Gifts (Hiba), Wills (Wasiyat), and Waqf notes — Unit 4

Under Muslim Law, a gift is called Hiba. The Transfer of Property Act, 1882 (Chapter VII dealing with gifts) specifically states that it does NOT apply to rules of Muslim Law. A Hiba can be made orally without any registered written document, provided the essential conditions are met.

⇒The Three Essentials of a Valid Hiba

• 1. Declaration (Ijab): A clear and unambiguous declaration of the gift by the donor.
• 2. Acceptance (Qubool): Acceptance of the gift, express or implied, by or on behalf of the donee.
• 3. Delivery of Possession (Qabza): Delivery of possession of the subject of the gift by the donor to the donee. This is the most crucial element.

If any of these three elements are missing, the gift is completely void.

The delivery of possession can be Actual or Constructive.

⇒Actual vs. Constructive Possession

• Actual: Physically handing over movable property (e.g., handing over a watch).
• Constructive: Where actual delivery is impossible, doing an act that enables the donee to exercise control over the property (e.g., handing over the keys to a house, or changing the mutation name in municipal records).

⇒Exceptions: When Delivery is NOT Required

In certain close relationships, the law presumes delivery:

• Husband to Wife (or vice versa): If a husband gifts a house to his wife, and they continue to live in it together, the gift is valid even though he didn't physically 'vacate' it.
• Father to Minor Child: No formal delivery is needed since the father is the legal guardian of the child's property.
• Donor and Donee reside in the same property: If A gifts a house to B, and both live there, A doesn't need to physically move out for the gift to be valid, provided A makes a clear declaration.

Muslim Law recognizes specific variations of Hiba involving an exchange or consideration.

⇒1. Hiba-bil-Iwaz (Gift with Return)

This is a gift made in exchange for a return consideration (Iwaz). E.g., A gifts a house to B, and B in return gifts A a car. Because it involves consideration, it legally takes the form of a Sale.

• Delivery of possession is NOT strictly required.
• It must be registered if immovable property is involved (since it is treated as a sale under the Transfer of Property Act).

⇒2. Hiba-ba-Shart-ul-Iwaz

A gift made with an express condition/stipulation for a future return. In the beginning, it is a pure gift (Hiba). But the moment the future return is paid, it becomes a Sale (Hiba-bil-Iwaz).

A Muslim can make a Will (Wasiyat) orally or in writing. However, their power to bequeath property is strictly limited by Islamic jurisprudence to protect the legal heirs.

⇒The One-Third Rule

A Muslim cannot by Will dispose of more than one-third (1/3rd) of their net estate (after paying funeral expenses and debts). The remaining two-thirds MUST go to the legal heirs according to the strict rules of inheritance.

⇒Exceptions to the One-Third Rule

• If a Muslim wants to will away more than 1/3rd, it is only valid if the legal heirs give their consent to it.
• Sunni Law: Consent of the heirs must be given after the death of the testator.
• Shia Law: Consent can be given before or after the death of the testator.

⇒Bequest to an Heir

Sunni Law strictly forbids making a Will in favor of someone who is already a legal heir, UNLESS all the other heirs consent to it after the testator's death. (Shia law allows a Will to an heir up to the 1/3rd limit without needing consent).

Waqf is an Islamic endowment of property for religious, pious, or charitable purposes.

⇒Legal Definition

According to Abu Yusuf, Waqf implies the extinction of the founder's ownership in the property and its dedication to the Almighty God. Once a Waqf is created, the property belongs to God, and its profits are used for human benefit.

⇒Essentials of a Valid Waqf

• 1. Permanent Dedication: A Waqf cannot be created for a temporary period (e.g., for 10 years). It must be perpetual.
• 2. Competent Waqif: The founder must be an adult of sound mind.
• 3. Valid Purpose: Must be for a purpose recognized by Islam as pious (e.g., mosques, madrasas, orphanages, graveyards).
• 4. Irrevocable: Once validly created, a Waqf cannot be revoked.

⇒The Mutawalli (Manager)

Because the property belongs to God, it needs a human manager. This manager is called the Mutawalli.

• The Mutawalli is merely a manager/superintendent. He is NOT the owner or trustee in the English sense.
• He has no right to sell, mortgage, or lease the Waqf property without the explicit permission of the Court.

⇒Waqf-alal-Aulad (Waqf for the Family)

Can a Muslim create a Waqf where the profits go to his own children and descendants, and only go to charity after his family line goes extinct?

• The Privy Council in Abdul Fata v. Russomoy struck this down, saying it was just a trick to avoid the inheritance laws.
• Muslims protested, arguing this was valid under strict Islamic law. In response, the Mussalman Wakf Validating Act, 1913 was passed.
• The 1913 Act legally validated Waqf-alal-Aulad. A Muslim can now create a Waqf for the maintenance of his family and descendants, provided there is an ultimate dedication to charity (even if that charity only takes effect centuries later when the bloodline ends).

⇒Summary of Master Concepts

• Hiba (Gift): Oral gifts are valid. Delivery of possession is the most critical element.
• Hiba-bil-Iwaz: Gift with return consideration. Operates legally as a sale.
• Wasiyat (Will): The One-Third Rule prevents a Muslim from willing away more than 1/3rd of the estate without heir consent.
• Waqf: Perpetual dedication of property to God. The Mutawalli is only a manager, not an owner.
• Waqf-alal-Aulad: Validated by the 1913 Act, allowing endowments for family maintenance with ultimate dedication to charity.

⇒University Exam Tips for this Unit (Premium Advice)

• The Oral Gift Question: Examiners often ask if a registered document is needed for a Muslim gift of immovable property. Answer: NO. Under Section 129 of the Transfer of Property Act, Muslim gifts are exempt. Only Declaration, Acceptance, and Delivery of Possession are required.
• The 1/3rd Rule Logic: When explaining the restriction on Wills, mention the jurisprudential logic: Islam strictly structures inheritance to prevent wealth concentration. The 1/3rd rule ensures a dying person doesn't capriciously deprive their rightful heirs of their legal shares.
• Mutawalli Limits: Emphasize that a Mutawalli CANNOT sell the property. This is a favorite multiple-choice or short-answer question.