MODULE-IV

Wills, wakfs and Pre-

emption under Muslim law
 Nature, object and meaning of
a will
• Pre-Islamic Arab- Full capacity to dispose off
his property by will
• Limit of 1/3 rule is not laid down in Koran but is
based on the following tradition-
• Sad ibn Abi Waqqas- during the conquests of
Mecca
• A will offers to the testator the means of
correcting to a certain extent the law of succession
and enabling some of those relatives who are
excluded from inheritance to obtain a share in his
property and also to recognize the services
rendered to him by a stranger.
 Meaning of will
• Will / wasiyyat is the gratuitous transfer of
the ownership of the property which takes
effect after the death of the transferor.

• It is an assignment of property to take effect

after one’s death,

• The legal declaration of the intentions of

Muslim with respect to his property, which
he desires to be carried into effect after his
death.
 Legator/ Testator-one who bequeaths a legacy
Legatee/ testatrix- Any person capable of
holding property may be the legatee under a will.
Essential conditions for a valid will:
1.Competancy of the legator- Any Muslim,
including a man or a woman, who is major and is
of sound mind can make a will.
a) Muslim
b) soundness of mind
c) Age of majority
• Regarding wills, the age of majority is
governed by Indian Majority Act.

• Although according to Muslim law majority

is dependent upon the age of puberty which
is supposed to be reached at 15 yrs of age. Yet
the IMA recognizes only the age of 18 yrs as
a requisite for the purpose of will.

• A will made by a minor is invalid but it can

be validated by ratification after he attains
majority.
• A person of unsound mind is not competent
to make a will and a will made by such a
person is invalid.

• A will made by a person while of sound

mind, who later becomes of unsound mind,
becomes invalid.
• In Abdul Manan Khan vs Mirtuza Khan AIR
1991,- Patna HC held that any Mohammadan
having a sound mind and not a minor may make
a valid will to dispose off the property. So far as a
deed is concerned, no formality or a particular
form is required in law for the purpose of creating
a valid will. An unequivocal expression by the
testator serves the purpose.
• Apostasy-
• Insolvancy- debts have priority over legacy. If
the testator is in debt to full amount of his
property, the bequest would not be lawful unless
the creditors relinquish their claims.
• A person condemned to death may also make a will
• A purdahnasheen lady is also competent to make a
will.
• A will by a person under coercion, undue influence
or fraud is disallowed

• Will of a person committing suicide - Under

Sunni Law the will of a person committing suicide
is valid. Under Shia law, a will made by the person
who has done any act towards committing suicide
is invalid but if the will is made before doing of any
act towards committing suicide, it is valid.
• A minor may make a will, but its validity
would be postponed to the event when, after
attaining majority, he ratifies it.
• Such a will is very weak, as it is open to
attacks on the grounds that it has been made
under force, coercion or undue influence.
• The law of onus- The person who claims
the existence of a valid will is under greater
obligation to prove by clear evidence that
the will was executed by the testator
• and at the time of the execution he was a free
agent and possessed of a sound mind.
 Competency of the legatee
• Any person capable of holding property may be
the legatee under a will.
• Thus, sex, age, creed, or religion are no bar.
• However, no one can be made the beneficial
owner of the shares against his will, therefore, to
complete the transfer, the legatee must give his
express or implied consent to accepting the
legacy.
• An institution can be a legatee.
• A non-muslim can be a legatee if he is not an
enemy of Islam and is not hostile towards Islam.
• In Sunni law, a testator's murderer cannot
be a legatee.
• In Shia law, if the act of the murderer was
an accident, he can be a legatee otherwise
not.
• Unborn person - In Sunni Law, a child born
within 6 months of the date of making of the
will is considered to be in existence and is a
valid legatee.
• In Shia law, the period is 10 months, which
is the maximum period of gestation.
• Bequest for a charitable object is valid.
 Subject of will
• Any thing movable or immovable over which
the right of property may be exercised or
which may form the subject of exchange or
barter or fractional share thereof;

• The usufruct (the legal right of using and

enjoying the fruits or profits of something
belonging to another or the right to use or
enjoy something) of a thing.
• Corpus of a property- which must be in
existence at the time of testator’s death and
could be non–existent at the time of making the
will.
• The usufruct of an existing property for a
limited time or for lifetime of the legatee. It
may be a possibility that corpus may be given
to one person and the usufruct of the same
property to another.
• The vested remainder- Suppose A bequeaths
the usufruct of a property to B, for B’s lifetime
and then the whole of property to C. C has
vested remainder in the property.
 Validity of the subject of will
• To be able to will a property, it must be -
– capable of being transferred.
– in existence at the time of testator's death even
if it is not in existence at the time of making
will. Thus, a bequest cannot be made of any
thing that is to be performed or produced in
future.
– in the ownership of the testator.
 Kinds of Wills
• Conditional Will- if the bequest of the
corpus of any property is made with a
condition which derogates from the
completeness of the bequest, such condition is
void and the legatee will get the property as
if no condition were attached to it.
• for e.g., A Muslim made a bequest to an heir
subject to the condition that the legatee
should not alienate the property bequeathed.
• Contingent Will- the bequest which has
to take effect on the happening of a
contingency is void, unless permitted by a
lawful custom.

• Future bequest- A bequest in futuro of

the corpus of any property is void. But
bequest of usufruct in futuro for a limited
period are valid.
 Revocation of Will
• Express revocation- where the testator
revokes the bequest in express terms either
orally or in writing. But a mere denial by the
testator that he did not make a will does not
act as revocation of an otherwise valid will.
• E.g.,- A bequeaths a house to B. Subsequently
A says the house that I gave to B is for C. This
is an express revocation
• Implied Revocation- Where the
testator does an act from which
revocation may be inferred.
• E.g., bequest of a piece of land is revoked,
if the testator subsequently builds a house
upon it.
 Wakf under Muslim Law
• Importance-
In India alone there are more than a lakh wakfs
valued at more than a hundred crores of rupees.

• Considering their numbers and resources, wakf

can become a strong instrument not only for the
preservation of religious, charitable and
philanthropic institutions, but also for the
educational and economic development of a
community.
 Origin of wakf
• The institution of wakf has developed with
Islam.
• There were no wakfs or any parallel institutions
in Arabia before the advent of Islam.
• A tradition on which muslim jurist lay great
stress and which may be assumed as the basis of
wakf, is that at the time of the partition of
khyber, calip omar acquired some lands which
were very valuable to him.
• He asked prophet whether he should give them
away as sadaqa.
• Prophet replied-retain the thing itself and
devote its fruits(usufruct) to pious
purposes.

• Omar did this with a provision that the

land should neither be sold nor
bequeathed.

• He reserved it for the poor, needy

relatives, slaves, wanderers etc.
 Meaning
• Wakf means detention
• It means detention of the property so that its
produce or income may always be available
for religious or charitable purposes.
• When wakf is created the property is tied up
for ever and becomes non
transferable(perpetuity)
• The object is to ensure that its usufruct is
continuously available for religious and
charitable purposes.
 Essentials of valid wakf:

• Religious or pious, charitable

• Permanent nature-mankind-Non
transferability, Irrevocability, Absolute and
unconditional
• Ownership of the property vests in god-
motive-It is detention of a thing in the
implied ownership of almighty god.
• Usufruct is utilised for the benefit of
mankind
 Kinds of wakfs
• Public wakfs- Those which are dedicated to
the public at large having no restriction of
any kind regarding its use. For e.g., bridges,
wells, roads etc.
• Quasi Public wakfs-Those which are
partly public and partly to provide for the
benefit of a particular individual or class of
individuals which may be the settlor’s family
• Private wakfs- Those which are for the
benefit of private individuals, including the
settlor’s family or relations. Such a wakf is
known as wakf-alal-aulad.
 Legal incidents of wakf
• Irrevocability- A wakf cannot be revoked
after the declaration has been made nor can
the power to revoke be validly reserved.
• Perpetuity-Wakf must be perpetual. If it is
for a limited period or for a temporary
purpose it is void.
• Inalienability- As the wakf property
belongs to god, no human being can alienate
it for his own purposes.
 Creation of Wakf
• There is no essential formality or the use of any
express phrase or term requisite for the
constitution of wakf.
• The law looks at the intention of the donor, in what
ever language it may be expressed or in whatever
term the wish may be formulated.
• All that is necessary in constituting a wakf is that
some sort of declaration, either oral or writing
must be made.
• Although oral wakf is permitted, yet when the
terms of a wakf are reduced in writing, no
evidence except the document itself would be
sufficient to prove it.
 Who can create a wakf
• A major person of sound mind, provided
there is no fraud, undue influence or
coercion and he should not be suffering from
death illness (Maraz-ul-maut), where as he
cannot dedicate more than one-third of his
estate unless heirs give their consent.
• No doubt muslim law recognises maraz-ul-
maut wakfs i.e, when a person suffering
from such illness as culminates in his death
creates a wakf on his death bed and dies, it
is called maraz-ul-maut wakf.
• Such wakf takes effect as a bequest and only
one-third of the property gifted is treated as
given in wakf.
• However if his heirs consent, the whole
property is covered by the wakf. So also if he
survives his illness.
• The wakif (who creates wakf) can be muslim or
non muslim the only restriction is that the
object of wakf should not be opposed to the
creed(belief/faith) of dedicator
• A muslim cannot dedicate in favour of an idol
or temple and a Hindu or Christian in favour of
a mosque
 What can be made as wakf
• Quran for reading in mosques etc.,
• Working cattles and instruments of
husbandry
• War horses, camels and other animals
• Swords
• Money for loans to the poors
• Shares in companies
The wakf validating Act, 1913has permitted a
wakf of any property and it includes
movable property.
In whose favour can wakf be made
• Muslim law does not insist that a man must
necessarily be poor to have benefit of a
wakf.
• All persons, whether rich or poor may be
beneficiaries.
• The following can be beneficiaries
I. The Wakif himself
II. The family and descendants of wakif
III.General Public
 Objects of Wakfs
• Religious and Charitable objects
• Private wakfs
a) Exclusively for the family
b) Substantially for the family with some
provision for charity
c) Substantially for charity with some
provision for the family
 Valid Objects of Wakfs
• Distribution of alms to poor persons, and
assistance to the poor to enable them to
perform the pilgrimage to Mecca
• Burning lamps in a mosque
• Celebrating the birth of Ali
• Performance of annual function for the
welfare of the soul of the deceased person of
the settlor and of the members of his family
• Construction of free boarding house for
pilgrims at Mecca
 Invalid objects
• Objects prohibited by Islam, for example
constructing or maintaining a church or a
temple
• A wakf in favour of utter strangers, though
there was an immediate and substantial
gift to charity
• A provision for the repair of the wakf’s
secular property is invalid.
 Wakf with uncertain objects
• The objects of wakf are not always indicated with
reasonable certainity. There is a conflict of
opinion as to the validity of such wakfs. Following
the case of Morice v. Bishop pf Durham
(1805), the PV council in Ranchordas v.
Parvati bai (1899) 26 IA 7 held that an
endowment with uncertain object was invalid .
• In Abdul Wahab v. A.P Abdul Hamid, 1999
Mad 4037 it was held by Mad HC that when a
deed, trust deed or a will is interpreted by a court
of law the expression of the words used in such
• Documents should be understood as if the
author of such documents expresses his
intention or speaks from his grave. As far as
possible only in extraordinary and
exceptional cases should there be any
deviation from his intention, and that too
after taking great care and caution.
• A valid wakf may thus be constituted:
I. Where the objects are not specified at all
II. Where the objects fail as impracticable
III.Where the objects are partly valid and
partly invalid
• In cases (i) and (ii). Cy pres doctrine will
be applied, and in case (iii) the valid objects
may be accepted by the court and the others
rejected.
• Cy pres Doctrine- If the specified objects
of a Wakf fail, the wakf will not be allowed
to fail, but the income will be applied for the
benefit of the poor or to objects as near as
possible, to the objects which failed.
• It must however, be remembered that a
wakf that is void for uncertainty cannot be
validated by the application of this doctrine.
• Mere vagueness or uncertainty will not lead
to the failure of a wakf, for under such
circumstances, the law itself would cure the
defect by supplying the objects of dedication.
• In case the object is not specified at all, the
wakf will be for the support of the poor.
• When the wakf is for a religious or
charitable institution which in course of time
ceases to exist, the wakf property will not
revert to the wakif or his descendants, but
would be applied to some other similar
religious institution or to any other object by
which human beings may be benefited.
 Contingent or conditional Wakf
• When the creation and validity of a wakf are
subjected to a contingency, it becomes void. For
e.g., if the wakf is made contingent on the death of
a person without leaving children, it will be void.
• If a muslim lady creates a wakf for herself and
her children, and provides that the children should
take possession of property on attaining majority,
and in the event of her death without leaving
children, the wakf income should be devoted to
certain religious usages, it was held the wakf was
void, as it depends upon a contingency namely the
event of her death without leaving children.
• Conditional Wakf- The wakf should not
be conditional. Thus, if a condition is
imposed that when the property dedicated
is mismanaged, it should be divided
among the heirs of the wakif, or that the
wakif has a right to revoke the wakf in
future, such wakfs would be invalid.
 Essentials of a valid Wakf
I. There must be a clear intention on the part of
wakif to create the wakf
II. Wakif must declare his intention, either
orally or in writing
III.Wakif must be the owner of the property to
de dedicated as wakf
IV. The wakf must be perpetual
V. The objects of wakf should not be in conflict
with Islamic principles.
VI. The wakif must be of sound mind and major
 Administration of wakfs - Statutory
or non statutory
• Generally for the managment and administration of
wakf a mutawalli will be appointed by the wakif.
• Mutawalli is the manager of the property not the
owner as the wakf property vest in god
• Any one of any faith female or male who is
competent to administer may become mutawalli.
• But where a religious duties are involved, a person
of another religion or a woman may be disqualified.
• Appointment of Mutawalli may be through wakif,
his executor, the mutawalli or by the court.
 Statutory Supervision
• Wakf Act, 1995- It provides for the establishment of
a Board of Wakf for each state.
• The Board for a State and UT consists mostly of non-
official members, some of them are elected by
electoral colleges
• Other members of the board are nominated by the
State Government.
• The Act contemplates representation to any one or
more of following categories-
• MLA and MP, Persons having knowledge of Muslim
Law, Persons having knowledge of administration,
finance and law as well as mutawallis
 Pre-Emption (Shufa)
• Meaning and origin-
• Shufa means conjunction, here it denotes the
right of the owner of a property which is in
conjunction i.e., adjacent to another property.
• Haq means right
• So haq shufa means right to subsequent
purchase of property adjacent to own from
fresh purchaser.
• In practice it means a right to dislodge a fresh
purchaser and step in his shoes in respect of an
adjacent property.
• It means a right to dislodge stranger from
entering into ones neighbourhood.

• Origin of pre-emption- it is embedded in

the saying of the prophet

• “A neighbour has a right, superior to that of

stranger, in the lands adjacent to his own”

• “ The right of shufa holds in a partner who

has not divided off and taken separately his
share”
Formalities to be observed
• The first demand- on receiving the
information of the sale, the pre-emptor
must immediately declare his intention to
assert his right.

• No witnesses are necessary, nor any

particular language or form for making
this demand
• The Second Demand- The pre-emptor
must, with the least practicable delay,
make a second demand, either personally
or through an agent.

• He must- refer to his first demand, do so in

the presence of two witnesses and do so in
the presence of either the vendor or
purchaser
• The third demand-i.e., a legal action is
only necessary when the first two demands
fail.

• Such a suit must be filed within one year of

the purchaser taking possession of the
property.
 Subject matter of pre-emption
• Ordinarily only immovable property can be a
subject matter of pre-emption
• The prophet had limited it to only mansion
and a garden
• But the law expanded the rule to embrace
houses and landed property.
• Pre-emption must be claimed of the whole of
the estate, because otherwise by breaking up
the bargain, the pre-emptor would be at
liberty to take the best portion of the property
and leave the worst part of it with the vendee.
 Legal effects of pre-emption
I. When the claim of pre-emption is complete,
the pre-emptor steps in the shoes of buyer

II. If the sale has been completed when the

claim to the right of pre-emption is
enforced, the original buyer becomes the
new seller and the pre-emptor as the new
buyer.
III. The pre-emptor does not become liable
for any contingent charges incurred by
the buyer, such as brokerage

IV. The buyer is entitled to receive or retain

the rents and profits of the land during
the interval between the date of its sale
to himself and its transfer to the pre-
emptor.
 Constitutionality of Pre-emption
• The HC of Rajasthan, MP and Hyderabad had
held that pre-emption on the ground of vicinage
(ownership of adjoining immovable property)
was void after the advent of the Constitution,
being unreasonable restriction on the right to
acquire and dispose of property under Art 19(1)
f. (Punch Guja v. Amar Singh AIR 1954 Raj,
Babulal V. Gowardhandas AIR 1954 MB 1 and
Moti Bai V. Kandkari AIR 1954 Hyd 161)
• But pre-emption as between co-sharers was
saved by the reasonable restriction of clause (5)
of Art 19.
• In Bhau Ram v. Baij Nath AIR 1962 SC 1476
the SC held the custom of pre-emption by vicinage,
though a liability attached to property, operated
as a restriction on the right to dispose of property,
not being in public interest, this restriction was
not reasonable, Moreover it divided society on the
basis of caste and religion which was prohibited
by Art 15 of the Constitution.
• By the constitution (44th Amendment) Act, 1978,
the fundamental right to property as well as Art
31 has been taken away from part III of the
constitution and reduced to a simple constitutional
right subject to law under Art 300 A.