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ANALYZING THE DIFFERENCE BETWEEN A WASIYAT AND A HIBA
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ANALYZING THE DIFFERENCE BETWEEN A WASIYAT AND A
HIBA
AUTHORED BY - PALLAVI CHIKKALA[1]
CONCEPT OF WILL/WASIYAT -
Throughout most of the world, disposal of an estate has been
a matter of social custom. A will or a testament is a legal instrument by which a person (testator) expresses wishes
as to how his/her property (movable or immovable) is to be distributed at death,
and names one or more persons, the executor, to manage the estate until its
final distribution.
A “will” according to the Section 2(h) of Indian Succession
Act, 1925, “will is the legal declaration of the intention of the testator with
respect to his property which he desires to be carried into effect after his
death.”
Under the Muslim law, the term used is Wasiyat and it is an
instrument by which a person makes an arrangement with regard to his property
to take effect after his death and it is a mechanism that can be amended during
his life and can be revoked. It is in a way the last desires of the person of
how his property would be taken care of and distributed after his death.
In Muslim Law, According to Baillie –
“A will a conferment of rights property in a specific thing
or a profit or an advantage or in gravity to take effect on the death of the
testator”.
According to Fatwa Alamgiri –
“Will is a legal declaration of the intention of a testator
with respect to his property which desires to be carried into effect his
death”.
According to the law,every Muslim can make a Wasiyat if he is
of the sound mind and has attained majority i.e. above the age of 18 years and
in case there’s a guardian taking care of him or his property then 21 years. A
minor’s Wasiyatbe void but it becomes valid upon him ratifying it after
attaining majority. A Wasiyat made by a lunatic is void and the one made by a
sane person becomes void if he becomes a lunatic subsequently.
“A person who is committing suicide, his Wasiyat is valid
under Sunni law but is invalid in case of Shias. The Shia law provides
extensive powers to a person making a Wasiyat while the powers under the Sunni
law are limited. Thus, the powers to make disposition of property are not
unlimited.”[2]
“The essentials of a Wasiyat includes for the testator to
possess the full capacity to make a will, for a will to be valid and the maker
to be an adult under the law and of a sound disposing mind, the property being
disposed off by a Wasiyat be the property of the testator before the demise,
the beneficiary to not be under any limitation that is capable of making him
unable to receive under the Wasiyat, there be an express or implied acceptance
of the bequeathed property by the beneficiary and the bequest made to a person
who is not an heir or a Muslim is valid even with the affirmation of the heirs
of the testator unless such bequest is in excess of one-third of the estate of
the testator. Unless a contrary intention is expressed, a bequest made to more than
one beneficiary shall be held in equal proportion by the beneficiaries. Where a
bequest is made to 2 beneficiaries and 1 dies before taking the bequest the
surviving beneficiary shall take the entire property. The consent of other
heirs is mandatory for a bequest made to an heir to be valid even where the
bequest is within one-third of the estate. Under by a release from the
creditors, the bequest made by a testator who is in debt is not valid to the
extent of the debt. Once the funeral cost is defrayed, a testator can validly
dispose of the entirety of his estate by Wasiyat where he does not have a heir
and a bequest made in favour of an unborn child that did not proceed from the
womb within 6 months is void.”[3]
Wills are of two kinds, oral wills, and written wills. In the
case of oral wills, it is important that whatever may be
the intention of the testator must be conveyed and proved and in case of the
inability to speak the signs and gestures must be able to prove the intention.
In the case of written wills, Wasiyat Nama or
a written will may be written or made to be written by the testator and such a
will does not require any attestation, registration, or even the signatures of
the testator.
Wills under Islamic law may be oral reduced into writing what
is relevant is the unequivocal intendment of the maker of the will. The courts
had upheld a will which was in writing but not signed or attested to as
validity made. In the case of RamjiLal v Ahmed[4]
is instructive on the aforementioned principle guiding the formality of a will
under the Islamic law. In fact, the court in extreme scenarios upheld a letter
and nodding of the head as a valid bequest. In any case, where a will is not
formality made, the evidential burden is wholly on the person seeking to establish
the making of a will to prove that a will was made.
CONCEPT OF GIFT/HIBA –
“Gift is a voluntary transfer of personal property without
consideration. A parting by owner with property without pecuniary
consideration. A voluntary conveyance of land, or transfer of goods, from one
person to another made gratuitously, and not upon any consideration of blood or
money.”[5]Gift under Transfer of Property Act
deals with section 122 to section 129. “Gift” is the transfer of certain
existing movable or immovable property made violently and without
consideration, by one person, called Donor, to another, called the Donee and
accepted by and behalf of the Donee”[6]. Chapter VII of
the Transfer of Property Act, 1882 regulating the gifts does not apply to the
‘Muslim Gifts’ or the ‘Hiba’.Every transfer of property will take effect
only when it is considered by both the parties. However, gift is an exception
to section 25 of Indian Contract Act, 1872. Where a contract or an agreement
without consideration is void to which gift is an exception[7].
Under Muslim law, gifts are
called “Hiba”. The English term ‘gift’ is of a wider connotation and applies to
all transactions where one transfer’s one’s property to another without any
consideration. The term Hiba has a narrower meaning. It is basically transferred inter
vivos i.e. between living persons.
“According
to Hedaya– “Hiba is an unconditional transfer of ownership in an
existing property, made immediately without any consideration.”
According to Ameer
Ali– “A Hiba is a voluntary gift without consideration of property by one
person to another so as to constitute the donee the proprietor of the
subject-matter of the gift.”
According
to Mulla– “A Hiba is a transfer of property, made immediately and
without any exchange by one person to another and accepted by or on behalf of
the latter.”
According to Fyzee–
“Hiba is the immediate and unqualified transfer of the corpus of the property
without any return.” ”[8]
In P.Kunheema Umma v. Aayssa Umma[9], Kerala
High Court held the requirements of immovable property under Muslim Law
are-declaration by donor, acceptance by donee and delivery of possession by donor to
donee.However, there is no consideration and necessity to transfer possession
immediately distinguishes gift from sale.[10]
According to Ameer Ali, a hiba will be valid if the
following conditions are fulfilled –
The manifestation of the wish to give on the part of the
donor, acceptance of the gift, express or implied by the donee and taking of
possession of the subject matter if the gift by the donee either actually or
constructively.[11]
The subject matter could be both corporeal or incorporeal
property. It requires the object to be in physical existence in the time of
gifting. Muslim law recognizes distinction between the corpus of the property
itself which is known as Ayn and the usufruct in the property known as the
Manafi. Muslim law admits only ownership unlimited in duration but recognizes
interests of limited duration in the use of property. All forms of property
over which dominion could be exercised or anything which could be taken into
possession or which could exist as a specific entity, or as an enforceable
right, maybe the subject matter of a valid gift. Muslim law, in this context,
makes no distinction between ancestral or self-acquired or between movable and
immovable property.
DISTICINCTION BETWEEN WASIYAT AND
HIBA -
|
DISTINCTION IN TERMS OF
|
WILL /WASIYAT
|
GIFT/ HIBA
|
|
AS
TO COMPLETION
|
Will
is aeculted after the death of the testator.
|
Gift
is completed during the life time of the donor.
|
|
AS
TO CONDITION
|
Will
is dependant upon a condition i.e. the death of the testator.
|
Gift
is operated immediately.
|
|
AS
TO REVOCATION
|
Will
can be revoked at any time before the death of the testator.
|
Gift
is usually revocable after the delivery of the possession.
|
|
AS
TO LIMITATION
|
In
a will the right of making a will is limited in two ways – in respect of the
person in whose favour the bequest is made and as to the extent to which he
can dispose the property.
|
In
a gift the right of donor to gift is unrestricted.
|
|
AS
TO EXISTENCE OF SUBJECT MATTER
|
It
is not necessary that subject matter of the will must be in existence at the
time of making the will.
|
The
subject matter of gift must be in existence at the time of making the gift.
|
|
AS
TO DELIVERY OF POSSESSION
|
Delivery
of possession is not required in case of a will.
|
In
a gift there must be delivery of the possession of the property to the donee.
|
|
AS
TO DOCTRINE OF MUSHAA
|
The
doctrine of musha has no application in case of will.
|
The
doctrine of musha is applicable in case of a gift.
|
|
AS
TO ACCEPTANCE
|
In
will acceptance by the legatee is not necessary.
|
In
gift acceptance by the donee is necessary.
|
|
AS
TO REGISTRATION
|
Registration
of will is optional.
|
Registration
of gift must be done under the Registration Act.
|
|
AS
TO INSANITY
|
The
subsequent insanity of the testator makes the will void.
|
Gift
after the delivery of the possession is irrevocable on the ground of
insanity.
|
|
AS
TO CONSIDERATION
|
A
will is always without a consideration.
|
In
some cases, there is consideration in gift.
|
[1] LLM (2nd Semester), KIIT
School of Law
[2]Mehak, (2020), ‘Concept of Wasiyat
under Muslim Law’,
https://lawsisto.com/legalnewsread/NTQxMA==/Concept-of-Wasiyat-Will-under-Muslim-Law
[3](2016), ‘Meaning and Making of a
Will/Wasiyat and its ingredients under Muslim Law’,
https://www.lawnn.com/meaning-and-making-of-a-will-wasiyat-and-its-ingredients-under-muslim-law/
[4] AIR 1952 MB 56
[6] Transfer of property act 1882,
S.122
[7] Indian contract Act 1872, S. 25
[8]Anjali Dingra, (2019), ‘Concept of
Gift under Islamic Law’,
https://blog.ipleaders.in/concept-of-gift-under-islamic-law/
[9] AIR 1981 Kerala 176
[11]Jamela vs Abdul Rahman 2001 Guj 175
Article Information
ANALYZING THE DIFFERENCE BETWEEN A WASIYAT AND A HIBA
Authors: PALLAVI CHIKKALA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/15
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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