To What Extent Islamic Land Law is Applicable in the Laws Relating to Land in Bangladesh:A Critical Comparison

Introduction:

The legal system of Bangladesh is the combination of five important periods. These periods are-

Ancient Hindu period Muslim period British period Pakistan period Present Bangladesh period

Muslim period marks the beginning of a new era in the legal history of Bangladesh. Arabs were the first Muslims who came to the then greater India. Bangladesh is one of the parts of the greater India at that time. They came in the eighth century and settled down in the Malabar Coast and Sindh but never penetrated further. Before that Arabs conquered the Persians, Afghans and Turks and converted them to Islam, and it was the Afghans and Turks who were let loose on India. Towards the end of the eleventh and beginning of twelfth century, began the downfall of the Hindu period. Local Hindu rajas were attacked and defeated by foreign invaders of Turkish race. Gradually, old Hindu kingdoms began to disintegrate and the invasion by Muslim rulers increased. Later the Mughals invasion in 1526 divided the Muslim period in two subheads. These two subheads are-

Sultanate period (1206-1526) Mughal period (1526-1857)

These two periods cover the social, political and legal history of India and Bangladesh from 1206 to 1857 for 650 years. There may be a debate that whether the foreign invasion by Turks was good or bad for the socio-political structure of ancient India, but it is undoubtedly true that it had a great impact on the insertion of Islamic legal system in the native legal system of the then India and present Bangladesh.

Object of the Assignment:

The term ‘legal system’ covers a vast area. The merging of Islamic law and native law and then the formation of a pluralistic legal system therefore is a huge topic to be discussed. But the aim of my assignment is to find out to what extent Islamic laws are applicable in the laws relating to land in Bangladesh. Though the object of the assignment is to highlight the application of

Islamic laws in the laws relating to land, I wish to discuss in this regard two sectors of land administration system, such as-

Land management and administration Land ownership and transfer

Therefore the periphery of this assignment is to find out to what extent in Muslim periods traditional Islamic laws were inserted in the laws relating to land and to what extent traditional Islamic laws and middle-aged indo-Islamic laws are inserted in the present laws relating to land; what the distinctions between these three-fold laws are relating to land. Therefore, we shall discuss the traditional Islamic land laws, middle-aged indo-Islamic land laws and present day conventional (native and Islamic) land laws and the insertion process, extension and distinction between them.

Land Management and Administration:

Traditional Islamic land administration:

Islam is considered by Muslims to be a complete way of life, and property conceptions go far beyond theorization to impact life experiences of Muslims. They also inform, to varying degrees, state policies and land rights discourse. Better understanding of Islamic dimensions of land may potentially support land rights initiatives in Muslim societies, which have implications for programs relating to land administration, land registration, urban planning and environment sustainability. No generalization can be made about the extent to which Islamic dimensions may be relevant or appropriate to a particular context – that is for land professionals, policy makers, civil society and ultimately the people to determine.

Though muslims see themselves as a universal community (umma), they are, in fact, divided into several nationalities, and contrary to popular assumptions, only 20 per cent of muslims reside in the Arab world. They include many different ethnic groups and speak dozens of languages their various socio-economic conditions, political affiliations and religious practices – cannot be simplified so easily. The Holy Qur’an, celebrates this diversity:

O mankind! Truly We have created you out of a male and a female, and We have made you into nations and tribes, that you may know one another (Qur’an 49: 13). And among His signs is the creation of the heavens and the earth, and the difference of your language and colours. Verily in that are signs for men of sound knowledge. (Qur’an 30: 22)

Very short information has been found regarding the land administration at the early age of Islam. Under Islamic theory, the state’s role in land management is seen as supervising land ultimately belonging to God. Thus, the state is mandated to administer land, efficiently and fairly, in accordance with God’s laws and ethical and moral principles. While it may be argued that there is no specifically Arab or Muslim mode of governance, the Islamic framework does contain

the important and influential concepts of shura (consultation) and adl (justice). The experience of Ottoman land administration is utilized to demonstrate theat effective land management systems, land registration, titling and cadastre have been enduring features of the muslim world. Potentially, within the Islamic framework states have the scope and the means to promote security of tenure and access to land.

Despite the general principles relating to property rights, the Qur’an did not elaborate on land tenure, regulation and administration or the mechanics for its protection, leaving it to succeeding generations to develop the field.

Middle-aged Indo-Islamic Land Administration:

The central feature of the agrarian system under the Mughals was the alienation from the peasant of his surplus produce (produce over and above the subsistence level) in the form of land revenue which was the main source of state's income.

Early British administrators regarded the land revenue as rent of the soil because they had a notion that the king was the owner of the land. Subsequent studies of Mughal India have shown that it was a tax on the crop and was thus different from the land revenue as conceived by the British. Abul Fazl in his Ain-i Akbari justifies the imposition of taxes by the state saying that these are the remuneration of sovereignty, paid in return for protection and justice. The Persian term for land revenue during

the Mughal rule was mal and mal wajib. Kharaj was not in regular use. The process of land revenue collection has two stages:(a) Assessment (tashkhis/jama)

(b) Actual collection (hasil).

METHODS OF LAND REVENUE ASSESSMENT

Under the Mughals assessment was separately made for kharif and rabi crops. After the assessment was over a written document called patta, qaul or paul-e-qarar was issued in which the amount or the rate of the revenue demand was mentioned. The assesses was in return supposed to give qabuliyat i.e. 'the "acceptance" of the obligation imposed upon him, stating when and how he would make the payments'. We will discuss here a few commonly used methods:

1) Ghalla Bakhshi (Crop-sharing): In some areas it was called bhaoli and batai.

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2) Kankut/Dambandi The word kankut is derived from the words kan and kat. Kan denotes grain while kat means to estimate or appraisal. Similarly, dam means grain while bandi is fixing or detemining anything. It was a system where the grain yield (or productivity) was estimated

3) Zabti: In Mughal India, it was the most important method of assessment. The origin of this practice is traced to Sher Shah. During Akbar'r reign, the system was revised a number of time before it took the final shape. Sher Shah had established a rai or per bigha yield for lands which were under continuous cultivation (polaj), or those land which very rarely allowed to lie fallow (parauti). The rai was based on three rates, representing good, middling and low yields and one third of the sum of these was appropriated as land revenue.

Revenue farming

Ijara system or revenue farming was another feature of the revenue system of that time. Though, as a rule Mughals disapproved of this practice, in actual fact certain villages were sometimes farmed out. Generally, these villages, when peasant did not have resources available for undertaking cultivation or where owing to some calamity cultivation could not be done, were farmed out on ijara. The revenue officials or their relatives were not supposed to take land on ijara. It was expected that revenue farmers would not extract more than the stipulated land revenue from the peasants. But this was hardly the case in actual practice.

COLLECTION OF LAND REVENUE

Under ghalla bakhshi, the state's share was seized directly from the field. In other systems, the state collected its share at the time of harvest. Abul Fazl maintains that "Collection shou!d begin for rabi from holi and for kharif from Dashehra. The officials should not delay it for another crop”

In the kharif season, the harvesting of different crops was done at different times and the revenue was accordingly to be collected in three stages depending on the type of crops. Thus, under kharif the revenue could only be collected in instalments. The rabi harvest was all gathered within a very short period. The authorities tried to collect revenue before the harvest was cut and removed from the fields. By the end of the 17th century, the authorities in desperation started preventing the peasants from reaping their fields until they had paid their revenue. Usually, the revenue was deposited in the treasury through the 'amil' or revenue collector. Akbar encouraged the peasants to pay directly, Todar Mal recommended that the peasants of trusted villages, within the time limit, could deposit their revenue in the treasury themselves and could obtain receipt. The village accountant, patwari made endorsement in his register to establish the amount paid.

LAND REVENUE ADMINISTRATION:

Officials and agents of jagirdars;

Permanent local officials many of whom were hereditary. They were generally not affected by the frequent transfers of the Jagirdars, and

Imperial officials to help and control the Jagirdars

At the rural level, there were many revenue officials

karori: In 1574-75, the office of karori was created. Describing his duties, Abul Fazl says that he was incharge of both assessment and collection of the revenue He was expected to look after the interests of the peasantry. The accounts of the actual collection of the karoris and their agents were audited with the help of the village patwari's papers.

Amin: The next important revenue official was amin. As we have already mentioned, that the office of amin was created during Shah Jahan's reign. His main function was to assess the revenue.

Qanungo: He was the local revenue official of the pargana, and generally belonged to one of the accountant castes. It was a hereditary post, but an imperial order was essential for the nomination of each new person.

Chaudhari: He was also important revenue official like the qanungo. In most cases he was the leading zamindar of the locality. He was mainly concerned with the collection. He also stood surety for the lesser.

Shiqqdar: Under Sher Shah, he was the incharge of revenue collection and maintained law and order. In Akbar's later period, he seems to be a subordinate official under the karori .

Muqaddam and Patwari: The muqaddam and patwari were village level officials.The former was the village headman. In lieu of his services; he was allowed 2.5 percent of the total revenue collected by him, The patwari was to maintain records of the village land, the holdings of the individual cultivators, variety of crops grown and details about fallow land.

Present Day Land Administration:

The basic land law in Bengal before the advent of British rule was that the ownership of land belonged to the person who cleared jungles on it and prepared it for cultivation. The king claimed a share in the produce of the land not as an owner but as a sovereign protector who met the cost of the security provided to the peasant-owner. This theory provided the basis for establishing some kind of direct relationship of peasants with the king or sovereign in respect of land ownership, which came to be known as the raiyat based system.

In 1765, the east india company obtained diwani   or the right to collect the land revenue of Bengal, Bihar and Orissa from the Mughal Emperor Shah Alam on payment of an annual revenue of 2.6 million rupees to the Emperor. The Company appointed collectors in different areas in Bengal, which were later constituted into districts. During the British rule, a board of revenue was set up in 1772 to control and supervise the work of the collectors in matters relating to land administration and collection of land revenue. The board was later reconstituted, first under the Bengal Board of Revenue Act 1850, and then under the Bengal Board of Revenue Act 1913. During the Pakistan period, a Revenue Department was created under the provincial government of East Pakistan. The Board of Revenue and the offices under it were put under the administrative control of this department. The board had 3 or 4 members, each having the rank of a secretary of the central government and one of them was appointed as the senior member. An additional or joint collector of revenue and a revenue deputy collector were appointed in each district to assist the collector. A sub-divisional manager for each sub-division and a circle officer for each thana were also appointed. A tahsildar was appointed for a tahsil, consisting usually of two unions, and he had one or two assistant tahsildars.

The Board of Revenue supervised settlement operations under the director of Land Records and Surveys, and oversaw the inter-state boundary demarcation work in the border districts of East Pakistan and India. In addition, the board was also the 'Court of Wards' under the Court of Wards Act 1879. In fact, the Board of Revenue was the chief revenue authority.

After the emergence of Bangladesh as a sovereign state in 1971, the Revenue Department of the provincial government of East Pakistan was reconstituted into Land Administration and Land Reforms Division under the Ministry of Law and Land Reforms. Subsequently, this division was given the status of a full-fledged ministry. The office of the Board of Revenue, with its entire establishment, was abolished by an order of the government, issued under No. IM-10/72/115(5) RI dated 3 March 1973. The functions of the Board of Revenue were taken over by the ministry itself. The functions of the board for supervision and inspection of revenue offices were given to the land reforms commissioner and four deputy land reforms commissioners of the four administrative divisions.

The Ministry of Land Administration and Land Reforms was concerned mainly with policy decisions. It was also given the responsibility of administration of land acquisition proceedings, management of 'enemy property', and looking into multifarious revenue matters. As a result, revisional settlements, diara operations, and land revenue work of various types, including settlement of khas land, could not be intensively supervised. There was no chief revenue authority in the country with adequate revenue background and powers to whom divisional commissioners, land reforms commissioners, director general (land records and surveys) and deputy commissioners could look forward for necessary guidance, instruction, and advice.

A new body, the Board of Land Administration, was established under the Board of Land Administration Act 1980 (Act XIII of 1981). Under section 3(2) of the act, the board was to consist of a chairman and not more than two other members to be appointed by the government. Section 3(3) of the act stipulated that the board was to exercise such powers and perform such functions as might be entrusted to it by the government or by or under any law. Under orders of the ministry dated 3 September 1982, 5 July 1983, and 7 July 1983, the board

was entrusted with the functions of deciding all statutory appeals, supervising land administration offices in the field, and advising the government on policy matters. It was also empowered to deal with collection of land development tax, creation of new tahsil offices, settlement of khas land, control of the internal audit organization, Court of Wards, management and supervision of vested properties (lands and buildings), management and disposal of abandoned properties, and management and disposal of properties involved in exchange cases by migrants.

The Ministry of Land Administration and Land Reforms was renamed as the Ministry of Land in early 1987. The newly designated ministry concentrates on policymaking, supervision, and monitoring of land reforms. The ministry came to realise that the Board of Land Administration could not do justice to its assigned jobs, the effective supervision of field offices, and quick disposal of quasi-judicial cases. The issue was considered in a meeting of the National Land Reforms Council headed by the President where it was decided that the Board of Land Administration should be abolished and that instead, two new bodies, the Land Appeal Board and the Land Reforms Board should be established. Accordingly, the Land Reforms Board Ordinance (Ordinance I of 1989) and the Land Appeal Board Ordinance (Ordinance II of 1989) were promulgated. Later, the Land Reforms Board Act 1989 (Act XXIII of 1989) and the Land Appeal Board Act 1989 (Act XXIV) were passed and the ordinances were repealed. Under section 4 of the Land Appeal Board Act 1989 (Act XXIV of 1989), the government constituted a board, namely, the Land Appeal Board. It consists of a chairman and two other members. Under section 8 of this act, the Board of Land Administration Act 1980 was repealed. Consequently, the Board of Land Administration stood abolished.

The Land Appeal Board has been entrusted with the powers of disposal of appeals preferred against the orders of the divisional commissioners under different laws relating to land administration and land management. It is empowered to advise the government on any issue relating to land management and land administration referred to it by the government. The board is also empowered to inspect and evaluate the work of subordinate land courts. Any order passed by the chairman or any member, separately or individually, is deemed to have been passed by the board. The board is authorized to admit petitions for review of its order, in cases where legal and material facts appear not to have been considered. The board has to refer cases not covered by the prevailing laws, rules and government orders to the government for necessary instructions. The orders of the board in the cases brought against the orders of the divisional commissioners and in the cases reviewed by it are final. No appeal can be made against the orders of the board. The 'Full Board', consisting of the chairman and the members may dispose of the review cases referred to it by the chairman. Usually cases involving interpretation and application of laws are placed in the meeting of the 'Full Board' and are disposed off after it has heard the parties concerned.

Based on the decision of the National Land Reforms Council, a separate body, namely, the Land Reforms Board, was set up at the national level under the Land Reforms Board Act 1989 (Act XXIII of 1989). The board consists of a chairman and two other members. The posts of the land reforms commissioner and the deputy land reforms commissioners in the Ministry of Land were abolished and the post of a deputy land reforms commissioner was created for each

division for supervision of the land reform measures under the Land Reforms Board. Under Section 5 of the Land Reforms Board Act 1989, the board may perform such functions and discharge such duties in respect of land reforms and land management as the government may entrust to it. The board may also exercise such power and perform such duties as may be entrusted to it by or under any law. The primary function of the board is to supervise the functioning of the field offices and the implementation of land reforms measures. This involves supervision of land administration offices down to the union land office (tahsil office), settlement of agricultural khas land to the landless peasants, assessment of land development tax, management of Court of Wards, creation of new union land offices, establishment of record rooms at the district and upazila levels, their supervision and inspection, preparation of development. Plans for matters relating to land management, their implementation and supervision, and matters relating to board's establishment, record room and library are some of the functions, entrusted by the Ministry of Land to the Land Reforms Board.

Land Ownership and Transfer or Losing of Ownership:

Ownership:

Islamic law:

“The concept of dual ownership (human being-god) … through legitimate means…. It is a sacred right, yet, human ownership is tempered by understanding that everything, in the last analysis, belongs to God.... What appears to be ownership is in fact a matter of trusteeship, whereby we have temporary authority to handle and benefit from property.”

Rights to land in Islam are part of a broader set of property rights that includes real (landed) property interest and personal property, the latter change in turn distinguished as a tangible and intangible property (stocks, intellectual property). Land rights include not only the right to use land but also benefits from property, such as usufruct or rent. Despite the widespread assumption that property rights originated in western philosophical and socio-political thought, they are evident also in Islamic theory. Property governs relations not merely of persons to things but, equally, relations between persons with respect to things. As such, human relationships are a part of social relation as distinct from matters relating to ibadat (worship)..

 Meaning and definition of ownership

(I) General definition “The relationship that exists between a person and a thing that gives absolute control and right of disposal over it to the exclusion of others.”

(II) As defined by sadru’sh shariat “It is the expression of the connection existing between a man and a thing, which is under his absolute power and control to the exclusion of control and disposition by other”.

Elements in ownership

The most essential elements in the concept of ownership (milk) are the presence of “Control” and “Exclusion of others”. The person who has such powers and control is called the malik or owner.

Subject matter of ownership

The thing over which the juristic conception of milk extends may be “Mal”

(I) Meaning of Mal According to Al-Hawi “Mal is the name for things other than human beings which have been created for the benefit of men, and which a man can hoard and dispose of at his option.”

(II) Things which are included in Mal(III) A mal may include following things.

a) Things having a corpusb) According to all Muslim jurists all things which have a body are included in

“Mal”.c) Things connected with corpus

Modern concept of Mal

In traditional Islamic law, Mal not included incorporeal rights like copyrights, patents etc. but modern Islamic jurists and courts have attempted to expand the concept of mal or property to include such rights.

Modes of acquiring ownership

According to the strict theory of Islamic law, ownership is acquired in the followings ways.

(i) By Ihraz (original acquisition)(ii) By Naql (transfer)(iii) By Khalf (succession)(iv) By prescription

Ownership in Islam as compared to that of English law

Ownership in Islamic law as compared to the concept in English law is quit exhaustive and include in it possession as part and parcel therefore, whereas in English law ownership is only a juristic relationship between man and the right that he possesses in respect of certain object.

Losing of ownership

Modes of losing ownership

Following are the different modes of losing ownership.

(i) By transfer(ii) By extinction of thing(iii) By death of owner(iv) By operation of law

By transfer

Ownership may be lose by an act transfer. The original owner may transfer his thing to another by way of sale, gift or heba, waqf etc. in that case, his ownership will be extinguished and will passed to the new owner.

Transfer by Waqf :

By its nature, the creation of a waqf implied that an individual possessed wealth of some sort, which was endowed to a particular purpose.

Waqf under Islamic law:

Waqf has a long and public history in Muslim law often altered to suit the requirements of each territory implementing Muslim law. One of the first references to waqf was, as translated in Fyzee’s treatise, set out in Umar the Second Caliph, who describes the visit of a person before Mohammed and who asks for advice in regards to a valuable piece of land he owned. The Prophet himself made a waqf of land acquired by him for the support of travelers.

Waqf In Bangladesh:

Waqf, as a religious charitable institution, has been in existence in this South Asian Muslim country for centuries. Bangladeshi Muslims have high regard for religious activities and thus have a rich tradition of establishing waqf for various types of religious, educational and social welfare purposes. waqf properties in Bangladesh consist of Mosques, Madrasah, Eidgahs, Graveyards, Pharmaceuticals, cultivable agricultural lands, barren lands, forests, hillocks, and urban lands.

As far as registration with the Office of the Waqf Administrator (OWA) is concerned, waqf properties in Bangladesh can be categorized into three broad categories. First, waqf that are registered with OWA; second, waqf that are created as private trusts and are not listed in the Office of the waqf Administrator (OWA) in the Ministry of Religious Affairs; and third, waqf that are managed by Mutawallis or committees without registering with OWA. Only waqf properties that fall under the first category fall under the waqf administrative system of the government. Since waqf properties under the second and third categories are not registered they are not

under the direct control of the Office of the Waqf Administrator as the OWA is not directly involved in various types of dealings, decision making and day to day activities of these two categories of waqf estates.

The Present Legal and Administrative structure:

Initially, the waqf sector in Bangladesh used to be under the Ministry of Education. Then in 1972 it was brought under the Ministry of Land Reforms and Land Administration. Currently waqf affairs in Bangladesh are governed under the Ministry of Religious Affairs. By virtue of Section 7 of the Waqfs Ordinance 19621, the government appoints an Administrator of Waqfs2 for a five years term who must be a Muslim.3 The Ordinance also provide for a Waqf Committee,4 to assist the Administrator. There are also provisions in the Ordinance for Deputy and Assistant Administrators5 the government may, in consultation with the Administrator, appoint as may be deemed necessary. In pursuance to this, the Administrator of Waqfs is assisted by two Deputy Administrators, six Assistant Administrators, eighteen Waqfs Supervisors, eighteen Waqf Auditors, and fifty four other staff members.6 That brings the total number of staff to ninety eight. The Office of the Administrator of Waqfs is located in the capital city of Dhaka, as it is specifically required and provided for in section 12 of the Ordinance. Apart from the Office of the Administrator in Dhaka there are four divisional offices and 24 district level offices. This brings the total number of offices to twenty nine that are dealing with waqf affairs throughout the country.7 However, the waqf administration in Bangladesh is highly centralized. The divisional and district level officers do not have power to make decisions and pass order. The power to make decisions and to give orders lies solely with The Administrator sitting at the Headquarter in Dhaka. At present, however, the waqf sector in Bangladesh is governed under the Waqf Ordinance 1962 which is the sole legislation in force in the country.

Need for a New Waqf Act.

A fresh Waqf Act is the need of the day in Bangladesh. The existing "Waqfs Ordinance of 1962" emerged as a poorly drafted piece of legislation in the face of the present day needs. Many of its important provisions are poorly drafted. The machinery of administration it laid down in those days of Pakistan Martial law is now incompatible in the new framework of Bangladesh.8

1 Herein after may be mentioned as the Ordinance. 2 Herein after may be cited as the Administrator.3 See section 7, subsection 2 & 3. Waqfs Ordinance, 1962. 4 See Sections 19-25, Ibid.5 See Sec.13, Ibid6 Sadequr Rahman, Waqf Shompotti Proshonge (An appraisal of waqf properties) an article published in six installments from 17.06.2003 to 24.06.03 in The Daily Sangram (a Bengali news paper published daily from Dhaka), see http://www.dailysangram.com 7 Ibid. 8 The Ordinance originated during Martial Law. It came into force on 19th January, 1962 when there was no Parliament. Pakistan’s 1962 Constitution was promulgated on March 1, 1962. East Pakistan became independent

Statutory laws:

Section 13 of the Transfer of property Act 1882 gives the rule regarding property transferred to unborn person but this is not supported by Muslim law. Section 2(b) of the act lays down the idea that any provision in this law will not affect Muslim law. But a future interest on property can be created by waqf under Islamic law. There are other laws regarding the rules for waqf like – the Waqf Administration rules, 1975.

Transfer by gift:

Gift under traditional Islamic law:

In the Islamic law a gift is a transfer of property or right by one person to another in accordance with the provisions given in the Mohammedan law called hiba, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some returnWhere a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called sadaqah.

The essential conditions of a valid hiba is constituted by three things –

1. Ijab: Declaration of gift by Donor. The offer must be clearly stating the intention of the donor.

2. Quabul: Acceptance of the gift by the done.3. Seisin/delivery of possession: Gift is not complete until the Donor delivers the

possession of the gifted property to the done.

Comparison with the statutory law regarding gift in Bangladesh:

Section 122 of the Transfer of Property Act, 1882 provides that a ‘gift’ is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee.

Before the amendment of 2005, Muslims in Bangladesh followed the Muslim law of hiba and if there were any contradiction between the transfer of property act and Muslim law, Muslim law prevailed. Muslims could follow the act if there were no contradiction. An oral gift was valid and there was no provision for registration of hiba. But after the amendment, the provisions in the Transfer of Property Act have become more applicable. According to the 2nd paragraph of section 123 of the Act, hiba under Muslim law will be considered as gift according to this section. For this provision hiba under Muslim law must be effected by a registered instrument signed by or on behalf of the Donor and attested by at least 2 witnesses. And also, by the Registration (Amendment) Act, 2004; section 17(1)(aa) of the Registration Act gives the idea that, declaration of hiba under the Muslim law must registered. By these laws the transfer by hiba has been made more effective.

Bangladesh in 1971.

By extinction of thing

If a thing is destroyed, then the ownership of an owner is lost or comes to an end.

By death of owner

If a owner of a thing dies then his ownership over that thing comes to an end unless his right over that things is of heritable character which transfers to his legal heirs after his death.

Transfer by will:

Will under Islamic law:

The traditional Sunni Islamic law pertaining to the Islamic will -

When a Muslim dies one of the four duties which must be observed is execution of his/her will.The Islamic will is called al-wasiyya. a will is a transaction which comes into operation after the testator’s death. The will is executed after payment of funeral expenses and any outstanding debts.

The importance of the Islamic will (wasiyya) is clear from the following hadith:

"It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it." (Sahih al bukhari)

In Bangladesh:

When a person dies his/her property devolves upon his/her heirs. A person may die with or without a will (Testament). If a person dies leaving a will i.e. dies intestate, the property is distributed among his/her heirs according to the rules of Testamentary Succession. In other words, the property is distributed as per the contents of the testament or will. On -the other hand. if a person (lies leaving no testament (will) i.e. dies intestate, the rules of intestate Succession are applied for distribution of the property among heirs.

Testator:-- The person, who makes/creates a will is called 'Testator'.

Legate:-- The person/persons, in whose favour, the will is created is called 'Legatee',

Legacy:-- The subject matter of the will is called 'Legacy'. It is the property to be distributed among the heirs.

Executor:- The testator, while executing the will, may appoint a person to execute the will in accordance with its contents (after his death). He is called 'Executor'.

Essentials: A will to be valid, the following conditions are to be satisfied.

1. Capacity./Competence of Testator: any person, who is a major and is of sound mind can make a will. However, a minor can make a will subject to ratification on attaining majority. According to Muslim Law, the age of Majority is 15 years.

2. Competence of Legatee: having capacity to hold the property can be a legatee.

3. Subject Matter: A Muslim can bequeath any property movable or immovable, corporeal or incorporeal, which must be in existence and transferable at the time of testator's death.

4. Testamentary Capacity: A Muslim cannot dispose of by will more than 1/3 of the net assets after allowing (meeting) for the debts and funeral expenses of the testator. The remaining 2/3 share should be made available for distribution amongst the heirs.

An heirless Muslim can bequeath his entire property. In case, his wife is the only heir, he can bequeath all his properties minus the share of his wife (as per Koranic table).

Formalities of Wills: Muslim law requires no specific formalities for creation of a will. It may be made in writing or oral or even by gestures. Though it is in writing, it need not be signed by the testator and attested by the witnesses (Ramjilal vs. Ahmed, AIR 1952 MP 56). It is necessary that the intention of the testator should be clear and unequivocal.

Construction of Will:- A Muslim will is to be construed in accordance with the rules of construction of the will as laid down in Muslim Law. Will is a document created by any person during his life time, which operates after his death. The contents of the will arc to be implemented to fulfil the intention or desire of the testator after his death. Sometimes, the contents may not be clear. In such a case, it may be interpreted as per the option of the heirs.

For instance, if the testator, to his will, bequeaths one house to heir A and the other for heir B without any specification. Then, the heirs have to make necessary arrangement.

Revocation of Will:

 A Muslim will or any part thereof may be revoked by the testator at any time before his death. Any act, which results in the extinction of the subject matter or proprietary rights of the testator will impliedly revoke the will.

Death-Bed-Gift (Marz-Ul-Maut):

When a person creates/makes a gift out of an apprehension (fear) of imminent death and dies later, it is called "Death-Bed-Gift". In other words, if a person makes a gift during illness and dies later, it is called Death-Bed-Gift or Matz-UI-Maut. It is subject to two restrictions: (i) disqualification of heir; and (ii) property disposed of should not exceed 1 /3 of the net assets. These restrictions may he relaxed with the consent of the heirs.

The Death-Bed-Gift is valid only when the donor dies of illness during which the gill was made.

Essentials:

I . There must be an apprehension as to immediate death.

2. To effect the transfer of property, by way of gift in anticipation of death.

3. Mere apprehension of death as to old age is not sufficient.

Concept of marz-ul-maut in the statutory law in Bangladesh:

Section 129 of T.P. Act deals with Death-Bed-Gift or Donatio Mortis Causa. Similarly, Section 191 of the Succession Act. 1925 deals with Death-Bed-Gift with regard to movable property.

With regard to the restrictions of making a death-bed-gift by a Muslim, the rules with regard to disposition to the extent of 1/3 td' net assets (after meeting debts and funeral expenses of testator) and also to obtain the consent of other heirs, are applicable in the Case of Marz-uI-Maut also.

By extinction of property:

Ownership may be lost by the extinction of property

By Death of Person:

If an owner of a property dies, his property goes to his heirs as the rule of inheritance.

Inheritance under traditional Islamic law:

Inheritance is often treated as peripheral to or semi-detached from, general debates and policy formation concerning security of tenure, land rights, land reform or regularization. However, inheritance is one of the commonest ways of acquiring land or access to land. In Muslim societies generally, irrespective of the nature of faith of the Muslims concerned, inheritance rules are derived from religious sources for the division of an individual's property upon death. The rules are in the main rigorously implemented by the family, and community, and upheld by the State. Yet, the application of these formal inheritance rules pertaining to designated shares must be understood in a broader socio-cultural and economic context and within wider inheritance systems of practice. Demystifying the complex dynamics of Islamic inheritance rules and practice may reveal important information for the implementation of strategies designed to enhance security of tenure.

Islamic laws of inheritance

While modern reforms and changes have influenced several fields of Islamic law, the detailed classical inheritance structure has been one of the enduring legacies of classical Islamic law or the Shari’a.

The formal inheritance rules have several distinctive features. First, there are predetermined percentage shares for pre-selected beneficiaries while at the same time allowing some flexibility through bequests and legitimate estate planning. Second, a Muslim’s ability to bequeath is restricted to only one-third of an individual's estate under certain rules with the remaining two-thirds devolving according to the compulsory inheritance rules. Third, the scheme of mandatory fixed shares is remarkably inclusive and provides access to property to a range of family members. Finally, the inheritance rights cannot be generally taken away. Rather than a set of abstract rules, Islamic inheritance rules are intended to facilitate distinctive Islamic conceptions of property, family, community, empowerment and justice.

What property may be inherited?

The Islamic law of succession makes no distinction between different kinds of property. It is immaterial whether property is real (land) or personal, movable or immovable - it covers all assets.

Who may inherit property?

Given the wide range of beneficiaries that the Islamic inheritance system seeks to cater to through a sophisticated balancing process, the results can turn out to be hairsplitting permutations and combinations varying according to a given scenario. There are some differences in Sunni and Shi’a positions.

Benefits of the rules for fixed shares

There exist some easily perceived potential benefits to a scheme of specified shares, as compared with systems of inheritance which provide greater apparent legal freedom to the individual seeking to control devolution of his/her property upon death.

Women's inheritance shares as part of a wider property system

Female relatives and spouses are accorded shares, but half that of a male in a similar position and male relatives are more likely to inherit and to enjoy a greater share of the estate. This difference in treatment between men and women is usually explained by reference to the fact that it is also a feature of Islamic law that a wife is entitled to maintenance from her husband, in terms of shelter, clothing, food and medical care. Despite the argument that women are compensated for their unequal inheritance shares through such material obligations on the part of husbands to their wives (and other tools such as dower and gift), the apparent formal paper inequality remains a matter of vigorous debate and gives rise to calls for legal reform.

Unborn, illegitimate and adopted children and orphaned grandchildren

Since a child is deemed to be in existence from the point of conception, a child in the womb is competent to inherit within Islamic law. However, an illegitimate child whose paternity was contested may not inherit from the wife's husband, although that child may inherit from its mother and its mother's family.

Adoption is not recognized under Islamic law (Shari'a), so inheritance through legal adoption into a family is not feasible. A bequest in favour of an adopted child may not exceed one-third of an estate, under the rules. An orphaned grandchild is unlikely to inherit from a grandparent under Islamic inheritance principles.

The Changes which has been accepted in Bangladesh through Codification:

The dilemma of inheritance of grandchildren from the pre-deceased child is one of the most critical areas of the Islamic law. According to the classical interpretation of Islamic law, any son of the deceased in general excludes such grandchildren. However, many states brought certain changes into the existing format of Islamic law of succession so as to shield such grandchildren from total exclusion. Egypt, Tunisia, Syria, morocco, Pakistan and Bangladesh are remarkable for bringing changes in this particular area. Pakistan brought a significant change in 1961 by section 4 of the Muslim Family Laws Ordinance (MFLO), which is a milestone event in the history of reformation of Islamic law. in Bangladesh the same law has become accepted through the promulgation of the Laws Continuance Enforcement Order, 1971. This section 4 of MFLO recognizes for the first time the doctrine of representation.

Conclusion:

The laws regarding the land management, transfer and administration system in Bangladesh are bestowed with the Islamic influence. The reasons may be of being under Muslim Ruler for 650 years or of being 87% of the population Muslim. Whatever may be the basis, but it is true that there is a huge co-relation between the Islamic land administration system and laws relating to lands in Bangladesh. Though there are some changes and reformations have been

introduced in time to time, but these have been done only to fulfill the demand of the people of a certain era.

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RELEVANCE_OF_ISLAMIC_LAND_LAW_FOR_POLICY_AND_PROJECT_DESIGN_powerpoint_ppt_presentation

http://Marz-ul-Maut%20in%20Muslim%20Law.htm