Shifting Tides in the Application of Islamic Law: Muslim Judges on Colonial Benches

This is part 5 of a six-part series of posts that will examine Anglo-Muhammadan law in the courts of British India.

Court Case: Muhammadan law and Construction of Instrument of Gift

Source: Indian Law Reports: Allahabad Series, Volume III

Case: Ghulam Ahmad Khan and another (Plaintiffs) v. Muhammad Faiz Ahmad Khan (Defendant), January 27, 1881

Classification: Muhammadan Law—Construction of Instrument of Gift

Summary: “One of two brothers—co-sharers in ancestral lands, died leaving a widow who thereupon became entitled to one-fourth of her husband’s share of the family inheritance. Without relinquishing her right to claim her share, in lieu thereof, she received an allowance, and cash, and grain. The surviving brother made an arrangement with her, which was carried into effect by documents. By one instrument he granted two villages to her. By another she accepted the gift, giving up her claim to any part of the ancestral estate of her husband. The first instrument, inter alia, stated as follows—‘I declare and record that the aforesaid sister-in-law may manage the said villages for herself and apply their income to meet her necessary expenses and to pay the government revenue.’”

Held, that these words did not cut down previous words of gift to what in the Muhammadan law is called an ariat; and that the transaction was neither a mere grant of license to the widow to take the profits of the land revocable by the donor, nor a grant of an estate only for the life of the widow. It was a hibba-bil-ewaz, or a gift of consideration, granting the villages absolutely.”[1]

Presiding: Privy Council—On Appeal from the High Court of the North-Western Provinces at Allahabad

Brief Summary of the Case: Upon the death of her husband, Wali-un-nissa was entitled to one-fourth of his share in the ancestral estate of the family. She agreed to the “deed of gift” on the part of her brother-in-law and was given the villages of Sahauli and Kamalabad. Upon her death these villages were left to her heirs, but they were reassumed by the brother-in-law. The suit was brought forth by the heirs of Wali-un-nissa against their uncle to obtain possession of the two villages. The defense was that the villages were only granted to Wali-un-nissa for the duration of her life, and were given by way of ariat, for her maintenance, not by way of hibbah-bil-ewaz, or absolutely. This means that upon the death of Wali-un-nissa, the villages would be returned to their rightful owner.

The two courts that heard the case prior to the Privy Council held that the instrument “showed an absolute gift of the villages to the widow and a decree for their possession was made in favor of the respondents.”[2] The main question in the case upon which the subordinate judges had to rule was whether the villages were given as an absolute gift or a temporary one. The subordinate judges cited heavily from Islamic legal texts. The important passages reproduced in the court decision are provided below:

To make a person the owner of the substance of a thing without consideration is a hibbah (gift), while to make him the owner of the profits only without consideration is an ariat or commodatum (vide Dur ul-Mukhtār, Kitāb ul-Hibba). In a gift, it is essential that the donor be sane, owner and of age, that the thing given be not undivided (mushaa), and be in possession of the donor, and that there be proposal and acceptance … In an ariat it is not necessary that the donor should be of age, nor that the thing given should not be undivided, nor is acceptable after that proposal a condition (Alamgiri) … The words by which an ariat is constituted have a special character assigned to them in the Alamgiri, and I shall copy it in this place to show what words are used in giving a thing in ariat, and of what signification.[3]

After this passage, various examples are given of the language of consideration used to denote something is an ariat. The judge cites directly from multiple Islamic legal texts, including Fatāwa Qāḍī Khān, Fatāwa ʿĀlamgīrī, the Hidāya, and its various commentaries.[4]  All texts note that ariats are conditioned by time (e.g., I give thee my robe, for one month) or by use (e.g., I give thee my house, as a residence). The judge then continues to state the words that are used to indicate a gift. He states, “First, those which are specially made (adapted) for a gift; secondly, those which denote a gift metaphorically or by implication; and thirdly, those which import hibba or ariat equally.”[5]

The distinction between the hibba and the ariat primarily rests on language—to what extent does the individual giving the hibba or ariat condition it by either time or purpose? If the consideration of time or purpose is established, it is a qualified and temporary gift, i.e., an ariat. If on the other hand it is unqualified, it is a hibba. The wording of the agreement between Wali-ul-nissa and her brother-in-law is as follows: “I do declare and record that the aforesaid sister-in-law may manage the said villages for herself and apply their income to meet her necessary expenses and to pay the government revenue.”[6] Based on this, the subordinate judge state, “There is no reason why the word hibba should be held to mean an ariat, and why, when it is clearly stated that the mauzas (villages) of Sahauli and Kamalabad are made a gift of, the context should be construed to mean that the profits of the mauzas Kalamabad and Sahauli were given as ariat. On a perusal of the whole document it clearly appears that Faiz Ahmad Khan never even thought of effecting an ariat. He has used sufficient words by which nothing but a gift could be intended.”[7] The judge notes that all of the literal indications of the agreement and the formal extension of an offer and acceptance all support the assertion of Wali-un-nissa that the two villages were given to her as a gift unconditionally. This means that Wali-un-nissa’s heirs have a right to the land, and have a valid claim to acquire the land from their uncle.

The plaintiff appealed the ruling in the High Court, which upheld the opinion of the subordinate judge. The High Court judge also added that in the records of the town, Wali-un-nissa’s name replaced Faiz Ahmad Khan’s entirely, and no objection to this fact was made then, once again indicating that a complete gift without qualification was given.

The Ruling: By the time the appeal reached the Privy Council, Faiz Ahmad Khan had passed and was represented by his two sons, who like their father, wanted to maintain control of Kalamabad and Sahauli. The Lordships in the Privy Council recognized that the case hinged on the distinction between a hibba and an ariat. They noted that the judge of first instance was a Muslim judge with extensive knowledge on Muhammadan law and thus his decision should be upheld. To this extent they state:

Upon this question their Lordships have the benefit of an able and learned judgement from a Muhammadan Judge of whom the High Court says that he enjoys a high reputation as a Muhammadan lawyer. This learned Judge has referred to many books of authority on Muhammadan law, from which he has given extracts and also instances in his judgement. He is clearly of opinion that this instrument contains words which in Muhammadan law have a technical signification as words of gift, and which, when used as they are in it, do by law constitute a gift … Their lordships do not think it necessary to discuss the authorities cited.[8]

Instead of reevaluating the legal case based on Anglo-Muhammadan legal texts, the Lordships are satisfied adopting the opinion of the lower court because the subordinate judge was a Muslim of reputable judicial acumen. Thus, the subordinate judge’s position that the villages be considered hibba is upheld and the heirs of Wali-un-nissa receive the villages of Kalamabad and Sahauli.

Anglo-Muhammadan Law and Analysis:

I selected this case because it aptly demonstrates the gulf that exists between Anglo-Muhammadan law and actual Islamic legal treatises on nuanced matters and the limited nature of Islamic legal knowledge possessed by the English judges. In the court of first instance, the judge was a Muslim judge who was able to present nuanced differences between hibba and ariat relying on legal texts and legal dictionaries. Crucially, he does not rely upon texts of Anglo-Muhammadan law, and even in the case of the Hidāya, which he does invoke, he returns to the original Arabic text.

The judges after him, both in the High Court and the Privy Council, do not have the same understanding of Islamic law, nor are they able to properly engage with the legal argument put forward by the subordinate judge. In fact, in both the High Court decision and the subsequent Privy Council appeal, judges on both benches refer to the argument of the Muslim judge and accept it prima facie. This highlights that when it comes to cases involving Islamic law, it is often the judge in the court of first instance, the local judge, who has the most knowledge of Islamic law, either because he himself is a muftī or has recourse to local jurists. In this case, since the judge’s name does not appear in the decision, further biographical information cannot be determined. Regardless, the case reveals that appeal judges in the High Courts and Lords of the Privy Council can often be the least versed in Islamic law. Despite their judicial limitation, they ultimately have the power to pass judgements on matters of Islamic law.

In this case, both the High Court judges and the Privy Council judges relied on the subordinate judge’s opinion, but this is not always the case. As we have seen in previous cases, justices often invoked “justice, equity and good conscious” to set aside Islamic law, or simply ignored it altogether based on other reasons. Beyond revealing discrepancy between the legal knowledge of the subordinate judge versus the higher judges in matters of Islamic law, the other important element brought to the fore in this case is the sheer level of legal nuance that has been omitted from Anglo-Muhammadan texts. When the subordinate judge seeks to differentiate between hibba and ariat, he relies upon more than six different legal texts, including the full text of the Hidāya and its commentaries, while entirely ignoring Anglo-Muhammadan legal texts and prior judicial precedents. For Muslim judges still operating in courtrooms, despite the presence of legal texts in translation and a growing body of precedent, they frequently ignore Anglo-Muhammadan legal texts and appeal directly to authoritative Ḥanafī fiqh texts. While Higher Court judges and Privy Council members may not understand the nuanced arguments of these texts, the case at hand reveals that some displayed a certain amount of deference to judges who understood the finer points of Islamic law.


[1] The Indian Law Reports: Allahabad Series, Volume III (Superintendent Government Press), 490–91.

[2] Ibid., 491.

[3] Ibid., 492.

[4] Ibid., 493­–95.

[5] Ibid., 493.

[6] Ibid., 500.

[7] Ibid., 495.

[8] Ibid., 502.

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