Gift under Islamic Law

18 December 2015

Under Muhammadan Law, a share in the estate of the testator can be transferred by way of a gift (Section 149).

The three (3) essentials of a gift (“hiba“) are:

(a) there should be a declaration of a gift by the donor;

(b) an acceptance of the gift, express or implied, by or on behalf of the donee; and

(c) delivery of possession of the subject of the gift by the donor to the donee (Section 150).

If these conditions are complied with, the gift is complete.

1. The Donor

Any person, who can execute a contract, can make a gift of his property in Islam.

Like the requirements of contract, the conditions to be able to make a gift are that, the donor should be: (a) at the age of majority, (b) of sound mind; (c) by his own free will and without any pressure or coercion to make the gift; and (d) the absolute owner of the property to be gifted.

The declaration, to make a gift, by the donor must be clear and  unambiguous and reflect the absolute intention of the donor to gift his property.

A gift by a married woman is valid and is subjected to same legal rules as mentioned above.

A gift by an insolvent person is also valid provided that it is bona fide and not with the intention to defraud the creditors.

2. The Donee

The one who can receives or accepts the gift is known as the donee.

Acceptance may be made expressly or implied by conduct. Any person can receive a gift if he or she is in existence at the time of the gift.

A gift to an unborn child is invalid, unless such child is born within six (6) months of the date of gift. In such case the gift to the unborn child will be valid as it was made on the presumption that the child was actually alive and existing in the womb of the mother.

In the case of a minor, possession of the gift is given to the legal guardian of the minor.

A lawful gift can also be made to non-muslim, so long as the Donee is in existence at the time of giving the gift.

The most important component of a gift is “acceptance” and “delivery”. A gift is void is acceptance has not been given by the Donee. A gift is also invalid if the possession of the property has not passed to the Donee so that the Donee reaps the benefit of the property. If the Donor is still enjoying the benefits of the property then such gift is invalid.

A gift that does not take effect immediately is of no effect whatsoever.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Inheritance under Shia Law in Pakistan

7 January 2014

The Mahomaden Law (the “Law”) is divided into two (2) branches: Sunni law (Fiqah Hanafi) and Shia Law (Fiqah Jafariah).

Shia Law of Inheritance divides legal heirs into three (3) divisions, that is, Group 1- Parents, children and their lineal descendants, Group 2- Grandparents and Siblings, and, Group 3- Paternal and Maternal uncles and aunts of the deceased (Section 88 of the Law).

From amongst all heirs, a member of Group 1 shall always have the first right of inheritance, excluding the second and third class of heirs and similarly the second class of heirs shall succeed the third class in the right to inherit.

Illustratively, if a Shia Mahomedan dies leaving a daughter’s son (grandson), a father’s mother (grandmother (dadi)) and a full brother. The daughter’s son will succeed to the inheritance in preference to the father’s mother and the full brother. On the other hand, if a Shia Mahomedan dies leaving his parents, a daughter, a son’s son (grandson), a brother and a paternal uncle; the first four relations (parents, a daughter, a son’s son (grandson), a brother), belonging to the first class, shall be eligible to inherit.

However, as the daughter and son’s son belong to the second degree of Class 1, the daughter being nearer in degree shall exclude the grandson from inheriting the property of the deceased. This is known as the doctrine of exclusion.

1. Rights of Heirs

For a clearer understanding, below is a table, summarizing the right/share of the heirs of Group 1 to the estate of a deceased under Shia Law:

     HEIR

SHARE

1. Husband

1/4 (where there is a lineal descendant)

OR

1/2 (otherwise)

2. Wife

1/8 (where there is a lineal descendant)

OR

1/4 (otherwise)

3. Father

1/6

4. Mother

1/6 (where there is a lineal descendant)

OR

1/3 (in other cases)

5. Son

All/ Residuary (where no daughter)

OR

Double of daughters

6.  One Daughter

1/2 (where no son)

OR

½ of the share of son

7. Two Daughters (collectively)

2/3

8. Grand Children (only where all children have predeceased the testator)

Portion of their parents.

2. Transfer of Property

The Registrar of Properties in the area of Pakistan where the property is situated records all transfers. Courts look at the names on the records of the Building Control Authorities, Local Government (City Government), Excise and Taxation (Property Taxes) and Utility Companies to determine the legal ownership of inherited property in Pakistan.

3. Competent Court

The competent court to handle property and inheritance is the court of the last domicile of the deceased. If this is contested, or unknown, then the judiciary depends on where the property is located. For property located in Pakistan, a Civil District Court, or a High Court, is competent to handle inheritance issues.

4. Challenge of Gifts by Heirs

A Pakistani Muslim can freely give away any personal property before death. No one, including the legitimate heirs, can challenge this decision after the death of the donor.

Disclaimer: The above information is not legal advice as legal advice must be tailored to the specific circumstances of each case. Nothing provided herein should be used as a substitute for advice of competent counsel.

______________________

Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

How to use www.pakistanlawsite.com

3 January 2014

New entrants in the field of law often find themselves struggling with basic research tools. For the internet raised generation, http://www.pakistanlawsite.com (the “Law Site”) provides an easy, efficient and comprehensive first step to researching law, precedents, judgments, commentaries, articles etc.

Usually law firms and lawyers maintain an account with the Law Site (much like an email account) by making periodic payments for the permission to use the same.

To subscribe for a new account, you have to register on the website.
The details, payment terms and terms and conditions are provided on: http://www.pakistanlawsite.com/RegistrationHelp.asp

If there is already an account maintained then the user may insert the “username” and “password” and tick the box next to “I accept the terms and conditions” on the homepage to login to the website.

Once logged in, the left side of the Law Site offers “Case law Search”, “Advance Search”, “Statute Search”, “Courtwise Search”, “Citation Search” and “Article Search”.

1. Case Law Search
To search the relevant case law on a matter, click the tab “Case law Search” and insert the matter that you require case law on. For example, insert “ultra vires” in the search box and click enter.

The search engine will provide all those cases/judgments that have mentioned “ultra vires” in the document. To get an idea of the judgment read the “Case Notes”, however, it is standard and good practice to read the complete judgment before providing reference to the same.

If you know the particular Section of an Act/Ordinance or Rules or Regulations (the “Statute”), you may access the Statute and click on “Cases” under the relevant Section.

Access to Statutes is provided below.

2. To search for a Statute, click the tab “Statute Search”. The Statutes (Acts, Ordinances, Rules and Regulations) are provided alphabetically. However, if you are unsure about the name, you may search the statute by inserting the year in the search bar.

An easier way is however to type out the statute name (or as much as you know of it i.e. Contract Act Pakistan) in http://www.google.com and find out the correct/complete name of the same including the year. It is then easier to find it alphabetically on the Law Site.

Google also generally has the popular statutes however, the completeness and the authenticity of the same can not be verified. It is often safer to rely on the Law Site.

3. If you are aware of the citation of the case (i.e. PLD 2003 Karachi 1) then you may access the case notes of the judgment in “Citation Search”.

For beginners, the above three (3) provide the easiest and most effective research ability online.

Be sure to always confirm whether a judgment or statute is still valid and always provide the citation of the same.

Good luck!

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Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com