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11: VOID MARRIAGE?
A: A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity, affinity or fosterage, is void, the prohibition against marriage with such a woman being perpetual and absolute.
EFFECT OF A VOID MARRIAGE: A void marriage is not marriage at all. It does not create any civil rights or obligations between the parties. The offspring of a void marriage are illegitimate.
12: What is RESIDORIES?
A: Residuaries are those who take no prescribed share, but succeed to the ‘residue’ after the claims of the shares are satisfied.
13: What is meant by DEFFERED DOWER?
A: It is payable on termination of marriage by death or divorce. In general terms deferred dower is a penal sum with the object to compel the husband to fulfill marriage contract in its entirety.
Deferred dower is payable before dissolution of marriage by death or divorce. But if there is a contract to the contrary that the payment of deferred dower earlier than the dissolution of marriage, such an arrangement would be valid and binding.
The wife is not entitled to demand payment of deferred dower unless so stipulated in the marriage contract, but the husband can treat it as prompt and pay or transfer the property in lieu of it.
The interest of the wife in the deferred dower is a vested right and not subject to any contingencies. It cannot be replaced or dispelled not even her won death and under such circumstances her heirs can claim the money if she dies.
Hazrat Ali said:
“There can be no marriage without mehr it is essential for a lawful marriage whether specified or not”.
14: What is MUTAWALI?
A: According to Section 3(f) of Waqf Act, 1954, mutawali means any person appointed either verbally under any deed of instrument by which a waqf has been created or by a competent authority to be the Mutwalli/Khadim, Mujawar Sajjada or other person appointed by a Mutawalli to perform the duties of a Mutawalli and save as otherwise provided in this Act i.e., Waqf Act, 1954, any person or committee for the time being managing or administrating any waqf property in the absence of regular Mutawalli.
According to Imam Abu Yousaf, the waqf would not be invalid even if no Mutwalli is appointed by the waqif, the waqif would himself be appointed as a Mutawalli, but according to Imam Abu Hanifah and Imama Mohammad, “the waqf itself would fail if no Mutawalli is appointed”, but the view of Imam Abu Yousaf has been accepted.
APPOINTMENT OF MUTAWALLI: The first Mutawalli be appointed in the manner mentioned below:
1. If the waqif has laid down in the waqf Namah, for succession to the office of Mutawalli, the Mutawalli shall be appointed according to the directions maintained in the waqf Namah.
2. In the absence of any directions in the waqf Namah, the appointment shall be made according to any custom or usage regarding it.
3. In the absence of any custom or usage the appointment shall be made:
a. By the waqif
b. In the absence of the waqif by his legal representative.
c. In the absence of legal representative, by the out going Mutawalli on his death bed.
d. In the absence of all the Court may appoint a Mutawali.
15: What is SHARER?
A: Shares are those who are entitled to a prescribed share of inheritance.
16: What is Meant by SPECIFIED OR PROPER DOWER?
A: Dower may be ‘specified’ or ‘proper’ according as whether the amount of dower has been fixed or not.
When the amount is fixed between the parties, it is called ‘specified dower’. Such settlement usually takes place before or at the time of marriage. The may even be increased after the marriage.
If the amount of dower is not fixed the wife is entitled to ‘proper’ dower, even if the marriage was contracted on the express condition that she should not claim any dower. While determining the amount of proper dower, the following considerations are taken into account:
1. Personal qualities of the wife
2. Traditions prevailing in the house of wife’s father
3. Dower settled upon other sisters of the wife.
17: What is CONTINGENT GIFT?
A: A gift which is made to take effect on the happening of a certain event is called a contingent gift. Such gift cannot be made and is void:
ILLUSTRATIONS:
1. A makes a gift of a certain property t B with a condition that B shall be transfer the property. The restraint against alienation is void and B takes the property absolutely.
2. A makes to B a gift of a cow attaching the condition that he shall not sell the mil. The condition is void.
3. A makes a gift to B to take effect ton B’s marrying C. The gift is void.
18: What is Meant by WILL?
A: According to Fatawa Alamgiri, it is a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
According to Islam, a bequest is a tamleek (passing of possession) of property from a dying person to any other hiring person. A bequest in Islam is a contract.
A will may be defined as a legal declaration of the intention of a testator with respect to his property which he desires to be carried into affect after his death.
ESSENTIALS OF WILL: The following are the essentials of will:
1. Declaration by testator (free consent)
2. Acceptance of living person (Legatee)
3. Testator must:
a. major (under the majority Act, but not under the Islamic law)
b. Sound mind
c. Possessed with ownership of the property
d. Expression of the clear intention either express or implied.
4. The legatee must be competent to take the legatee.
5. The subject of bequest must be valid one.
6. Bequest must be within the limit imposed on the testamentary power of a Muslim.
19: What is DEFECTOR GUARDIAN?
A: A person may neither be a legal guardian, nor a guardian appointed y the Court, but may have voluntarily placed himself in charge of the person and property of a guardian. Such a person is called de facto guardian.
Powers of de facto guardian. A de facto guardian has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is void.
20: GIFT IN FUTURE?
A: A gift cannot be made of anything to be performed in future nor can be made to take effect at any future period whether definite or indefinite.
ILLUSTRATIONS:
1. A makes a gift to B of “the fruit that may be produced by his palm tree this year”. The gift is void as being a gift of future property.
2. A Muslim executes a deed in favour of his wife purporting to give to the heirs in perpetuity Rs 4,000 every year out of his share of the income of certain Jaghir villages. The gift is void, as being a gift of a portion of the future revenue of the village. It was also held that a gift of future revenue, being in the nature of usufruct is valid.
3. A executes a deed of gift in favour of B, containing the words “so long as I live. I shall enjoy and possess the properties, and I shall not sell or make gift to anyone, but after my death, you will be the owner”. The gift is void, for it is not accompanied by delivery of possession and it is not to operate until after the death of A.
4. A is entitled to receive a specified share in the offerings made by pilgrims at a certain shrine. A may make a valid gift of the right to receive such share. Here the thing gifted is “the right of the donor to receive a fixed share in the offerings after they have been made”.
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