Unit IV Law Relating to Gifts and Wills under personal Laws

Meaning of testamentary succession- gift under Hindu Law Muslim law – provisions under
Transfer of Property Act- Hiba- Essentials of a valid Hiba – Conditional gift and contingent
gifts- Hiba-biliwaz – Hiba-ba – ShartulIwaz- Revocation of HibaDonatio mortis causa- Wills
under Muslim law-Essentials - restrictions/limits under Muslim law of will- bequeath able one-
thirds- abatement of legacies - will under Indian Succession Act- Interpretation of a will-
formalities- Revocation of wills.

The laws dealing with testamentary succession in India are distinct and their application
depends on the influence like the religion of the parties, domicile, community, type of marriage
etc. there is further divergence in such laws based on the consideration like schools and sub-
schools viz. Mitakshara and Dayabhaga schools of Hindu Law and Hanafi and Shia School for
Muslim law. (Paras Diwan, 2006). These considerations or elements are the basic roots of
multiple succession laws which are applicable in India.
Testamentary Succession
A Will is a solemn document by which a dead man entrusts to the living the carrying out
of his wishes. Sec 2(h) of Indian Succession Act, 1925 (Act) provides definition of Will “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.” A Will takes effects only after the death of the testator. A Will
is necessarily ambulatory till death i.e. it may be revoked in the testator’s lifetime. If an
instrument is irrevocable then it cannot be a Will. If it is a Will, then it can be revoked by the
testator even if there is a clause in it purporting to make it irrevocable. As Lord Coke said in
Vynior's case1 the Court held that "If I make my testament and last Will irrevocable, yet may I
revoke it, for my act or my words cannot alter the judgment of the law to make that irrevocable
which is of its own revocable."
An Overview of Wills under Hindu Law
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the
Indian Succession Act, 1925. A will or testament is a legal document by which a person, the
testator, expresses his/her wishes as to how their property is to be distributed after death, and
names one or more persons, the executor, to manage the property until its final distribution. For
the devolution of property not disposed of by will.
Though it has at times been thought that a “will” was historically limited to real property
while “testament” applies only to dispositions of personal property (thus giving rise to the
popular title of the document as “Last Will and Testament”), the historical records show that the
terms have been used interchangeably. Thus, the word “will” validly applies to both personal and
real property. A will may also create a testamentary trust that is effective only after the death of
the testator.
The origin and growth of Will amongst the Hindus is unknown. However Wills were well
known to the Mohammedans and contact with them during the Mohammedan rule, and later on
with the European countries, was probably responsible for the practice of substituting in formal
written or oral testamentary instruments with formal testamentary instruments. The Indian
Succession Act, 1925,consolidating the laws of intestate (with certain exceptions) and
testamentary succession supersedes the earlier Acts, and is applicable to all the Wills and codicils
of Hindus, Buddhists, Sikhs and Jainas throughout India. The Indian Succession Act, 1925, does
not govern Mohammedans and they can dispose their property according to Muslim Law.
Definition of Will & Other Related Terms
●​ Will: A Will is a solemn document by which a dead man entrusts to the living to the
carrying out of his wishes. S. S.2(h) of Indian Succession Act, 1925 provides that Will
means the legal declaration of the intention of a person with respect to his property,
which he desires to take effect after his death. Will has been defined in Corpus Juris
Secundum as A ‘Will’ is the legal declaration of a man’s intention, which he wills to be
performed after his death, or an instrument by which a person makes a disposition of his
property to take effect after his death.
●​ Codicil: Codicil is an instrument made in relation to a Will, explaining, altering or
adding to its dispositions and is deemed to be a part of the Will. The purpose of codicil is
to make some small changes in the Will, which has already been executed. If the testator
wants to change the names of the executors by adding some other names, or wants to
change certain bequests by adding to the names of the legatees or subtracting some of
them, a Codicil in addition to the Will can be made to do so. The codicil must be reduced
to writing and has to be signed by the testator and attested by two witnesses. It is also the
duty of the court to arrive at the intention of the testator by reading the Will and all the
codicils.
●​ Executor: An executor is appointed by the testator, as distinguished from an
administrator who is appointed by the court. Where the Will confers the powers to collect
the outstanding, pay debts and manage the properties, the person can be said to be
appointed as an executor by implication.
●​ Probate: Probate is an evidence of the appointment of the executor and unless revoked, is
conclusive as to the power of the executor. The grant of probate to the executor however
does not confer upon him any title to the property.
●​ Letter of Administration: Letter of Administration is a certificate granted by the
competent court to an administrator where there exists a Will authorizing him to
administer the estate of the deceased in accordance with the Will. If the Will does not
name any executor, an application can be filed in the court for grant of Letter of
Administration for the property.
●​ Attestation of Will: Attesting means signing a document for the purpose of testifying the
signature of the executants. Therefore an attesting witness signing before the executants
has put his mark on the Will, cannot be said to be a valid attestation. It is necessary that
both the witnesses must sign in the presence of the testator but it is not necessary that the
testator have to sign in their presence. Further it is not necessary that both the witnesses
 have to sign at the same time. It is also not necessary that the attesting witnesses should
know the contents of the Will.
Essential Features of a Will
A Will can be made at any time in the life of a person. A Will can be changed a number
of times and there are no legal restrictions as to the number of times it can be changed. It can be
withdrawn at any time during the lifetime of the person making the Will. A Will has to be
attested by two or more witnesses, each of who should have seen the testator signing the Will.
●​ Legal declaration:
The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the
law and must be executed by a person legally competent to make it. Further the declaration of
intention must be with respect to the testator’s property.It is a legal document, which has a
binding force upon the family.
●​ Disposition of property: In a Will, the testator bequeaths or leaves his property to the
person or people he chooses to leave his assets/belongings. A Hindu person by way of his
Will can bequeath all his property. However, a member of an undivided family cannot
bequeath his coparcenery interest in the family property.
●​ Takes effect after death: The Will is enforceable only after the death of the testator
Under section 18 of the Registration Act the registration of a Will is not compulsory. Also,
the SC in Narain Singh v. Kamla Devi has held that mere non-registration of the Will an
inference cannot be drawn against the genuine of the Will. However it is advisable to register it
as it provides strong legal evidence about the validity of the Will. Once will is registered, it is
placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed,
mutilated or stolen. It is to be released only to the testator himself or, after his death, to an
authorized person who produces the Death Certificate Since a testamentary disposition always
speaks from the grave of the testator, the required standard of proof is very high. The initial
burden of proof is always on the person who propounds the Will.
Kinds of Wills
a.​ Conditional Wills: A Will maybe made to take effect on happening of a condition. In
Rajeshwar v. Sukhdeo the operation of the Will was postponed till after the death of the
testator’s wife. However if it is ambiguous whether the testator intended to make a Will
conditional, the language of the documents as well as the circumstances are to be taken
into consideration.
b.​ Joint Wills: Two or more persons can make a joint Will. If the joint Will is joint and is
intended to take effect after the death of both, it will not be admitted to probate during the
life time of either and are revocable at any time by either during the joint lives or after the
death of the survivor.
c.​ Mutual Wills: Two or more persons may agree to make mutual Wills i.e.to confer on
each other reciprocal benefits. In mutual Wills the testators confer benefit on each other
but if the legatees and testators are distinct, it is not a mutual Will. Mutual Wills are also
known as reciprocal Wills and its revocation is possible during the lifetime of either
 testator. But if a testator has obtained benefit then the claim against his property will lie.
Where joint Will is a single document containing the Wills of two persons, mutual Wills
are separate Wills of two persons.
d.​ Privileged Wills: Privileged Wills are a special category of Wills and other general Wills
are known as unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or a
airman or a mariner, when he is in actual service and is engaged in actual warfare, would
be a privileged Will. S.66 provides for the mode of making and rules for executing
privileged Wills. Ss. 65 and 66 are special provisions applicable to privileged Wills
whereas other sections relating to Wills are general provisions which will be
supplementary to Sections 65 and66 in case of privileged Wills.
There are certain instances under which a privileged Will can be executed. They can be executed
by word of mouth or might be reduced in writing.1 Below given are situations where a privileged
Will is deemed to be executed.
●​ In a situation where the privileged Will is written wholly by the testator, there is no
requirement for signature and attestation of the Will.
●​ It need not be attested, if it is written wholly or in part by another person. But the testator
has to sign the Will.
●​ When the testator does not sign or attest an instrument purporting to be a Will, it would
not be a Will, unless it is shown that the Will was written under the testator’s direction or
the testator recognized such an instrument as a Will.
●​ If the Will is incomplete and this is evident from the face of the instrument, such an
instrument shall not be invalid only if it is shown that the non-execution of this Will is
due to any other reason than ‘the abandonment of testamentary intentions expressed in
the instrument’.2
●​ In an unfortunate situation where the airman, mariner, or soldier, has died before the
execution of the Will but has left written instructions for preparation of his Will.
●​ When the Will could not be executed due to his death but the airman, soldier or mariner
has left instructions in the presence of two witnesses for preparation of the Will, and such
instructions need not necessarily be reduced in writing(in his presence or read over to
him). In such a situation, the instructions would constitute his Will.
●​ If the soldier, marine, or airman has made a Will by word of mouth by declaring his
intentions in the presence of two witnesses.
●​ However, the Will made vide word of mouth would be null and void one month after the
testator ceases to be entitled to making a privileged Will.
e.​ Unprivileged Wills:
●​ Chapter 3 of Part 6 of the Act provides for the execution of unprivileged Wills. As a
testator, he/ she shall sign or affix their mark on the Will or some other person shall affix
their mark under the direction of the testator. Further, the effect of the mark or sign shall

1
Section 66, Indian Succession Act, 1925.
2
Section 66(2)(d), Indian Succession Act, 1925.
 be such that it puts the Will in writing.3 Further, in the case of V. Kalyanaswamy (D) by
L.Rs. and Ors. vs. L. Bakthavatsalam (D) by L.Rs. and Ors., the Apex Court held
that “the Testator must execute the document and such execution must be attested by at
least two witnesses.”4
●​ The testator via Will or codicil can refer to any other document in the Will or codicil, and
such other documents form an integral part of the Will. Codicil has been defined as an
instrument, made in relation to the Will. The primary objective behind the creation of a
Will is to explain, alter, add, or modify any dispositions made in the Will. A codicil
although executed at a different place in time separately from the Will, forms a part of the
Will.5
Revocation:
70. Revocation of unprivileged will or codicil.—
72. Revocation of privileged will or codicil
●​ A Will shall not be deemed insufficiently attested if the person attesting it is also entitled
to benefit under the Will, however, the Will would be considered void up to the benefit of
such person under the Will he has attested.6 Further, if the legatee attests a codicil, which
confirms the Will, he shall not lose the benefits obtained from the Will.
●​ When a Will has been created in contemplation of marriage (first, or any subsequent
marriage), it will not stand revoked by solemnization of the said marriage, because the
primary intention of said Will is to survive said solemnization, and the sole objective of
this principle is to protect the interests of the new family members of the testator against
the survival of any old Wills. Further, if the marriage is not valid, revocation of the Will
would also be invalid.7
●​ An unprivileged Will can be revoked by the testator vide another Will or codicil or by
some writing declaring their intention to revoke the Will and such Will/codicil/document
has to be executed in the same manner as the previous unprivileged Will was executed.
Further, it can be revoked by marriage, burning, tearing, or otherwise destroying the same
by the testator or in the presence of the testator and under their direction by some other
person.8
●​ A privileged Will can be revoked vide an unprivileged Will or by an act that expresses an
intention to revoke along with formalities that give validity to a privileged Will or by
burning or destroying the Will in the presence of the testator or by the testator himself.

3
Section 63, Indian Succession Act, 1925.
4
V. Kalyanaswamy (D) by L.Rs. and Ors. vs. L. Bakthavatsalam (D) by L.Rs. and Ors., [MANU/SC/0528/2020].
5
Bhagat Ram and Ors. vs. Suresh and Ors.,[MANU/SC/0972/2003].
6
Section 67, Indian Succession Act, 1925.
7
Section 69, Indian Succession Act, 1925.
8
Section 70, Indian Succession Act, 1925.
 S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable or
altered anytime during the lifetime of the testator. S. 70 of ISA provide the manner in which it
can be revoked.
A mere intention to revoke is not an effective revocation. The revocation of the Will should
be in writing and an express revocation clause would revoke all the prior Wills and codicils. If
there is no express clause to the effect then the former Will would become invalid to the extent of
its inconsistency with the latest Will, this is known as an implied revocation (however it should
be shown that the differences are irreconcilable). However if there is no inconsistency between
the Wills then they cannot be considered as two separate Wills but the two must be read together
to indicate the testamentary intention of the testator.
Revocation can also be made in writing through declaring an intention to revoke and the
writing must be signed by the testator and attested by two witnesses. The deed of revocation has
to be executed in the same way as the Will itself.
The Will maybe burnt or torn by the testator or by some other person in his presence and by
his direction with the intention of revoking the same. The burning of the Will must be actual and
not symbolic. The burning must destroy the Will at least to the extent of his entirety. Further the
Will need not be torn into pieces. It would be sufficient if it is slightly torn with the intent of
revocation.
The Will can be revoked expressly by another Will or codicil, by implied revocation, by
some writing, by burning or tearing or by destroying otherwise. Cancellation of a Will by
drawing lines across it is not a mode of revocation. Under the Hindu Law the Will is not revoked
by marriage or by subsequent birth. Cancellation of a Will by drawing lines across it is not a
mode of revocation. Under the Hindu Law the Will is not revoked by marriage or by subsequent
birth.

Alterations

S.71 of ISA is applicable to alterations if they are made after the execution of the Will but
not before it. The said section provides that any obliteration, interlineations or any other
alteration in a Will made after its execution is inoperative unless the alteration is accompanied by
the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum
signed by the testator and by the attesting witnesses at the end of the Will or some other part
referring to the alterations. The alterations if executed as required by the section would be read
as a part of the Will itself. However, if these requirements are not fulfilled then the alterations
would be considered to be invalid and the probate will be issued omitting the alterations. The
signatures of the testator and the attesting witnesses must be with regards to the alteration and
must be in proximity of the alteration. Further they should be in the Will itself and not in a
separate distinct paper. But if the obliteration is such that the words cannot be deciphered then
the Will would be considered as destroyed to that extent.
Revival:

In a situation where the unprivileged Will has been revoked by the testator, it cannot be
revived unless the re-execution is as per the provisions of the Act as mentioned hereinabove and
the intention to revoke shall be evident. However, in a situation where the Will has been partially
revoked and subsequently wholly revoked, at the time of the revival of the Will, the part initially
revoked would not be revoked unless an intention to the contrary is shown by such document
reviving the Will or codicil.9

Wording of the Will

S.74 of ISA provides that a Will maybe made in any form and in any language. No
technical words need to be used in making a Will but if technical words are used it is presumed
that they are in used in their legal sense unless the context indicates otherwise. Any want
of technical words or accuracy in grammar is immaterial as long as the intention is clear. Another
general principle applied is that the Will is to be so read as to lead to a testacy and not intestacy
i.e if two constructions are possible then the construction that avoids intestacy should be
followed.

Further there is another principle, which says that the construction that postpones the
vesting of legacy in the property disposed should be avoided. The intention of the testator should
be decided after construing the Will as a whole and not the clauses in isolation. In Gnanambal
Ammal v. T. Raju Aiyar the Supreme Court held that the cardinal maxim to be observed by the
Court in construing a Will is the intention of the testator. This intention is primarily to be
gathered from the language of the document, which is to be read as a whole.

The primary duty of the court is to determine the intention of the testator from the Will
itself by reading of the Will. The SC in Bhura v Kashi Ram held that a construction which would
advance the intention of the testator has be favoured and as far as possible effect is to be given to
the testator’s intention unless it is contrary to law. The court should put itself in the armchair of
the testator. In Navneet Lal v. Gokul & Ors the SC held that the court should consider the
surrounding circumstances, the position of the testator, his family relationships, the probability
that he would use words in a particular sense. However it also held that these factors are merely
an aid in ascertaining the intention of the testator. The Court cannot speculate what the testator
might have intended to write. The Court can only interprete in accordance with the express or
implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the
testator.

Execution Of A Will

9
Section 73, Indian Succession Act, 1925
 On the death of the testator, an executor of the Will (executor is the legal representative
for all purposes of a deceased person and all the property of a testator vests in him. Whereas a
trustee becomes a legal owner of the trust and his office and the property are blended together) or
an heir of the deceased testator can apply for probate. The court will ask the other heirs of the
deceased if they have any objections to the Will. If there are no objections, the court grants
probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as
conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into
effect.

Signature Of The Testator

S.63(a) of ISA provides that the testator shall sign or affix his mark. If the testator is
unable to write his signature then he may execute the Will by a mark and by doing so his hand
maybe guided by another person. In another words a thumb impression has been held as valid.

Restrictions On A Will

1.​ Transfer to unborn persons is invalid

Where a bequest is made to a person by a particular description, and there is no person in

existence at the testator's death who answers that description, the bequest is void. S.113 of Indian
Succession Act,1925 provides that for a transfer to an unborn person, a prior interest for life has
to be created in another person and the bequest must comprise of whole of the remaining interest
of the testator. In Sopher sv. Administrator-General of Bengala grandfather made the bequest to
his grandson who was yet to be born, by creating a prior interest in his son and daughter in law.
The Court upheld the transfer to an unborn person and the Court held that since the vested
interest was transferred when the grandsons were born and only the enjoyment of possession was
postponed till they achieved the age of twenty one the transfer was held to be valid.

In Girish Dutt v. Datadin, the Will stated that the property was to be transferred to a
female descendant (who was unborn) only if the person did not have any male descendant. The
Court held that since the transfer of property was dependent on the condition that there has to be
no male descendant, the transfer of interest was limited and not absolute and thereby the transfer
was void. For a transfer to a unborn person to be held valid, absolute interest needs to be
transferred and it cannot be a limited interest.

2.​ Transfer made to create perpetuity

S.114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the
vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons
living at the testator's death and the minority of some person who shall be in existence at the
expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.
The rule against perpetuity provides that the property cannot be tied for an indefinite period. The
property cannot be transferred in an unending way. The rule is based on the considerations of
public policy since property cannot be made inalienable unless it is in the interest of the
community. The rule against perpetuity invalidates any bequest which delays vesting beyond the
life or lives-in-being and the minority of the donee who must be living at the close of the last life.
Hence property can be transferred to a unborn person who has to be born at the expiration of the
interest created and the maximum permissible remoteness is of 18 years i.e the age of minority in
India.

In Stanely v. Leighit was laid down that for the rule of perpetuity to be not applicable
there has to be 1)a transfer 2)an interest in an unborn person must be created 3)takes effect after
the life time of one or more persons and during his minority 4)unborn person should be
inexistence at the expiration of the interest.

3.​ Transfer to a class some of whom may come under above rules.

S.115 of ISA provides that if a bequest is made to a class of persons with regard to some
of whom it is inoperative by reasons of the fact that the person is not in existence at the testator's
death or to create perpetuity, such bequest shall be void in regard to those persons only and not in
regard to the whole class.

A number of persons are said to be a class when they can be designated by some general
name as grandchildren, children and nephews. In Pearks v. Mosesley defined gift to a class as a
gift to all those who shall come within a certain category or description defined by a general or
collective formula and who if they take at all are to take one divisible subject in certain
proportionate shares.

●​ Transfer to take effect on failure of prior Transfer.

S.116 of ISA provides that where by reason of any of the rules contained in sections 113
and 114 and bequest in favour of a person of a class of persons is void in regard to such person or
the whole of such class, any bequest contained in the same Will and intended to take effect after
or upon failure of such prior bequest is also void.

Invalid Wills

Wills invalid due to fraud, coercion or undue influenceS.61 of ISA provides that a Will, or any
part of Will made, which has been caused by fraud or coercion, basically not by free will, will be
void and the Will would be set aside.
 ●​ Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed
through 1) misrepresentation 2) concealment .Fraud in all cases implies a willful act on
the part of anyone whereby, another is sought to be deprived by illegal or inequitable
means, of which he is entitled to.
●​ Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of
bodily hurt or imprisonment would invalidate a Will. In Ammi Razu v. Seshamma, a man
threatening to commit suicide induced his wife and son to give him a release deed. It was
held that even though suicide was not punishable by the Indian Penal Code yet it was
forbidden by law and hence the release deed must be set aside as having been obtained by
coercion.
●​ Undue influence: Undue influence u/s.16 of Indian Contract Act is said to be exercised
when the relations existing between the two parties are such that one of the parties is in
the position to dominate the will of the other and uses that position to obtain an unfair
advantage over the other. However neither fiduciary relationship nor a dominating
position would raise a presumption of undue influence in case of Wills as all influences
are not unlawful. Persuasion on the basis of affection or ties is lawful. The influence of a
person in fiduciary relationship would be lawful so long as the testator understands what
he is doing. Thus it can be said that a testator maybe led but cannot be driven.

Wills Void Due To Uncertainty

S.89 of ISA states that if the Will were uncertain as regards either to the object or subject
of the Will then it would be invalid. The Will may express some intention but if it is vague and
not definite then it will be void for the reason of uncertainty. The Will may depose of the
property absurdly or irrationally i.e the intention maybe irrational or unreasonable, but that does
not make it uncertain.

For uncertainty to be proved it has to be proved that the intention declared by the testator
in the Will is not clear as to what is he giving or whom is he giving. Only if the uncertainty goes
to the very root of the matter, then only the Will has to be held void on the grounds of
uncertainty.

Will Void Due To Impossibility of Condition

S. 124 of ISA provides that a contingent legacy can take effect only on happening of that
contingency. A conditional Will is that Will which is dependent on the happening of a specific
condition the non-happening of which would make the Will inoperative. S.126 of ISA provides
that a bequest upon an impossible condition is void. The condition may be condition precedent or
condition subsequent.

Will void due to illegal or immoral conditions.

 127 of ISA provide that a bequest, which is based upon illegal or immoral condition, is
void. The condition which is contrary, forbidden, or defeats any provision of law or is opposed to
public policy, then the bequest would be invalid. A condition absolutely restraining marriage
would also make the bequest void. S.138 of ISA provides that the direction provided in the Will
as to the manner in which the property bequeathed is to be enjoyed then the direction would be
void though the Will would be valid.

GIFTS UNDER MUSLIM LAW

Under Muslim Law, the idea of Gift developed a lot of throughout the amount of 610 AD
to650 AD. Over the corpus of property the law recognises solely absolute dominion, hereditary
and unrestricted in purpose of your time. Restricted interests in respect of property aren't
identical with the incidents of estates underneath nation law. underneath the Mohammedan law
they're solely usufructuary interest (and not rights of possession of any kind).Under Muslim Law,
the faith of the person to whom gift is created isn't relevant. In India, there’s a separate statute
that governs the matters associated with transfer of property. The Transfer of Property Act, 1882
underneath Chapter VII talks regarding gifts and therefore the procedure for creating
an equivalent. nonetheless as per section 129 of the Act, the Transfer ofProperty Act, 1882
doesn't apply to the Muslims creating gift.

It is clear that under Muslim law, a gift is called Hiba. When a Muslim transfers his
property through gift, the transfer is called Hiba. The religion of the person to whom the gift is
made, is not relevant. If the transferor is Muslim, the gift is Hiba. Thus, where a Muslim makes a
gift of his properties in favour of a Hindu, the gift is nonetheless a Hiba. In India, the subject of
gifts is governed by the Transfer of Property Act, 1872. Chapter VII of this Act is applicable to
gifts made by any person in India, irrespective of religion, caste or creed. But, Chapter VII of the
Transfer of Property Act does not apply to Muslim gifts or the Hiba.10

Constitutionality of Hiba :

The Transfer of Property Act, 1882 contains besides general principles relating to transfer
of property-the laws relating to sale, mortgage, charge, lease, and exchange, transfer of
actionable claims and gifts of property. All the Chapters of this Act except that on gifts are
applicable to the Muslim. As regards the general principles relating to disposition of property
contained in Chapter 2 of the TPA, the Act declares that ‘nothing in the second Chapter of this
Act shall be deemed to affect any rule of Mohammedan Law.11

10
Section 129 of Transfer of Property Act, 1872 says, ‘Nothing in this Chapter (i.e.,Chapter VII on gifts) shall be
deemed to affect any rule of Mohammadan law’.
11
Section 2 (d) of Transfer of Property Act, 1882
 This exemption may appear to be discrimination on the ground of religion which is
against the Article 14 (i.e., right to equality) of the Indian Constitution. But in Bibi Maniran v.
Mohd. Ishaque,4 court now made it clear that this exemption is constitutional and lawful.
Muslim gift or the Hiba has been associated and has also been included in the Shariat Act, 1937,
to be regulated only by Muslim personal law. Therefore, the exemption under Section 129 of the
Transfer of Property Act does not violate Article 14 of the Constitution of India.

CONCEPT OF HIBA UNDER MUSLIM LAW

A Muslim can devolve his property in various ways. Muslim law permits the transfer of
property inter vivos (gift) or through testamentary dispositions (will). A disposition inter vivos is
unrestricted as to quantum and a Muslim is allowed to give away his entire property during his
lifetime by gift, but only one-third of the total property can be bequeathed by will.

• A Muslim can gift any property self acquired, ancestral, movable immovable, corporeal,
incorporeal. • Gift may be conditional or unconditional

• Muslim law though has a distinction for the gift. It differentiates between the corpus
(ayan) and usufruct (maufi) of the gift.

Corpus is the main body of gift, usufruct is ‘the right to enjoy the use and advantages of
another’s property’

• There can be condition over usufruct but not on the corpus

According to Hidayat, “Hiba is an unconditional transfer of an ownership in an existing

property made immediately and without consideration”. Thus, the four essentials derived from
this definition are1) Unconditional transfer 2) Ownership 3) Existing Property 4) Made
immediately. Thus, if foresaid conditions are fulfilled, such gift under Mohammedan Law is
known as Hiba.

One of the most eminent definition of Hiba recognised in India is given by Mulla, “Gift is
a transfer of property made immediately and without any consideration.” According to Faizi,
“Hiba is an immediate and unqualified transfer without corpus, of the property without any
return.

Hon’ble High Court of Kerela speaking through Hon'ble MR. Justice P. BHAVADASAN
in the case of Salekath Beevi v. Mumthas Beevi12 stated, “Hiba is an immediate and
unconditional transfer of the corpus of the property without any return. Every Muslim, who has
attained majority and has a sound mind can make a gift.”

12
Salekath Beevi v. Mumthas Beevi, RSA.No. 474 of 2007()
Essentials of a Valid Hiba

Since Muslim law views the law of Gift as a part of the law of contract, there must be an
offer (izab), an acceptance (qabul), and transfer (qabza).

1.​ Donor’s declaration (with real and bonafide intention)

2.​ Donee’s acceptance (express or implied, done by himself or on his behalf)
3.​ Delivery of subject matter of gift (actual or constructive)

Donor’s declaration

Declaration signifies the intention of the transfer to make a gift. Person declaring is called
a donor. The person in whose favour the gift is made is called donee. There should be a
transparent and unambiguous intention of thedonor to form a present. Declaration could be a
statement that signifies the intention of transferer that he intends to form a present. A declaration
are often oral or written. The donor could declare the gift of any quite property either orally or by
written suggests that beneath Muslim law, writing and registrations don't seem to be necessary.
Hiba may be oral or in writing.

Writing is not necessary whether the property is movable or immovable. Md. Hesabuddin
v Md. Hesaruddin, 1983 where the gift was made by a Muslim Woman and was not written on a
stamp paper, Gauhati High Court held that the gift was valid.

The gift made under Muslim in writing is known as hibanama. It need not to be in stamp
paper, attested or registered. In the case of Kamarunnissa Bibi vs. Hussaini Bibi 1880 A openly
declared a gift of certain landed property to B in presence of large gathering. When B accepted
the gift and A handed over the possession of the said property to B, the gift was completed. It
was held that oral gift was valid and need not to be registered.

Declaration must be in clear and unambiguous words. Ambiguous declaration is void.

Declaration of gift must be made voluntarily and with free consent. Hussaina Bai vs.
Zohra Bai 1960, a pardanashin lady coerced to sign a gift deed which she believed would not
take effect until her death. She had no opportunity to take advice from others. It was held by the
court that woman had signed the gift deed under compulsion and it was not voluntary act of her.
So the gift made was declared by court as void.

Thus, for a valid declaration, following conditions must be fulfilled:

a)​ Oral/Written
 The donor must declare the Hiba of a property. This declaration may be in the oral form
or written.13

b)​ Express

The donor must expressly declare the transfer of the property. The transfer must be free from any
ambiguousness as also held in the case of Maimuna Bibi v. Rasool Mian14

c)​ Bona-fide

The donor must have bona-fide intention to transfer any property. Any malice will make such
Hiba void as also upheld in Watson & Co. v. Ramichand Dutt.

In Ratan Lal Bora v. Mohd Nabiuddin, AIR 1984 AP 344: The Andhra Pradesh has held that, "in
order to establish a declaration of gift, it must be shown that the donor either in the presence of
the witnesses or otherwise made a public statement that he gifted the property in favour of the
donee and that he divested himself of the ownership of the property by delivering such
possession as the property is capable of to the donee who accepted the gift. A declaration cannot
be made unilaterally without making a public statement of the gift.”

Capacity for a Donor (Wahib) :

Donor is a person who makes the Hiba of his property. A donor or Wahib must be
competent to make a gift. Any male or female with following qualification may make a Hiba

1) Muslim

2) Sound mind

In the case of Smt. Aneesa vs Abdul Rehman Rizwi (Imam)15 the Hon’ble Court
observed, “...the capacity of the donor that is he/she should be adult, of sound mind, capable of
exercise will freely should also be considered. Similarly, capacity of donee is also relevant. It is
emphatically mentioned in various books, commentaries on Muslim Law that the donee must be
in existence at the time of gift.”

3) Age of majority A donor must have attained the age of majority. The age of majority is
the age prescribed under Section 3 of the Indian Majority Act, 1875 as amended in 1999, which
now means eighteen years.

13
Md. Hesabuddin v. Md. Hesaruddin, AIR (1984) Pat, 203
14
Maimuna Bibi v. Rasool Mian AIR 1991 Pat 203, 1990 (38) BLJR 1037
15
Smt. Aneesa vs Abdul Rehman Rizwi (Imam), Civil Suit No.498/14
 ​ Status : A donor may be married or unmarried.

4) Right to transfer the property

5) Ownership of Property : The person making a Hiba must be the owner of the
property which is the subject matter of the Hiba. In other words, the ownership of the property
must be with the donor, at the time of making a gift. A gift by a widow who is in possession of
the property of her husband in lieu of dower cannot make a gift of such property.

6) Free Consent : A gift made under compulsion is not valid but voidable. Free consent
of the donor must be associated with the gift when a gift is made by a pardanasheen lady, the
proof of independent outside advice is the usual mode of discharging the burden by the donee
that the gift was free from compulsion.16The gift will be valid, if the pardanasheen lady had the
advantage of independent advice, and the contents of the deed were fully explained to and
understood by her.17

Capacity for a Donee (Mahub-lahu)

A donee, who has the following qualifications, has capacity to take a Hiba: i.
Mohammedan : A donee may be a Mohammedan or non-Mohammedan. After the completion of
the gift, to a non-Mohammedan, the property will be subject to the personal law of the donee.18
Sex : A donee may be a male or female.

iii. Status : A donee may be married or unmarried.

iv. Age of Majority : A donee may be a major or minor.

​ Any juristic person is also a competent donee.

v. Soundness or unsoundness of mind : A donee may be an insane. But when a gift is made to a
minor or a person of unsound mind, the gift will be complete by the delivery of possession to the
guardian of the minor or of the person of the unsound mind.

Existence of a donee or Child in Womb : A Hiba cannot be lawfully made in favour of

an unborn person. Such a Hiba to unborn person is invalid,19 with one exception. For example, if
the donor makes a gift of some property to a donee and after his death to donee’s son who is not
in existence, such gift will be void. But a gift to an unborn donee, who is in womb and is born
within 6 months of making of the gift, is valid. Therefore, the child in its mother’s womb is a

16
Pasapini v. Moula, (1956) 2 Cal 579
17
Kairum v. Mariman, AIR 1960 Mad 447
18
Ajagar v. Chadalavada, AIR 1927 Mad 574
19
Imam v. Ameer, AIR 1955 Mad 621
competent donee. Although the child in mother’s womb has no worldly existence yet, in the eyes
of law it is regarded as a living person. Under the Muslim law, a gift in favour of a child in the
womb is valid provided such child is born alive within six month from the date on which the gift
was made.

In the case of Tagore v Tagore20, the Hon’ble Court recognised child in womb to be a
competent donee. However, it is based on contingency, that is, birth of the child. Child in womb
shall be living at the time of making of such Hiba and shall take birth within six months from the
making of such Hiba. Thus, any male or female, Muslim or Non-Muslim, major or minor, sound
or unsound by mind, of any status is a competent donee if he/she accepts the Hiba expressly or
impliedly.

​ A Hiba cannot be made in favour of a dead person. When a widow makes a Hiba of her
Mehr to her deceased husband, though such a transaction if called Hiba-aMehr. It is in
fact a unilateral foregoing of the right to Mehr by the widow to which the principle of
‘Hiba’ do not apply. And a gift of future usufruct to unborn person is valid provided the
donee is in being at the time when interest opens out of heirs.
​ Joint donees : A Hiba jointly in favour of two or more persons is not ipso facto invalid. In
other words, a gift may be made jointly to two or more persons but the shares of each
should be clearly specified. For example, if a gift of a property capable of being divided
is made to two or more person without specifying their shares or without dividing them,
then the gift is not valid but if such donees themselves make any mutual arrangement and
take possession of their individual shares, then the gift is valid.

Subject-matter of a Hiba (Mouhub):

A Muslim may Hiba any property over which he has a title. Every form of property or
right which has some legal value may be the subject-matter of a Hiba, The property, however
must be transferable as under 6 of the Transfer of Property Act, 1882. Thus, every transferable
property whether tangible or intangible is a subject matter of Hiba under Muslim Law.

Precisely, three rules may be followed to categorically understand the subject matter of
Hiba.

1) Anything over which dominion/right may be exercised; or

2) Anything which can be reduced to possession;

3) Anything which exists either in the form of specific entity or enforceable right.

20
(1874) L.R. 1 I.A. 387
 Any movable or immovable property at present is a lawful subject matter of Hiba.
However, gift of services is not a valis Hiba. Also, any future property is not a subject matter of
Hiba. Gift of equity of redemption (not in possession of mortgagee), gift of incorporeal property,
gift of actionable claims, gift of property adversely to donor, are valid subject matters of Hiba
under Muslim Law.

Gift of life interest has been a controversial matter as a subject. In the case of Musamat
Hazara Bai v. MD Aadani Sayed21 , the Hon’ble Court did not consider gift of life interest to be a
valid subject matter. However, in the case of Jamila Bibi v. Sheikh Ismail, Hon’ble Court
allowed gift of life interest in the form of usufruct to be a subject matter of Hiba. Later, in the
case of Amjad Khan v. Ashraf Khan22 , the Hon’ble Court allowed the gift of life interest to be
treated as a valid gift under Muslim Law.

In the case of Smt. Aneesa vs Abdul Rehman Rizwi (Imam), the Hon’ble court stated,
“...subject matter of the gift is also important as the subject matter of the gift must belong to the
donor and must be in existence at the time of the gift.”

Formalities of a Hiba

Under the Muslim law, for the validity of a gift, the following formalities must be
complied with :

i.​ Clear and unequivocal declaration by the donor

ii.​ ii. Acceptance by the donee
iii.​ iii. Delivery of possession

Clear and unequivocal declaration by the donor

The first condition required for the validity of a gift is the declaration of intention. Such
declaration may be made orally or in writing. A clear and unequivocal declaration of intention of
making a gift by the donor or his agent the first is essential element of the validity of a gift. The
form of declaration is not immaterial. Such declaration of intention must be bona fide.15 Such
declaration may be made orally or by writing a deed. A gift made with the intention of
defrauding creditors, of the donor, will be invalid because there is no bona fide intention with the
property and continues in possession. Such declaration may be made by the donor himself or his
agent.

Acceptance by the donee:

21
Musamat Hazara Bai v. MD Aadani Sayed , (1977) 1 MLJ 291
22
Amjad Khan v. Ashraf Khan (1929) 31 BOMLR 809
 The second condition necessary for the validity of a gift is acceptance by the donee or his
agent. Such acceptance may be made expressly or impliedly.23 Acceptance is not required in the
following cases:

a. Where the gift is made by the guardian to his ward: A gift may be made by a guardian to
his ward, and in such cases, acceptance of the wards is not necessary.24 But if a gift is made to
minors other than the guardians, then acceptance of the minor is required.

b. Where the gift of a debt is made to the debtor: A gift of a debt may be made to a debtor. In
such a case the acceptance of the debtor is not required but a debtor may refuse to accept the gift
of the debt. But a surety is not released from the debt unless the debtor accepts.

iii. Delivery of Possession:

A gift is complete only after the delivery of the possession. So the third and most
essential condition required for the validity of a gift is delivery of possession of the property
whether movable or immovable of gift. A gift not accompanied by possession is void ab initio.
Under the Muslim law, a gift is complete only after the delivery of the possession.

In Smt Alimon Nessa v. Sudhir Chandra Dey, AIR 1991 Gau 13, court held that, There
must be actual or constructive delivery of possession and a donee is said to be in possession
when he gets a dominion right over the property.

METHOD OF TRANSFER

The mode of delivery of possession depends upon the nature and circumstances of the
property. Basically, there are two modes of transfer of possession:

​ Actual possession

If a property can be physically possessed, or the property can be taken from one place to
other (movable property), for example coins, jewellery etc., the property must be physically
transferred and such delivery of property refers to the actual possession. In case of immovable
property, only entry on document is not sufficient. There must be such act such as the donor
departs with all goods and belongings and donee’s formal entry that gives actual possession to
the donee.

​ Constructive possession

23
Munni Bai v. Abdul Gani, AIR 1959 MP 226
24
Ebrahim v. Bai Asi, AIR 1934 Bom 21
 Constructive possession reefers to the symbolic transfer of the property. If the donor is
not in actual possession of the property, he must act as such that delivery becomes valid. In case
of incorporeal property, such act must show that the property is transferred. In case of corporeal
property, all the interest/right must be transferred. Donee must do an act in his power to show the
transfer of the property

Exception to actual delivery of Possession :

In every case of property, whether movable or immovable, actual or physical delivery of

possession must be made except in few cases. In such cases symbolic or constructive delivery of
possession is sufficient. The exception are:

​ Joint residence of the donor and the donee : When the donor and the donee are both
residing in the house, which is subject-matter of gift, the actual or physical delivery of
possession is not necessary, in such a case the gift will be completed by some overact by
the donor indicating a clear intention on his part to transfer possession and to divest
himself of all control over the property.25
​ Property in possession of other persons : The property of gift may not be in the
possession of the donor himself but in the possession of some other person like as a
mortgagee, tenant or licensee. This property of the gift may be held adversely by other
persons or under attachment of arrears of revenue. A valid gift may be made of the
possession of a mortgagee, even if the donor makes a constructive delivery of possession.
Such a possession may be made by the donor by handing over the gift-deed and divesting
himself of his title, right and interest in the property. When the property is in the
occupation of tenants, a valid gift may be made without giving physical delivery of
possession but by delivering title-deeds or by mutation in the revenue records.26
​ Gift between spouses: When a husband or a wife makes gifts to each other of some
property in their joint possession, then the physical delivery of possession is not required.
Where the donor handed over the keys of the house to his wife, the subject-matter of the
gift, the gift would be valid even though the husband continued to live in that house.27
​ Gift by a guardian to his ward : In the case of a gift made by a guardian to his ward,
actual delivery of possession is not necessary, only an indication of a bona fide intention
to stand in loco parentis to the donee or is in lawful custody of donee28

WHEN DELIVERY OF POSSESSION IS COMPLETE?

25
Mohd. Ibrahim Khan v. LRs. Of Azad Rasul & others, AIR 2008 (NOC) 187 (Raj); Mst. Husaina Bai v. Mst.
Zohara Bai, AIR 1960 MP 63; Mohd. Saleem v. Abdul, AIR 1972 Pat 279
26
M.M.Quasim v. Manoharlal Sharma, AIR 1981 SC 113; Gaui v. Wajid, AIR 1935 Cal 393, Ibrahim v. Noor
Ahmed, AIR 1984 Guj 126
27
Maniram v. Ishaque, AIR 1963 Pat 229
28
Mohd. Sadiq v. Fakhr Jahan, AIR 1932 PC 13
 In case of movable property, when the donee physically gets the property, the delivery of
possession is complete. But if the property is intangible or immovable, two theories are laid
down by the judicial precedents:

1. Benefit theory

2. Interest theory

Under Benefit theory, Hiba is complete when donee starts getting the gift whereas under
Interest theory, it depends on the intention of the donor. The court always decides on the basis of
the nature and circumstances of the case.

REVOCATION OF HIBA

Revocation of Hiba before the delivery of possession is valid and the donee can revoke the Hiba
any time before the possession has been given. Once possession is given, Hiba cannot be
revoked by the donee.

The Muslim Law givers also classify revocation of gifts under the following two heads:

1. Revocation of gifts before the delivery of possession, and

2. Revocation of gifts after the delivery of possession.

Revocation of gifts before the delivery of possession: -

All gifts are revocable before the delivery of possession is given to the donee. For such
revocation, no orders of the court are necessary. As discussed above that under Muslim law, no
Hiba is complete till the delivery of the possession is made, and therefore, in all those cases
where possession has not been given to the donee, the gift is incomplete and whether it is
revoked or not, it will not be valid till the delivery of possession is made to the donee.

Revocation after the delivery of possession

In this situation, a Hiba can be revoked in either of the following ways:

1. With the consent of the donee

2. By a decree of the court.

Mere declaration of revocation by the donor or filing a suit in the court or any other
action is not enough to revoke a gift. The donee is entitled to use the property in any manner
until a decree is passed by the court revoking the gift. The revocation of gift is the personal right
of the donor and a gift cannot be revoked by his/her heirs after his/her death. A gift can also not
be revoked after the death of the donee.

Exception or Irrevocable Gift :

There are certain exceptions, when even after the delivery of possession, a gift cannot be
revoked. Such exception are according to the Hanafi law, exceptions are as follows:

​ Gift between the spouses:

​ A gift between the spouses is irrevocable, if made only during the subsistence of their
marriage, even though the marriage is irregular and is dissolved afterwards.29
​ Relationship by prohibited degrees : When the donor and the donee are related within
prohibited degrees, by consanguinity, the gifts are irrevocable. Gift in favour of persons
other than related by blood, is not irrevocable. For example, a gift in favour of a brother
is irrevocable and in favour of a son-in-law is revocable because son-inlaw27 is not a
blood relation.

Kinds of Gift:

There are several variations of Hiba. These include:

​ Hiba bil Iwaz

​ Hiba ba Shart ul Iwaz
​ Sadkah
​ Ariyat

HIBA BIL IWAZ

Iwaz means consideration. Thus, Hiba-bil-iwaz refers to the transfer of good in exchange of
some consideration. Thus, it is a transaction of exchange.

Following are the essentials of Hiba-bil-iwaz

1. Hiba must be legal and complete.

2. Actual transfer However, Indian law does not accept the concept of Hiba-bil-iwaz.

If a gift has duly been made and completed, but subsequently the donee also gives
something to the donor in lieu of this gift, then the gift is called Hiba-bil-Iwaz. Hiba means gift

29
Sadiq Ali v. Amiran, AIR 1927 Oudh 439
and Iwaz means consideration. Hiba Bil Iwaz 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 Hiba bil Iwaz.

Essentials of Hiba-bil-iwaz :

The following two conditions are necessary to render a transfer as Hiba-bil-Iwaz :

1.​ A valid and complete gift by the donor to donee. It means the three essentials condition
for a valid Hiba is essentials namely, the declaration, acceptance and delivery of
possession. Every Hiba-bil-Iwaz is pure gift in its inception. But as soon as the donee
also makes a gift in return of the original gift, the original gift becomes Hiba-bil-Iwaz.
2.​ The donee must may something to the donor after the completion of the gift. If donee
pays the consideration, the gift is Hiba-bil-Iwaz. It the donee does not pay, the gift
continues to be pure Hiba. Actual payment of consideration on the part of the donee is
necessary. In Khajoorunissa vs Raushan Begam30 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.
3.​ It is important here that donee must mention it clearly that he is transferring the property
to doner in return of a gift made to him.

HIBA-BA-SHARTUL-IWAZ

‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with a stipulation for
return’. Unlike in Hiba bil Iwaz, 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 preemption (Shufa). As in sale, either party can return the
subject of the sale in case of a defect.

It has the following requisites –

●​ Delivery of possession is necessary.

●​ It is revocable until the Iwaz is paid.
●​ It becomes irrevocable after the payment of Iwaz.

30
Ranee Khujooroonnissa v. Mst. Roushan Jehan, (1876) 3 IA 291
 ●​ Transaction when completed by payment of Iwaz, assumes the character of a sale.

In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz 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.

SADAQAH

Sadaqah refers to the religious transfer to please the almighty God. Any Hiba having a
religious motive is sadaqah. Once transferred, it becomes irrevocable. The three essential
conditions of declaration, acceptance and delivery of possession must too hereby be followed.
However, express acceptance is not an essential condition.

Ariyat

'Ariyat' is a gift of the right to use the product for a certain period on a particular estate and may
be revoked to the grantor's delight. Indeed, it is more like a license. It is personal and neither
inherited nor transferable. They are revocable and confer no right on the grantor in the corpus,
but only on the revenues derived from the property or profit. For a simple gift, all incidents of
ownership of the property will be transferred. It shall be a transfer of property itself.

DOCTRINE OF MUSHA

The word ‘Musha’ is derived from the Arabic word meaning confusion. In Muslim Law,
it refers to the ‘saayu’ meaning undivided share in the property. Thus, Musha refers to the
undivided share in the property or the co-owned property. If one of such co-owner Hiba his
property, then confusion may arise as what part of property belongs to donee. Therefore. To
avoid such confusion, doctrine of musha is followed.

1. MUSHA OF INDIVISIBLE PROPERTY

It includes those property in which partition is not possible. However, such Hiba seems
ambiguous of the face, a gift of undivided share in a property which is incapable of being divided
is valid. Hiba without possession is valid in this case.

2. MUSHA OF DIVISIBLE PROPERTY

Property which is capable of division without affecting its value, the Hiba of such property is
valid only if specific share which has been gifted is separated by the donor and is actually given
to donee.

Following are the exceptions of this doctrine:

3. Gift to co-heir (co-beneficiary)

4. Gift to share in zamindari

5. Gift to share in landed companies

6. Gift to share in freehold property in the commercial town

Illustration

(a) 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.

(b) A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and Ithna Ahsharia 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.

Death Bed Gift (Marz-ul-Maut)

In Islamic law, a person who is near death is said to be in a state known as marz ul Maut.
As it has substantial relevance for matters like inheritance, testamentary gifts, and end-of-life
decisions, it is a crucial legal topic in Islam.

Marz-ul-Maut is made up of 2 main words- ‘Marz’ and ‘Maut’. Marz means illness or
disease and Maut means death. When the person is under apprehension of death due to some
illness, he is said to be suffering from Marz-ul-Maut. A person’s physical health rather than their
subjective experience determines their Marz ul Maut. It specifically refers to a state in which
there is little chance of recovery and a person’s death is near. A medical practitioner usually
makes this decision.

History and current applicability of Marz-ul-Maut

Muslims are permitted to follow their own personal civil law because India, with the
exception of the state of Goa, does not have a unified civil code. The British Raj, which let all
religions to have their own private civil laws, left behind this legacy. The Shariat is the guiding
principle of Muslim civil law. One of the provisions concerns Marz-ul-Maut. This can only be
carried out if there is a genuine fear that the testator won’t survive.

The rules concerning Marz-ul-Maut inculcate the ideas of the gift as well as will. But
these transfers aren’t like the two. Only in situations where the transferor truly fears death are
these transfers permitted to be carried out. A sort of testamentary succession known as transfer
during Marz-ul-Maut combines several key characteristics of both Hiba (gift) and will. If a
person is seriously ill and on the close to passing away, his donation will be considered made on
Marz-ul-Maut. A gift that is given at a time when the transferor reasonably anticipates dying is
distributed in accordance with Shariah law’s general principles. Such gifts are valid only if the
testator dies after executing the will.

Essential elements of Marz-ul-Maut

All the following elements are required in order to be a valid Marz-ul-Maut (death-bed
transaction)

1.​ The illness or disease must result in death.

2.​ A genuine apprehension of death must be present in the patient’s thoughts as a result of
this sickness. Age alone does not constitute a sufficient reason for Marz-ul-Maut. Hence,
a man dying of natural causes as a result of his advanced age is not covered by this
regulation.
3.​ There should be a visible sign of the disease or significant illness on the outside.
4.​ The receiver of the property must be granted delivery of possession.

Along with the above points following restrictions are also crucial-

1.​ In case a person does not die, the will made by him will be null and void.
2.​ There is no basis present, that disqualifies an heir or successor.
3.​ The net value of the property that can be disposed of must not be greater than 1/3rd of the
total value of the assets, except with the consent of the heirs, hence, during
Marz-ul-Maut, no Muslim acting alone is permitted to disown any heir.

Some of the above points are discussed below-

Disease must result in death

Any transfer under Mar-ul-Maut must be made by a person who has a life threatening illness or
other critical condition. The transfer will not be taken into consideration if the person does not
pass away. An essential component of a Marz-ul-Maut is the death of the donor; if the transferor
does not pass away, the gift is not regarded as a Marz-ul-Maut and the only issue is whether a
legitimate Hiba (gift) happened. If it is a legitimate Hiba, it will become effective as a Hiba.

Genuine apprehension of death

A genuine apprehension of death can be analysed by the following pointers-

1.​ an impending danger of dying that increases the likelihood of apprehension of death.
 2.​ a few visible signs, most noticeably the person’s incapacity to engage in regular
activities.

When the transferor has a terrible illness with a high likelihood of impending death, they are
under pressure to make the donation while feeling a feeling of approaching death. Only the
transferor must be aware of his impending death; not those who are trying to care for him.
Hence, the tansaction made under Marz-ul-Maut is valid if the individuals caring for him or even
the doctor do not recognize his impending death.

If the disease has been present for an extended period of time, but the patient suddenly
develops worse symptoms that may even force him to stay in bed, this becomes a new illness that
would be considered to be more likely to make the sufferer fear death, and as a result, his act of
giving under such conditions can have the same effect as a transfer made under Marz-ul-Maut.
Case Laws on Marz-ul-Maut

1.​ Shaik Nurbi v. Pathan Mastanbi and ors., 2004 (4) ALT 624

In this case, the essential conditions which are needed for a valid deathbed gift were stated as
follows-

a.​ the illness of the malady must have caused the death of the donor;
b.​ some degree of subjective apprehension of death in the mind of the sick person or
preponderance of death;
c.​ some external indicia, chief among which would be the inability to attend to ordinary
avocations.”
d.​ delivery of the possession must be done (this rule is derived from Hiba).

●​ Mustak Ahmed v. Abdul Wahid, (1987) 2 MLJ 449

In this case, it was stated that Marz-ul-Maut is a type of illness that prevents the patient from
attending to his or her duties, including, if he is a man, duties outside the home, and, if she is a
woman, duties inside the home, due to the patient’s condition generally causing fear of death for
him or her.

●​ Fatima Bibee v. Ahmad Baksh, (1904) ILR 31 Cal 319

It has been held in this case that Marz-ul-Maut is death illness or the patient is suffering from
such disease which induces in the person suffering, belief that death would be caused thereby.

Difference between Marz-ul-Maut and Donatio mortis causa

 A gift under Marz-ul-Maut in Islamic law and a donatio mortis causa under Section 191
of the Indian Succession Act, 1925 are quite similar. A few differences are given below-

Comparison of applicability of Marz-ul-Maut in shia and sunni law

Some other legal effects of Marz-ul-Maut

A.​ Marriage contracted on death bed

A marriage contracted on death bed is invalid. But there is a way to make it valid- if the
person survives the illness and is alive, then the consummation will make the marriage valid.

●​ Death-bed waqf

A waqf is a concept in Islam and is governed by the Waqf Act, 1995. It basically means
an endowment made by a Muslim to a religious, educational, or charitable cause.

A death bed waqf is subject to same rules that govern other death bed dispositions i.e., it
will take effect only to the extent of 1/3rd of the property unless the heirs consent to it.