Inheritance, Lifetime Usufruct and the Limits of Testamentary Freedom

A legal reform may pursue a humane purpose and still create doctrinal uncertainty. That is the central difficulty raised by the 2026 amendment. The measure seeks to address a familiar and painful social problem: a parent transfers a house or land to a child, only to be neglected, denied income from the property or expelled from the home. Allowing the donor to reserve a lifetime right of possession and enjoyment appears to offer an elegant solution. Ownership may pass to the recipient, while the donor remains secure for life.

The difficulty is not the concept of usufruct itself. Legal systems have long separated the underlying title or corpus of property from the right to use it, occupy it or take its income. The difficulty lies in classification and effect. Muslim law distinguishes sharply between hiba (هِبَةٌ), which operates during life; wasiyyah (وَصِيَّةٌ), which is made during life but takes effect at death; and mirath (مِيرَاثٌ), which arises by operation of law after death. If an instrument is labelled a gift but the donor retains every practical incident of ownership until death, the transaction may resemble a will in economic substance. That resemblance matters because Islamic law grants broad power over property during life but limits unilateral control over the estate after death.

The issue should not be reduced to a contest between modern legislation and religious sentiment. It is a technical question involving property, succession, legal characterisation and the interaction of general law with Muslim personal law. Nor should Surah al-Nisa 4:11–14 be invoked as if it invalidated every lifetime gift. The verses regulate the estate that remains at death. The real Qur’anic question is whether a legal device permits a person to keep the substance of ownership during life while directing the destination of the property at death in a way that defeats the shares of lawful heirs.

Hiba: Hiba is a voluntary transfer of ownership without consideration during the donor’s lifetime. In the classical Sunni formulation, and particularly in Hanafi law, three elements receive special emphasis: a clear declaration by the donor, acceptance by the donee, and delivery of possession. Possession may be actual or constructive, depending on the nature of the property and the relationship between the parties, but the underlying question remains whether the donor has genuinely divested control and the donee has acquired dominion. The requirement of possession is not an empty ritual. It performs evidentiary and conceptual functions. Evidentially, it helps distinguish a completed gift from an unfulfilled promise. Conceptually, it confirms that the transaction operates now rather than at death. Indian courts applying Muslim law have repeatedly described declaration, acceptance and delivery of possession as the essential elements of a hiba; the Supreme Court of India restated that position in Hafeeza Bibi v Shaikh Farid (2011) 5 SCC 654. The form of possession, however, is fact-sensitive. Continued physical occupation by a donor does not invariably defeat a gift if the legal and beneficial arrangements show genuine divestment, especially where the parties live together or possession can only be constructive.

Classical and Anglo-Muhammadan law also recognise distinctions between ownership of the corpus and enjoyment of benefits. Decisions such as Nawab Umjad Ally Khan v Mussumat Mohumdee Begum (1867) 11 MIA 517 and Mohammad Abdul Ghani Khan v Fakhr Jahan Begam, AIR 1922 PC 281, form part of the jurisprudence through which courts have considered gifts, possession and interests in usufruct. They caution against an absolute proposition that every reservation of enjoyment necessarily nullifies a gift. But they do not eliminate the need to identify what was immediately transferred and whether the donor’s retained powers leave the donee with genuine present ownership.

Wasiyyah: Wasiyyah is a testamentary direction that becomes operative after death. The orthodox Sunni rule generally permits a bequest of up to one-third of the net estate after funeral expenses and debts. A bequest to an existing Qur’anic heir ordinarily requires the consent of the other heirs after death. These limits reflect a compromise between individual choice and the legally protected expectations of the family. The famous report concerning Sa‘d ibn Abi Waqqas treats one-third as the outer limit and describes even that proportion as substantial; the juristic maxim that there is no bequest for an heir expresses the complementary rule.

The decisive distinction is therefore temporal and substantive. A hiba must transfer a present proprietary interest. A wasiyyah is ambulatory and revocable during life and gives the beneficiary no completed present title merely because it has been written. If a supposed gift leaves the donor free to revoke, sell, mortgage, consume all income and exclude the donee until death, a court must ask whether its legal substance is testamentary despite its label.

Mirath: Mirath is not a voluntary conveyance by the deceased. It is the devolution of the net estate by operation of divine and personal law. The heirs’ enforceable shares arise at death, after prior charges are satisfied. The deceased does not own property after death and therefore cannot enjoy the same freedom over it that existed during life. This is the structural reason why a Muslim may ordinarily give property during life but may not redesign the entire succession by will. The sequence of estate administration is commonly stated as reasonable funeral expenses, enforceable debts, valid bequests within the permitted limit, and distribution of the residue among heirs. Although verses 11 and 12 mention bequests before debts in their wording, juristic doctrine gives debts priority. The verses are not a list of fractions; they allocate authority among the deceased, creditors, dependants, heirs and God’s law.

A lifetime usufruct divides the package of property rights. One person holds the underlying title, while another may occupy the property, use it or receive its income until death. At the death of the usufructuary, full enjoyment consolidates in the title-holder. Such division is familiar to civil-law systems, trust law and estate planning. Its validity as a general property device does not, however, answer its classification under Muslim law.

Three possibilities must be kept separate. First, the donor may make a genuine present gift of the corpus and retain only a defined right of use; the donee immediately acquires a vested, transferable or otherwise legally meaningful remainder. Second, the donor may transfer only a usufruct for a term while retaining the corpus. Third, the document may call itself a present gift while leaving title, control and beneficial enjoyment effectively with the donor until death. The third arrangement is the most likely to function as a will substitute and therefore carries the greatest risk of evading the rules of wasiyyah and mirath.

Verse 11 begins by presenting the rules as a divine direction concerning children. It assigns a son the share of two daughters when sons and daughters inherit together; it gives two or more daughters collectively two-thirds when there is no son, and one daughter one-half. It also allocates shares to parents: each parent receives one-sixth when the deceased leaves a child; where there is no child and the parents alone inherit, the mother receives one-third; and where siblings exist, the mother’s share is reduced to one-sixth. These distributions operate after valid bequests and debts.

The verse’s first legal achievement is to relocate authority. In a patriarchal society, inheritance could be controlled by male power, tribal practice or the preferences of the property-holder. The verse converts designated family members including women, parents and children from objects of generosity into bearers of legal entitlements. A daughter does not inherit because her father chose to remember her; she inherits because the legal order recognises her claim.

The rule that a son receives twice a daughter’s share is often detached from the rest of the Qur’anic scheme and treated as its universal principle. That is inaccurate. The ratio applies in specified configurations of children. The same verses contain situations in which male and female relatives receive equal fractions, such as the one-sixth allocated to each parent where the deceased leaves children, and situations in which a woman may receive a fixed share while a more remote male relative receives less or nothing. Classical inheritance law must be understood as an integrated network of fixed shares, residuary succession, proximity and financial obligations, not as a single gender formula.

The verse closes with an epistemic warning: people do not know whether parents or children are nearer in benefit. The moral implication is profound. Succession rules should not be made hostage to temporary affection, family pressure, disappointment or prediction. A parent may favour the child who is currently attentive, punish the child who lives abroad, or underestimate the long-term needs of a daughter. The fixed framework disciplines those impulses by placing distributive judgment beyond unilateral preference.

For the 2026 amendment, the consequence is not that a parent loses the power to make a genuine lifetime gift. Rather, the state should not provide an instrument that allows a parent to retain the whole economic reality of ownership and simultaneously predetermine the post-death destination of nearly the whole estate. If that occurs, the legislative device transfers to private preference the distributive authority that verse 11 deliberately limits at death.

Verse 12 completes much of the immediate scheme. A husband receives one-half of his wife’s estate if she leaves no child and one-quarter if she leaves a child. A wife receives one-quarter of her husband’s estate if he leaves no child and one-eighth if he leaves a child; multiple wives share the relevant fraction. The verse also addresses certain maternal siblings in the case traditionally described as kalalah: one such sibling receives one-sixth, while two or more share one-third. Again, distribution follows bequests and debts.

Its most important contribution to the present debate is the phrase commonly rendered as ‘without causing harm’ or ‘without prejudice’. The phrase is attached to the administration of bequests and debts. Classical jurists understood it as a prohibition on manipulating those prior claims to injure lawful heirs, for example, by fabricating a debt, acknowledging a false liability, or using a bequest to exhaust or distort the estate. The text therefore anticipates anti-avoidance reasoning. It looks beyond formal documentation to harmful effect.

This principle is directly relevant to will substitutes. A person may use formally valid transactions to achieve an impermissible injury: transferring assets to a favoured child shortly before death while retaining their benefits; disguising a testamentary gift as a present conveyance; or creating artificial liabilities that diminish the estate. Not every unequal lifetime gift is automatically void, and civil courts should not infer religious invalidity from mere inequality. But where the transaction’s design, timing and retained control show that its substantial purpose is to defeat heirs at death, verse 12 supplies a powerful normative basis for scrutiny.

The words concerning harm also connect succession with fiduciary administration. Executors, family members and courts are not simply calculators. They must ensure that debts are genuine, bequests are lawful, dependents are not coerced, and the estate has not been depleted through sham transactions. A modern statute inspired by this principle would include disclosure, capacity assessment, protection against undue influence and a power to recharacterise transactions that are testamentary in substance.

Verses 13 and 14 move from fractions to legal authority. Verse 13 describes the preceding rules as the limits set by God and associates obedience with ultimate reward. Verse 14 warns against disobedience and transgression of those limits. The expression hudud Allah should therefore not be reduced to criminal punishments. In this context it denotes normative boundaries governing wealth, family and succession. The placement is significant. The warning follows the detailed allocation of shares and the prohibition of injury. The Qur’an thereby joins private law to moral accountability. Estate planning is not treated as a morally neutral exercise in maximising owner autonomy; it concerns the rights of others. The owner’s freedom is real during life, but it exists inside a legal and ethical order that becomes more restrictive when death ends ownership and activates the rights of heirs.

At the same time, verses 13 and 14 must be used with juristic discipline. They do not authorise the claim that every statutory innovation involving property is a violation of divine limits. A statute may regulate registration, evidence, taxation, elder protection and the separation of title from enjoyment. The decisive inquiry is whether the statute changes the shares in the net estate of a Muslim, or creates a device whose practical operation predictably removes assets from that estate only in form while preserving them for the donor until death. The distinction between form and substance prevents two opposite errors. One error treats every reserved usufruct as prohibited, ignoring recognised divisions between corpus and benefit. The other treats every formally registered lifetime transfer as conclusive, ignoring the possibility that the donor never surrendered present dominion. A sound law must examine the bundle of rights transferred, not merely the instrument’s title.

Suppose a Muslim man dies leaving a wife, one son and one daughter, with a net distributable estate of Tk 12 million. Under verse 12 the wife receives one-eighth, or Tk 1.5 million. The remaining Tk 10.5 million passes to the son and daughter in a two-to-one ratio under verse 11: Tk 7 million to the son and Tk 3.5 million to the daughter.

Now assume that, shortly before death, the father executes a ‘lifetime gift’ of a Tk 10 million house to the son but reserves exclusive possession, rental income, the power to manage the property and all practical control until death. Only Tk 2 million remains formally in the estate. If the instrument is treated as an absolute completed gift, the wife and daughter receive shares only from Tk 2 million, while the son takes the house in addition. If, however, the donor never genuinely divested the present proprietary substance and the instrument functioned only at death, the house should be tested as part of the estate or as a testamentary disposition. The example shows why classification determines whether the Qur’anic shares are real rights or merely formal percentages applied to an artificially emptied estate.

1.  An express personal-law saving clause: The Act should state that nothing in the new section alters the rules governing Muslim hiba, wasiyyah or mirath, and that the legal character of a transaction involving a Muslim donor remains subject to Muslim personal law where applicable. A vague statement in parliamentary debate is insufficient; the rule should appear in the statute.

2.  A precise definition of the interests transferred: The instrument should separately identify the corpus, possession, income, management, repair obligations, taxation, power to lease, power to mortgage and power to alienate. The statute must specify which interests pass immediately and which terminate at death.

3. A functional characterisation rule: Courts should be empowered to treat a transaction as testamentary where the donee receives no substantial present proprietary interest and the transfer is intended to operate in substance only at death. Labels and registration should create evidence, not an irrebuttable fiction.

4. Protection against injury to heirs: A challenge should be available where a transfer was procured by fraud, coercion, undue influence, incapacity or abuse of a relationship of dependency, or where a deathbed transaction was designed to defeat mandatory succession rights. The remedy may include cancellation, restitution or inclusion of the asset in the estate.

5. Independent advice and informed consent: For high-value transfers or transfers of the donor’s home, the donor should receive independent legal advice in the absence of the beneficiary. The adviser should explain loss of title, the precise retained right, revocability, maintenance consequences and the effect on inheritance.

6.  A statutory right of residence and rapid enforcement: If elder protection is the real objective, the donor’s right of occupation should be registrable and enforceable by injunction. An expedited procedure should restore possession, restrain harassment and secure rental income. Criminal or civil penalties should address eviction, document seizure and coercive deprivation.

7. A narrowly framed rescission right: Where the transferee fails to provide agreed maintenance, attempts to evict the donor or seriously abuses the donor, the court should be able to rescind the transfer. Safeguards are needed for third parties who acquired interests in good faith.

8. Registration and a cooling-off period: The instrument should use a prescribed form, record the donor’s age and capacity, disclose the retained rights, identify all beneficiaries and permit a short cooling-off period before final registration, except where independent judicial approval is obtained.

9.  Expert review before full implementation: A committee including Muslim-law scholars from the recognised schools, property lawyers, judges, elder-rights specialists, the Law Commission and registration officials should test the legislation against realistic family disputes. A pilot or scheduled statutory review would allow correction of unintended consequences.

Surah al-Nisa 4:11–14 establishes more than a schedule of fractions. Verse 11 protects children and parents by assigning rights that do not depend on the deceased’s favour. Verse 12 protects spouses and maternal siblings and adds a prohibition against injuring heirs through bequests or debts. Verses 13 and 14 characterise the scheme as divine limits, turning succession into a matter of both enforceable entitlement and moral accountability. Those verses do not prohibit genuine lifetime gifts, nor do they require the state to ignore modern forms of property ownership. Islamic jurisprudence can recognise distinctions between corpus and usufruct, and courts can accept constructive possession where the facts justify it. But the Qur’anic structure does prohibit the easy conversion of ownership during life into unlimited control over succession after death. A transaction that is inter vivos only in name should not be permitted to defeat the rights that arise at death.

The comparative experience reinforces that conclusion. England and Wales temper testamentary freedom through family-provision jurisdiction and anti-avoidance rules. American states protect spouses through elective shares or community property and increasingly look beyond the formal probate estate. India expressly preserves Muslim personal law within a plural statutory framework. None of these systems supports the proposition that owner autonomy is unlimited or that legal form should always prevail over economic substance. 

Bangladesh should protect parents directly: strengthen their title, secure residence and income, reverse transactions produced by abuse, and provide rapid judicial remedies. If the law also permits transfer of the corpus with a reserved lifetime usufruct, it must define the transaction with precision and preserve the operation of Muslim personal law. A property statute succeeds not merely when it can be registered or defended in court, but when its categories remain coherent, its safeguards work in family life and citizens are not forced to choose between the law of the state and the obligations of their faith.