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** Grounds for dissolution of marriage.—

The Indian Divorce Act governs divorce among the Christian couples in India. Divorce is the legal dissolution of
the marital union between a man and a woman. According to this act, the separation is granted by the court of law
after receiving a petition from either wife or husband. Divorce is followed by granting alimony, child custody,
and child visitation, distribution of property and distribution of debts. Before opting for a divorce, the Christian
couple should be aware of the fact that a divorce procedure in our country. In this article, we will look at The
Indian Divorce Act in detail.

**The Indian Divorce (Amendment) Act, 2001

The Indian Divorce Act, 1869, was amended, and the new Act was introduced. This Act was repealed, and the
Indian Divorce (Amendment) Act, 2001, was enacted with the assent of the President on 24th September, 2001.
This amended Act not only revolutionized the Christian divorce laws but also made a positive impact towards the
goal of a uniform divorce law. The Act was amended to have a uniform civil code for all the citizens of India. The
objective can be achieved by reforming various personal laws.

**Indian Divorce Act 1869 section 10 outlines the grounds on which a Christian man or woman may file for
divorce in our country. This law’s jurisdiction extends to all Christian marriages except in the state of Jammu and
Kashmir. Any marriage solemnized before or after the Indian Divorce (Amendment) Act, 2001 can be dissolved
on the following grounds:
(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment)
Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the
ground that since the solemnization of the marriage, the respondent
(i)has committed adultery; or
(ii)has ceased to be Christian by conversion to another religion; or
(iii)has been incurably of unsound mind for a continuous period of not less than two years immediately preceding
the presentation of the petition; or
(iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been
suffering from a virulent and incurable form of leprosy; or

(v)has, for a period of not less than two years immediately preceding the presentation of the petition, been
suffering from venereal disease in a communicable form; or
(vi)has not been heard of as being alive for a period of seven years or more by those persons who would naturally
have heard of the respondent if the respondent had been alive; or
(vii)has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or
(viii)has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after
the passing of the decree against the respondent; or
(ix)has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or
(x)has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner
that it would be harmful or injurious for the petitioner to live with the respondent
.(2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has,
since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
#####
10A. Dissolution of marriage by mutual consent.—
Dissolution of Marriage by Mutual Consent
The Christian divorce law in India also has a provision where the couple can file for divorce mutually when they
both agree that their marriage is not working out. This is outlined in section 10A of the Indian Divorce Act. To
file for a mutual divorce:
 The couple must have lived separately for at least two years
  They both agree that they are unable to live together
 They do not withdraw the petition within 6-18 months of filing the petition in the district court

(1)Subject to the provisions of this Act and the rules made there under, a petition for dissolution of marriage may
be presented to the District Court by both the parties to a marriage together, whether such marriage was
solemnized before or after the commencement* of the Indian Divorce (Amendment) Act, 2001, on the ground
that they have been living separately for a period of two years or more, that they have not been able to live
together and they have mutually agreed that the marriage should be dissolved.

(2)On the motion of both the parties made not earlier than six months after the date of presentation of the petition
referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn
by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such
inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a
decree declaring the marriage to be dissolved with effect from the date of decree.

Salient points :

 Earlier the Section 10A of the Indian Divorce Act mandated a 2-years waiting period for the
application of divorce.
 The Kerala High Court itself, in Saumya Ann Thomas v. The Union of India & Ors. (2010) held that
the stipulation of a period of two years as the minimum mandatory period under Section 10A was
arbitrary and oppressive and the period of two years has to be read as one year.
 New Rules for Divorce in India 2021
There have been new rules and historic judgments that have set precedents for new divorce laws in our country.
Since January 2022, domestic violence, dowry harassment, and child marriage have been included as valid
reasons for divorce. Let us explore some of these.
 6-Month Cooling-Off Period Not Mandatory
While the 6-month cool-off period is a good step to discourage hasty decisions, it can be waived off nowadays. In
a recent historic hearing, the Delhi High Court granted divorce to a mutually estranged couple sans the 6-month
cool-off period observing, “However, keeping them tied to a legal bond would only mean snatching away from
them the opportunity ever to lead a fulfilling life.”
 Adultery is not a Criminal Offence
Adultery is still a valid ground for divorce according to the Indian Divorce Act 1869. However, it is no longer a
punishable criminal offense. The law has evolved since ancient times to recognize that adultery is an immoral
choice, not a sin, and hence has stopped penalizing adulterous partners.
 Only Civil Courts Can Grant a Divorce
This is a great step to stop illogical divorces across the country. No personal or religious law is now able to
govern divorce in our country. Only a civil court has the jurisdiction to dissolve a marriage or declare its nullity.

Conclusion
The Indian Divorce Act, 1869, was considered outdated and harsh. So it was repealed as it discriminates on the
basis of gender as well as religion. It was ultra vires to the Constitution of India, as it is against the right to
equality. The Indian Divorce (Amendment) Act, 2001, was introduced to remove all this discrimination and
provide a big step towards the goal of uniformity. It aims to provide a uniform divorce law for the whole country.
This article highlights the historical background of the Act and how it applies to Christian couples in India.
However, it should be noted that the Indian Divorce Act, 1869, has been repealed and replaced by the Personal
Laws (Amendment) Act, 2019, which came into effect on 1st August, 2019. Therefore, the Indian Divorce Act,
1869, is no longer applicable for Christian couples seeking divorce in India.
**The Process to File a Divorce
The divorce process in India is usually regulated by the provision of the Code of Civil Procedure, 1908. The
following steps must be followed:
1. Whoever files the divorce, the man or wife will have to hire a lawyer first who will inform them of the
procedure
2. The lawyer then files a divorce petition at District Court
3. The court will send a copy of the petition to the spouse
4. The spouse can either contest the divorce or mutually agree
5. In case the divorce is mutually agreed upon, the couple will have to prove that they were living separately
for more than a year
6. A cooling-off period of six months is given to the couple to reconsider
7. The court meets again after the cool-off period and if the parties still want a divorce, the court dissolves
the marriage.

**Null and Void Marriages

The court resolves the right to declare marriages null and void according to the Indian Divorce Act 1869 on a
few grounds. Any husband or wife may file to declare their marriage null and void if:
1. The partner is impotent at the time of the marriage and even while filing the null and void suit
2. The parties are within the prohibited degree of consanguinity
3. Either party was mentally unsound at the time of the marriage
4. Either party had a living spouse at the time the marriage was solemnized.

**RESTITUTION OF CONJUGAL RIGHTS

SECTION 32. PETITION FOR RESTITUTION OF CONJUGAL RIGHTS.

32.Petition for restitution of conjugal rights.‐When either the husband or the wife has without reasonable
excuse, withdrawn from the society of the other, either wife or husband may apply, by petition to the District
Court, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in
such petition, Hand that there is no legal ground why the application should not be granted, may decree restitution
of conjugal rights accordingly.

Concept of Dower

Dower also referred as Mahr in Muslim Law concept. It is that money or property which a husband must pay to
the wife to acknowledge her dignity as his wife.

Definition

 Dower is a sum of money or other property promised by the husband to be paid or delivered to the wife in
consideration of the marriage and even where no dower is expressly fixed, the law confers the right to dower
upon the wife as necessary effect of the marriage.
 According to Ameer Ali, Dower is a consideration which belongs absolutely to the wife.
 According to Mulla, Dower is a sum of money or other property which the wife is entitled to receive from the
husband in consideration of the marriage.

Nature of Dower

 This concept was introduced by Prophet Mohammad and made obligatory by him in the case of every marriage.
 The wife is considered to be the property and the dower as her price.
  It is an essential feature of marriage with the result that even if no dower is fixed the wife is entitled to some
dower from the husband.
 The marriage is valid even though no mention of dower is made by the contracting party.

Object Of Dower
The object of Dower are:

i. to enforce an obligation on husband as a mark of respect towards his wife,

ii. to place a check on the misuse of power to give divorce by the husband,
iii. to provide for her livelihood on the dissolution of her marriage, so that she can lead her dignified life after
the death of her husband or divorce.

Importance Of Dower
 According to Fatwa-i-Quazi Khan:
Mahr is so necessary to marriage that if it were not mentioned at the time of the marriage, or in the
contract, the law will presume it by virtue of the contract itself.

Dower is so essential under the Muslim Law of marriage that even if there is an agreement made by the
wife before marriage that she will revoke her right of dower and will not claim for dower in future or she
agrees to marry without any dower, that agreement will be invalid according to law. This is done to
protect the wife from the power of husband to give divorce and to prevent its misuse. Under Muslim Law,
husband can give divorce to his wife as his will so the object of dower is to prevent the misuse of such
power and also to prevent polygamy.

Increase in Dower

 The husband may at any time after marriage increase the dower, likewise, the wife may remit the dower wholly
or partially.
 A Muslim girl who has attained puberty is competent to relinquish her dower, but such remission should be with
free consent.

Non- Payment of Dower

 Muslim law confers upon a wife or widow the following rights to compel payment of her dower:
o Refusal to cohabit
o Right to dower as debt
o Right to retain her deceased husband’s property

Concept of Dower in Muslim Law

Muslim law recognizes dower as an essential component of a marriage contract. Unlike a civil contract, the
consideration in a Muslim marriage is the dower itself. The husband is obligated to pay the dower to the wife as a
sign of respect and acknowledgement of her rights. It signifies the husband’s commitment to support and provide
for his wife throughout the marriage and in the event of its dissolution.

Legal Perspectives on Dower

In India, where Muslim Personal Laws are recognised, there is no specific definition of the dower amount.
Different High Courts and the Supreme Court have offered varying interpretations and concepts relating to dower.
However, it is universally acknowledged that dower holds great importance in Muslim law, ensuring the wife’s
well-being and preventing her from falling into helplessness.

Types of Dower in Muslim Law

Muta Dower

Muta marriage is one of the kinds of dower in Muslim Law. It refers to a marriage that is contracted for a specific
period of time. In the case where the marriage is not consummated, the woman is entitled to receive only half of
the agreed dower. However, if the marriage is consummated, the wife is entitled to the full dower amount.
However, if the wife decides to leave the marriage before the specified duration, she will not be entitled to the
dower or “Mehr”.

Specified Dower

Specified dower is another type of dower in Muslim Law. It refers to a specific amount of money or property that
is mutually agreed upon by the parties involved in the marriage. The amount of dower differs between Sunni Law
and Shia Law. Under Sunni law, the minimum amount entitled to the woman is 12-13 Rupees, which is
equivalent to at least 10 Dirhams, with no upper limit specified.

In contrast, Shia law does not provide a specific lower amount and the maximum amount is also not specified. It
is important to note that the dower payment should be based on the financial capability of the husband and a poor
man should only pay what he can afford in terms of money or property.

If the dower amount has been determined prior to or at the time of the marriage, it is referred to as a specified
dower or Mahr-i-musamma. In the case of Kukkiya Begum vs Radha Kishan, AIR 1944 All 241, the Allahabad
High Court ruled that the amount of dower can be increased by mutual consent after the marriage.

Prompt Dower

The dower payment is further categorised into prompt payment and deferred payment. A prompt dower, as the
name suggests, must be paid promptly upon demand. The husband is obligated to pay the dower as soon as the
demand is made, usually before or immediately after the marriage ceremony and before consummation.

Consequently, the husband’s right to restitution of conjugal rights arises only after the dower payment has been
fulfilled. Therefore, it can be inferred that the dower should be paid before the marital relationship is
consummated.

In the case of Rabia Khatoon vs Mukhtar Ahmed, AIR 1966 All 548, the Allahabad High Court ruled that a
wife may refuse to live with her husband or engage in sexual intercourse until the prompt dower has been paid. It
was further stated that the prompt dower is payable upon demand and proof of sexual intercourse is not necessary
to claim payment.

Deferred Dower

Deferred dower, also known as Mahr-i-Muwajjal, refers to a dower that is not immediately payable after the
consummation of the marriage. It becomes due only upon the occurrence of a specific event, the expiration of a
particular period or the dissolution of the marriage through death or divorce. The wife is not entitled to demand
the payment of deferred dower unless it has been mutually agreed upon by the parties.

Proper Dower
Proper dower is one of the types of dower in Muslim Law. It is determined when the husband and wife have not
predetermined the amount of dower to be paid. In such cases, the wife has the right to determine a reasonable and
appropriate dower amount based on her own judgment. It is important to note that the proper dower is not
dependent on the husband’s earnings or financial ability.

Conclusion
There are 4 types of Dower in Muslim law. Muta dower, a temporary marriage arrangement, outlines specific
conditions for the payment of dower based on consummation and duration. Specified dower establishes a fixed
amount or property agreed upon by the parties involved, with variations between Sunni and Shia law. Prompt
dower necessitates immediate payment, ensuring that the husband fulfils his financial obligations before the
marriage is consummated. Deferred dower, on the other hand, becomes payable upon certain events or the
dissolution of the marriage.

Lastly, proper dower offers flexibility for a wife to determine a suitable dower amount when no pre-decision has
been made, irrespective of the husband’s financial status. Each type of dower serves a distinct purpose and is
subject to specific conditions as per legal traditions and agreements between the parties.

Classification Of Dower
Dower can be classified into two:

i. Specified Dower (Mahr-i-Musamma)- This type of Dower is further divided into two:
a. Prompt Dower
b. Deferred Dower
ii. Customary (Proper) Dower (Mahr-i-Misl).

i. Specified Dower

When the amount of dower is specified in the marriage contract, then that dower is known as Specified
Dower. The amount of dower may be settled before or during, even after the marriage ceremony. If the
marriage is contracted by the guardian due to minority or lunacy of husband, then guardians can fix the
amount of dower and the amount fixed by the guardian is binding in nature on boy, after attaining puberty
he cannot take plea that he was not a part of the contract when it was made and even after the marriage of
minor or lunatic boy guardians can fix the amount of dower if the boy is still minor or lunatic.

Husband can fix any amount of dower as per his will even if it doesn’t leave anything for the heirs after
the payment of dower but according to Hanafi School the amount of dower in no case should be less than
10 dirhams and 3 dirhams according to Maliki School. In Shia Law there is no minimum amount fixed for
the amount of dower.

But if there are any Muslim husbands who are unable to give 10 dirhams to their wives due to poverty
then in such cases Prophet Mohammad has directed them to teach Quran to their wives in exchange for the
payment of dower. At present there is no maximum amount of dower and minimum amount is no longer
in practice as it is very low according to the present situation.

Specified Dower if further classified into:

a. Prompt Dower (Muajjal Mahr)

Prompt dower becomes payable immediately after the marriage ceremony. According to Ameer Ali, if the
payment of prompt dower is not made by the husband, then wife can refuse to enter into the conjugal
 domicile until the amount of prompt dower is paid.
Following points of Prompt Dower are:
i. Prompt Dower becomes payable immediately during or after the marriage ceremony and it must be
paid on demand, unless the other parties have agreed for the delay. If the dower is not paid then
wife can refuse to live with her husband until the amount is paid and in case the wife is minor then
her parents can refuse to send her to her husband’s house and husband has to give maintenance to
her wife even if she is not living with him.

ii. If the marriage has been consummated that does not convert the prompt dower into deferred
dower. After consummation, wife cannot refuse to live with her husband on the ground of non-
payment of dower, but she can sue her husband for the payment of dower. And if the wife refuses
to live with her husband after consummation due to non-payment of dower, then Court can pass
the decree of restitution of conjugal Rights on the condition of payment of dower by husband.

iii. Husband can only file petition for the restitution of conjugal Rights if the amount of dower is not
paid when the marriage has been consummated.

iv. Prompt Dower should be paid on demand, the limitation period of filing the suit for non-payment
of dower is three years. The time would begin from the date when the demand was made and was
refused by the husband during the subsistence of marriage. If the wife does not make any demand,
then the limitation period will begin from the date of dissolution of marriage either by death or
divorce.

b. Deferred Dower (muwajjal Mahr)

Deferred Dower becomes payable after the dissolution of marriage either by death or divorce.
Following points of Deferred Dower:
i. Deferred Dower is generally paid after the dissolution of marriage but any agreement in which it is
mentioned that deferred dower will be paid before the dissolution marriage, then that kind of
agreement will be binding and will not be considered as void.
ii. Wife cannot claim for the payment of deferred dower during the lifetime or during the subsistence
of marriage but husband can treat it as prompt dower and can pay or transfer property, and that
payment will be valid and will not be considered as fraudulent preference unless there is actual
insolvency of husband involved.
iii. In case of death of husband, widow can waive off her right to claim for the payment of deferred
dower, but this act must be done on her free consent.
iv. The interest of wife in deferred dower is vested and it is not contingent. Deferred dower does not
depend upon the happening of certain contingencies not even on the death of wife, in case of death
of wife her legal heirs can claim for the money payable under deferred dower.

Difference Between Sunni And Shia Law Relating To Dower

Sunni Law Shia Law
The minimum amount of specified dower is 10 dirhams. There is no minimum amount of specified dower.
There is no maximum amount of proper dower. The maximum amount of proper dower is 500 dirhams.
The maximum amount of specified dower is also 500
There is maximum amount of specified dower.
dirhams.
In case the marriage is dissolved by death of husband, Payment of dower will not be due if the marriage has
and the payment of dower is not specified or it has been not been consummated.
agreed that no payment of dower will be done by the
husband, in such case the amount will be due whether
the marriage has been consummated or not.
Any agreement which states that no dower shall be due Such agreement will be valid if the agreeing party are
is void. sane and adult.
In the absence of agreement, a reasonable part of dower The whole amount of dower will be considered as
will be considered as prompt. prompt dower.

Classification of dower

The dower may be classified into:

 Specified dower: In this kind of dower, the amount of dower is stated in the marriage contract. The dower may be
settled between the parties either before the marriage or at the time of marriage or after the marriage. If the
marriage takes place of a minor or lunatic boy then the amount of dower can be fixed by the guardian. The
husband can settle any amount of dower. However, he cannot settle the amount of dower less than ten Dirhams
according to Hanafi law and three Dirhams according to Maliki law. Shia law does not state any minimum amount
of dower. In the case of those husbands who are very poor and are not in a position to pay ten Dirhams, then
according to the Prophet, they are directed to teach the Quran to the wife instead of the dower. There is no
maximum limit on the amount of dower. The specified dower can be classified into:

1. Prompt dower: It is payable immediately after marriage on demand.

2. Deferred dower: It is paid after the dissolution of marriage either by death or divorce.

 Proper or customary dower: If a marriage is completed without the amount of dower fixed in the marriage
contract or marriage is completed on the condition that the wife should not claim any dower, then the wife is
entitled to proper dower. The amount of proper dower is decided by taking into consideration the amount of
dower settled upon other female members of the father’s family. The proper dower is regulated with reference to
the following factors:

1. Personal qualifications of the wife. Like her age, beauty, virtue, fortune, etc.
2. Social position of her father’s family.
3. Dower given to her female paternal relations.
4. Economic conditions of husband.
5. Circumstances of time.

Under Sunni law, there is no maximum limit for a proper dower but under Shia law, the proper dower should not
exceed 500 Dirhams.

Difference between Deferred Dower and prompt Dower under muslim law;

 Prompt dower is defined as the dower or portion thereof that is due at the end of the marriage or as
soon as the woman makes a claim for it.

 Where as deferred dower is a specified dower that is not paid immediately after marriage but is
instead paid upon the occurrence of a specific event, the passing of a specific amount of time, or the
dissolution of the marriage.

 Prompt dower is immediately due and payable upon request following the marriage where as
Differed dower that is paid after a marriage has been dissolved by death or divorce is known as
deferred dower.

 Prompt dower that is paid immediately must be requested by the wife. Where as in deferred dower, the
wife cannot seek it unless it has been agreed.
What is a Gift under Muslim Law?
A gift is generally a transfer of Ownership of a property by a living person to another living person without any
consideration.

In Muslim law, a gift is a voluntary transfer of Ownership in an existing property from one person (donor) to
another (donee) without any consideration or payment in return. Gift is an essential aspect of Islamic
jurisprudence rooted in the principles of generosity, charity and the spirit of giving in Islam.

Gift is the transfer of certain existing movable or immovable property made on a voluntary basis and without
consideration by one person named the donor to another named the donee and accepted by or on behalf of the
donee, followed by an immediate surrender of the possession of the gift subject. Gift is therefore the transfer of
property. The transferor shall be entitled to all the rights of the donor via this transfer.

The donor shall have the title, the right to own and enjoy the property, and the right to sell it at his own pleasure if
he is otherwise competent to do so. 'Gift' has a wider meaning than Hiba, but it is usually understood as 'Hiba'.
Hiba is defined as 'a gift of something the donor can draw a profit from.' It is also explained as an unconditional
transfer of property made without any exchange or consideration by one person to another and accepted by or on
behalf of the latter.

Essentials of a valid gift:

 In Islamic law, the concept of a gift is considered an integral part of contract law. For a valid gift under
Muslim Law, three essential elements must be present: an offer (izab), an acceptance (qabul) and a
transfer (qabza).
 An illustrative case, Smt Hussenabi vs Husensab Hasan AIR 1989 Kar, involved a grandfather offering
his grandchildren a gift. He duly accepted the gift on behalf of his minor grandchildren.
 However, there was no express or implied acceptance from his adult grandson. Consequently, the
Karnataka High Court ruled that the gift concerning the major grandson was invalid due to the absence of
all three elements. Nevertheless, the gift remained valid with respect to the minor grandchildren as the
necessary elements were satisfied in their case.
 Therefore, the conditions that must be satisfied for a valid gift in Muslim law are as follows:

There are three essentials of a valid gift:

1. Declaration (Ijab) by the donor.

2. Acceptance (Qubool) by donee.
3. Immediate delivery of possession of the property (Qabza).

Before jumping onto the essentials, it would be apposite to have a look at a couple of requirements which are:
Parties to the gift (The Donor and The Donee) and the subject matter of gift.

The Donor is any Muslim, who is experienced and knowledgeable, and competent to enter a contract, can donate
his belongings. Many people in ordinary cases are 18 years of age when gift competencies are determined and 21
years after the court has appointed the guardian.

The Donee is someone to whom the competence to contract is not an essential requirement. A donee can be a
minor or even a person with an unsound mind. The only requirement is that he be a legal person capable of
holding property. A mosque is a legal person and is competent to be a donee. The Donee may be of any sex, age,
or religion. He might be a relative or even a stranger. Property may be validly donated to a female regardless of
her marital status.
The first essential to the completion of the gift is the offer and the second is acceptance of the gift. The
acceptance must be followed by immediate delivery of possessions. If these three conditions are satisfied, the gift
shall be valid and complete.

1. Declaration

The donor must express a clear and unambiguous intention to make a gift under Muslim Law. The declaration
should leave no room for doubt regarding the donor’s willingness to transfer Ownership.
Without any haziness, the offer to make a gift must be clearly consensual and expressed deliberately. For a
gift to be termed as valid, the declaration is one of the pre-requisites.[3] One of the key aspects is that this
declaration, from the point of view of donor, must not be ruined with a mala-fide intent to defraud rather it
must be real and bonafide.[4]

The declaration requires some witnesses or statements stating the gifting of the property by the donor to
the donee, without which it cannot be made in segregation.[5] In Mohammad Mustafa v. Abu Bakr, it
was laid by the court that, any gift made under any sort of force or undue influence or by fraud cannot be
termed as a declaration and the gift made was void.[6]

2. Acceptance

The gift under Muslim Law becomes valid only when the donee accepts it. The gift is considered void if the donee
does not accept his acceptance. In the case of a minor, the legal guardian may accept the gift on the minor’s
behalf.
Another requisite is to accept the gift by a competent donee or a competent person on his behalf. In Musa
Miya v. Kadar Bux, the donor declared the gift to his grandchildren in front of his friends. Nonetheless,
as there was no acceptance by the father for the delivery of possession of the property, it was held that if
the father is alive and the sole legal guardian, only he can act as a guardian of the property of his minor
sons and without his acceptance the gift would be invalid and therefore, the gift was held to be incomplete
and invalid.[7] If the gift is accepted by the mother, then also it is considered to be invalid and incomplete.
[8]

If the minor is under the care and protection of a person other than the guardian, he can only validly accept
the donation on behalf of the minor because there is no guardian. But in the case of a younger girl married
to her husband after having obtained puberty, the husband may, even with his father's presence, validly
accept the gift for her.

3. Delivery of Possession

A crucial aspect of a valid gift is the physical delivery of possession by the donor and the acceptance of possession
by the donee. In Muslim law, possession means having control and benefiting from property. The key
consideration is who, between the donor and the donee, is enjoying the benefits of the property. If the donor
continues to derive the benefits, the delivery of possession is not considered complete, and the gift would be
invalid.
The delivery of possession must complete the other two requisites. It could be either actual or
constructive. Here, there is a distinction in the understanding of a gift from The Transfer of Property Act,
1882. In this, there is no talk of urgent delivery of possession and it can be done at a later stage physically
depending upon the agreement without altering the authenticity of the gift. However, in Muslim law, the
delivery of possession is an important aspect of a gift.

And the gift becomes valid only after the possession of it.
 The donor must not leave any stone unturned in divesting himself from the ownership and control of the
property to donee. In the case that the gift is written and the gift act is a statement that possession was
delivered, the property would be a delivery of possession if it was given and acknowledged by the donor,
but mere admission to the deed without further proof that the possession was given would not be definitive
in deciding the delivery.

Following are the criteria for the validity of a gift which were laid in Abdul Rahim v. Sk Abdul Zabar:

 Donor should be sane and major and must be the owner of the property which he is gifting;
 The thing gifted should be in existence at the time of Hiba;
 If the thing gifted is divisible, it should be separated and made distinct;
 The thing gifted should be such property to benefit from which is lawful under the Shariat;
 The thing gifted should not be accompanied by things not gifted, i.e., should be free from things
 which have not been gifted;
 The thing gifted should come in possession of the donee himself or of his representatives, guardian, or
executor.

**When the delivery of possession is not necessary:

There are some cases where the delivery of possession is not necessary.

 Donor and donee living in the same property:

In a case where the subject matter of the gift is a house in which both the donor and donee are living together, any
delivery of possession is not important. But there must be the bona fide intention of the donor for the transfer of
property.

In the case of Humera Bibi v. Najmunnissa, in this case, was an old lady who used to live with his nephew. She
transferred the property to his nephew who was living with her in the same house. However, when the property
was given on rent, the rent was collected in the name of the donee. The court held the gift valid.

 Gift by the spouses to each other:

Where a gift of immovable property is made by one spouse to the other the delivery of possession is not
mandatory.

In the case of Fatma Bibi v. Abdul Rehman, the husband made an oral declaration of transfer of property in the
name of his wife. The stepson who was living with the mother challenged the validity of the gift as no delivery of
possession was made. The court held that the gift was valid.

 Gift of property already in possession of donee:

In the cases where the possession of the property is already with the donee, only the declaration by the donor and
acceptance by the donee is enough to make this gift as a valid gift.

For example- If A is having a car and he is using it for his own use and now his father transfers it to his name, the
declaration by the father and the acceptance by the son is enough to make this gift as a valid gift.

Revocation of a Gift under Muslim Law

Although old traditions show us that the prophet was against the system of revocation of gifts. Today, it can be
seen that it is the well-established principle of Muslim law that all the gifts which are made voluntarily can be
revoked. The revocation of the gift of different kinds depends upon the different schools and Shia’s and Sunni’s.
The Muslim lawgiver categorised the types of revocation under two different types:

 Revocation of gifts before the delivery of possession

 Revocation of gifts after the delivery of possession.

Under Muslim law, the revocation of gifts before the delivery of possession is allowed. Suppose A has transferred
the property to B by the way of gift-deed. Now, if A revokes his gift and no delivery of possession has taken
place, this revocation is valid.

One the other hand, declaration of revocation of gifts by the donor after the delivery of possession is not sufficient
to revoke a gift. Until and unless the decree of a competent court is passed, the donee can use the property in any
manner he wishes to.

Under Muslim law, all voluntary transactions are generally revocable. In Hanafi law, even a gift is considered
revocable, though it is considered abominable to revoke a gift. In contrast, in Shia law, a gift can be revoked by a
mere declaration, while in Sunni law, revocation can only occur through the intervention of a court of law or with
the consent of the donee.

However, there are certain situations where a gift becomes absolutely irrevocable:

a. when either the donor or the donee is dead.

b. where the donor and the donee are husband and wife or vice versa.
c. where the donor and donee are within prohibited degrees of relationship.
d. where the donor has received a return for the gift.
e. where the subject-matter of the gift has been lost, destroyed, or has been converted in such a manner that it
has lost its identity.
f. where the subject-matter has passed out of the hands of the donee by a transfer such as by way of a sale,
gift etc.
g. where the gift has substantially increased in value.
h. where the gift was for obtaining religious merit (Sadaqah)
i. It is therefore an irrevocable gift from one man to his wife, from one brother to his sister, from one father
to another. Likewise, the gift may not be revoked if the donator sells the object or dies after the gift.

Under Shia law, a gift to any blood relationship whether it is irrevocable. However, the gift is revocable where the
donor and the donee are part of the husband and the wife relationship. So, a Muslim's gift to the daughter of the
sister of his father (the first cousin), under Shia law, is irrevocable but can be repealed according to Sunni law. On
the contrary, under Sunni law a gift from the man to his woman is irrevocable and under Shia law can be revoked.

A mere statement or cancellation of the gift act shall not cancel the gift unless the donor has given it its consent
and a court decree are essential for a valid cancellation of the gift. However, according to Shia law, even a mere
assertion of cancellation by the donor would suffice to render a legitimate cancellation and the court would not be
required.[17]

In these specified circumstances, the gift becomes irrevocable, and the donor loses the right to revoke it. It is
important to note that the rules regarding revocability may vary slightly between the Shia and Sunni schools of
thought in Islamic law.

Case Laws

 Hafiza Bibi v. Shaikh Farid (2011):

o The Supreme Court held that an oral gift fulfilling all three essentials of a valid gift will be
considered as complete and irrevocable gift.
  Mahboob Sahab v. Syed Ismail (1995)
o The Supreme Court held that gift under Muslim law is not required to be in writing and
consequently need not be registered under the Registration Act, 1908.
 Abdul Rahim v. Abdul Zabar (2009)
o The Supreme Court held that if by reason of a valid gift, the thing gifted has gone out of the
donee’s ownership, the same cannot be revoked.

Conclusion
The concept of gift under Muslim law holds significant importance, reflecting the principles of generosity, charity
and the spirit of giving in Islam. A gift is a voluntary transfer of Ownership in an existing property from one
person (donor) to another (donee) without any consideration or payment in return. The act of giving a gift is
considered virtuous and aligns with the teachings of Islam to share wealth and support those in need.

Comparison of Gift and Will

Basis of
Gift Will
Comparison
A man can give away his whole property during his Only one-third of the net estate can be
Quantum
lifetime. bequeathed.
For bequeathing more than one-third of the
A gift inter vivos can be made in favour of any person
Beneficiary property to any person, consent of heirs is
without any restriction (except during marz-ul-maut).
mandatory.
The property may or may not be in existence at
Existence of Property gifted must be in existence at the time of making
the time of execution of the will but it must be
Property the gift.
existing at the time of the death of the legator.
Transfer of Under gift, the immediate and absolute transfer of A transfer of property comes into effect only
Property property takes place. after the death of the legator.
Immediate delivery of possession must take place as soon Since property devolves on the legatee only
Delivery of
as the donor declares the gift and the donee accept the after the death of the legator so no question of
Possession
same. delivery of possession arises.
Once a gift is made, a mere declaration to revoke it by the A bequest may be revoked by the legator any
donor is not sufficient. A revocation can only take place time after executing it and before his death
Revocation
either by the consent of the donee or by the intervention either impliedly or expressly or by a
of the court. subsequent will.

Concept of Waqf Under Muslim Law

Waqf under Muslim Law

Introduction

The institution of waqf is an exclusive feature of the Mohammadan law. To waqf, a property means to dedicate a
movable or immovable property in the name of Allah for religious, and charitable purposes. The reason that the
institution of waqf is of such importance is because it serves a double purpose.
On side, it satisfies human instinct for charity and on the other, it makes a provision for the weaker section of
society.

What is a Waqf?

Waqf is the property given in the name of God for religious and charitable purposes. In legal terms, permanent
devotion by a person professing Islam, of any movable or immovable property for any purpose recognized by the
Muslim law as pious, religious or charitable.

A waqf can be formed through a deed or instrument, or a property can be deemed waqf if it has been used for
religious or charitable purposes for a long period of time.

The proceeds are typically used to finance educational institutions, graveyards, mosques and shelter homes.

A person creating the waqf cannot revoke the property and the waqf would be a continuing entity. A non-Muslim
can also create a waqf but the individual must admit Islam and the objective of creating the waqf has to be
Islamic.

Definition of Waqf

Definition under Muslim Waqf Validating Act, 1913, Section 2 of the Act defines waqf as the permanent
dedication by a person professing the Muslim faith of any property for any purpose recognized by Muslim Law as
religious, pious or charitable.

Waqf Act, 1954 defines Waqf as, “Waqf means the permanent dedication by a person professing the Islam, of any
movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable.”

Essentials of Waqf :

# Waqf under Sunni Law

The essential conditions of a valid waqf, according to the Hanafi Law (Sunni Law) are:

 A permanent dedication to any property.

 The dedicator (waqif) should be a person professing the Muslim faith and of sound mind and not a minor
or lunatic.
 The dedication should be for a purpose recognized by the Muslim law as religious, pious or charitable.

1. Permanent dedication of property

The most important vital of a valid waqf is that it should be ‘a permanent dedication of property.’ It has the
following prerequisites-

 There must be a dedication.

 The dedication must be permanent.
 The dedication must be of any property.

The Waqf himself has the right to donate such property and give it for any purpose recognized under the Muslim
Law. If the wakf is made for a limited period, it cannot be considered as a valid wakf.

2. By a person professing Muslim faith

The person creating a waqf should be an adult Muslim of sound mind.

3. For any purpose recognized by Muslim Law

The main objective behind creating a waqf is that it should be dedicated for a purpose recognized as religious,
pious or charitable under Muslim law.

# Waqf under Shia law :

The essential conditions for creating a valid Waqf according to Shia Law are:

 It must be perpetual.
 It must be absolute and unconditional.
 Possession of the thing appropriated must be given.
 The waqf property should be entirely taken out of waqif.

Who Can Create a Waqf?

1. The person constituting the waqf of his own properties is known as the ‘founder of waqf’ or Waqif.

To become a waqif, a person dedicating the property must be competent enough to do so according to the
provisions of law.

Following are the conditions, which need to be fulfilled to become a waqif and constitute a waqf-

(i) The person constituting the waqf should be a Muslim.

(ii) Should be a person of sound mind.

(iii) Should have attained the age of majority.

2. A person may admit the capacity but may not have any right to constitute a waqf. Such a person cannot
constitute a valid waqf. The subject matter of waqf should be owned by the waqif at the same time when waqf is
being constituted. Whether a waqf can be created by a particular person depends upon whether there exists a legal
right for the dedicator to transfer the ownership of the property or not.

3. A person can dedicate his entire property for the creation of waqf but in the case of the testamentary waqf,
more than one-third of property cannot be dedicated.

Modes of Creation of Waqf

Waqf can be created in the following ways-

1. By an act inter vivos – This type of waqf is created between living voices, constituted during the lifetime of the
waqif and takes effect from that very moment.
2. By will – A waqf created by will is contradictory to a waqf created by an act inter vivos. It takes effect after the
death of the waqif and also known as testamentary waqf. Such a waqf cannot operate upon more than one-third
of the net assets, without the consent of the heirs.
3. During death or illness (marz-ul-maul) – Like the gifts made while the donor is on the death bed, will operate till
the extent of one-third of the property without the consent of the heirs of the property.
4. By immemorial user – Limitation of time also applies to the creation of waqf property, but waqf property can be
established by way of immemorial use.

Essential of Waqf
  Perpetuity: In a ‘Waqf’, the property is settled permanently so that its usufruct is always available for an
indefinite period. There cannot be a ‘Waqf’ for a limited period.
 Irrevocability: Once it is created, the ‘Waqf’ cannot be revoked. As the property is deemed to vest in God.
 Inalienability: When a ‘Waqf’ is created, the property vests in the implied ownership of the God. Therefore,
‘Waqf’ property cannot be sold, transferred or encumbered. An alienation of the ‘Waqf’ property except for the
necessities of the ‘Waqf’ and without the court’s permission is void.
 Absoluteness: The settlement of the property in ‘Waqf’ is unconditional and absolute. A conditional or contingent
‘Waqf’ is void.
 Religious or Charitable Use of Usufruct: The produce and benefits of the ‘Waqf’ property are utilized only for such
purpose which are recognized as religious, pious or charitable under Muslim law.

Kinds of Waqf

 Public Waqf: - This is for public, religions or charitable purposes.

 Private Waqf: - This is for the settler’s family and descendants and is technically called wakf-alal- aulad.

Valid Objects of Waqf

 Mosque and provisions for Imams to conduct worship.

 Celebrating the birth of Ali Murtaza
 Repairs of Imambaras.
 Maintenance of Khankahs.
 Reading the ‘Quran’ in public places and also at private houses.
 Maintenance of poor relations and dependant.
 Payment of money to ‘Fakirs’.
 Grant to an ‘Idgah’.
 Grant to the college and provisions for professors to teach in colleges.
 Bridges and Caravan Sarais.
 Distribution of alms to poor persons, and assistance to the poor to enable them to perform pilgrimage to
‘Mecca’.
 Keeping ‘Tazias’ in the month of ‘Moharram’, and provisions for camels for religious processions during
‘Moharram’.
 Celebrating the death anniversary of the settler and of the members of the family.
 Performance of ceremonies known as ‘Kadam Sharif’.
 The construction of a cobat or free boarding house for pilgrims at ‘Mecca’.
 Performing the annual ‘Fateha’ of the members of his family.

The following are not recognized as valid objects of the waqf, by the Muslim law.

 Objects prohibited by ‘Islam’, e.g., erecting or maintaining a church or temple.

 A waqf for the repairs of the waqif’s secular property is invalid according to Shia law.
 Providing for the rich exclusively.
 Objects which are uncertain.
 A direction to spend a certain sum of money for feasting ‘Cutchi Memons’ every on the anniversary of the
anniversary of the settlor’s death is not valid.

Creation of Waqf

 Muslim law does not prescribe any specific way of creating a ‘Waqf’. If the essential elements as described above
are fulfilled, a ‘Waqf’ is created. Though it can be said that a ‘Waqf’ is usually created in the following ways –
o By an act of a living person (inter vivos) – when a person declares the dedication of his property for
‘Waqf’. This can also be done while the person is on death bed (marj-ul-maut), in which case, he cannot
dedicate more than 1/3 of his property for Waqf.
  By will – when a person leaves a will in which he dedicates his property after his death. Earlier it was thought that
Shia cannot create waqf by will but now it has been approved.
 Life gifts made which donor labours under mazr-ul-maut, the waqf made during death illness will operate only to
the extent of one third of the property without the consent of the heirs of the waqif.
 Lapse of time frequently renders it difficult or impossible to establish dedication by direct evidence but waqf may
be established by evidence of immemorial user.

Legal Incidents of Waqf

 Dedication to God - The property vests in God in the sense that nobody can claim ownership of it. In Md. Ismail v.
Thakur Sabir Ali (1962), Supreme Court held that even in waqf alal aulad, the property is dedicated to God and
only the usufructs are used by the descendants.
 Irrevocability - In India, a waqf once declared and complete, cannot be revoked.
 Permanent or Perpetual - Perpetuality is an essential element of waqf. Once the property is given to waqf, it
remains for the waqf forever. Waqf cannot be of a specified time duration.
 Inalienable - Since waqf property belongs to God, no human being can alienate it for himself or any other person.
It cannot be sold or given away to anybody.
 Pious or Charitable Use - The usufructs of the waqf property can only be used for pious and charitable purposes.
It can also be used for descendants in case of a private waqf.
 Power of Court’s Inspection - The courts have the power to inspect the functioning or management of the waqf
property. Misuse of the property of usufructs is a criminal offense as per Wakf Act.1995.

Case Laws

 Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, (1982):

o The Karnataka High Court held that the dedication of house by a Muslim for use of all travelers
irrespective of religion and status was held not to be a ‘Waqf’ on the ground that under Muslim law a
‘Waqf’ should have a religious motive and it should be only for benefit of Muslim community, and if it is
secular in character, the charity should be to the poor alone.
 Baqa Ullah Khan v. Ghulam Siddique Khan, (1955):
o There was no express mention of any ultimate gift to charity, but the Allahabad High Court held that the
waqf was valid because an ultimate gift to charity was implied in the very word ‘Waqf’.

Mutawalli
The manager or superintendent of the waqf is known as the 'Mutawalli'. Such a nominee has no powers to sell or
exchange or mortgage the waqf property without the prior permission of the court, unless specifically empowered
to do so by the waqf deed.

Under Muhammadan law, the moment a waqf is created, all proprietary rights pass from the waqif and are vested
in God; the nature of a property once vested in God cannot be changed, it thereafter belongs to God. The
Mutawalli then takes care of the property. A Mutawalli is more like a manager than a trustee, and when it comes
to waqf property, he has to see to it that the beneficiaries get the benefit of the usufruct.

All the beneficiaries are entitled to the benefits equally subject to the special authority granted by the Mutawalli.
The statement in Mulla's "Mahomedan Law" that "the Mutawalli is not a mere superintendent or manager, but
practically speaking the owner" is incorrect. [Bibi Saddiqa Fatima v. Saiyed Mohd. Mahmood Hasan, AIR 1978
SC 1362]

Who can be appointed Mutawalli?

Any person who has reached the age of majority, is of sound mind and is capable of performing the functions to
be performed under a particular waqf can be appointed as a Mutawalli of waqf property. A foreigner cannot be
appointed as trustee of an estate in India.
The waqf's founder's intentions for creating the waqf must dictate the succession of the Mutawalli office, and no
other documentation may contradict this intention.

The Supreme Court observed that although women can also hold the office of Mutawalli under Muhammadan
law, but if the waqif intended to create Mutawalliship for the benefit of male descendants only, the female
descendant cannot stake any claim to the Mutawalliship of the waqf property. A bench comprising Justice NV
Raman, Justice Mohan M Shantanagoudar and Justice Ajay Rastogi observed.
But in case a waqf is created without appointing a Mutawalli, then the following persons are eligible to
appoint a Mutawali:

 executor of the founder;

 Mutawalli on his deathbed;
 Court of Justice, which will be governed by the following rules:

1. If possible, the court should not ignore the settlor's instructions.

2. A family member of the settler should have priority over a complete stranger.
3. The court holds discretion in cases where there is a conflict between a direct descendant and non-
descendant of the founder.

In certain circumstances, the congregation may also appoint a mutawalli.

Any person of sound mind who has reached the age of majority can be appointed as a Mutawalli. [Syed Hasan v.
Mir Hasan (1917) 40 Mad 543]

A minor may be a Mutawalli where the office of Mutawalli is hereditary and the person entitled to succeed is a
minor, or where the line of succession is established in the waqfnama and the office falls to the minor. [Piran v.
Abdool Karim, (1891) 19Cal 2]

Both male and female of any religion can be appointed as Mutawalli. Mutawalli must be able to perform specific
duties under the waqf. If religious duties or spiritual functions are part of the duties of a Mutawalli, a woman and
a non-Muslim cannot be appointed Mutawalli [Shahar Bano v. Aga Mahommad (1907) 34 I.A. 46]. Thus, a
woman or a non-Muslim cannot be a Sajjadanashin (spiritual head), a Khatib (one who reads the sermon), a
Mujawar of a dargah, an Imam of a mosque (one who leads a congregation) or a Mullah. A foreigner cannot be a
trustee of any waqf property in India.

Powers and Duties of Mutawalli

In charge of the usufruct of the property, as the waqf's manager, the duties and powers of the
mutawalli are given below:

 The superintendent of waqf is typically the Mutawalli responsible for management.

 The Mutawalli, who acts as both a Manager and Supervisor, lacks ownership of waqf property. Despite
performing duties similar to a trustee, he is not officially recognized as one.
 The duties of the Mutawalli involve respecting the waqf property diligently and with honesty. It is
imperative that he discharge these responsibilities with care.
 He is expressly allowed to alienate the waqf property but only if it's outlined in the waqf deed.
 Establishing a lasting property lease as a Mutawalli requires express permission from either the court or
the waqf deed. Tenants, on the other hand, can have a lease for up to three years. It should be noted that
non-agricultural properties cannot be rented for more than one year.
  In the waqfnama, the compensation of a Mutawalli is established. If the document does not provide this
information, the court has the authority to establish his earnings. His salary must not surpass 1/10th of the
waqf property income.
 The process of selecting a Mutawalli begins with the waqif appointing the first one. In some cases, the
waqif may decide to serve as Mutawalli themselves. Upon this initial appointment, the waqif has the
option to name their preferred choices for future Mutawallis. Alternatively, they may leave this decision in
the hands of the current Mutawalli. In the event that the office of Mutawalli becomes vacant, the waqif or
their executor has the authority to select a successor. It's worth noting that in some scenarios, even a
departing Mutawalli can name their own replacement.
 The outgoing Mutawalli might not be able to act, in which case a successor can be appointed by the court
if the waqif or his successor is unavailable. However, it's worth noting that if the waqif's family has any
relatives, a stranger will not be chosen to serve as Mutawalli.
 Such heredity is recognized for the office of Mutawalli if it is customary, but it is not inherently passed
down.
 Mutawalli's office cannot be passed on to another individual.
 The dismissal of a Mutawalli by the waqif is only permissible if stated in the waqf deed. Once selected,
the Mutawalli cannot be easily removed.
 A de facto Mutawalli can act as a proper Mutawalli in absence of one. Generally, the person who survives
remains as Mutawalli when there are two.
 A Mutawalli must possess a sound mind and be of legal age. Gender is not a factor unless the waqf is for
religious purposes, in which case a female cannot serve as Mutawalli. It's possible for a woman to be
appointed as Mutawalli otherwise.
 Exceptional instances exist where non-Muslims can become a Mutawalli. However, in most cases, the role
is held by a Muslim.
 For possession of the waqf property and a declaration of Mutawalli status, a lawsuit can be filed by the
Mutawalli.
 The attachment of a waqf's property isn't permissible during execution proceedings.
 The waqf property can be alienated by the Mutawalli, with the court's approval.
 Adverse possession by the Mutawalli over the waqf is prohibited.
 For the waqf's optimal outcome, the Mutawalli has the ability to use the usufructs. Acting in good faith, he
can execute whatever measures needed to ensure that the final recipients reap the full benefits of the waqf.
 To either borrow funds or sell assets, approval from the court can be obtained by the Mutawalli through
the demonstration of appropriate justification or urgency.
 Initiating a lawsuit is an available option for safeguarding the interests of the waqf.
 If the remuneration isn't satisfactory, the Mutawalli may ask the court to increase it, but he is entitled to
the remuneration provided by the waqif.
 A loan given to a Mutawalli for waqf purposes cannot be recovered through waqf properties since
Mutawalli is unable to accumulate debts. Additionally, Mutawalli's ability to litigate has been restricted.

Removal of Mutawalli
In accordance with the provisions outlined under Section 64 of the Waqf Act, 1995, the Waqf Board is
empowered to dismiss a Mutawalli from their position if certain conditions are met. These conditions include the
Mutawalli having multiple convictions under section 61 or being convicted of offences such as criminal breach of
trust or moral turpitude, with no reversal or full pardon.

Additionally, removal may occur if the Mutawalli is of unsound mind, an undischarged insolvent, addicted to
substances, employed as a paid legal practitioner in waqf matters, fails to maintain accounts or submit statements,
is directly or indirectly involved in waqf property leases or contracts, continuously neglects duties, disobeys
lawful orders, or misappropriates waqf property.

The dismissal of a Mutawalli from office, as per the statute, does not impact their personal rights related to waqf
property or their status as a beneficiary or sajjadanashin. Conducting a certain inquiry and obtaining a two-thirds
majority vote is a prerequisite for the Waqf Board to take any action. If a Mutawalli objects to being given the
removal order for specific grounds, they have the option of appealing to the Waqf Tribunal within a month. The
decision of the Tribunal will be the final one. For that which an inquiry is started, the Mutawalli can be suspended
by the Waqf Board for a maximum of ten days, but they must be granted a just chance to speak.

Should the Mutawalli choose to seek help from the Tribunal, then the Board can call upon a receiver to oversee
the waqf until the appeal comes to a close, securing the safety of customary and spiritual privileges. Upon
removal, the Waqf Board may instruct the former Mutawalli to surrender possession of the waqf property to the
Board or an authorized officer, or to a designated person or committee appointed as the new Mutawalli.
Furthermore, a Mutawalli removed under this provision is ineligible for reappointment for a five-year period from
the date of removal.

Once a waqf comes into existence and a Mutawalli is appointed, the founder has no power of removing him
unless such a power has been specifically reserved in the waqf deed [Siddique Ahmed v. Syed Ahmed, 1945 Cal
418]. For reasons deemed appropriate, a Mutawalli may be removed by the court, due to misconduct, dishonesty,
or overall incompetence.

Even if the settlor has stated otherwise, the court retains the power to remove the Mutawalli as necessary to
protect the interests of the waqf. To accomplish this, a lawsuit in the District Court may be initiated. Ultimately,
the court's duty is to prioritize the waqf's welfare in all decision-making processes. [Md. Ali v. Ahmad Ali, 1946
All 261 Cl 328]

Conclusion
A person called the Mutawalli takes care of waqf property. They manage the property based on the donor's, or
waqif's, rules. They make certain the property serves its charitable purpose, like aiding hospitals, schools, or other
charities. They make sure the property is in good condition, earns money, and gives funds to certain beneficiaries.

The Mutawalli also runs the waqf property honestly and carefully for the community's needs. They've got this job
because they're skilled, honest, and focused on the waqf's charitable vision. As the trustee of these assets, the
Mutawalli works hard to manage them right.

Concept of Mutawalli :

 According to Muslim law, once a wakf is formed, all property rights pass from the wakif to God. However,
someone who can look after and maintain the property is needed. The person who supervises or takes over the
management of a wakf is known as a Mutawalli in Muslim law. A basic understanding of wakf is needed before
proceeding.
 Mutawalli is the person in charge of wakf's management. In Shia Law, the appointment of a Mutawalli is required.
Sunni Law, on the other hand, does not impose any obligations. Under Islamic law, a Mutawalli has no claim to the
wakf's lands. He does not own the land. Under Muslim law, the status of Mutawalli is distinct from that of a
trustee. He is merely a boss or manager.

 Who can be a Mutawalli:

A Mutawalli can be someone of sound mind and majority age who is capable of performing the functions that
must be performed under a specific wakf. A minor, on the other hand, maybe a Mutawalli if the office is
hereditary or if the line of succession is established in the wakf-name and the office is held by a minor.

A woman may be appointed as a Mutawalli in most cases, but where the Mutawalli is also expected to perform
religious duties, a female, as well as a non-muslim, cannot be appointed.

 Who can appoint a Mutawalli

 Founder: The founder of a wakf has complete appointment control. In addition, he has the power to nominate
himself as the first mutawalli. He may also develop guidelines for the appointment of mutawallis in the future. He
may also appoint a stranger as mutawalli on his deathbed.

Mutawalli: If the founder and wakif are both deceased and there is no written succession plan in place, the
current mutawalli will nominate his successor on his deathbed. In terms of fitness, however, he lacks certain
authority. Whether one of the joint Mutawallis dies and the wakf remains silent on what to do if one of them dies,
the office would be passed down by survivorship.

The court will appoint a Mutawalli in cases where the creator has not appointed a Mutawalli or cannot be
appointed as mutawalli. The District Court has the authority to designate. The court follows a few laws, including
the following:- The court disregards the settler's course. A settler member should be preferred over a stranger.

Where a wakf is strictly local, such as a graveyard or a mosque, the Mutawalli may be appointed by a locality's
collective decision.

Duties of mutawalli :

A Mutawalli is in charge of wakf property management and administration. He has complete control over the use of wakf
property for the reason for which it was developed. He may only alienate property with the court's permission. It is merely
voidable even without prior court approval. Mutawalli could file a suit relating to a wakf before Wakf Act, 1954 came into
effect. However, Wakf Board now wields this force.

As the wakf's manager, he is responsible for the property's usufruct. He is granted the following privileges:

 He has the power to use the usufructs in the wakf's best interests. He is authorized to take all necessary steps in
good faith to ensure that the wakf's end beneficiaries receive all of the wakf's benefits. He is unable to sell the
property because he is not the owner of the property. The wakif, on the other hand, could bestow certain rights
on him by explicitly mentioning them in the waqf name.
 By demonstrating the presence of sufficient grounds or urgency, he may obtain court permission to sell or borrow
money.
 He will file a lawsuit to defend the wakf's interests.
 He also has the authority to lease the land for less than three years for agricultural purposes and for less than one
year for non-agricultural purposes. With the proper approval from the judge, he may have the term extended.
 He is entitled to remuneration in accordance with the wakif's provisions. If the remuneration is insufficient, he will
petition the court to have it increased.

Removal of Mutawalli :
The creator cannot remove Mutawalli after he has been named unless such power has been granted under wakf-
name. A Mutawalli may be removed by the court. A court can remove Mutawalli for any legitimate cause,
including misfeasance, breach of confidence, or unfitness.
 By the Court – Once a mutawalli has been named, the waqif cannot dismiss him. The Mutawalli, on the
other hand, can only be excluded by the Court on the following grounds.
 He disputes the property's waqf status and establishes an adverse title to it in his own name.
 He neglects to repair the waqf premises, despite having sufficient funds, and allows them to fall into
disarray; he knowingly and deliberately causes harm or loss to the waqf land or commits a breach of trust.
 The Mutawalli is declared bankrupt.
 According to Section 64 of the Wakf Act, 1995, the Wakf Board has the power to dismiss the Mutawalli
from his role if no requirements are met.
  According to the Wakif – This definition is seen from a variety of perspectives. Even if the wakif has not
claimed the right to delete the mutawalli in the wakf deed, the mutawalli may be removed, according to
Abu Yusuf.
 Imam Mohammed, on the other hand, argues that the wakif cannot do so unless there is a reservation.
 Waqf Property Management - De Facto Mutawalli- If a person who has not been authorized to act as a
mutawalli by the waqif or the Court assumes the status to manage the property, he becomes a "trustee de
son tort" and is liable for the property.
 If there is a provision in the waqf deed exempting the mutawalli from liability, it must be followed. At any
point, a beneficiary has the right to demand an account from a Mutawalli. A beneficiary of such rights has
the right to assert his share of income and may sue for it.

Mutawalli

The manager or the superintendent of the waqf is known as the ‘Mutawalli’. Such a person appointed has no
powers, either to sell or exchange or mortgage the waqf property, without the prior permission of the court, unless
he has been empowered by the waqf deed expressly to do so.

 Who can be appointed as a Mutawalli?

Any person who has attained the age of majority, is of a sound mind and is capable of performing the functions to
be discharged under a particular waqf, can be appointed as a mutawalli of the waqf. A foreigner cannot be
appointed as theTrustee of a property in India.

 Who can appoint a Mutawalli?

According to the general rule, the founder of the waqf appoints at the time of the creation of the waqf. But, in case
a waqf is created without the appointment of a mutawalli then the following persons are eligible to appoint the
Mutawaali:

 The executor of the founder;

 The mutawalli on his death-bed;
 The Court, which shall be guided by the following rules:

1. As far as possible, the Court should not disregard the directions of the settlor.
2. Preference should be given to a member of the settlor’s family over an utter stranger.
3. In case of a contest between settlor’s lineal descendant and the one who is not a lineal descendant, the court is
free to exercise its discretion.

Under some circumstances, a mutawalli may also be appointed by congregation.

 Powers and Duties of Mutawalli

Being the manager of the wakf, he is in charge of the usufruct of the property. He has the following rights –

 He has the authority to use the usufructs to the best interest of the wakf. He is authorised to take all reasonable
actions in good faith to ensure that the end beneficiaries are able to enjoy all the benefits from the wakf. As he is
not the owner of the property, therefore he is barred from selling the property. However, he could be bestowed
upon such rights by the wakif by the explicit mention of them in waqf nama.
  He can take authorisation from the court to sell or borrow money by showing the existence of appropriate
grounds or the existence of urgency.
 He can file a suit to protect the interests of the wakf.
 He also has the power to lease the property for the agricultural purpose for less than three years and for the non-
agricultural purpose for less than one year. He can get the term extended with due permission from the court.
 He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the court
for getting it enhanced.

Removal Of Mutawalli
 By the Court– Once a mutawalli is appointed, he cannot be removed by the waqif. But the mutawalli can be
removed by the Court only on following grounds.


o he denies the waqf character of the property and sets up an adverse title to it in himself.

 He although having sufficient funds neglects to repair the waqf premises and allows them to fall into despair;
 He causes damage or loss to the waqf property or commits a breach of trust knowingly and intentionally.
 The mutawalli is rendered insolvent.

1. By the Wakf Board– According to section 64 of the Wakf Act, 1995, the Wakf Board has the authority to remove
the mutawalli from his office under the conditions mentioned therein.
2. By the Wakif – There are different views related to this concept. According to Abu Yusuf, even if the wakif has
not reserved a right to remove the mutawalli in the wakf deed he can, nevertheless, remove the mutawalli.
However, Imam Mohammed differs on this and believes that unless there is a reservation, the wakif cannot do so.
3. Management of Waqf Property

De Facto Mutawalli- If a person who has not been authorised to act as a mutawalli by the waqif or the Court,
assumed the status to manage the property, he becomes a ‘trustee de son tort’ as is so responsible as such.

1. Liability of Mutwalli to account

Under the waqf deed, if there exists a clause exempting the mutawalli from accountability, that has to be
respected. Each beneficiary has the right to claim an account from a mutawalli at any time. Such a beneficiary has
also the right to claim his share of income and can sue for such an amount.
Minors Admitted to Benefits of Partnership

As we have seen in the Contract Act, minors cannot be a party to a contract. A contract involving a minor is void-
ab-initio. However, the Partnership Act has its own sets of legal rules regarding minors. So let us study about
minor partner and the benefits they gain from a partnership.

Minors Admitted to Benefits of Partnership

Section 30 of the Indian Partnership Act 1932 contains legal provisions about a minor in a partnership. Now we
know the Indian Contract Act 1857 clearly states that no person less than the age of 18, i.e. a minor can be a party
to a contract. And a partnership is a contract between the partners. Hence a minor cannot be a partner in a
partnership firm.

However, according to the Partnership Act, a minor may be admitted to the benefits of a partnership. So while the
minor will not be a partner he will enjoy all the benefits of a partnership. To admit all the minor to the benefits of
the partnership all of the partners of the firm must be in agreement.

Rights of a Minor Partner

Once the minor is given the benefits in a partnership there are certain rights that he enjoys. Let us take a look at
the rights of a minor partner.

i. A minor partner will obviously have the right to his share of the profits of the firm. But the minor partner is not
liable for any losses beyond his interests in the firm. So a minor partner’s personal assets cannot be liquidated to
pay the firms liabilities.
ii. He can also like any other partner inspect the books of accounts of the firm. He can demand a copy of the books as
well.
iii. If necessary he can sue any or all of the other partners for his share of the profits or benefits.
iv. A minor partner on attaining majority has the right to become a partner of the firm. He has six months from
attaining majority to decide if he will execute this right. Whether he decides to become a partner or not he must
give public notice about the same.

Liabilities of a Minor Partner

i. A minor cannot be held personally liable for the losses of the firm. And if the firm declares insolvency the minor’s
share is kept with the Official Receiver
ii. After turning 18 the minor partner can choose to become a partner of the firm. But he may choose to not become
a partner. In this case, the minor partner has to give a public notice about this decision. And the notice has to be
given within 6 months of gaining a majority. If such a notice is not given even after 6 months then the minor
partner will become liable for all acts done by the other partners till the date of such notice.
iii. Should the minor partner choose to become a partner he will be liable to all the third parties for the acts done by
any and all partners since he was admitted to the benefits of the partnership.
iv. If he becomes a full-time partner he will be treated as a normal partner and have all the liabilities of one. His share
in the profits and property of the firm will remain the same as it was when he was a minor partner.

Solved Question for You

Q: A minor will automatically become a full-time partner on becoming 18. True or False?

Ans: This statement is False. When a minor attains majority it will be his choice whether to become a full-time
partner or retire from the firm. Once he makes his choice he must give a public notice declaring the same.

Introduction

According to Section 3 of the Indian Majority Act, a person who has not attained the age of majority i.e. 18
years, is known as minor.

Section 4 of the Indian Partnership Act, 1932, defines partnership and partner as follows:

‘Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or
any of them acting for all. Persons who have entered into a partnership with one another are called individually
“partners” and collectively a “firm”, and the name under which their business is carried on is called the “firm
name”.

In simple words, a partnership is an agreement between the persons to share the profits of a business and the
persons who enter into this agreement are called partners.

As we have seen in the Indian Contract Act, 1872, minors cannot be a party to an agreement. An agreement
involving a minor is void-ab-initio. However, the Indian Partnership Act has its own sets of legal rules regarding
minors.

Minor admitted to benefits of partnership

A partnership firm cannot be formed with a minor as the only other member. The relation of partnership arises
from a contract. In Shriram sardarmal didwani v. Gourishankar, it was held that a minor is incompetent to
contract and, therefore, a contract of partnership cannot be entered into with a minor.

In CIT v. Dwarkadas & Co, the Supreme Court held that a minor cannot become a full-fledged partner in an
existing firm. The only concession that section 30 gives is that a minor may be admitted to the benefits of an
existing firm. The Hon’ble judge then continued to observe:

“Section 30 of the Indian Partnership Act, clearly lays down that a minor cannot become a partner, though, with
the consent of the adult partners, he may be admitted to the benefits of partnership. Any document which goes
beyond this section cannot be regarded as valid for the purpose of registration.”

In S.C. Mandal v. Krishnadhan it was held that under S. 4 of the Partnership Act, a firm means a group of
people who have entered into a contract of partnership among themselves and reading it with S. 11 of the
Contract Act, it can be interpreted that a minor cannot be a part of the contracted partnership. A minor can only
be admitted to the benefits of a partnership, and that partnership has to exist independently. Also, there cannot be
a contract between two minors. In short, there should be a partnership between two major partners before a minor
can be admitted to its benefits.
Rights of Minor

 A minor admitted to the benefits of a partnership has all the rights of a full partner.
 Such minor is entitled to his agreed shares of the property and of the profits of the firm.
 Such minor has the right to access and taking copies of the book of accounts of the firm. It follows that he has no
right of access to those other books of the firm which do not contain matters of account.[Section 30(2)]
 Such minor is not personally liable to the third parties for the debts of the firm, but his liability is limited only up to
his shares in the partnership assets and profits.

For example, if the partnership assets fall short in distinguishing the debts of the firm the separate personal
property of the minor cannot be applied for the payment of the debts.

 Such minor cannot bring any suit against the partners for an account or payment of his share of the property or
profits of the firm unless he first serves his connection with the firm.[Section 30(4)]
 Such minor is not entitled to take part in the conducting of the business as he has no representative capacity to
bind the firm.
 Where the minor becomes a partner by his own choice or by failure to give within the specified time i.e. six
months after attaining the age of majority, he becomes personally liable to the third parties for all the debts of the
firm retrospectively from the date of his admission to the benefits of partnership.
 Rights of the minor if he elects not to become a partner:

1. His rights and liabilities shall continue to be those of a minor up to the date of giving public notice;
2. His share shall not be liable for any acts of the firm done after the date of the notice;
3. He shall be entitled to sue the partners for his share of the property and profits.

 If after attaining the age of majority but before choosing to become a partner the minor represent and knowingly
permits himself to be represented as a partner in the firm, he will be personally liable to anyone who on the faith
of such representation granted credit to the firm on the ground of ‘holding out’.

Liabilities of minor

Liability during minority [Section 30(3)]

Sub-section 3 of section 30 says that “such minor’s share is liable for the acts of the firm, but the minor is not
personally liable for any such act.”

In Addepally Nageswara Rao and Bros v. CIT, the Andhra Pradesh High Court held that:

“In case he contributes capital or is entitled to get benefit in the profits of the firm, it is to that extent that the
liability can be fastened on the minor. But in no case, the person of the minor or his other property which he has
not brought into the assets of the partnership can be held liable. That is the purport and scope of Section 30(3) of
the Indian Partnership Act.”

Liability after attaining the age of majority

Sub-section (5) to (9) of section 30 of the Indian Partnership Act deal with consequences of a minor partner
attaining majority as follows

 He is given six month’s time to decide whether he should leave the firm or continue in it by becoming a full-
fledged partner. This is called the minor’s choice, namely the right to opt out of the firm or stay in it. [Section
30(5)]
  Where the minor claims that he had no knowledge of his admission and, therefore, he should be allowed six
months from the date of knowledge, the burden of proof lies on minor that he had no knowledge.[Section 30(6)]
 When minor becomes a partner

1. He will be treated as a normal partner, but he also becomes personally liable for all the acts of the firm done since
he was first admitted to the benefits of partnership.[Section 30(7)(a)]
2. His share in the property and profits of the firm shall remain the same as it was during his minority.[Section 30(7)
(b)]

 Where the minor elect not to become a partner

1. His rights and liability will continue to be the same up to the time on which he gives public notice.[Section 30(8)
(a)]
2. From the date of public notice, the liability of his share ceases for any future acts of the firm.[Section 30(8)(b)]
3. He becomes entitled to sue the partners of the firm to recover his share of property and profits.[Section 30(8)(c)]

 Where in spite of notice, the minor does an act which amounts to a representation that he is a partner in the firm,
Section 28 i.e. holding out of this act immediately come into existence and liability would arise towards any person
who gave credit to the firm putting his faith upon the representation.[Section 30(9)]

Conclusion

From the above discussion, we can say that a partnership firm cannot be formed with a minor as the only other
member. The relation of partnership arises from a contract. According to section 11, a minor is not competent to
contract. In Dwarkadas khetan case Hon’ble Supreme Court held that a minor cannot even become a full-time
partner in the existing firm. In CIT v. Shah Mohandas Sadhuram, it was held that a minor may be admitted to the
benefits of an existing firm.

Rights of the finder of goods :

Introduction

Section 71 of the Indian Contract Act, 1872 (ICA) deals with the responsibilities of the finder of lost goods.
This Section is one of the five obligations which are known as quasi contracts. Quasi Contracts are contained in
Sections 68 to 72 of ICA and these obligations are based on the principle that law as well as justice should try to
prevent unjust enrichment.

Section 71 of ICA

 This Section deals with the responsibility of finder of goods.

 It states that a person who finds goods belonging to another, and takes them into his custody, is subject to the
same responsibility as a bailee.
 Since the position of the finder of the goods is that of a bailee he is supposed to take the same amount of care
with regard to the goods as is expected of a bailee.

Duties of Finder of Goods

 Duty to take care of goods- The Finder must take care of the goods until he returns the goods to the owner. It
means the finder has to take reasonable care of the lost property. This means that he has to protect the lost
property from damage, theft, and any harm that may occur.
  Duty to use the property for the agreed purpose- The finder must use the lost property only for its entrusted
purpose. Without the consent of the owner, if he deviates, it would lead to the liability of the bailee.
 Duty to not mix the property- The finder is responsible for not mixing the owner’s goods with the other goods. If
the goods are mixed, he will be held liable if the goods are unable to separate. If the goods can be separated, the
bailee will bear the expenses to separate the mixed goods.
 Duty to return the property- The finder of the goods has to deliver or return the goods found to the actual owner
before the expiration of time as specified by the owner.
 Duty to render Accounts- When the owner approaches the finder for information regarding the status of the
property lost and the condition of the property, the finder must provide accurate reports of all transactions
connected to the bailment and the bailee is required to maintain correct records.

Rights of Finder of Goods

 Right to Possession- One of finder’s rights is to have possession of the goods. But the right to possession is
limited. The finder has to use the goods only for a specific purpose, not for any other purpose, without the
consent of the owner.
 Right to Lien- The finder has the right to lien, which means the finder can take back the possession of the goods
until the charges are paid in respect of the goods. This right would be applicable when there is a legal contract
between the parties.

Case Law

 In the case of State of Bombay (Now Gujarat) v. Memon Mahomed Haji Hasam (1965), the Supreme Court has
held that the finder of lost goods plays the role of the bailee and has the same responsibility as that of a bailee
towards the owner of that goods.

What is Auction Scale?

An auction sale is the sale of goods through a bidding process and is covered under the Sale of Goods
Act, 1930. The process of sale by auction involves the selling of any goods and property of value, in a
public gathering where buyers make a bid for the purchase and the sale is made to the highest bidder. Let
us understand in detail an auction sale, parties involved, and their rights and obligations.

Auction of goods to the highest bidder among all buyers present at the time. Auction Sale is an economic
system where sellers offer goods for sale, and bidders compete with one another, based on the price or
quality of the item being offered. Auction Sales can be conducted either through oral or written bidding
methods like Dutch Auction (where bids are sealed), English Auction (traditional ), and Online Auction
(in which bidders bid via the internet).

Different Types of Auction Sales

1. Private Auction: This is an auction sale where the seller and buyers are known to each other.
2. Advertisement Auction: In this type of auction, the seller publishes a notice in newspapers or
online about the product he wishes to sell through auction.
3. Sealed Bid Auction: In this type of auction, potential buyers send their bids to the seller in sealed
envelopes. The highest bidder wins the product at the end of the bidding process.
 4. Live Auction: This is an auction sale where bidders participate live either by attending physically
or participating through phone or the internet.
5. Sale in lots: Auction Sale where the items are sold in lots or batches.
6. First Lot Auction: In this type of auction, each lot is sold to the highest bidder at a time.
7. Second Lot Auction: This type of Auction allows for batching of goods into two parts and then
offering these as individual lots to potential buyers interested in acquiring them during an auction
sale process.
8. Auction Sale of Unsold Lots: In this kind of Auction, the seller offers only those lots that he has
not been able to sell in first or second lot auctions to interested bidders during an auction sale
process.

Railway Auctions
Railway scrap collected from wagons, coaches, deserted rails, etc is sold by the railways through auction.
Indian railways have completely switched to e-auctions since 2013.

Real Estate Foreclosure Auctions

Banks can hold a real estate foreclosure auction under the SARFAESI (Securitization and Reconstruction
of Financial Assets and Enforcement of Securities Interest) Act, 2002. This allows the banks to auction
repossessed or foreclosed properties to recover their losses. These properties are seized by the banks after
the borrowers fail to make multiple payments towards principal and interest. A property in the early
stages of foreclosure by the banks is in pre-foreclosure auction. It is a kind of notice to the borrower that
the property will be auctioned if the payment is not made to the lender. This stage is considered the grace
period that is given to the borrower before the foreclosure auction.

Land Auction
In case of a land auction done by the government, the land must be sold through a public auction and the
government must give a notification for the same through wide publicity. In the case of government land
auctions, there is no upset price except in the case of railway relinquished lands where a minimum or
upset price is fixed in consultation with the Railway Administration before the auction.

The difference between first and second lot auctions is that while both allow bidders who have lost
interest in one product category to switch over their bidding efforts towards another product category still
available on offer through any remaining/unsold lots, they also bring together similar products from
different categories for simultaneous availability under one roof which results in better price discovery
across all types of products as well as greater choice for potential buyers.
Auction Rules and regulations vary from country to country depending on various factors like customs
and practices followed by a particular society. However, it is very important for both sellers and buyers
who intend to participate in an Auction Sale to learn about these rules before taking part in such bidding
processes so they can make informed decisions when transacting with one another through Auction Sale
online or offline channels/platforms.

Rules of Auction Sales Are

1. Sale Completion: It is one of the most important Auction Sale rules that the seller must complete
the sale once a bid has been accepted. In case, he is unable to do so for any reason, he must inform
all potential buyers of this before the Auction commences and also refund their money
2. Auctioneer: The Auctioneer conducts the Auction Sale by announcing each product being put up
for bidding and calling for bids from interested buyers.
3. Reserve Price: This is the minimum price at which the seller is willing to sell a particular item in
an auction sale. If no bidder meets or exceeds this price, then the item goes unsold.
4. Bidding Increments: In most auctions, there are predetermined bidding increments that
determine how much a can increase her/his bid amount.
5. Auction Closing Time: The Auction Sale must have a definite ending time so that all interested
buyers are aware of when the bidding process will end.
Section 64 of the Sale of Goods Act states the rules applicable in case of an auction sale.

 Sale of Goods in Lots

When the auction involves the sale of goods in different lots, each lot of goods are covered under
a separate contract of sale.

 Sale Completion
An auction sale is deemed to be complete when the auctioneer says so. The same can be done by
the fall of the hammer or any other means used to signify the completion of the sale. The bidder
can withdraw the bid anytime before the completion of the sale is declared.

 The Right to Bid Reserved for the Seller

The seller can reserve his right to bid at the auction but he must expressly reserve this right. He
can appoint an agent to bid on his behalf.

 Notification of the Right to Bid by the Seller

If the seller has not expressly reserved his right to bid and has not been informed about the same,
he or his agent is not authorized to bid at the auction. The auctioneer is not entitled to accept any
 bids made by the seller or his agent if the buyer has not expressed his intent to do so. Any sale
that is in contradiction to this rule will be deemed unlawful and fraudulent by the buyer.

 Reserve Price
The goods for sale at the auction may be subject to a reserve price or an upset price. The
auctioneer cannot sell goods below this price.

 Pretend Bidding by the Seller or His Agent

In case the seller or his agent pretends to bid for the goods purposely to raise the bid price of the
goods, the buyer of the goods has the right to treat the sale as void.

 No Credit Sale
The property in an auction cannot be sold on credit or as per his will by the auctioneer. The
auctioneer can accept a bill of exchange in an auction sale but only if it has been allowed by the
seller.

Let us look at different kinds of auctions like real estate foreclosure auctions and government
auctions.

 Bank Auction Properties for Sale

In case of properties up for sale through a bank option, buyers can submit their bids through a bid
form or a tender form. In some cases, competitive bidding is allowed between the buyers by the
bank to raise the price of the auction property for sale. If the buyer or the winner of the bank
auction does not pay the balance amount within a specified time, then the entire amount paid is
forfeited by the bank.

Solved Question on Auction Sale

Q1. Can the Auctioneer Sell a Property Below the Reserve Price?
Ans: The auctioneer cannot sell a property below the reserve price or the upset price. In certain cases,
however, the auctioneer can be relieved if his actions were a result of a mistake on his part.
Let us explain this with case law.
Case Law: McManus vs Fortescue
In this case, the auctioneer had sold the property below the reserve price by mistake. The reserve price
had been stated in a catalog for each lot. The auctioneer was relieved by the court as it was considered a
mistake on the part of the auctioneer.
Q2. When is the Auction Sale Said to be Complete?
Ans: An auction sale is said to be complete when the auctioneer puts down the hammer after giving the
final call to the highest bidder. The auctioneer can also declare the auction sale complete in any other
manner normally used in auction sales.
Case Law: Payne vs Cave
In this case, the highest bidder withdraws his bid before the fall of the hammer of the auctioneer. Though
Mr. Cave was the highest bidder, he had withdrawn his bid before the auction sale was deemed complete.
He was not held liable to purchase the goods for which he had made the bid.

Partnership Deeds

A partnership is a unique form of business in which partners work together to achieve common goals. Due to this
feature of partnerships, partners are allowed to decide the terms of their relationship with each other. The
documents which they do so are called partnership deeds.

Relationship Between Partners

The Indian Partnership Act, 1932 governs partnership forms of businesses in India. This law contains several
provisions defining rights, duties, liabilities, and powers of partners. These provisions, however, are not always
binding on them. Partners are free to bind themselves with contrary provisions.

Most provisions of the Partnership Act are subject to a contract to the contrary. This means that if partners have
agreed to contrary understandings, they will prevail over the Act. For example, although payment of salary to
partners is prohibited by the Act, partners can still draw a salary if they mutually agree.

Partnership Deed
As explained above, partners are free to define the terms of their relationships, even if they go contrary to the Act
in certain cases. They can either decide on such terms with an oral agreement or a written one.

Partnership deeds, in very simple words, are an agreement between partners of a firm. This agreement defines
details like the nature of the firm, duties, and rights of partners, their liabilities and the ratio in which they will
divide profits or losses of the firm.

Although the drafting of partnership deeds is not compulsory, it is always advised to do so. This helps in ensuring
that all terms agreed by partners exist in written form on paper. Doing so can reduce disputes between partners
and govern their functioning better.

Unlike similar documents like articles of association of companies, partnership deeds need not be registered
mandatorily. However, registration can ensure the prevention of legal challenges to its validity when disputes
arise. An ideal partnership deed is comprehensive and clear about all details pertaining to the functioning of a
firm. It should not contain any ambiguities.

What is the Profit and Loss Appropriation Account?

Contents of Partnership Deeds
Although there is no specific format prescribed for drafting a partnership deed, a typical deed contains the below
mentioned clauses.

1. The name of the firm

2. Name and details of all partners
3. Date of commencement of business
4. Duration of the firm’s existence
5. Capital contributed by each partner
6. Profit/loss sharing ratio
7. Interest on capital payable to partners
8. The extent of borrowings each partner can draw
9. Salary payable to partners, if any
10. The procedure of admission or retirement of a partner
11. The method used for calculating goodwill
12. Preparation of accounts of the firm
13. Mode of settlement of dues with a deceased partner’s executors
14. The procedure followed in case disputes arise between partners

What is a Limited Liability Partnership (LLP)?

Absence of a Partnership Deed

In case partners do not adopt a partnership deed, the following rules will apply:

a. The partners will share profits and losses equally.

b. Partners will not get a salary.
c. Interest on capital will not be payable.
d. Drawings will not be chargeable with interest.
e. Partners will get 6% p.a. interest on loans to the firm if they mutually agree.

Solved Question for You

Question: Determine which of the following items are not typically present in a partnership deed

i. Profit-sharing ratio
ii. A provision specifying the existence of a principal-agency relationship between partners
iii. The exact nature of their business
iv. Rights of the partners
v. The share of their capital
vi. Details of their office

Answer: All items under options (i), (iv) and (v) and included in a partnership deed. The rest of them are not for
the following reasons:

ii) Principal-agency relationship exists between partners by default; they need not mention it specifically.

iii) Partners need not describe the exact nature of their business.

vi) Details of the office might not be important to govern the relationship between partners.
Difference Between Sale and Agreement to Sell

Transfer of ownership isn’t the only way to distinguish between how a sale and an agreement to sell. These
concepts must be understood properly. So, here are sale and agreement to sell differences in terms of Indian law.

Both sale and agreement to sell are contracts. Legally, these two terms are not the same. Sale is the transfer of
ownership from a seller to the buyer for a determined price. Agreement to sell is also a transfer of ownership, but
at a future date or when specified conditions are met. You can think of the agreement to sell as a sale that comes
with specific terms and conditions.

This is the primary basis of the difference between sale and agreement to sell. Also, there are different kinds of
risks involved in both. In both situations, there are varying rights reserved for both sellers and buyers when it
comes to sale and agreement to sell.

Key Parameters Difference Between Sale and Agreement to Sell

Check out the critical parameters in the table below to know the difference between sale and agreement to sell.
Note that these parameters are keys to understanding how these two contracts, sale and agreement to sell, tend to
differ in Indian law.

Parameters Sale Agreement to Sell

Immediate transfer of ownership The agreement of selling to a buyer under certain

Meaning
once the payment is made. conditions on the specified future date.

Type of Contract It is an executed contract. It is an executory contract.

The buyer can return the product or

What happens if there
get a refund if the product or service The buyer can claim only for damages and not the price.
is a breach of contract
does not meet expectations.

Reselling The seller cannot resell after a sale. The seller can resell when conditions are not met.

The property doesn’t need to exist when signing an

Existence of The property already exists, and only
agreement to sell because the sale is made on a future
property/product then is a sale made.
date.

Buyer has immediate access to Buyer's access to confidential information is contingent

confidential information, upon the fulfillment of the agreement's terms. NDAs may
Confidentiality necessitating the enforcement of be executed before confidential information is exchanged,
confidentiality provisions from the but their enforcement may be delayed until the ownership
outset. is transferred.

Sale’ and ‘Agreement to Sell’ are standard terms in real estate transactions.While both involve the exchange of
goods or services for a specific price, there are fundamental differences between the two. Firstly, a Sale refers to
the actual buying or selling of an asset or property. On the other hand, an Agreement to sell is when there is an
intent to sell the asset at a particular time in the future under certain conditions.
Sale is a type of contract where the seller transfers ownership to the buyer. An agreement to sell is a contractual
arrangement wherein the transfer of ownership will occur at a future date or upon fulfilling specific conditions.
Understanding the differences between these concepts is essential for businesses and individuals who buy, sell, or
enter into contractual agreements in real estate.

Table of Contents

 Overview of Sale
 Overview of Agreement to Sell
 Difference between Sale and Agreement to Sell
 Difference Between Contract of Sale and Agreement to Sell
 Elements and Characteristics of a Contract of Sale
 Relationship Between Contract of Sale and Agreement to Sell
 Final Thoughts
 FAQ’s

Overview of Sale
A sale occurs when two or more parties sign an executed contract. Once all parties fulfill their obligations, it
becomes fully implemented, transferring ownership immediately to the buyer(s). Additionally, the seller must
possess the property or plot to complete the sale.

There are two types of sales: Absolute and Conditional. An absolute sale occurs when goods are transferred
without any dues, while a conditional sale involves small recurring payments for the transfer. In a sale, the buyer
typically assumes the risk of loss or damage to the property for a certain amount. Buying an existing house from
its owner is a prime example of a sale.

Essentials of Contract of Sale:

1. Presence of two parties

2. Price that is mutually agreed upon
3. Property or plot that is the basis of the contract
4. Transfer of property or plot
5. Understanding of whether the sale will be conditional or absolute
6. All necessary documents

Overview of Agreement to Sell

A sale agreement is a law in an executory contract instead of an executed contract. In agreement to sell, sellers
and buyers agree to transfer property not immediately but on a specific date in the future. Till the time this
transfer happens, risks are attached to the seller.

Agreement to sell precedes the deed of the sale. If the buyer cannot meet the given conditions, the seller can resell
the property as the ownership is yet to be transferred. This may vary depending on the specific terms of the
agreement.

Difference between Sale and Agreement to Sell

The main difference between a sale and an agreement of sale lies in the transfer of ownership. In a sale, the seller
immediately transfers ownership of the property to the buyer, while in an agreement to sell, both parties agree to
transfer ownership after fulfilling certain terms mentioned in the agreement.
Until these conditions are met, the seller remains the owner of the goods, and the buyer has a contractual right to
get ownership later. Essentially, a sale is a completed transaction, whereas an agreement to sell is a promise to
sell in the future.

Parameter Sale Agreement to Sell

Transfer of ownership from seller to buyer in Transfer of ownership from seller to buyer at a
Meaning
exchange for money later date

Promise to transfer ownership later after

Nature Immediate transfer of ownership
fulfilling certain conditions

Type of Contract Simple contract Conditional contract

The title is transferred to the buyer with the The title is not transferred until the agreed-
Title
execution upon future date

The risk of loss or damage remains with the

Risk is typically transferred to the buyer
Transfer of Risk seller until the agreement conditions are
immediately after payment
fulfilled

The seller can sell the property to another

Once the contract is executed, the seller has no
Right to Sell party if the buyer is unable to meet the
right to sell the property
agreement conditions

May vary as per the jurisdiction, and the terms

Tax Liable for sale tax
of the agreement

Seller may be responsible for any loss or

Consequences of Buyers bear the cost of damages after the
damages, since the ownership is not
damage to the goods transfer of ownership
transferred yet

It involves a direct transfer of ownership from An agreement to sell consists of a promise to

Relation
seller/s to buyer/s transfer ownership later

Subsequent Seller’s obligations are usually completed upon

Loss is borne by the seller
Responsibility transfer of ownership

Includes various statutes, including:

Indian Contract Act, 1872

Statutory Law Mainly a subject of the Sale of Goods Act, 1930
Transfer of Property Act, 1882

Sale of Goods Act, 1930

P sold an apartment to Q against payment of P agrees to sell an apartment to Q 2.5 years
Examples
₹1,00,00,000 later, for ₹1,00,00,000

Difference Between Contract of Sale and Agreement to Sell

In business transactions and legal terminology, the concepts of a contract of sale and an agreement to sell are
crucial to understanding. While they are related, they differ in certain fundamental aspects.
Overview of a Contract of Sale

This is a legally bound agreement between a buyer and a seller, where the seller transfers the ownership of a
property to the buyer for monetary consideration. It is governed by the Sale of Goods Act or similar legislation in
various jurisdictions.

Elements and Characteristics of a Contract of Sale

 Offer and Acceptance: The contract of sale begins with an offer by one party and its subsequent acceptance by the
other. This mutual agreement forms the basis of the contract.
 Transfer of Ownership: The primary purpose of a contract of sale is the transfer of ownership. The seller must
pass the title and ownership of the property to the buyer.
 Price: Contract of sale involves consideration in the form of a price. The buyer agrees to pay the seller a certain
amount in exchange for the property.
 Assets: The subject matter of the contract of sale is tangible goods or assets, e.g. property or plot of land.
 Mutual Intent: Both parties involved must have the intention to enter into a binding agreement and fulfil their
obligations.

Relationship Between Contract of Sale and Agreement to Sell

An agreement to sell – also known as an executory contract – differs from a contract of sale in a crucial aspect. In
an agreement to sell, the transfer of ownership of the goods is delayed until a future event or condition is fulfilled.
Until that event or condition occurs, the agreement remains executory and does not result in an immediate transfer
of ownership.

Examples

A seller agrees to sell a ready-to-move-in home to a buyer for a specific price. The buyer pays the agreed-upon
amount, and the seller immediately transfers the home ownership to the buyer. This scenario represents a contract
of sale.

Read More: 15 Documents to Check & Verify Before Buying a Property

A developer agrees to sell a plot of land to a customer on the condition that the developer will obtain government
approval and the customer will receive financing from a bank within a specified period. Consequently, the
agreement remains executory until these conditions are met and the purchase is completed. Subsequently, once
this occurs in the future, the ownership is transferred, and the contract of sale is finalized.

Final Thoughts
Understanding the difference between a sale and an agreement to sell is crucial in legal and commercial contexts.
Sale is a complete transfer of ownership, and the buyer immediately becomes the property owner. An agreement
to sell is a contract where the transfer of ownership will occur at a future date, upon fulfilment of certain
conditions.

A sale has an immediate legal effect, and an agreement to sell is a contractual obligation. Both concepts have
distinct legal implications, and understanding these nuances is essential for parties involved in buying, selling, or
entering into agreements in real estate.

FAQ’s
1. What is the agreement to sell and sale of the property?

An agreement to sell refers to a contractual arrangement where the transfer of ownership of a property will occur
at a future date, upon specific conditions being fulfilled. On the other hand, sale of the property is a completed
transaction where ownership is immediately transferred from the seller to the buyer.

2. What is the validity of the agreement of sale?

The validity of an agreement of sale is usually 3 years, but it can also be extended. An agreement of sale can
remain valid till the agreed-upon conditions are fulfilled or till the expiration date as specified in the agreement.
However, the validity period can vary based on the laws of the jurisdiction and the specific terms negotiated by
the parties involved.

3. What is the difference between an agreement to sell, a sale, and a hire purchase agreement?

The key difference between an agreement to sell, a sale, and a hire purchase agreement lies in the transfer of
ownership. In a sale, ownership is immediately transferred from the seller to the buyer. An agreement to sell
establishes a future obligation to transfer ownership upon meeting certain conditions. A hire purchase agreement
is an instalment purchase, where the buyer pays in instalments and gains ownership after completing the full
payment.

4. What is the difference between an agreement to sell and a sale with risk of loss?

The difference between an agreement to sell and a sale is that the risk of loss remains with the seller until
ownership is transferred to the buyer in an agreement to sell. However, in a sale, the risk of loss shifts to the buyer
as soon as the transaction is completed.

5. How does an agreement to sell become a sale?

An agreement to sell can transform into a sale when the agreed-upon conditions specified in the contract are
fulfilled, which involves the passage of time, completion of payments, or fulfilment of specific obligations.

6. What is the difference between an agreement to sell and a bayana?

The difference between an agreement to sell and bayana lies in their nature and purpose. Agreement to sell refers
to the contractual arrangements for transferring ownership in the future. Bayana refers to the advance payment
made by the buyer as a token amount to purchase the property.

7. What is the difference between sale and sell in contract?

In contract, ‘sale’ refers to transferring ownership in exchange for money or any financial considerations, and
‘sell’ describes the action of offering a property for sale. While ‘sale’ is a result of mutual agreement, ‘sell’ is the
act of entering into such a contract.

Concept of Condition and Warranty

All of us who have bought electronic items or similar devices, ask about the warranty periods. In some cases, you
may have seen that even the warranty is sold separately as a commodity. But does the law say about it? Here in
this section on the concepts of condition and warranty, we will see the manner in which we can define these terms
and also the manner in which they derive their legality in the light of The Sale Of Goods Act, 1930.
Warranty And Conditions
In a contract of sale, parties may make certain statements about the stipulation or the course of trade. These
stipulations in the contract of sale are made with reference to the subject matter of the sale. These stipulations
may either be a condition or in the form of a warranty.

The provisions of the conditions and warranty are provided in the sections 11 to 17 of the Act. The stipulations
are the essence of the contract of sale and a breach of these stipulations provides a remedy to the grieved party.

What are Express and Implied Warranties?

Stipulations As To Time – Sec 11

To understand the concept of warranty and conditions, we need to learn about the stipulation as to time. The
stipulation as to time may be with regards to the delivery of goods or it may be with regards to the payment of the
price.

However, it may be noted that stipulations as to the time of delivery of the goods are usually the essence of the
contract. In Section 11 of the Act, the topic of the stipulation as to time has been discussed. The Sec 11 states the
follows:

Stipulations as to time: Unless a different intention can be ascertained from the contract, stipulations as to the
time of payment are not considered to be of the essence of a contract of sale. Whether any other stipulation as to
time is of the essence of the contract or not will ultimately depend on the terms of the contract.

This means that whether the stipulations as to the time of payment of the price is of the essence of the contract
or not depends on the terms of the contract. Unless the terms of the contract specify something different than this.

Conditions

A condition is a stipulation essential to the main purpose of the contract, the breach of which gives the right to
repudiate the contract and to claim damages. (Sec 12 (2)). We can understand this with the help of the following
example:

Say ‘X’ wants to purchase a car from ‘Y’, which can have a mileage of 20 km/lt. ‘Y’ pointing at a particular
vehicle says “This car will suit you.” Later ‘X’ buys the car but finds out later on that this car only has a top
mileage of 15 km/ liter. This amounts to a breach of condition because the seller made the stipulation which
forms the essence of the contract. In this case, the mileage was a stipulation that was essential to the main purpose
of the contract and hence its breach is a breach of condition.

Express and Implied Conditions

Warranty

A warranty is a stipulation collateral to the main purpose of the said contract. The breach of warranty gives rise to
a claim for damages. However, it does give a right to reject the goods or treat the contract as repudiated. (Sec
12(3)). Let us understand this with the help of an example below.

A man buys a particular car, which is warranted to be quite to drive and very comfortable. It turns out that after
some days the car starts to make a very unpleasant noise every time it is operated. Also sitting inside it is also not
very comfortable.
Thus the buyer’s only remedy is to claim damages. This is not a breach of the condition but rather a breach of
warranty, because the stipulation made by the seller was only a collateral one.

Identification of a Stipulation as a Condition or Warranty

Whether a stipulation is a condition or a warranty is a very important aspect to have the knowledge about. A
stipulation in a contract of sale is either a condition or is a warranty depending in either case on the construction
of the contract. A stipulation may be a condition, though called a warranty in the contract.

Solved Examples on Concept of Condition and Warranty

Q: List the main difference between a Condition and a Warranty?

Ans: Following is a table that indicates the major differences between a condition and a warranty:

Difference Basis Warranty Condition

A warranty is only collateral to the main purpose of It is essential to the main purpose of the
Nature
the contract. contract.

Exemption from performance The aggrieved party can repudiate the

In this case, the aggrieved party can’t rescind the
in case of a breach of the contract and is exempted from
contract but can claim damages only.
stipulation. performance and can also claim damages.

Breach of warranty can’t be treated as a breach of A breach of contract may be treated as a

Treatment
condition. breach of warranty.

Definition

Certain provisions need to be fulfilled as demanded in the contract of sale or any other contract. The condition is a
fundamental precondition on the basis of which the whole contract is based upon, on the other hand, warranty is
the written guarantee wherein the seller commits to repair or replace the product in case of any fault in the
product. Section 11 to 17 of the Sale of Goods Act enlightens the provisions relating to Conditions and
Warranties.

Section 12 of the Act draws a demarcation between a condition and a warranty. The determination of condition or
warranty depends upon the interpretation of the stipulation. The interpretation should be based on its function
rather than the form of the word used.

Condition

In the context of the Sale of Goods Act, 1930, a condition is a foundation of the entire contract and integral part
for performing the contract. The breach of the conditions gives the right to the aggrieved party to treat the
contract as repudiated. In other words, if the seller fails to fulfil a condition, the buyer has the option to repudiate
the contract or refuse to accept the goods. If the buyer has already paid, he can recover the prices and also claim
the damages for the breach of the contract.
For example, Sohan wants to purchase a horse from Ravi, which can run at a speed of 50 km per hour. Ravi
shows a horse and says that this horse is well suited for you. Sohan buys the horse. Later on, he finds that the
horse can run only at a speed of 30 km/hour. This is the breach of condition as the requirement of the buyer is not
fulfilled. The conditions can be further classified as follows.

Click Here

Kinds of conditions
Expressed Condition

The dictionary meaning of the term is defined as a statement in a legal agreement that says something must be
done or exist in the contract. The conditions which are imperative to the functioning of the contract and are
inserted into the contract at the will of both the parties are said to be expressed conditions.

Implied Condition

There are several implied conditions which are assumed by the parties in different kinds of contracts of sale. Say
for example the assumption during sale by description or sale by sample. Implied conditions are described in
Section 14 to 17 of the Sale of Goods Act, 1930. Unless otherwise agreed, these implied conditions are assumed
by the parties as if it is incorporated in the contract itself. Let’s study these conditions briefly:

Warranty
Warranty is the additional stipulation and a written guarantee that is collateral to the main purpose of the contract.
The effect of a breach of a warranty is that the aggrieved party cannot repudiate the whole contract however, can
claim for the damages. Unlike in the case of breach of condition, in the breach of warranty, the buyer cannot treat
the goods as repudiated.

Kinds of Warranty
Expressed Warranty

The warranties which are generally agreed by both the parties and are inserted in the contract, it is said to be
expressed warranties.

Implied Warranty

Implied warranties are those warranties which the parties assumed to have been incorporated in the contract of
sale despite the fact that the parties have not specifically included them in the contract. Subject to the contract, the
following are the implied warranties in the contract of sale:

Sale of Goods Act, 1930

13. When condition to be treated as warranty

(1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat the
breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated.

(2) Where a contract of sale is not severable and the buyer has accepted the goods or part thereof, 5[***] the breach of any condition to be
fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as
repudiated, unless there is a term of the contract, express or implied, to that effect.

(3) Nothing in this section shall affect the case of any condition or warranty fulfillment of which is excused by law by reason of impossibility
or otherwise.

When does Condition sink to the level of Warranty?

Section 13 of the Act specifies the cases wherein a breach of Condition sink to the level of breach of Warranty. In
the first two following points, it depends upon the will of the buyer, but the last one is compulsory and acts as
estoppel against him:

1. When the buyer waives the condition, the condition is considered a warranty.
2. A condition would sink to the level of warranty where the buyer on his own will treat the breach of condition as a
breach of warranty.
3. Wherein the contract is indivisible and the buyer has accepted the whole or part of goods, the condition is treated
as a warranty. Consequently, the contract cannot be repudiated. However, the damages can be claimed.

Conclusion

At the time of selling or purchasing goods, both the buyer and seller put forth some preconditions with regards to
the mode of payment, delivery, quality, quantity and other things necessary. These stipulations are either
considered as condition or warranty differing from case to case. These concepts are necessary to be understood as
it protects the rights of parties in case of breach of the contract.