3. Wills under muslim law.docx

NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

2012 - 2013

Family Law II

PROJECT

ON

‘ WILLS UNDER MUSLIM LAW’

Submitted by-

Soujanyaa Manna

628

6th SEMESTER B.A., LL.B.

(Hon’s.)

Wills under Muslim Law Family Law II

Table of Contents1. Acknowledgement...........................................................................................3

2. Introduction - Nature of Will:...........................................................................4

3. Origin of the law of Will:..................................................................................5

4. Formalities of a Will:........................................................................................6

5. Requisites of a valid Will:................................................................................8

(i) Testator and his competence.......................................................................8

(ii) Legatee and his competence......................................................................9

(iii) Subject of will and its validity....................................................................12

(iv) Testamentary power and its limits...........................................................13

(a) Limitation as regards the Legatees-.....................................................13

(b) Limitation as regards the Disposable Property-...................................15

6. Doctrine of Consent:......................................................................................16

7. Rateable abatement:.....................................................................................17

8. Construction of Will:......................................................................................18

9. Revocation of the Will:..................................................................................18

10. Death-bed gift (Gift in Marz-ul-maut):...........................................................19

11. Conclusion:...................................................................................................21

12. Bibliography:................................................................................................22

Page | 2NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES


1. Acknowledgement

“What you see, you forget,

What you hear, you remember,

What you do, you understand”

I would like to take this opportunity to offer my acknowledgements to all those who

helped me during the course of this project. I thank profusely Namitha Ma’m, my

teacher and guide of Family Law II, without whose support and supervision this project

would not have been a success. Indeed, the experience has been insightful and most

often, thought provoking. A deeper understanding of such an important topic has

enriched our knowledge.

I also wish to express our gratitude to the all library staff for their patience and

cooperation in helping us find the apt research material and being generous with the

due dates. My thanks further extend to all my other sources of information and of

course, to my friends and seniors, without whose insightful thoughts and relevant

criticisms, the project would not have been complete.

Last but not the least, I wish to thank my parents and the almighty for their help and

constant support through various means.

I also hope that I will be provided with similar opportunities to work on such other

interesting topics in the future.



2. Introduction - Nature of Will:

A will is generally an instrument by which a person makes disposition of his property to

take effect after his death, and which is in its own nature ambulatory and revocable during his

life. In other words ‘will’ includes codicil and every writing making a voluntary posthumous

disposition of property. A will can be changed by the executant as and when he so likes.

Tyabji defines will as “Conferment of right of property in a specific thing or in a profit or

advantage or in a gratuity, to take effect on the death of the testator.” According to Section

2(h) of the Indian Succession Act, 1925, “Will (wasiyat pl. wasaya) is the legal declaration of

the intention of a testator with respect to his property which he desires to be carried into

effect after his death.” So the elements of will are as follows:

i. Will is a conferment1 of right to one’s property on another.

ii. This conferment of right is to take effect after the death of the testator.

The Arabic equivalent of the word ‘will’ is wasiyat. Generally wasiyat means ‘will’ but it has

also other meanings. It may signify a moral exhortation, specific legacy or the capacity of the

executor, executorship. A document embodying the will is called wasiyatnama.

The two divergent tendencies found in Islam affect the Muhammadan law of wills

greatly. In pre-Islamic times, a man had an almost unlimited power of disposing of his

property but as the Koran laid down clear and specific rules for the distribution of the

inheritance it was thought undesirable for man to interfere with God’s ordinances. Hence, it is

right to say that Mohammedan sentiment is in most cases opposed to the disposition of

property by will.2 On the other hand, Bukhari reports a tradition laying down that a Muslim

who possesses property should not sleep even for two nights unless he has made a written

will.3 This tradition points in reality to another tendency that it is ethically incumbent upon a

man to make moral exhortations and give spiritual directions to his close relatives and

incidentally to indicate within the limits laid down by the law what should be done regarding

his property. Illustrations of wills which are mainly ethical may be found in abundance in

ancient literature.

The object of making a will is well explained by M. Sautayra, a jurist quoted by Ameer

Ali:

1 The significance and meaning of the word ‘conferment’ in relation to the definition is that the conferment must be complete, and should not be a mere intention to confer a right of property. 2 Fitzgerald, 167; Fat. Law §369, 373.3 Muhammad Ali, Manual of Hadith (Lahore, 1994), 334, No. 1



“A will from a Mussulman’s point of view is a divine institution, since its exercise is

regulated by the Koran. It offers to the testator the means of correcting to a certain extent the

law of succession, and of enabling some of those relatives who are excluded from inheritance

to obtain a share in his goods, and of recognizing the services rendered to him by a stranger,

or the devotion to him in his last moments. At the same time the Prophet has declared that the

power should not be exercised to the injury of the lawful heirs.”4

Leading Authority on Mohammedan law of Wills- The leading authority on the subject

of wills is the Hedaya (Guide) composed by Shaikh Burhan-ud-Din Ali who flourished in the

twelfth century. He belonged to the Hanafi School, and it is the doctrine of that school that he

has primarily recorded in his work. The Fatwa Alamgiri is another work of authority, and it

has been accepted by the Courts in India as well as by the Privy Council as of greater

authority than the Hedaya. It was compiled in the seventeenth century by command of the

emperor Aurangzeb Alamgir. The law there expounded is again the law of the Hanafi sect, as

the Mohammedan sovereigns of India all belonged to that sect.

Mohammedan Law of Will and The Indian Succession Act, 1925- The provisions of the

Indian Succession Act, 1925 do not apply to Mohammedans excepting those relating to

probate and letters of Administration, etc. Therefore, in India a Mohammedan Will is

governed by the Mohammedan law modified by the provisions of the Succession Act, 1925,

to the extent applicable to them. Such a will will be subject to the provisions of the Shariat

Act, 1937. But a Muslim cannot claim immunity if his marriage was held under the Special

Marriage Act, 1954. In such cases, the provisions of the Indian Succession Act, 1925 shall be

applicable even though the will was made before or after the marriage.

3. Origin of the law of Will:

The nucleus of the law of wills is, by common consent, to be found in a tradition of the

Prophet, reported by Bukhari5:

Sad ibn Abi Waqqas said: ‘The Messenger of God used to visit me at Mecca, in the year

of the Farewell pilgrimage, on account of (my) illness which had become very severe. So I

said, “My illness has become very severe and I have much property and there is none to

inherit from me but a daughter, shall I then bequeath two-third of my property as a charity?”

4 Ameer Ali, I, 569. 5 Muhammed Ali, Manual of Hadith (Lahore, 1994), 334-5, No. 2



He said, “No”. I said, “Half?” He said, “No”. Then he said: “bequeath one-third and one

third is much, for if thou leavest thy heirs free from want, it is better than thou leavest them in

want, begging of (other) people; and thou dost not spend anything seeking thereby the

pleasure of Allah but thou art rewarded for it, even for that which thou puttest into the mouth

of thy wife.”

Thus the policy of the Muhammadan law is to permit a man to give away the whole of

his property by gift inter vivos, but to prevent him, except for one-third of his estate, from

interfering by will with the course of the devolution of property according to the laws of

inheritance. It is uncertain how the limit of one-third was fixed, but it has been suggested that

Roman law may have influenced this decision.6

4. Formalities of a Will:

As a general rule no legal formality is required for making a will. All that is required is that

there must be a clear intention to make it. A will may be made either orally or in writing. If it

is made orally, no particular form of verbal declaration is necessary as long as the intention of

the testator is sufficiently ascertained. The burden of establishing an oral will is always a very

heavy one on those who assert it and it must be proved with the utmost precision, and with

every circumstance of time and place.7 The Court must be made certain that it knows what

the speaker said and must from circumstances and from the statement be able to infer for

itself that testamentary effect was intended, in addition to being satisfied of the contents of

the direction given. Thus strict proof will be required.8

If a testator is dumb he may make a bequest by signs provided that the signs are made in

such a manner as is commonly used to denote affirmation. In the case of a person whose

inability arises subsequently owing to some illness, etc. a Will made by signs will be valid

only if the testator was deprived of speech for a long time so as to make the signs habitual to

him but not if the inability is recent.9 But Shafei Law makes no difference between the case

of a dumb person and of one whose inability is supervenient.10 Both can make will by signs.

The Fatwa Alamgiri says, “A sick man makes a bequest, and being unable to speak from

weakness gives a nod with his head, and it is known that he comprehends what he is about- if

6 Saksena, Muslim Law (Abridged ed. 1938), 3667 Venkat Rao v. Namdeo AIR 1931 P.C. 285 at p. 287 8 Mahabir Prasad v. Mustafa AIR 1937 PC 174 at p. 177; Izhar Fatima v. Ansar Bibi AIR 1939 All 348. 9 Hed. 70, Durr. 408; Bail. I. 625.10 Hed. 707.



his meaning be understood, and he dies without regaining the power of speech, the bequest is

lawful.”11

When a will is in writing, no specific form is laid down. It may not even be signed by the

testator or attested by witnesses.12 The reason is that a Mohammedan will is not required to be

in writing at all. Moreover the verse in the Koran regarding witnesses is considered merely as

a recommendation and is not mandatory. But it is necessary that the intention of the testator

should be clear and unequivocal for the testament to take full effect. The validity of a will

made in writing is in no way affected due to non-attestation thereof by the witnesses or

failure to prove the attestation. In the case of Mazar Husen v. Bodha Bibi13 before the Privy

Council a letter written by the testator shortly before his death and containing directions as to

the disposition of his property, was held to constitute a valid will. This principle was

followed in Abdul Hameed v. Mahomed Yoonus.14 The name of the document is immaterial.

Whatever name may be given to it like tamlik-nama (assignment) etc. if it possesses the

substantial character of a will then it will be treated as a will.15 But where a Mohammedan

executed a document which started, “I have no son, and I have adopted my nephew to

succeed to my property and title,” it was held by the Privy Council that the document did not

operate as a will.16 Where the testatrix clearly expressed herself that after her death, the

properties will devolve upon her heirs in the manner as has been described in detail in the

document the same constituted a will and not a deed of partition especially when the

beneficiaries did not have any share in the properties of the lady executing the document

during her lifetime.17

5. Requisites of a valid Will:

The essential requisites of a valid will, under Mohammedan Law are as follows:

(i) The testator must be competent to make the will.

(ii) The legatee must be competent to take the legacy or bequest.

(iii) The subject of bequest must be a valid one.

11 Baillie, I, 625 cited in Tyabji §689, com.12 Ranjilal v. Ahmed AIR 1952 MB 5613 (1989) 21 All 9114 (1940) 1 M.L.J. 273, 187 I.C. 414, (‘40) A.M. 153.15 Saiad Kasum v. Shaista Bibi (1875) 7 N.W.P. 313; Ishri Singh v. Baldeo (1884) 11 I.A. 135, 141-143, 10 Cal. 792, 800-802.16 Jeswant Singjee v. Jet Singjee (1844) 3 M.I.A. 24517 Abdul Manan Khan v. Murtaza Khan AIR 1991 Pat. 155



(iv) The bequest must be within the limits imposed on the testamentary power of a

Muslim.

The above mentioned requisites are explained in detail as under-

(i) Testator and his competence

Every Muslim (male as well as female) who is of sound mind and not a minor may

dispose of his property by will.18 Thus only a person who has attained majority and is sane

and rational is entitled to make a will. In Abdul Manan Khan v. Murtaza Khan19 Patna

High Court held that any Mohammedan having a sound mind and not a minor may make a

valid will to dispose of the property. A bequest by a person of unsound mind cannot be

deemed valid, if he becomes of sound mind subsequently. In the converse case, a bequest

made by a person, while of sound mind, becomes invalid, if the testator is permanently

disabled by unsoundness of mind.

The age of majority as regards matters other than marriage, dower, divorce and

adoption, is now regulated by the Indian Majority Act IX of 1875. Section 3 of the Act

declares that a person shall be deemed to have attained majority when he shall have

completed the age of eighteen years. In the case, however, of a minor of whose person or

property a guardian has been appointed, or of whose property the superintendence has

been assumed by a Court of Wards, the Act provides that the age of majority shall be

deemed to have been attained on the minor completing the age of twenty-one years.

Majority under the Mohammedan Law is attained at puberty, and the presumption is

that a Muslim attains majority on the completion of the fifteenth year. According to the

Hanafi Law, a bequest by a youth under puberty, even if he is a mooharik (that is

approaching puberty) and even if he dies after puberty is unlawful. The Shia Law

recognises the validity of a will by a person who has attained the age of ten years.

According to the Shafei Law, a will made by a testator who has not attained puberty would

be valid provided it is made to a discreet and advisable purpose. But the rules are not

applicable to wills in India since the age of majority, in case of will is now governed by

the Indian Majority Act. Thus a minor cannot make a valid will but validate a will made

during minority by ratification after attained majority.20

18 Hedaya, 673; baillie, 627.19 AIR 1991 Pat. 15520 Bail I, 627; hed. 673.



Will of a person committing suicide- Under Sunni law, the will if a person committing

suicide is valid. Under Shia law, a will made by a person after he has taken poison, or

done any other act towards the commission of suicide, is not valid. In Mazhar Husen v.

Bodha Bibi21 the deceased first made his will, and afterwards took poison. It was held that

the will was valid, though he had contemplated suicide at the time of making the will.

A will procured by undue influence, coercion or fraud is not valid, and the courts take

great care in admitting the will of a pardanashin woman.

There is conflict of opinion as to the validity of will made by a Muslim who renounces

Islam afterwards. The Maliki School holds that apostasy annuls such a will, but according

to the Hanafis, the bequest will be effective, if it is lawful according to the sect from which

he has apostalized.

(ii) Legatee and his competence

A bequest can be made by a Muslim in favour of any person capable of holding property.

Thus sex, age, creed or religion is no bar to the taking of a bequest. No one can be made

the beneficial owner of shares against his will. Therefore, the title to the subject of bequest

can only be completed with the express or implied assent of the legatee after the death of

the testator.

(a) Bequest to an institution- A bequest may be validly made for the benefit of an

institution.

(b) Bequest to a non-Muslim- A bequest in favour of a non-Muslim is valid. In Hedaya

the following verses of the Quran has been quoted:

“Ye are not prohibited, O believers, from acts of benevolence towards those who

subject themselves to you, and refrain from battles and contentions.”

It is therefore clear that a Muslim can give his property by bequesting the same in

favour of a non-Muslim provided the non-Muslim is not hostile towards Islam.

Bequest to an infidel or refugee is also valid according to all schools. A bequest to an

apostate is invalid. The disqualification is no longer effective owing to Caste

Disability Removal Act, 1850 (Act XXI of 1850). In Shafei Law a bequest in favour

of an apostate is, according to better opinion, valid.

21 (1898) 21 All 91



(c) Bequest to testator’s murder- In most systems of law, it is a rule that a murderer or a

person who abets the murder of the deceased is not entitled to legacy. Under the

Hanafi law, the rule is that the murderer is excluded from taking legacy, whether the

homicide was intentional or accidental. But a will in respect of such a person who has

caused the death of the testator can be validated if the heirs have given their consent.

According to the Sunni law, a bequest to a person who caused the death of the

testator whether intentionally or unintentionally is invalid. According to Shia law, it

is invalid if it is caused intentionally and not if accidentally or unintentionally. It is

immaterial whether the bequest is made before or after the act causing the death.

According to the Shafei law a legacy is not rendered void by the fact of the legatee

causing the death of the testator.

(d) Bequest to unborn child- The legatee must be in existence at the time of the testator’s

death. A bequest in favour of an unborn person is void22 unless such person was a

child enventure samere at the time of the will and is actually born within six months

of that date. Under the Shia law also a bequest in favour of an unborn person is

invalid, but if the legatee was in the womb at the time of the will, the bequest will be

valid if he is born in the longest period of gestation, i.e., ten lunar months.

(e) Joint Legatees- In cases in which a joint legacy is made in favour of two or more

persons, the question would be as to who would be entitled to the legacy if it fails in

respect of any of them. In such cases, if the legatee was not competent to be legatee

from the very beginning the entire legacy would go to the remaining legatees. If we

consider a situation where A makes a bequest of one-third jointly in favour of B and

C. B was dead at the time of bequest (whether by the knowledge of A or not). C could

be entitled to the entire legacy of one-third.

But if the legatee was originally a competent legatee, but became disqualified later

on by failure of a condition the remaining legatees would be entitled only to their

share in the legacy and the rest would lapse and it would not occasion any accession

to the rights of others. So if A makes a bequest of one-third in favour of B and C, if

they be poor at the time of A’s death. C is rich at the time of A’s death. B is would be

entitled to only one-sixth.

22 Bail, I; Hed, 674; Abdul Cadur v. Turner ILR 9 Bom. 158



If, however, the bequest is made to two or more persons clearly showing the

intention that each should be entitled to a definite share and one of them was already

dead, the remaining legatee will get only his share. Thus, if A makes a bequest of one-

third of his property in favour of B and C saying that the legacy was to be divided

between them. B was dead at that time. C would be entitled to only one-sixth.

(f) Bequest to a class- A bequest may be made in favour of a class of persons (e.g., to the

poor generally) who would jointly rank as a single legatee. The bequest may be spent,

according to Abu Hanifa and Abu Yusuf, on one poor person and according to

Mohammed on at least two persons.23 A bequest may be made to any special classes

(e.g., aparib, qarabat, ahl-i-beit, hushum quon, bunee, ahl-ul-ilam, etc). But if the

bequest is made to several persons, it will be divided equally among the legatees

irrespective of sex unless a contrary intention clearly appears.

(g) Bequest for a charitable object- A bequest for the benefit of a religious or charitable

object is valid. The only requisite is a general intention to charity, e.g., where a

bequest is made in the way of God, it is valid and the legacy must be spent on good

and pious objects. Thus a will, authorising the executor to dispose off the legacy for

such charitable purposes as he may deem proper would be valid.24 But is a bequest to

charity is made with the object of giving the property personally to the executor who

is also an heir, the bequest will be invalid without the consent of the other heirs.25

A bequest should not be opposed to Islam. Thus, a Muslim cannot lawfully make a

bequest for the building a Jewish synagogue or a Christian church; or for translating

the taurit; or injeel; or directing that so much of his property should be given to

named person for reading the Koran over his grave, or for the construction of a vault

or arch over it; or for shrouds to Muslims; or for aiding a tyrant or an oppressor.26

(h) Lapse of legacy- Under Sunni law if the legatee dies before the death of the testator

the legacy lapses and forms part of the testator’s estate. Under Shia law in the above

case, the legacy does not lapse but passes to the heir of the legatee, unless it is

revoked by the testator. It will lapse only if the legatee has no heir.

23 Bail. I, 648. 24 Gangabai v. Thavar Mulla, (1803) 1 B.H.C.R. 7025 Khajoorunnissa v. Rowshan Jahan, ILR 2 Cal 184.26 Abdul v. Turner, ILR (1884) 9 Bom 158.



(iii) Subject of will and its validity

Any type of property, immovable, corporeal or incorporeal may be the subject matter of

the bequest provided such property satisfies the following requisites-

(a) the property must be capable of being transferred;

(b) the property must be in existence at the time of testator’s death. It is not necessary that

it should be in existence at the time of the making of the will;

(c) the testator must be the owner of the property to be disposed by will.

Bequest in future- A bequest cannot be made of anything to be performed or produced in

future.

Alternative bequest- An alternative bequest of property, i.e., to one or failing him to the

other person is valid. The bequest to the first person if he is in existence at the time of

testator’s death will be deemed to be absolute. Hence he will take the bequest. If the first

person predeceases the testator, the second person will take the bequest.

Contingent bequests- Bequest of a property which is conditional to take effect on the

happening or not happening of an uncertain event is void.

Conditional bequest- A bequest with a condition which derogates from its completeness

will take effect as if no condition was attached to it, i.e., the bequest will be valid while the

condition will be void.

Bequest of life-estate- Sunni law treats a bequest to life-estate as bequest with a

condition attached to it and as such the bequest takes effect while the condition becomes

void, for instance, a bequest to A for life and after his death to B is in its legal effect a

bequest to A absolutely and B takes nothing under it. Thus a bequest of life-estate is not

recognised under Sunni law. But the same Will will take full effect under Shia law. In

such a case, what A gets is known as life-estates and what B gets is called vested

remainder. It is remainder in the sense that B gets what remains after A and it is vested in

the sense that the right of B is settled from the time the grant of A is created. The prior

view of the Bombay High Court was in favour of the recognition of life-estate, but the

subsequent decisions laid down that life-estate and vested remainder are as mush unknown

to the Shia Law as to the Sunni Law.27 This question was left undecided in a case by the

27 Jainabai v. Sethana, 34 Bom. 172; Cassamally v. Churrimbhoy, 30 Bom. 214



Judicial Committee.28 The view of Oudh Chief Court was that the creation of a life-estate

and a vested remainder would be permissible under the Shia Law.29

(iv) Testamentary power and its limits

The testamentary capacity of a Muslim is limited. He does not possess an unlimited power

of making disposition by will. There are two fold restrictions on the power of a Muslim to

dispose of his property by will. The two-fold restrictions are in respect of the person in

whose favour the bequest is made, and as to the extent to which he can dispose of his

property.

(a) Limitation as regards the Legatees-

The general rule, in this regard has been very clearly laid down in Ghulam

Mohammed v. Ghulam Hussain.30 It was held in this case that a bequest in favour of an

heir is not valid unless the other heirs consent to the bequest after the death of the

testator.

In Fakun v. Mst. Mumtaz Begum31 where the plaintiff (respondent) Mumtaz Begum

filed a suit for possession alleging that the land in dispute was given to her by her father

under a will and she was forcibly dispossessed by the defendant (appellant) who denied

the execution of the will and pleaded that he had been in possession after the death of

Mehrab Khan (father of Mumtaz begum) as his heir as being the son of his brother Irfan

Khan, the Rajasthan High Court had confirmed the well-settled principle that a bequest

in favour of an heir, even to the extent of one-third was not valid under the Hanafi Law,

unless the other heirs consented it, expressly or impliedly after the death of his testator.

In Abdul Manan Khan v. Murtaza Khan32 the Court held that a bequest in favour of

an heir is invalid unless the other heirs consent to it after the testator’s death. A provision

has been made in law to obtain consent of the heirs after the death of the testator; if in a

will more than 1/3 of the properties is sought to be bequeathed to an outsider and to any

extent to an heir. Such consent can be inferred from conduct. Acts of attestation of will

by legatee and taking of possession by them of property bequeathed could signify such

consent.

28 Mohd. Raza v. Abbas Bandi, 59 I.A. 236.29 Wahidunnissa v. Mushat Hussain 2 Luck 18930 54 Alld. 98: 1932 P.C. 8131 AIR 1971 Raj 149. 32 AIR 1991 Pat 155



The case of Khajoorunnissa v. Raushen Jehan33 clears the difference between a gift

and a will. It was held in this case that the policy of Mohammedan law appears to

prevent a testator from interfering with the course of devolution of property according to

law among the heirs. The facts of the case were as follows:

D, a Muslim died in 1841, and his eldest son E possessed himself of all his property

by virtue of a deed of gift and will executed in the year 1839. In 1859, the widow of a

younger son, as a guardian of her infant daughter R, filed a suit to set aside both gift and

will, and to recover the property, but after the judgement was obtained she withdrew

from the suit on terms of a compromise filed therein. In 1886, R and her husband sued E,

who was represented by Khajoorunnissa, to set aside the said compromise on the ground

of minority, fraud, etc. They applied for a review of the judgement and also applied to

recover the property covered by that suit. They also claimed a share derived by her father

from his predeceased brother, a share in the right of her grandmother and a share of the

property recovered by E under the previous decisions of the Privy Council. The

compromise was set aside and therefore, the parties were restored to their original

positions. It was held by the Privy Council that the deed of gift by D purporting to give E

one-third of the property was without consideration and was unaccompanied by delivery

of possession, and was only intended to operate after D’s death. Thus it functioned as a

will. This was an evasion of Mohammedan law. The testator could not by will interfere

with the devolution of property among the heirs.

Whether a person is an heir or not, will be determined at the time of the testator’s

death because a person who is an heir at the time of making the will may not remain an

heir at the time of testator’s death and vice-versa. For example, A, by his will bequeaths

certain property to his property. The only relatives of the testator living at the time of the

will are a daughter and a brother. After the date of making the will a son is born to A. the

son, the daughter and the brother all survive the testator. The bequest to the brother is

valid, for though the brother was an expectant heir at the time of the will, he is not an

heir at the date of the death of the testator, for he is excluded from inheritance by the son.

If the brother and the daughter had been the sole surviving relatives, the brother would

have been one of the heirs, in which case the bequest to him could not have taken effect,

unless the daughters assented to it.

33 3 I.A. 291, 307



Under Shia law, a testator may give legacy to an heir as long as it does not exceed

one-third of his estate. Such a legacy is valid without the consent of the other heirs. But

if the legacy exceeds one-third, it is not valid unless the other heirs consent thereto; such

consent may be given before or after the death of the testator. But where the whole estate

is to be bequeathed to one heir and the other heirs are excluded entirely from inheritance

the bequest is void in its entirety.34

(b)Limitation as regards the Disposable Property-

The general rule with regard to the extent of property that may be disposed of by will

is that no Muslim can make a bequest of more than one-third of his net assets after

payment of funeral charges and debts. The remaining two-third must pass to the heirs of

the testator according to law. But there are two exceptions to the above-mentioned

general rule.

(1) Under the Hanafi law, a bequest of more than one-third of the net assets may be

valid, if the heirs, whose rights are infringed thereby, give consent to the bequest after

the death of the testator. In Shia law such consent validates the will whether given before

or after the testator’s death.

(2) The above rule of bequeathable one-third will not apply to a case where the testator

has no heir. The right of Government to take the estate of an heirless person will not, in

any way, restrict the right of a person to make a disposition of his property, as he likes.

In other words, government is no heir to an heirless person.

Customs- A Mohammedan may dispose off his property by will even in excess of one-

third, where this is permitted by custom. Such a custom is recognised among Cutchi

Memons35 and Khojas36 and in some cases in the Punjab High Court37. Custom must be

such as has the force of law. If the applicability is excluded by any law, effect will not be

given to it. Custom is excluded by the Indian Shariat Act of 1937, the West Punjab and

N.W.F (Shariat) Acts, the Cutchi Memons Act X of 1938. Among Eunuchs community

of Muslims Guru-Chela system was prevalent according to which a Muslim could not

have willed more than one-third of his property without the consent of his chela to an

outsider, the will in respect of entire property of a Guru in favour of an outsider could not

34 Husaini Begum v. Mohammad Mehdi, (1927) 49 All 547.35 Advocate General v. Jimbabai, ILR 41 Bom. 18136 Allayar Khan v. Ranbhan AIR 1948 Bom. 16237 Rahim Baksh v. Umar Din, 1915 P.R.9



be held to be valid. Under this custom a chela alone is the heir of his Guru. Though

Muslim law does not debar a Muslim from executing a will of his property in favour of

any one including the persons outside the community, a custom limiting the choice of a

person in whose favour the will is to be executed would not be contrary to this law. The

Court held such custom does not violate the aforesaid law. It only limits the choice of

legatee without affecting the right to execute the will. Justice Gulab Gupta said that such

a custom was not either against public policy or the Muslim Law.38

6. Doctrine of Consent:

There is no difference between the Sunni and the Shia Schools as to the consent of the heirs if

the bequeathed property exceeds one-third of the estate. Certain rules have been laid down as

to how and when this consent may be given to validate the bequest.

Consent when to be given?- According to Sunni law, the consent must be given after the

death of the testator. Consent given during the lifetime is of no legal effect. Under the Shia

law, the consent may be given either before or after the death of the testator. Consent of heirs

means consent of those persons who are heirs of the testator at the time of his death, and not

the consent of a presumptive or would be heir. Such consent must be free consent. A consent

given under undue influence, fraud, coercion or misinterpretation is no consent at all and it

would not be bind the person so consenting.

Consent how to be given- Consent may be either express or implied. Accordingly, the

attestation of will by the heirs and acquiescence in the legatee taking possession of the

property has been held to be sufficient consent. Similarly, when the heirs did not question the

will for three quarters of a century and the legatees had taken the allowance month after

month, it was held that the conduct of the heirs amount to consent.

Consent of some of the heirs- In cases where only some of the heirs give their consent the

shares of those consenting will be bound, and the legacy in excess is payable out of the

consenting heir’s share.

Consent of insolvent heir- The consent of heirs who are insolvent has been held effective in

validating a bequest.

Consent not rescindable- Consent once given cannot be subsequently rescinded.

38 Illyas etc. v. Badshah etc. AIR 1996 M.P. 634.



7. Rateable abatement:

By rateable abatement is meant ‘proportionate reduction.’ Where a bequest of more than

one-third of the property is made to two or more persons and the heirs do not consent, under

the Hanafi Law, the shares are reduced proportionately to bring it down to one-third or in

other words, the bequest abates rateably.

Bequests for the purposes of rateable abatement are divided into bequests for pious

purposes and bequests for secular purposes. As a general class, bequests for pious purposes

are decreased proportionately to bequests for secular purposes, and do not have precedent

over them.

Under the Shia law the legatees take in order in which the legacies are granted up to the

disposable 1/3rd and the later legacies fail altogether. Let us consider a situation where A is

given ¼ th; B is given ¼ th and C is given ½. Then under the Hanafi law there is a

proportionate abatement so that the total legacy equals 1/3 only. So A takes 1/12th, B 1/12

and C 1/6th. Under the Shia law, however, A takes ¼. B takes 1/12 and C does not get

anything because the 1/3 would then be exhausted.

8. Construction of Will:

The general rule governing the construction of wills is that a Muslim will is to be construed

in accordance with the rules of construction of the will laid down in Muslim Law, the

language used by the testator and the surrounding circumstances. It is also a general rule of

construction of wills that unless a different intention appears, a will speaks from the death of

the testator, and the bequests contained in it take effect accordingly. It is a universal rule of

construction of wills that the court tries to give effect, as far as possible, to the intention of

the testator. Where the testator used such ambiguous language that its construction is not

possible by giving usual meaning to the words used, then it is left to the heirs to give it

whatever interpretation they want. Thus, where a testator lays down in his will that

“something”, or some trifle, should be given to P or “I leave a garment or a book to Q”, then

heirs may give to P and Q whatever they like, or any garment, such as a new court or an old

one or any book, a copy of the Koran or a book of songs. Where a testator bequeaths an

article by description without appropriating any specific article, and if the testator does not

own any such article at the time of his death, the bequest fails, unless the intention to



bequeath the value of the article is indicated. In such a case the article as described by the

testator will be purchased out of the assets and handed over to the legatee.

9. Revocation of the Will:

Mohammedan law confers on the testator unfettered right to revoke his will. He may revoke

it at any time. The revocation may be either (i) express, or (ii) implied.

i. Express revocation- An express revocation may be either oral or written, e.g. A

makes a testamentary disposition of land in favour of B. At any time, after the making

the disposition, he says “the land that I gave to B is for X”. These words will amount

to express revocation of the bequest. A will may be expressly revoked by tearing it

off, or by burning it. It seems that mere denial of a will does not operate as its

revocation.

ii. Implied revocation- Revocation of a bequest may be implied, e.g., where the testator

subsequently transfers the subject matter of the will or destroys it, or completely alters

its nature or makes such addition to it without which the property cannot be delivered,

etc. Where A bequeaths a land to B and subsequently builds a house over it, the

bequest stands revoked. Similarly, where the subject matter of bequest is a house and

the testator sells it, or makes a gift of it, the revocation is complete by implication.

Subsequent will- Where a testator makes a will, and by a subsequent will gives the same

property to someone else, the prior bequest is revoked. But a subsequent bequest though it

be of the same property, to another person in the same will does not operate as a

revocation of the prior bequest, and the property will be divided between the two legatees

in equal shares.

10.Probate and letter of administration:

A Mohammedan’s will may after the due proof, be admitted in evidence though no probate

has been obtained.39 Except as regards debts due to the estate of a deceased, no letters of

administration are necessary to establish any right to the property of a Mohammedan who has

died intestate.40

39 Mohamad Yusuf v. Hargovanddas, 47 Bom. 231.40 Indian Succession Act, 1925, Section 212(2).



11.Death-bed gift (Gift in Marz-ul-maut):

Marz-ul-maut gifts of Muslim law derive their rules from two branches of Muslim law, the

law of gifts and the law of wills. It is a combination of the rules derived from both the

branches. It is a gift of ambiguous nature, not exactly a gift, nor exactly a legacy, but

partaking the nature of both.

The different schools of Muslim law take divergent views on the Marz-ul-maut gifts. The

Malikis take the view that the Marz-ul-maut gifts are void. The Shias and Hanafis hold that

such gifts to the extent of one-third are valid.

A gift to be valid as Marz-ul-maut gift must be made during Marz-ul-maut, or death

illness. The most valid definition of Marz-ul-maut is that a malady which, it is highly

probable will ensue fatally. A gift must be deemed to be made during Marz-ul-maut, if it

made “under pressure of the sense of imminence of death.” But where the malady is of long

duration, such as consumption of albuminuria and there is no apprehension of death, the

malady cannot be called Marz-ul-maut. If the disease continues for a period of more than a

year, then it cannot be called Marz-ul-maut unless it reaches a stage where the apprehension

of death is genuine or death is highly probable. The crucial test of Marz-ul-maut is the

subjective apprehension of death in the mind of the donor, that is to say, the apprehension

derived from his own consciousness, as distinguished from the apprehension caused in the

minds of others, and the other symptoms or physical incapacities are only the indications but

no infallible signs of a ‘sine qua non’ of Marz-ul-maut.41 The Calcutta High Court has

indicated in Hasrat Bibi v. Ghulam Jaffar42, that an illness is a death-illness, when-

(i) The donor is suffering from the disease at the time of gift and which is the immediate

cause of death;

(ii) The disease is of such a nature or character as to induce in the person suffering, the

belief that death would be caused thereby, or to endanger in him the apprehension of

death;

(iii) The illness is such as to incapacitate him from the pursuit of his ordinary avocations,

i.e., standing up from prayers, which may create in the mind of the sufferer an

apprehension of death;

41 Safia Begum v. Abdul Rayaz, AIR 1945 Bom. 53842 3 C.W.N 57



(iv) The illness after a long continuance has taken such a serious turn as to cause an

apprehension of death in his mind, but not if he is accustomed to the malady.

In Abdul Hafiz v. Sahebbi43 a Muslim of over 80 years of age remained ill seriously for four

days. On the day on which he died he made a gift just before his death. It was held by the

Bombay High Court that the gift was made during death-illness. The Court observed that

what is required to be proved upon the preponderance of probabilities is, whether the gift was

made by the ailing person while under the apprehension of death and that whether in such

ailing he died.44

Though the transaction in Marz-ul-maut is partly of will and partly of gift, it being essentially

and basically a gift must satisfy all the formalities that are essential for the making of any

other gift. That is to say that, there must be-

(a) Declaration of the gift by the donor,

(b) An acceptance of gift (express or implied) by or on behalf of the donee, and

(c) Actual or constructive delivery of possession of the subject-matter of the gift by the

donor to the donee.

It is important to note that a death-bed gift is operative as such after the death of the donor.45

But the donor’s power to dispose of his property by gift during death-illness is subject to

certain limitations which are as follows-

i. Gift to a non-heir- He cannot make a gift of more than 1/3 of his property in favour

of a non-heir unless the other heirs give consent to the excess taking effect.

ii. Gift to an heir- The gift to an heir made during death-illness is altogether invalid

unless the other heirs consent to it.

iii. A gift made during death-illness is subject to all the conditions and formalities

necessary to constitute a gift inter vivos.

As already stated Marz-ul-maut is not exactly a gift, nor exactly a legacy. Marz-ul-maut and

will - both become operative only after the death of the person concerned and are subject to

the same limitations. But a will can be made by the testator at any time irrespective of his

43 AIR (1973) Bom. 16544 Bhoona Bi v. Gujar Bi AIR 1973 mad. 154.45 Shamshad Ali Shah v. Syed Hassan Shah (Pakistan), PLD 1964 S.C. 143.



health conditions while for a gift to be considered as Marz-ul-maut, it should be made under

an apprehension of imminent death. Thus a will and Marz-ul-maut differ considerably.

12.Conclusion:

Thus it can be concluded by saying that the law of wills under Muslim law is quite

complex. The absence of any specific legal formalities though might be intended for the

benefit of the layman often creates ambiguity regarding the validity of a will. It is very hard

to infer the intention of the testator from his words. Moreover since signature of the testator

and attestation by witnesses are not required, there may be doubt regarding the authenticity of

the will which only increases unnecessary litigation between the parties. Moreover regarding

the doctrine of consent, rateable abatement and limitations on the testamentary power,

various schools of Islam advocate various principles which add up to the complexity. The law

of wills allows a Muslim to bequeath only one-third of his property and in case the bequest is

more than that consent of the heirs is required. In the modern era keeping the socio-economic

circumstances in mind it is quite evident that hardly any heir will give consent for such

bequest as it would result in decrease of his own share. Moreover, the bequest can be done in

favour of a stranger only and not any of the heirs (under Shia law, a testator may give legacy

to an heir as long as it does not exceed one-third of his estate). Such a limitation should not

be there. It is because of such limitations that even if legatees had ill-treated the testator they

end up getting his property. Such limitations also apply in case of Marz-ul-maut. A person

should be given absolute power to bequeath his hard earned property to any one he likes.

Thus, it is the need of the hour that the Muslim law including the law of wills be codified and

the various lacunae be done away with.

13.Bibliography:

Mantha Ramamurti, Law of Wills, (8th Edn., Law Publishers

(India) Pvt. Ltd., 2012)

Dr. Paras Diwan, Family Law, (9th Edn., Allahabad Law

Agengy, 2009)



Dr. T.V. Subba Rao and Dr. Vijendra Kumar, Family Law in

India, (9th Edn., S. Gogia and Company, 2007)

Aqil Ahmad, Mohammedan Law, (23rd Edn. Central Law

Agency, 2009)

M. Hidayatullah and Arshad Hidayatullah, Mulla-Principles of

Mohammedan Law, (19th Edn. Lexis Nexis Butterworths,

2010)

B. R. Verma, Commentaries on Mohammedan Law, (11th Edn.

Law Publishers (Indai) Pvt. Ltd, 2009 )


Documents

3. Wills under muslim law.docx