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Month: August 2022

Quasi Contracts

The word ‘Quasi’ means pseudo. Hence, a Quasi contract is a pseudo-contract.There are cases where the law implies a promise and imposes obligations on one party while conferring rights to the other even when the basic elements of a contract are not present. These promises are not legal contracts, but the Court recognizes them as relations resembling a contract and enforces them like a contract.

These promises/ relations are Quasi contracts. These obligations can also arise due to different social relationships .The core principles behind a Quasi Contract are justice, equity and good conscience. It is based on the maxim: “No man must grow rich out of another persons’ loss.

example of a Quasi contract: Peter and Oliver enter a contract under which Peter agrees to deliver a basket of fruits at Oliver’s residence and Oliver promises to pay Rs 1,500 after consuming all the fruits. However, Peter erroneously delivers a basket of fruits at John’s residence instead of Oliver’s. When John gets home he assumes that the fruit basket is a birthday gift and consumes them.

Although there is no contract between Peter and John, the Court treats this as a Quasi-contract and orders John to either return the basket of fruits or pay Peter.

Features of a Quasi Contract

  1. It is usually a right to money and is generally (not always) to a liquidated sum of money.
  2. The right is not an outcome of an agreement but is imposed by law.
  3. The right is not available against everyone in the world but only against a specific person(s). Hence it resembles a contractual right.

Kinds of Quasi Contracts –

Section 68 to Section 72 of the Indian Contract Act, 1872 deals with Five Kinds of Quasi-Contract which are as follows –

1) Claim for necessaries supplied to person incapable of contracting, or on his account (Section 68):

If the “necessaries” for a person, who is incapable of contracting (for example, a minor or a mentally disabled person) or of the dependents of such a person are taken care of by someone, he has the right to be reimbursed from the property of such incapable person. Although the word “necessaries” has not specifically been defined in the Act, it is impliedly clear that it means the necessaries to sustain life, basic things like food, clothing, education, etc. These are things without which a person cannot reasonably exist. In simple terms, if a person A supplies another person B (who is incapable of entering into a contract) or his family or anybody else who is dependant on him, with necessaries for life, he is entitled to take his due return from the property of person B. He is entitled only to such a reasonable amount as the value of the goods or services he may have supplied hold.

2. Reimbursement of person paying money due by another, in payment of which he is interested (Section 69):

If a person A pays something in someone’s (a person B’s) place, that which person B is himself ‘bound by law’ to pay, A will be reimbursed by B. Please note that the person A should be ‘interested’ in this payment. It is a case of implied Indeminity.

For instance, Joe is a Zamindar. Annie holds one of his lands on lease in Punjab. The revenue of Joe’s land is payable to the government in arrears. So, the land ends up being advertised for sale by the government. According to the Revenue Law, if the land is sold, it will end Annie’s lease. To prevent this sale, Annie pays Joe’s dues to the government. Joe is bound to pay back to Annie.

The aforementioned illustration satisfies the following conditions-

  1. The party paying the other party’s dues is interested in the payment.
  2. The party whose payment is due was in fact bound by law to pay.

3. Obligation of person enjoying the benefit of the non-gratuitous Act (Section 70)

When a person lawfully does something for another person (for example, delivers a good or a service) without intending to do so ‘gratuitously’, and the other person enjoys the benefit of the delivery of that good or service, the latter is bound to pay back to the former.

A gratuitous act is one that is done for a person by another without the expectation of a return. For example, giving someone a gift is a gratuitous act. Here comes your Amazon package delivered to the wrong address. A pack of chocolate chip cookies that you ate as soon as they arrived. You are liable to compensate the actual owner of the package. The illustration of a shoe-shiner unsolicitedly polishing one’s shoes or that of the coolie picking up one’s goods will lie under Section 70. Such acts and services are not done gratuitously and therefore a liability to pay back arises on the part of the person on the receiving end.

4. Responsibility of finder of goods (Section 71)

Simply, a person who finds goods that belong to another person shall be treated as a bailee. A bailee is essentially a safe keeper of the goods, who is supposed to return the goods to the actual owner or dispose of them in the manner in which the actual owner may want them to. The bailee has certain duties and rights as the ‘possessor’ or ‘custodian’ of the goods for the time being. For example, Sarah finds a diamond lying on the floor in a shop. She picks it up and keeps it in her safe possession. Sarah makes all reasonable efforts to find the true owner of the diamond. The diamond actually belonged to Nadia. Sarah has the right to hold the possession of the diamond against all the world except Nadia, and is supposed to make reasonable efforts to find her, and return it to her. In this case, Nadia will have to pay the compensation for all the loss suffered by Sarah in finding her.

Duties of the finder of goods

  1. The finder has a duty to take reasonable care.
  2. He/she has a duty not to use the goods for his personal purposes.
  3. He/she has a duty not to mix the found goods with his own goods.
  4. He/she has a duty to make reasonable efforts to find the actual owner of the goods.

Rights of the finder of goods

  1. Right to Lien– The right to retain the goods found until he receives compensation for all the expenses suffered in finding the owner.
  2. Right to Sue– If the owner had announced a reward for whoever finds the good, the finder has the right to sue the owner for such reward or retain the goods until he is compensated.
  3. Right to Sell– The finder of goods has the right to sell the goods in certain specific circumstances, for example:

i) If the owner could not be found even after reasonable efforts.

ii) If the owner is found but refuses to pay compensation or the lawful charges of the finder.

iii) If the goods are in immediate danger of perishing if not used.iv) If the lawful charges of the finder amount to two-thirds of the value of goods.

5. Liability of person to whom money is paid or thing delivered by mistake or under coercion(Section 72)

As the heading suggests, if something is delivered to a person by ‘mistake’ or under ‘coercion’, he is liable to pay it back. For instance, Aristotle and Dante share a flat and contribute in half for the rent to be paid.  Aristotle, without knowing that Dante has already paid the due rent to the landlord in whole, pays again to the landlord. The landlord, in this case, is liable to give back the money delivered to him by mistake. The term mistake here can mean both a mistake of fact or mistake of law.

The section also uses the term ‘coercion’. Here is an example of something delivered under coercion-  A railway company refuses to deliver goods to a certain consignee except upon the payment of a certain illegal sum of money. The consignee pays the sum to obtain his goods. The company is liable to return the sum of money illegally charged.

Conclusion

A contract has certain elements, like the offer, and its acceptance, that give rise to an agreement. The agreement, if it is legally enforceable becomes a contract, that is, it can be taken care of in a court of law in case it is not performed by either of the parties involved. Yet, there are certain situations where even in the absence of an ‘agreement’ as such, one or the other party is obliged to perform something. Such obligations are called quasi-contractual obligations. 

WAQF

Meaning :

When Muslim a person, who is working for a charitable purpose under religious faith and sentiments and for the benefit and upliftment of the society, has donated his property in the name of Allah, is called waqf.

Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the ownership of dedicated property is taken away from the person making waqf and transferred and detained by God. 

One omer Ibnal – Khattab on getting land in khyber went to the prophet and enterating him sid “O Messenger of Allah” i have got land ion Khyber than which i have obtained more valuable property, what does thou advise me.  The prophet said if you likest make the property itself inalienab;e and given the profits from it to the charity.  Hence Omer donated this land as Waqf for poor, relatives, slaves, travellers and guests.  Thsi Waqf constituted by oer is condidered to be the first qaqf of the Islam.

Definition of Waqf:

Imam Abu Hanifa

Waqf is the detention of a specific thing in the ownership of the waqf or appropriator, and the devoting or appropriator’s of its profits or usufruct in charity on the poor or other good objects.

It is observed in M Kazim v A Asghar Ali 1931 The term ‘wakf literally means ‘detention or stoppage and the legal meaning of wakf according to accepted doctrine of the Hanafi School is the extinction of the proprietor’s ownership in the thing dedicated and its detention in the implied ownership of God in such a manner that the profits may revert to and be applied for the benefit of mankind. Sec. 2 Wakf Act, 1954 defines Wakf as, “Wakf 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. In India Waqf property vests in ownership of God.Court held that the purpose of the Waqf must be religious, pious or chritable, the dedication of property must be permanent and the usefruit must be utilized for the good of mankind.

  1. Property vests in God:

Waqf is that the ownership of property dedicated for the waqf cvests in God.  the creation of a Waqf is essentially based on a legal fiction, the fiction being that the property vests in God in perpetuity but income from the property is permitted to be utilized for certain specified purpose, which under the
Muslim Law recognised as Pious or religion.

  1. Waqf must be permenant

A Muslim waqf ,must be created for an unlimited operiod.  It must be expressly or impliedly reserved for the poor or for any other purpose recognised by muslaman law as religious, pious or charitable puropse ofa a permant.

  1. Waqf myst be irrevocable. Once constituted validly it cannot be revoked.

ESSENTIAL CONDITIONS FOR A VALID WAQF

The essential conditions for a valid waqf are as follow:

1. Permanent dedication: 

The dedication of waqf property must be permanent and Waqf himself must devote such property and give it for any purpose recognized by Muslim law, like religious, pious or charitable. If the wakf is made for a limited period it won’t be a valid wakf and also there should be no condition or contingency attached otherwise it will become invalid. The motive behind Wakf is always religious.

2. Competency of the Waqif:

Who Can Create a Waqf? : 

The person who constitutes the waqf of his properties is called the

‘founder of waqf or, Waqif. The waqif must be a competent person at the time of dedicating the property in waqf. For being a competent waqif a person must possess the capacity, as well as the right to constitute the waqf.

As regards the capacity of a Muslim for making a waqf, there are only two requirements:

(i) soundness of mind and,

(ii) majority.

A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transaction. Waqf constituted by an insane or minor person is void.

Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes in the principles of Islam’, he need not be a Muslim by religion. The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid waqf provided the object of waqf is not against the principles of Islam.

3. Right to make waqf: A person having the capacity but no right cannot constitute a valid waqf. The subject matter of wakf should be owned by wakif at the time when wakf is made. Whether a person has the right to constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the ownership of the property or not. A widow cannot constitute any waqf of the property which she holds in lieu of her unpaid dower because she is not an absolute owner of that property.

Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction. Amount of property: a person can dedicate his entire property, but in the case of the testamentary wakf, more than one-third of property cannot be dedicated.

 

CREATION OF WAKF

Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways –

1. By an act of a living person (inter vivos) – when a person declares the dedication of his property for Wakf. 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 Wakf.

2. 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 Wakf by will but now it has been approved.

3. By Usage – when a property has been in use for the charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.

KINDS OF WAQFS:

They are three kinds:

  1. Public
  2. Quasi Public
  3. Private

Categories of waqf from the perspective of its purpose:

• Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children and their off- spring. However, these beneficiaries cannot sell or dispose of the property subject-matter of waqf.

• Waqf khayri: the proceeds of waqf are earmarked to charity and philanthropy. Examples of beneficiaries include the poor and the needy. Waqf khayri is typically used to finance mosques, shelters, schools, and universities. This is meant to help financially-challenged individuals an

communities.

• Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very similar to waqf khayri, though waqf al-sabil is usually used to establish and construct the public utility (mosques, power plants, water supplies, graveyards, schools, etc).

• Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at times of

emergency or unexpected events that negatively influence the livelihood and well-being of a community of people. For example, waqf may be assigned to the satisfaction of specific needs such as medication for sick people who are unable to pay medication expenses and education of poor children. Waqf al-awaridh may also be used to finance maintenance of the utilities of a village or neighborhood.

Categories of waqf from the perspective of its output nature:

• Waqf istithmari: the waqf assets are intended for investment. Such assets are managed to produce income that will be used in constructing and reconstructing waqf properties.

• Waqf mubashar: the waqf assets are used to generate services to the benefit of some charity recipients or other beneficiaries. Examples of such assets include schools, utilities, etc

LEGAL CONSEQUENCES OF WAKF

Once a wakf is complete, the following are the consequences –

1. Dedication to God – The property vests in God in the sense that nobody can claim

ownership of it. In Md. Ismail vs Thakur Sabir Ali , SC held that even in wakf alal aulad,

the property is dedicated to God and only the usufructs are used by the descendants.

2. Irrevocable – In India, a wakf once declared and complete, cannot be revoked. The

wakif cannot get his property back in his name or in any other’s name.

3. Permanent or Perpetual – Perpetuality is an essential element of wakf. Once the

property is given to wakf, it remains for the wakf for ever. Wakf cannot be of a specified

time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad HC that the

wakf of a house built on a land leased for a fixed term was invalid.

4.Inalienable – Since Wakf 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.

5. Pious or charitable use – The usufructs of the wakf property can only be used for pious

and charitable purpose. It can also be used for descendants in case of a private wakf.

6.Extinction of the right of wakif – The wakif loses all rights, even to the usufructs, of the

property. He cannot claim any benefits from that property.

7. Power of court’s inspection – The courts have the power to inspect the functioning or

management of the wakf property. Misuse of the property of usufructs is a criminal

offence as per Wakf Act.1995.

According to Imam Mohammad, however, a wakf is not complete unless there is declaration coupled with:

  1. Appointment of mutawalli, and
  2. Delivery of possession.

In India, the view of Abu Yusuf is followed and views of Imam Mohammad, is not adopted. Under Shia Law no doubt, delivery of possession to the first person in whose favour the xoakf has been created is essential.

Long User.-Where land has for long been used as a wakf proof of express dedication is not necessary, and the legal dedication will be inferred.

Madras High Court in NR. Abdul Azeez v. ÂŁ. Sundaresa Chettiar AIR 1993, Madras. 169.

 it was held that it is a fundamental principle of the Muslim Law of Wakf that when a mosque is built and consecrated by public worship, it ceases to be the property of the builder and vests in God.

Mohd. Ismail Faruqui v. Union of India AIR, 1994 SC 605.

(Ayodhya case) the Supreme Court has observed that where a mosque has been adversely possessed by non-Muslims, it lost its sacred character as mosque. Hence the view that once a consecrated mosque, it remains always a place of worship as a mosque was not the Mohammedans Law of India as

The Mutawalli –

He is a manager of Wakf property.The person who manages the waqf property.  Weather the female or male can be act as a Mutawalli.

Md. Zaimubuddin  Vs. Moiden 1989 JT (11) SC 563, the sc court held that a woman can be appointed as mutawalli.Mutawalli is not a trustee in English sense he is a more like a manager but those duties are having a trustee similar duties.  If any waqf oproperty wrongfully deprives a beneficiary of the profits of the waqf property, he is liable to pay interest on the amount like trustee U/S 23 of Trust Act so trusteeship of the Mutwalli is known as tawliyat.  The person of non Muslim are also can be apoointed.

1) Appointment by :

 i) Founder i.e Wakif ii) Mutawalli’s power iii) Court’s power iv) Appointment by congregations 

2) Who may be Mutawalli – a Major and sound minded person can be a Mutawalli. – minor can be a Mutawalli in case of hereditary Mutawalli – female can also hold part of Mutawalli. 

3) Nature of Mutawalli– he is a manager and not trustee as property vests in God. 

4) Remuneration of Mutawalli, Officers and servants of Wakf – is made through wakfnama,  Mumtaz Vs AG AIR 1936 if the court can fix an amouont of remuneration exeeding 1/10 of the total income of the waqf.  It an honorary but not a right.

Powers of mutawalli – 

i. He has the power of manage and administration of wakf properties.

 – Power to utilize property for the purpose of wakf. 

– He can sue for possession of property.

– Md. Usuf V. Md. Sadiq 1933 Lah 501 – a Wakf deed provided for the sale of wakf property and to construct and to maintain a rest-house from the sale proceeds at Mecca. Court held that Mutawalli is having right to do so. 

ii) Alienation with the permission of the court for —For sale, mortgage / exchange. An alienation without permission is voidable.

 ii) Mutawalli’s power of granting lease- not for more than 3 years if it is agricultural land and for more than 1 year if it is non agricultural land.

 iii) Power of taking debt – no power of incurring debt

 iv) Power to file suit- after Wakf Act 1945, the power to file suit vests in Wakf board under whose supervision Mutawalli have to work. 

7 Removal of Mutawalli : – Founder has no power to remove Mutawalli unless such power is reserved in Wakf deed. 

-Court may remove on the ground of misfeasance, brach of trust/ unfitness/ any other reason. -A Mutawalli even if protect by Wakfnama can also be removed by court to consider interest of Wakf. 

-Thus a Mutawalli who is insolvent/ neglects to perform his duties, claims adversely to wakf property can be removed by court.

-Procedure for removing Mutawalli is by way of a suit in District Court.

1. By court –

1. if he misappropriates wakf property.

2. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.

3. Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs

Mahmood Hasan , SC held that using wakf money to buy property in wife’s name is such breach

of trust as is sufficient ground for removal of mutawalli.

4. he becomes insolvent.

2. By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli

from his office under the conditions mentioned therein.

3. By the wakif – As per Abu Yusuf, whose view is followed in India, even if the wakif has not

reserved the right to remove the mutawalli in wakf deed, he can still remove the mutawalli.

DIFFERENCE BETWEEN WAQF AND TRUST

Both, in waqf as well as in trusts, the property is detained and its usufruct is utilised for religious or charitable purposes. But, a waqf under Muslim personal law may be distinguished from a trust at least on following matters:

(1) A waqf may be constituted only for those purposes which are recognised as religious, pious or charitable in Islam whereas, a trust may be constituted for any lawful object.

(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit for himself, but the founder of a trust may himself be a beneficiary.

(3) The powers of a mutawalli (manager of the waqf-property) are very limited as compared to the powers of a trustee.

(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not be perpetual and may also be revoked under certain conditions. Because of the above mentioned differences between waqf and a trust, the Indian Trust, Act, 1882, is not applicable to Muslim waqf sin so far as the nature and operation of waqfs is concerned. But, for purposes of instituting any suit in the cases of irregularities and mismanagement of waqf property, a waqf has been regarded as a ‘trust’ within the meaning of Section 92 of the Civil Procedure Code, 1908.

However it must be noted that the Indian Trusts Act is applicable also to Muslims. Therefore, if a Muslim wants to settle his properties in a trust he may do so under this Act instead of creating waqf under Muslim personal law

WAQF

Meaning :

When Muslim a person, who is working for a charitable purpose under religious faith and sentiments and for the benefit and upliftment of the society, has donated his property in the name of Allah, is called waqf.

Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the ownership of dedicated property is taken away from the person making waqf and transferred and detained by God. 

One omer Ibnal – Khattab on getting land in khyber went to the prophet and enterating him sid “O Messenger of Allah” i have got land ion Khyber than which i have obtained more valuable property, what does thou advise me.  The prophet said if you likest make the property itself inalienab;e and given the profits from it to the charity.  Hence Omer donated this land as Waqf for poor, relatives, slaves, travellers and guests.  Thsi Waqf constituted by oer is condidered to be the first qaqf of the Islam.

Definition of Waqf:

Imam Abu Hanifa

Waqf is the detention of a specific thing in the ownership of the waqf or appropriator, and the devoting or appropriator’s of its profits or usufruct in charity on the poor or other good objects.

It is observed in M Kazim v A Asghar Ali 1931 The term ‘wakf literally means ‘detention or stoppage and the legal meaning of wakf according to accepted doctrine of the Hanafi School is the extinction of the proprietor’s ownership in the thing dedicated and its detention in the implied ownership of God in such a manner that the profits may revert to and be applied for the benefit of mankind. Sec. 2 Wakf Act, 1954 defines Wakf as, “Wakf 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. In India Waqf property vests in ownership of God.Court held that the purpose of the Waqf must be religious, pious or chritable, the dedication of property must be permanent and the usefruit must be utilized for the good of mankind.

  1. Property vests in God:

Waqf is that the ownership of property dedicated for the waqf cvests in God.  the creation of a Waqf is essentially based on a legal fiction, the fiction being that the property vests in God in perpetuity but income from the property is permitted to be utilized for certain specified purpose, which under the
Muslim Law recognised as Pious or religion.

  1. Waqf must be permenant

A Muslim waqf ,must be created for an unlimited operiod.  It must be expressly or impliedly reserved for the poor or for any other purpose recognised by muslaman law as religious, pious or charitable puropse ofa a permant.

  1. Waqf myst be irrevocable. Once constituted validly it cannot be revoked.

ESSENTIAL CONDITIONS FOR A VALID WAQF

The essential conditions for a valid waqf are as follow:

1. Permanent dedication: 

The dedication of waqf property must be permanent and Waqf himself must devote such property and give it for any purpose recognized by Muslim law, like religious, pious or charitable. If the wakf is made for a limited period it won’t be a valid wakf and also there should be no condition or contingency attached otherwise it will become invalid. The motive behind Wakf is always religious.

2. Competency of the Waqif:

Who Can Create a Waqf? : 

The person who constitutes the waqf of his properties is called the

‘founder of waqf or, Waqif. The waqif must be a competent person at the time of dedicating the property in waqf. For being a competent waqif a person must possess the capacity, as well as the right to constitute the waqf.

As regards the capacity of a Muslim for making a waqf, there are only two requirements:

(i) soundness of mind and,

(ii) majority.

A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transaction. Waqf constituted by an insane or minor person is void.

Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes in the principles of Islam’, he need not be a Muslim by religion. The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid waqf provided the object of waqf is not against the principles of Islam.

3. Right to make waqf: A person having the capacity but no right cannot constitute a valid waqf. The subject matter of wakf should be owned by wakif at the time when wakf is made. Whether a person has the right to constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the ownership of the property or not. A widow cannot constitute any waqf of the property which she holds in lieu of her unpaid dower because she is not an absolute owner of that property.

Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction. Amount of property: a person can dedicate his entire property, but in the case of the testamentary wakf, more than one-third of property cannot be dedicated.

 

CREATION OF WAKF

Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways –

1. By an act of a living person (inter vivos) – when a person declares the dedication of his property for Wakf. 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 Wakf.

2. 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 Wakf by will but now it has been approved.

3. By Usage – when a property has been in use for the charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.

KINDS OF WAQFS:

They are three kinds:

  1. Public
  2. Quasi Public
  3. Private

Categories of waqf from the perspective of its purpose:

• Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children and their off- spring. However, these beneficiaries cannot sell or dispose of the property subject-matter of waqf.

• Waqf khayri: the proceeds of waqf are earmarked to charity and philanthropy. Examples of beneficiaries include the poor and the needy. Waqf khayri is typically used to finance mosques, shelters, schools, and universities. This is meant to help financially-challenged individuals an

communities.

• Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very similar to waqf khayri, though waqf al-sabil is usually used to establish and construct the public utility (mosques, power plants, water supplies, graveyards, schools, etc).

• Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at times of

emergency or unexpected events that negatively influence the livelihood and well-being of a community of people. For example, waqf may be assigned to the satisfaction of specific needs such as medication for sick people who are unable to pay medication expenses and education of poor children. Waqf al-awaridh may also be used to finance maintenance of the utilities of a village or neighborhood.

Categories of waqf from the perspective of its output nature:

• Waqf istithmari: the waqf assets are intended for investment. Such assets are managed to produce income that will be used in constructing and reconstructing waqf properties.

• Waqf mubashar: the waqf assets are used to generate services to the benefit of some charity recipients or other beneficiaries. Examples of such assets include schools, utilities, etc

LEGAL CONSEQUENCES OF WAKF

Once a wakf is complete, the following are the consequences –

1. Dedication to God – The property vests in God in the sense that nobody can claim

ownership of it. In Md. Ismail vs Thakur Sabir Ali , SC held that even in wakf alal aulad,

the property is dedicated to God and only the usufructs are used by the descendants.

2. Irrevocable – In India, a wakf once declared and complete, cannot be revoked. The

wakif cannot get his property back in his name or in any other’s name.

3. Permanent or Perpetual – Perpetuality is an essential element of wakf. Once the

property is given to wakf, it remains for the wakf for ever. Wakf cannot be of a specified

time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad HC that the

wakf of a house built on a land leased for a fixed term was invalid.

4.Inalienable – Since Wakf 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.

5. Pious or charitable use – The usufructs of the wakf property can only be used for pious

and charitable purpose. It can also be used for descendants in case of a private wakf.

6.Extinction of the right of wakif – The wakif loses all rights, even to the usufructs, of the

property. He cannot claim any benefits from that property.

7. Power of court’s inspection – The courts have the power to inspect the functioning or

management of the wakf property. Misuse of the property of usufructs is a criminal

offence as per Wakf Act.1995.

According to Imam Mohammad, however, a wakf is not complete unless there is declaration coupled with:

  1. Appointment of mutawalli, and
  2. Delivery of possession.

In India, the view of Abu Yusuf is followed and views of Imam Mohammad, is not adopted. Under Shia Law no doubt, delivery of possession to the first person in whose favour the xoakf has been created is essential.

Long User.-Where land has for long been used as a wakf proof of express dedication is not necessary, and the legal dedication will be inferred.

Madras High Court in NR. Abdul Azeez v. ÂŁ. Sundaresa Chettiar AIR 1993, Madras. 169.

 it was held that it is a fundamental principle of the Muslim Law of Wakf that when a mosque is built and consecrated by public worship, it ceases to be the property of the builder and vests in God.

Mohd. Ismail Faruqui v. Union of India AIR, 1994 SC 605.

(Ayodhya case) the Supreme Court has observed that where a mosque has been adversely possessed by non-Muslims, it lost its sacred character as mosque. Hence the view that once a consecrated mosque, it remains always a place of worship as a mosque was not the Mohammedans Law of India as

The Mutawalli –

He is a manager of Wakf property.The person who manages the waqf property.  Weather the female or male can be act as a Mutawalli.

Md. Zaimubuddin  Vs. Moiden 1989 JT (11) SC 563, the sc court held that a woman can be appointed as mutawalli.Mutawalli is not a trustee in English sense he is a more like a manager but those duties are having a trustee similar duties.  If any waqf oproperty wrongfully deprives a beneficiary of the profits of the waqf property, he is liable to pay interest on the amount like trustee U/S 23 of Trust Act so trusteeship of the Mutwalli is known as tawliyat.  The person of non Muslim are also can be apoointed.

1) Appointment by :

 i) Founder i.e Wakif ii) Mutawalli’s power iii) Court’s power iv) Appointment by congregations 

2) Who may be Mutawalli – a Major and sound minded person can be a Mutawalli. – minor can be a Mutawalli in case of hereditary Mutawalli – female can also hold part of Mutawalli. 

3) Nature of Mutawalli– he is a manager and not trustee as property vests in God. 

4) Remuneration of Mutawalli, Officers and servants of Wakf – is made through wakfnama,  Mumtaz Vs AG AIR 1936 if the court can fix an amouont of remuneration exeeding 1/10 of the total income of the waqf.  It an honorary but not a right.

Powers of mutawalli – 

i. He has the power of manage and administration of wakf properties.

 – Power to utilize property for the purpose of wakf. 

– He can sue for possession of property.

– Md. Usuf V. Md. Sadiq 1933 Lah 501 – a Wakf deed provided for the sale of wakf property and to construct and to maintain a rest-house from the sale proceeds at Mecca. Court held that Mutawalli is having right to do so. 

ii) Alienation with the permission of the court for —For sale, mortgage / exchange. An alienation without permission is voidable.

 ii) Mutawalli’s power of granting lease- not for more than 3 years if it is agricultural land and for more than 1 year if it is non agricultural land.

 iii) Power of taking debt – no power of incurring debt

 iv) Power to file suit- after Wakf Act 1945, the power to file suit vests in Wakf board under whose supervision Mutawalli have to work. 

7 Removal of Mutawalli : – Founder has no power to remove Mutawalli unless such power is reserved in Wakf deed. 

-Court may remove on the ground of misfeasance, brach of trust/ unfitness/ any other reason. -A Mutawalli even if protect by Wakfnama can also be removed by court to consider interest of Wakf. 

-Thus a Mutawalli who is insolvent/ neglects to perform his duties, claims adversely to wakf property can be removed by court.

-Procedure for removing Mutawalli is by way of a suit in District Court.

1. By court –

1. if he misappropriates wakf property.

2. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.

3. Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs

Mahmood Hasan , SC held that using wakf money to buy property in wife’s name is such breach

of trust as is sufficient ground for removal of mutawalli.

4. he becomes insolvent.

2. By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli

from his office under the conditions mentioned therein.

3. By the wakif – As per Abu Yusuf, whose view is followed in India, even if the wakif has not

reserved the right to remove the mutawalli in wakf deed, he can still remove the mutawalli.

DIFFERENCE BETWEEN WAQF AND TRUST

Both, in waqf as well as in trusts, the property is detained and its usufruct is utilised for religious or charitable purposes. But, a waqf under Muslim personal law may be distinguished from a trust at least on following matters:

(1) A waqf may be constituted only for those purposes which are recognised as religious, pious or charitable in Islam whereas, a trust may be constituted for any lawful object.

(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit for himself, but the founder of a trust may himself be a beneficiary.

(3) The powers of a mutawalli (manager of the waqf-property) are very limited as compared to the powers of a trustee.

(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not be perpetual and may also be revoked under certain conditions. Because of the above mentioned differences between waqf and a trust, the Indian Trust, Act, 1882, is not applicable to Muslim waqf sin so far as the nature and operation of waqfs is concerned. But, for purposes of instituting any suit in the cases of irregularities and mismanagement of waqf property, a waqf has been regarded as a ‘trust’ within the meaning of Section 92 of the Civil Procedure Code, 1908.

However it must be noted that the Indian Trusts Act is applicable also to Muslims. Therefore, if a Muslim wants to settle his properties in a trust he may do so under this Act instead of creating waqf under Muslim personal law

MUTAWALLI

When Muslim a person, who is working for a charitable purpose under religious faith and sentiments and for the benefit and upliftment of the society, has donated his property in the name of Allah, is called waqf.

According to Imam Mohammad, however, a wakf is not complete unless there is declaration coupled with:

  1. Appointment of mutawalli, and
  2. Delivery of possession.

The Mutawalli –

mutawalli means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a competent authority to be the mutawalli of a wakf and includes any person who is a mutawalli or a wakf by virtue of any custom or who is a naib- mutawalli, khadim, mujawar, sajjadanashin, amin.

He is a manager of Wakf property.The person who manages the waqf property.  Weather the female or male can be act as a Mutawalli. Md. Zaimubuddin  Vs. Moiden 1989 JT (11) SC 563, the sc court held that a woman can be appointed as mutawalli.Mutawalli is not a trustee in English sense he is a more like a manager but those duties are having a trustee similar duties.  If any waqf oproperty wrongfully deprives a beneficiary of the profits of the waqf property, he is liable to pay interest on the amount like trustee U/S 23 of Trust Act so trusteeship of the Mutwalli is known as tawliyat.  The person of non Muslim are also can be apoointed.

1) Appointment by :

 i) Founder i.e Wakif ii) Mutawalli’s power iii) Court’s power iv) Appointment by congregations 

2) Who may be Mutawalli – a Major and sound minded person can be a Mutawalli. – minor can be a Mutawalli in case of hereditary Mutawalli – female can also hold part of Mutawalli. 

3) Nature of Mutawalli– he is a manager and not trustee as property vests in God. 

4) Remuneration of Mutawalli, Officers and servants of Wakf – is made through wakfnama,  Mumtaz Vs AG AIR 1936 if the court can fix an amouont of remuneration exeeding 1/10 of the total income of the waqf.  It an honorary but not a right.

Powers of mutawalli – 

i. He has the power of manage and administration of wakf properties.

 – Power to utilize property for the purpose of wakf. 

– He can sue for possession of property.

– Md. Usuf V. Md. Sadiq 1933 Lah 501 – a Wakf deed provided for the sale of wakf property and to construct and to maintain a rest-house from the sale proceeds at Mecca. Court held that Mutawalli is having right to do so. 

ii) Alienation with the permission of the court for —For sale, mortgage / exchange. An alienation without permission is voidable.

 ii) Mutawalli’s power of granting lease- not for more than 3 years if it is agricultural land and for more than 1 year if it is non agricultural land.

 iii) Power of taking debt – no power of incurring debt

 iv) Power to file suit- after Wakf Act 1945, the power to file suit vests in Wakf board under whose supervision Mutawalli have to work. 

7 Removal of Mutawalli : – Founder has no power to remove Mutawalli unless such power is reserved in Wakf deed. 

-Court may remove on the ground of misfeasance, brach of trust/ unfitness/ any other reason. -A Mutawalli even if protect by Wakfnama can also be removed by court to consider interest of Wakf. 

-Thus a Mutawalli who is insolvent/ neglects to perform his duties, claims adversely to wakf property can be removed by court.

-Procedure for removing Mutawalli is by way of a suit in District Court.

1. By court –

1. if he misappropriates wakf property.

2. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.

3. Knowingly or intentionally causes damage or loss to wakf property.

In Bibi Sadique Fatima vs Mahmood Hasan , SC held that using wakf money to buy property in wife’s name is such breach of trust as is sufficient ground for removal of mutawalli.

4. he becomes insolvent.

2. By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli from his office under the conditions mentioned therein.

3. By the wakif – As per Abu Yusuf, whose view is followed in India, even if the wakif has not reserved the right to remove the mutawalli in wakf deed, he can still remove the mutawalli.

CONCLUSION

Mutawalli is the person who takes over the management of wakf. Appointment of Mutawalli is a compulsion in Shia Law. However, there is no compulsion in Sunni Law. Mutawalli under Muslim Law has no right in the property belonging to the wakf. The property is not vested in him. Technically, the position of Mutawalli under Muslim Law is different from that of a trustee. He is merely a manager or supervisor.

.

Peril of the Sea

Marine insurance has been defined as a contract between the insurer and insured in which insurer agrees to pay an agreed amount to the insured against marine losses. Marine insurance covers transportation of goods by ship, rail, road, air & couriers.

 ‘peril of the sea’ covers damages to ship during the voyage by the Acts of God. It includes those accidents or casualties which do not happen due to the free will of a human being. Even if we talk about natural perils, it will not include the natural and ordinary action of wind. 

Perils of the Sea refers to extraordinary forces of nature that maritime ventures might encounter in the course of a voyage. The term ‘perils of the sea’ used in marine policy do not include every casualty, which may occur to the subject matter of the insurance on the sea. It means perils of the sea include those accidents or casualties which do not happen due to the free will of a human being. Some examples of these perils include stranding, sinking, collision, heavy wave action, and high windsBroadly speaking, ‘peril of the sea’ is defined to cover everything that happens to ship during the voyage by the Acts of God. To sum up, perils of the sea mean everything which happens to the vessel during the voyage by the Act of God without any intervention of a human.

Further, ‘perils of the sea’ in marine insurance comprise of losses only to goods which are on board that happens due to some irresistible force or natural cause or from the overwhelming power which is beyond the human skill and prudence. It includes only the casualties that result from the violent action of the elements as distinguished from the silent natural and gradual action of the elements upon the vessel itself. Thus the insurer will be liable only if the loss or damage is the proximate result of the fortuitous accident of the sea, e.g., the action of storm, cyclone, and waves, etc. Here are some of the instances which are covered under perils of the sea are-

  • Foundering at Sea: If a ship is found to be missing for a duration of time and there is no news about the missing ship, it would be considered as foundering at sea. Here, the loss would be assumed as caused by the perils of the sea.
  • Ship wreckage: In a case where the ship collides against a hill or rock and is driven to the shore by the violent winds, it would be considered as a shipwreck.
  • Stranding: In a situation where a ship got out of action after an accident and struck up in a shallow region of sands, it would be called stranding.
  • Collision: In a case, where the ship collides with another ship, it will be considered as a collision.

OTHER PERILS INSURED IN A MARINE POLICY.

1. Perils of Sea

Under the perils of the sea, the ordinary action of the winds and waves, ordinary wear and tear to the vessel, the inherent risk of the cargo is not included. The underwriter may be liable for losses caused by Perils of the sea; he is not necessarily liable for perils on the sea.

Perils of the sea refer to fortuitous accidents or casualties of the sea. Suppose the loss arising out of any of the perils of the sea insured is attributable to the fraud or willful misconduct of the assured. In that case, the underwriter is acquitted from the liability under the policy.

2. Fire

In olden times fire was the biggest maritime peril, but recently it has been under control to a greater extent. Damage resulting from fire and smoke is included under fire-peril. The water used for extinguishing a fire may cause damage to the insured goods. So, this peril is also insurable. The damage due to spontaneous combustion may be maritime peril and be insured against.

Damage was done due to the lightning, explosion, and fire originating from the negligence of the crew are recoverable from underwriters. The losses which are not included in the standard policy can be covered by having special clauses and paying an extra premium.

3. Man-of-War

This is the vessel that is authorized by nations for the purpose of defense or attack in the event of hostilities. Any damage to the goods or ships arising out of collision against a man-of-war is insurable.

4. Enemies

Tile ships belonging to the foe (enemy) may cause loss to the insured and is re-underwritten by the marine policy. This policy extends to all the persons of the enemy country and to their hostile acts provided such acts form part of the enemy’s actions.

5. Pirates, Rovers, Thieves

The perils on account of pirates, rovers, and thieves were common in olden times, but they have been reduced considerably. These acts are generally committed to pursuing individual gain by persons beyond the jurisdiction of a state. The ter’ ‘thiev’s’ does not mean clandestine theft or theft committed by any crew, officers, or passengers.

6. Jettison

Jettison means voluntary throwing away of the cargo or part of vevessel’s equipment for lightning or relieving the ship for the common safety.

  • The aim of intentionally throwing away the goods or property is to relieve the vessel from some imminent peril.
  • The accidental falling of things does not constitute a jettison.
  • Own inherent-vice of cargo is also not included in the jettison.

7. Barratry

Barratry includes every wrongful act willfully committed by the master or crew the prejudice of the owner. The act of barratry must be committed without the knowledge of the owner.

The theft, then setting fire to ship, fraudulent selling of vessel and cargo without the connivance of the ship-owner are the various examples of the barratry. The insurer, if barratry insured, is liable for losses arising out of barratry.

8. Restraints and Detainments

The preventions free use of a port by the government of the country is called restraints. It may cause interruption and possible loss of voyages involving such ports and sacrifice of cargo.

The te’m ‘detainme’ts’ covers losses resulting from the detention of a vessel and its cargo by blockage or possibly quarantine regulation or other interference by the police power of a nation while a vessel is in port. It does not cover losses that result merely from delay or interruption of the voyage, or loss of market or some other remote result.

9. The Free of Capture and Seizure Clause (F.C. & S. Clause)

The policy generally covers war perils. But, to include the perils of the sudden declaration of war, the war clause or free of capture and seizure clause is added to relieve war perils. By deletion of this clause, the policy is automatically restored to its original condition and adequate premiums are charged for the purpose.

10. Explosion

The risk of the explosion has greatly increased. The explosion on board a vessel damaging hull or cargo or both could be constructed as peril on the sea, and an explosion onshore might damage a ship or its cargo.

Marine cargo policies were amended to include the risk of explosions not clearly caused by war perils. In case of hull policies, the explosion ‘on shipboard or elsewhere’ is covered in the amended “Inchmaree or Negligence clause”.

11. Strikes, Riots, and Civil Commotion Clause

The marine insurance on cargo is extended to cover from warehouse to warehouse or otherwise insures the goods on shore prior to shipment and after discharge; the danger of underwriters being held liable for losses, resulting from the unlawful acts of strikers from riots or civil commotions is materially enhanced. The insurers are unwilling to assume liability for losses due to unlawful acts.

12. All Other Perils

The loss occurred by the saltwater of the sea, action of worms on timber, cattle dying due to wanting of fodder as a result of lengthy voyage constitute sea perils. Other damages may be due to oil, sweat, and heat, which are insured under other perils.

CONCLUSION

perils that are peculiar to the sea but are of such an extraordinary nature and power that one cannot guard against them using ordinary skill and prudence the insurance company denied that such waves in that region were perils of the sea.Some examples of these perils include stranding, sinking, collision, heavy wave action, and high winds.

INSURANCE  RISK

Meaning

The term of risks in insurance says that how the insurers evaluate their risks in issuing insurance policies to the policyholders on the loss that may occur due to loss, theft, or damage to the property or even someone is injured. This concept also says the types of those risks are involved in the issuance of insurance. It also helps the insurers to evaluate the risk and calculate the claims that can be paid in the future at any point in time if the damage or loss occurs.

An insurance risk is a threat or hazard that the insurance provider has committed to provide coverage for under the terms of the policy. If these risks or hazards materialise, they could result in monetary loss as well as physical harm or property damage.
The insurance provider is required to give the policyholder the agreed-upon reimbursement sum in the event that the insured event occurs and a claim is made.

Examples of insurance risks include the risk of fire, earthquake losses, or even liability when an insured is found responsible for causing bodily injury, death, or property damage to 3rd parties.

Insurers generally calculate the premium with reference to these elements./ insurance premiums are calculated based on three factors:

  • The chance that a certain insurance risk will be realized.
  • The severity of the damage if the insurance risk is realized.
  • The number of risks the insurer is assuming liability for.

The amount of insurance risks the policy is covering also plays a big role. A policy that offers coverage for a greater number of perils or risks will be more expensive than one that does not cover as many. This is because the probability that the policy will need to respond to pay is greater.

Elements of Risk:

Risk depends upon various elements of the event insured against in its happening sooner or later. these circumstances must be disclosed by the insured and the insurers generally calculate the premium with reference to these elements:

In life insurance the risk depends upon :  

  1. Mode of living 
  2. Occupation 
  3. Environment 
  4. Position and status in life 
  5. Character 
  6. Heredity
  7. Previous illness  &
  8. Special dangers 

In property insurence the risk depends upon 

  1. The nature of the property (movable or immoveable or any other )
  2. Character 
  3. Area 
  4. Situation and locality 
  5.  exposure to outside dangers
  6. Inherent defect 
  7. The title of the property  

In marine insurance the risk depends  upon ;

  1. Voyage &its nature ( voyage means along journey involving travel by sea or inspace )
  2. The route of voyage 
  3. The Winds & storms in the locality
  4. The danger of war,capture ,seizure 
  5. Pirates 
  6. Mutiny of crew 
  7. Insurrection of natives & dangerous coasts, 

Kinds of Risks

  1. Pure Risk:
  2. Pure risk is a category of risk that cannot be controlled and has two outcomes: complete loss or no loss at all. There are no opportunities for gain or profit when pure risk is involved. Pure risk is generally prevalent in situations such as natural disasters,, fires, or death. These situations cannot be predicted and are beyond anyone’s control. Pure risk is Pure risks can be divided into three different categories: personal, property, and liability.

Personal risks directly affect an individual and may involve the loss of earnings and assets or an increase in expenses. For example, unemployment may create financial burdens from the loss of income and employment benefits. Identity theft may result in damaged credit, and poor health may result in substantial medical bills, as well as the loss of earning power and the depletion of savings.

Property risks involve property damaged due to uncontrollable forces such as fire, lightning, hurricanes, tornados, or hail.

Liability risks may involve litigation due to real or perceived injustice. For example, a person injured after slipping on someone else’s icy driveway may sue for medical expenses, lost income, and other associated damages.

2. Speculative risk

Speculative risk works on speculations. The cause of these risks is mere speculation. The goal of these risks is to make a profit. In speculative risk, there is a possibility for the insured to get profit however loss can also occur. These types of risks involve investing in a share market, setting up a new business, etc.

3. Fundamental risk and Particular risk

Fundamental risks are the risks that are dependent on nature. These are the risk arises from natural calamities and can’t be controlled by any individual or group. The loss caused by such factors is unpredictable; it can be either a huge loss of money and lives or it can cause small loss.

Eg: Flood, earthquake, etc

Particular risks are the risks that are caused by a group of people and are not natural. It includes causes like communal riots, terror attacks, etc which are not created and controlled by nature.  

Normally fundamental risks were not supposed to be insurable because of the magnitude and these were considered to be the responsibility of State. Now because of demand and insurers’ strength, these risks are easily insurable.

Particular risks are; as opposed to what has been narrated herein before, there are risks which usually arise from actions of individuals or even group of individuals These may be identified as causes arising from personal (or group) behavior and effects (losses) not being of that magnitude. These are mostly men created because of their negligence, error in judgment, carelessness, and disregard for law or respect.

We may even go onto suggesting that these are indeed the cases (both cause and effect) where there has been an omission to do something which should have been done or there has been done something which should not have been done.

We may call these as risks of personal nature. The common examples are:

  • Fire Burglary, housebreaking, larceny, and theft,
  • Stranding, Sinking, Capsizing, Collision in case of a ship, including cargo loss,
  • Machinery breakdown and deterioration of stock due to machinery breakdown,
  • Motor accidents including death and bodily injuries, Industrial accidents,
  • The collapse of bridges, Derailments.

 4. Financial Risk

Refers to the danger in which the outcome of the event is measurable in terms of the money, i.e., any loss that could occur due to the risk can be measured by the concerned person in monetary value. An example of the financial risk includes a loss to the goods in the warehouse of the company due to the fire. These risks are insurable and are generally the main subjects of the insurance.

5. Non-Financial Risk

Non-Financial risk refers to the risk in which the outcome of the event is not measurable in terms of the money, i.e., any loss that could occur due to the risk cannot be measured by the concerned person in the monetary value. An example of the non-financial risk includes the risk of poor selection of the brand while purchasing mobile phones. These risks are uninsurable since they cannot be measured.

6. Static Risk

Static risk refers to the risk which remains constant over the period and is generally not affected by the business environment. These risks arise from human mistakes or actions of nature. An example of static risk includes the embezzlement of funds in a company by its employees. They are generally easily insurable as they are easy to measure.

Transfer of Risks:

Before we understand what is transfer of risk we must know what is meaning of the word transfer. The meaning of transfer is to move from one place to another, to covey property to another, or transfer any right/power/money/shares/liabilities or assets.

When we talk of liabilities one becomes much alert as everyone is eager to transfer the liabilities to someone else the particularly pecuniary liabilities. And what are those pecuniary liabilities. It may a debt due to a bank/others, liability of procuring health services, liability of accidental events or otherwise. Every type of liability is considered as a Risk.

The Insurance is a form of risk management. It is primarily used to transfer risks of loss in exchange for payment of certain amount known as premium. The insurer company is engaged in the business of selling the insurance, (willing to accept the risk) the person desirous of purchasing the insurance (willing to transfer the risks).

Why the risk is transferred:

The risk that an individual or a any entity is not willing to bear is preferred to be transferred to another entity. In brief it is called insurance. In exchange for payment of an agreed amount say premium the insurer agrees to indemnify the insured for losses that result from specified perils. Options and hedges also operate to transfer risk from one party to another.

conclusion

An insurance risk is a threat or peril that the insurance company has agreed to insure against in the policy wordings. These types of risks or perils have the potential to cause financial loss such as property damage or bodily injury if it were to occur. The best policies are the ones that cover the most relevant insurance risks you might face at the most reasonable cost.

WILL

Will is a legal declaration of transfer of property by a person to another after his death. According to Section 2(h) of Indian Succession Act, 1925, “will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. Under Muslim Law, a will executed by a Mussalman is called ‘Wasiyat’. The person who executes a Will is known as legator or testator(Al-Musi) and the person in whose favour the Will is executed is called legatee or testatrix(AL-Musa Lahu). The property, wealth substance or use fruit of a thing about which a will is made is termed as bequest or Musa-be-hi. The famous Muslim Jurist Ameer Ali was of the opinion that Will is a divine institution because its exercise is regulated by the Holy Quran. A Muslim can make a Will in favour of any person but only to the extent of one-third of the total property and if the property is given more than that in the Will then the consent of the legal heirs is compulsory. Mazhar Hussain Vs  Bodha Bibi  (1898 21 ALL 91 P.C) Court held that a will of suicide is valid, when made in contemplation of taking poison, but before poison actually been taken onus of proving that will written after swallowing poison rests on party impugning with. 

ESSENTIALS OF A VALID WILL

Under Muslim Law, a valid will is that which is having certain essentials 

1.The person making a Will i.e., legator must be competent to make a will

2.The legatee shall be capable to taking the endowment.

3.The property which is given by legator must be bequeathable property.

4.There must be free consent of legator and legatee.

5.The legator should have testamentary rights over the property.

Objective

The object of Wills according to the tradition of the Prophet is to provide for the maintenance of members of family and other relatives where they cannot be properly provided for by the law of inheritance. At the same time the prophet has declared that the power should not be exercised to the injury of the lawful heirs. A bequest in favour of an heir would be an injury to the other heirs as it would reduce their shares and would consequently induce a breach of the ties of kindred.

A Will offers to the testator the means of correcting to a certain extent the law of succession, and enabling some of those relatives who are excluded from inheritance to obtain a share in his property, and recognizing the services rendered to him by a stranger.

WHO CAN MAKE A WILL

(competent of the legato)

1. He must be a Muslim

2. Soundness of Mind

3. Age of majority

4. Consent of Legator

LEGATEE AND HIS COMPETENCE

(To whom Will can be made?)

1. Must be a person in existence

2. Child in the womb of mother (unborn persons)

3. Murderer of Legator-

4. Consent of Legatee.

5. Non Muslim

6. Charity

7. Pre-deased testator

8. Joint Legatee

FORMALITIES OF WILL

Under Muslim Law, there is no any expressed formalities for the execution of the Will. In validating a Will, the intention of legator plays a significant role. Such intention of legator must be explicit, unequivocal and clear in nature. A will can be made orally or in writing or by any other proper gesture.

ORAL WILL

A simple oral declaration is also regarded as a valid Will. It is not necessary or abiding to follow a certain process or procedure in order to constitute a Will. But the burden to validate such a Will is very brawny.

WRITTEN WILL :

A will can be written also and for a written Will no specific form is described. A written Will is valid though it is not signed by legator or attested by the witnesses. If a document possesses the important characteristics of a Will then it will be considered as a valid Will.

THE SUBJECT MATTER OF A WILL

Any kind of corporeal or property whether it is movable or immovable can be considered as the subject matter of a Will. But there are two conditions when a legator can bequest his property in a Will-

1. When he is the owner of the property at the time of his death.

2. Such property must be transferable.

In certain matter, a property endowed under a Will may or may not exist at the time of execution of Will but it is compulsory that such endowment must be in ownership of the legator at time of his death.

RijiaBibi v Md Abdul Kachem (AIR 2013 Gau 34), held that the Will executed was void as it was not consented by the heirs and all the claimants would have their rights determined in accordance with the law of Inheritance.

A Muslim cannot discard through will more than 1/3 of the net assets inside the wake of allowing (assembly) for the duties and memorial provider charges of the deceased benefactor (beneath both Hanafi Law and Shia regulation).

The relaxation of the 2/3 provide must be made accessible for appropriation among the beneficiaries. However, to pass on the 1/3 provided, the Muslim needs to collect the assent of alternate beneficiaries. 

Gulam Md v GulamIiussain, AIR 1932 PC 81 held for this case that property for beneficiaries without the assent of various beneficiaries is invalid. If the amount so transferred as felt by the testator is more than enough, as a consequence reduces it, this process is called abatement of legacy.

Shia law chooses the process of abatement of legacy through the preferential method, whereas the Sunni law, the abatement is made in a rateable manner.

EXCEPTION TO THE RULE OF ONE-THIRD

◦Since the rightful claims of the heirs should not be disturbed, it derives its origin from Hadith. There are majorly two exceptions:

◦1. An heirless (legal Heir) person can bequest the whole property.

◦2. Where the heirs themselves agree to bequest more than one-third of the property

SHIA LAWSSUNNI LAWS
Bequest to an heir is valid only if it is one-third.Bequest to an heir is invalid even if it is one-third.
Consent of the heirs must be given before or after the death of the testator.In order to pass property more than 1/3 to any other person through of the testator, consent of the heirs is necessary to be taken after the death of the testator.
Bequest in favor of the child in womb of her mother is valid subjected that the child is born within 10 months of date of declaration of will.Bequest in favor of the child in womb of her mother is valid subjected that the child is born within 6 months of date of declaration of will.

Difference

SHIA LAWSSUNNI LAWS
A will by the testator who later commits suicide is invalid.A will by the testator, when written or declared in his all senses, who later commits suicide is valid.
Legacy must be accepted before or after the death of the testator.Legacy must be accepted after the death of the testator.
Legatee committing murder or causing death of the testator intentionally cannot claim the property of the testator, but if accidently or negligently then he can claim the legacy.Legatee committing murder or causing death of the testator cannot claim the property of the testator later.
If the legatee dies before testator the legacy lapses if he dies without any heir or the testator himself revokes the Will.If the party in whose favor the Will is transferred dies before the testator, the legacy is lapsed.

Difference

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

Wilayat / Guardianship

The sources of law of guardianship and custody are certain verses in the Quran and a few Ahadis. The Quran, the Ahadis, and other authorities on Muslim Law emphatically speak of the guardianship of the property of the minor, the guardianship of the person is a mere inference. under Muslim law as a 1. Guardian ship, 2. custody, and 3. De facto guardianship

Who is minor

It is defined as a minor means who has not completed the age of 18 years. A minor is assumed to have no capacity to protect his or her own interests. Law thus, requires that some adult person must safeguard the minor’s person or property and do everything on his or her behalf because such a minor is legally incompetent. A person who is authorized underneath the law to guard the person or property of a minor is called a guardian. Under Muslim law, guardians are needed for the aim of a wedding, for protecting the minor’s person and according to Section 3 of the Indian Majority Act, 1875, someone domiciled in the Republic of India who is below the age of eighteen years, is a minor.

A minor is one who has not attained the age of majority. Puberty and majority are presumed to have been attained on the completion of the 15 But now the Muslims in India are governed by the Indian Majority Act 1875. Except in the matters of marriage, divorce, and Mehr.

 The term ‘Guardianship’ (wilayat) indicates the guardianship of a minor. A minor is one who has not accomplished the majority age.  Majority and puberty are in the Muslim law indeed the very same. Puberty is attained at the age of fifteen years. In any case, presently the Muslims are controlled by the Indian Majority Act, 1875, apart from issues related to marriage, dower, and divorce for protecting the minor’s property.

Guardians and wards Act 1890

 Sec.4 (2) defines “a person having the care of the person of a minor, or his property or of both his person and his property.”

 Sec. 4 (3) defines Wards means “a minor for whose person or property or both there is a guardian. 

What is Guardianship?

A guardian means a person who has completed the age of 18 and is taking proper care of a minor and his property as well as his own. Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the same thing. But underneath Muslim law, these two aspects of guardianship are different and are governed by different laws.

The guardianship of a child means the overall oversight of the kid throughout its minority. Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is in charge of the minor’s person. On the opposite hand, ‘custody of the child’ simply means a physical possession (custody) of the child at a certain age.

Although the mother is not the natural guardian of the child under Muslim law, she has a right to custody of the child, until the child attains a specific age. But the father or the paternal grandfather encompasses control over the minor throughout the complete interval of the minority.

Muslim law recognizes three kinds of guardianship, namely

  1. Guardianship of the person

 2. Guardianship of the property

 3. Guardianship of marriage

Guardianship of person

Legal Guardian (Wilayat – e – mal)

  1. Legal Guardian (Dejure)

 2. Guardian appointed by the court. (Certified)

 3. De-facto guardian

4.. Guardianship of marriage (Jabar)

A Muslim law, guardians fall under the following three categories, they are :

1. Natural or Legal Guardian

 A natural guardian is one that encompasses a right to regulate and supervise the activities of a minor. Father is recognized as the natural guardian of his kid underneath all the schools of Muslim law. The father’s right to act as guardian of a minor is an independent right and is given to him underneath the substantive law of Islam. As long as the father is alive he is the sole and supreme guardian of his children. In Muslim law, the mother is not a natural guardian even of her minor illegitimate children but she is entitled to their custody.

A natural guardian is additionally known as a legal guardian. But within the absence of the father, the father’s executor might also act as a legal guardian. The executor could be one who is appointed by the father or grandfather to act as the guardian of his minor kid on his behalf.

Among the Sunnis, the father is the natural guardian of the minor children. after the death of the father, the guardianship passes to the executor. Shia, after the death of the father, the guardianship belongs to the grandfather, even if the father has appointed an executor, the executor of the father becomes the guardian only in the absence of the grandfather.

2. Testamentary Guardians

 A testamentary guardian may be one that is appointed as guardian of a minor beneath a will. Only the father or, in his absence, paternal grandfather has the right to appoint a testamentary guardian. Among Shias, the father’s appointment of a testamentary guardian is valid only if the grandfather is not alive.

 Among both Shias and Sunnis the mothers have no power of appointing testamentary guardians for their children. It is only in two cases :

  1. The mother can appoint the testamentary guardian and that is When she has been appointed as the general executrix by the will of the children’s father.
  2. She can appoint an executor in respect of her own property which will devolve after the death of her children.

 Practically, no distinction exists between the powers of a natural and testamentary guardian. It seems that the Muslim law-givers first lay down the power of an executor or testamentary guardian and then state that the natural guardian has the same powers. The Muslim law-givers also approach the subject from the point of view of the needs of the minor. After classifying the acts, they state which acts can be performed by whom.

 These acts may be divided into the following three points:

 a. Acts that are beneficial or advantageous to the minor

 b. Acts which are absolutely injurious to the minor

 c. Acts which are mid-way between the two.

 As to the activities falling under the first category any person whether a guardian or not, in whose care the child is, can perform those acts. Under this category fall such acts, as acceptance of gifts and alms. If the minor is of the age discretion he himself can perform them.

The facts which are absolutely injurious to the minor, such as emancipating a slave, or divorcing a wife, no person is empowered to do on behalf of the minor. As to the acts under the third category, such as the sale or hire of the property for profit, they can be done only by the father, grandfather, or the executor.

POWERS OF GUARDIAN UNDER NATURAL AND TESTAMENTARY: –

Whatever powers are having the testamentary guardians and then state that the natural guardians have the same powers.

  1. Power of alienation

The guardian is allowed to dispose of the minors immovable properly only in exceptional cases.  It is clear that the sale of movable property is justified one for the necessity of the minor but on the basis of the conservation. In Meethiyan v. Md. Kunj AIR 1996 SC1003 – the father as a natural Guardian has the right to sell property minor but the sale by a mother who is not a legal Guardian nor testamentary Guardian, sale void.

2. Power to grant lease:

Ameer Ali takes view that the executor may give on lease the minors’ s property if there need to do so, and if it is advantageous to the minor, may be pledgee the goods and movable property of the minor if it is necessary for the maintenance of the minor. In case of need, a Guardian also has the power to pledge the goods or movable property but not for long period. In Zeebuniss v. Danaghar (1936)49 Mad 942, the court said that a guardian of the minor has the power to lease out the minor’s property if
it is for the benefit of a minor, but he cannot give leases of the minor’s property extending beyond the period of minority of the child.

3. Power to carry on business: Guardian must carry out business like an ordinarily prudent man and has the power to enter into partnerships on behalf of minors. The Fatawai Alamgiri empowers an executor to invest a minor’s property in partnership and he may enter into partnership with others. In Jaffer v. Standard Bank Ltd. 1929 PC 130, the Privy Council held that though the guardian had the power to enter into partnership on behalf of the minor, the minor’s liability was only to the extent to which he had shared in the partnership, in no case minor is personally liable.

4. Power to incur debts and enter into contracts:

The Guardian of a minor has the power to incur debts on behalf of the minor if there is an urgent need for it. In case of any necessity of minor and debt contracted without any necessity is not binding on the minor.

5. Power to make partition

The guardian power of partitions qualified one.  In case a guardian is appointed by the court with the general power to deal will all matters of the minor then the guardian has the power to effect a partition, if all are minors, the partition is invalid but if some of them are minor and some are adults, then if the adults are present, the executor can separate their share from the share of the minors and hand it over to them and retain the share of the minors with himself. But in no case the guardian should separate the shares of each minor as it is unlawful, the whole partition will result in invalidity.

6. Any other powers as per requirement :

The Bombay and Allahabad High Courts hold the opinion that the guardian has the power to assert a right of pre-emption on behalf of the minor or to refuse or accept an offer of a share in pursuance of such right and the minor will be bound by such act, if done in good faith. The de jure guardian i.e. legal guardian has the power to acknowledge debts on behalf of the minor.

Rights and Duties of guardian:

  • Duty to support:
  • Duty to file suits
  • Duty to arrange the marriage of the ward
  • Duty of the father to take charge
  • Duty of the guardian not to use the ward’s property
  • Duty to take proper care
  • Duty to maintain proper accounts
  • Duty to seek an opinion from the court.

3. Guardians appointed by the Court

 In case of the absence of a natural and legal document guardian, the court is authorized to appoint a guardian for the aim of the minor’s person or property or for both. The appointment of a guardian by the court is ruled by the Guardianship and Wards Act, 1890 which is applicable to all Indians irrespective of their religion.

 According to this act, the power of appointing or declaring any person as guardian is conferred on the district court. The district court may appoint any person as the guardian of the minor as well as his property whenever it considers it necessary for the welfare of the minor, taking into consideration the age, sex, wishes of the child as well the wishes of the parents. Such guardians are also called Statutory Guardian.

4. De-facto Guardians(Fazioli)

 A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or statutory guardian but has himself assumed the custody and care of a child.

 According to Tyabji an l and de-facto guardian means an unauthorized person who, as a matter of fact, has custody of the person of a minor or his property.

 A de facto guardian could be a person having no authority for the guardianship however underneath the circumstances has taken the responsibility to act as the guardian of a minor. In Md. Amin v. Vakil Ahmad (1920) 47 Cal 713, the brother of the minor had entered into a family arrangement on behalf of a minor. It was held that the minor is not bound by such partition.

Powers of the De-facto guardian

 De-facto guardian has no power to transfer any right or interest in minors’ immovable property.  If the de-facto guardian had violated this rule the transaction will be traded as void ab-intio.  Power to alienate the property for satisfying the debts or legacies of the deceased.

5. Guardianship in marriage (Jabar)
Marriage is often contracted on behalf of the minors by the guardian. the father can impose the status of marriage on his minor children. This power of imposition is named ‘Jabar’, the abstract right of guardianship (wilayat), and therefore the guardian so empowered is understood as ‘Wali’.

Guardianship of the property

If a minor owns the movable or immovable property, a guardian is required to manage the property of the minor. The Muslim prescribed certain person in an order of preference who can be the guardian of a minor’s property as per Muslim law as follows:

Legal Guardian
The person who is entitled in the order mentioned below to be the guardian of the property belongs to the minor are:

  1. The father
  2. Father’s executer
  3. Paternal grandfather
  4. Paternal grandfather’s executor.

It may be said that the substantive law of Muslim does not recognize any other relative such as mother, uncle and brother as the legal guardian of the child. Only the father or father’s father may appoint them or any other person for the purpose of taking care of the minor’s property.

Except for the father and father’s father, no other person is entitled even not a mother is legally entitled to appoint by will, any person as the executor of the minor’s property.

2. CUSTODY

Under Muslim Law custody can be called Hizanat, the mother has the right of custody and care of children during the period laid down in Muslim Law. The mother’s right is slowly recognized in the interest of children. under Muslim Law considers the right of Hizanat as no more than the right of rearing of the children, it terminates at an early age of the child, a distinction between son and daughter. Under Muslim, Law guardians are entitled to the physical (tahwil) and upbringing (parvarish) of the minor.

According to Radd-ulMuhatar, “the right of a mother to the custody of her child is re-established whether she be a Mosalman or a Kitabia or a majoosia, even though she be separated from her husband. But she should not be an apostate”. Since Muslim law considers the right of Hizanat as no more than the right of rearing of the children, it terminates at an early age of the child. In this regard, Muslim law makes a distinction between the son and the daughter.

To Son:

Hanafi, Shafi’s and Hanabalis School mother right of hizanat is 7 years, Maliki’s school son continues till the child attains the age of puberty. after the completion of this age /attains puberty father is entitled to the custody of his son.

Shia’s mother is entitled to the custody of her son until he is weaned.(completed the age of 2 years, then the father is entitled to custody of his son.

2. Daughter:

Hanafi School mother custody of her daughter till the age of puberty. Maliki’s, Shafi’s, and Hanbali school the mother’s right of custody over her daughters continues till they are married.

In Shia’s particularly Ithana Ashari School mother has the right to custody of her Daughter till they attain the age of seven years.

in all the schools of Muslim Law, the mother has the right to the custody of her married daughter below the age of puberty in preference to the husband. The mother has the right of custody of her children up to the ages are specified in each school, irrespective of illegitimate/legitimate.

Applicability of Muslim personal law (Shariat) to custody matters

 The Guardians and Wards Act, 1890, is the enactment that regulates and governs the law relating to the appointment and declaration of guardians; duties, rights, and liabilities of guardians, and all laws relating to the Guardian and Ward.

  As per Section 4 of the Guardians and Wards Act, 1890 a minor is a person who, under the provisions of the Indian Majority Act is deemed not to have attained the age of majority.

  As it is well known that the age of majority for a person in India has been defined under Section 3 of the Indian Majority Act, 1875 stipulates “that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before”. Thus on the face of it an inference is drawn that all persons are considered minors if he or she has not attained the age of 18 years.

 The question that emerges is whether the Muslim personal law (Shariat) would also be applicable to a proceeding under the Guardianship Act.

 As stated earlier Section 6 gives scope for the application of the personal law to which the minor is subjected to. Further Section 17 of the G&W Act also stipulates that a guardian has to be appointed in consonance with the personal law by which the parties are governed. He said the legal proposition was amply dealt with by the Hon’ble High Court of Delhi in Akhtar Begum vs Jamshed Munir, which held that “the personal law of the parties has to be kept in view in deciding an application for custody by virtue of the mandate of Section 6 of the Act. If a Court does not keep that in view it would be acting illegally and with material irregularity”.

 The Hon’ble Court further reiterated that in consonance with section 2 of the Majority act which states that its provisions do not impact on matters of marriage, dower, divorce, and adoption, the Indian Majority act cannot be looked into while ascertaining the age of a minor and the personal law of the parties would be the driving factor.

CONCLUSION

Guardianship under Muslim Law is an essential part of the personal laws of people and with the passage of time, it has been codified by way of legislation. The Guardians and Wards Act is the legislation passed by the Parliament that deals with the laws and processes related to guardianship in India.

 KARTA

Introduction

The Joint Hindu family is a patriarchal structure, and Karta serves as the family’s leader. As the oldest male family member and the family’s official spokesperson, Karta makes decisions on their behalf. Because every family needs a head person who can watch out for the welfare of younger family members and females in a Joint Hindu Family, there is a fiduciary relationship between the Karta and the other family members.The members of the Hindu Joint Family are required to abide by the Karta’s decisions about the entire family and its property. In a Hindu Joint Family, only Karta is equal to everyone. A Karta has more authority and a more prominent position than any other member of the Hindu Joint Family. Among the other members of the joint family, Karta is unmatched.

Who can be a Karta?

The senior most male member is entitled to become a Karta and it is his right. Karta is always from the members of the family; no outsiders or stranger can become a Karta. If the senior most male member of the family is alive then he will continue as Karta, if he dies then the second senior most member of the family will take the charge of Karta. Karta takes his position by consent or agreement of all the coparceners.

If the coparceners agree, then a junior can also become a Karta of the family. By making the agreement with the coparceners, a junior male member can be a Karta of the family.

Female Member as Karta

According to Dharmastra, if there is an absence of the male member in a family then in that situation female can act as a Karta. If in case male members are present but they are minors, at that time also, females can act as a Karta.

Characteristics of Karta

The characteristics of a Karta are:

  • Karta’s position is unique (sui generis). His position is independent and no one can be compared with him among the family members.
  • He had unlimited power but even if he acts on behalf of other members, he can’t be treated as a partner or agent.
  • He controls all the affairs of the family and has wide powers.
  • He is responsible to no one. The only exception to this rule is, in case of fraud, misappropriation or conversion, he is held responsible.
  • He is not bound to invest, save or economise. He has the power to use the resources as he likes, unless he is not responsible for the above mentioned charges.
  • He is not bound to divide the income generated from the joint property equally among the family members. He can discriminate one with another and is not bound to be impartial. The only thing is he should pay everyone so that they can avail some basic necessities like food, clothing, education, shelter etc.

The powers of Karta are:

Powers of Management

Karta’s power of management is absolute. No one can question the duties of the Karta like, he can manage or mismanage the property, family, business any way he likes. Karta cannot deny the maintenance and occupation of property to any member. Karta is not liable for the positive failures.

Rights to Income or Remuneration and Expenditure

The income of the Joint Hindu family property in a whole must be given to the Karta. Then it is the responsibility of the Karta to allot the funds to the members for fulfilment of their needs. Karta controls the expenditure of the funds. The scope of his power is only to spend such funds on family purposes like management, maintenance, marriage, education etc.

Rights to Represent Joint Family

The Karta represents the family in legal, religious and social matters. The acts and decisions of the Karta are binding on the members. Karta can enter into any transaction on behalf of the family.

Right to Compromise

Karta has the power to compromise the disputes relating to management or family property. He can compromise family debts, pending suits and other transactions. The compromises made by the Karta, can be challenged in court by heirs only on the ground of malafide.

Power to refer a Dispute to Arbitration

Karta can refer the disputes relating to management, family property to the arbitration. If the award by the arbitration is valid then it will be binding on the members of the joint family.

Power to Contract Debts

The Karta exercises an implied authority to contract debts and pledge the credits and property of the family. Such acts are bound to be followed by the members of the family. Even, Karta when taking a loan for the family purpose or for family businesses then joint family is liable to pay such a loan.

Power to enter into Contracts

The Karta can enter into contracts and where contracts are enforceable against the family. The contracts are binding on the members of the joint family.

Power of Alienation

No one among the family members can alienate joint family property. But Karta has the power to alienate the property under three circumstances.

  1. Legal Necessity
  2. Benefit of estate
  3. Indispensable duties

Legal Necessity

This term has not expressly defined in any judgement or in any law. It includes all the things which are deemed necessary for the members of the family.

Dev Kishan Vs. Ram Kishan AIR 2002

In this case, the plaintiff filed a suit against the defendant. Both plaintiff and defendant are members of the Joint Hindu Family. Defendant 2 is the Karta, who is under the influence of Defendant 1, sold and mortgaged the property for an illegal and immoral purpose which is for the marriage of minor daughters Vimla and Pushpa. The defendant contended that he took the loan for the legal necessity.

The court held that the debt was used for the unlawful purpose. Since it contravened the Child Marriage Restraint Act, 1929, therefore, it can be called as lawful alienation.

Benefit of estate

Benefit of Estate means anything which is done for the benefit of the joint family property. Karta as a manager can do all those things which are helpful for family advancement.

Indispensable Duties

These terms refer to the performance of those acts which are religious, pious or charitable. Examples of indispensable duties are marriage, grihapravesham etc. A Karta can alienate the portion of the property for the charitable purpose. In this case, the power of the Karta is limited i.e he can alienate only a small portion of the family property, whether movable or immovable.

Loan on Promissory Note

When Karta takes any loan for any family purpose or executes a promissory note, then all the members and the members who are not the party to the note will be sued if the loan is not paid. But, Karta is personally liable on the note.

Liabilities of a Karta

Liability to maintain- Karta is to maintain all the members of the Joint Family. If he does not maintain any member then he can be sued for maintenance and also can be asked for compensation.

Liability of render accounts– As long as the family remains joint, Karta is not supposed to keep accounts of the family, but when partition takes place at that time he will be liable to account for family property.

 If any of the heir is not satisfied with his accounts, then he can constitute a suit against Karta to bring the truth and to know if any misappropriation is done by Karta or not.

Liability of recovery debts due to the Family– He has the liability to realize the debts due to the family.

Liability to spend reasonably- He has the liability to spend the joint family funds only for the family purposes.

Liability not to eliminate coparcenary property– It is the liability of the Karta not to alienate the coparcenary property without any legal necessity or benefit to the state.

Liability not to start a new Business- It is the liability of the Karta not to start a new business without the consent of other coparceners.

Responsibilities of Karta 

The duty of a Karta is to provide clothing, food, shelter etc, to the members of the joint family. There are several responsibilities of Karta which include:

Maintenance

Every member of the family including Karta has the right to maintenance. The Responsibility of Karta is to maintain all the members of the family. If he does not maintain any member properly, then he can be sued for both maintenance and dues of maintenance. 

Marriage

The Karta is responsible for the unmarried members especially the daughters. The expenses for the marriage will be taken out of the Joint Family property.

Representation

Karta acts as a representative on behalf of the family. This is because he must perform some responsibilities and liabilities on account of the family. He must pay all the dues and the taxes. He can be sued on behalf of the family during any agreement or dealings.

Accounts at the time of Partition

Status of a joint family comes to an end due to the partition. Under Mitakshara Law, it means:

Severance of status and interest

It’s an individual decision, where a member wants to divide himself from the joint family and enjoy undefined and unspecified share separately.

Actual division of Property

It is the consequence of the declaration of the desire to cut off. However, it is a bilateral action.

Opening of assets means the inquiry of the assets of joint family. This includes all the items of family property. Karta under Mitakshara Law is required to disclose the accounts only if there are any charges of fraud, misappropriation or conversion of assets or property of the joint family against him. If there is no proof of misappropriation, fraud or conversion against the Karta, the coparceners who follow the partition process cannot demand the disclosure of the past dealings of Karta with joint family property or assets. After the severance of status, the Karta must give the accounts of the expenditure and income in a manner similar to which a Trustee or agent has to render accounts. This implies that Karta has to report all the profits.

Conclusion

In a joint Hindu household, Karta occupies a unique position in terms of knowledge and complexity. The idea behind Karta has been around for many years, and because of certain practical components, it still holds true today. Every joint family ought to have a Karta to strengthen the family’s cohesiveness with regard to its dealings and endeavours. When considering the Karta’s status, it may be claimed that he has more power and fewer obligations. Karta occupies a special position when it comes to deciding his position. The parties are required to abide by the rulings or pronouncements made by the Karta. The Hindu Succession Act of 1956, Section 6, grants females the same rights as sons. The Hindu Succession Act of 1956 prohibits women from becoming Kartas, with the exception of two situations: when a male family member is either not present or is a juvenile. These two situations are also described in the Dharmasutras, an ancient text on Hindu law. The government needs to take action to improve the status of women under other personal laws.

Acknowledgment

Parentage

Parentage is generally used for a legal relationship which the child has with the parents.These legal relationships are associated with certain rights and duties such as rights of inheritance, maintenance, and guardianship.

Parentage by in two ways

1.By birth (regular, irregular )

2.By acknowledgement  (maternity and paternity) 

Allah has not made for a man two hearts in his interior. And he has not made your wives whom you declare unlawful your mothers. And he has not made your adopted sons your [true] sons. That is [merely] your saying by your mouths, but Allah says the truth, and He guides to the [right] way. Muslim law recognizes the institution of “ikrar” or “acknowledgement”.Muslim law prescribes a means whereby the marriage and legitimacy may be established as a matter of substantive law and that is acknowledgement of paternity.

Fazilatunnissa  Vs  Kamarunissa  (AIR 1904 9 cal.  W N 352) 

Court held that the doctrine of acknowledgement is an integral portion of the Muslim law.

It receives full recognition.

It can be made either express or implied.

Maternity in Muslim Law

In Muslim law, maternity of a child is established in the woman who gives birth to the child, irrespective of the fact whether she is married or unmarried or child is outcome of adultery (Zina).

Under Sunni law:

The woman who is giving birth to a child will be his/her mother irrespective of whether the birth was the result of a valid marriage or adultery (Zina). Rashid Ahmed Vs. Anisa Khatun, AIR 1932 PC 25 court held that the child acknowledged was the issue of marriage between the divorced persons. the husband had repudiated the marriage in talai-ul-bidaa and no intermediate marriage and divorce of the woman took place. thus, the marriage was void. The child is entitled to inherit from his/her mother. So it can be said that under Sunni Law, an illegitimate child has his/her maternity in the woman who gave birth.

Under Shia law:

The child who is born out of lawful marriage only that woman will be his/ her mother. So only birth is not sufficient to establish maternity under Shia law, it has to be also proved that the birth was a result of a lawful marriage. All other outcome will be treated as illegitimate child. So the illegitimate child under Shia law can inherit neither from father or mother.

Paternity in Muslim Law

In Muslim law, paternity of a child is established in a man only when the child is a legitimate child i.e. the father-child relationship is entirely based on the lawfulness of marriage between both the parents. So it can be said that a child will be legitimate only when the marriage is a valid.

Legitimacy in Muslim Law

A person born in lawful marriage is said to be the legitimate child of the spouses.So the main point in case of the legitimacy of a child is the marriage between his or her parents.

The Presumption of Legitimacy

1. A child born within six months after the marriage: the child is illegitimate unless the father acknowledges the child.

2. A child born after six months from the date of marriage is presumed to be legitimate.

3. A child born after the dissolution of marriage is legitimate-

a. Under Shia Law, if born within 10 months.

b. Under Hanafi Law, if born within 2 years.

c. Under Shefai and Maliki, if born within 4 years.

Basic Principles of Acknowledgement

1. Express or implied acknowledgement

2.Age of the Acknowledgement

3.The child of others

4.Offspring of Zina

5.Legal marriage possible between parents of the child acknowledged

6.Person acknowledged should confirm acknowledgement

7.Competency of the Acknowledgement

Rights created by getting acknowledgement of paternity. 

It is valid acknowledgement of a paternity is made, the following rights are:

1.It rises a presumption of valid marriage between the acknowledgment and the mother of the person acknowledged.

2.The acknowledgement and the acknowledged person have mutual rights of inheritance.

3.The mutual rights of inheritance also arise between the acknowledgement and the mother of the acknowledged person.

4.It also has some benefits to establishing paternity for the mother the father and the child.

Child rights

Fathers name both the certificates. Legal record of the identity of the both parents. Information on family medical history if needed for the purpose of the child’s medical treatment Emotional benefits of knowing both parents. Health or life insurance from either parents, if available.

Gestation

As per Indian evidence Act

According to section 112 of the Indian Evidence Act, if a child is born during the marriage or within 280 days after the dissolution of marriage, the child shall be presumed to be the legitimate child of the spouses. This section raises a legal presumption for the legitimacy of a child under two circumstances:

1.When the child is born during the continuance of valid marriage.

2.With 280 days of the dissolution of marriage, provided the mother remains unmarried. 

The fact that the child is born between these two periods as contemplated above, is considered to be conclusive proof of legitimacy. Muslim Law and Indian Evidence Act there is a window whereby the presumption of legitimacy of a child can be denied.

CONCLUSION

The acknowledgement of paternity under Muslim Law is in the nature of a declaration by the father that a child is his legitimate offspring. It is not a process of legitimation of an illegitimate child in Sadik Hussain Vs. Husain Ali (1916) 43 IA 212 The Privy Council observed that no statement made by one man that another who is proved to be illigimate but where no proof of that kind is given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate child of the person, who makes the statement, provided his legitimacy is possible. The Acknowledgement of paternity may be expressed or implied.

STATE /ARTICLE 12

The makers of the Constitution have borrowed several features from other constitutions of the world. The model for Fundamental Rights in India has been taken from the Constitution of the USA. Fundamental rights are basic rights provided to the people in order to live with dignity and integrity. They are enshrined in Part III of the Indian Constitution.

The fundamental rights guaranteed by the Indian Constitution have been laid down in Part III of the constitution, starting from Article 12 to Article 35.The first article under Part III is Article 12, which does not guarantee any right but specifies the authorities and the bodies, that are deemed to be “state” and against whom the fundamental rights can be enforced.

The word state derived from Latin word status. Which means to stay the position of person on or body or persons.

Article 12 defines the term ‘state’ it says that-Unless the context otherwise requires the term ‘state’ includes the following –

1)  The Government and Parliament of India that is Executive and Legislature of the Union.

2)   The Government and Legislature of each states.

3)   All local or other authorities within the territory of India.

4)   All local and other authorities under the control of the Government of India.

So it means the ‘state’ under art. 12 includes executive as well as legislative organ of union and states. It is therefore an action of these bodies that can be challenged before the courts as violating the fundamental rights. It means a person or body exercising power to command in the context of Art. 12. word ‘authority’ means – the power to make laws. Orders, regulations, bye-laws, notification etc. which to enforce those laws.

Is Article 12 a fundamental right?

The obligation of protecting these rights lies on the government or the state or its authorities. Most of the Fundamental rights provided to the citizens are claimed against the State and its instrumentality and not against the private bodies. Article 12 gives an extended significance to the term ‘state’.

Elements of state.

Population : population is one of the important element of state. Ie means there must be people living together in a community .the existence of people is the existence of state. There is no fixed no of persons to constitute a state ,but it must be considerable number.

Territory: state consists of a definite portion of the earth ,it includes not only land but also the sea up to prescribed limits, certain gulfes,bays ,& streams and the air also. There is no fixed area to constitute a state .the area may be big or small. It is not necessary that a state should  have a compact territory .Outside its own territory a state or its organs can have no authority or jurisdiction.

Government  :in the state there is a human machinery as the supreme authority to make and enforce laws,this authority is called government.it is organised on certain principles recognized by the community within the territory of the state,thus ,the government is a single unit or entity. Normally a state has three organs viz;legislature, executory,&judiciary .no particular form of govt is essential. 

Sovereignty : sovereignty means internal supremacy and external independence. & which gets habitual obedience from the people within its territory. 

Case Laws

in Rajasthan Electricity Board V. Mohan Lal , the Supreme Court held that ‘other authorities’ would include all authorities created by the constitution or statute on whom powers are conferred by law. Such statutory authority need not be engaged in performing government or sovereign functions. The court emphasized that it is immaterial that the power conferred on the body is of a commercial nature or not.

CSIR is state – 19 April 2002, it is an important case. In this supreme court by 7:5 majority overruled its old judgement delivered in 1975 and held that Council of Scientific and Industrial Research (CSIR) is a state within the meaning of Art. 12 of the constitution and therefore its employees can approach the High Courts or the Supreme Court to enforce their fundamental rights of equality.

State of Assam V/s Barak Upatyaka D.V. Karmchary Sansthan

The Supreme Court has held that the financial assistance provided by the state government in the form of grant-in to Assam co-operative society continuously for some years does not make a society a state within the definition state under Art. 12 of the constitution and therefore the state would not be responsible to bear and pay salaries and allowances of its employees by extending aid forever.

the supreme court   laid down   the following tests in In electricity board rajasthan case for determining whether a body is an agency or instumentally of the govt. ;

  1.  Financial resources of the state is the chief funding source ie; if the entire share capital of the corporation is held by the govt. 
  2. Existence of deep & pervasive statue control 
  3. Financial character being governmental in essence .ie; if the functions of the corporation are of public importance and closely related togovernmental functions.
  4. If a deportment of govt is trsansfferd to a corporation ,
  5. Whether the corporation,
  1. enjoys monopoly status which is state conferred or state protected. 

The court said that, these tests are not conclusive but illustrative only and will have to be used with care and caution.

Conclusion

The Constitution of India not only gives fundamental right to the citizens but also imposes the duty on the state to ensure that the fundamental rights are protected. The court through its interpretations has widened the scope of the term State to include a variety of statutory and non-statutory bodies under its umbrella.