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Assignment
Wills Under
on Family
Muslim Law
Law- Muslim
GUIDED BY PROF.
Law
DR KAHKASHAN
Submitted by Mohd
Abid Hussain Ansari Concept of Wills Under Muslim Law
Y. DANYAL
Acknowledgement
Writing the Acknowledgement for the project in the subject
of Family Law is a fairly simple undertaking for anyone who
has attended even a single class of Prof. K.D Mam. The
clarity, the command and the humour she brings into every
class is infectious, making any student believe that there
can be no easier subject that the Family Law and that
anyone can master it, provided she gives the subject the
respect and recognition that Mam herself gives the subject.
Furthermore I would like to thank all those people who gave
the subject their time and wrote books which I eventually
referred. In this matter, I would particularly like to thank
Khalid Rashid- Muslim Jurisprudence
Dr.Mohammad Nazmi- Mohammadan Law
Fyzee: Outlines of Mohammadan Law 4th edn, 365 etc.,
whose book was precise and the largest reference in
this work.
Without the contribution of the above said people I could
have never completed this project.
Mohd. Abid Hussain Ansari
B.A.LL.B (Hons) 4th Semester
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Table of Contents
1. Introduction
..3
2. Introduction to Family Law Muslim
Law5
3. Introduction Wills (Wasiyat-Nama)
..6
4. The Importance of Islamic
Will..
8
5. Origin of the law of
Will
9
6. General Rule No Formality is
required...10
7. Requisites of a valid
Will
12
8. Testator and his
competence
............12
9. Legatee and his
Competence.....
..............13
10.
Subject of will and its
validity
.15
11.
Testamentary power and its
limits.16
12.
Exception to the general
rule..................
17
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Introduction
For a beatific and beautiful beginning, I begin my assignment with BISMILLAH. Infinite
glory and thanks be to Allahu taala who bestowed upon us all kinds of favours and honoured us
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Restrictions
Muslims:
on
testamentary
capacity
of
Islam recognizes the indispensible necessity that a man should have the power of making
bequests. This however does not imply that he has the power to encroach upon the share of his
legal heirs as stated in the holy Quran. Quoting Ameer Ali, the Prophet has declared that power
2 Section 3 of the Indian Succession Act, 1925
3 Kaniz Zohra v. Deputy Director, Consolidation, 1968 R.D. 9.
4 Hamiltons Hedaya (Grady ed.), 670.
5 A Will is defined in Fatwa-i-Alamgiri to be the conferment of a right of property in a specific
thing, or in a profit or advantage, in the manner of gratuity to take effect on the death of the
testator. According to Sharai-ul-Islam an authoritative book on Shia Law, making one person of
another as proprietor of the corpus or its proceeds of his property after ones own death is called
will.-Beirut ed., p.258.
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2.
Elements of will:
Will is a conferment of right to ones property on another.
This conferment of right is to take effect after the death of the testator.
The significance and meaning of the word conferment in the definition is that the conferment
must be complete and should not be a mere intention to confer the right of property. The second
6 2 Str.H.L., 453 (M. Sautayra)
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Who is a Minor?
Who is a minor that can be understood by two ways:15 A.M.Khan v. Mirtuza Khan AIR 1991 Pat.154
16 AIR 1991 Pat. 155
17 Ibid.
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18 21 All.91
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Contingent bequest:
Alternative bequest:
Conditional bequest:
Bequest of life-estate:
22 Babu Lal v. Ghansham Das, AIR 1992 All 205; Abdul Karim v. Abdul Qayum, (1906) 28 All 342.
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In Fukan v. Mumtaz Begum24 the Rajasthan High Court had confirmed the well-settled principle
that a bequest in favour of an heir, even to the extent of 1/3 rd was not valid under the Hanafi Law,
unless the other heirs consented it, expressly or impliedly after the death of his testator.
In Abdul Manan Khan v. Murtaza Khan25, The Patna High Court held that a bequest in favour
of an heir is invalid unless the other heirs consent to it after the testators death. A provision has
been made in law to obtain consent of the heirs after the death of the testator; if any reason of a
will more than 1/3rd of the properties is sought to be bequeathed to an outsider and to any extent
to an heir. Such consent can be inferred from conduct. Acts of attestation of will be legatees and
taking of possession by them of property bequeathed could signify such consent.
In case of Khajoorunissa v. Raushen Jehan26, The court clears the difference between a gift and
a will. It was held that the policy of Mohammedan Law appears to prevent a testator from
inferring with the course of devolution of property according to law among his heirs.
Custom
Among Eunuchs community of Muslim Guru-Chela system was prevalent. As per their customs
a Muslim could not have willed more than 1/3rd of his property without the consent of his chela to
an outsider, the will in respect of entire property of a Guru, in favour of an outsider could not be
held to be valid. Under this custom a chela alone is the heir of his Guru. Though the Muslim Law
does not debar a Muslim from executing a will of his property in favour of any one including the
persons in whose favor the will is to be executed would not be contrary to this law. The Court
held such custom does not violate the aforesaid law. It only limits the choice of legatee without
effecting the right to execute the will and such a custom was not either against public policy or
the Muslim Law.28
Consent
27 Husaini Begum v. Mohammad Mehdi, (1927) 49 All.547.
28 Illyas etc. v. Badshah etc. AIR 1996 M.P.634.
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Accordingly, the attestation of will by the heirs and acquiescence in the legatee taking
possession of the property has been held to be sufficient consent. Similarly, when the heirs did
not question the will for three quarters of a century and the legatee had taken the allowances
month after month, it was held that the conduct of the heirs amount to consent.
their consent the shares of those consenting will be bound, and the legacy in excess is payable
out of the consenting heirs share.
Consent of an insolvent heir. - The consent of heirs who are insolvent has
been held effective in validating a bequest.
Consent
not rescindable.
rescinded.
Revocation of will
Muslim Law confers on a testator unfettered right to revoke his will. He may revoke it at any
time. The revocation may be either express or implied.
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example- A makes a testamentary disposition of land in favour of B. At any time after making
the dispositions, he says the land that I gave to B is for X. These words will amount to
express revocation of the bequest. In interpretation of the wills, the intention of the testators is
of paramount importance. Thus, if the testator bequeaths by will the same property to two or
more persons they will share the property equally.
Implied revocation:
testator subsequently transfer the subject-matter of will or destroys it, or completely alters its
nature or makes such additions to it without which the property cannot be delivered, etc.
where A bequeaths a land to B and subsequently builds a house over it, the bequest stands
revoked. Similarly, where the subject matter of bequest is a house and the testator sells it, or
makes a gift of it, the revocation is complete by implication.
Subsequent will:
same property to someone else, the prior bequest is revoked. But a subsequent bequest though
it be of the same property, to another person in the same will does not operate as a revocation
of the prior bequest, and the property will be divided between the two legatees in equal
shares.
II.
III.
The Shia Law does not accept the principle of rateable reduction. The rule of Shia School is that,
of the several bequests, the first in time prevails until the bequesthable third is exhausted; and for
the purpose of this rule where several bequests are to be found in a will, priority is determined by
the order in which they are mentioned.
For example: if a testator leaves 1/3rd of his estate to A, 1/4th to B and 1/6th to C and the heirs do
not consent to these bequests. A takes 1/3 rd of the estate and B and C will take nothing, but if
instead of 1/3rd, 1/12th had been left to A, then A would have taken 1/12 th and B 1/4th, but C who
was mentioned last would get nothing, as the legal third is exhausted between A and B.
Exception:
There is however, an exception to this rule. If a man bequest 1/3 rd of his estate to two different
persons in the same will, the later bequest prevails. For instance, a testator by will gives 1/3 rd of
his estate to Hussain and later he says that 1/3rd be given to Dolly, here Dolly gets 1/3rd to the
exclusion of Hussain.
In the absence of heirs and as against the right of the state to take by escheat, the testator
may bequeath the whole of his property by will. Where a testator dies leaving only a wife or
husband and no blood relations, if he is a man, he is entitled to bequeath 5/6 th of his estate and if
a woman to bequeath 2/3rd of her estate.
Shiite law on this point has a different rule. Here, if the deceased leaves only a husband or wife
surviving, the survivor is entitled to take his a her Quranic Share in the estate, amounting to
1/2nd or 1/4th as the case may be, but not entitled to take the residue of the estate by return.
Moreover, the 1/2nd or 1/3rd Quranic Share is determined with reference to the net estate, i.e.,
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Lapsing of Legacy:
Under Sunni Law if the legatee dies before the death of the testator the legacy lapses and forms
part of the testators estate.
Under Shia Law in the above case, the legacy does not lapse but passes to the heir of the
legatee, unless it is revoked by the testator. It will lapse, only if the legatee has no heir.
Bequest of any portion to an heir without the consent of others heirs is invalid.
A bequest to the extent of 1/3rd can be made to an heir without the consent of others heirs.
It is valid even if born in the longest period of gestation, i.e., 10 months.
Only intentional murder disentitles a legatee.
Heirs consent may be given before or after the death.
Rateable distribution is not recognized under Shia Law.
It is valid only when the will is made before taking any step towards the act of suicide.
The legacy does not lapse but passes to the heirs of the legatee. It reverts to the testator
when the legatee dies without leaving any heir.
Acceptance of the legacy during the testators life time is lawful.
Conclusion
A will is a legal document through which a person declares his/her wishes and instructions
on how his/her property and possessions should be disposed of, distributed or given away
after his/her death.
Allahu taala says in the Glorious Quran al-kerim:
Prescribed for you when death approaches (any) of you if he leaves wealth (is that he should
make) a bequest for the parents and near relatives according to what is acceptable a duty
upon the righteous. [Surah Al-Baqarah 2:180]
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Bibliography
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