Unit 3 – Muslim Law

  •       3.1  Hiba (Gift) and Marz-Ul-Maut Gift and Acknowledgment
  •       3.2  Succession

◦        (a) General Principles

◦        (b) Principles of Succession

◦        (c) Doctrine of representation and stripital Succession

◦        (d) Doctrine of Aul and Radd

  •       3.3  Shuffa (Pre-Emption)
  •       3.4  Wasiyat (Will)
  •       3.5  Waqf

 

 

3.1 Hiba (Gift) & Marz-Ul-Maut

The “Plain English” Intro

Hiba is a transfer of property made immediately and without any exchange (money). Marz-ul-Maut is a “Death-bed gift,” made by a person who under the immediate apprehension of death.

Day-to-Day Analogy

Think of Gifting a Watch. For it to be a legal gift, you can’t just say “it’s yours” while keeping it in your drawer. You must physically hand it over, and the other person must take it. If you give it away only because you think you’re dying in the next hour, the law treats it more strictly (like a Will).

The “Checklist” (3 Essentials of Hiba)

To be valid, a gift must have:

  1. Declaration (Ijab): The donor clearly states they want to give the gift.
  2. Acceptance (Qubul): The donee accepts the gift.
  3. Delivery of Possession (Kabza): The donor must physically hand over the property. Note: A gift of “future property” is void.

3.2 Succession: Aul, Radd, and Representation

The “Plain English” Intro

Muslim succession doesn’t follow “joint family” rules. Every heir takes a specific, individual share. Aul and Radd are mathematical “fixers” used when the total shares don’t add up to exactly 1.

The Legal Backbone (The Fixers)

Concept

Scenario

The Solution

Aul (Increase)

Total shares exceed 1 (e.g., $1.2$).

The denominator is increased, so everyone’s share is slightly reduced.

Radd (Return)

Total shares are less than 1 (e.g., $0.8$) and no other heirs exist.

The leftover portion is returned to the existing heirs proportionately.

Per Capita vs Per Stirpes

How shares are divided.

Sunnis follow Per Capita (count heads). Shias follow Per Stirpes (divide by branch/stock).

3.3 Shuffa (Pre-Emption)

The “Plain English” Intro

Shuffa is the “Right of Substitution.” It allows an existing neighbor or co-owner to “step into the shoes” of an outside buyer and purchase a property at the same price.

Day-to-Day Analogy

Imagine your Neighbor decides to sell their house to a complete stranger who wants to open a noisy factory. Because you share a wall, the law of Shuffa gives you the first right to buy that house at the price the stranger offered, keeping the stranger out.

3.4 Wasiyat (Will)

The “Plain English” Intro

A Wasiyat is a legal declaration of a person’s intent regarding their property after death. Unlike other laws, a Muslim cannot will away their entire property.

The “Checklist” (The 1/3rd Rule)

  • The Limit: A Muslim can only will away 1/3rd of their total property.
  • The Reason: To protect the legal heirs from being completely disinherited.
  • Heir Consent: If you want to give more than 1/3rd, or give anything to a legal heir, the other heirs must consent after the testator’s death.

3.5 Waqf

The “Plain English” Intro

Waqf is the permanent dedication of property for a purpose recognized by Muslim law as religious, pious, or charitable. Once a property is “Waqf,” it belongs to God and cannot be sold or transferred.

The Legal Backbone

Term

Role

Wakif

The person who dedicates the property.

Mutawalli

The manager/superintendent of the Waqf (he is NOT the owner).

Waqf-alal-Aulad

A private Waqf created for the benefit of the donor’s own family/descendants.

Visual Flowchart Description

  1. Donor (Wakif) dedicates property $\rightarrow$ 2. Ownership transfers to God $\rightarrow$ 3. Manager (Mutawalli) handles income $\rightarrow$ 4. Beneficiaries receive the charity/benefit.

Exam “Golden Key”

“The right of Shuffa is a right of substitution, not a right of re-purchase.”

Use this to clarify that a pre-emptor simply takes the place of the buyer in the original deal.

 

 

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