CHAPTER - II

MUSLIM LAW OF
TESTAMENTARY SUCCESSION
 CHAPTER II
MUSLIM LAW OF TESTAMENTARY SUCCESSION

I. ADMINISTRATION OF ESTATES

Muslim law provides a machinery for the distribution of the estate of the
deceased among the legatees and the heirs. In the words of Fyzee:

It is as though the estate were a round cake, which from a distance seems
entire; but as each heir approached the table, the cake is found to be carefully
cut up and divided proportionately; and all that remains to be done is to handover
to him his particular piece1.

The concept of administration of estate was introduced in India for the first
time by the Probate and Administration Act, 1881. This was merely an enabling
statute. The Probate and Administration Act, 1881 was replaced by the Indian
Succession Act, 1925. In modern India, the administration of the estate of a
deceased Muslim as well as of the members of other communities is governed
by one uniform law, viz., the Indian Succession Act, 1925. It should be noted that
the substantive law that is applicable to the estate of a deceased. Muslim is still
Muslim law, i.e., the law of the school to which the deceased belonged at the
time of his/her death2. But if the deceased Muslim had married under the Special
Marriage Act or his marriage was registered under the Act, the succession to his
estate, including the substantive law, will be entirely governed by the provision of
the Indian Succession Act.

Here is the summary of law as applicable to Muslims.

Administration - The administration of estate means that the estate of

the deceased is to be applied successively to the payment of funeral expenses3
(not the amount spent in ceremonies performed for securing the peace of the

Fyzee 368
Hayat-un-nissa v. Muhammad AM Khan (1892) 17IA 73
Section 320 of the Indian Succession Act
221
soul of the deceased)4, expenses of proceedings for obtaining probate or letters
of administration5, wages and services rendered to the deceased within three
months of his death6, debts of the deceased7, and legacies. The remaining estate

is to be distributed among the heirs.

Legal representative - As a general rule, the executor or administrator

(or, in their absence, the heirs) of a deceased Muslim is his legal representative,
and all the assets of the deceased vest in him. It is the duty of the executor or the
administrator to collect the assets, discharge the debts, pay the legacies, and
distribute the balance of assets among the heirs. When a Muslim dies leaving
behind a will, it is not necessary for the executor to obtain the probate of the will,
but, if the debts due to the deceased are to be recovered, the representation is
necessary, as the court of law will pass a decree in favour of the estate of the
deceased unless the representation, in any from, as laid down in the Indian
Succession Act, is obtained. Thus, when a deceased dies leaving behind a will,
the probate should be obtained. In case he dies intestate, the letters of
administration may be obtained.

In case, the executor is not able to complete the administration in his

lifetime, he can, under the Hanafi law, appoint a successor to himself to carry out
the purpose of the will. In case he dies without appointing a successor, it seems
the appointment of another executor by the court will be necessary8. The Shia
authorities hold the view that unless an executor has been authorized to
nominate his successor by the testator, he has no power of appointing a
successor to himself. Where there are more than one executor, the survivors are
competent to continue to act as executors. It seems that under Shia law, the
court has no power of appointing an executor so long as there is any surviving
executor.

Sajjid v. Md. Sayid, AIR 1954 All 71

Section 321 of I.S.A.
Section 322 of the I.S.A.
Section 323-325 of I.S.A.
Abu Yusuf holds the view that the rights devolves upon the survivors the two or more executors,
while Abu Hanifa and Iman Muhammed hold the view that in such a case direction from the court
(Kazi) is necessary.
222
 After the payment of funeral expenses and debts of the deceased, the
executor, under Muslim law, acts as an active trustee in respect of bequeathable
one-third, and as a bare trustee for the heirs in respect of the remaining two-
thirds. The powers and duties of executors and administrators are laid down in
the Indian Succession Act9. These provisions also apply to executors and
administrators of a Muslim.

According to the strict Muslim law, a non-Muslim cannot be an executor

but in modern India a non-Muslim can be validly appointed as an executor.

Probate or letters of administration with the will annexed may be obtained,

whether the will is oral or in writing. Once the probate or letters of administration
is granted, it conclusively establishes the claim of the executor/administrator to
represent the estate for all purposes. In case an executor appointed under a will
does not obtain probate, the court has power to appoint any person as an
administrator with the will annexed. The letters of administration may be granted
to a person who is an heir, legatee or creditor of the deceased.

Any person claiming an interest in the estate of the deceased may bring a
suit for administration for the purposes of ascertainment of the estate and of
debts and liabilities relating to it, for a proper allocation of debts to the properties
to which different rules of descent apply, for accounts, and for the declarations
and delivery of the interest therein to those entitled to him.

Vesting of Estate. - The estate of the deceased vests in the executor,

where there is one, and it vests in him, even if no probate has been obtained by
him10. In case, the letters of administration have been obtained, the estate vests
in the administrator. If there is neither an executor nor an administrator, then the
property vests in the heirs. The law may be stated thus:

When a Muslim dies leaving behind a will where under he had appointed
an executor, his estate vests in him, as he is the legal representative of

These provisions apply to all executors (deceased might belong to any community) throughout
India, except the State of Jammu Kashmir.
Mahomed Yusuf v. Hargovandas Jivan, AIR 1922 Bom, 392; Hakim Rehman v. Mohammad
Mehmud Hasan, AIR 1957 Pat.559
223
 the deceased. In particular (i) the bequeathable one-third vests in him for
the purpose of the will, and (ii) the rest vests in him as a bare trustee for
the heirs. An executor is required to do the following:

(a) to collect all the assets of the deceased, including the debts,

(b) to pay all charges against the estate, such as funeral expenses11,

(c) to pay the debts of the deceased,

(d) to pay the legacies, and

(e) to distribute the remaining property among the heirs.

Although it is not necessary for an executor to obtain the probate, but no

court will pass a decree against a debtor of the deceased, or allow execution
proceedings, unless probate is obtained. For the purpose of realization the debts
of the deceased, an executor who had not obtained the probate might obtain a
certificate under the Administrator -General’s Act, 1963, or a succession
certificate under the Indian Succession Act.

In case a Muslim dies intestate and letters of administration have been

obtained, then the assets of the deceased vest in the administrator. The
administrator is the legal representative of the deceased. An administrator is
required to do the following:

(a) to collect the assets and debts of the deceased,

(b) to pay all the charges against the estate, such as funeral expenses,

(c) to pay the debts, and

(d) to distribute the balance among the heirs.

When a Muslim dies without appointing an executor, or dies intestate, and

no letters of administration have been obtained, then the property of the
deceased vests in the heirs. In such a case the heirs are also the legal
representatives of the deceased. But neither a decree can be passed against the
debtors of the deceased, nor can execution proceedings be launched against the

n Section 320-323 of the I.S.A. 1925

224
judgment-debtors of the deceased unless (i) a certificate is obtained under the
Administrator-General’s Act, or (ii) a succession certificate is obtained under the
Indian Succession Act12.

When the estate vests in the heirs it vests in them not jointly but in
severally as from the time of the death of the deceased in proportion to their
respective shares in the estate. They hold it subject to the payment of the
charges and debts in proportion to their shares in the estate, and also subject to
the payment of legacies, if any, up to the bequeathable one-third.

Legal actions against and on behalf of the estate of the deceased -

Under Muslim law the estate of the deceased devolves on the heirs the moment
he dies, and heirs are free to distribute it among themselves at any time
thereafter13. The estate of a Muslim dying intestate devolves under the Islamic
law upon his heirs at the moment of his cleath, i.e. the estate vests immediately in
each heir in proportion to the shares ordained by the personal law and the
interest of each heir is separate and distinct. Each heir is under the personal law
liable to satisfy the debts of the deceased only to the extent of the share of the
debt proportionate to his share in the estate14. It is non incumbent upon them to
postpone the distribution of assets till the debts are paid. However, each heir is
liable for the debts of the deceased to the extent of his share, even after the
distribution of assets of the deceased but no more.
i
Suit by creditors - When a Muslim dies indebted, then the creditors may
sue the executor or administrator, aqd, in the absence of an executor or
administrator, the heirs, for the realization of their debts. In case the estate of the
deceased has not been distributed among the heirs, a creditor can execute a
decree against the entire estate, irrespective of the extent of the liability of the
each heir. The High Courts differ as to whether a decree obtained by a creditor
against some of the heirs is also binding on others15. The Supreme Court has

Part X of the Act.

Zafri Begum v. Amir Muhammed, (1885) 7 !a11 822.
N.K. Md. Sulaiman Sahib, v. N.C. Md. Ismail Saheb, AIR 1966 SC 792
Abbas Naskar v.Chairman, District Board, 24 Paraganas, AIR 1933 Cal 81; Virchand v. Kondu,
ILR (1915) 39 Bom 729; Lala Miya v. Manubibi, AIR 1923 Bom 411
225
now resolved the controversy. In Daya Ram v. Shyam Sundari16, Ayyanagar, J.
said that though ordinarily the court does not regard a decree binding on a
person who is not impleaded ex nomin in an action, there are certain recognized
exceptions to this rule; one of these is that where certain persons are impleaded
after diligent and bona fide enquiry in the genuine belief that they are the only
persons interested in the estate, the whole estate of the deceased will be duly
represented by the persons who are brought on the record or are impleaded, and
the decree will be binding on the entire estate. But, the learned judge said, this
rule will not apply to cases where there has been fraud or collusion between the
creditors and the heirs impleaded, or where there are other circumstances which
indicate that there has not been a fair or real trial, or where the absentee heir had
a special defence which was not and could not be taken in the earlier
proceedings. This was a case where all the parties were Hindus. The question
again came before the Supreme Court in N.K. Md. Sulaiman Sahiv v. N.C. Md.
Ismail Saheb17, where the deceased was a Muslim. Three persons, A, B and C
mortgaged certain immovable properties in favour of one, R. After the death of A,
R file a suit for enforcement of the mortgage against B and C and the three
widows and a daughter of A. the suit was decreed, and, in execution proceedings
of the decree, the properties were sold at court sale and were purchased by R. R
alienated these properties to some other persons. Subsequently, the plaintiff P,
claiming himself to be the son of A, filed a suit for the partition of mortgaged
properties by metes and bounds, and in the alternative that he was entitled to
redeem the properties or a portion thereof equal to his share in the mortgaged
properties. The Plaintiff’s suit was resisted by R and the aliens on the averments
that the decree obtained by R was binding on P as the estate of M was fully
represented in the suit by those who were in possession at that time, and R on
the basis of full and bona fide enquires made by him learnt that the three widows
and the daughter were the only representative of A. The court held that P was
bound by the decree as estate of A was fully represented in the suit. Shah, J.
observed that a creditor of a Muslim dying intestate might sue all the heirs of the

16
AIR 1965 SC 1049.
17
AIR 1966 SC 792

226
deceased, and where the estate of the deceased had not been distributed among
the heirs, he might execute the decree against the property as a whole without
regard to the extent of liability of the heirs inter se. the creditor is not required to
sue all the heirs: he may sue some of the heirs and obtain a decree against
them. The decree may be enforced against individual heirs in proportion to their
shares in the estate. The learned judge further said that it is settled that where
the defendant dies after the institution of the suit, the creditor after diligent and
bona fide enquiry impleads some, but not all, as legal representatives, the heir so
impleaded represent the estate of the deceased, and a decree obtained against
them, binds not only those heirs who are impleaded in the action but the entire
estate, including the interest of those not brought on the record.

Recovery of debts due to the deceased - It has been seen earlier that a
suit for the recovery of debts due to a deceased Muslim may be filed by an
executor, administrator or an heir. Such a suit can be filed by an executor who
has obtained probate of the will, or by an administrator to whom letters of
administration have been issued. An heir or an executor who has not obtained
the probate of the will can file a suit for the recovery of deceased’s debt only if a
certificate under section 31 or section 32 of the Administrator - General’s Act, or
a succession certificate under Part X of the Indian Succession Act, has been
obtained. However, a debtor can validly pay the amount of debt to an executor
who has not obtained a probate or a certificate under either Act. Similarly, a
debtor is free to pay the debt to the heirs who have not obtained either certificate
under the aforesaid enactments. But the payment of debts by a debtor to one or
more heirs does not discharge the debt due in respect of the shares of other
heirs18.

Alienations - Alienation by an heir of his share before the payment of

debt- Since the estate of a Muslim vests in the heirs immediately on his demise,
an heir has the power of alienating his share and pass a good title to a bona fide
alienee for value, even if no distribution of assets of the deceased has taken
place, and notwithstanding the outstanding debts of the deceased. Thus, in Land

18
Ashima Bibi v. Abdul Kadir, ILR (1901) Mad 26; Sitaram v. Shridhar, ILR (1903) Bom 292

227
Mortgage Bank vs. Bidyadhari19, the heirs sold the entire estate of the deceased

to one P without discharging the debts of the deceased. Subsequent to the sale,
Q, a creditor of the deceased, obtained a decree against the heirs for his debts
and applied for the execution of the decree. Q applied that the properties in the
possession of P be attached. The attachment application of Q was dismissed.
The court said that a creditor of a deceased Muslim cannot follow the estate in
the hands of a bona fide purchaser for value.

Under Muslim law a sale of his share by an heir in execution of a decree

of his creditor amounts to a transfer and passes a good title to the transferee. In
Wahidu-nissa v. Shubratun20, A, a Muslim, died leaving behind a decree against
the sisters. Later on, Q, a creditor of the sister, also obtained a money decree
against them. In execution of Q’s decree the property was sold at court sale, and
was purchased by one, R. Then P filed proceedings to attach properties of A in
the hands of R in execution of his decree. It was held that he could not do so,
since R was a bona fide purchaser for value. In Bazayet Hossein v. Dooli
Chand21, A, a Muslim, died leaving behind a widow, W, and a son S. W’s dower-
debt was outstanding against A. S mortgaged his share in the estate to P without
paying W’s power-debts. Subsequently, W obtained a decree and S’s share was
attached. Then P obtained a decree on the mortgage against S for the sale of S’s
share and it was purchased by Q. Since the mortgage was made by S before W
got S’s share attached in execution of the decree, it was held that Q was entitled
to the property. However, if an alienation is made by an heir during the pendency
of a suit of a creditor of the deceased in which a charge is created on the estate,
then the transferee will take the property subject to the charge22. In Mohamed
Wazid v. Bazayet Hossein23, A, A Muslim died leaving behind three widows, X, Y
and Z, and a son, S. X, Y and Z brought a suit against S, who was in possession
of the estate of A, for administration and for the payment of their dower-debt. The
suit was decreed and a charge was created for the dower-debt on the estate, and

19 (1980) 7 Cal LR 460.

20 (1870) 6BengLR5
21 (1878) 5IA 211.
22 Bholanath v. Maqbul-un-nissa, ILR (1903) 26 All 28; Abdul Rahman v. Inayyati Bibi, AIR 1931
Oudh 63.
23 ILR (1878) 4 Cal 402

228
S was directed to render accounts of the income of the estate. The widows
applied for the execution of the decree. While the execution proceedings were
pending, S mortgaged his share to P. P sued S on mortgage and obtained a
decree for the sale of S’s share in the estate. Consequent to which S’s share was
sold at a court sale and was purchased by Q. It was held on the suit of X, Y and
Z that Q took the properties subject to the charge of X, Y and Z. The distinction
between this case and Bazayet Hossein V. Dooli Chand, is that in the later case
the mortgage was effected before, while in the former it was effected after the
widows had filed the suit for the recovery of their dower-debt.

Alienation by an heir for payment of debt- When one of the heirs of a

deceased is in possession of the entire estate, he has no power of alienating out
of the estate of the deceased more than his share, even for the discharge of the
debts of the deceased24. If he does so, then such alienation operates as a
transfer of his interest in the estate alone, and is not binding on the other heirs
and creditors of the deceased25. However, it is possible that an heir may
mortgage his undivided share in some of the properties of the deceased. In such
case the mortgagee takes the property subject to the right of other heirs to
enforce partition. When a partition is made on the suit of other heirs, other than
the mortgagor then the heirs take the property free from the mortgage and the
mortgagee can proceed only against the properties allotted to the mortgagor,
unless fraud is pleaded 26

II. MEANING OF MUSLIM AND WHAT IS MUSLIM PERSONAL LAW

Who Is A Muslim :

According to Ameer Ali II 222, any person who professes the religion of
Islam, in other words accepts the Unity of God and Prophetic character of
Mohammad is a Muslim.27

Parsothamdas v. Bai Dhabu, AIR 1973 Guj 88

Jan Mohammad v. R.B. Karm Chand, AIR 1947 PC 99.
Mohammad Afzal Khan v. Abdul Rahman, AIR 1932 PC 235; Abdul Rahman v. Hamid Ali, AIR
1950 MP190
Atiawaris v. Sultan Ahmed Khan, 1959 Lah 205 (Pakistan), S.I. Koya Thangal v. Ahmmed Koya,
AIR 1971 Kant 206. Naranthakath v. Parakal, AIR 1923 Mad 171.
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 He may be so by birth or by conversion when a person is born as Muslim,
there is little difficulty in his being recognized as such provided he has never
been proved to have adopted any other religion. He may renounce the doctrines
of the sect and adopt the tenets of another such sect, he will be a Muslim but
shall be governed by the law of the adopted sub-sect.

However, when a person is converted to Islamic faith, he is said to have

substituted the religion of Islam for the previous religion and shall be covered by
the law of the new sect or sub-sect. He need not observe any particular rites or
ceremonies but it is sufficient if he professes the Muslim religion in the sense that
he accepts the Unity of God and the prophetic character of Mohammed Sahib.28
It is enough for the convert to have pronounced the Shahadah with an intention
to embrace Islam. Change of name is not necessary; but in India it is common to
adopt an Arabic or Persian name on conversion to Islam. It is also customary in
India to obtain a certificate of conversion from an Imam or Qazi. Such a
certificate, or change of name, can have only an evidentiary value. In the matter
of application of Muslim law under the Shariat Application Act 1937 no
discrimination cap be made between a born Muslim and a convert to Islam or
between their Muslim descendants.29

What is Muslim Personal Law :

By using the words “Muslim Personal Law” the Act discards the
expression “Mohammedan Law” which was coined by the British. Repugnant to
basic Islamic beliefs and otherwise a misnomer, the expression was rightly
rejected by the legislature.

In the Shariat Application Act “Muslim Personal Law” and “Shariat” are
used as synonyms. This needs an explanation. Shariat is the name of the
comprehensive Islamic code of life - of which ‘Personal Law’ is only one part.
The whole of the Shariat is not Muslim Personal Law. Under the Act, it may be

Faiz Ali Shah v. Ghulam Abbas Shah, (1952) P Azad J&K 32, Robasa Khanum v. Khodadad
Bomanji Irani, AIR 1946 Bom 48, Ahmed Bux v. Nathoo, AIR 1969 All 75, Vohra Bai Khatija
Isabhai v. Vohra Karimbhai, AIR 1974 Guj 4: (1973) GLR 679.
29
Statute-Law Relating to Muslims in India; Tahir Mahmood, 1995 Edn., pp.86-87.

230
said, the expression “Muslim Personal Law (Shariat)” means; the personal law of
the Muslims based on the "Shariat”. ,

Over 150 years ago in the celebrated Rajah Deedar Hossain’s case30 the

Privy Council had ruled:

“It is not said that one uniform law should be adopted in all cases affecting
Muhammedans, but that the Muhammedan law, whatever it is, shall be adopted,
if each sect has its own rule according to the Muhammedan law, that rule should
be followed with respect to litigant of that sect”.

In most Muslim countries Muslim Personal Law has now been unified by
legislation, and in the Indian sub-edntinent this happened when the legislature
enacted the Dissolution of Muslim Marriages Act 1939, based on most of its
provisions on the Maliki school of Islamic Law but made uniformly applicable to
all Muslims. The Muslim Women (Protection of Rights on Divorce) Act 1986-
although based on Hanafi law - also applies to all Muslims alike.31

The Muslim Personal Law (Shariat) Application Act, 1937 (Act XXVI of
1937) has in section 2 the following: ,

“Notwithstanding any custom or usage to the contrary in all questions

(save questions relating to agricultural land) regarding intestate succession,
special property of females, including personal property, inherited or obtained
under contract or gift or any other provision of personal law, marriage, dissolution
of marriage, including Talaq, lla, Zihar, Lian, Khula and Mubaraat, maintenance,
i
dower, guardianship, gifts, trusts and trust properties, and wakfs (other than
i
charities and charitable institutions, and charitable endowments), the rule of
decision in cases, where the partied are Muslims shall be the Muslim Personal

Law (Shariat)”.

Regarding Adoption and Wills, the Act empowers every Muslim, who is
competent to contract under the provision of the Indian Contract Act, 1872, to
adopt the law of the Shariat for himSelf or herself and also for his or her minor

(1841) 2MIA441
Statute-Law Relating to Muslims in India; Tahir Mahmood, 1995 Edn., pp.87-88.

231
children and their descendants.32 Thus, the Act differentiates adoption, wills and
legacies from other subjects of personal law mentioned in section 2. Unlike
customs relating to the latter, those regarding adoption, wills and legacies have
not been wholly abrogated by its provisions. In respect of these matters, the Act
only gives an option to the Muslims to adopt Islamic personal law if they so
desire. Accordingly, if a Muslim who is competent to contract under the Indian
Contract Act, 1872 makes declaration of a desire to avail the benefit of section 3
of the Act of 1937, the declarant, his (or her) minor children and their
descendants will all be governed by Islamic law in respect of adoption, wills and
legacies.33

Khojas: They were originally Hindus and inhabitants of Sindh and Cutch
regions and later on converted to Islam. Before the coming into force of the
Shariat Act, only areas, in which they were governed by customs, were
inheritance and succession. Now they are governed by Muslim law in regard to
intestate succession and by custom in respect of testamentary succession. This
means that a Khoja can Will away his entire property, but if he dies intestate, his
property will devolve in accordance with Muslim Law.34

Bohras: Like Khojas they were originally Hindus and were the influential
and power full traders of the Western India. At present they are mostly
Ismailies.35 They are also governed by the same rule as Khojas.

Memons: Like Khojas and Bohras the Memons, too were, originally
Hindus. At present they are divided into the Halai Memons of Bombay, the Halai
memons of Porbandar and Kathiawar, and the Cutchi Memons.

Prior to 1920 Cutchi Memons were governed by Hindu law of succession

and inheritance, though, practically in all other matters, they were governed by
Muslim law. The Cutchi Memons Act 1920 laid down that a Cutchi Memon could
choose to be governed by Muslim law in all matters by filing a declaration to that

Section 3(1) of the Indian Contract Act, 1872.

Family Law Reforms in Muslim World, Tahir Mahmood, 1972 Edn., p. 169.
But the Khoja Will will be construed as per Muslim Law, Ashraf Ali v. Mohammed. Ali (1943) 48
Bom LR 642.
For the history of Sunni Boharas, See Chowdhary Gulla Case (1921) 24 bom LR 1860.
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effect. Shariat Act 1937 brought them at par with Khojas. Thereafter the Cutchi
Memon Act of 1938-40 laid down that for all purposes they will be governed by
Muslim Law i.e; Shariat Act.36

III. WILLS (WASIYAT)

1. Meaning, Object and Origin of Rule

The Will of Muslim is governed in India, subject to the Indian Succession

Act, XXXIX of 1925, by the Muslim law.37

The term Will in the Anglo-Mohammedan law is equivalent with Arabic

term “wasiyat”. Generally, “wasiyat” means Will. A document embodying the Will
is called “wasiyatnama”.

This word has various meanings besides a Will. It also signifies a moral
exhortation. Citing Hedaya, Ameer Ali says:

"A Will from the Musalman point of view is a divine institution, since its
exercise is regulated by the Quran. 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 recognising the services rendered by a stranger, or the devotion to him in
his last moments. At the same time the Prophet has declared that power should
not be exercised to the injury of the lawful heirs.”38

Fatwa-i-Alamgiri defines a Will as “the conferment of a right of property in

a specific thing or in a profit or advantage in the manner of gratuity to take on the
death of the testator.”39

In HEDAYA Will has been defined as endowment with the property of

anything after death as if one person should say to another, “give this article of
mine after my death to a particular person.”

36 Muslim Law in Modem India, Paras Diwan, 9th Edn. pp. 8-9.
37 Shaik Moosa v. Shaik Essa (1894) 8 Bom. 341; See Dr. Tahir Mahmood, Muslim Law of India,
2nd Edn., 1.232: section 1 of Act 39 of 1925.
38 Ameer Ali, T.L.L., p.437.
39 Ameer Ali, T.L.L., p. 439, Bailie I, 623: Hed., 670 (692).

233
 Referring to Durrul Mukhtar, “Will is an assignment of property to take
effect after one’s death." (Durrul Mukhtar, 1st Edn., p. 402).

Jarman on Wills speaks in the same vein that a Will or “wasiyat” is an

instrument by which a person makes a disposition of his property to take effect
after his decease, and which is, in its own nature ambulatory and revocable
during his life.

Section 2(h) of the Indian Succession Act, 1925 defines Will as the legal
declaration of the intention of testator with respect of his property which he desire
to be carried into effect after his death".

The Muslim Law of Wills is at variance with the English law, on which the
Indian Succession Act has been modeled. It is said to be in agreement with the
Ideal Code of Bentham and the French Code, according to which, intestate
succession comes before testamentary succession, on the ground that the
property of a dead person ought to be applied primarily to the support of those
persons, if any, whom he was under some sort of obligation to support in his
lifetime and who would therefore be likely, prima facie, to be losers by his death.
There is a general and obvious moral obligation and of natural love and affection
pointing to wife and children, parents, brothers and sisters and their descendants
as preferential claimants.

There is an indispensable necessity that a man should have the power of

making bequests. Man from the delusion of his hopes is improvident and
deficient in practice; but when sickness invades him he becomes alarmed and
afraid of death. At that period, therefore, he stands in need of compensating for
his deficiencies by means of his property and this is in such a manner that if he
should die of that illness, his objects, namely, compensation for his deficiencies
and merits in a future state may be obtained, or on the other hand, if he should
recover, that he may apply that property to his wants, and as these objects are
attainable by giving validity to Wills, they are, therefore, ordained to be lawful.40

Ameer Ali, T.L.L., p. 437.

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 For the objection that the right of property in the proprietor becomes
extinct on his death and he cannot be allowed to have control over it after his
death and no endowment after death can be valid, it is replied: “his right of
property is accounted to endure at that time for necessity; in the same way it
holds with respect to executing funeral rites or for discharging the debts of the
dead.”41

The testamentary power is to be strictly limited only to enable a person to

meet exceptional conditions of merit and demerit, of need of affluence, known
only to the testator.

“Wilis are declared to be lawful in the Quran and the traditions; and ail our
doctors, moreover, have concurred in this opinion.”42 But the limit of one third is

not laid down in the Quran. This limit has derived sanctions from a tradition
reported by Abee Vekass. It is said that the Prophet paid a visit to Abee Vekass
while the latter was ill and his life was despaired of. Abee Vekass had no heirs
except a daughter, and he asked the Prophet whether he could dispose of the
whole of his property by Will to which the Prophet replied saying that he could not
dispose of the whole, nor even two-third, nor one-half, but only one-third.43

Muslim law accordingly limits the power of bequests to one-third of the net
assets. The two-third must in any case be distributed according to rules of
intestacy, unless there are no heirs at all claiming adversely to the legatees,
which is a rather remote contingency.44

There are two divergent tendencies in Islamic law—the one restricting the
power to make a Will so as to interfere with the law of inheritance, and the other
declaring it incumbent on a man to make spiritual directions regarding his
property.

As Hedaya Lil, Ch. 1, p. 673 (1957) puts it: “It is preferable and most
advisable not to leave legacies, if the heirs be poor, and their particular portions

41 See Hedaya, 670: Faizee, Mohammedan Law, 2nd Edn., p. 302.

42 Hedaya 671.
43 Mulla’s Principle of Mohammedan Law, by M. Hidayatullah, 19th Edn., p. 104.
44 See Wilson, Anglo-Mohammedan Law, 3rd Edn., pp. 66-67; Faizee, Mohammedan Law, 2nd Edn.,
p. 301.
235
not such as to enrich them; because this manifests benevolence to the heirs who
have a superior claim to it from the relation on which they stand. God having
declared in the Quran: The exertions of generosity towards relations are more
laudable than towards strangers.’ Besides, in this an observance of two claims is
maintained, namely, that of poverty, and of consanguinity. If, on the contrary, the
heirs be rich, or the particular portions assigned to them be such as to enrich
them, it is most advisable to leave something short of a third of the estate in
legacies, as legacy to a stranger is an act of charity, whereas the bestowal of the
whole upon the heirs is a gift: and the former is more laudable than the latter,
being calculated to gain the favour and good will of God. Some have said that in
such a case the proprietor is under no restraint, but is perfectly at liberty to make
a Will in favour of stranger, or to suffer the whole to pass to the heirs, as each
has its particular merit, the first being an act of generosity, and the second an
obedience to the dictates of natural affection.”

2. Restrictions on Testamentary Capacity

Restrictions on testamentary capacity of some kind or the other are to be

found in most systems of family laws. Thus, in Hindu law the restrictions are
based on a division of the property into ancestral and self-acquired.45 In England

the Statutes of Henry VIII, dealing with Will, enacted that all persons seized in
fee-simple might... by Will in writing devise to any other person two-thirds of their
lands held in chivalry, and the whole of those held in solonage which, after the
Statute of Charles II amounted to the whole of the landed property except
copyhold tenement. The French Civil Code provides that advantages inter vivos
or from Wills cannot exceed half of the property of the donor, if he leaves only
one legitimate child at his death or one or more ascendants in each of the
paternal and maternal lines, or one-third of the estate if he leaves two children, or
one-fourth if he leaves ascendants in only one line. The laws of Solon gave

The Hindu Succession Act, 1956 has made alterations in the law relating to the testamentary
capacity of a Hindu.
236
restricted testamentary power to testators having no legitimate children.46 So

there are also limits on testamentary power in Muslim Law.

3. Limits of Testamentary Power in Muslim Law

Will stands on the touchstone of pity, sympathy, love and affection or

feelings of divinity, which spontaneously spring up in the bosom of heart and flow
out to give its manifest expression which in law is known as gift or Will as the
case may be. A Will from Islamic point of view has been stated by M. Sautayra
that, ‘Will is a divine institution since its exercise is regulated by ‘Quran’. It offers
to the testator the means of correcting to a certain extent the law of succession
and of enabling some of those relations who are excluded from inheritance to
obtain a share in his goods and or recognizing the services rendered unto him by
a stranger or the devotion to him in his last moments. At the same time the
Prophet had declared that the power should not be exercised to the injury of the
lawful heir.4*

The Pre-lslamic Arabs had unlimited power of disposing off their property
by Will also by acts inter vivos. There was also no restriction as to the extent of
legacies. Muslim Law has not given unlimited testamentary powers and a two
fold restrictions are placed on the power to make a Will. The first restriction is as
to the persons to whom a bequest may be made (s.189) and the second
restriction as to the property of which a bequest may be made (s.190).48 This
rule is based on a tradition of the Prophet and the Courts in India have enforced
the rule from early times and the object is to prevent a person from so disposing
of his property as to leave the heirs destitute 49

The second restriction with respect to person is limited to heirs. The policy
of Muslim Law is to prevent the testator from interfering by Will with the course of

See Tyabji, Mohammedan Law, pp. 791-92.

Ameer Ali Vol. I, p. 569
B.R.Verma’s Commentary on Mohammedan Law (In India, Pakistan and Bangladesh); 17th Edn.
2009 pp. 488-489; Mutloob Husain v. Kalawati, AIR 1933 All 934; Bayabai v. Bayabai , AIR
1942 Bom. 328
See Ameer Ali, T.L.L., p. 438, Tahir Mahmood’s Muslim Law of India, 2nd Edn., p. 231; Sukunat
Bibi v. Shaikh Warris Ali (1874) 22 WR 400; Sita Ram Sah v. Bibi Aisha Khatoon, 1987 PLJR
248.
237
devolution of property among his heirs according to law although he may give a
specified portion, as much as a third, to a stranger. It safeguards against a
breach of ties among the kindred.50 It is intended to prevent the showing of
favouritism to any heir to the prejudice of the others, and thus defeating the
policy of the Quranic injunctions as to the division of heritage according to fixed
principles.51

A Muslim is not entitled to dispose of his property (which would otherwise

devolve on his heirs under Muslim Law) by Will in favour of a person who is not a
heir, in excess of one-third except in the following cases:

1) Where, subject to the provisions of any law for the time being in force,
such excess is permitted by a valid custom;

2) Where there are no heirs of the testator;

3) Where the heirs existing at the time of the testator’s death, consent to
such bequest after his death;

4) Where the only heir is the husband or the wife and the bequest of such
excess does not affect his or her share.52

It has also been suggested that the influence of Roman law has also
contributed to the recognition of this rule.53

All bequests including those to pious purposes as also to an executor for

his remuneration will be only subject to this rule.54

The object of this rule is only to protect the rights of the heirs. Where there
are no heirs and when all the heirs agree and give their consent, the one-third
limit may be exceeded.55

50
Khajoorunnissa v. Rowshan Jahan, I.L.R. 2 Cal. 184.
51
Abdul Rahamn v. Uthumansa, AIR 1925 Mad. 997 at p. 1003
52 B.R.Verma’s Commentary on Mohammedan Law (In India, Pakistan and Bangladesh); 17th Edn.
2009 pp. 491-492.
53
Aga Mahumad v. Koolsum Bibi, 25 Cal 9.
54
See Allah Baksh v. Md. Umar, AIR 1929 Lah 444; Rani Khajooroonissa v. Mussammat Rousian
Jehan, (1876) 3 Ind App 291.
55 See Tahir Mahmood’s The Muslim Law of India, 2nd Edn., p. 231, Hedaya, p. 676.

238
(i) Application of the One-third Rule

Where a number of bequests have been given under a Will to various

persons, which on the aggregate exceed one-third the bequests abate ratably.

The Ithna Asharis do not accept the principle of ratable abatement.

According to them the earlier legacies in point of time will prevail over the latter
until the one-third limit is exhausted.56

(ii) For Pious Purposes

Gifts for pious purposes are of different kinds. Gifts for pious purposes
ordained by the Quran are given priority over gifts not so recognized. However,
even a gift ordained by the Quran can be valid only to the extent of one-third of
the net assets.57 If the bequest exceeds the legal third, and the heirs refuse their
consent, the bequests abate rateably.

Gifts for pious purposes not ordained by the Quran come next. Where gifts
of this kind are made under a Will, they shall be given effect to in the order of
priority as given under the Will.

Bequests for purposes ordained by Quran are known as Faraiz or

obligatory charities, e.g., a bequest for the performance of Haj on behalf of the
deceased; zakat; gifts byway of expiator, etc.

Gifts that are recommended but are not obligatory are known as Wajibat
Examples of this kind are bequest for charity on the day of breaking of the fast;
building a mosque, etc.

The third class of bequests are called Nowafil and they are voluntary and
pious gifts but are not recommended by Quran. Building a bridge or an inn for
travelers are examples of this kind.58

Of the three classes, bequests of the first class take precedence over
bequests of the second and the third class, and bequests of the second class
take precedence over bequests of the third class.

56 Tahir Mahmood’s The Muslim Law of India, 2ad Edn., 231.

57 Badrat Islam v. Ali Baqar, 16 Lah 782, Hedaya, 766; Baillie, 636-637.
58 See Faizee, p. 307; Mulla, p. 119.
239
 The Shia law is different for that law does not recognize the principle of
rateable distribution. If a Will is made of the whole of the one-third in favour of a
single legatee, then no doubt that legatee may claim that he should take one-
third of the property. But where there are different objects provided for in the
document, there is no rule, by which each object should be reduced to one-third
of the amount and therefore the documents does not appear to be valid as a
Will.59

Where there is a gift to 'God’ along with gift to individuals, opinion is

divided as to the rule of implementation.60

(iii) Examples of Lawful Purposes

A wasiat is lawful if in favour of the following objects:

(a) to the poor generally or a particular body of them;

(b) to the holy shrine of Kaaba or any mosque;61

(c) to Almighty God or to spend in the way of God;

(d) for good charitable purposes generally;

(e) to fight in the way of God or in the holy warfare;

(f) for the emancipation of slaves;

(g) for the payment of debts of the testator;

(h) for the feeding of cattle;

(i) for the poor.

(iv) Examples of unlawful Purposes

A direction in a Will to ornament the testator’s tomb is void. A direction to

provide food for mourners after testator’s death and for those who may be
present at the funeral, is lawful if it is confined to a third of the estate.

Hedaya, 688; Baillie, 653-654, Mulla’s Principle of Mohammedan Law, 1968 Edn., by Justice
Hidayatullah, p. 128-129.
Wilson, Mohammedan Law, 3rd Edn., pp. 302-03.
Bailie 1, 615.
240
 A direction in a Will to provide food for three days after the testator’s death
is void.

A direction that the testator’s grave be plastered and a vault or arch

placed over it is unlawful except where such precautions are required against
ravages of wild animals.62

A pious gift which is an attempt to give under colour of a religious gift, a

legacy to an heir without the consent of the other heirs is void.63

4. Net Assets

The net assets are ascertained after payment of the funeral expenses of
the deceased, his debts, etc.

To take a concrete illustration, Omar dies leaving Rs. 3,500 as his gross
assets. His funeral costs Rs. 100 and his debts amount to Rs. 400; the balance is
Rs. 3,000. Hence the bequeathable third amounts to Rs. 1,000 and he cannot
dispose of more than that amount by Will.64

In determining the bequests exceed the bequeathable third, (i) bequests

that are void for some reason other than because they are in excess of
bequeathable third are not taken into account; (ii) where the bequest is of the
usufruct, its capital value must be determined and that value adopted.

In a case,65 it was held that in the case of a Muslim, whose testamentary

power only extended to one-third of the estate, the two-thirds claimed adversely
to the Will by the heirs could not be effected by the terms of the Will or by the
effect of probate.

5. Capacity to Make a Will

Perfect intellect and freedom in a testator are indispensable requisites to
the validity of a bequest.66

See Ameer Ali, T.L.L., p. 468.

Rani Khajoorinnissa v. Rowshan Jehan, 2 Cal 184.
See Tahir Mahmood’s Muslim Law of India, 2nd Edn., p. 229.
Mirza Kurratulein v. Nawab Nuzhat-ud-Daula, (1905) 32 LA 244
Bailee, II, 1958 Edn., p. 232; See also Sita Ram Sah v. Bibi Aisha Khatoon, 1987 PLJR 248.
241
 All are competent to make a Will except minors and lunatics. Both males
and females are competent to make a Will.67

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 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 under the Indian Guardianship and Wards Act, 1890, the Act provides that
the age of majority shall be deemed to have been attained on the minor
completing the age twenty one years.

The Indian Majority Act, 1875 extends to whole of India (sec. 1), and
applies to every person domiciled in India (sec. 3).68

Under Hanafi Law an infant under the age of puberty does not possess
the capacity for making a disposition of his property by Will. But a Will made by a
minor becomes effective ab initio upon his confirming or ratifying the same after
attaining majority. If there is no ratification after becoming major, the bequest
would not be lawful.69

There is no provision of law to deprive a person condemned to death for

an offence of testamentary capacity. A soldier engaged in active service and a
person far away from his property can validly dispose of by Will.

The Shafei School would recognise a Will even by a minor provided the
purpose is meritorious.70

(i) Sound Disposing Mind

As a general rule it may be stated that the principles of Mohammedan Law

with regard to the disposing capacity of persons are analogous to the principles
recognised by English law.

T. Mahmood, Muslim Law in India, 2nd Edn., p. 227.

Mulla’s Principle of Mohammedan Law; by M. Hidayatullah, 19th Edn., 2004, p. 100.
Ameer Ali, T.L.L., p. 457; Verma, Mohammedan Law, 3rd Edn., 394; Bailee, I, 627; Hedaya, p.
673.
Hedaya, p. 673.
242
 There are various causes of loss of disposing capacity.

The Will of an idiot would be void.

Mental imbecility arising from advanced illness, age or like cause may
destroy the testamentary power.

A temporary loss of such capacity may be caused by drinking, drugging,

illness, etc.

Undue influence exercised over a weak mind may also lead to the same
effect.71

(ii) Sane Mind

The testator must be sane at the time of making the Will.72

A Will made by a person who is insane at the time of making it, will not
become valid by his subsequent recovery.73

When the Will is made at the time the testator is sane, it is rendered
invalid by his subsequent insanity till death; however, when the madness had not
lasted over six months, the bequest will not be void.74

(Hi) Fraud or Undue influence

A Will may be vitiated by fraud or undue influence. The testator cannot be

said to have a sound disposing mind if subject to undue pressure practised on
him.

(iv) By Pardanashin Woman

The courts exercise great care and circumspection in admitting a Will by

pardanashin woman. It is incumbent on the propounder of the Will to satisfy the
Court that the transaction was explained to the lady and that she knew what she
was doing.

Ameer Ali, T.L.L., p. 444.

Bailee, I, p. 62.
Bailee, I, p. 727.
Ameer Ali, T.L.L., p. 443: Ameer Ali, Mohammedan Law, p. 574.
243
 In Ram Bali v. Mst. Kishore Kuer,75 it was pointed out that there is no need
to prove that the lady testator executed under independent advice.

(v) Suicide

A Will made by a person after he has taken poison or done any other act
towards the commission of suicide is not valid under Shia Law.76

Where, however, a person first makes a Will and then takes poison, the
Will is valid though he contemplated suicide at the time of making the Will.77

(vi) Insolvent

An insolvent is competent to make a Will. But debts have priority over

legacies and if his property is adequate only for payment of his debts, the
bequest would not be lawful unless the creditors relinquish their claims.78

6. Doctrine of Consent

If there are no heirs, testamentary power can be exercised over the entire
property of the testator.79

While the rule is that a Muslim can bequeath only one-third of his net
assets, a bequest in excess of the one-third is rendered valid by the consent of
the heirs whose rights are infringed thereby;80 or where there are no heirs at all.81

The consent of the heirs may be express or inferred from conduct or

implied.82

AIR 1937 Pat 362.

Mulla, section 115. Note—There is no express provision in Hanafi Law.
Mazhar Hussain v. Bodha Bibi (Shia case), 21 All 91; Bailee, II, p. 232; Tayabji, section 578.
Bailee, I, p. 627; Hedaya, Ch. 1, p. 673.
Tahir Mahmood, The Muslim Law of India, 2nd Edn., p. 232.
Yasin Imambhai Shaikh v. Hajarabi, AIR 1986 Bom 357: (1986) 1 Bom CR 5557: (1986) 2 Civil
LJ 47.
Abdul Karim v. Abdul Qayum, 28 All 324; Nazir Ali v. Sughra Bibi, 1 Lah 302; see Tayabji,
section 579A.
Khatoon v. Ma Mya, AIR 1936 Rang 448; see T. Mahmood’s Muslim Law of India, 2nd Edn., p.
229; Mahomed Hussain v. Aishabai, AIR 1935 Bom 84; see also Daulatram v. Abdul Kayum,
91902) 26 Bom 497; Sharifa Bibi v. Ghuam Mohd, 15 Mad 43; Faqir Md. v. Hasan Khan, 16 Luck
93; Bahajbhari v. Khatun, 1921 Sind 177.

244
(i) Delay, Implied Consent

Where a Muslim testator left behind his only heir, his daughter and the
daughter failed to challenge the Will long after the testator’s death, it was
presumed that she had impliedly consented to the bequest.83

The burden to establish consent lies on the person who claims under the
Will.84

However, consent cannot be inferred from silence.85 The burden of proof

of consent is on beneficiary.86

If the heirs do not consent, then the two-thirds of the net assets shall go to
the heirs according to their shares, which the testator cannot enlarge or reduce,
nor can he restrict the enjoyment of their shares.87

Further, a bequest void for other reasons is not cured by consent of

heirs.88

(ii) Consent after Death of Testator

The consent of heirs must be given after the death of the testator.89
Consent given before the testator’s death may be acquiesced in by silence after
the death and thus have the effect of consent after death.90

Thus, Muslim Law has not given unlimited testamentary powers which are
subject to twofold restrictions. It is with the object of not leaving the heirs

Haider Begum v. Ahmed Agha, (1987) 1 All RC 315.

Yasin Imambhai Shaikh v. Hajarabi, AIR 1986 Bom 357; (1986) 1 Bom CR 557; (1986) 2 Civil
LJ 47.
Izzul v. Chairman, ILR 1956 Nag 501; AIR 1957 Nag 84: 1956 Nag LJ 339.
Yasin Imambhai Shaikh v. Hajarabi, AIR 1986 Bom 357; (1986) 1 Bom CR 557; (1986) 2 Civil
LJ 47.
Jeewa v. Yacoob, 6, Rang 542.
Abdul Karim v. Abdul Qayum, 23 All 324; Nazir Ali v. Sugbra Bibi, 1 Lah 302.
Bafatun v. Vilaiti, 30 Cal 683; ohd. Adil Khan v. Batul, 9IC 748 (749) (Chamier, J.C.).
Sarifa Bibi v. Gulam Mohomed, (1892) 16 Mad 43; Characom Vittal v. Vaka Pudiakkal, 2 MHCR
350; Nazir Ali v. Sughra Bibi, 1 Lah 302.
245
destitute and of preventing the showing of favouritism to one heir to the prejudice
of others.91

• A testamentary disposition is binding upon the heirs where the bequest

does not exceed the legal one-third.

• It is made to a non-heir.

• A bequest in excess of one-third may be validated by the consent of the

heirs.

(iii) Repudiation of Consent

The consent, once given cannot be lawfully withdrawn. The heir's consent
given during the last illness of the testator is irrevocable, because the heirs is
supposed to have acquired the right then.92

About application of property of the deceased Muslim Al-Sirajiyyah says,

“There belong to the property of a person deceased four successive duties are to
be performed by the Qazi the first, his funeral ceremony and burial without
superfluity of expense yet without deficiency: next the discharge of his just debts
from the whole of his remaining effects: then, the payment of his legacies out of a
third of what remains after his debts are paid: and lastly, the distribution of the
residue among his successors, according to the Divine Book, to the Traditions
and to the Assent of the learned.” Add to it M. Sautarya quoted by Ameer Ali, that
the power of testamentary disposition should not be exercised to the injury of the
lawful heirs.

• In case of Bequest to Heirs:

The other important limitation to the exercise of testamentary power by a

Muslim is that which relates to the legatee, The bequest to a person entitled to
succeed as heir to the prejudice of the other heirs is void in Mohammedan Law.
The testamentary freedom was intended to be exercised exclusively with a view

Matloob Hassan v. Kalawati, AIR 1933 All 934; Bayabai v. Bayabai, AIR 1942 Bom 328; Abdul
Rahman v. Uthumansa, AIR 1925 Mad 997, Haider Begam v. Ahmed Agha, (1987) 1 All RC 315,
Narunnisa v. Shek Abdul Hamid, AIR 1987 Ram 222; ELR 1986 Kar4207:1987 (1) Kar LJ 143.
Ameer Ali: M.L.T., p. 593; see Mahabir Prasad v. Mustafa Hussain, 7, Luck 246 (260).
246
to compensate for deficiencies and merit in a future state, and not for the
purpose of favouring one heir at the expense of another in a manner contrary on
the Book of Allah which would be unlawful. An unfair distribution would be an
injury to the other heirs and induce a breach of ties of kindred.93

Any trick or contrivance in the state of a religious bequest, but really to

benefit one single heir, will not be recognized as valid.94

However, a bequest in favour of an heir may be validated if the other heirs

give their consent. If only some of the heirs assent, it may bind their shares
only.95

In order that such consent may be valid, the consenting heir must be
adult, sane and his consent must be free and voluntary.96

The insolvency of the heir does not invalidate his consent.97

Such consent given by the other heirs will cure only the bar to a bequest in
favour of an heir, arising as a result of the existence of the other heirs. Any other
conditions repugnant to Muslim Law are not cured by such consent, e.g., a
condition not to alienate the property bequeathed absolutely.98

The court held that for bequest to one heir, the consent of other heirs is
qg
necessary.

See T. Mahmood, Muslim Law, 2nd Edn., p. 229; Abdul Rehman v. Uthumansa, AIR 1925 Mad
997; Bailee: I, 625: Hed. 621; see also Fahmida v. Jafri, 30 All 153; Amrit Bibi (Mst) v. Mustafa,
46 All 28; Mohammad Junaid v. Aulia Bibi, (1920) 42 All 497.
Rani Khajoorunnisa v. Rowshan Jahan, (1876) 2 Cal 184 (PC).
Salayjee v. Fatima, 1 Rang 60 (PC): AIR 1922 PC 391.
Ameer Ali, T.L.L., 462; Hed 682; Ranee v. Khujoorconissa v. Mst. Roushan Jehan, (1876) 3 Ind
App 291: 2 Cal 184 (PC); Gulam Mohammad v. Gulam Hussain, AIR 1932 PC 81:54 All 93 (PC);
Mohd. Ismail v. Hidayatunnisa, 3 All 723; Hayutuddin v. (Mst.) Rahiman, AIR 1935 Sind 73;
Bafatun v. Vilaiti Khanum, 30 Cal 683; Ahmad Asmal v. Bai Bibi, (1916) 41 Bom 377; Mahram
v. Birkat, 12 Lah 286; Jannat (Mst.) v. Rahmat Din, AIR 1934 Lah 427; Matloob Hasan v. (Mst.)
Kalawati, AIR 1933 All 934; Bayabai v. Bayabai, AIR 1942 Bom 328 (2); Abdul Latif v. Abdul
Qayum, AIR 1934 PC 188; Anar Ali v. Omer Ali, AIR 1951 Cal.
See Tyabji, section 578; Aziz-un-nissa v. Chiene, 42 Ali 523.
Abdul Karim v. Abdul Qayum, 28 All 324; Nazir Ali v. Sughra Bibi, 1 Lah 302; Nawazish Ali
Khan v. Ali Raza Khan, AIR 1948 PC 134.
Sujathi Bi v. Fathima Bi, AIR 2000 Mad 484.
247
1. A bequest in favour of an heir would be an injury to the other heirs as it
would reduce their share and would consequently induce a breach of the
ties of kindred.100

2. When a man bequests his whole estate, having no heirs, the bequest
takes effect, and there is no occasion for any assent on the part of
“beitool-mal” or “public treasury”.101

3. A bequest to heir is not valid unless the other heirs consent to the bequest
after the death of the testator. Any single heir may consent so as to find
his own share.102

4. “The policy of the Muslim Law appears to be to prevent the testator

interfering by Will with the course of the devolution of property according
to law among his heirs, although he may give a specific portion, as much
as a third, to a stranger.103

(iv) When Consent to be Given

According to Sunni law, consent must be given after the death of the
testator. Consent given during life-time is of no legal effect. Under Shia law the
consent may be given either before or after the death of the testator. Consent of
the heirs means consent of those persons who are heirs of the testator at the
time of his death not the consent of those persons who are presumptive or would
be heirs. A consent given under undue influence, fraud, coercion or
misrepresentation is no consent at all and it would not be binding on the person
so consenting. So a consent be free and voluntary and not tainted or blemish. In
a case,104 it is said that law does not recognize any interest expectant on the
death of another. Law does not believe in ”spes successions” and further a right
by birth is unknown to Muslim law.

HEDAYA-671
BAELLDE-625
Mulla—Principles of Mohammedan Law (16th Edn.) p. 117.
Fayzee.—Cases in the Mohammedan Law of India and Pakistan, P. 308.
Kurrutulam Bahadur v. Nuzbatuddowala Abbas Hossein Khan, ILR 33 Cal 116

248
 The consent of the heirs only removes a bar; the title of the legatee is
derived only from the testator. It cannot be treated as a gift de nova from the
heirs.105

The Ithna Asharis do not recognize the bar of bequest to an heir, provided
that it does not infringe the one-third rule. Tayabji cites at page 789, the passage
in Quran 1, 177: “the righteous man gives his wealth for the love of Him first of
all, to his kinsfolk, then to orphans, the needy, the wayfarer, and those who
ask.”106

But the bequest must be in favour of all.107

• When Heirship Ascertained :

Whether a person is an heir or not must be considered with reference to

his position at the time of the testator’s death.108 Therefore when a person leaves
a legacy at a time when he has no children and afterwards children are born to
him and he dies, the legacy to the brother is valid, for in the presence of the
children he has no right of inheritance. Similarly, if a person makes a bequest for
his wife and afterwards divorces her, the legacy would be valid, for she is not an
heir at the time of the testator’s death; the marriage relation having been an heir
at the time of the testator’s death; the marriage relation having been dissolved,
the right of inheritance also falls to the ground.109

A Muslim dies leaving a son, father and paternal grandfather. A bequest to

paternal grandfather will be valid without consent of the son or father as paternal
grandfather is not an heir.110

Bailee II, p. 233.

See Mohammad Ata Husain v. Hussain Ali Khan, 32 IC 516: AIR 1944 Oudh 139; Hayatuddin v.
(Mst.) Rahiman, AIR 1935 Sind 73.
See Fahmida Khanam v. Jafii Khanam, 30 All 153; Amrit Bibi v. Mustafa, 46 All 28 though not
equally; Hussaini Begam v. Muhammed, 490 All 547.
Bailee, p. 672; Hedaya, p. 672.
Radd-ul Muktar, VP 644; Ameer Ali: T.L.L., pp 462-3; see also the illustrations to section 117;
Mulla: Mohammedan Law, 15th Edn., Bailee n, 1958, p. 234; Bafatun v. Vilaiti, 30 Cal 683 (686);
Abdul Bari v. Nasir Ahmed, AIR 1933 Oudh 142.
Ahmad Asmal v. Bai Bibi, (1916) 41 Bom 377.
249
 A Muslim dies leaving a son, a widow and a grandson by a predeceased
son. A bequest to the grandson will be valid to the extent of one-third without the
consent of the son and widow.111

The fact that the heir who gave his consent for a legacy was an insolvent
at the time, will not invalidate his consent.112

(v) Consent by Guardian

If the heirs are minors at the time of testator’s death, consent must be
given only after attaining majority. A guardian is not competent to give consent
on behalf of a minor.113

Bequest to Heirs and Non-Heirs:

A gift to an heir for life followed by a gift to a stranger will fail completely.
The prior gift fails because it would interfere with the distribution among heirs
according to law, and giving effect to the latter by ousting the heirs would wholly
defeat the testator’s intentions.114

Where there are legacies in favour of heirs and non-heirs, the legacy in
favour of heirs would be invalid unless consented to by other heirs. The legacy in
favour of the non-heirs will be valid to the extent of one-third of the testator’s
estate.115

The remaining two-thirds will be divided among all the heirs including any
who alone might have given his assent.116 .

• Rule in Shia Law:

In Shia law it is open to a Muslim to Will away one-third of his estate either
to a stranger or any of the heirs, without the consent of the other heirs.

Abdul Bari v. Nasir Ahmad, AIR 1933 Oudh 142.

Imadaaul Rahman, v. Purbi Din, 13 Luck 174; Aziz-un-nissa v. Chiene, 42 All 593, Kunhi
Avullah v. Kunhi Avula, AIR 1964 Ker 201, Yasin Imambhai Shaikh v. Hazrabi, AIR 1986 Bom
357:1986(1) Bom CR 557.
Ghulam v. Ghulam, 54 All 93 (PC): 62 MLJ 371: 36 CWN 310.
Fatima Bibi v. Ariff, 9 CLR 66; Anarali Tarafdar v. Omar Ali, AIR 1951 Cal 7: 55 CWN 33.
Muhamad Junaid v. Aulia Bibi, 42 All 497; Chutta Veetal v. Ponamichand, AIR 1945 Mad 81,
Mohammad Ata Husaion v. Hussain Ali Khan, AIR 1944 Oudh 139.
116
Ghulam Jannat v. Rahmat Din, AIR 1934 Lah 427; 15 Lah 889.

250
 The consent of heirs where it is necessary may be given either before or
after the death of the testator.117

An heir who has repudiated a legacy cannot subsequently consent.118

IV. THE LEGATEE : COMPETENCE AND JOINT LEGATEES

A bequest may be made by a Muslim for the benefit of any person capable
of holding property,”119 or an institution,120 or a religious or charitable object.

1 Bequest to an Unborn Person

A bequest to a person not in existence at the time when bequest is made,

is void; unless it is for a child, who, at the time (when the bequest is made) is in
the womb of its mother, and is born within six months after.121

The legatee is required by the Fatwa-i-Alamgiri and the Hedaya to be in

existence at the time of the bequest, and not at the time of testator’s death. The
Sharaiu’l-lslam states similarly that :a bequest in favour of a foetus hereafter to
be conceived by a particular woman, or to whomsoever may hereafter be found
of the children of such man, is altogether null and void.122

But a child in its mother’s womb and subsequently born alive within six
months of the date of the taking effect of the bequest is presumed to be in
existence.123

It must be noted that the legatee must be in existence according to strict

Muslim Law even at the time of making the Will, but that rule may not be
enforced in modern times.

Husaim Begum v. Muhammad, 49 All 547.

Mahabir v. Mustafa, AIR 1937 PC 174.
Bail. II. 230; 625 (635).
Bail. 1625 (624).
Hed. 674; Bail. I. 617.
The Personal Law of Muslim in India and Pakistan, by M. Tayabji, 4th Edn., p. 781; See Bail. I.
616 (626); Bail. H. 244, (par. 2);
T. Mahmood, Muslim Law of India, 2nd Edn., p. 228; Bailee, II, 1958, p. 246; see Abdul Cadur v.
Turner, 9 Bom 158.
251
 A Wasiat in favour of A (a living person) and his unborn children and
descendants in perpetuity is valid according to all schools of Muslim Law.

2. Legacy to the Murderer of the Testator

A bequest becomes void if the legatee (who has attained puberty, and is
not unsound of mind) causes the death of the testator, whether the bequest is
made before, or after, the act causing death. Linder Hanafi law a bequest is also
void if the legatee has unintentionally cause the death of the testator. The Ithna
Asharis restrict the exclusion only to intentional homicide.124 Abu Hanifa and
Imam Muhammad hold, (Abu Yusuf dissenting) that such a bequest may be
validated by the consent of the heirs, and that if the legatee is the sole heir, the
bequest to him is valid.125

But though a legacy to one’s murderer is unlawful, a bequest in favour of

his parents, children or any other ascendants or descendants would be lawful.126

3 Bequest to Infidel
Mohammedan Law does not prohibit a bequest in favour of a Zimmee, i.e.
a non-Muslim living under the protection of a Muslim government; whereas a
bequest in favour of a hostile non-Muslim is not valid. In Hedaya, p. 672, the
passage from Koran is cited, “Ye are not prohibited from acts of benevolence
towards those who subject themselves to you and remain from battle and
contentions.” But Shafeis do not treat such a bequest is valid.127

A bequest made in the way of God, or disclosing on the part of the

testator, a general charitable intention is lawful and must be expended on good
objects, and for the benefit of the poor. A bequest to beggars by a Muslim will be
payable only to those of his own religion.128

See Ameer Ali, T.L.L., pp. 459-60, section 587.

Bail. I. 615-16; The Personal Law of Muslim in India and Pakistan, by M. Tayabji, 4th Edn., p. 782
Ameer Ali, T.L.L., p. 461
Ameer Ali, T.L.L., p. 471: Bailee, II, 1958, p. 244.
Bailee, H, 1958, p. 247.
252
 But a Muslim cannot make a Will for building a Hindu temple, or Jewish
synagogue or a Christian church. A bequest for sinful purposes is not valid.129

4. Consent of Legatee

The express or implied assent of the legatee after the death of the
testator, is necessary to complete the legatee’s title to the bequest; he may
disclaim the bequest, provided that he has not, at any time after the death of the
testator, already assented to it. A legatee may under Shiite law validly accept
part of the bequest, and disclaim the remainder. A legatee, who survives the
testator, but dies without assenting to or disclaiming the legacy is under Hanafi
texts presumed to have impliedly assented to the legacy, whereas, under Shiite
texts the right to assent or disclaim, devolves on his heirs.130

A condition attached to a gift otherwise absolute in its terms, e.g.,

restraining alienation or on the death of the legatee it shall pass to other persons,
is void and cannot take effect.131

Acceptance may be inferred from conduct, as giving effect to a bequest, or

purchasing something on account of the heirs, or paying debts; in which cases
the acceptance takes effect as if made in express terms. Where the defendant
refused to pay calls on shares on the ground (amongst others) that he had never
accepted their transfer to him, Lord Lindley said: “No one can be made the
beneficial owner of shares against his will. Any attempt to make him so can be
defeated by disclaimer." “Nothing enters the proprietorship of man without his
option (consent) except inherited property.”

Roman Law required “extraneous heirs” to accept a bequest in order to

perfect it: with heirs of the same family, acceptance was presumed unless the
bequest was rejected. English law does not require acceptance by the legatee to
vest the property in the donee. But when he obtains knowledge of the transfer,
he may repudiate it.132

Bailee, Digest of Mohammedan Law, 1953. Part II, p. 230; Tayabji, 4th Edn., p. 570.
Bail. II. 230, The Personal Law of Muslim in India and Pakistan, by M. Tayabji, 4th Edn., p. 783.
See Abdul Karim v. Abdul Qayum, 28 All 324.
The Personal Law of Muslim in India and Pakistan, by M. Tayabji, 4th Edn., p. 784.

253
5. Lapse

Unless a different intention is indicated (1) under Hanafi law a bequest to

a legatee who pre-deceases the testator lapses, and becomes part of residue.133

(2) The Shias view death as a substitute for acceptance and so if the legatee
dies before testator retracting the legacy, it will go to the heirs of the legatee;134 if
he leaves no heirs, the bequest lapses.

6. Joint Legatee

A bequest jointly to several named or otherwise ascertained legatees, is

unless a different intention is indicated, divided equally amongst all the legatees.
Where a legacy is given to a class of persons described generally, they rank
collectively as a single legatee in competition with such other individuals or
classes as are legatees together or in common with themselves.

Under Hanafi Law the whole of a bequest made to several legatees

collectively, of whom one or more predeceases the testator, is taken by the
surviving legatees: unless (1) there is any indication that each legatee is to take
only a definite par of the bequest, or (2) at the time when the bequest is made, ali
the legatees are in being, competent to take and so described as to be capable
of identification: and they fulfill the conditions on which the bequest is made. In
either case each surviving legatee takes only such a part of the bequest as he
would have taken if all the legatees had survived the testator.135

V. FORM OF A MUSLIM WILL

No formalities are prescribed by Muslim Law for a Will.

A Muslim Will may be oral or in writing. It must be a declaration of an

intention to bequeath.136

Mulla, section 121.

Bailee n, 1958, p. 247; Tayabji, section 590.
The Personal Law of Muslim in India and Pakistan, by M. Tayabji, 4th Edn., p. 785.
Tayabji, section 593; Mulla, section 116; Mariambai v. Hasam Ahmad, 24 Bom 8; Digest of
Mohammedan Law (1958), p. 229.

254
 If oral, it must, be made in the presence of at least two adult male Muslims
as witnesses. Even a gesture, if the intention is sufficiently clear, would be
enough.137

A Muslim Will is operative if (1) disposition is clearly intended to take effect

after death of the testator; and (2) the intention to give is clearly expressed.138

A Muslim will does not require writing or any formalities by way of

execution or attestation; but the genuineness and the terms, especially where an
oral Will is set at must be proved with utmost precision.139

A deed by which property is transferred to another person, but providing

that the latter shall obtain possession only after the death of the executant will
take effect as a Will, and not as gift because there is no delivery of immediate
possession. Mere postponement of actual enjoyment of property need not
necessarily make the disposition testamentary.140

A letter by the testator shortly before his death, giving directions regarding
the disposition of the property, would constitute a valid Will. The intentions of the

testator must be clear and capable of being ascertained.141

Execution or attestation is not regarded as absolutely necessary and the

requirement is not mandatory in Muslim Law.142

The name given to the document is immaterial, if otherwise it bears the

substantial characteristics of a Will and the intention of testator is sufficiently
ascertained.143

Ameer Ali, T.L.L., p. 440; T. Mahmood, Muslim Law of India, 2nd Edn., p. 226; Abdul Hamid v.
Mohd. Yunus, (1940) 1 MLJ 173; AIR 1940 Mad 153.
Jaswant v. Jet Singhji, 3 MIA 245 (258).
Baboo Beer Pertab v. Maharajah Rajender, 9 WR 15 (PC); Venkat Raop v. Namdeo, 1931 PC
285; 62 MU 28; see Izhar Fatima Bibi v. (Mt.) Ansar Fatma Bibi, AIR 1939 All 348.
See Nawab Amjad Aly Khan v. Mohamdi Begum, 11 MIA 517.
Mazbar Hussain v. Bodha Bibi, 21 All 91 (PC); Sarabai v. Md. Cassum, 43 Bom 641; Abdul
Hameed v. Md. Yoonus, (1940) 1 MLJ 273: AIR 1940 Mad 153.
Faizee, p. 305; Aba Satar (in re©, 7 Bom LR 558, Aulia Bibi v. Allauddin, (1906) 28 All 715;
Ramji Lai v. Ahmed Ali, AIR 1952 MB 56.
Ishri Singh v. Baldeo, 11IA 135: 10 Cal 792 (PC); Md. Altaf v. Ahmad Eaksh, (1876) 25 WR 21
(PC).
255
 The words “I have adopted my nephew to succeed to my property” do not
constitute a Will.144

Where the disposition is immediate and irrevocable, it is a gift and not a

Will. But there must be delivery of possession.145

The legal declaration of the testator must be gathered by reading of all the
documents.146

Instructions to be given to the lawyer for disposing of the property might

operate; as Will.147

There must be utmost precision as to circumstances of time and place

where an oral Will is set up.148

It has been stated that for Will no particular form is required. The creator
of document clearly expressing manner of devolution of property is a Will.149

In a case an issue of oral Will was raised. There was no evidence by any
witness to this effect that the oral Will was made except the plaintiff and his
mother’s evidence which does not inspire confidence because that is interested
evidence.150

As regards witnesses it is laid down:

“Oh ye who believe! Let there be witnesses between you when death
draweth nigh unto one of you, at the time of bequest-two witnesses, just men
from among you, or two others from another tribe, in case ye are campaigning in
the land and the calamity of death befall you......... ”151

Jaswant v. Jet Singhji, 3 MIA 245 (258).

Mahommad v. Fakhr Jahan, 44 All 301 (PC); Aulia Bibi v. Allauddin, (1906) 28 All 715.
Ahronee v. Ahmad, AIR 1935 Bom 533.
Sarabai v. Mohammad Cassum, 43 Bom 641.
Venkat Rao v. Namdeo, AIR 1931 PC 285; Mahabir Prasad v. Mustafa, AIR 1937 PC 174; Izhar
Fatima Bibi v. Ansar Fatima Bibi, AIR 1939 All 348.
In Abdul Manan Khan v. Mirtuza Khan, AIR 1991 Pat 154 referring to Roshan Singh v. Zila Sing,
AIR 1988 SC 881:1988 (3) SCR 1106: 1088 (1) SCALE 391
In Ibrahim ShahMohamed v. Noor Ahmed Noor Mohd., AIR 1984 Guj 126, Law of Will; by
Gopalakrishnan, 7th Edn.
Quran V, 106
256
 This verse has evidently been interpreted as containing merely a
recommendation, and not a rule of perfect obligation; for no mention is made of
witnesses e.g. in the Fatawa ‘Alamgiri or Hedaya, when the constituents of Will
are discussed;152 again the books on Wasaia or Wills in these works are divided
into ten and eight chapters, respectively, and only the last of them make any
mention of witnesses. According to Fatawa ‘Alamgiri “if out of two witnesses one
says that the deceased made this one and executed on Thursday, and the other
one gives evidence that the testator made him an executor on Friday, then such
evidence will be accepted: the is contained in Muhit ;153 this shows at any rate

that the two witnesses need not be simultaneously present.

As to Shiite law though the essential of a Will are mentioned, no mention

is made of witnesses, yet it is also stated that “Wills or bequests are established
in law by the testimony of two witnesses who Muslims and just persons, or in
case of necessity, when to just Muslim witnesses are not to be had, by that of
two ziminis or infidel witnesses.” Further, in order to understand the effect of this
passage it must be borne in mind that, unlike the Indian Evidence Act, s. 134
(which provides that “no particular number of witnesses shall in any case be
required for the proof of any fact,”) Muslim law specifies the number of witnesses
required for all civil cases.154

VI. SUBJECT OF WILL

The general rule is the same in Muslim Law that the property owned by
the testator at the time of his death and answering the description contained in
the Will, will pass to the legatee. The bequest does not take effect until after the
death of the testator, and therefore, the condition of validity is his being
possessed of his property at the time of his decease, and capable of being
transferred.155

Bail, I. 613 (623), 614 (624).

Fatawa ‘Alamgiri, Wasaia, ch. X, ad med.
Hedaya, 353, The Personal Law of Muslim in India and Pakistan, by M. Tayabji, 4th Edn., p. 789
See Hedaya, BL, II, Ch. 11, p. 679; Faizee, 2nd Edn., p. 307; Mulla, sections 122, 123; Tayabji, 4th
Edn., section 691, p. 792.
257
 Accordingly, if a person who is poor bequeaths to another the third of his
property and afterwards becomes rich, the legatee is in that case entitled to a
third of his estate, whatever the amount; the low is also the same in case the
testator, being rich at the time of making the Will, should' afterwards become
poor, and again acquire wealth.156

Likewise if a person bequeathed “a fourth of any goats” to Z, and it

happened either he had no goats or that such as he had were destroyed before
his death, the bequest would be null and void. However, if he should afterwards
acquire goats, so as to be able to leave some at his death, one-fourth of them
would go as a legacy to Z.157

A Muslim Will must be construed primarily in accordance with the rules

laid down in that law, with due regard to the social habits and manners and
custom of the parties, the language of the Will and the surrounding
circumstances.158

1. Gift of Future Property

There cannot be a bequest of future property, e.g., the fruits of a palm tree
in the coming year.159

The future income of property directed to be paid annually is not valid. The
subject of the gift must be actually in existence at the time of gift.160

2. Life Estates and Contingent Interests

Life estates and contingent interests of English Law are not known to
Muslim Law. The corpus of the thing must be given under the Will.

But the ‘use’ or the fruit or produce of a thing may be bequeathed to a

person for life or for a specified period. The ownership of the thing may vest in
another living person. If the ownership is not specifically disposed of, it will
belong to the testator’s heirs subject to the rights of the usufructuary.

156 See Hedaya, BL, II, Ch. 11, p. 679; Faizee, 2nd Edn., p. 407; Mulla, sections 122, 123; Tahir
Mahmood, Muslim Law of India, 2nd Edn., p. 233.
157 Hedaya, BL, II, Ch. 11, p. 679; see Wilson’s Mohammedan Law, 3rd Edn., p. 312.
158 Faizee, 2nd Edn., p. 312.
159 Bailee, p. 516.
160 Amtul Nissa v. Mir Nuruddin,22 Bom 491. However, see Duresh v. State of Madras, AIR 1957
Mad 577—A right to receive a fixed. See also Tyabji, 4th Edn., section 375, p. 328.

258
 The legatee of the ‘use’ of house is only entitled to reside in it and not to
let it. The legatee of the “produce” of a house is only entitled to let it, and not to
reside in it.161

The usufruct may be given to one person and the corpus to another.162

Where a bequest is made for life, the gift will be construed as a gift with a
condition and the condition is void, with the result that the legatee will take it
absolutely.163

In Eassamally v. Currimbhai,164 Shia Muslim made a gift to A for life and in

the event of A’s death without leaving any male issue to B. It was held that the
gift to B was void as being contingent. In one case the Privy Council left the
question open. There it was again a Shia Muslim’s gift to his wife for life and after
her death to each of his children as may be living at her death. Though it was
held that the gift to the children was contingent, the issue of its validity was left
open. There need not have been this hesitancy by the Privy Council as the issue
is beyond doubt.165 For, in a later Bombay case166 more or less on the same
lines, it was held that the gift was contingent and clearly void. In 1948 also the
Privy Council dealt in a case with contingent life estates left by a Shia testator
The Court dealt with the case on other points but neither party raise the validity of
the contingent bequests in Muslim law.167 The other point raised was on power of
appointment in Muslim law which the Court held was void.

Though a conditional or contingent gift cannot be created, yet a

conditional or contingent Will can be made. Its operation will depend upon the
happening of the contingency. If the contingency does not happen, it will not be
given effect to. A man may say, “Should I die of such malady” or “Should I not
return from the pilgrimage to the Holy Shrine I leave”, or “I bequeath so and so in
case anything happens to me on my voyage to Mecca", the Wills in these cases

161
See Wilson’s Muhammedan Law, 3rd Edn., p. 314.
162
See Nawzish Ali Khan v. Ali Raza Khan, AIR 1948 PC 134: (1948) 17 IA 62; Mehraj Begum v.
Din Mahomed, AIR 1937 Lah 669; T. Mahmood: Muslim Law of India, 2nd Edn. P. 230.
163
See Mulla, section 164, citing Naizemuddin v. Abdul Gafur, 13 Bom 264: 17 Bom 1 (PC).
Mohammed Ibrahim v. Abdul Latif, 37 Bom 447; Mohammed Shah v. Official Trustee, 36 Cal
431; see also Abdul Karim v. Abdul Qayum, 28 All 324.
164
36 Bom 214 (257-258).
165
Sadik Hussain v. Hashim Ali, AIR 1916 PC 271: 38 All 627:43 IA 212.
166
Ashraf Ali v. Mohammad Ali, (1946) 48 Bom LR 642: AIR 1947 Bom 122.
167
Nawazish Ali Khan v. Ali Raza Khan, (1948) 75 IA 62: AR 1948 PC 134.
259
would not take effect if the contingencies apprehended do not happen whether
the Will be oral or in writing. However, if such a Will is in writing and has been
handed over to a third person and the same was allowed to be retained by the
third person even after the contingency became impossible, the Will would be
treated as not revoked.168

3. Power of Appointment in Mohammedan Law

The Privy Council in Nawazish AH Khan v. Ali Raza Khan,169 has held that
the English doctrine of power of appointment is inconsistent with Muslim Law.

4. Rule of Ademption, if Applies

If the property bequeathed is of general description and at testator’s

death, there is no property answering the description, the Court is guided by
context and circumstances, and will ascertain the intention of the testator
whether such an article or articles should be purchased from out of the general
assets and given to the legatee.

5. Rule Against Perpetuity

It is now well-settled that Mohammedan Law does not favour perpetuity

except in the case of Waqf which is governed by the Waqf Validating Act VI of
1913.

6. Bequests of the Fraction

Where a testator bequeaths a specified fraction of an article of a specified

kind belonging to him, the legatee will be entitled to the fraction of the bulk as it
was at the date of the Will. The fact that the total number of articles got reduced
subsequently and prior to his death does not affect the operation of the legacy,
provided sufficient quantity of articles exist and the one-third rule is not infringed.

A testator bequeaths “a fourth of my goats”. He had forty goats at the time

of making the Will. He died leaving only twenty goats. The legatee will get ten
goats after the death of the testator provided that the entire value of the testator’s
net assets is at least three times than that of ten goats.

168
Ameer Ali, T.L.L., p. 441.
169
AIR 1948 PC 134: (1948) 75 IA 62.
260
 The above rule will not apply where the articles bequeathed are not
homogeneous. If the testator died leaving less of the articles, the legatee can
have the specified fraction of the articles belonging to the testator at the time of
his death.

Thus, where a gift is “a fourth of my cloths" and clothes are of different

kinds, some of which get destroyed before the testator’s death, the legatee will
have a fourth of what remained with the testator at the time of his death.

VII REVOCATION OF WILL

1. By Testator

A bequest is a contract discretionary and reversible on the part of the

testator as long as he lives.170

A bequest may be revoked—

(a) by an express oral declaration,

(b) by a written declaration,

(c) by an act showing an intention to revoke, as by destroying the subject

matter or by transferring it by sale or gift to another person (i.e., by
implication)171 by any act which ignores or contradicts the legacy.172

A thing is destroyed when its character is so completely changed that it

would become a different object.

A bar of iron is bequeathed. If it is made into a sword, the thing

bequeathed is destroyed. If he made a bequest of grain, and should afterwards
grind it into flour or meal or should then convert it into leaven or bread, this would
be revocation of the bequest. Likewise where a quantity of oil is bequeathed and
it is afterwards mixed with a better quantity so as to remove the possibility of
separating it, it would Lie equal to retraction of bequest.

Bailie, Digest of M.L., (1958) Part n, p. 231.

See Mulla, sections 128,129.
Bailie, Digest of M.L., (1958) Part n, p. 237.

261
 But a bequest of bread is not revoked by making the bread into-crumbs.

A piece of ground is bequeathed. If the testator afterwards erects a

building on it, the bequest of ground is revoked. In all such cases, the paramount
considerations must be the real intention of the testator and no hard and fast rule
can be laid down.173

A bequest of the same subject to another person revokes an earlier Will,

but a bequest under the same Will of the same property does not have the effect
of revocation. The two bequests may be construed as one and the legatees will
take jointly, in the absence of any other indication of intention.174

In Miran Baksh v. Mahir Bibi,175 it was posited that a declaration in a court

of law by the testator of his intention of revoking a Will he had already made, was
sufficient revocation of the Will, it was not necessary that he should destroy the
Will or make another Will.

The fact that the testator denied that he ever made a bequest, according
to some authorities, operates as revocation and excludes evidence that the
bequest was in fact made.

2. Conditional Revocation

A revocation made with a view of making or reviving some other

disposition will take effect only if such other disposition is effectually made or
revived... It must appear that the testator considered the substitution of some
valid disposition as part of the act of revocation at the time when the act was
done. The mere revocation of a will followed by a subsequent ineffectual
disposition will not set up the original Will if the two acts are not so connected
that it can be said that the substitution of an effectual disposition was a condition
of the revocation of the original Will. The point in such cases is not that a revoked
Will is set up again if a subsequent disposition is ineffectual, but the original Will
is not itself intended to be revoked unless or until an effectual disposition of the

See the Judgment of Chagla, J., in Ashraf Ali Cassan Ali v. Mohammed Ali, (1946) 48 Bom LR
642 (652).
See Mulla, section 130.
6 PWR 1916: 31IC 693 (694).
262
property is made. The real question is whether the revocation is absolute or
conditional; if it is absolute it takes effect although founded on a mistake on the
part of a testator.176

VIII INTERPRETATION OF WILLS

l
,1. Part VI of the Indian Succession Act, 1925— which constitutes nearly a
third of the whole Act177 and contains, inter alia, detailed rules for the
construction of Wills178—does not apply to the Muslims, who are specifically
exempted from its application.179

The Will of a Muslim is, therefore, to be construed primarily in accordance

with th|e rules of Muslim law, provided that the Will itself is governed by Muslim

law. The Muslim law of testamentary succession does, now, apply to the Wilis of
the following:

(a) all Cutchi Memons,

(b) all Mapillas, and

(c) all other Muslims to whom section 3 of the Shariat Act, 1973 applies.180

2. Some treatises of Muslim law contain meticulous rules for the

construction of ambiguous Wills. Many of these are relevant even in the modern
age and also in our country. Some basic rules which the courts in India may
employ in construing Wills are:181

(i) subject to the legal rules relating to the validity of a Will, the intention of
the legator shall, as far as possible, be given effect;

Mohd. AdB Khan v. Batul, 9IC 748 (Chamier, C.J.).

It runs into 134 out of a total 392 sections in the Act.
Chapter VI (section 74-111)—“The Muslim Law of India” by Dr. Tahir Mahmood, 2nd Edn.,
1982.
Indian Succession Act, 1925, section 58.
See Chapter 2 of Dr. Tahir Mahmood’s “Muslim Law of India,” 2nd Edn., 1982.
Some of these rales will be found in Baillie, Digest, I, 636-37; II238-41.
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(ii) where the terms of a Wifi are too ambiguous to be interpreted by the court
with precision, the legator’s heirs may be asked to determine their
meaning;

(iii) where the subject of a Will, being a thing or article, does not exist when
the legator dies, the Court shall interpret the Will in order to ascertain if the
legator intended that the said thing be procured and given to the legatee;

(iv) Where a specified fraction of things or articles form the subject of a Will:

(a) if the things or articles are of a homogeneous nature—the

bequeathed fraction will be ascertained with reference to their
position at the time when the Will was made; but

(b) if the things or articles are not of a homogeneous nature—the

bequeathed fraction will be ascertained with reference to their
position at the time when the Will becomes operative (i.e., when the
legator dies).”182

IX EXECUTORS VESTING IN THEIR DUTIES

In regard to a Will executed by a Muslim, the estate always vests in the

executor. If he accepts the office of executor the vesting dates from the date of
testator’s death. The executor has the power to alienate the estate in case he
deems it necessary for the purpose of administering the estate. He can indent on
all other powers of an executor under the Probate and Administration Act, 1881
and the relevant corresponding section of the Indian Succession Act.

No Letters of Administration are needed for establishing any right to a

Muslim’s property, in cases where that person had died intestate [Vide section.
212(2), Indian Succession Act, 1925]. But Letters of Administration are
necessary in respect of debts due to the estate of the deceased. The executor of
the Will may also be a non— Muslim.183 It is the Indian Succession Act, 1925 that

Muslim Law India, Tahir Mahmood, 1988, p. 232-233.

See 33 Bom LR1056.

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postulate the powers and duties of executors. These apply in Muslim Will in so
far as they are applicable to him.

A Will made or executed under Muslim Law does not require a probate
and can be admitted in evidence if proved duly. Even for establishing any rights
in the property of a Muslim intestate, the heirs need not obtain the letters of
administration except when they have to deal with the debts due to the estate of
the instate. Thus where a suit is brought to recover a debt due to the deceased,
the court will not pass a decree except on production of a probate or letters of
administration or a succession certificate. These rules are applicable only in
cases where the recovery of the debts is sought with the help of the court and not
otherwise.184

X. DEATH-BED TRANSACTIONS

1. Significance and Concept of Death-Illness

1. Also governed by the law of Wills are certain transactions entered into by
a person who is suffering from marz-ul-maut (death-illness). Most
important among these are gifts made during such illness (donation mortis
causa) which, too, can be paid along with the legacies left, by the
deceased, only out of the ‘net estate' after the payment of statutory
expenses (mentioned above) and debts.185

2. If the following conditions are fulfilled, an illness Will in Muslim law be

regarded as death-illness:186

(i) the person suffering from it must have an apprehension that death
is fast approaching due to that illness;

(ii) this apprehension must in some degree be subjective;

(iii) there must be some external indication of the illness regarded as

fatal;

184 Mulla’s Principle of Mohammedan Law, 16th Edn., by Justice M. Hidayatullah, p. 40-41.
185 See Fazal Ahmed v. Rahim Bibi, (1918) 40 All 238.
186 See Hedaya, 684-85.

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 (iv) the illness must not last for such a long time as would make the
patient used to it; and

(v) the person Should eventually die.

3. The courts in India have held as follows :

(i) it is the patient himself subjective apprehension of death in whose

mind is decisive; apprehensions of others that he is dying is
immaterial187;

(ii) there must be on the mind of the person concerned pressure of the
sense of the imminence of death188;

(iii) an illness lasting for too long or a lingering illness cannot be death-
illness;189 more specifically, an illness which has lasted for about
one year may not be regarded as death-illness;190

(iv) patient’s inability to attend to his professional work may indicate

death-illness191 it cannot be a conclusive proof of it;

(v) the following may be regarded as death-illness:

(a) pneumonia,192
(b) galloping consumption,193
(c) rapid consumption,194

(vi) the following may not be regarded as death-illness:

(a) lingering consumption;195

(b) paralysis;196
(c) sudden bursting of a blood vessel;197

187
Safia Begum v. Abdul Razak, (1944) 47 BLR 381.
188
I.G. Arif v. Saiboo, (1907) 34 LA 167.
189
Sarabai v. Rabiabai, (1906) 30 Bom 537.
190
Fatima v. Ahmed baksh, (1903) 31 Cal 319.
191
Mumtaz v. Wasiunnisa, AIR 1948 Oudh 301; Tufail Ahmed v. Umme Khatoon, AIR 1938 All
145.
192
Massood Ali Khan v. Ashfaq Mohammad Khan, AIR 1957 All 395.
193
Musi Imran v. Ibne Hasan, AIR 1933 All 341.
194
Rashid Karamalu v. Sherbano, (1907) 31 Bom 264.
195
Johar Ali v. Nasimunnisa, AIR 1937 Cal 500.
196
Sarabai v. Rabiabai, (1906) 30 Bom 537.
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 (d) albuminuria for one year or more;198
(e) asthma;199

(vii) in a recent case where an octogenarian Muslim died after a serious

illness lasting for four days on the last of which he made a gift, it
was held that the gift was made during marz-ul-maut.200

2. Gifts

1. A gift made during death illness is considered by law as a gift-cum-Wiil

and is, therefore, governed simultaneously by—

(a) the requirements for the validity of gift,201 as well as

(b) those for the validity of a Will.

2. Where a gift is made during death-illness and possession of the gifted

property is not delivered (while the case is not covered by any of the
exceptional circumstances in which delivery of possession is not required,
it altogether fails.

3. At the same time, the gift must not violate the rule of ‘bequeathable third’ if
it does exceed the ‘bequeathable third’ only the consent of the donor’s
heirs can validate the excess.

4. Under Hanafi, Shafei and Ismaili laws—If the donee is an heir of the
donor, consent of the latter’s heirs would be required to validate the gift
(even if it is within the (‘bequeathable third’); only in an Ithna Ashari case
their consent will not be necessary. This position of a donation mortis
causa under the laws of the various schools has been explained by the
Indian Courts in several cases.202

LG. Arif v. Saiboo, (1907) 34IA 167.

Fatima v. Ahmed baksh, (1903) 31 Cal 319.
Zanrao v. SHer Mohd., AIR 1934 Pesh 91.
Abdul Hafiz v. Sahib Bi, AIR 1975 Bom 165.
See Chapter 11 of Dr. Tahir Mahmood’s “Muslim Law of India,” 2nd Edn., 1982.
For Hanafi Law see: Sakina Begum v. Hafizuddin, AIR 1941 Lah 58; Wazir Ian v. Altaf Ali,
(1887) 9 All 357, For Ithna Ashari Law, see Khurshed Hussein v. Fayaz, (1914) 36 All 289. For
Ismaili Law, see Sharif v. Saiaboo, AIR 1936 Mad 432.
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3. Acknowledgement of Debts

1. If the deceased has made, during his death-illness, acknowledgment of a

debt in favour of an heir, such an acknowledgment is not admissible as
proof of the debt; the heir concerned cannot rely on this acknowledgment
only and he has to prove it by other satisfactory evidence.203

2. If the deceased has made, during his death-illness, acknowledgment of a

debt in favour of a non-heir, its payment has to be deferred till the
following debts are paid:

(i) debts proved otherwise than by the acknowledgement of the

deceased; and

(ii) debts acknowledged by the deceased while he was not suffering

from death-illness.

Such a debt Will, however, be paid before the legatees and heirs of the
deceased are given their due (provided that the acknowledged creditor is not an
heir of the deceased).

XI. DISTINCTION BETWEEN WILL AND GIFT

Since Will and “gift” both are the modes of transfer of property from one
person to another, it becomes pertinent to look through the differences between
these two modes of transfer of property.

1. Gift is a transfer among utter owes and delivery of possession is ‘sine qua
non’ to the donee. In Will, having testamentary, it will take effect after the
death of the testator only.

2. There is no restriction as to property and persons whatsoever. The whole

of property may be given and even the heir may be a donee in a gift
whereas in Will the testator has no unlimited power of testamentary,
disposition.

The Hedaya, 436-48; 484-85.

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3. In gift, the subject matter must be in existence as the delivery of
possession is immediate. In Will the subject-matter, it is sufficient, if it
exists at the death of the testator.

4. After the gift is made and accepted by the donee, it can be revoked by a
formal decree of court only, whereas, Will can be revoked by the testator
any time before his death.

5. Doctrine of “Musha” is applicable upon gift (Hiba) but not in the case of
Will.

6. Gift is the Will and ‘pleasure’ of the giver of the gift. The essentials of gift
are (1) ‘ijab’, (2) ‘qabul’ and (3) “qabza”. Whereas in Will consent of the
heirs plays an essential role as to the nature of Will as regards to property
and persons.

XII. DIFFERENCE BETWEEN SUNNI LAW AND SHIA LAW

In India “Sunni Law” is so predominant that a case in the court shall be

decided according to ‘Sunni law’ unless the litigant gives a declaration that he
belongs to Shia sect and is governed by Shia Law. Thus it is pertinent to speak
about difference in Sunni Law and Shia Law as regards to Will:

1. In Sunni law, consent of heir is essential for any portion of property to be

given in bequest to a heir and properly in bequest to a non-heir if it is more
than third in Shia Law a bequest up to 1/3 can be made without consent of
other heirs but if it is more than 1/3 then the consent of other heirs is
necessary.204

2. In Sunni Law a person must be in existence at the death of the testator

[(1884) 9 Born 158] but a bequest may be made to a child in the womb
provided he is born within six months. But in Shia Law the bequest to bud
in womb is valid even if born within 10 months.205

(1927) 49 All 547.

Charnio Bi v. Muhammad Riaz, (1956) Lab 213.
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3. In Sunni Law a legatee who causes a death of the testator intentionally or
unintentionally, bequest in his favour is valid whereas in Shia Law the
legatee is disentitled.206

4. In Sunni Law, the consent is required of the heirs after the death of the
testator. In Shia Law consent is required and it can be before death or
after the death of the testator.

5. In Sunni Law, doctrine of “rateable distribution” is applicable, it is not

recognized in Shia Law.

6. In Sunni Law, a bequest of life estate is not recognized but it is recognized

in Shia Law.

• In Sunni Law, a Will of a person committing suicide is valid, whereas in

Shia Law a person who has done any act towards the commission of
suicide is not valid, but Will made prior to commission of some such act is
valid.207

• Predeceased legatee makes the legacy lapse under Sunni Law but in Shia
Law it passes to the heirs.

XIII. CONCLUSION

The peculiarity with a Muslim Will is that while a Muslim has absolute
powers to alienate “inter vivos”, his power to bequeath away is not co­
extensive with his power of alienation “inter vivos”. It is subject to limitation as
regards to person (heir and non-heir) and limitation as regards the property
(rule of one-third, according to the tradition and regulated by Holy Quran) and
further regulated by the consent of heirs and to when it is to be given and how
it is to be given (when the Will exceeds one-third).

Refer Tyabji, 5S7, Wilson section 478, Fitzgerald, 170

Mazhar Hussain Khan v. Budha Bibi, 21 All 19
270