TAMIL NADU NATIONAL LAW UNIVERSITY, TIRUCIHRAPALLI

Submitted for the internal assessment for the course

of B.A., LL.B (Hons.) – Third Semester
Academic Year: 2020-2021

Subject: Family Law II

Mohemmedan Law of Inheritance
Class Report Compilation

Course Faculty
Ms. Ammakannu.Se,
Assistant Professor
(Law), TNNLU
 Disqualifications Under Muslim Law

Under Muslim law, there are certain persons who are, though heirs, are not entitled a share in
the inheritance on account of their disqualifications.
1. Non-Muslim
 Non-Muslim are not entitled to inherit the property from a Muslim.
 A convert from Muslim religion can inherit the properties he is entitled to as he has
been a Muslim but his descendants can’t as they have not been Muslims.
2. Homicide / Murderer
 Person causing death of another person, can’t inherit the person’s property through
intestate/testamentary succession.
 Sunnis – STRICT RULE
 Shias – disqualified “ONLY IF THE DEATH IS INTENTIONAL”
3. Child In Womb
 A child in the womb of her mother is entitled to inherit, if it is born alive (same for
Sunni and Shia)
 A stillborn child is treated as having been born alive if its mother was treated with
VIOLENCE, as a consequence of which she gave birth.
4. Illegitimate Child
 Sunnis – an illegitimate child is not entitled to inherit from its father, but it is
allowed to inherit from its mother, the mother can also inherit the property of her
illegitimate children.
 Shia – NULLIUS FILIUS – no inheritance from anyone
5. Exclusion Of Daughter
 Under law, daughter can inherit property, but SOME CUSTOMS statutes if in
variance with Quranic principles are valid exclude daughters
 Gujar of PUNJAB AND JAMMU AND KASHMIR, daughters are excluded from
inheritance by custom.
6. Insanity And Unchastity
 They can inherit, there is no disqualification.

Subhitcha.J (P)
Madhu Aswanth (W)
7. Absent Heir
 If an heir is absent at the time of the distribution of assets, then his\her share has to
be kept apart for him\her until the time as he\she is presumed to be DEAD.
 Section 107, EVIDENCE ACT

Classes of heirs:

Sharers Residuaries

Distant kindred

Law Of Inheritance - Sunni Law

1. Sharers
 12 People – (8 females – 4 males)
 They inherit given specific shares
 Wife, Husband
 Daughter, Son Daughter
 Full Sister, Consanguine Sister
 Uterine Brother, Uterine Sister
 Mother, Father
 True Gm, True Gf

Note: Some sharers under certain circumstances do not inherit as shares, but as Residuaries.
They may be also called as Quaranic Residuaries or Residuaries with another.

Distribution Of Assets
CLASS I – SHARERS
 PRIMARY HEIRS

always entitled to share

hus, wife, dau, son, mo, fa

SUBSTITUTE HEIRS

child of son, true GM, true GF

CLASS II – RESIDUARIES
 Residuaries get their share after the needs of the sharers are met, there is always
something left for Residuaries.

CLASS III- DISTANT KINDRED

 Only when SHARERS and RESIDUARIES are absent, distant kindred can inherit the
property of the prepositus.
 Distribution Of Assets- Islamic Principles Of Succession

Table of sharers
Tables under Sunni Law, the inheritance can be classified with respect to the Sharers and
Residuaries respectively. Similarly tables under Shia Law, the inheritance can be classified
with respect to the Sharers and Residuaries respectively. It can be understood that there are
separate tables Under Sunni Law and Shia Law and moreover the Tables are different for the
sharers and residuary.
● Here, Sharers refers to the list of 12 people who get their share after the death of a
person.
● The 12 sharers involve- father, true grandfather, husband, wife, mother, true
grandmother, daughter, son’s daughter, uterine brother, uterine Sister, full sister,
consanguine sister.

INDIAN EVIDENCE ACT, 1872

SECTION 107- Talks about presumption of proving someone alive (30yrs)

SECTION 108- Talks about presumption of proving someone dead (7yrs)

It is presumed that a person is alive and if it is to be proved that he is dead

it is the burden of the person who affirms it.

Share- Share here refers to the fixed share allotted to the quranic shareholders as provided
under the law. Under the law, there can be two types of situations for the sharers:
 If one person is available for the share
 If two or more people are available for the share

Sometimes, situations might arise such that the sharer becomes residuary, For eg: If the
propositor does not have a child or child of a son, here the father becomes residuary though
he was originally a sharer.

Nandita (W)
Melvin (P)
Tables
There are totally 4 columns in the Table of Shares under Sunni Law.
1. The first column shows the list of sharers.
2. The second column shows what fraction of share is to be given under normal
circumstances.
3. The third column explains what the normal circumstance is ( under which the share
had been provided.
4. The fourth column explains the special circumstances under which the share is
inherited by the sharers.

Explanation as under the table

Given: P is the propositor
Normal circumstance: When there is a child or child of a son HLS
Special circumstance: No child or son of the child HLS, sharer becomes residuary

 Father of P- Normal circumstance: 1/6th share is given.

Special circumstance- father becomes residuary
 True GF of P- Normal circumstance: 1/6th share
Special circumstance- True GF inherits as a residuary
 Husband of P- Normal circumstance: 1/4th share given
Special circumstance: ½ share given
 Wife of P- Normal circumstance: ⅛ is given (if only one wife). ⅛ given in total if
there are two or more wives (implies 1/16 each)
Special circumstance: ¼ share

In the case of a daughter, if there is no son she gets ½ and if there are 2 daughters they get ⅔
together. However, if there is a son the daughter becomes residuary.
 Table of sharers under Sunni Law
Mother, True grandmother and True
grandfather
In this class, we saw about how the properties are being distributed among three types of
sharers (True Grandfather, True Grandmother and mother) under the table of sharers in Sunni
Law.
 Usually while splitting up the property, we have to first look whether the given
circumstance satisfy the conditions under which the normal share is inherited. (which is
the column 3 in the table for sharers in Sunni Law)
 If the conditions for normal share are not satisfied, we must look for the conditions for
share under specific circumstances.

With the above two conditions, we looked at what share of property is given to each category
of sharers:
 True grandfather:
(i) 1/6 of the total share is given in normal circumstances.
Normal share condition: When there is a child or child of a son H.L.S and no Father or
nearer True Grandfather is present
(ii) True Grandfather receives share as Residuary in case of special circumstances.
Special circumstance: When there is no child or child of a son H.L.S... provided there
is no Father or nearer True Grandfather present.

 Mother:
(i) 1/6 of the total share is given in normal circumstances.
Normal share condition:
(a) When there is a child or child of a son H.L.S
(OR)
(b) When there are two or more brothers or sisters, or even one brother and one
sister, whether consanguine or uterine or full.

(ii) 1/3 of total share is given in special circumstance:

Special circumstance: When there is no child or child of a son H.L.S and not more
than one brother or sister (if any); but if there is also a wife or husband and the

Edgar
Bhargav
 father, then only 1/3rd of what remains after deducting the wife or husband’s share is
given.

Edgar
Bhargav
 True grandmother:
1/6 of the total share is given in normal circumstances. When there are 2 or more of
true grandmothers, they take 1/6 of total share collectively.
Normal share condition:
(a) Maternal - When there is no mother and no nearer true grandmother either paternal or
maternal are present.
(b) Paternal- When there is no mother, no father, no nearer true grandmother either
paternal or maternal and no intermediate true grandfather are present.
 Problems :
1. Shares of Wife, Father and Mother of the Propositus:

SHARER/ CONDITIONS INFERENCE: OBSERVATION: CALCULATION

RESIDUARY IS THE REASON
CONDITION
APPLICABLE?
Wife 1. There is a child 1. NO There is no child ¼ of the total
or a son’s child or son’s child share
H.L.S. H.L.S.

Wife’s share = ¼
2. There isn’t a 2. YES ∴ ¼ of of the total share
child or a son’s the total
child H.L.S? share

Mother 1. A. There is a 1. No There is no child Remains after

child or a son’s or a son’s child deduction of
child H.L.S. HLS wife’s share = ¾
(Or) (and) 1/3 of ¾ = ¼
B. There are There is no more
more than one than one sibling
sibling (and)
There is father Mother’s share =
2. Yes and wife ¼ of the total
2. A. The two ∴ 1/3 of what share
conditions under remains after
(1) not applicable deduction of
(And) wife’s share.
B. There is father
and wife duo.

3. The two
conditions under
(1) not applicable 3. No
(and)
Condition 2. B not
applicable

Richard (W)
Sriranjani.R (P)
Father 1. There is a child 1. No Absence of child Remains left for
or a son’s child or son’s child residuary = 1 –
HLS HLSe {mother’s share
+ wife’s share}
2. Yes ∴ father = 1 – {1/4+1/4}
2. Condition (1) becomes a = 1- {1/2}
inapplicable residuary =1/2
Father, as a
residuary, gets ½
of the share.

2. Shares of Husband, Father and Mother of the Propositus:

SHARER/ CONDITIONS INFERENCE: OBSERVATION: CALCULATION

RESIDUARY IS THE REASON
CONDITION
APPLICABLE?
Husband 1. There is a child 1. NO There is no child ½ of the total
or a son’s child or son’s child share
H.L.S. H.L.S.

2. YES ∴ 1/2 Husband’s share

2. There isn’t a child of the total = 1/2
or a son’s child share
H.L.S?
Mother 1. A. There is a 1. No There is no child Remains after
child or a son’s or a son’s child deduction of
child H.L.S. HLS husband’s share
(Or) (and) = 1/2
B. There are There is no more 1/3 of ½ = 1/6
more than one than one sibling
sibling (and)
There is father
and husband Mother’s share =
2. A. The two 2. Yes 1/6 of the total
conditions under ∴ 1/3 of what share
(1) not applicable remains after
(And) deduction of
B. There is father wife’s share.
and husband duo

3. The two
conditions under
(1) not applicable
(and) 3. No
Condition 2. B not
applicable

Father 1. There is a child 1. No Absence of child Remains left for

or a son’s child or son’s child residuary = 1 –
HLS HLS {mother’s share
+ husband’s
2. Yes ∴ father share}
2. Condition (1) becomes a = 1 – {1/2+1/6}
inapplicable residuary = 1- {2/3}
=1/3
Father as a
residuary gets 1/3
of the share.
3. Shares of father and son of propositus:

SHARER/ CONDITIONS INFERENCE: OBSERVATION: CALCULATION

RESIDUARY IS THE REASON
CONDITION
APPLICABLE?
Father 1. There is a child or 1. yes Presence of a son 1/6 of the total
a son’s child HLS share

2. Condition (1) No ∴ 1/6 of the Father’s share =

inapplicable total share 1/6 of the total
share

Son Always a Customary heir is Remains left for

residuary a residuary residuary =
1 – 1/6 =
5/6
Son’s share = 5/6
of the total share
4. Shares of father and mother of propositus:

SHARER/ CONDITIONS INFERENCE: OBSERVATION: CALCULATION

RESIDUARY IS THE REASON
CONDITION
APPLICABLE?
Mother 1. A. There is a 1. No There is no child
child or a son’s or a son’s child 1/3 of the total
child H.L.S. HLS share
(Or) (and)
B. There are There is no more
more than one than one sibling
sibling (and)
The father & Mother’s share =
2. No spouse duo is 1/3 of the total
2. A. The two absent share
conditions under
(1) not applicable
(And)
B. There is father
and husband duo

3. Yes ∴ 1/3 of
3. The two the total
conditions under share
(1) not applicable
(and)
Condition 2. B not
applicable

Father 1. There is a child 1. No Absence of a Remains left for

or a son’s child child or a son’s residuary =
HLS child HLS 1 – 1/3 =
2/3

2. Condition (1) 2. Yes ∴ father Father’s share =

inapplicable becomes a 2/3 of the total
residuary share
5. Shares of father and daughter of propositus:

SHARER/ CONDITIONS INFERENCE: OBSERVATION: CALCULATION

RESIDUARY IS THE REASON
CONDITION
APPLICABLE?
Daughter 1. there is a son 1. No There is no son ½ of the total
share

2.. condition (1) not 2. Yes ∴ ½ of Daughter’s share

satisfied the total = ½ of the total
share share

Father 1. There is a child 1. yes ∴ 1/6 of There is a 1/6 of the total

or a son’s child the total share daughter share
HLS

It can be noted Remains left

2. Condition (1) 2. No that a share of 1/3 after deduction of
inapplicable of the total share father’s (as a
remains as sharer) and
3. Father is a sharer 3. Yes ∴father residue. Father, daughter’s share
as well as a residuary apart from being = remains left for
gets his
share as a a sharer, is also a residuary
residuary residuary. = 1 – {1/2 + 1/6}
also. = 1/3

Total share of
father = share as
a sharer + share
as a residuary
= 1/6 + 1/3
= ½ of the total
share
6. Share of propositus’ mother and wife:

SHARER/ CONDITIONS INFERENCE: OBSERVATION: CALCULATION

RESIDUARY IS THE REASON
CONDITION
APPLICABLE?
Wife 1. There is a child 1. No There is no ¼ of the total
or a son’s child offspring or son’s share
H.L.S. child.

2. There isn’t a 2. Yes ∴ ¼ of Wife’s share = ¼

child or a son’s the total of the total share
child H.L.S? share

Mother 1. A. There is a 1. No There is no child 1/3 of the total

child or a son’s or son’s child share
child H.L.S. (and)
(Or) There is no more
B. There are than one sibling
more than one (and)
sibling There is no father
and wife duo

2. A. The two 2. No Remains left

conditions under after deduction of
(1) not applicable wife’s and
(And) mother’s share =
B. There is father 1 – [1/3+1/4] =
and wife duo 1 – [7/12] =
5/12 = surplus
property
3. The two 3. Yes, ∴ 1/3
conditions under of the total
(1) not applicable share Mother’s share =
(and) 1/3 +5/12 = ¾ of
Condition 2. B not the total share
applicable

4. There is no
residuary, but Excepting the
spouse, mother is
there is surplus 4. Yes, ∴ the only heir. The
property. mother gets spouse cannot be
the surplus given the surplus
property property.
 Problems :

1. P dies leaving behind his wife and mother

MP M-1/3 (Spl cod. 1)

W W-1/4 (Spl cod.)
Sharers= 1/3+1/4 = 7/12
Residuary = 1-S
= 1-7/12
= 5/12
(Doctrine of Radd)

2. P dies leaving behind F,FF,M,MM,D1,D2

F-1/6 (n)
FF MM FF- excluded by F
M- 1/6 (n)
MM (maternal) - excluded by M
F M D1, D2 – 2/3 (n, under 2 or more
heirs)
P

D1 D2

3. P dies leaving behind F, FM, MMM

FM MMM F – Residuary (Spl)

FM – excluded by F
MMM - TGM – excluded by FM
(Some heirs can exclude others and also can
F
be excluded simultaneously)
Therefore, F gets entire property.

Gayathri
Cheritha Mahalakshmi
 4. P dies leaving behind F, MMM

F – Residuary (Spl)
F MMM MMM – 1/6 (n1)
R = 1-S
= 1-1/6
= 5/6
Therefore, F= 5/6

SON’S DAUGHTER HLS

e.g.

Under Normal condition

SD will get share only in
the absence of S1, S2, D,
S1 S2 D and SS

SS
 Residuaries, Sunni Law Of Inheritance
Conditions when residuary gets inheritance:
 If property left after the sharers are satisfied – goes to residuary.
 If no sharers – entire property goes to residuary.

Residuary

Descendants ascendants Collaterals

Descendants of Descendants of
Father True grandfather

Rule of Preference
 Descendants > Ascendants > Collaterals
 The Nearer excludes the Remoter.

Propositus

Son 1(dead) Son 2[nearer]

Son 1’s son[remoter]

 Heirs equal degree (Generation) – Male heir takes double portion of female heir.
Propositus

Son Daughter
(2X) (X)

Bharath.S (W)
Table of Residuaries in order of succession
1. Descendants
 Son – daughter(X) takes Male – 2X with Son(2X).
 Son’s son h.l.s Female - X
o Rule 2
o Sons – inherit equally. SPL Situation – Son’s daughter h.l.s not getting any
property as sharers and there is a presence of lower son’s son, then SD = lower SS

2. Ascendants
 Father
 True grandfather

3. Collaterals
 Descendants of father
 Descendants of grandfather
 Residuary Table In Order Of Succession- Sunni Law

 Ascendants

3. Father
4. True grandfather h.h.s
o The nearer in degree exclude the remoter
o E.g. If F is present, he’ll exclude the GF.

 Descendants Of Father:

5. Full brother.

o FB present- FS takes as ®

o FB- 2x, FS- x

6. Full sister.

FS : Only if ( heirs named above + full brother) absent & inherit as ® if

1. D/ D(s)
(or)
2. SD/ SD(s) h.l.s
(or)
3. 1 D & [SD/ SD(S) h.l.s]
7. Consanguine brothers.

o CB present- CS takes as ®

o CB- 2x, CS- x

8. Consanguine sister.

CS : Only if ( heirs named above + consanguine brother) absent & inherit as ® if

1. D/ D(s)
(or)
2. SD/ SD(s) h.l.s

JS Kaushalya (W)
A.Anusowmiya (P)
 (or)
3. 1 D & [SD/ SD(S) h.l.s]
9. Full brother’s son.
10. Consanguine brother’s son
12. Consanguine brother’s son’s son.

 Descendants Of True Grandfather H.H.S:

13. Full paternal uncle.

14. Consanguine paternal uncle.
15. Full paternal uncle's son.
16. Consanguine paternal uncle's son.
17. Full paternal uncle's son's son.
18. Consanguine paternal uncle's son's son.
19. Male descendants of more remote true grandfathers.

General revision

 Dual Capacity : inherit both as Sh & ® - F, TGF.

 Doctrine of Radd
o Shares are remaining
o Residuaries are absent.
o Remaining share will go back to sharers.
 Residuary
Quranic Resid (or) Resid w/ anr Residuary

• They are normally sharers but • Customary heirs (agnate chain) and
became residuary due to spl heirs given in residuary table.
circumstance under Sharer's Table.

• F, TGF, D, SD, FS, CS. • F, TGF, FS, CS, etc.

 The Doctrine Of Radd
What is the Doctrine of Radd?
 In simple words, the Doctrine of Radd or Return states that is there is no alive
residuary to claim the residual shares after the sharers have claimed their share, then
the residual shares will be distributed among the sharers in proportion toothier
original share.
 The difference between the Doctrine of Aul and Radd can be understood as the
absence/ presence of residual shares. In the case when Aul is to be applied, the shares
of the existing sharers exceed 1(i.e. The total share) whereas in the case of the
application of Radd, the combined shares of the sharers are less than 1 and there
exists no residuary leaving behind a share of the property.
 No residuary > Residue> Return >Doctrine of Radd

What is the exception to the Doctrine of Radd or Return?

The special condition states that the Spouse (Husband/Wife) may not take return
(residual shares) if either of the following heirs exists :
o Sharers (s)
o Residuary (r)
o Distant Kindred (DK)

In the presence of either of these parties, they take the return and prevent the spouse from
inheriting it.

Understanding the different Scenarios

We will try to gain a deeper understanding by looking at the three broad scenarios

Case 1:
P dies leaving behind the Mother (M) and Sons Daughter (SD).
In this case, there is no special condition. Both parties shall inherit residue in proportion to
their shares
M- 1/6 (As a sharer)
SD- ½ (As a sharer)

Vyshnavi Praveen (W)

Shreya Venkatesh (P)
Sum total of share = 1/6+ 1/2 = 4/6

Vyshnavi Praveen (W)

Shreya Venkatesh (P)
Residue = 2/6
The proportion of shares (M: SD) = 1:4
The residual shares will be distributed in the same proportion
The total share of M = 1/6 (s) + {2/6*1/4= 1/12} (r) = 3/12 or 1/4
The total share of SD= 1/2 (s) + {2/6*3/4=1/4} (r) = 3/4

Hence the new share of M: SD = 1: 3

Case 2:
P dies leaving Wife as the only heir
Share of W= 14/
Residue = 1-1/4 = 3/4
There exists no close heir/ residuary and hence the wife takes the return
i.e. W gets complete share { ¼+3/4} = 1

Case 3:
P dies leaving behind H and M
Share of H = ½
Share of M = 1/6

Total of shares = ½ + 1/6 = 4/6

Residue = 2/6
The special condition applies here due to the presence of M and hence the H is prevented from
taking return.
New shares:
H= 1/2 (s) + 0 (r) = 1/2
M= 1/6 (s) + 2/6 (r) = 3/6 or ½

The proportion of shares between H and M = 1:1

 Distant Kindred
In the absence of the sharers and the residuaries, the property is inherited by the distant
kindred. The Distant Kindred class involves all those blood relations of the deceased who
have not found a place either among the sharers or residuaries, there are
 Female agnates
 Cognates, both males and females.

Special case
When Distant Kindred inherits along with the sharer
 When the only surviving sharer is a husband or a wife and there is no residuary, then the
husband or wife takes his or her share, and the rest of the estate goes to the distant
kindred.

For the purpose of distribution of assets among them, the classification of Distant Kindred
would be into:
1. Descendants Distant Kindred: The relations below in line of the Propositus. It
includes Daughter’s children and their descendants h.l.s, son’s daughter’s children
h.l.s. and their descendants without any limit.
2. Ascendants Distant Kindred: The relations above in line of the Propositus It
includes False Grandfather h.h.s., false grandmother h.h.s.
3. Collateral Distant Kindred:
Sonali Priyadarsani (W)
Swati Pragyan Sahoo (P)
 o Descendants of parents: Full brother’s daughters, and their descendants
o Descendants of immediate grandparents (true or false): Full Paternal Uncle’s
daughter’s and their descendant

State as a Heir: By escheat

In the absence of any sharer, Residuary and Distant Kindred, the property of such a
heirless Muslim goes to the state. With the property, the state also takes it subject to any trust,
charge or liability affecting it. Basically, the state has to pay any liability, charges on behalf
of the Propositus.

The Sunni Law Of Inheritance

General Principles:
Customary Principles Of Succession & Islamic Principles Of Succession
Class Of Heirs
Class I – Sharers (Inherit According To The Sharers Table)
Class II – Residuaries (Inherit According To The Residuaries Table)
Class III – Distant Kindred
Class IV – State (If all the above people are absent or he is a heirless Muslim, the property is
taken by the state)
The Shia Law Of Inheritance
The class of heirs is divided into 3 classes:
I. Heirs by marriage: Husband and Wife fall under this category.
The heirs are linked to the Propositus by marriage.
II. Heirs by Consanguinity: They are linked to the Propositus by blood.
III. State by Escheat: When all people linked to the Propositus through the marriage
and blood are absent, state takes the property.
Heirs by Consanguinity is further sub-divided into 3 classes:
CLASS 1
I) Parents (Father/mother)
II) Children and other lineal descendants h.l.s.,
The children might be the son or the daughter and the lineal descendants are the
descendants in the same chart down the line i.e., Son’s D or Daughter’s
 CLASS 2
I) Grandparents (true as well as false) h.h.s.,
II) Brothers and sisters and their descendants, h.h.s. i.e., Brother’s Son or the
Brother’s Daughter and the Sister’s Son and the Sister’s Daughter

CLASS 3
I) Paternal Uncles and Aunts of the deceased and of his parents and grandparents
h.h.s. and their descendants h.l.s.,
II) Maternal Uncles and Aunts of the deceased and of his parents and grandparents
h.h.s. and their descendants h.l.s.,

Rules
1. CLASS 1> CLASS 2> CLASS 3
The heirs in an earlier group exclude the heirs in the latter group.
2. Class 1- category I) = Category II)
In a class both the categories inherit equally.
3. The nearer in chain excludes the remoter in the chain.
In Class 1- The rule does not apply
In Class 2- The Rule is applicable
In the presence of Son and Daughter the Son’s Son, Son’s Daughter and the
Daughter’s Son and the Daughter’s Daughter does not inherit.
People higher in the Chart excludes the people lower in the Chart
Division on Heirs
1. Sharers and descendants of sharers h.l.s
2. Residuaries and descendants of residuaries h.l.s

Note: Distant Kindred are not included in Shia division of heirs.

Rules in Class of Heirs
1. All Sharers are not Class I heirs
2. Sharers do not have priority over residuaries
3. Husband or wife always inherit.

Note: Spouses are included in all classes. Husband or wife do not exclude anyone.
Determination of Shares
1. Distribution: Class I heirs
 H/W + Class I
 H, W, F, M, D – Inherit from the Sharers table
 Son Inherits as a residuary
 Grandchildren represent their parents(who are dead) and inherit through “Doctrine of
representation”

Illustration: Propositus has two predeceased sons, A and B. A has a son C and B has two sons D and
E.
Sunni Law Shia Law

 In the situation above, all the  In the situation above, Doctrine of

grandchildren of the Propositus i.e., representation arises.
C, D, E share equally.  C will represent his father A and both
D and E will represent their father B.
C – x – 1/3
 The division of property among sons A
D - x – 1/3
and B is ½ each. As A is represented
E - x – 1/3
by C he gets ½. As both D and E
represent their father, D and E together
inherit ½. D and E share ½ equally.

C- ½, D- ¼, E- 1/4
Thanam Keerthi Chandana
Nagunuri Harshita Kiran
Illustration: Propositus has one predeceased son A and another son B who is still alive. A has a son
C; and B has two sons D and E.
In this case, B excludes all the other heirs.
Nearer > Remoter rule applies.
Rule of exclusion
 Difference between Sunni and Shia Law when grandchild is claimant:

Sunni Law Shia Law

Here, each grandchild is counted as one Grandchildren represent their parents.
entity. They are represented as individuals.
They do not represent anybody but
themselves.
Per capita Per stripes

Division does not take place in stock. Division takes place in stock(at place where
branches bifurcate)

 Stripital succession is applied to both descendants and ascendants.

2. Distribution: Class II heirs

In the absence of Class I heirs, Class II heirs acquire the property along with Husband or wife.
Among them, three situations are likely to arise:
a) The claimants may be only grandparents, h.h.s i.e., there may not be any brothers and
sisters or their dependants.
b) The claimants may be only brothers and sisters i.e., there may not be any grandparents
h.h.s.
c) There may be grandparents h.h.s with brothers and sisters or their descendants.

1st situation: only grandparents are present

 Double share to paternal grandparents.
 Within paternal grandparents, double portion is given to paternal grandfather.
 Maternal grandparents equally divide among themselves.

Thanam Keerthi Chandana

Nagunuri Harshita Kiran
Illustration: Propositus has left behind FM, FF, MM, MF.
All of the heirs in this case are from class II, category (i)
All of the heirs are in equal degree (Nearer > Remoter not applicable), therefore all the heirs will
receive their respective shares.

FM Both the paternal grandparents together,

FF take 2x, when converted to fraction 2/3

MM Both the maternal grandparents together,

MF take x, when converted to fraction 1/3

Next, the paternal grandparents split the property (2/3) among themselves. Within paternal
grandparents, double portion is given to male.
FF 2x 2(2/9) = 4/9
FM x 2/9
The maternal grandparents split the property (1/3) among themselves. Maternal grandparents
equally divide among themselves.
MF x 1/6
MM x 1/6

Thanam Keerthi Chandana

Nagunuri Harshita Kiran
Under the Class II heirs
In the absence of the heirs of class I, the property of the deceased moves on to class II along
with the husband or wife, if any.
1. When Grandparents exist and Brother or Sister do not exist,
Maternal: Grandparents get an equal share. Grandmother- x, and Grandfather- x
Paternal: Grandfather gets 2x and Grandmother gets x (Double portion)
If all the 4 of them are alive then the paternal grandparents take the double portion
which is 2/3rd of the share and the maternal grandparents take the single portion i.e.
1/3rd.

2. When grandparents do not exist, but brother and sister exist,

Full brother and sister > Consanguine brother and sister
Full sister gets as sharer when: No parent, No Lineal descendent, No full brother, No
Father’s Father
Consanguine sister gets as sharer when: No parent, No Lineal descendent, No full
brother, No Father’s Father, No full sister, No consanguine brother, when there exists
only one full sister- takes one half of share, if two or more full sisters- 2/3rd share.
When full brother exist then full sister takes as residuary
Similarly, when a consanguine brother does not exist, a consanguine sister takes one
half of the share, ⅔rd. share when there are two or more sisters. When Consanguine
brother exists then consanguine sister takes as residuary with him

3. When both grandparents and brother and sister are there

Grandparents deemed to a brother or sister
Paternal grandparents: Grandfather- Full Brother, Grandmother- Full sister
Maternal Grandparents: Grandfather- Uterine Brother, Grandmother- Uterine Sister

Propositus dies and leaves behind 2 full sisters and Father’s Father
Fathers father is deemed as a brother
All three take as residuary
Rule of Per Capita vs Rule of Per Stirpes
FF- ⅔
FS1- ⅙

Thanam Keerthi Chandana

Nagunuri Harshita Kiran
 FS2- ⅙

Under the Class III heirs

In the absence of the heirs of class I and II, the assets of the deceased, after the husband or wife
receive their shares, the heirs of class III are :
1. The husband and wife are assigned the Koranic share.

2. When paternal and maternal uncles and aunts co-exist, the paternal side gets ⅔
shares and the maternal side gets ⅓ shares, irrespective of the number of
uncles and aunts. While the ⅓ share of the uterine aunts and uncles is divided
equally, the portion on the paternal side is divided based on double portion to
the males. If instead of full paternal uncles and aunts there exist consanguine
uncles and aunts, then the residue is shared among them in a like manner.
However, if there are full, uterine, and consanguine aunts and uncles present
then consanguine aunts and uncles are completely excluded.

3. The ⅓ portion of the maternal side is divided as such that, ⅓ of the portion
goes to the uterine maternal uncles and aunts, the residue goes to the full
maternal uncles and aunts (consanguine uncles and aunts if they are absent).
The residue is divided equally on the maternal side.

4. In the absence of one side, the other side takes the whole of the property, i.e.
after deducing the share to the husband or wife.

The Doctrine of Radd or Doctrine of Return

When, there are no residuaries, but there exists a residue in the shares of the propositus,
then the residue gets distributed among the shares in proportion to their shares. However,
before the shares can be distributed again, there exist certain exceptions,

1. If there exist any heirs, however remote, the husband and the wife are not entitled to
the return of residue. In the case of only one heir being the wife, it was understood
that
 the wife would get as per share table and the state will get the remaining as escheat.
This was read down by the Oudh court in Abdul Hamid Khan v. Peare Mirza.

2. If the propositus dies intestate and leaves behind a mother, father, a daughter, two or
more consanguine brothers or sisters, or one such brother or sister, then the mother is
not entitled to a return of the shares. For example- there is a propositus who has left
behind his mother M, father F, daughter D, and two full brothers FS, FS1. The two
full brothers will not get any return as they are a part of class II. M will get 1/6th F
will also get ⅙ and D will get ½. Now, since there still exists a residue, the shares get
distributed to the father and the daughter, the mother is not entitled to any of the
shares.

3. In the case of a Shia, who dies leaving behind uterine brothers and sisters as well as
full brothers and sisters then only the full brothers and sisters are entitled to the return.
If uterine brothers and sisters co-exist with consanguine brothers and sisters then all
of them share the return proportionately.

The Doctrine of Aul or Doctrine of Increase

When the property shared according to the sharer table exceeds the property available.
Shia Law does not recognise the Doctrine of Aul.
According to the Shia law, the excess share is deducted from Daughters and full or consanguine
sisters but not the uterine sisters.
 Testamentary Succession

I. Succession and Administration

Testator- Testator is a person who makes the Will.

Legatee- Legatee is a person who gets the property through the Will.

Heirs- Heirs are people who get the property through intestate

succession. Executor or Administrator

Appointed for administrating the succession or distribution of property. The job of this person
is to see that what is stated in the Will gets implemented. This person can either be appointed
by the testator or the Court. When appointed by testator- executor. When appointed by Court-
administrator.

Duty of the Executor or the Administrator

(i) To pay off the expenses

(ii) Satisfy the share of the legatee.
(iii) Distribution of remaining property to heirs of the propositus.

II. Testamentary Succession

Testamentary succession is a succession which takes place with the help of a Will written by a
person who is dead.

Will

Will is a legal declaration of the intention of the testator with respect to his property
which he desires to be carried into effect after his death. Will is different from other
depositions like Sale because (a) a will is effected after the death of the propositus (b) a will
can be revoked, but a contract of sale can’t be revoked.

Object of Will under Muslim Law

The concept of property distribution is divine. However, there is a duty attached to it.
The duty is that only 1/3rd of the property of the propositus can be given through a Will. The
aim behind this is to (a) make sure that the legal heirs are not left out; (b) as a gratitude to
persons, who are not heirs but the testator wanted to help them.
Pratik Rath
Saumya Shankar
Exceptions to the 1/3rd rule- (a) No heirs (b) Consent of the heirs.

Damodar v. Sahijabibi- held - if only one legal heir present, i.e. wife - testator can bequeath all
his property except wife’s share.

Formalities of making a Will- No specific format.

Oral Will- (a) testator should be sufficiently ascertained; (b) burden of proof is very heavy.

Wasiyat & Wasiyatnama- The entire study of Will is also called Wasiyat. Wasiyatnama
means Will in writing.

Essentials of a Valid Will

1. Competency of a Testator
(i) Sound mind
(ii) Major, i.e. 18 yrs. Guardian appointed- 21 yrs.
(iii) Suicide
(a) Shia law- a Will made by a person who has taken poison, or has wounded
himself with a view to committing suicide, is invalid. But a Will made by a
person who subsequently commits suicide is valid.
(b) Sunni law- always valid.
2. Competency of Legatee/Beneficiary-
(i) The legatee can be of any sex or sect;
(ii) If the legatee is against Islam or is a convert, then he/she is incompetent;
(iii) If by birth itself he/she is from a different religion, then he/she is competent.
 Will in favour of institution- It should not promote any religion other than Islam.
 Unborn person- Void. Legatee should be existing. If in womb, birth of child within
(a) Shia- six months (b) Sunni- ten months.
 Legatee causing the death of the Testator- (a) Sunni- always invalid; (b) Shia-
invalid if intentional.
 Bequest to heir (heir as legatee)- (a) Shia- allowed to a maximum of 1/3rd; Sunni-
subject to heir’s consent but limited to 1/3rd.

3. Consent of heirs
(i) Can be implied/express
 (ii) Oral or written
(iii) Silence, not consent
(iv) Consent from heir apparent and not from heir presumptive.
In Sunni, consent should be given after the death of the person. In Shia, it either be
given before or after the death. This consent can be given by some heirs and some may not
give their consent to it. In that case, the consent becomes valid only to the extent of what
exactly is the share of that consenting person.
 Wills under Muslim Law

Concept of Will under Muslim Law

 Instructions of the testator written on a plain paper, or in the form of a letter, that in clear
cut terms provide for distribution of his property after his death would constitute a valid
Will
 No formality, No writing, Not even words are necessary as long as the intention of the
testator is sufficiently ascertained, though the burden of proof is heavy when the will is
not written.
 If the Will is in Writing, it is called ’Wasiyatnama'
 The prophet has declared that the power of making a will should not be exercised to the
injury of the lawful heirs. If you make the will in favour of a heir then it would be an
injury to the heir who was supposed to get the favour through laws of inheritance. So in
Muslim Law the 1/3rd rule applies to all wills.

Content of the session

The session started at around 1:40 p.m. and ended by 2:40 p.m. The session began with the
presentation of class report by Pratik Rath and Saumya Shankar. It was followed by a
detailed discussion of three key topics of testamentary succession under Muslim Law in the
following order.
A. Essentials of a valid will
B. Revocation of a will
C. Death of the legatee

Rules regarding the will

 The testator must be competent to make the Will.
o Major (18+ or 21+ if he is under the supervision of court of wards) Will made
by a minor is void, but if he ratifies the will after he becomes a major then it is
valid.
o Sound Mind. At the time of making the will, should have a ’disposing mind’

Kameshwari (W)
Mohit (P)
 i.e. he should understand properly the consequences of what he is doing.
o Will made under apprehension of death is a valid will.
o Under Shia Law. A will made after attempt to suicide is a void
will.
o Will made under undue influence, coercion or fraud is not valid
 The legatee must be competent to take the legacy or bequest.
o Any person capable of holding property (Muslim, non-Muslim, insane, minor,
a child in its mother's womb, etc.) may be the legatee under a Will. Thus, sex,
age, creed or religion is no bar to the taking of a bequest.
o A bequest to an unborn person is valid. (If child born within 6 months (Sunni)
10 months (Shia))
o A bequest may be validly made for the benefit of ’juristic person’ or an
institution (but it should not be an institution that promotes a religion other
than the Muslim religion viz. Hindu temple, Christian church etc.).
o A bequest for the benefit of a religious or charitable object is valid.
o It is unlawful to make a bequest to benefit an object opposed to Islam.
o A person who has caused the death of the legator cannot be a competent
legatee.
o Joint Legatees - If no specific share has been mentioned for any of the people
o named in the will, the property is divided equally amongst all the
legatees.
o The legatee has the right to disclaim the bequest.
 The subject (property) of bequest must be a valid one (Qualitative requisite).
o The testator must be the owner of the property to be disposed by will; It can
be movable or immovable, corporeal or incorporeal property the property
must be capable of being transferred
o The property must be in existence at the time of the testator's death, it is not
necessary that it should be in existence at the time of making of Will.
o Bequests in future and contingent bequeaths. A bequest in future is void;
so is a contingent bequest. When a Muslim makes a bequest with a condition.
then the condition is void, and the bequest is valid.
o The bequest should be unconditional, if there is a condition the bequest will
exist and the condition only will be void.
 o Alternative bequest is valid (given to son, if son not alive then give to wife,
if wife not alive give to charity, this is valid).
o Bequest for pious purposes. - A bequest may be made for pious purposes.
Such bequest: fall under three categories :
(i) bequests for faraiz - for purposes expressly ordained by the Koran. such an
haj (pilgrimage), zakat (title) and expiration.
(ii) bequests for wajiwat, i.e., which are themselves necessary and proper,
though not expressly obtained, such as sadaka, filrat, charity given on the
day of breaking of the fast.
(iii)bequests for nawafil, or the bequests of purely voluntary nature end as
bequests for the poor, for building mosque, a bridge or an inn.
Note: The one-third rule applies to bequests for pious purposes also. The
bequests for faraiz have priority over the other two and the bequests for
wajiwat takes precedence over the bequest for nawafil. Among the
bequests for faraiz, a bequest for haj a priority over zakat and zakat over
expiration.

 The bequest must be within the limits imposed on the testamentary power of a
Muslim (Quantitative requisite).
o One Third Rule applies, two third estate will always devolve via intestate
succession (unless there is consent of other heirs).
o When some heirs consent. When a bequest violates the one-third rule, but
some of the heirs consent to it, while others do not, the bequest is payable out
of the share of the consenting heirs only.
o The '1/3rd limit' rule will not apply if a Muslim marries under the Special
Marriage Act, 1954, because then he has all the powers of a testator under the
Indian Succession Act, 1925.
 Rule of Chronological Priority (Shia Law)
According to Shia law, if several bequests are made through a Will, priority
would be determined by the order in which they are mentioned. Thus, legacies
take effect in order of preference.
 Rule of Rateable Abatement (Sunni Law)
Where a bequest of more than one-third of property is made to two or more
persons and the heirs do not give their consent, the shares are reduced
proportionately to
 bring it down to one-third, or in other words, the bequest abates rateably. The
above rule applies in Sunni law only.

Revocation of Will
 A Muslim testator may revoke, during his life-time, any Will made by him expressly
or impliedly.
o Express revocation. - If a testator makes a bequest of some property to a
person, and by a subsequent will, he bequeaths the same property to another
person, the first bequest is revoked. But bequest of the same property to one
person in earlier portion of the will and to another person in the later portion
of the will does not revoke the earlier bequest, but both the legatees share the
property equally. A will may be expressly revoked by tearing it off, or by
burning it. It seems that mere denial of a will does not, operate as its
revocation.
o Implied revocation. - Any act inconsistent with the bequest will go to revoke
the will. Thus, an act which results in the extinction of the aubject-matter of
the bequest, or extinction of the proprietary rights of the teatator will
impliedly revoke the will. For instance, bequest of a plot of land is revoked
when the testator builds a house on it; or bequest of a house is ‘revoked when
the teatator sells or makes a gift of it to another.
 A Will can be revoked by a simple and clear declaration to that effect or by a formal
deed of cancellation or revocation of Will.
 Not Necessary that a new will must be made to revoke the earlier one.

Death of the Legatee

 Under Sunni law
If the legatee dies before operation of the will, the bequest will lapse and the property
bequeathed would remain with the testator and on his death it will go to his heirs in
absence of any other disposition by him.
 Under Shia law
The legacy will lapse only if the legatee dies without leaving an heir or if the testator,
after the death of the legatee, revokes the Will.
Conclusion
She concluded the session by saying that the next lecture would be on. She also briefly
summarised the gist of the lecture i.e. essentials of a valid will, revocation of a will, and
succession in case of the death of the legatee under Muslim law.
 Gifts (Hiba) Under Muslim Law

In the last class we dealt with the new topic “Gifts”, which is called as Hiba under Muslim
Law.
 Hiba- transfer of the right of property in substance by one person to another without
return/ consideration.
 Consideration of gift is love and affection.
 Generally, the gift is coming under Transfer of Property Act 1872.

Essentials of Hiba (The requisites of a valid Hiba)

● Capacity to make the Hiba
i. Mental capacity
ii. Financial capacity
● The donee
● The subject matter of Hiba
● Formalities of Hiba

Capacity to make the Hiba- Donor

● Mental Capacity
o Male or female who can be married or unmarried
o Age attainment is majority (18 years, if the donor is under 18, the guardian age
should be completion of 21years)
o Sound mind
o Under compulsion the gift is void

● Financial Capacity
o If a gift is made with an intention to defraud the creditors, the gift is invalid.
ABDUL V. MIR MD. (1886) 11 IA 10.
o Mere indebtedness does not create incapacity.

Nivedha Priyadharshini (W)

Ajay Kanan (P)
The Donee
● Age, religion, sex is not a barrier for a donee.
● Existence:
o Sunni: Donee should be existing
o Shia: Even unborn child gets, provided gift commences with a person in existing
persons.
o Child in womb is valid- if born with in six months of the gift.
● Minor or unsound mind
o Gift will be completed by delivery of possession to guardian.
o Gift shared among some minors (accept by guardian) and some are major (except for
them).
o Gift jointly for 2or more is valid
o if possession is separately taken by mutual agreement by donee or by deed- valid
o if the property is capable of division - the specific shares should be mention or else
the gift is invalid.

Subject- matter of gift

● Gift of actionable claims or incorporeal property
1. Delivery of physical possession is required
2. Initially only corporeal property was valid as subject matter
3. Incorporeal property or actionable claim- acceptance of the Donee is necessary

● Gift of equality of redemption

1. Right of mortgagor to reduce the repayment after Payment of debt
2. The possession with mortgagee - invalid
3. The possession with mortgagor-valid
4. Delivery of possession is essential.

● Gift of a non- existent object

1. Valid- present at the time of making gift. Example: specs succession
Assignment of insurance policy
o By any person is permitted in India
o Insurance Act, 1938 Section 38(7)
● Gift of Musha
1. Musha - undivided share or part in movable or immovable property.
2. Shia: Masha is valid
3. Sunni: if capable of division, should have been divided- valid
4. Formalities of Hiba

The basic three procedures

1. Declaration- Ora / writing, -movable or immovable
2. Acceptance of gift - necessary
3. Delivery of possession

Note:
1. Requirement of formalities in Transfer of Property Act, section 123 (not applicable to
Muslim gifts)
2. Only formality is taking possession of subject matter by donee either absolute or
constructively

Steps have to be followed by the donor

● Unequivocal declaration
● Divest the ownership
● Deliver the possession
● Relinquish the control or power
● Minor donee- guardian or he has the age attained discretion.
 Formalities of Hiba

Constructive Delivery:

 When the donor makes the gift of corpus though reserved the usufruct (the legal right to
use and derive profit from property) to himself, the payment of the government revenue
by the donee in respect of the subject-matter of gift was held to be constructive delivery
of possession.
 In the case of Noorjahan v. Mukhtar, the donor made a gift of property to the donee, but
the donor continued managing and availing the profits of the property. Till the death of
the donor, no mutation was made in the name of donee. Therefore the gift failed due to
absence of delivery of possession.

1. Delivery of possession of immovable property:

 Actual delivery of possession is necessary.
 However, if the property is occupied by tenants, the delivery of possession may be
made by attorning the donee, by delivery of title-deeds or by mutation in the
revenue records. • If a donor reserves the right to rent and also undertakes to make
payment of municipal dues, a mere recital in gift deed that the delivery has been
made won’t be enough. The gift will fail due to absence of delivery of possession.
2. Deliver of possession of incorporeal property:

Distinction is made between:

 Properties which are capable of delivery of possession: In this case, the actual
delivery of possession is necessary. (For example, a gift of promissory note)
 Properties which aren’t capable of delivery of possession: In this case, the donor
needs to completely divest himself of the ownership and control over the property,
and deliver it to the donee.
In the case of Aga Mohammed v. Koolson, a husband handed over to his wife,
a receipt of a deposit of money in a bank. The words, ‘not transferable’ were
mentioned in the margin of the receipt. He disclosed that he would transfer the papers
in his wife’s name. However, he died before he could do so. The gift was held invalid
since the donor’s right to receive the money from the bank couldn’t be transferred by
the mere delivery of receipt.

Anubhuti Anand Singh (W)

Anushka Kashyap (P)
  In certain cases, delivery of possession not necessary, only symbolic delivery of
possession is enough.
o When donor and donee reside in same house (the subject-matter of the
gift), the actual delivery of possession isn’t necessary. The intention of the
donor must be clear and unequivocal.
o If the gift made between spouses is in their joint possession, then the actual
delivery of possession isn’t necessary. In Ahmia v Khatija, the donor
handed over the keys of the house to his wife. The gift was considered to
be valid even though the husband continued living in that house. o When
a gift is made from a father or the guardian to a minor, the actual delivery
of possession to the minor need not be made.
o When a gift is made to the bailee (provided the bailee is in the possession
of the subject-matter of the gift), no delivery of possession is necessary.
The gift may be completed by declaration and acceptance.

Conditional Gift and Gifts with Condition

 Contingent or Conditional gifts: These gifts are made based on the occurrence of a
contingency i.e. a possibility which may or may not happen. Such gifts are void.
 Gifts with Conditions: When a gift has been made for a stipulated condition, the
condition becomes invalid, but the gift remains valid.

Revocation of Gifts

Under Muslim law, revocation of gifts can be done:

 Before The delivery of possession: All gifts are revocable before the delivery of
possession is given to the donee. For example, if X makes a gift deed to Y stating that he
will give his car to Y, X can choose to not deliver it to Y and revoke the gift.
 After the delivery of possession: o In Sunni law, mere declaration of revocation of suit
isn’t enough. The donee is entitled to use the property in any manner until a decree of the
court is passed revoking the gift. In the following cases, gifts are irrevocable:
o A gift made by one spouse to another.
o When the donor and donee are related within prohibited degrees.
o When the donee or the donor is dead.
 o When the subject matter of the gift is no longer under the possession of the donee.
(The donee disposed it by sale, gift or consumed it or the subject matter of the gift
is lost or destroyed)
o When the value of the subject matter has increased.
o When the value of the subject matter of the gift has been lost.
o When the donor has received something in return (iwaz).
o When the object of the gift is to receive religious or spiritual benefit.

In Shia law,

o Mere declaration is enough for revocation of gift.

o Gift made by spouse is revocable.
o Gift to relation, whether prohibited degrees or not, revocable.
 The Donor’s heir can’t revoke the gift after the donor’s death.
 The gift can be revoked only under two conditions: The done consents to the
revocation otherwise the gift gets revoked due to decree of the court.

Marz-ul-maut - Death Illness

 Marz-ul-maut is a malady which has a high probability of fatality and leaves a person
incapable of conducting his daily activities. If the disease continues for more than a year,
it can’t be considered as marz-ul-maut unless there’s a genuine apprehension of death.
 A gift is believed to be made during marz-ul-maut, if was made under pressure of the
sense of imminence of death.
 These gifts derive their rules from the law of wills and the law of gifts.
Conditions necessary to constitute a Marz-ul-maut:
o The malady must result in death
o The malady must cause a reasonable or genuine apprehension of death in the
mind of sufferer.
o There should be some external indica of the malady.
o Delivery of possession must be given to donee.

• Sunni Law:

o The Malikis consider marz-ul-maut gifts to be void.

o The Hanafis hold that such gifts are valid to the extent of one-third.
• Shia Law:

o The gifts are valid to the extent of one-third.

o These gifts can be made to heirs as well.
 Wakf -Mohammedan Law
Origin of Wakf:
Wakf originated from the words of the Prophet. When a man called Omer asked the
Prophet on what to do with his excess property, the prophet replied that the property should
be made inalienable (cannot be changed or removed) and the profits given to charity. The
property made so is known as wakf. The term Wakf means “detention”. It can also be defined
as “Tie up the substance and give away the fruit”. The concept of wakf was later developed
by the ijma (principles developed via consensus of scholars on interpreting the Quran).

Ownership of wakf:
At the time of Abu Hanifa, the owner of the wakf also known as the ‘wakif’ has
ownership. In the present times, it is believed that the ownership lies with God and not with a
particular person. This means that the property is inalienable.
The Wakf Act, 1913 defines a wakf thus, “Wakf means the permanent dedication by a person
professing the Mussalman faith of any property for any purpose recognized by the
Mussalman law as religious, pious or charitable.”

Characteristics of a Wakf:- (Wakf-nama)

 The ownership of property of wakf vests in God.
 Wakf is permanent in nature. It means that it is created for an unlimited period.
 Wakf made is irrevocable. Once a wakf is made, it cannot be revoked.
o In the case of Abdul Sattar v. Noor Bhai, (AIR 1993 Bom 87) a wakf-nama is
made where a condition was made that wakf can be revoked at any time. It renders
the wakf void.
 Testamentary wakfs can be revocable as it was not made into force and only planned.
 Wakfs are inalienable and cannot be changed

Capacity of the wakif

He should be a major and of sound mind. A wakf made via marz-ul-maut is also valid.

Subject matter of wakf

The subject matter of the wakf is dealt in both Muslim Wakf Validating Act, 1913 which said

Srinidhi S (W)
Shree Nikesh (P)
that any property can be made as wakf. Alternatively, in Wakf Act, 1954, it has been said that
any movable or immovable property can be made as wakf.

Types of wakf
 Public wakf: Wakfs made for charitable purposes
 Family wakf: Wakfs made for the welfare of the family
In the case of Abdul Fata Md. v. V. Russomony Dhur [(1894) 22 IA 76], it was held that
family wakfs are not wakfs. This led to dissatisfaction among Muslims as family was also
something to be given importance in the Quran.
Later, The Muslim Wakf Validating Act says family wakfs are valid if they give benefit to
charity too. This is further explained in Sec 3 & 4 of Wakf Act, 1913.

Formalities involved in creating a wakf

There is no formality and the wakf can be written or oral in nature. It is not necessary that the
word ‘wakf’ should be present as long as it is implied that the property is for the benefit of
charity. In Sunni law, implied conduct also leads to the formation of wakf whereas in Shia
law, wakf should be declared and delivered. The wakf should be registered if it has a value of
more than Rs.100 under Sec 17 of the Regulation Act.

Mutawalli
Mutawalli refers to the person who is the administrator of the wakf and is in charge of it. The
mutawalli can be appointed by the wakif (founder of the wakf), the outgoing mutawalli or the
court in absence of both. The wakif can lay down a scheme of mutawalliship and can also
appoint his own descendants as mutawalli as seen in the case Md. Esque v. Md-Amin. (AIR
1948 Cal 312).

Who may be Mutawalli?

Mutawalli should be of sound mind and a major. A minor can be mutawalli only if it is laid
down in the line of succession. Women can also be a mutawalli except in cases where
performance of spiritual duties are concerned.
Power of Mutawalli
Mutawalli has the power to manage and perform the administrative work of the wakf. He can
utilize the wakf for the purpose of wakf. The mutawalli can also sue for possession to be
handed so as to manage it. He has no alienation power over the wakf.