Al-Istinbath
Jurnal Hukum Islam

Vol. 8. No. 1, May 2023, 37-52
P-ISSN: 2548-3374 (p), 25483382 (e)
http://journal.iaincurup.ac.id/index.php/alistinbath

Comparing KHI and KHES in Marital Property Grant
Disputes: An Analysis of Judges' Views
Muhamad Subhi Apriantoro1, M. Naufal Ibnu Alis2,
Sendy Septianozakia3, Dadang Setiana4
Universitas Muhammadiyah Surakarta, Indonesia1,2,3
Qassim University, Saudi Arabia4
Corresponding Author: msa617@ums.ac.id
DOI: https://dx.doi.org/10.29240/jhi.v8i1.6464
Received: 17-01-2023
Revised: 06-04-2023
Cite this article:

Accepted: 04-05-2023

Apriantoro, M., Alis, M., Septianozakia, S., & Setiana, D. (2023).
Comparing KHI and KHES in Marital Property Grant Disputes: An
Analysis of Judges' Views. Al-Istinbath: Jurnal Hukum Islam, 8(1), 37-52.
doi:http://dx.doi.org/10.29240/jhi.v8i1.6464

Abstract
This study aims to assess how judges make decisions regarding
disputes over grants on marital property from the perspectives of
two legal systems, KHI and KHES. Specifically, the study examines
a case (numbered 145/Pdt.G/2021/PA.Slk) that was heard at the
Solok City, West Sumatera Religious Court and involved a
communal property grant dispute. The research methodology used
was normative juridical, a quantitative approach that uses secondary
legal principles, and a qualitative system that relies on library
research data. The study's findings indicate that comparing grant
arrangements by Compilation of Islamic Law and Compilation of
Sharia Economic Law, specifically in terms of the pillars mentioned
in KHI and KHES, is closer to the consensus of scholars but not
identical because KHI has additional witnesses and KHES has qabd.
Keywords: Dispute Resolution; Joint Property Grant; Arbitration;
Litigation

Copyright © 2023 Muhammad Subhi Apriantoro, et. al
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0
International License

38 | Al-Istinbath: Jurnal Hukum Islam, Vol. 8, No. 1, May 2023

Introduction
Marriage is creating a legal agreement between a man and a woman to
legitimize their relationship and form a happy and loving union.1 Peaceful family
following Allah's will.2 Article 1 of Marriage Law No. 1 of 1974 defines marriage
as "The inner and outer relationship between a man and a woman as husband
and wife to form a happy and eternal family based on the One Godhead."
Marriage results in the creation of two types of property: inherited and
joint.3 Joint property is acquired by the husband and wife together, provided
that their marriage is valid4. The husband and wife can act under mutual
agreement regarding the common property.5 Therefore, the husband and wife
must consent to distribute the couple's property to their children.6 One of the
tenets of Islamic Law is that property can be used to transfer wealth from one
individual to another via inheritance, gifts, or wills.
In social life, every problem or dispute in the community can be
resolved through the family, the involved area, or the court system. In the
Religious Courts, the provisions of Islamic Law are applied through conflict
resolution practices at the time of the grant.7 Some of these cases also require
appropriate solutions or exhaustive resolutions. Grant activities occur daily

1 Wanru Xiong, “Love Is Elsewhere: Internal Migration and Marriage Prospects in
China,” European Journal of Population 39, no. 1 (December 2, 2023): 6,
https://doi.org/10.1007/s10680-023-09658-3.
2 Hamda Sulfinadia, Deri Yanti, and Jurna Petri Roszi, “Keutuhan Rumah Tangga Suami
Di Penjara (Studi Kasus Di Lembaga Pemasyarakatan Kelas II A Bukittinggi),” Al-Istinbath :
Jurnal Hukum Islam 6, no. 2 (November 11, 2021): 271, https://doi.org/10.29240/jhi.v6i2.3372.
3 Tarmizi Tarmizi, “Inheritance System of Bugis Community in District Tellu Siattinge
Bone, South Sulawesi (Perspective of Islamic Law),” SAMARAH: Jurnal Hukum Keluarga Dan
Hukum Islam 4, no. 1 (June 30, 2020): 179, https://doi.org/10.22373/sjhk.v4i1.6784.
4 Felix M. Muchomba, “Parents’ Assets and Child Marriage: Are Mother’s Assets More
Protective than Father’s Assets?,” World Development 138 (February 2021): 105226,
https://doi.org/10.1016/j.worlddev.2020.105226.
5 Natalie KLEIN, “Dispute Settlement - Islamic Law and International Law: Peaceful
Resolution of Disputes by Emilia Justyna POWELL. New York: Oxford University Press, 2020.
Xiv + 314 Pp. Hardcover: £47.99; Also Available as EBook.,” Asian Journal of International Law
11, no. 1 (January 25, 2021): 207–8, https://doi.org/10.1017/S2044251321000023.
6 Sileshi Bedasie Hirko, “The Disputed Constitutionality of the Precedential Practice of
the Federal Supreme Court and Its Implications for Oromia Family Law: The Case of Bigamous
Marriage in Ethiopia,” Journal of African Law 63, no. 2 (June 7, 2019): 193–223,
https://doi.org/10.1017/S0021855319000202.
7 Zia Akhtar, “Conflict of Laws, Choice of the Forum Court in the Us, and the Due
Process in Family Law Disputes,” International and Comparative Law Review 21, no. 1 (June 1,
2021): 184–210, https://doi.org/10.2478/iclr-2021-0007.

Muhammad Subhi Apriantoro, et. al: Comparing KHI and KHES in Marital …….| 39

when parents transfer their assets to their adult children and their children marry
and start their family inheritance.8
Grants are awarded while the giver is still alive to eliminate discordant
behavior among siblings and foster family ties after the grantor's death.9 In
addition, article 210, paragraph 1, of the Compilation of Islamic Law states that
a person of at least 21 years of age and sound judgment who is not under duress
may donate up to one-third of his wealth in front of two witnesses.10
Sibling disputes can arise when giving a gift to a child causes
disagreements among family members who believe the granting is excessive and
should not be extended to other siblings.11 In this instance, it is also possible to
generate social envy over the provision of grants, thereby fostering ill will
between the two parties. However, if both parents are still alive, the problems
between these two parties can be adequately resolved through a family process
so that the children at odds can find inner satisfaction.
However, if problems arise after the parent's death as the grantor, the
resolution will be even more challenging; even the children of the grantor who
disagree with the grant can take action to revoke or cancel the gift given to their
siblings.12 Even if the grant was awarded to two brothers, the Civil Code and the
Compilation of Islamic Law stipulate that the license cannot be unilaterally
revoked without the grantee's consent.13 Article 212 of the Compilation of
Islamic Law stipulates that parents may withdraw their grants from their
children. In addition, article 712 of the Compilation of Sharia Economic Law
states that if the grantee agrees, the grantor may take the grant property after the
submission is complete. Similar situations frequently arise in the community,
prompting efforts to resolve them in court.

8 S L Reiter and M El-Sheikh, “Does Resolution of Interadult Conflict Ameliorate
Children’s Anger and Distress across Covert, Verbal, and Physical Disputes?,” Journal of
Emotional Abuse 1, no. 3 (1999): 1–21, https://doi.org/10.1300/J135v01n03_01.
9 Annelien Bouland, “Family Law in Senegal: Opposition and Pragmatic Pluralism,”
Canadian Journal of African Studies / Revue Canadienne Des Études Africaines 56, no. 1 (January 2,
2022): 161–80, https://doi.org/10.1080/00083968.2020.1848599.
10 Umar Aimhanosi Oseni, “Sharī‘ah Court-Annexed Dispute Resolution of Three
Commonwealth Countries – a Literature Review,” International Journal of Conflict Management 26,
no. 2 (April 13, 2015): 214–38, https://doi.org/10.1108/IJCMA-06-2012-0050.
11 Michael Palmer and Simon Roberts, Dispute Processes (Cambridge University Press,
2020), https://doi.org/10.1017/9781107707467.
12 Hilman Syahrial Haq et al., “The Institutionalization of Community Mediation for
Resolving Merarik Marriage Disputes in Sasak Community,” Jurnal Media Hukum 26, no. 1
(2019), https://doi.org/10.18196/jmh.20190118.
13 Lola Akin Ojelabi and Judith Gutman, “Family Dispute Resolution and Access to
Justice in Australia,” International Journal of Law in Context 16, no. 2 (June 8, 2020): 197–215,
https://doi.org/10.1017/S1744552320000142.

40 | Al-Istinbath: Jurnal Hukum Islam, Vol. 8, No. 1, May 2023

Through reasoning, the Sharia Economic Law Compilation (KHES)
regulates the pillars of grants and their receipts.14 Article 685 of the KHES
specifies that the cornerstones of a budget are the grantor, the recipient, the
donated goods, the statement, and the delivery. The Sharia Economic Law
Compilation (KHES) explains that the provision of grants is permissible if
consent or a comment is made and this contract is expressed in words, writing,
or gestures. This provision is by KHES article 686. In the form of a Deed, every
grant made by a person must follow a face-to-face Notary procedure so that a
budget concerning a person's assets can be considered a permanent and
enforceable law.
Article 1320 of the Civil Code explains the conditions for the validity of
an agreement, including the consent of both parties, the capacity to take legal
action, and the existence of an authorized object and reason. The to-be-issued
Notary Deed must satisfy the necessary conditions to achieve the authenticity of
a deed. Before signing the act, the notary, as the maker of the deed, reads the
deed to the signers and witnesses. The purpose of reading this deed is to ensure
that the parties understand the deed's contents in the form of various wishes
from the parties to the agreement, and the parties will not be harmed by the
arguments that are read. If the man hub (grant recipient) has received a special
grant, it is considered authentic, and its consequences apply to those involved
(by notarial deed). Article 1683 and Article 1682 of the Civil Code regulate this
provision. Article 1682 of the Civil Code states, “No grant may be made
without a notarial deed that must be kept with a notary; if this is not done, the
grant is void."
Article 1683 of the Civil Code states that "no grant binds the donor or
causes anything before the grant is received in firm words by the grant recipient
or by his authorized representative to receive the grant that has been or will be
granted." If a receipt is issued without a grant deed, the original or authentic act
may be used, and the notary retains the original manuscript. This event took
place while Wahib was still alive. In this instance, the grant status becomes valid
for the grantor once he receives official notification of the grant's receipt. This
provision states that the license is suitable if the recipient has expressly and
unambiguously accepted the appointment. However, article 686, paragraph 3 of
the KHES states that a grant statement can be classified as an Ijab, a solution to
the problem. Therefore, even though the grant statement is in the form of a
covert agreement, it can still be used to establish the legality of the grant, even if
no authentic deed is available. So that the provisions of the grant according to
the KHES that are used as conditions are not based on the type of contract but
on what can be demonstrated by its form, these provisions must be in writing.
14 Isman Isman and Yahya Yahya, “Istiqra Al-Manwi; Multicultural Judicial Reasoning,”
Ijtihad : Jurnal Wacana Hukum Islam Dan Kemanusiaan 22, no. 1 (August 8, 2022): 95–116,
https://doi.org/10.18326/ijtihad.v22i1.95-116.

Muhammad Subhi Apriantoro, et. al: Comparing KHI and KHES in Marital …….| 41

The study by Setiyowati examines how a religious court acknowledged
grandchildren as legal heirs (substitute heirs) and authorized them to replace the
prior heirs, who were the grandparents' parents. The report outlines the
attempts taken by substitute heirs to conduct preliminary talks or mediation
with the parties. When unsuccessful, they filed a lawsuit with the Religious
Court following Law No. 3 of 2006 and the Supreme Court's consideration of
Case No. 185/K/Ag/2009. Article 185 of the Compilation of Islamic Law
stipulates that a kid can replace the position of his parents who died first as a
substitute heir, provided that the portion obtained does not exceed the share of
the heirs equal to the heirs being replaced. However, the defendants did not
accept the ruling and filed a cassation with the supreme court.
The Study by Lilik Andar15 concludes that the method of fiqh cum
tradition is the prevailing solution since it provides a medium ground for
resolving inheritance disputes for asset unity and family harmony16. In addition,
it serves as a model for socially based inheritance settlement negotiations in
multicultural societies17. If Islamic Law performs a marriage, then Islamic Law
also governs the legal repercussions of the wedding, such as inheritance issues.18
The type of research employed by the researcher is a method of
normative legal analysis. This research method is a qualitative approach that
focuses on data from library research, namely legal research, that examines and
analyzes problems using secondary legal rules. This descriptive-analytical
research explores the issues based on the obtained data. Using the provisions of
the Compilation of Islamic Law, Compilation of Sharia Economic Law, and the
Book of Laws, the author attempts to analyze the decision of the Solok City
Religious Court No. 145/Pdt.G/2021/PA.Slk. Civil Law about the discussed
issues.

15 Lilik Andar Yuni and Murjani Murjani, “Gender Sensitivity at Judge’s Verdicts in
Samarinda and Magelang Religious Courts; The Implementation of PERMA Number 03 of
2017,” AL-IHKAM: Jurnal Hukum & Pranata Sosial 15, no. 2 (December 29, 2020): 251–79,
https://doi.org/10.19105/al-lhkam.v15i2.2714.
16 Dewi Sukarti, “Legal Pluralism in Settling Inheritance Disputes in Besemah, South
Sumatera,” AHKAM : Jurnal Ilmu Syariah 13, no. 1 (February 1, 2013),
https://doi.org/10.15408/ajis.v13i1.950.
17 Shiri Regev-Messalem, “How the Law ‘Keeps the Money in the Family’: Lessons at the
Intersection of Elder Care and Inheritance Disputes in Israel,” Law & Social Inquiry 45, no. 1
(February 24, 2020): 81–110, https://doi.org/10.1017/lsi.2019.47.
18 Jamil Ddamulira Mujuzi, “The Islamic Law of Marriage and Inheritance in Kenya,”
Journal
of
African
Law
65,
no.
3
(October
1,
2021):
377–401,
https://doi.org/10.1017/S0021855321000346.

42 | Al-Istinbath: Jurnal Hukum Islam, Vol. 8, No. 1, May 2023

Discussion
Overview of the Dispute Regarding the over Grants on Marital Property
as Determined by Solok Religious Court Decision No.
145/Pdt.G/2021/PA.Slk
Plaintiff 1 (H. Desefiarmy Alfariza) and Plaintiff II (also named H. Welli
Dasmariyanti) filed a lawsuit regarding a dispute over a joint property grant,
according to the data source obtained by the author in the form of an archive of
copies of decisions from the Solok Religious Court (Welli Dasmariyanti). On
April 7, 2021, the Registrar of the Solok Religious Court registered the lawsuit
with case register number 145/Pdt.G/2021/PA.Slk. Additionally, it was stated
that Plaintiffs I and II were suing Maidar Lina Ziarti, Hj Hartati Yuniar
(Defendant I), Martha Herry Yessy (Defendant II), Yan Merry Rosalinda, SH
(Defendant III), Fauzi Ella Sliano Bsc EE MBA (Defendant IV), and Yeni
Krisna Silvia (Defendant V).
Case 145/Pdtg/2021/PA.Slk is a dispute (merger) involving marriage
ratification/isbat, inheritance claims, and grant ratification.19 Therefore, the
author chooses a topic focusing exclusively on disputes over joint property
grants. The plaintiffs have filed a lawsuit containing the posita, the plaintiff's
claim, the plaintiff's petition, the amicable settlement, the defendant/answer, a
respondent is the replik, the evidence, and the parties' conclusion. By the case
register number 145/Pdt.G/2021/PA.Slk, the subject of the dispute is the
Public Fuel Filling Station (SPBU) which stands on the land with three (three)
Ownership Certificates, namely:
1. Certificate of Ownership No. 21, with the following boundaries: it borders
the highway to the north, the friend's rice fields to the south, the friend's
land to the west, and the friend's land to the east.
2. Ownership Certificate Number 25 with the following boundaries: the
highway to the north, a friend's land to the south, a shophouse to the west,
and a friend's land to the east.
3. Ownership Certificate No. 91 with the following boundaries: the highway to
the north, the friend's land to the south, and the friend's land to the west.
Then the source of contention is the Coffee Company with the
Timbangan Mas stamp that processes and manufactures its coffee near the
Public Fuel Filling Station (SPBU). The emergence of this dispute over a joint
property grant began when the deceased parents of the plaintiff and the
defendant were mentioned as the grantor. On July 3, 1995, the donor donated
19 Zakiul Fuady Muhammad Daud and Raihanah Azahari, “The Wajibah Will: Alternative

Wealth Transition for Individuals Who Are Prevented from Attaining Their Inheritance,”
International Journal of Ethics and Systems 38, no. 1 (January 12, 2022): 1–19,
https://doi.org/10.1108/IJOES-09-2018-0133.

Muhammad Subhi Apriantoro, et. al: Comparing KHI and KHES in Marital …….| 43

Public Fuel Filling Station (SPBU) No. 14,273,545 and its land to Plaintiff I with
Deed No. 3 by Notary Hj. Eldani SH was later confirmed by Deed No. 34 made
by Notary Hj. Consequently, the Deed of Statement and Agreement was issued
with Deed No. 79 on June 30, 2000.
These deeds are authentic evidence of the legality of grants. The
Timbangan Mas Coffee Company then granted Powder Coffee to Plaintiff II via
the deed. In honor of the deceased. Hj. Syamsidar and Alm. H. Nazir granted a
Public Fuel Filling Station (SPBU) to Plaintiff I and a coffee company to
Plaintiff II because they were among the deceased's children. Hj. Syamsidar and
Alm. H. Nazir, who are unmarried, are Plaintiff I and Plaintiff II, respectively. A
second reason is that from 1986 to 1995, plaintiff I helped both parents pay for
the expensive tuition of Defendants III and IV.
The issue arose when the death of both parents (grants) prompted
Defendant IV's disapproval of the grant to Plaintiff I, resulting in evil intentions
to control the gas station by suing Plaintiff I and Defendant I in civil case
No.12/Pdt.G /2011 PN Slk which has permanent legal force (Eintracht van
gewijsde) regarding the Contract for Public Fuel Filling Stations (SPBU)
between plaintiff I and Def In addition, Defendant IV had other malicious
intentions, including inviting and convincing Defendants I to V to cancel the
grant and refusing to acknowledge the previously made waiver of rights.
Defendants I to III felt tempted by Defendant IV's promise to
immediately distribute the inheritance of mother and father's search property
(gono-gini) if the grant cancellation was successful and assisted. In addition,
problems arose when the parents (grants) died, causing Defendant I to illegally
seize control of the Timbangan Mas Coffee Company by producing it without
the consent of Plaintiff II. In this case, mutual suspicion and hostility resulted in
Defendants I to V objecting once more to the grant to Plaintiff II. To reduce
the risk that Defendants I through V will transfer or sell the object of the case,
the Plaintiffs have requested that the Registrar of the Solok Religious Court
place a confiscation of collateral (Conservatoire Beslag) against the thing.
Legal Considerations Judges of the Dispute Regarding the over Grants on
Marital Property as Determined by Solok Religious Court Decision No.
145/Pdt.G/2021/PA.Slk
The Judge must have a solid basis for his conclusion when deciding a
case.20 In each decision, the Judge must provide sufficient maturity in their
reasoning and thoughts.

20 Hasan Khalid Dabis, “Rules of Inheritance in Islamic Laws (A Quranic Study).,” Review
of International Geographical Education Online 11, no. 9 (September 2021): 779–87,
http://10.0.187.175/rigeo.11.09.66.

44 | Al-Istinbath: Jurnal Hukum Islam, Vol. 8, No. 1, May 2023

Case Number 145/Pdt.G/2021/PA.Slk involving cumulative disputes
(merger), namely marriage, inheritance, and grants, in this case, the author only
takes the issue of the grant so that the Judge's decision explaining the ratification
of the appointment is to adjudicate that: The Judge grants the lawsuit in part to
the Plaintiffs; Declaring the Company's Grants are valid by Hj. Syamsidar to
Plaintiff I with the Company Grant Deed Number 3 dated (five million eightyfive thousand rupiahs).
Decisions must be based on factors commonly referred to as
considerations. There are two types of civil judgments: those related to the
location of the case or incident and those related to the Law. The parties must
describe the occurrence, while the Judge is responsible for legal matters. In this
case, the author describes the Judge's considerations following the
documentation technique, namely the archive of copies of the case decisions.
Regarding the central issue in case No. 145/Pdt.G/2021/PA.Slk involving
disputes over joint property grants, legal considerations can be drawn from the
petition filed, specifically regarding the ratification of donations received by
judges.21
Based on the evidence, the testimony of the witnesses, and the trial
facts, the following legal points can be determined:
Hj. Syamsidar and H. Nazir own a Public Fuel Filling Station (SPBU) at
Solok, Jl. Pandan Ujung Number 56 with SPBU Number 141201. Hj. Syamsidar
has granted the gas station to Plaintiff I, along with its equipment and business
licenses, including all rights that the grantor has and can exercise on the
authority of permits, licenses, and acknowledgments to operate the company
stated in the Company Grant Deed No. 3 of 1995. At the same time, H. Nazir
authorized the grant procedure in 2000, as evidenced by the Deed of Statement
and Affirmation No. 34 dated May 26, 2000. Hj. Syamsidar's grant to plaintiff I
was made voluntarily and without coercion, and H. Nazir's approval of said
grant was also made voluntarily and without pressure. The donated property
does not represent over one-third of the donor's assets.
The Assembly will consider the following concerning these facts:
Article 210 of the Compilation of Islamic Law states (1) that a person of
at least 21 years of age, with good sense and freedom from coercion, may
donate up to one-third of his property to another person or institution in the
presence of two witnesses. (2) The donated property must be the rightful
property of the donor.
Because in addition to the provisions of Article 668, paragraph (9) of
Regulation No. 2 of 2008 of the Supreme Court of the Republic of Indonesia
21 Nazrul Hazizi Noordin et al., “Re-Evaluating the Practice of Hibah Trust in Malaysia,”
Humanomics 32, no. 4 (November 14, 2016): 418–36, https://doi.org/10.1108/H-05-2016-0044.

Muhammad Subhi Apriantoro, et. al: Comparing KHI and KHES in Marital …….| 45

about the compilation of Sharia Economic Law, it is stated that a grant is the
transfer of ownership of an item to another person without compensation.
Considering that, according to the provisions of Article 712, paragraph
2, of the Regulation of the Supreme Court of the Republic of Indonesia No. 2
of 2008 on the compilation of Sharia Economic Law, assets that do not belong
to the donor may be considered valid if the owner of the property permits it,
even if the permission is granted after the property has been transferred22.
The provisions of Article 712 paragraph (2) of the Supreme Court
Regulation The Republic of Indonesia, Number 2 of 2008, concerning the
Compilation of Sharia Economic Law, have been met, even though some of the
property rights of the gas station in question belong to H. Nazir. H. Nazir has
authorized it in writing through the Deed of Statement and Affirmation
Number 34 dated May 26, 2000.
Article 211 of the Compilation of Islamic Law explains, "Grants from
parents to their children are considered inheritance."
They are considering that the provisions referenced in Article 211 of the
Compilation of Islamic Law are discretionary and non-binding for the Assembly
to determine whether the grant above will be classified as an inheritance or a
valid grant23.
The Judge rejected the petition containing the ratification of the grant to
Plaintiff II (the subject of the Cap Timbangan Mas Coffee Powder Company's
lawsuit). The denial was based on a need for more evidence proving the grant's
legitimacy. Accordingly, restate the study's primary purpose.
Settlement of Joint Assets Grant Dispute Cases Under Islamic Law
Compilation and Sharia Economic Law
Evaluation of grant-funded legal activities should adhere to legal
guidelines.24 Almh. Hj. Syamsidar and Almh. H. Nazir donated a Public Gas
Station (SPBU) and the Cap Timbangan Mas coffee company obtained during
his marriage to his children, H. Desefiarmy Alfariza (plaintiff I) and Welli
Dasmariyanti (plaintiff II), so by considering the legal requirements of the grant
as stated in Article 210 of the KHI, namely:
22 A Azhar and M Z M Nor, “Hibah in the Administration of Islamic Property: Ijtihadi

Elements and Reality in Malaysia,” UUM Journal of Legal Studies 10, no. 2 (2019): 103–19,
https://www.scopus.com/inward/record.uri?eid=2-s2.085088225021&partnerID=40&md5=e350a960249f191d56dd612956b19d19.
23 Muhammad Umar Farooq, Mairaj Ali, and SAMIULLAH, “Family, Business and
Inheritance Issues: In the Context of Islamic Shariah Solution.,” Ilkogretim Online 20, no. 4 (July
2021): 2015–20, http://10.0.66.155/ilkonline.2021.04.229.
24 Nuria Siswi Enggarani, “Independensi Peradilan Dan Negara Hukum,” Law and Justice
3, no. 2 (2019): 82–90.

46 | Al-Istinbath: Jurnal Hukum Islam, Vol. 8, No. 1, May 2023

First, a person at least 21 years old, with common sense, and not under
duress may relinquish one-third of his property in front of two witnesses and
still claim ownership.
Second, the donated property must be the donor's personal property.
According to the article in the Compilation of Islamic Law, two witnesses must
be present at the time the grant is implemented, and the property to be donated
must be a right that belongs to the grantor.
According to the preceding provisions, the grant made by the late is
invalid. Hj. Syamsidar and Alm. H. Nazir were confirmed by Notary Hj issuance
of Deed No. 3. Consequently, the Deed of Statement and Agreement was issued
with Deed No. 79 on June 30, 2000. These deeds are authentic evidence of the
legality of grants. Through the case's subject matter, it is evident that the dispute
arose as a result of an act of withdrawal or cancellation of the grant by the
defendants, who were named as the plaintiff's relatives after the grantor's death,
out of a desire or desire to control the property.
In this instance, the Compilation of Islamic Law provides a dispute
resolution mechanism. Article 212 KHI regulates the withdrawal or cancellation
of grants, except from parents to their children, and prohibits the cancellation or
withdrawal of gifts (grants) between brothers or spouses. Refundable grants are
only grants given by parents to their children. By article 211 KHI, contributions
from parents to children may be considered inheritance.25
According to the Compilation of Islamic Law, the grant must be
sanctioned by the grantor's heirs if it is made near its death. Through the
provisions of the KHI, the actions of Fauzi Ella Sliano Bsc EE MBA as
Defendant IV created malicious intent to control gas stations by inviting and
persuading defendants I to V to cancel the grant and by not admitting the
waiver of rights that had previously been made. These actions can be rejected
under the applicable law.
The rejection of the action is predicated on the grant's compliance with
all applicable legal requirements. Hj. Syamsidar and Alm. H. Nazir to Plaintiffs I
and II were bolstered by the deed drawn up by notary Hj. Eldani, who took into
account the requirements for drawing up the act. These deeds are authentic
evidence of the legality of grants. So long as the parties acknowledge it or
neither party objects, the private deed notarized by a Notary will be admissible
as evidence. The private deed becomes authentic with full probative force if
both parties agree. On the other hand, if one of the parties rejects the act and
Mohamed Gad, Al-Tufi’s Concept of Maslahah. An Attempt to Apply on the Woman’s
Inheritance in the Islamic Inheritance Jurisprudence, vol. 1. Auflage (München: GRIN Verlag, 2021),
http://eresources.perpusnas.go.id:2048/login?url=https://search.ebscohost.com/login.aspx?direct=true
&db=edsebk&AN=2936144&site=eds-live.
25

Muhammad Subhi Apriantoro, et. al: Comparing KHI and KHES in Marital …….| 47

the judge evaluates the invalidity of the evidence, the denial will be deemed
invalid.
Therefore, the ratification of the grant is considered valid through the
deed issued and concurrently with the release of rights or transfer of requests
made by the heirs at the time of the appointment. Furthermore, even though the
grantor has passed away, the validity of the grant will not be affected because
the grantor, grantee, and two witnesses were all still alive when the grant was
executed. Therefore, the actions of Defendant IV and other heirs violated the
legal requirements, and authentic evidence conformed to the provisions of the
Compendium of Islamic Law.
Chapter IV of the Sharia Economic Law Compilation (KHES) regulates
grants in 43 articles, beginning with article 685 and ending with article 714. The
withdrawal of grants is explicitly governed by articles 709 to 723 of the third
section, titled "Withdrawal of Grants." The validity of the grant is primarily
determined by the grant's pillars, as outlined in Article 685: a) the donor; b) the
recipient; c) the donated object; d) the statement; and e) the submission.
The grant that will take effect in the future is null and void. The grant
will be valid because the terms and conditions bind the grantee. For example, if
one of the grantors or recipients dies before the grant delivery, the transaction is
deemed null and void. In addition, the grant will be revoked if there is an
element of coercion in its implementation. Then, the study of individuals who
donate their assets to grantees may be withdrawn according to the following
conditions:
1. The grant property may be withdrawn at the sahib’s discretion before
submission.
2. Once the grant contract is signed, Wahib prohibits grantees from using their
grants.
3. Withdrawals are only permitted after completed delivery if the recipient
consents.
4. The elimination of parental grants for their children.
Based on the conditions governing the withdrawal of grant assets, it can
be concluded that there are exceptions to the Sharia Economic Law
Compilation (KHES) regarding the withdrawal of grant assets, namely: if the
wahib withdraws the grant without the consent of the mauhub lah or court order,
and if someone gives a grant to his parents, or a brother or sister, or the children
of his siblings, or his uncles and aunts.
Furthermore, if the grantee intends to profit from the grant assets by
selling or duplicating the grant for distribution to others when one of the grant's
givers or recipients dies, the grant cannot be revoked.

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Regarding this case, specifically the attempted cancellation or withdrawal
of grants by Defendant IV and other heirs, the court did not recognize the prior
waiver of rights based on the issuance of a notarial deed. Therefore, the Sharia
Economic Law Compilation provides a resolution based on its provisions.
Dons made by the deceased. Hj. Syamsidar and Alm. H. Nazir have
satisfied the Sharia Economic Law Compilation's criteria for the grant's pillars.
Through the notarial act, the provisions of the KHES have been met, including
the existence of the donor and the recipient, the object to be submitted, the
statement, and the submission. Therefore, the grant is deemed valid, and its
effect applies to the parties involved in the mawhub (the person receiving the
grant) who have received the grant specifically for the gift (with a notary deed).
This occurred while the donor was still living. In this case, the grant
status becomes valid for the donor, who has been officially notified of its
receipt.
This provision stipulates that a grant is valid if the mawhub (the recipient)
expressly and unambiguously accepts it.
However, article 686, paragraph 3 of the KHES states that a grant
statement can be classified as an Ijab, a solution to the problem. Therefore, even
though the grant statement is in the form of a covert agreement, it can still be
used to establish the legality of the grant, even if no authentic deed is available.
Furthermore, so that the provisions of the grant according to the KHES used as
conditions are not based on the type of contract but on what can be
demonstrated by its form, these provisions must be in writing. Therefore, the
statement issued by the defendants who wish to cancel the grant has been
disproved due to written evidence in the form of an authentic deed that satisfies
the Sharia Economic Law Compilation's criteria for legality.
The judge's statement regarding the dispute over the joint property grant
refers to Article 712, paragraph 2, of the Compilation of Sharia Economic Law,
which states that property that does not belong to the donor but is donated may
be considered valid if the property's owner permits it, even if the permission is
granted after the property has been transferred. Therefore, the provisions of
Article 712 paragraph (2) of the Regulation of the Supreme Court of the
Republic of Indonesia Number 2 of 2008 concerning the Compilation of Sharia
Economic Law have been met, even though some of the property rights of the
gas station in question belong to H. Nazir. H. Nazir has authorized it in writing
via Deed of Statement and Confirmation Number 34 dated May 26, 2000. Thus,

Muhammad Subhi Apriantoro, et. al: Comparing KHI and KHES in Marital …….| 49

the defendants' cancellation cannot be honored, and the ratification of the grant
is considered valid under the law.26
In Indonesia, grant arrangements are governed by the Compilation of
Islamic Law (KHI) and the Compilation of Sharia Economic Law (KHES),
which stipulate that a valid grant must meet the pillars and criteria of the grant.
Regarding the posts mentioned in KHI and KHES, they are closer to the
consensus of scholars, but they are different because KHI contains additional
witnesses, and KHES contains qabd.
In terms of conditions, the most striking difference is that the giver in
KHI (21 years) and KHES (18 years/never married), formerly known as baligh
in fiqh, had an age restriction. KHES also justifies the iqrar through writing,
gestures, and other nonverbal behaviors. In addition, article 712 KHES defines
the arrangement for withdrawing grant assets, which states that the grantor may
withdraw the grant assets following delivery if the grantee consents. Moreover,
according to article 212 of the KHI, grants cannot be revoked, except those
given by parents to their children.
Conclusion
In this case, the legal considerations and the Solok Religious Court's
decision against the provisions of Islamic law regarding the cancellation of the
defendant's grant as a parental gift to the plaintiff were deemed clear and
appropriate. Therefore, a comparison of Grant Arrangements by Compilation
of Islamic Law and Compilation of Sharia Economic Law, specifically in terms
of the pillars mentioned in KHI and KHES, is closer to the consensus of
scholars but not identical because KHI has additional witnesses and KHES has
qabd.
Since the Compilation of Islamic Law as Material Law and Religious
Court Procedures explains grant practice in detail, the government should clarify
more explicit guidelines about grant arrangements, including withdrawal or
cancellation. In addition, the collection of grants from the Compilation of
Islamic Law and the Compilation of Islamic Economic Law can provide
knowledge about resolving existing grant difficulties to prevent future grant
disputes.
Referring to the application of the rule of law, "lex posterior derogate legi
priori" means that a law passed in the future can nullify or overturn a law passed
in the past. This principle prevents two regulations from creating legal
ambiguity. The panel of judges, in this case, is only sometimes guided by the rule
26 Emily Schindeler, “Family Law Court Orders for Supervised Contact in Custodial
Disputes – Unanswered Questions,” Children Australia 44, no. 4 (December 12, 2019): 194–201,
https://doi.org/10.1017/cha.2019.42.

50 | Al-Istinbath: Jurnal Hukum Islam, Vol. 8, No. 1, May 2023

of law. Because if a formulation is applied to the Compilation of Sharia
Economic Law but has not reached the goal of establishing law (maqashid alsyari'ah), then the panel of judges may engage in ijtihad by making decisions that
are contrary to the article of the law in question because its implementation is
contrary to with propriety and humanity by referring to the provisions in the
Compilation of Islamic Law, the opinions of fiqh scholars.
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