The Administration on Islamic Law of Inheritance in Myanmar

1

DR. MAR LAR THAN. LL.B, LL.M, PHD (LAW). ADVOCATE

THE ADMINISTRATION OF ISLAMIC LAW OF INHERITANCE IN MYANMAR

The administration on inheritance of Muslims in Myanmar is governed by Islamic personal law

because it is included in the Burma Laws Act (1898) Sec 13(1). Most of the descriptions of

the Succession Act (1925) are given exemption for the administration on Islamic personal law

of inheritance but some shall be applied for Islamic inheritance matters.1 The power to

adjudicate on inheritance is laid down on the civil jurisdiction, according to the jurisdiction of

Myanmar. Almost all civil judges are non-Muslims and Islamic personal law of Inheritance

system is rather complicated, courts have to rely upon the fatwÉ, precedents of the former cases

and translated Islamic law books to decide the inheritance problems of Muslims.2

According to Islamic personal law of Myanmar, the estate of a deceased Muslim shall

be divided after deduction of funeral expenses; death-bed charges, debts and the payment by

will which does not exceed one third of estate.3 After prescribing the Succession Act (1925),

administration on inheritance in Islamic personal law has to follow the procedure provides in

the Act as follows;

Funeral expenses to a reasonable amount according to the degree and quality of

the deceases, and death-bed charges, including fees for medical attendance, and

board and lodging for one moth previous to his death,4

Expenses of obtaining probate, letters of administration, including the costs

incurred for or in respect of any judicial proceedings that may be necessary for

administering the estate;5

Wages due for service rendered to the deceases within three months of his death

by any labourer, artisan or domestic servant;6

Other debts of the deceased according to their respective properties (if any); and7

1 Khin Maung Sein, U, at 236 2 Interview with Than Tin, U and Yan Naing, Mufti (Yangon, 2012) 3 Baillie, Neil B.E, 2nd edn., at 693-694 see also Mulla, D.F s-40 4 Succession Act, (1925), The Burma Code, Vol 11, S. 320 5 Ibid., s.321 6 Ibid., s.322 7 Ibid., s.322

2


Payment by the legacy. Debts to be paid before any legacy.8 The extent of

Legacies which are not exceeding one third of what remains after all the above

payments have been made.9

When a Muslim dies leaving some properties, the first to consider is whether he has left

any will or has died intestate10 because Muslim has the right to dispose his property by a way

of will.11 But a Muslim cannot dispose more than one third of his estate by the way of will

unless heirs agree beyond of one third after his death.12 As stated earlier, in Myanmar, Muslims

are recognized as Sunni and Shiah although they are not much difference between marriage and

divorce, but there are some differences apparently in inheritance. Therefore administration on

inheritance can be divided into two as Hanafie law of inheritance and Shiah law of

inheritance.13

Where there is any question which arises as to be applied by Shiah law or Sunni law, it

shall be decided upon the ground of how did the deceased died. Succession to the estate of a

deceased Muslim is decided by the law which he belonged at the time of his death and not by

the law of heirs.14 Either movable and immovable property or ancestral and self-acquired

property is not being distinguished in Islamic personal law of inheritance and all kinds of

property shall be treated alike.15

The right of an heir apparently comes into existence immediately only on the death of

the deceased.16 No heir can get any right in the property of another person by birth and any

heir who dies before the date of the person of heritage shall not be entitled to inherit from him.17

The estate may be divided at any time after the death of the deceased. The right of inheritance

8 Ibid., s.325 9 Baillie, Neil B.E I at 693-694 see also Mulla, D.F, s. 39/ Khin Maung Sein, U at 237 10 Verma, B.R at 293 see also Khin Maung Sein, U at 235 11 Khin Maung Sein, U at 235 12 Baillie, Neil B.E I at 694 see also Mulla, D.F s.118 13 Researcher’s own experience as a lawyer in Myanmar 14 Hayat-un Nissa V. Mohammad (1890) 12 All 290, 17 IA 73 15 Ali, Syed Ameer II at24 see also Mulla, D.F, s.51/ Verma, B.R. S.121 16 Daw Pu v. Ahmed Ismail Seema (1955) B.L.R (H.C) 21 (FB) 17 Verma, BR, s.122 see also Ahmad, Aqil at 327/ Khin Maung Sein, U at 261

3


is not lost by the death of any heir before the distribution of property. Besides, the estate of a

deceased Muslim passes on the heirs separately and the heirs hold the estate as tenants-in-

common as well as the each heir has the specific share in the whole property.18 These are some

general provisions concerning with the Islamic personal law of inheritance.

1. Hanafie Law of Inheritance

Under the Sunni Hanafie law of inheritance, heirs connected to the deceased are divided into

three class; namely Sharers, Residuary and Distance kindred.19

1.1. Sharers

Sharers are those who entitled to succeed to the estate of deceased Muslim by their prescribed

shares which are prescribed in the Quran. After deduction of all expenses and payments, the

estate of the deceased Muslim shall be distributed to the sharers firstly.20 There are twelve

sharers, four males and eight females who are the nearest blood relation of deceased person,

namely father; true grandfather how high so ever, uterine brother; husband; mother; true

grandmother how high so ever; daughter; son’s daughter how low so ever; full sister;

consanguine sister; uterine sister and wife.21

They are also known as Quranic heirs because their shares are prescribed and fixed six

different shares such as half, quarter, one eighth, two third, one third and one sixth in the Quran.

Their shares are variable according to circumstances and in some circumstances Sharer turns

to residuary.22 Besides, there are rules of exclusion between sharers and a sharer shall be

excluded from inheritance as follows;

18 Ibid., s.123 /125 see also Baillie I at 728 19 Ali, Syad Ameer at 48 see also Baillie, I at 695/ Fyzee, Asaf A.A at 320/ Mulla, D.F s-61/ Verma, B.R s-

134(10)/ Khin Maung Sein, U at 275 20 Ibid., at 48 see also Baillie, I at 696/ Mulla, D.F s.63/ Verma, B.R, s.137/ Fyzee, Asaf A.A at 321 21 Ibid., at 49 see also Baillie, I at 696/ Mulla, D.F s.63/ Verma, B.R, s.137/ Fyzee, Asaf A.A at 321 22 Baillie, I at 696-697 see also Verma, B.R, s.137/ Mulla, D.F s.61

4


Whoever, related to the deceased through a person who may participate as

residuary shall be excluded by such person. (E.g. A related to the deceased B

through C who is residuary of B’s estate. A may be excluded by C.)

A sharer, nearer in blood with deceased shall exclude the more remote.

Full-blood relation of deceased shall exclude the half blood of consanguine, but

not the half blood of uterine.23

Basically there are two rules of exclusion such as partial exclusion and total exclusion.

Total exclusion means when the one is excluded, he has no right to inherit anymore and partial

exclusion means when some sharers are excluded as sharers but they have the right to inherit

by other way. However there are rules of exclusion in Islamic personal law of inheritance,

husband, wife, father, mother, son and daughter have never been excluded by this rule24 which

are recognized by both Hanafie and Shiah Schools.25

1.2. Residuaries

Residuaries are those who have no prescribed shares and they succeed the residue after being

satisfied sharers or those who inherit the whole estate where there are no sharers. The residuries

are divided into two that is residuries by special cause and residuries by kinship to the

deceased.26 The residuries for special clause are emancipators, who are only designed by the

Sunni law. Where the freedman died without leaving no manumitter, sharers and residuries by

blood, his entire estate goes to his male emancipator but not to the female emancipator.27

Residuries by kinship to the deceased is divided into three classes, they are residuaries in their

own right, residuaries in the right of another and residuaries with other.28

23 Ibid. see also Verma, B.R s.139/ Mulla, D.F s.62 24 Ibid., at 705-706 see also Verma, B.R s.139 25 Ibid., at 34 see also Mulla at 79 26 Ibid., at 701 see also Ali, Syed Ameer II at 51 27 Ibid., at 703 see also Ali, Syed Ameer at 68 28 Ibid., at 701 see also Ali, Syed Ameer II at 51/ Mulla, D.F, s.61 & 65/Ahmed, Aqil at at 346

5


Every male relatives who related to the deceased with no female entries are classified

as residuary in their own right.29 They are divided into four classes such as

Offspring of the deceased; son, son’s son how low so ever,

The ascendant of the deceased; father, true grandfather and how high so ever,

Offspring of his father; full brother, consanguine brother and their lineal male

descendants such as son of full brother or son of consanguine brother and

Offspring of his true grandfather; full paternal uncle and half-paternal uncle how

high so ever.30

Where there are several residuries in the same degree, the heritage shall be divided

equally between them by person, not by families.31 Residuries in the right of another are every

female relatives who become residuary or made residuary by a male who is related with

deceased parallel to her.32 Such residuries are divided into four categories; daughter; son’s

daughter; full sister and consanguine sister.33 In this kind of residuries, if a female is same

degree with a male, she shall take half the share of a male. As a result, ratio of the son and

daughter’s share is like 2:1.34

Every female relative who becomes a residuary with another female are called residuary

with other,35 they are full-sisters who inherit together with daughters or son’s daughters and

consanguine sister who inherit together with daughters or son’s daughters.36 Generally,

residuries are divided into several kinds to inherit the estate. Among the residuries, and they

are divided into four categories; these are descendants, ascendants, descendants of the father

or collaterals and descendant of true grandfather.37

29 Ibid., at 701 see also Ali, Syed Ameer at 52 30 Ibid., at 702 see also Ali, Syed Ameer at 52 31 Ibid., at 702 see also Ali, Syed Ameer at 53 32 Ibid., at 703 see also Ali, Syed Ameer at 53 33 Ibid. 701 see also Ali, Syed Ameer at 52 34 Ibid., at 703 see also Ali, Syed Ameer at 54 35 Ibid., at 703 see also Fyzee, A.A at 332-334/ Ali, Syed Ameer at 55 36 Ibid., at 703 see also Ali, Syed Ameer at 55 37 Ahmed, Aqil at 346 see also Fyzee at 333/Khin Maung Sein at 292

6


Descendants are the first category and they are divided into three such as- son and

daughter, son’s son and daughter, son and daughter of son’s son. Son takes double portion of

daughter in same degree however daughter and son’s son or son’s daughter (granddaughter)

and son of son’s son (great grandson) will take equally. Where there is no above residuary,

rest of estate will go down to second category.38 Ascendants are the secondary category and

they are; father and true grandfather how high so ever. Father may succeed as a Sharer or

residuary or both at the same time and where there is no father, true grandfather may succeed

as same as a father. Besides, where there are no first and second categories of residuaries, heir

will go down to third category.39

The third category of residuaries are descendants of the father or collaterals and they are four

in category such as; full brother and full sister, consanguine brother and sister, full brother’s

son how low so ever, and consanguine brother’s son how low so ever. In same degree son

takes double of daughter’s portion and where there are no above residuary, the estate will go

down to fourth category.40 The fourth category of residuaries are descendants of true

grandfather; namely: - full paternal uncle, consanguine paternal uncle, son of full paternal

uncle, son of full paternal uncle’s son, son of consanguine paternal uncle, son of consanguine

paternal uncle’s son, father’s uncle, father’s consanguine uncle, son of father’s uncle how low

so ever, and Son of father’s consanguine uncle how low so ever. 41

The rule of exclusion is also applicable in residuaries. For example first category of

residuary excludes second category, second category excludes third category and third category

excludes fourth category. But among in the each category, nearer relation of deceased excludes

to more remote. Full blood relation of deceased excludes the half-blood relation and a son

38 Ibid., at 346 see also Fyzee at 334/ Khin Maung Sein, U at 293 39 Ibid. see also Fyzee at 335/ Khin Maung Sein, U at 293 40 Ibid., at 347 see also at 335-336/ Khin Maung Sein at 293 41 Ibid. at 347 see also Fyzee, A.A at /Khin Maung Sein, U, at 294.

7


inherits double of a daughter. The important to note is that father can inherit three ways like

sharer, residuary or both sharer and residuary at the same time.42

1.3. Distance Kindred

Distance kindred are all blood relations who are entitled as neither sharers nor residuary. They

have the right to succeed the heritage where there are no sharers or residuries in line and it can

be divided into four classes; namely,43

Descendant of the deceased;

Children of daughters and their descendants how low so ever,

Children of son’s daughters and their descendants how low so ever.

Ascendants of the deceased;

False grandfather how high so ever (mother’s father),

False grandmother how high so ever (mother’s father’s mother).

Descendants of the deceased’s parents;

Daughters of full brothers and their descendants.

Daughters of consanguine brothers and their descendants.

Children of Uterine brothers and their descendants.

Children of all sisters (full or consanguine or uterine) and their descendants.

Descendants of the grandparents (true or false)

Uterine paternal uncle and their children,

Paternal aunts (full/consanguine/uterine) and their children,

Maternal uncle and aunts and their children,

Daughters of full paternal uncles and their descendants,

Daughters of consanguine paternal uncles and their descendants.44

42 Ibid., at 346-352 see also Fyzee at 341/ Baillie, I at 704-706/ Khin Maung Sein, U at 294-295 43 Ibid. at 351-352 see also Baillie, I at 715/ Fyzee, A.A 339/ Khin Maung Sein, U at 297? Ali, Syed Ameer at 57 44 Ibid. 352 see also Baillie, I at 715 see also Fyzee at 339-340/ Mulla, D.F, s.68/ Ali, Syed Ameer at58

8


Between these classes, the first class of the distance kindred succeeds first. The second

class is second in succession and third class is third as well as fourth class is the last. There are

also rules of preference or rule of exclusion in the distance kindred as same as sharers and

residuaries. The rules are that the nearer to the deceased is more preferable than the more

remote. Where there is an equal degree of relationship, the children of an heir whether sharers

or residuary are preferred. If there are only females or male of distance kindred left by the

deceased and they are not the children of the heir, the property will be divided equally between

the same sexes because they all stand equal in degree. Besides, where there are left mixed with

female and male, in this condition, male portion is double of female portion.45 Where there are

no sharers and residuary, a whole estate will go to distance kindred. There is a husband or a

wife is the only sharer and no residuary, the rest of heirs will go to distance kindred too.46

Step-children have no right to inherit from step- parents as well as step- parents have

no rights to inherit from step-children.47 Meanwhile in Sunni Hanafie law, an illegitimate child

is recognized to be the child of its mother only. Therefore, he or she has the right to inherit

from its mother and mother’s relatives and they have the mutual right to inherit from such child.

But an illegitimate child cannot inherit from the legitimate child of his mother.48 The person

who confesses different religion has no right to inherit from deceased Muslim however he or

she relates to the deceased.49 The child in the womb has the right of inheritance, when the child

is born during six months after death of deceased. When the child is born more than six months

after death of deceased, he or she has no right of inheritance unless the other heirs acknowledge

45 Ibid., at 353-354 see also Baillie, I at 715-716/ Fyzee at 341/ Mulla, D.F s. 69 46 Fyzee, A.A at 339 see also Verma, B.R s.148/ Ali, Syed Ameer at 66-67 47 Ibid., at 344 see also Mulla, D.F s. 84/ Verma s.132 48 Ahmed Aqil at 329 see also Mulla, D.F s. 85/ Verma s.127 49 Ibid. 329 see also Baillie, I at 708

9


that his or her mother was pregnant at the time of deceased death.50 These are the procedure

for inheritance on Islamic personal law of Myanmar.

2. Shiah Law of Inheritance

As mention earlier, the principles of succession and mode of distribution of Sunni Hanafie law

is apparently complicated, on the contrary Shiah law of inheritance is rather simple.51

According to the ruling of Hayat-un Nissa V. Mohammad,52 succession to the estate of a

deceased Muslim is decided by the law which he belonged at the time of his death and not by

the law of heirs. Therefore, if the decease died as a Shiah Muslim, his estate will be divided

according to Shiah law of inheritance.

The Shiah law of inheritance is basically divided into two groups, such as heirs by

consanguinity, that is all blood relations and heirs by special cause, which are mainly husband

and wife. The blood relations who are entitled to succeed by virtue of consanguinity are divided

into three classes and each class is subdivided into two sections.53 First class of heirs are first

degree of ascendants and descendants of the deceased. They are

Parents and

Children and their descendant how low so ever.54

Second class heirs are all degrees of ascendants and ascendants of deceased’s parents;

such as

Grandparents how high so ever (true and false), and

Brothers and sisters and their descendant how low so ever.55

Third class heirs consist of collateral; like

50 Baillie I at 712 see also Ali, Syed Ameer, Mahommedan Law; complied from Authorities in the Original Arabic, vol I, 6th ed, (Lahore, 1966) at 70 51 Ali, Syed Ameer at 101 52 Hayat-un Nissa V. Mohammad (1890) 12 All 290, 17 IA 73 53 Ibid. see also see also Baillie II at 261/ Mulla D.F s.87/ Verma, B.R s.161 54 Ibid., at 102 see also Baillie II at 276/ Fyzee, Asaf A.A at 352/ Ahmad Aqil at 363/ Verma, B.R s.162 55 Ibid. see also Fyzee, Asaf A.A at 352/ Ahmad Aqil at 363/Verma, B.R s.162

10


Paternal, and

Maternal uncles and aunts of the deceased and of his parents and grandparents

how high so ever and their descendant’s how low so ever.56

Heirs by special cause are divided into two classes such as

Right of inheritance by marriage and

Right of inheritance by special relationship.

Right of inheritance by marriage is husband or wife. Husband or wife inherits together

with consanguine relatives who are the nearest to the deceased.57 Right of inheritance by

special relationship are classified again into three these are

The right of inheritance possessed by the emancipator,

The right of inheritance for the responsibility of offence by the deceased, and

The right of inheritance possessed by the spiritual headship.58

Shiah law of inheritance also accepts the rule of exclusion that the third class is

excluded by the second class, the second class is excluded by the first class. But in each class,

the heirs of two sections succeed together and cannot exclude each other. In the each section,

the nearer in degree excludes the more remote and a boy takes double portion of a girl but

husband or wife of deceased is never excluded from succession.59

To determine the shares of heirs, there are divided into two classes only as sharers and

residuary. Sharers are divided into nine in numbers and descendants of the sharers (how low

so ever) are also considered as sharers and they are; husband, wife, father, mother, daughter,

uterine brother, uterine sister, full sister and Consanguine sister.60 Their sharers are fixed in the

Quran and the amounts of their share are same as Sunni Hanafie law. In Shiah law of

inheritance, heir by marriage, either husband or wife is the first prior in the distribution of the

56 Ibid. see also Fyzee, Asaf A.A at 352/ Ahmad Aqil at 363/Verma, B.R s.162 57 Ibid., at 103 see also Baillie II t 276/ Verma B.R at 400/ Mulla, D.F s.89 58 Ibid. at 103 see also Baillie II at 296-301 59 Ibid., at 102, 108, 121 see also Verma, B.R s. 163/ Mulla, D.F, s. 87, 88, 89/ Fyzee at 353 60 Ahmed, Aqil at 366/ Mulla, D.F s. 90/ Khin Maung Sein, U at 304

11


property of deceased, and the rest will be inherited by the surviving relations.61 Besides, all

heirs except from Sharers are recognized as residuary and descendants of residuary are also

recognized as residuary too.62

Moreover, Shiah law practices the doctrine of return. Where there are no residuary and

residue left after allotting the shares of Sharers, the residue reverts to the some Sharers. For

example, if the deceased left only one heir, that one has the right to inherit the whole estate

because he succeeds some estate as his share and he succeeds the rest as return. Formerly, if

the wife is an only one successor of deceased, she has the right to entitle her Quranic share and

she has no right to inherit the return. But started from the case of Abdul Hamid Khan v. Peare

Mirza,63 the wife has the right to entitle the return if she is an only heir of the deceased.64

Generally, Shiah law does not recognized the principle of representation as same as

Hanafie law, but recognized in some circumstances. For example; if the deceased has two sons

and both sons who died earlier than him and leaving three grandsons such as one son left one

grandson and another son left two grandsons, who become the heirs as their parents who

predeceased. In that case, the heritage will be distributed that one group of grandson will take

half and another group of the grandsons will take other half. This principle operates not only

to the descendants but to the ascendants line also according to the Shiah law of inheritance.65

When the deceased left no other heirs except parents, mother takes one third and father

takes two third and all four grandparents are the only living heirs without anyone, the paternal

grandparents take two thirds and maternal grandparents take one third only because rule of

double share practices not only to the descendants but to the ascendants also. Moreover, there

61 Ibid., at 111 see also Khin Maung Sein, U at 307/ Fyzee at 353/ Baillie II at 282 62 Ibid., at 98,99 see also Verma, B.R s. 165/ Ahmed, Aqil at 367/ Mulla, D.F s.91 63 (1935) 10 Luck.550 64 Ali, Syed Ameer at 99 see also Ahmed Aqil at 367/ Verma, B.R s.179/Mulla, D.F s. 92 65 Ahmed, Aqil at 367 see also Mulla, D.F s.93/Fyzee, Asaf A.A at 356

12


is another rule that, between paternal grandparents the rule of double share is practiced for their

two third shares but maternal grandparents share equally without distinction of sex.66

Furthermore, a childless widow has no right to inherit her husband’s lands, but she has

the right to entitle her one fourth shares on the value of trees, buildings standing there upon

and his moveable properties including debts.67 An illegitimate child has no right to inherit at

all not only from his parents but their relations also and they have no right of inherit from him

vice versa. Although a father may acknowledge him as a son, an acknowledge son who is

actually illegitimate has the right to succeed of his father’s estate but not to the paternal

relations.68 Besides, there is the other rule that, non-Muslim has no right of inheritance of

deceased Muslim but the successor apostate after vesting the right of inheritance, he will not

be excluded from his right.69

Shiah law of inheritance is applicable in Myanmar for the disputes among the Shiah

Muslims of Myanmar. Though their inheritance problems may be submitted to the civil courts

of Myanmar, Shiah inheritance cases are very rare in courts and most of disputes are set up in

their religious institutions.70

3. Will

When a Muslim dies leaving some properties, the question arises that has he left any will or

has he died intestate, because a Muslim has the right to do a will.71 Will is an important part

of Islamic personal law of inheritance. Whenever Islamic personal law of inheritance has been

studied, it will not be completed if the will has not been discussed. According to the Islamic

personal law, will is legal and favorable construction which has been stated in the Holy Quran

66 Ali, Syed Ameer at 107 see also Khin Maung Sein, U at 311/ Fyzee at 358,359 67 Ibid., at 113 see also Mulla, D.F s.113/ Ahmed, Aqil at 374 68 Ibid., at 117,118 see also Mulla, D.F s.114/Ahmed, Aqil at 374 69 Ibid., at 125 70 Researchers owned experience as a lawyer in Yangon 71 Maung Lu Maung v. Maung Pe, 5 B.L.T, 255

13


and tradition of Prophet (PBUH).72 On the other hand will is the divine institution which

exercise by the Quran.73

Will, wasiyyat in Arabic means a legal declaration of one’s intention with respect to

grant the property or anything to be dealt as he desires after his death.74 There are some

principles to abide by in the Islamic personal law to make a will; every Muslims of sound mind

and has reached the age of majority may dispose of his property by will.75 A Will may be made

both male and female and it may be made either orally or in writing. No specific form or words

are necessary to be a legal will but intention of the testator should be cleared. A will is not

essential to be signed and registered although it is done by writing and if the written will is

signed, it does not require affirmation.76

A Muslim cannot dispose more than one third of his estate by will and an heir cannot

benefit from an estate by will. When the heritage is disposed by a will of more than one third,

over one third of estate is not valid without the consent of heirs after the death of the testator.

A Will that is given to a person who is an heir is not valid without the other heirs’ consent,

after the death of testator as well.77 Besides, the consent may be made either expressly or

implied. A bequest to a person who was not existent at the death of testator is void though a

bequest to a child of a womb who will be born within six months from the date of the Will is

not void.78 Any kind of property which is capable of being transferred and exists at the death

of testator; even though the property is non- existent at the date of will, may be dispose by

will79 because a will comes into force upon the the testator’s death.

72 The Hidaya II at 679 73 Ali, Syed Ameer I at 569 74 The Hidaya II at 678 see also Verma, B.R, s.182/ Baillie I at 623/ Baillie II 229 75 Ibid., at 684 see alsoMulla, D.F, s. 115 76 The Hidaya II at 685-686 see also Ahmad Aqil at 249/ Verma, B.R at 430/ Baillie I at 627/ Khin Maung Sein,

U, at 215 77 The Hidaya II at 679-680 see also Baillie I at625/ Mulla, D.F, s.118 78 Ibid., at 683/ 685 see also Baillie I at 627/ Mulla, D, F s.120 79 Ahmad, Aqil at 251 see also Mulla, D.F s.123

14


A will may be revoked either expressly or impliedly at any time during the testator’s

life time.80 Where the testator cancels the will voluntarily before his death, then the will is said

to be terminated because the power to cancel the will rests in the testator and if he decides to

exercise that power, the will have been effectively withdrawn according to the Islamic personal

law.81

Where the property to be enjoyed under the will is destroyed due to act of man or natural

factors, such a will automatically cease. For example; where cows are willed and all the cows

die before the will becomes ripe. In this situation, the will cannot function as the testator

wished, therefore it has been automatically cancelled because the subject matter no longer

exists.82

If the testator sets certain conditions that must be satisfied before the will becomes

applicable and the conditions are not met then the will is said to be cancelled. For example;

where the testator mentions that the beneficiary is to get the property if he is married at the

time of his death. When the testator dies the beneficiary has not married, the will automatically

vitiate because of non-fulfilment of the will’s condition.83 Although Muslims of Myanmar have

the right to dispose their estate by the way of will, it is not much used and most of Myanmar

Muslims are confused between HibÉ and will.

4. Hibah or Gift

Hibah or gift is lawful,84 considered in Islamic personal law of inheritance. In its primary

sense, hibah signifies the giving of things to make another party to benefit from the wealth of

the person who makes the gift.85 On the other hand hibah is a transfer of property which may

80 The Hidaya II at 682/685 see also Baillie I 629-630/ Mulla, D.F s.129 81 Ibid. 82 Ibid. 83 Ibid. 84 The Hidaya II at 187 85 The Hidaya II at 186 see also Ali, Syed Ameer I at 40

15


take effect immediately without any exchange by one person to another and acceptance by or

on behalf of the done.86

To become an effective gift, there are some rquirements to be followed. Every Muslim

of sound mind and age of majority may render his property a gift.87 In this case, the age of

maturity of the donor is not considered by the Islamic personal law; it is considered by the

Majority Act (1875) in Myanmar.88 Besides, either moveable or immoveable property may be

the subject of gift and it may be made verbally or in writing, however writing is not essential

for the validity of a gift.89 Moreover, it is important to note that a gift is different from a will.

Gift may be made of the whole or some parts of the property which is owned by donor and it

may be given to anybody even to an heir90 except to an unborn baby. The gift to an unborn

baby is void.91 There is no distinction between inherited and self-acquired property in the eyes

of Islamic personal law.92 The property must be in existence at the time of the gift and the

subject of the gift must have a legal value. Possession must be taken by the gift holder to

establish it as his gift as well.93

Although it is lawful for a donor to retract the gift to a stranger according to the Hanafie

School of law, ImÉm ShÉfÑÊ maintains that this is not lawful.94 Notwithstanding above

matters, the gift of immoveable property, shall be registered according to the Transferred of

Property Act (1882) in Myanmar. It is enough evidence for the validity of gift although the

property is not delivered in hand at once. 95 There is some but not too much application of

hibah among the Muslim community of Myanmar.

86 The Hidaya II at 186 see also Mulla, D.F s-138/ Verma, B.R s-201/ Baillie I at 515 87 Mulla, D.F s-139 see also Verma, B.R s-202, Khin Maung Sein, U at 144 88 Khin Maung Sein, U at 144 see also Verma, B.R s-202 referring to the Sec 3 of Majority Act (1875) 89 Ali, Syed Ameer I at 41 see also Mulla, D.F s-147 90 Mulla, D.F s-142 91 Ibid. s-141 92 Ali, Syed Ameer I at 33 93 Baillie I at 516 see also Khin Maung Sein, U at 145 94 The Hidaya II at 193 95 Researcher’s own experience as a gift holder.

16


5. Waqf

Waqf is one of the most important parts of Islamic personal law and originally it was at the

direction of Prophet (PBUH).96 In Myanmar, waqf has been viewed as religious endowment,

therefore it is Islamic personal law according to the Burma Laws Act (1898). There are two

codified Acts relating to waqf, which has been applied since the British colonial era till today.

Original meaning of waqf is setting aside of property for a charitable purpose or

devotion to a cause.97 According to the Hanafie School of law, waqf signifies the appropriation

or detention of any specific thing which is in the ownership of the appropriator and dedicating

of its profit in charitable or other good object in the manner of accommodate loan.98 In

Myanmar, waqf is defined as follows;

Waqf means the permanent dedication by a person professing the Mussalman

faith of any purpose recognised by the Mussalman law as religious, pious or

charitable.99

Waqf means the permanent dedication by a person professing the Mussalman

faith of any property for any purpose recognised by the Mussalman law as

religious, pious or charitable, but does not include any waqf, such as is dedicated

in section 3 of the Mussalman Wakf Validating Act, under which any benefit is

for the time being claimable for himself by the person by whom the waqf was

created or by any of his family or descendants.100

The section 3 of the Mussalman Wakf Validating Act (1913) prescribed that;-

It shall be lawful for any person professing the Mussalman faith to create a waqf

which in all other respect is in accordance with the person of Mussalman law,

for following among other purposes:-

For the maintenance and support wholly or partially of his family, children or

descendants, and

Where the person creating a waqf is a Hanafie Mussalman, also for his own

maintenance and support during his lifetime or for the payment of his debts out

of the rents and profit of the property dedicated.

96 Ali, Syed Ameer I at 194 97 The Hidaya I at 562 I have taken the liberty to substitute the original words used by the learned author for the

contemporary word. 98 Ibid., at 563 see also Ali, Syed Ameer I at 195/ Verma, B.R s-217/ Baillie I at 557 99 The Mussalman Wakf Validating Act (1913), s-2(1) 100 The Mussalman Wakf Act, (1923), s-3

17


Provided that the ultimate benefit is in such cases expressly or impliedly reserved

for the poor or for any other purpose recognised by the Mussalman law as

religious, pious or charitable purpose of permanent character.101

There are two kinds of waqf, that is private waqf and public waqf. Private waqf is the

one which is made intending to get benefit for the private individuals including the family or

relations of the dedicator. Public waqf is the one which is made for the general purpose of

pious and charitable.102 Therefore, according to the above section, it can be said that Myanmar

did not recognised the private waqf which is provided in the Mussalman Wakf Validating Act

anymore.103

The subject of waqf is mentioned in these Acts as any property which is lawful

according to Islamic personal law. Besides, the subject of waqf may be either moveable or

immoveable property such as share in joint stock companies, government promissory notes

and even money.104 But it is important to note that the property which is dedicated by the way

of waqf must belong to the dedicator at the time of waqf.105 Every Muslim of sound mind and

age of majority may make a waqf in respect of any property of his own.106 Where the

dedication becomes valid and absolute, any kind of transfer from the dedicated property is

unlawful.107

There is no specific form of waqf to be a valid and it may be made either verbally or

in writing.108 If the waqf is written for the immoveable property which exceeds the amount of

100 Kyats, it is required to be registered under the Registration Act in Myanmar.109 A waqf

may also be made by a person who is on his death bed illness. However the waqf, made on

the death bed illness is lawful and valid, it will take effect as a will and only one third of his

101 The Mussalman Wakf Validating Act, (1913), s-3 102 Ali, Syed Ameer I at 194 103 According to the statement of section 3 The Mussalman Wakf Act, (1923) 104 The Hidaya II at 568,569 see also Mulla, D.F s-175/ Baillie I at 562, 570,571/ Ali, Syed Ameer I at 201 105 Mulla, D.F s-176 106 Ibid. s-182 see also Ali, Syed Ameer I at 197/ Verma, B.R s-218 107 The Hidaya II at 569 108 Verma, B.R s-222 109 Mulla, D.F s-187 see also Khin Maung Sein, U at 168

18


estate will be affected after the death because in this situation, agreement of the heirs of

deceased is important. When the heirs agree, it will be valid entirely. If heirs do not agree, it

would be invalid with respect to the excess of the one third.110

Moreover, a waqf may be made by a person to take effect after his death and this kind

of waqf is called the waqf by way of will. Originally the waqf is irrevocable and once the

waqf has been made either verbally or in writing. The right of dedicated property becomes

extinguished forever however the waqf by the way of will is revocable at any time before his

death.111

Though Islamic personal law has been applied in Myanmar, it is different in some

instances with the theoretical view of Islamic personal law. However there are some Acts

relating to waqf matters, these are not adequate, therefore whenever the waqf is concerned,

rulings are important to learn and depend upon. In the case of Daw Ein & others v. Daw Chan

Thar & others,112 it was ruled that

Wakf means the dedication by a person professing a Mussalman faith of any

property for any purpose recognized by the Mussalman law as religious, pious

or charitable. Therefore it shall be decided by the Islamic personal law according

to the Burma Laws Act Sec 13(1). Valid Wakf may be done not only by written

but by oral also.

This ruling is a leading case for the waqf and it has been applicable so far. Besides in

the cases of Saya Cair v. Daw Tin Tin & 7 others113 the court decided the validity of wakf that;

“Wakf means the permanent dedication according to Islamic personal law. There

is no specific principle to constitute the wakf. Valid wakf may be done either in

writing or orally. It is enough to show the intention of wakf clearly. But if wakf

is made by written document and it includes immovable property which is worth

more than 100 Kyats, shall be registered according to the Registration Act.

Moreover, if it is oral Wakf, the Wakif shall be declared to the public that he/she

has made the wakf for his/her properties in the presence of witnesses. If it is

written wakf, the witnesses shall sign in the document as they have known the

wakf.”

110 The Hidaya I at 566 see also Ali, Syed Ameer I at 212/ Mulla s-185 111 Ali, Syed Ameer I at 213 see also Mulla, D.F s-189 112 (1940), R.L.R, 136. 113 (1994), B.L.R, (F.B), 45.

19


This is the latest ruling concerning with waqf and it ruled out exhaustively. In

conclusion, waqf is applicable in Myanmar in accordance with Islamic personal law, but it

should abide by the Government Act. However it is applicable, nowadays it is quite rare in

Muslim minority of Myanmar.

The Administration on Islamic Law of Inheritance in Myanmar

Documents

Transcript of The Administration on Islamic Law of Inheritance in Myanmar