MUSLIM PROPERTY TRANSFER RIGHTS
Author:Livya P. Lalufrom Delhi Metropolitan Education, Noida.
A gift is a thing given willingly to someone without payment. It is a present. A gift is a thing that one gives to somebody, especially on a special occasion or to express gratitude. Under Islamic Laws, a gift or Hiba is “transfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter. It is, the transfer of movable or immovable property with immediate effect and without consideration by one person called donor, to another person called donee.” Mohammedan law draws no distinction between real and personal property. Hindu law defines gift as “the creation of another person’s proprietary right after the extinction of one’s own proprietary right in the subject matter of the gift.” Gift has been defined in The Transfer of Property Act, 1882 under section 122 as, “the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee.” According to the Mitakshara, “A gift consists of the relinquishment without consideration of one’s own right of property, and the creation of the right of another.” The creation of another man’s right is completed or that other’s acceptance of the gift, but not otherwise.
According to Fyzee, Hiba is an immediate and unqualified transfer of the corpus of the property without any return. According to Mulla, “Gift is a transfer of property, made immediately, and without any exchange, by one person to the other and accepted by or on behalf of the latter.”
ESSENTIAL ELEMENTS OF A GIFT:
For a gift under Islamic laws to be valid, the given requisites are essential:
- Parties (Donor and Donee): There must be a person who is willing and has pure intentions of gifting property to somebody and there must be a person who accepts the gift given by the former person. Here, the former is known as the donor and the latter is called, the donee.
- The capacity of Parties: The donor can be any person who is a Muslim and is of sound mind and is also major according to the Indian Majority Act, 1875. The validity of a gift by a Pardanashin Woman was questioned and it was held that the done must establish that the donor understood the full implications and consequences of the act and the nature of her act. The donor must have absolute ownership and possession of the property that is in question. The donee can be of any religion, i.e., it is not necessary that he/she has to be a Muslim to be able to accept the gift. Even the soundness of the donee’s mind is not a criterion for the concerned person to receive the gift. Also, the donee need not be a major. Though it is necessary that the donee must be a legal juristic person who is capable of holding property and is, by any means, not held unfit by law.
- The Subject Matter: The Property- The property in question can be movable or immovable, there are no guidelines for it. The property must be owned absolutely by the donor and he/she must have the property a self-acquires or ancestral or separate property. The property can be corporeal or incorporeal too, i.e., it may or may not be tangible. After all this, there is one restriction that the property in question cannot be a future gift. It means that the property in question has to be in possession of the donor at the time of making the gift. There exists in Islamic Law, the rule of Immediate Transfer and that is why future gifts are not considered here. To exemplify my point, let us consider a person ‘A’ who, in the month of April 2018 says that all the eggs that his hen might lay in October 2018, he would gift it to his friend ‘S’. Hence, it would not be a valid gift under Islamic laws as the donor does not have possession of the gift at the time of making the gift. In Rahim Buxv. Mohd. Hasen, it was held that the gift of services is not valid because it does not exist at the time of making the gift. The gift of an indivisible property can be made to more than one person.
- Delivery of Possession: Here in Islamic Laws, there has to be an immediate transfer of possession of the property in question. The proper transfer is completed or deemed to be completed only when the delivery is done.
GIFTS AS UNDER THE TRANSFER OF PROPERTY ACT, 1882:
The sections 122 – 129 deal with the provisions of gift in the Transfer of Property Act, 1882.
The gift is defined under section 122 of The Transfer of Property Act, 1882. It states that: “Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.” It is required to be a voluntary transfer of property to another made gratuitously and without consideration. This section applies to those gifts that are gifts inter vivos or an absolute gift. Property under the above section can be both movables an immovable but however have to be tangible in nature. In order to constitute a valid gift, there must be an existing property. These provisions do not regulate Muslim individuals as they are regulated by there personal law under the concept of Hiba. In Babu Lal v.Ghansham Das, the Court held that the incidents of a gift between two Muslim people are governed by the Mohammadan Law, and not by the TP Act. Also, section 129 of The Transfer of Property Act, 1882 states that: “nothing in this chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Mohammadan Law.”
The Acceptance of these gifts must be made during the lifetime of the donor and while he is still capable of giving. These provisions also state that if the donee dies before the acceptance of the gift, the gift stands void.
KINDS OF GIFTS:
There are several variations of Hiba. These include:
- Hiba bil Iwaz
- Hiba ba Shart ul Iwaz
WAQF & IT’S CREATION:
The literal meaning of Waqf is detention, stoppage, or tying up as observed in M Kazim vs A Asghar Ali. 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 Waqf or appropriator, and the devotion of its profits or usufructs to charity, the poor, or other good objects, in the manner of are at or accommodate loan. Waqf Act 1954 defines Waqf as, “Waqf 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.” A Waqf can only be created by a Muslim. Further, the person must have attained the age of majority as per the Indian Majority Act and should be of sound mind.
Creation of Waqf:
Muslim law does not prescribe any specific way of creating a Waqf. If the essential elements as described above are fulfilled, a Waqf is created. Though it can be said that a Waqf is usually created in the following ways:
- By an act of a living person (inter vivos): when a person declares the dedication of his property for Waqf. This can also be done while the person is on a death bed (marj ul maut), in which case, he cannot dedicate more than 1/3 of his property for Waqf.
- 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 Waqf by will but now it has been approved.
- By Usage: when a property has been in use for the charitable or religious purposes for time immemorial, it is deemed to belong to Waqf. No declaration is necessary and Waqf is inferred.
MUSLIM WOMEN’S PROPERTY TRANSFER RIGHTS:
Indian Muslims broadly belong to two schools of thought in Islamic Law: the Sunnite and the Shiite. UnderUnder the Sunnite School which is the preponderant school in India, there are four subcategories; Hanafis, Shafis, Malikis and Hanbalis. The vast majority of Muslims in India, Pakistan, Afghanistan, and Turkey are Hanafis.
The Shiites are divided into a large number of sub-schools, the two most important of which, so far as India is concerned is the Ismailis and the Ithna Asharis, but they form a smaller section of the Indian Muslim population. The usual practice in this sub-continent is to use the terms ‘Sunni’ law or ‘Shia’ law. Strictly speaking, this is inexact; by the former is meant the Hanafi Law and by the latter, the Ithna Ashari school.
Broad principles of inheritance in Muslim law: Till 1937 Muslims in India were governed by customary law which was highly unjust. After the Shariat Act of 1937 Muslims in India came to be governed in their personal matters, including property rights, by Muslim personal law as it “restored” personal law including a preference to custom. However, this did not mean either “reform” or “codification” of Muslim law and to date both these have been resisted by the patriarchal forces in the garb of religion. Broadly the Islamic scheme of inheritance discloses three features, which are markedly different from the Hindu law of inheritance:
- The Koran gives specific shares to certain individuals
- The residue goes to the agnatic heirs and failing them to uterine heirs and
- Bequests are limited to one-third of the estate, i.e., a maximum one-third share in the property can be willed away by the owner.
The main principles of Islamic inheritance law which mark an advance vis-à-vis the pre-Islamic law of inheritance, which has a significant bearing on the property rights of women, are:
- The husband or wife was made an heir
- Females and cognates were made competent to inherit
- Parents and ascendants were given the right to inherit even when there were male descendants and
- As a general rule, a female was given one half the share of a male.
The newly created heirs were mostly females; but where a female is equal to the customary heir in proximity to the deceased, the Islamic law gives her half the share of a male. For example, if a daughter co-exists with the son or a sister with a brother, the female gets one share and the male two shares.
The doctrine of survivorship followed in Hindu law is not known to Mohammedan law; the share of each Muslim heir is definite and known before actual partition. The rights of inheritance arise only on the death of a certain person. Hence the question of the devolution of inheritance rests entirely upon the exact point of time when the person through whom the heir claims die, the order of deaths being the sole guide. The relinquishment of a contingent right of inheritance by a Muslim heir is generally void in Mohammedan law, but if it is supported by good consideration and forms part of a valid family settlement, it is perfectly valid. The rule of representation is not recognized, for example, if A dies leaving a son B and a predeceased son’s son C, the rule is that the nearer excludes the more remote and, there is no representation, C is entirely excluded by B. There is however no difference between movable property and immovable property. Some of the features of the Hanafi school are being pointed out here to get a glimpse into the broad structure of the property rights of Muslim women in India.
To conclude we can say that, the gift is a contract consisting of a proposal or offer on the part of the donor to give a thing and acceptance of it by the donee. So it is a transfer of property immediately and without any exchange. There must be a clear intention by the donor to transfer the possession to the doner for a valid gift. It can be revoked by the donor.