  Conditions for Gift  (What can be gifted) -
  1. It must be designable under the term mal.
  2. It must be in existence at the time when the gift is made. Thus, gift of anything that is to be made in future is void.
  3. The donor must possess the gift.
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 AIR 1984, 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 life interest is valid and it doesn't automatically enlarge into gift of corpus. This ruling is applicable to both Shia and Sunni.

   Subject of Gift -  The general principle is that the subject of a gift can be -
  1. anything over which dominion or right of property may be exercised.
  2. anything which may be reduced to possession.
  3. anything which exists either as a specific entity or as an enforceable right.
  4. anything which comes within the meaning of the word mal.  
In Rahim BuxvsMohd.Hasen 1883, it was held that gift of services is not valid because it does not exist at the time of making the gift.

Gift of an indivisible property can be made to more than one persons.

3.  Extent of Donors right to gift - General rule is that a donors right to gift is unrestricted. In RaneeKhajoorunissavsMstRoushanJahan 1876, it was recognized by the privy council that a donor may gift all or any portion of his property even if it adversely affects the expectant heirs. However, there is one exception that the right of gift of a person on death bed (Marzulmaut) is restricted in following ways - He cannot gift more than one third of his property and he cannot gift it to any of his heirs.

Kinds of Gift
There are several variations of Hiba. For example, HibabilIwaz, HibabaShartulIwaz, Sadkah,  andAriyat.

HibaBilIwaz - Hiba means gift and Iwaz means consideration. HibaBilIwaz means gift for consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One gift from donor to donee and one from donee to donor. The gift and return gift are independent transactions which together make up HibabilIwaz.

In India, it was introduced as a device for effecting a gift of Mushaa in a property capable of division. So a HibaBilIwaz is a gift for consideration and in reality it is a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and prohibition against Mushaa does not exist. The following are requisites of HibabilIwaz -
  1. Actual payment of consideration on the part of the donee is necessary. In KhajoorunissavsRaushanBegam 1876, held that adequacy of the consideration is not the question. As long is the consideration is bona fide, it is valid no matter even if it is insufficient.
  2. A bona fide intention on the part of the donor to divest himself of the property is essential.
Gift in lieu of dower debt - In Gulam Abbas vsRazia AIR 1951, All HC held that an oral transfer of immovable property worth more than 100/- cannot be validly made by a muslim husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It is neither Hiba nor HibabilIwaz. It is a sale and must done through a registered instrument.

HibabaShartulIwaz - Shart means stipulation and HibabaShartulIwaz means a gift made with a stipulation for return. Unlike in HibabilIwaz, the payment of consideration is postponed. Since the payment of consideration is not immediate the delivery of possession is essential. The transaction becomes final immediately upon delivery. When the consideration is paid, it assumes the character of a sale and is subject to presumption (Shufa). As in sale, either party can return the subject of the sale in case of a defect. It has the following requisites -
  1. Delivery of possession is necessary.
  2. It is revocable until the Iwaz is paid.
  3. It becomes irrevocable after the payment of Iwaz.
  4. Transaction when completed by payment of Iwaz, assumes the character of a sale.
In general, HibabilIwaz and HibabaShartulIwaz are similar in the sense that they are both gifts for a return and the gifts must be made in compliance with all the rules relating to simple gifts.







Differences between Hiba, HibabilIwaz, and HibabaShartulIwaz -
Hiba
HibabilIwaz
HibabaShartulIwaz
Ownership in property is transfered without consideration.
Ownership in property is transferred for consideration called iwaz. But there is no express agreement for a return. Iwaz is voluntary.
Ownership in property is transferred for consideration called iwaz, with an express agreement for a return.
Delivery of possession is essential.
Delivery of possession is NOT essential.
Delivery of possession is essential.
Gift of mushaa where a property is divisible is invalid.
Gift of mushaa even where a property is divisible is valid.
Gift of mushaa where a property is divisible is invalid.
Barring a few exceptions it is revocable.
It is irrevocable.
It is revocable until the iwaz is paid. Irrevocable after that.
It is a pure gift.
It is like a contract of sale.
In its inception it is a gift but becomes a sale after the iwaz is paid.

Exceptions in delivery of possesssion
The following are the cases where deliver of possession by the donor to the donee is not required -
  1. Gift by a father to his minor or lunatic son. In MohdHesabuddinvsMohd. Hesaruddin AIR 1984, the donee was looking after the donor, his mother while other sons were neglecting her. The donor gifted the land to the donee and the donee subsequently changed the name on the land records. It was held that it was a valid gift even though there was no delivery of land.
  2. When the donor and the donee reside in the same house which is to be gifted. In such a case, departure of the donor from the house is not required.
  3. Gift by husband to wife or vice versa. The delivery of possession is not required if the donor had a real and bona fide intention of making the gift.
  4. Gift by one co-sharer to other. Bona fide intention to gift is required.
  5. Part delivery - Where there is evidence that some of the properties in a gift were delivered, the delivery of the rest may be inferred.
  6. Zamindari villages - Delivery is not required where the gift includes parcels of land in zamindari if the physical possession is immpossible. Such gift may be completed by mutation of names and transfer of rents and incomes.
  7. Subject matter in occupation of tenant - If a tenant is occupying the property the gift may be affected by change in ownership records and by a request to the tenant to attorn the donee.
  8. Incorporeal rights - The gift may be completed by any appropriate method of transfering all the control that the nature of the gift admits from the donor to the donee. Thus, a gift of govt. promissory note may be affected by endorsement and delivery to the donee.
  9. Where the donee is in possession - Where the donee is already in possession of the property, delivery is not required. However, if the property is in adverse possession of the donee, the gift is not valid unless either the donor recovers the possession and delivers it to donee or does all that is in his power to let the donee take the possession.
Void Gifts
The following gifts are void -
  1. Gift to unborn person. But a gift of life interest in favor on a unborn person is valid if he comes into existence when such interest opens out.
  2. Gifts in future - A thing that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in future, is void.
  3. Contingent gift - A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a male heir is void.
Gift with a condition 
A gift must always be unconditional. When a gift is made with a condition that obstructs its completeness, the gift is valid but the condition becomes void. Thus, if A gifts B his house on a condition that B will not sell it or B will sell it only to C, the condition is void and B takes full rights of the house.

Mushaa (Hibabilmushaa)
Mushaa means undivided share in a property. The gift of undivided share in an indivisible property is valid under all schools but there is no unanimity of opinion amongst different schools about gift of undivided share in a property that is divisible. In Shafai and IthnaAsharia laws it is valid if the donor withdraws his control over the property in favor of the donee. But under Hanafi law, such a gift is invalid unless it is separated and delivered to the donee.

Illustration -
A, B, and C are the co-owners of a house. Since a house cannot be divided, A can give his undivided share of the house to D in gift.
A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and IthnaAhsharia law,  A can give his undivided share of the wheat to D if he withdraws control over it  but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers the possession of 1 ton of wheat to D.

In case of KashimHussainvs Sharif Unnisa 1883, A gifted his house to B along with the right to use a staircase, which was being used by C as well. This gift was held valid because staircase is indivisible.

Revocation of a Gift
Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also generally revocable, though it is held to be abominable. In Shia law, a gift can be revoked by mere declaration while in Sunni law, it can be revoked only by the intervention of the court of law or by the consent of the donee.

The following gifts, however, are absolutely irrevocable -
  1. When the donor is dead.
  2. When the donee is dead.
  3. When the donee is related to the donor in prohibited degrees on consanguinity. However, in Shia law, a gift to any blood relative is irrevocable.
  4. When donor and the donee stand in marital relationship. However, in Shia law, a gift to husband by wife or vice versa is revocable.
  5. when the subject of the gift has been transfered by the donee through a sale or gift.
  6. when the subject of the gift is lost or destroyed, or so changed as to lose its identity.
  7. when the subject of the gift has increased in value and the increment is inseparable.
  8. when the gift is a sadqa.
  9. when anything as been accepted in return.











Q. Define Wakf and explain the essentials of a valid Wakf. What are different kinds of Wakf? How is Wakf created? Can a Wakf be created only for the benefit of one's family? What is the difference between contingent and conditional Wakf? When is Wakf complete? What are the legal consequences of a valid Wakf? Can a Wakf be revoked? Define Mutawalli. Who can be a Mutwalli? Who are incompetent to be Mutwalli? By whom can he be appointed? Can a Mutwalli be removed? How?

Literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazimvs A Asghar Ali AIR 1932.  Technically, it means a dedication of some specific property for a pious purpose or secession of pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf is the detention of a specific thing that is in the ownership of the waqif or appropriator, and the devotion of its profits or usufructs to charity, the poor, or other good objects, in the manner of areeat or commodate loan.
Wakf Act 1954 defines Wakf as, "Wakf means the permanent dedication by a person professing the Islam, of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable."

Essentials of a valid Wakf

1.  Permanent Dedication of any property - There are actually three aspects in this requirement. There must be a dedication, the dedication must be permanent, and the dedication can be of the property.  There is no prescribed form of dedication. It can be written or oral but it must be clear to convey the intention of dedication. According to Abu Yusuf, whose word is followed in India, mere declaration of dedication is sufficient for completion of Wakf. Neither delivery of possession or appointment of Mutawalli is necessary.

The dedication must be permanent . A temporary dedication such as for a period of 10 yrs or until death of someone is invalid.

The subject of Wakf can be any tangible property (mal) which can used without being consumed. In Abdul Sakurvs Abu Bakkar 1930, it was held that there are no restrictions as long as the property can be used without being consumed and thus, a valid Wakf can be created not only of immovable property but also of movable property such as shares of a company or even money. Some subjects that Hanafi law recognizes are immovable property, accessories to immovable property, or books.


The subject of the Wakf must be in the ownership of the dedicator, wakif.  One cannot dedicate someone else's property.

2. By a Muslim-  AWakf can only be created by a Muslim.  Further, the person must have attained the age of majority as per Indian Majority Act and should be of sound mind.

3. For any purpose recognized by Muslim Law - The purpose is also called the object of Wakf and it can be any purpose recognized as religious, pious, or charitable, as per Muslim Law. It is not necessary that a person must name a specific purpose. He can also declare that the property may be used for any welfare works permitted by Shariat.
In Zulfiqar Ali vsNabiBux, the settlers of a Wakf provided that the income of certain shops was to be applied firstly to the upkeep of the mosque and then the residue, if any, to the remuneration of the mutawalli. It was held to be valid however, it was also pointed out that if a provision of remuneration was created before the upkeep of the mosque, it would have been invalid.
The following are some of the objects that have been held valid in several cases - Mosques and provisions of Imam to conduct worship, celebrating birth of Ali Murtaza, repairs of Imambaras, maintenance of Khanqahs, burning lamps in mosques, payment of money to fakirs, grant to an idgah, grant to colleges and professors to teach in colleges, bridges and caravan sarais.

In KunhamuttyvsAhmanMusaliar AIR 1935, Madras HC held that if there are no alms, the performing of ceremonies for the benefit of the departed soul is not a valid object.

Some other invalid objects are - building or maintaining temple or church, providing for the rich exclusively, objects which are uncertain.

Shia Law - Besides the above requirements, Shia law imposes some more requirements for a valid Wakf.  There are -
  1. Delivery of possession to the first person in whose favour the Wakf has been created is essential. 
  2. Dedication must be absolute and unconditional. 
  3. The property must be completely taken away from the wakif. It means that the wakif cannot keep or reserve any benefit or interest, or even the usufructs of the dedicated property.






Creation of Wakf
Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways -
  1. By an act of a living person (inter vivos) - when a person declares his dedication of his property for Wakf.  This can also be done while the person is on death bed (marjulmaut), in which case, he cannot dedicate more than 1/3 of his property for Wakf.
  2. By will-  when a person leaves a will in which he dedicates his property after his death. Earlier it was thought that Shia cannot create Wakf by will but now it has been approved.
  3. By Usage - when a property has been in use for charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.
Kinds of Wakfs
A Wakf can be classified into two types -  Public and Private. As the name suggests, a public Wakf is for the general religious and charitable purposes while a private Wakf is for the creators own family and descendants and is technically called Wakfalalaulad. It was earlier considered that to constitute a valid wakf there must be a complete dedication of the property to God and thus private wakf was not at all possible. However, this view is not tenable now and a private wakf can be created subject to certain limitation after Wakf Validating Act 1913. This acts allows a private wakf to be created for one's descendants provided that the ultimate benefits are reserved for charity. Muslim Law treats both public and private wakfs alike. Both types of wakf are created in perpetuity and the property becomes inalienable.

Wakfalalaulad (can a wakf be created for one's family?)
Wakf on one's children and thereafter on the poor is a valid wakf according to all the Muslim Schools of Jurisprudence. This is because, under the Mohammedan Law, the word charity has a much wider meaning and includes provisions made for one's own children and descendants. Charity to one's kith and kin is a high act of merit and a provision for one's family or descendants, to prevent their falling into indigence, is also an act of charity. The special features of  wakf-alal-aulad is that only the members of the wakif’s family should be supported out of the income and revenue of the wakf property. Like other wakfs, wakfalal-aulad is governed by Muhammadan Law, which makes no distinction between the wakfs either in point of sanctity or the legal incidents that follow on their creation. Wakfalalaulad is, in the eye of the law, Divine property and when the rights of the wakif are extinguished, it becomes the property of God and the advantage accrues to His creatures. Like the public wakf, a wakf-alal-aulad can under no circumstances fail, and when the line of descendant becomes extinct, the entire corpus goes to charity.

The institution of private wakf is traced to the prophet himself who created a benefaction for the support of his daughter and her descendants and, in fact, placed it in the same category as a dedication to a mosque.
Thus, it is clear that a wakf can be created for one's own family. However, the ultimate benefit  must be for some purpose which is recognized as pious, religious or charitable by Islam.

Quasi publicWakf
Some times a third kind of wakf is also identified. In a Quasi publicwakf, the primary object of which is partly to provide for the benefit of particular individuals or class of individuals which may be the settler's family, and partly to public, so they are partly public and partly private.

Contingent Wakf
A wakf, the creation of which depends on some event happening is called a contingent wakf and is invalid. For example, if a person creates a wakf saying that his property should be dedicated to god if he dies childless is an invalid wakf. Under shia law also, a wakf depending on certain contingencies is invalid.
In KhaliluddinvsShri Ram 1934, a muslim executed a deed for creating a wakf, which contained a direction that until payment of specified debt by him, no proceeding under the wakfnama shall be enforceable. It was held that it does not impose any condition on the creation of the wakf and so it is valid.

Conditional Wakf
If a condition is imposed that when the property dedicated is mismanaged, it should be divided amongst the heirs of the wakf, or that the wakif has a right to revoke the wakf in future, such a wakf would be invalid. But a direction to pay debts, or to pay for improvements, repairs or expansion of the wakf property or conditions relating to the appointment of Mutawalli would not invalidate the wakf. In case of a conditional wakf, it depends upon the wakif to revoke the illegal condition and to make the wakf valid, otherwise it would remain invalid.

Completion of wakf
The formation of a wakf is complete when a mutawalli is first appointed for the wakf. The mutalwalli can be a third person or the wakif himself. When a third person is appointed as mutawalli, mere declaration of the appointment and endowment by the wakif is enough.  If the wakif appoints himself as the first mutawalli, the only requirement is that the transaction should be bona fide. There is no need for physical possession or transfer of property from his name as owner to his name as mutawalli.

In both the cases, however, mere intention of setting aside the property for wakf is not enough. A declaration to that effect is also required.

In Garib Das vs M A Hamid AIR 1970, it was held that in cases where founder of the wakf himself is the first mutawalli, it is not necessary that the property should be transferred from the name of the donor as the owner in his own name as mutawalli.

Shia law -
  1. Delivery of possession to the mutawalli is required for completion when the first mutawalli is a third person.
  2. Even when the owner himself is the first mutawalli, the character of the ownership must be changed from owner to mutawalli in public register.
Legal Consequences (Legal Incidents) of Wakf 
Once a wakf is complete, the following are the consequences -
  1. Dedication to God -  The property vests in God in the sense that no body can claim ownership of it. In Md. Ismail vs Thakur Sabir Ali AIR 1962, SC held that even in wakfalalaulad, the property is dedicated to God and only the usufructs are used by the descendants.
  2. Irrevocable - In India, a wakf once declared and complete, cannot be revoked. The wakif cannot get his property back in his name or in any other's name.
  3. Permanent or Perpetual -Perpetuality is an essential element of wakf. Once the property is given to wakf, it remains for the wakffor ever. Wakf cannot be of a specified time duration. In MstPeeranvs Hafiz Mohammad, it was held by Allahbad HC that the wakf of a house built on a land leased for a fixed term was invalid.
  4. Inalienable - Since Wakf property belongs to God, no human being can alienate it for himself or any other person. It cannot be sold or given away to anybody.
  5. Pious or charitable use - The usufructs of the wakf property can only be used for pious and charitable purpose. It can also be used for descendants in case of a private wakf.
  6. Extinction of the right of wakif - The wakif loses all rights, even to the usufructs, of the property. He cannot claim any benefits from that property.
  7. Power of court's inspection -  The courts have the power to inspect the functioning or management of the wakf property. Misuse of the property of usufructs is a criminal offence as per Wakf Act.1995.
Revocation of Wakf
In India, once a valid wakf is created it cannot be revoked because no body has the power to divest God of His ownership of a property. It can neither be given back to the wakif nor can it be sold to someone else, without court's permission.
A wakf created inter vivos is irrevocable. If the wakif puts a condition of revocability, the wakf is invalid. However, if the wakf has not yet come into existence, it can be canceled. Thus, a testamentary wakf can be canceled by the owner himself before his death by making a new will. Further, wakf created on death bed is valid only up till 1/3 of the wakif's property. Beyond that, it is invalid and the property does not go to wakf but goes to heirs instead.

Mutawalli
Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee of the property. He is only a superintendent whose job is the see that the usufructs of the property are being utilized for valid purpose as desired by the wakif. He has to see that the intended beneficiaries are indeed getting the benefits. Thus, he only has a limited control over the usufructs.
In Ahmad Arifvs Wealth Tax Commissioner AIR 1971, SC held that a mutawalli has no power to sell, mortgage, or lease wakf property without prior permission of the court or unless that power is explicitly provided to the mutawalli in wakfnama.

Who can be a mutawalli-  A person who is a major, of sound mind, and who is capable of performing the functions of the wakf as desired by the wakif can be appointed as a mutawalli. A male or female of any religion can be appointed. If religious duties are a part of the wakf, then a female or a non-muslim cannot be appointed.
In ShaharBanovs Aga Mohammad 1907, Privy council held that there is no legal restriction on a woman becoming a mutawalli if the duties of the wakf do not involve religious activities.

Who can appoint a mutawalli - Generally, the wakif appoints a mutawalli. He can also appoint himself as a mutawalli. If a wakf is created without appointing a mutawalli, in India, the wakf is considered valid and the wakif becomes the first mutawalli in Sunni law but according to Shia law, even though the wakf remains valid, it has to be administered by the beneficiaries. The wakif also has the power to lay down the rules to appoint a mutawalli. The following is the order in which the power to nominate the mutawalli transfers if the earlier one fails -
  1. founder
  2. executor of founder
  3. mutawalli on his death bed
  4. the court, which should follow the guidelines -
    1. it should not disregard the directions of the settler but public interest must be given more importance.
    2. preference should be given to the family member of the wakif instead of utter stranger.
Powers of a mutawalli - Being the manager of the wakf, he is in charge of the usufructs of the property. He has the following rights -
  1. He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of the wakf. He can take all reasonable actions in good faith to ensure that the intended beneficiaries are benefited by the wakf. Unlike a trustee, he is not an owner of the property so he cannot sell the property. However, the wakif may give such rights to the mutawalli by explicitly mentioning them in wakfnama.
  2. He can get a right to sell or borrow money by taking permission from the court upon appropriate grounds or if there is an urgent necessity.
  3. He is competent to file a suit to protect the interests of the wakf.
  4. He can lease the property for agricultural purpose for less than three years and for non-agricultural purpose for less than one year. He can exceed the term by permission of the court.
  5. He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the court to get an increase.
Removal of a mutawalli -
Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a mutawalli can be removed in the following situations -
  1. By court - 
    1. if he misappropriates wakf property.
    2. even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.
    3. knowingly or intentionally causes damage or loss to wakf property. In BibiSadique Fatima vsMahmoodHasan AIR 1978, SC held that using wakf money to buy property in wife's name is such breach of trust as is sufficient  ground for removal of mutawalli.
    4. he becomes insolvent.
  2. By wakf board - Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli from his office under the conditions mentioned therein.
  3. By the wakif - As per Abu Yusuf, whose view is followed in India, even if the wakif has not reserved the right to remove the mutawalli in wakf deed, he can still remove the mutawalli.










Q. Discuss the nature and meaning of will. What are the essentials of a valid muslim will? Who can make a will? What are the formalities necessary for a valid will? What restrictions are imposed on a Muslim's testamentary disposition? Explain. Distinguish between shia and sunni laws regarding will.

Will is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other meanings. It may signify a moral exhortation, a specific legacy, or the capacity of the executor. In general, a will means a document containing the desire, regarding how a person wants to utilize or divide his property, after he is dead. According to section 2(h) of Indian Succession Act 1925,  Will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

For a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It offers to the testator a means to change the course of inheritance to certain extent and to recognize the value of those relatives who are excluded from inheritance or strangers who might have helped him in life or in last moments. Prophet Mohammad has declared that this power is not unrestricted and should not be exercised to the injury of the lawful heirs.

Essentials of a valid Muslim will
  1. Competency of the testator (who can make the will)
    Any Muslim, including a man or a woman, who is major and is of sound mind can make a will. Regarding wills, the age of majority is governed by Indian Majority Act. A will made by a minor is invalid but it can be validated by ratification after he attains majority. A person of unsound mind is not competent to make a will and a will made by such a person is invalid. A will made by a person while of sound mind, who later becomes of unsound mind, becomes invalid.
    In Abdul Manan Khan vsMirtuza Khan AIR 1991, Patna HC held that any Mohammadan having a sound mind and not a minor may make a valid will to dispose off the property. So far as a deed is concerned, no formality or a particular form is required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose.
    Will of a person committing suicide -     Under Sunni Law the will of a person committing suicide is valid. Under Shia law, a will made by the person who has done any act towards committing suicide is invalid but if the will is made before doing of any act towards committing suicide, it is valid.
  2. Competency of the legatee
    Any person capable of holding property may be the legatee under a will. Thus, sex, age, creed, or religion are no bar. However, no one can be made the beneficial owner of the shares against his will, therefore, to complete the transfer, the legatee must give his express or implied consent to accepting the legacy.
    An institution can be a legatee.
    A non-muslim can be a legatee if he is not an enemy of Islam and is not hostile towards Islam.
    In Sunni law, a testator's murderer cannot be a legatee. In Shia law, if the act of the murderer was an accident, he can be a legatee otherwise not.
    Unborn person - In Sunni Law, a child born within 6 months of the date of making of the will is considered to be in existence and is a valid legatee. In Shia law, the period is 10 months, which is the maximum period of gestation.
    Bequest for a charitable object is valid.
  3. Validity of the subject of will - To be able to will a property, it must be -
    1. capable of being transferred.
    2. in existence at the time of testator's death even if it is not in existence at the time of making will. Thus, a bequest cannot be made of any thing that is to be performed or produced in future.
    3. in the ownership of the testator.
A bequest that is to take effect only upon any uncertain event happening is a contingent bequest, and is void.  However, a bequest with a condition that derogates from its completeness is valid and will take effect as if the condition did not exist. For example, a grant is made to X for his life and then it is stipulated to go to Y after death of X. In this case, X will get the grant completely and Y will get nothing. Thus, a bequest of life estate is not valid either under Shia or Sunni Law.
  1. Extent of power of will - The testamentary power of a muslim is limited in two ways -
    Limitations as regards to person - The general rule is laid down in Ghulam Mohammad vsGhulamHussain 1932 by Allahbad HC, that a bequest in favour of a heir is not valid unless the other heirs consent to the bequest after the death of the testator. Whether a person is a heir or not is determined at the time of testator's death.
    Under Shia law, a testator may bequest a heir as long as it does not exceed one third of his property and no consent of other heirs is required. In HussainiBegamvs Mohammad Mehdi 1927, it was held that if all the property was bequested to one heir and other were not given anything, the bequest was void in its entirety.
    Limitations as regard to the amount - The general principle is that a muslim is not allowed to will more than 1/3rd of his property after taking out funeral charges and debt. However, under Hanafi law, it may be valid if heirs give the consent after the death of the testator. In Shia law, such consent can be taken either before or after the death. Another exception is that if the testator has no heir, he can will any amount. The govt. cannot act as a heir to the heirless person.
Differences between Shia and Sunni Law on Will
Sunni Law
Shia Law
Bequest to an heir without consent of other heirs is invalid.
Bequest up to 1/3 of the property is valid even without consent. 
Bequest to unborn child is valid if the child is born within 6 months of making the will.
Valid if the child is born within 10 months of making the will.
Legatee who causes death even by accident is incapable of receiving.
Legatee who causes death by accident is capable.
For a bequest of more than 1/3 to a non-heir, the consent of heir must be obtained after the death of testator.
Heir's consent may be obtained before or after death.
Will of a person committing suicide is valid.
Valid only if the will is made before the person does any act towards committing suicide.
Recognizes ratable distribution.
Does not recognize rateable distribution.
If the legatee dies before testator, the legacy lapses and goes back to the testator.
The legacy lapses only if the legatee dies without heirs otherwise, it goes to legatee's heirs.
Legatee must accept the legacy after the death of the testator.
Legatee can accept the legacy even before the death of the testator.

Differences between Will and Gift
Gift
Will
It is an immediate transfer of right or interest.
It is a transfer after death. 
Delivery of possession is necessary.
Delivery of possession is not necessary.
Subject of gift must exist at the time of making gift.
Subject of will must exist at the time of death of the testator.
Right of donor is unrestricted.
It is limited up to 1/3rd of the property.
Cannot be revoked.
Can be revoked by making another will.


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