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Hibah Umra and Ruqba in Islamic Law: A Legal Analysis

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HIBAH UMRA AND RUQBA IN ISLAMIC LAW: A LEGAL ANALYSIS

Md. Habibur Rahmana*, Puspa Liza Binti Ghazalib, Md Faruk Abdullahc

a *Faculty of Economics and Management Sciences Sultan Zainal Abidin University (UniSZA)
E-mail address: habiburrahman@unisza.edu.my
b
Faculty of Economics and Management Sciences Sultan Zainal Abidin University (UniSZA)
c Faculty of Economics and Management Sciences Sultan Zainal Abidin University (UniSZA)

Abstract
Hibah umra and ruqba are the two forms of donation the Arabs were dealing with
that in pre-Islamic period. It is apparently said that majority of the Muslim jurists
are of the opinion that, the temporary or conditional hibah such as umra and ruqba
are considered valid but the conditions are considered void. However, there are
some stands which opine otherwise. Hence, this research sets out to make a legal
study on this issue. The study follows the analytical method. The objective of this
paper is to develop the principles and applications of these forms of hibah, ensuring
the public wellbeing that conforms to the maqasid al-shari’ah. The research posits
that these types of hibah could be the underlying ground for the survivorship
principle in the joint tenancy arrangement. Moreover, it also could be one step
forward to solve the ownership and hibah issues of the family takaful benefit.

Keywords: Hibah, Shari’ah, Islamic Law, Ruqba, Umra.

1.0 INTRODUCTION
Hibah umra and ruqba are the two kinds of donation that were practiced and familiar in pre-
Islamic period. Umra means making a donation subject to the life of the beneficiary or the
donor with a condition that the property should be returned back to the donor after demise of
the beneficiary. It also means a temporary provision which refers to the life of any party of

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hibah arrangement, either the hibah giver or the recipient. Ruqba, on the other hand, is a
donation where the beneficiary possesses the donation after death of the donor, provided that
the beneficiary survives upon that. Thus, hibah umra and ruqba both are the forms of
conditional donation while in the earlier the donation comes back to the donor after demise of
the beneficiary and in the latter the beneficiary owns the donation after demise of the donor if
he survives up till that. This paper aims at making a legal analysis on the validity and
effectiveness of hibah umra and ruqba in Islamic law.

2.0 HIBAH UMRA AND ITS RULING IN ISLAMIC LAW

Hibah umra is one of the forms of donation and it needs that all other forms of donation need,
such as offer, acceptance and possession or what replaces it. In lexical sense umra refers to
make something pertinent to the life, derived from the root word ‘umr’ which means life or
age. A prominent classical scholar namely Tha’lab said: Umra means: giving the house to
someone saying that, this is for you subject to your life or mine, whoever of us dies the house
will be given to his family (Ibn Manzur 1990; Razi 2008).

In juristic term Hanafi and Hanbali Schools of law define umra as, to give someone one's own
possession referring to the life of anyone of them (Kasani 2005; Ibn Qudamah 2004; Bahuti
1997). However, Maliki and Shafi’i Schools of law define it as, to donate someone one's own
belonging referring to the life of the beneficiary (Ibnul Munzir 1997; Nawawi 2000a; Ibn
Juzayy 2005).

Generally Muslim jurists opine that hibah umra is lawful. The Prophet says,
َ ‫ى ِللَّذِى أُع‬
‫ْمِرهَا َحيًّا َو َم ِيتًا َو ِل َع ِق ِب ِه‬ َ ‫َم ْن أ َ ْع َم َر ع ُْم َرى فَ ِه‬
Whoever makes a donation of umra it will be for the beneficiary, whether alive or dead, and
then for his heirs (Muslim 4283). The Prophet further says,
‫ْالعُ ْم َرى َجائِزَ ة ٌ أل َ ْه ِل َها‬
Hibah umra is valid and effective for its beneficiary (Bukhari 2483; Muslim 4287). However,
Muslim jurists differ in opinions whether hibah umra transfers ownership of the asset or that of
the usufruct, as follows:

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Hanafi and Majority Schools of Islamic Law:

Hanafi, Shafi’i and Hanbali Schools of law are with the opinion that hibah umra transfers
ownership of the asset straight away and then the asset becomes the possession of beneficiary
(Kasani 2005; Sarakhsi 1989; Mawardi 1999; Ibn Qudamah 2004). Kasani (2005) says in ruqba
arrangement the donation is made contingent on an invalid condition. Thus, such condition
becomes ineffective while contract remains valid, and accordingly ownership of donated object
will be transferred to the beneficiary. Jabir ibn Abdullah reported, the Prophet (pbuh) says,
َ ‫ى ِللَّذِى أُع‬
‫ْمِرهَا َحيًّا َو َميِتًا َو ِلعَقِبِ ِه‬ َ ‫علَ ْي ُك ْم أ َ ْم َوالَ ُك ْم َوالَ ت ُ ْف ِسدُوهَا فَإِنَّهُ َم ْن أ َ ْع َم َر ع ُْم َرى فَ ِه‬
َ ‫أ َ ْم ِس ُكوا‬
take care of your property and do not let it to decay, whoever makes a donation of umra it
goes to the beneficiary, whether alive or dead, and then to his descendant (Muslim, 4283). Also,
it is reported that,
ْ َ‫ ِب ْالعُ ْم َرى أَنَّ َها ِل َم ْن ُو ِهب‬- ‫ صلى هللا عليه وسلم‬- ‫ى‬
ُ ‫ت لَه‬ َ َ‫ق‬
ُّ ‫ضى النَّ ِب‬
The Prophet judged the donation of umra for its beneficiary (Bukhari, 2482).

Maliki School:
Maliki School and Layth ibn Sa’ad opine that, in hibah umra the beneficiary enjoys only the
usufruct of the donated item and once he dies the asset goes back to the donor. It is reported
that, while Qasim ibn Muhammad was asked about umra donation he replied: I did not find the
people except they follow their own terms in their property and what they give (Hattab 1995;
Ibn Rushd 2003).

Shafi’i School:
Nevertheless, Shafi’i School of law classified hibah umra into three categories:
First, if the person says: I am donating you this house as umra, if you die it will be for your
heirs, such arrangement is valid and it is hibah per se. So, if the person dies, the house would
be belong to his heirs, if no heir(s) alive the house will go to the public treasury and it never
goes back to the donor.
Second, the donor just says: I make this for you as long as you live, and did not give further
details; in this scenario the later stand (qawl jadid) of Shafi’i School is that, it is valid and it

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would be treated as hibah. However, as to the earlier thought (qawl qadim) of the School, it is
invalid.
Third, the donor says: I am giving you this house as long as you live, when you die it will come
back to me or to my heirs if I die; in this scenario the preferred opinion is that this hibah is valid
while the condition is void. Nonetheless, the less preferred (qawl marjuh) opinion says that,
such arrangement is void as it contains invalid condition (Nawawi 2000a; Ramli 1993; Nawawi
1983b).

Hanbali School:
Hanbali School of law, however, did not differentiate among these words. Prominent Hanbali
scholar al-Bahuti says that in all aforementioned examples hibah is valid. They are the
examples of umra, where the donated item goes to the possession of beneficiary and afterwards
to his heirs if available. If no heir exists then it goes to the public treasury as like all other
residuals (Bahuti 1997).

3.0 HIBAH RUQBA AND ITS RULING IN ISLAMIC LAW

Ruqba is a form of donation that is made based on the survivorship principle. Whoever survives
upon demise of the other party, owns the donation. In lexical senses ruqba means waiting for
the other to die. It is a derivative of "muraqabah" which means to inspect, and to observe. Ruqba
is named as in such arrangement basically each of the party observes and inspects death of
another party, so that the donated item remains for him (Razi 2008; Fayyumi 1323H)

Majority of the scholars opine that ruqba refers to a scenario whereby one says to another; I am
giving you this house as ruqba subject to your lifetime, if you die before me the house will
come back to me and if I die before you the house will be for you and your heir(s). Maliki
School, however, ruqba is s one's saying to another, if you die before me your house will be for
me and if I die before you my house will be for you (Ramli 1993; Shawkani 2000; Ibn Juzayy
2005; Ibn Qudamah 2004).

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In hibah ruqba one says to another: I am donating you my land and property as ruqba, i.e.
subject to your life, so if you die before me the donated item will come back to me, and if I die
before you the donated asset will remain in your custody. Muslim jurists have differed in
opinions on the validity of ruqba donation. Basically with regard to ruqba donation, there are
two scholarly opinions:

First Opinion:
Ruqba donation is valid, and this opinion is made by Shafi’i School, Hanbali School and Imam
Abu Yusuf of Hanafi School of Islamic law. However, the donated object remains with the
beneficiary and it does not return to the donor, the condition of returning back becomes
ineffective (Ramli 1993; Shawkani 2000; Ibn Qudamah 2004; Bahuti 1997).

The Prophet (pbuh) says:

ُ‫س ِبيلُه‬ َ َ‫ش ْيئًا فَ ُه َو ِل ُم ْع َم ِر ِه َمحْ َياهُ َو َم َماتَهُ َوالَ ت ُ ْرقِبُوا فَ َم ْن أ َ ْرق‬
َ ‫ب شَيئًا فَ ُه َو‬ َ ‫َم ْن أ َ ْع َم َر‬
Whoever makes hibah umra it will be for the beneficiary, regardless of being alive or dead. Do
not make ruqba donation, as whoever makes ruqba donation it goes for the beneficiary (Abu
Daud, 3561). Also, the Prophet says: ‫الر ْقبَى َجائِزَ ة‬
ُّ i.e. Ruqba is valid (Nasa’i, 3721).

The Prophet further says:

‫الر ْق َبى َجائِزَ ة ٌ أل َ ْه ِل َها‬
ُّ ‫ْال ُع ْم َرى َجائِزَ ة ٌ أل َ ْه ِل َها َو‬
Hibah umra is valid for its beneficiary and ruqba is valid for its beneficiary (Tirmidhi, 1402).
So, these narrations advocate that ruqba donation is valid and the donated object remains with
the beneficiary. Consequently, condition of returning the object back to the donor becomes
ineffective.

Second Opinion:
Hibah ruqba is invalid. This is the opinion of Imam Abu Hanfiah, Imam Muhammad of Hanafi
School, and Maliki School of Islamic law. The essence of ruqba, if I die before you the object
will be for you, and if you die before me it will come back to me, is basically transferring the
ownership with risk and uncertainty which is invalid (Marghinani 2000; Ibn Abidin 1998;

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Zurqani 2002). Also, it is reported that the Prophet validates umra and invalidates ruqba
(Zayla’i 1393H).

To sum up, making umra and ruqba donation is valid, but the clause of returning back the
donated object to the donor is invalid. Once the umra and ruqba are executed, the donation goes
to the beneficiary and it never comes back to the donor. Nevertheless, while the majority of the
scholars opine that through umra and ruqba ownership of the asset is transferred, the Maliki
School opines that only the ownership of usufruct is transferred, and accordingly after demise
of the beneficiary the donated object returns back to the donor.

4.0 APPLICATIONS OF HIBAH UMRA AND RUQBA

Hiba Umra and Ruqba in Joint Tenancy:

Joint tenancy is a legal contract where two or more parties acquire a property together in which
each of them has equal rights and obligations. The right of survivorship permits the owners to
possess another partner’s share immediately and automatically should one of them die. Any
partner in joint tenancy agreement is allowed to sell or transfer his portion of ownership in the
property without the approval of others. However, in this case the agreement of joint tenancy
with survivorship remains among other partners and the new partner does not enjoy the right
of survivorship due to not having unity of time and document upon receiving the title of the
property (investopedia.com & thebalance.com 2018-07-23).
For a valid joint tenancy agreement with the right of survivorship, there are four ‘unities’ which
should be available upon holding the title of the property. First, unity of time which means the
possession of the property must be taken simultaneously at the same time. Second, unity of title
that means the title must be acquired with the same document and deed that transfers the
property legally. Third, unity of interest which refers that each of the tenant must enjoy equal
ownership though they may have unequal contribution to buy the property, and fourth, unity of
possession which means each tenant should enjoy the right to use the whole property albeit he
does not have a hundred percent ownership interest (thebalance.com, 2018-07-23).

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Joint tenancy contract resembles umra and ruqba, which are the forms of hibah with conditions.
Whoever survives takes over the property. If a couple wants to acquire a property or house,
while the husband makes the major amount of payment of the house and the wife just pays a
token amount, even in some cases being a house wife does not pay any amount, in this case
giving to her the equal interest and undivided benefit in the house could be considered a hibah
from husband, that is contingent upon his death and subject to the survival of the wife when he
dies, and afterwards the house would go to her heirs.

Nevertheless, in a different scenario where both the husband and wife has income stream and
hence they share the price of the house, for example, equally; in this case through joint tenancy
agreement basically each of them donates his/her portion of the house to another party, subject
to the survival of another party when he/she dies. This is a conditional hibah where umra and
ruqba can be applied. So, should anyone of them die, hibah will be executed and accordingly
the house will be for the surviving party. In this case the donation, i.e. the house, never goes
back to the donor, which is the main shari’ah concern in umra and ruqba. As discussed above,
the Prophet (pbuh) validated the practice of umra and ruqba, provided that the donated item
shall not return back to the donor. In addition, this is not incompatible with any universal
principle of Islamic law.

According to the fatwa issued by Majlis Ugama Islam Singapura (MUIS) that, in order to enjoy
the facility intended in joint tenancy or tenancy in entirety agreement there shall be an
arrangement of hibah umra and ruqba that have been made between the joint tenants.
Otherwise, the surviving joint owner will not have full ownership of the property, he/she shall
only be entitled to half (50%) of the value of the property, and the other half would be
distributed among the legal heirs of the deceased according to the inheritance law of Islam
(Majlis Ugama Islam Singapura 2011).

Hiba Umra and Ruqba in Disbursement of Family Takaful Benefit:

The benefit of family takaful constitutes participant's contribution in investment fund and the
related profit as well as compensation from the risk fund. Actually, the takaful benefit is
disbursed either upon death of the participant or maturity of takaful certificate. If the participant

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lives upon maturity of takaful certificate he will enjoy the takaful benefit. If the participant dies
prior to maturity of takaful certificate then the takaful benefit shall be paid to the beneficiary
assigned by the participant.

In fact, there are several possible modes to disburse the takaful benefit among the intended
beneficiaries, in the case of demise of the participant prior to the maturity of takaful certificate.
Hence, Takaful benefit may be disbursed by assigning someone as a nominee to collect the
benefit and to distribute among the intended beneficiaries. Also, the takaful benefit could be
disbursed among the intended beneficiaries according to the inheritance distribution system.
Moreover, it also could be disbursed by making an absolute hibah to the intended beneficiary.

However, each of these possible modes has shortcoming. They are not compatible with the
purpose of takaful plan. The reason for participating in family takaful arrangement is to
generate an immediate wealth in the case of untimely death of a wage earner. It is also a part
of risk management process which is in line with shari’ah. In the case of assigning the nominee,
he/she could or could not be a beneficiary subject to the legal framework. In many regulations,
the nominee will be a beneficiary if he/she is the legal spouse or child of the deceased which is
insured. Sometimes this process goes through the long administrative delays of estate
administration that may prejudice the objective of takaful scheme (Ismail, 2009). Moreover, in
the case of allocating takaful benefit pursuant to the Islamic inheritance law, the basic objective
of takaful plan might be overlooked. In this situation takaful benefit might probably be
disbursed to the inheritors who are not actually affected by the death of insured participant.
Also, if takaful benefit is considered as bequest, it would be subjected to the fulfillment of some
rights and responsibilities that should be fulfilled prior to the allocation to the inheritors, such
as the imbursement of funeral costs, and the deceased's loans, which entirely contradicts the
objective of takaful plan (Noor & Asmadi, 2008).

Furthermore, disbursement of takaful benefit over making it an absolute hibah to the intended
beneficiary raises some other unsettled issues. What if the recipient dies after hibah object has
been transferred to his/her custody, should it become his/her property, can the beneficiary be
changed? What would be if the wife is divorced or died while she is the recipient of the takaful

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proceeds? Can the husband be the recipient of the benefit of his wife while he is paying a policy
for her, or should he just treated a trustee or executor and accordingly her benefit shall be
distributed among her legal heir(s) pursuant to the inheritance law? (Noor & Asmadi, 2008).

Having these issues constrains, instead of an absolute hibah a conditional hibah in the form of
umra and ruqba could be applied to disburse takaful benefit. Thus, such hibah arrangement can
be revoked if the stipulated conditions are not fulfilled. Nevertheless, the disbursement with
hibah umra and ruqba could be arranged in a checklist form whereby the participant may say,
for example, my wife would be the beneficiary of the benefit of my takaful certificate, provided
that he (the participant) is not alive while takaful certificate matures; she is alive upon demise
of the participant; she is not divorced; takaful proceed shall be spent for such and such purpose,
in the case whereby takaful certificate is taken to serve any specific purpose, e.g. for the
education of any kid and so on. However, in that case the wife may be considered as a
trustee/executor if not the beneficiary; and any other condition deemed relevant.

If the beneficiary is the adopted son or someone who is dependent on the deceased, takaful
benefit could be disbursed by hibah umra and ruqba provided that the certificate holder is not
alive while takaful certificate matures; he/she is alive upon demise of the takaful certificate
holder; he/she is still in the custody of the participant; takaful proceed shall be spent for his/her
education purpose for instance; as well as any other condition relevant to the takaful certificate
holder.

Hibah Umra and Ruqba and Temporary Waqf:

If anybody wants to endow a house for his wife till she lives, and after her demise the house
will be back to the heirs and distributed among them pursuant to the inheritance law. This
practice is valid and it will be considered a temporary waqf subject to the life of the beneficiary.
As discussed above, according to Maliki School temporary waqf is valid as same as perpetual
waqf. The temporary waqf can be made for any specific years. Also, it can be made subject to
the life of the donor or life of the beneficiary. Thus, temporary waqf resembles hibah umra and
ruqba because all of them constitute conditional hibah which is valid. As discussed, hibah umra
and ruqba are valid, with the condition that the donated item shall not return to the donor or his

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heirs. The Prophet (pbuh) validated umra and ruqba for the beneficiaries while invalidated the
condition of coming back the donation to the donor after demise of the beneficiary. Instead, the
Prophet (pbuh) judged that after demise of the beneficiary the donation will be for his heirs.
Nevertheless, temporary waqf differs from umra and ruqba donations. The endowment can be
back to the donor after expiry of the duration or demise of the beneficiary whereas umra and
ruqba donations cannot be back to the donor after demise of the beneficiary.

Concerning the conditional hibah, it is valid provided that the condition is consistent with the
requirements of contract. If the condition becomes incompatible with provisions and
requirements of hibah contract that condition will be void. Ibn Qayyim (2004) says the ruling
of the invalidity of conditional hibah is supported neither by any text of shari’ah nor by the
consensus of scholars. On the other hand, majority Muslim jurists including Hanafi, Shafi’i and
Hanbali Schools opine that making a conditional waqf is not valid and it should be effective
immediately (Ibn Abidin 1998, Sharbini 2006, Shirazi 1995, Bahuti 1997, Mardawi 1997).
Only Maliki School and another stand of Hanbali School opine that waqf can be made
conditional and thus immediate execution is not required for the validity of making a waqf
(Dasuqi 2003, Kharshi 1997, Mardawi 1997). The authors agree with the latter stand that says
conditional waqf is valid since there is no legal text in shari’ah that invalidates the conditional
waqf. Nonetheless, in this point there is no dissimilarity between waqf, whether perpetual or
temporary, and umra and rquba donations as all of them can be made conditional.

Hibah Umra and Ruqba and Wasiyyah Wajibah:

Hibah umra and ruqba could be considered as a suitable tool to transfer the wealth or to donate
something to those who are not entitled to get anything from the deceased's estate as the legal
heir classified in Islamic inheritance law, such as the adopted child, the child who lost his/her
father during the lifetime of his/her grandfather and so forth. Hence, these forms of hibah could
be also an alternative of wasiyyah wajibah in the jurisdiction that does not subscribe this
wasiyyah. Nevertheless, in such circumstances it is recommended to leave for them something
as far as possible. The Prophet says it is better children are left solvent rather than left dependant
on others.

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5.0 CONCLUSION

Hibah umra and ruqba are the two conditional forms of donations that were familiar in pre-
Islamic period. The Prophet (pbuh) permitted these forms of donations while invalidated the
condition of returning back the donation to the donor. Umra is donating something subject to
the life of beneficiary and once he dies the object shall be back to the donor. Ruqba is making
a donation with the condition of life of the beneficiary. Thus, if the beneficiary lives upon
demise of the donor he will be entitled to enjoy the donation. The Prophet (pbuh) judged that
umra and ruqba donations are lawful for their beneficiaries and after demise of the beneficiaries
the donated objects will go to their heirs and they never return back to the donors and their
heirs.

The application of hibah umra and ruqba are valid as the underlying ground for the survivorship
principle of joint tenancy contract, which would facilitate housing for the Muslim couples being
compliant with shari’ah rules and regulations.

In takaful arrangement the disbursement of the takaful benefit is subject to the demise of the
certificate holder. If he lives upon maturity of takaful plan he enjoys the takaful proceeds, not
the beneficiary or recipient of hibah. To accommodate this arrangement hibah umra and ruqba
could be proposed, as these forms of hibah are subject to the survivorship of the parties in the
contract. They are valid arrangement, as discussed in the earlier part of this paper, provided
that the hibah object shall not return back in the custody of donor after hibah is executed. This
condition is relevant to the takaful arrangement because takaful benefit goes to the beneficiary
only if the certificate holder dies upon maturity of the takaful plan. Hence, the proceeds will
never return to the certificate holder as he is already dead. In this case the certificate holder
may say: I am donating the benefit of my takaful certificate as umra and ruqba to so and so
subject to my death and his/her survival upon my demise.

Hibah umra and ruqba resembles the temporary waqf since all of them are the donation in
conditional form. However, in temporary waqf the endowed item can be back to the donor upon

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(ICLG2018)

UNIVERSITI SULTAN ZAINAL ABIDIN, TERENGGANU, MALAYSIA

21 – 22 OCTOBER 2018

expiry of duration or death of the beneficiary while in hibah umra and ruqba the donated item
cannot be back to the donor upon demise of the beneficiary. Lastly, hibah umra and ruqba could
also be the alternative of wasiyyah wajibah, particularly in the jurisdiction that does not permit
the wasiyyah wajibah.

REFERENCES

Azman, & Asmadi, Mohamad. (2008). Takaul Benefit: Ownership and Distribution Issue in
Malaysia.Journal of Islamic Economics, Banking and Finance, vol.5, no. 3.
Bahuti, Mansur ibn Yunus. (1997). Kashshaf al-Qina.Beirut: Dar al-Kutub al-Ilmiyyah
Bukhari, Muhammad ibn Isma’il. (2002). Sahih al-Bukhari. Beirut: Dar al-Kutub al-Ilmiyyah
Dasuqi, Ahmad ibn Arafah. (2003).Hashiyat al-Dasuqi. Beirut: Dar al-Kutub al-Ilmiyyah
Fayyumi, Ahmad. (1323 AH). al-Misbah al-Munir . Egypt: Maktabat Abd al-Wahid
Hakim. (1990). al-Mustadrak. Beirut: Dar al-Kutub al-Ilmiyyah
Hattab, Muhammad. (1995). Mawahib. al-Jalil Beirut: Dar al-Kutub al-Ilmiyyah
Ibn Abidin, Muhammad Amin. (1998). Radd al-Muhtar. Beirut: Dar Ihya al-Turath
Ibn Hazm. (1900). al-Muhallah. Beirut: Dar al-Fikr
Ibn Juzayy, Abu al-Qasim. (2005). al-Qawanin al-Fiqhiyyah. Cairo: Dar al-Hadith.
Ibn Manzur, Muhammad ibn Makram. (1990). Lisan al-Arab. Beirut: Dar Sadir.
Ibn Qayyim. (2004),.Ighathat al-Lahfan. Cairo: Dar al-Hadith.
Ibn Qudamah, Muwaffaq al-Din. (2004). al-Mughni. Cairo: Dar al-Hadith.
Ibn Rushd, Muhammad. (2003). Bidayat al-Mujtahid. Beirut: Dar al-Kutub al-Ilmiyyah
Ibnul Munzir, Muhammad ibn Ibrahim. (1997). al-Iqna’. Beirut: Dar al-Kutub al-Ilmiyyah
Ismail, Azman. (2009). Nomination of Hibah Issues in Takaful Industry; a paper has been
presented in ISRA Shari'ah Conference on Takaful 2009.
Kasani, Ala Uddin Abu Bakr. (2005). Bada’i’ al-Sanai’. Cairo: Dar al-Hadith.
Kharshi. (1997). Sharh al-Kharshi. Beirut: Dar al-Kutub al-Ilmiyyah.
Majlis Ugama Islam Singapura. (2011). Guidelines for Muslims on Purchasing and Owning
an HDB Property under Joint Tenancy. Singapore: MUIS .
Mardawi, Ala al-Din. (1997). al-Insaf. Beirut: Dar al-Kutub al-Ilmiyyah.
Marghinani, Ali ibn Abi Bakar. (2000). al-Hidayah. Cairo: Dar al-Salam.

82
P
A
G
 PROCEEDINGS OF THE INTERNATIONAL CONFERENCE ON LAW AND GLOBALISATION 2018
(ICLG2018)

UNIVERSITI SULTAN ZAINAL ABIDIN, TERENGGANU, MALAYSIA

21 – 22 OCTOBER 2018

Mawardi, Ali ibn Muhammad. (1999). al-Hawi al-Kabir. Beirut: Dar al-Kutub al-Ilmiyyah.
Mawsu’ah Fiqhiyyah. (1992). Kuwait: Ministry of Awqaf & Religious Affairs
Muda, Mohd Zamro. (2008). Instruments of Hibah and Wills, Analysis of the regulations and
applications in Malaysia, paper presented at the Hibah and Faraid National Convention
2008, Kuala Lumpur.
Nawawi. Sharaf al-Din. (2000a). Rawdat al-Talibin. Cairo: al-Maktabat al-Tawfiqiyyah.
Nawawi, Sharaf al-Din. (1983b). Sharh Sahih Muslim. Beirut: Dar al-Fikr.
Nisaburi, Muslim ibn al-Hajjaj, (2003), Sahih Muslim, Beirut: Dar al-Kutub al-Ilmiyyah .
Qarafi, Sihab al-Din. (1998). al-Furuq. Beirut: Dar al-Kutub al-Ilmiyyah.
Ramli, Shams al-Din. (1993). Nihayat al-Muhtaj. Beirut: Dar al-Kutub al-Ilmiyyah.
Rasban, Sadali. (2010). Hibah al-Ruqba & Joint Tenancy in Shari’ah Law. Singapore: HTHT
Advisory Services Pte Ltd.
Razi, Muhammad ibn Abi Bakar. (2008). Mukhtar al-Sihah. Beirut: Dar Sadir.
Sajistani, Sulayman Ibn al-Ash’ath. (1997). Sunan Abi Daud. Beirut: Dar Ibn Hazm.
Sarakhsi, Muhammad Ibn Ahmad. (1989). Kitab al-Mabsut, Beirut: Dar al-Ma’rifah.
Securities Commission. (2007). Resolutions of the Shari'ah Advisory Council, Malaysia.
Retrieved from https://www.sc.com.my/resolutions-of-the-sc-shariah-advisory-
council/
Sharbini, Shams al-Din al-Khatib. (2006). Mughni al-Muhtaj. Cairo: Dar al-Hadith.
Shawkani, Muhammad ibn Ali. (2000). Nayl al-Awtar. Beirut: Dar Ibn Hazm.
Shirazi, Abu Ishaq. (1995). al-Muhadhdhab. Beirut: Dar al-Kutub al-Ilmiyyah.
Tirmidhi, Abu Isa. (2000). Sunan al-Tirmidhi. Beirut: Dar al-Kutub al-Ilmiyyah.
Usmani, Muhammad al-Taqi. (2006). Takmilah Fath al-Mulhim. Damascus, Dar al-Qalam.
Zayla’i, Jamal al-Din. (1393H). Nasb al-Rayah. Beirut: al-Maktab al-Islami.
Zurqan. (2002). Sharh al-Zurqani. Beirut: Dar al-Kutub al-Ilmiyyah.

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