NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

2012 - 2013

Family Law II
PROJECT
ON

‘WILLS UNDER MUSLIM LAW’

Submitted by-
Soujanyaa Manna
628
6th SEMESTER B.A., LL.B. (Hon’s.)
Wills under Muslim Law Family Law II

Table of Contents
1. Acknowledgement............................................................................................. 3

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

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

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

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

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

(ii) Legatee and his competence ......................................................................... 9
(iii) Subject of will and its validity ..................................................................... 12
(iv) Testamentary power and its limits ............................................................. 13
(a) Limitation as regards the Legatees- ....................................................... 13
(b) Limitation as regards the Disposable Property- ..................................... 15
6. Doctrine of Consent: ....................................................................................... 16

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

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

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

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

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

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

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1. Acknowledgement

“What you see, you forget,

What you hear, you remember,

What you do, you understand”

I would like to take this opportunity to offer my acknowledgements to all those who
helped me during the course of this project. I thank profusely Namitha Ma’m, my
teacher and guide of Family Law II, without whose support and supervision this project
would not have been a success. Indeed, the experience has been insightful and most
often, thought provoking. A deeper understanding of such an important topic has
enriched our knowledge.

I also wish to express our gratitude to the all library staff for their patience and
cooperation in helping us find the apt research material and being generous with the
due dates. My thanks further extend to all my other sources of information and of
course, to my friends and seniors, without whose insightful thoughts and relevant
criticisms, the project would not have been complete.

Last but not the least, I wish to thank my parents and the almighty for their help and
constant support through various means.

I also hope that I will be provided with similar opportunities to work on such other
interesting topics in the future.

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2. Introduction - Nature of Will:

A will is generally an instrument by which a person makes disposition of his property to
take effect after his death, and which is in its own nature ambulatory and revocable during his
life. In other words ‘will’ includes codicil and every writing making a voluntary posthumous
disposition of property. A will can be changed by the executant as and when he so likes.
Tyabji defines will as “Conferment of right of property in a specific thing or in a profit or
advantage or in a gratuity, to take effect on the death of the testator.” According to Section
2(h) of the Indian Succession Act, 1925, “Will (wasiyat pl. wasaya) is the legal declaration of
the intention of a testator with respect to his property which he desires to be carried into
effect after his death.” So the elements of will are as follows:

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

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

The Arabic equivalent of the word ‘will’ is wasiyat. Generally wasiyat means ‘will’ but it has
also other meanings. It may signify a moral exhortation, specific legacy or the capacity of the
executor, executorship. A document embodying the will is called wasiyatnama.

The two divergent tendencies found in Islam affect the Muhammadan law of wills
greatly. In pre-Islamic times, a man had an almost unlimited power of disposing of his
property but as the Koran laid down clear and specific rules for the distribution of the
inheritance it was thought undesirable for man to interfere with God’s ordinances. Hence, it is
right to say that Mohammedan sentiment is in most cases opposed to the disposition of
property by will.2 On the other hand, Bukhari reports a tradition laying down that a Muslim
who possesses property should not sleep even for two nights unless he has made a written
will.3 This tradition points in reality to another tendency that it is ethically incumbent upon a
man to make moral exhortations and give spiritual directions to his close relatives and
incidentally to indicate within the limits laid down by the law what should be done regarding
his property. Illustrations of wills which are mainly ethical may be found in abundance in
ancient literature.

1
The significance and meaning of the word ‘conferment’ in relation to the definition is that the conferment
must be complete, and should not be a mere intention to confer a right of property.
2
Fitzgerald, 167; Fat. Law §369, 373.
3
Muhammad Ali, Manual of Hadith (Lahore, 1994), 334, No. 1

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

“A will from a Mussulman’s point of view is a divine institution, since its exercise is
regulated by the Koran. It offers to the testator the means of correcting to a certain extent the
law of succession, and of enabling some of those relatives who are excluded from inheritance
to obtain a share in his goods, and of recognizing the services rendered to him by a stranger,
or the devotion to him in his last moments. At the same time the Prophet has declared that the
power should not be exercised to the injury of the lawful heirs.”4

Leading Authority on Mohammedan law of Wills- The leading authority on the subject
of wills is the Hedaya (Guide) composed by Shaikh Burhan-ud-Din Ali who flourished in the
twelfth century. He belonged to the Hanafi School, and it is the doctrine of that school that he
has primarily recorded in his work. The Fatwa Alamgiri is another work of authority, and it
has been accepted by the Courts in India as well as by the Privy Council as of greater
authority than the Hedaya. It was compiled in the seventeenth century by command of the
emperor Aurangzeb Alamgir. The law there expounded is again the law of the Hanafi sect, as
the Mohammedan sovereigns of India all belonged to that sect.

Mohammedan Law of Will and The Indian Succession Act, 1925- The provisions of the
Indian Succession Act, 1925 do not apply to Mohammedans excepting those relating to
probate and letters of Administration, etc. Therefore, in India a Mohammedan Will is
governed by the Mohammedan law modified by the provisions of the Succession Act, 1925,
to the extent applicable to them. Such a will will be subject to the provisions of the Shariat
Act, 1937. But a Muslim cannot claim immunity if his marriage was held under the Special
Marriage Act, 1954. In such cases, the provisions of the Indian Succession Act, 1925 shall be
applicable even though the will was made before or after the marriage.

3. Origin of the law of Will:

The nucleus of the law of wills is, by common consent, to be found in a tradition of the
Prophet, reported by Bukhari5:

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

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Sad ibn Abi Waqqas said: ‘The Messenger of God used to visit me at Mecca, in the year
of the Farewell pilgrimage, on account of (my) illness which had become very severe. So I
said, “My illness has become very severe and I have much property and there is none to
inherit from me but a daughter, shall I then bequeath two-third of my property as a charity?”
He said, “No”. I said, “Half?” He said, “No”. Then he said: “bequeath one-third and one
third is much, for if thou leavest thy heirs free from want, it is better than thou leavest them in
want, begging of (other) people; and thou dost not spend anything seeking thereby the
pleasure of Allah but thou art rewarded for it, even for that which thou puttest into the mouth
of thy wife.”

Thus the policy of the Muhammadan law is to permit a man to give away the whole of
his property by gift inter vivos, but to prevent him, except for one-third of his estate, from
interfering by will with the course of the devolution of property according to the laws of
inheritance. It is uncertain how the limit of one-third was fixed, but it has been suggested that
Roman law may have influenced this decision.6

4. Formalities of a Will:
As a general rule no legal formality is required for making a will. All that is required is that
there must be a clear intention to make it. A will may be made either orally or in writing. If it
is made orally, no particular form of verbal declaration is necessary as long as the intention of
the testator is sufficiently ascertained. The burden of establishing an oral will is always a very
heavy one on those who assert it and it must be proved with the utmost precision, and with
every circumstance of time and place.7 The Court must be made certain that it knows what
the speaker said and must from circumstances and from the statement be able to infer for
itself that testamentary effect was intended, in addition to being satisfied of the contents of
the direction given. Thus strict proof will be required.8

If a testator is dumb he may make a bequest by signs provided that the signs are made in
such a manner as is commonly used to denote affirmation. In the case of a person whose
inability arises subsequently owing to some illness, etc. a Will made by signs will be valid
only if the testator was deprived of speech for a long time so as to make the signs habitual to

6
Saksena, Muslim Law (Abridged ed. 1938), 366
7
Venkat Rao v. Namdeo AIR 1931 P.C. 285 at p. 287
8
Mahabir Prasad v. Mustafa AIR 1937 PC 174 at p. 177; Izhar Fatima v. Ansar Bibi AIR 1939 All 348.

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him but not if the inability is recent.9 But Shafei Law makes no difference between the case
of a dumb person and of one whose inability is supervenient.10 Both can make will by signs.
The Fatwa Alamgiri says, “A sick man makes a bequest, and being unable to speak from
weakness gives a nod with his head, and it is known that he comprehends what he is about- if
his meaning be understood, and he dies without regaining the power of speech, the bequest is
lawful.”11

When a will is in writing, no specific form is laid down. It may not even be signed by the
testator or attested by witnesses.12 The reason is that a Mohammedan will is not required to
be in writing at all. Moreover the verse in the Koran regarding witnesses is considered merely
as a recommendation and is not mandatory. But it is necessary that the intention of the
testator should be clear and unequivocal for the testament to take full effect. The validity of a
will made in writing is in no way affected due to non-attestation thereof by the witnesses or
failure to prove the attestation. In the case of Mazar Husen v. Bodha Bibi13 before the Privy
Council a letter written by the testator shortly before his death and containing directions as to
the disposition of his property, was held to constitute a valid will. This principle was
followed in Abdul Hameed v. Mahomed Yoonus.14 The name of the document is immaterial.
Whatever name may be given to it like tamlik-nama (assignment) etc. if it possesses the
substantial character of a will then it will be treated as a will. 15 But where a Mohammedan
executed a document which started, “I have no son, and I have adopted my nephew to
succeed to my property and title,” it was held by the Privy Council that the document did not
operate as a will.16 Where the testatrix clearly expressed herself that after her death, the
properties will devolve upon her heirs in the manner as has been described in detail in the
document the same constituted a will and not a deed of partition especially when the
beneficiaries did not have any share in the properties of the lady executing the document
during her lifetime.17

9
Hed. 70, Durr. 408; Bail. I. 625.
10
Hed. 707.
11
Baillie, I, 625 cited in Tyabji §689, com.
12
Ranjilal v. Ahmed AIR 1952 MB 56
13
(1989) 21 All 91
14
(1940) 1 M.L.J. 273, 187 I.C. 414, (‘40) A.M. 153.
15
Saiad Kasum v. Shaista Bibi (1875) 7 N.W.P. 313; Ishri Singh v. Baldeo (1884) 11 I.A. 135, 141-143, 10 Cal.
792, 800-802.
16
Jeswant Singjee v. Jet Singjee (1844) 3 M.I.A. 245
17
Abdul Manan Khan v. Murtaza Khan AIR 1991 Pat. 155

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5. Requisites of a valid Will:

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

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

(ii) The legatee must be competent to take the legacy or bequest.
(iii) The subject of bequest must be a valid one.
(iv) The bequest must be within the limits imposed on the testamentary power of a
Muslim.

The above mentioned requisites are explained in detail as under-

(i) Testator and his competence

Every Muslim (male as well as female) who is of sound mind and not a minor may
dispose of his property by will.18 Thus only a person who has attained majority and is sane
and rational is entitled to make a will. In Abdul Manan Khan v. Murtaza Khan19 Patna
High Court held that any Mohammedan having a sound mind and not a minor may make a
valid will to dispose of the property. A bequest by a person of unsound mind cannot be
deemed valid, if he becomes of sound mind subsequently. In the converse case, a bequest
made by a person, while of sound mind, becomes invalid, if the testator is permanently
disabled by unsoundness of mind.

The age of majority as regards matters other than marriage, dower, divorce and
adoption, is now regulated by the Indian Majority Act IX of 1875. Section 3 of the Act
declares that a person shall be deemed to have attained majority when he shall have
completed the age of eighteen years. In the case, however, of a minor of whose person or
property a guardian has been appointed, or of whose property the superintendence has
been assumed by a Court of Wards, the Act provides that the age of majority shall be
deemed to have been attained on the minor completing the age of twenty-one years.

Majority under the Mohammedan Law is attained at puberty, and the presumption is
that a Muslim attains majority on the completion of the fifteenth year. According to the
Hanafi Law, a bequest by a youth under puberty, even if he is a mooharik (that is
approaching puberty) and even if he dies after puberty is unlawful. The Shia Law
recognises the validity of a will by a person who has attained the age of ten years.

18
Hedaya, 673; baillie, 627.
19
AIR 1991 Pat. 155

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According to the Shafei Law, a will made by a testator who has not attained puberty would
be valid provided it is made to a discreet and advisable purpose. But the rules are not
applicable to wills in India since the age of majority, in case of will is now governed by
the Indian Majority Act. Thus a minor cannot make a valid will but validate a will made
during minority by ratification after attained majority.20

Will of a person committing suicide- Under Sunni law, the will if a person committing
suicide is valid. Under Shia law, a will made by a person after he has taken poison, or
done any other act towards the commission of suicide, is not valid. In Mazhar Husen v.
Bodha Bibi21 the deceased first made his will, and afterwards took poison. It was held that
the will was valid, though he had contemplated suicide at the time of making the will.

A will procured by undue influence, coercion or fraud is not valid, and the courts take
great care in admitting the will of a pardanashin woman.

There is conflict of opinion as to the validity of will made by a Muslim who renounces
Islam afterwards. The Maliki School holds that apostasy annuls such a will, but according
to the Hanafis, the bequest will be effective, if it is lawful according to the sect from which
he has apostalized.

(ii) Legatee and his competence

A bequest can be made by a Muslim in favour of any person capable of holding property.
Thus sex, age, creed or religion is no bar to the taking of a bequest. No one can be made
the beneficial owner of shares against his will. Therefore, the title to the subject of bequest
can only be completed with the express or implied assent of the legatee after the death of
the testator.

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

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

the following verses of the Quran has been quoted:

“Ye are not prohibited, O believers, from acts of benevolence towards those who
subject themselves to you, and refrain from battles and contentions.”

20
Bail I, 627; hed. 673.
21
(1898) 21 All 91

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It is therefore clear that a Muslim can give his property by bequesting the same in
favour of a non-Muslim provided the non-Muslim is not hostile towards Islam.
Bequest to an infidel or refugee is also valid according to all schools. A bequest to an
apostate is invalid. The disqualification is no longer effective owing to Caste
Disability Removal Act, 1850 (Act XXI of 1850). In Shafei Law a bequest in favour
of an apostate is, according to better opinion, valid.

(c) Bequest to testator’s murder- In most systems of law, it is a rule that a murderer or a
person who abets the murder of the deceased is not entitled to legacy. Under the
Hanafi law, the rule is that the murderer is excluded from taking legacy, whether the
homicide was intentional or accidental. But a will in respect of such a person who has
caused the death of the testator can be validated if the heirs have given their consent.
According to the Sunni law, a bequest to a person who caused the death of the
testator whether intentionally or unintentionally is invalid. According to Shia law, it
is invalid if it is caused intentionally and not if accidentally or unintentionally. It is
immaterial whether the bequest is made before or after the act causing the death.
According to the Shafei law a legacy is not rendered void by the fact of the legatee
causing the death of the testator.

(d) Bequest to unborn child- The legatee must be in existence at the time of the testator’s
death. A bequest in favour of an unborn person is void22 unless such person was a
child enventure samere at the time of the will and is actually born within six months
of that date. Under the Shia law also a bequest in favour of an unborn person is
invalid, but if the legatee was in the womb at the time of the will, the bequest will be
valid if he is born in the longest period of gestation, i.e., ten lunar months.

(e) Joint Legatees- In cases in which a joint legacy is made in favour of two or more
persons, the question would be as to who would be entitled to the legacy if it fails in
respect of any of them. In such cases, if the legatee was not competent to be legatee
from the very beginning the entire legacy would go to the remaining legatees. If we
consider a situation where A makes a bequest of one-third jointly in favour of B and
C. B was dead at the time of bequest (whether by the knowledge of A or not). C could
be entitled to the entire legacy of one-third.

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

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But if the legatee was originally a competent legatee, but became disqualified later
on by failure of a condition the remaining legatees would be entitled only to their
share in the legacy and the rest would lapse and it would not occasion any accession
to the rights of others. So if A makes a bequest of one-third in favour of B and C, if
they be poor at the time of A’s death. C is rich at the time of A’s death. B is would be
entitled to only one-sixth.

If, however, the bequest is made to two or more persons clearly showing the
intention that each should be entitled to a definite share and one of them was already
dead, the remaining legatee will get only his share. Thus, if A makes a bequest of one-
third of his property in favour of B and C saying that the legacy was to be divided
between them. B was dead at that time. C would be entitled to only one-sixth.

(f) Bequest to a class- A bequest may be made in favour of a class of persons (e.g., to the
poor generally) who would jointly rank as a single legatee. The bequest may be spent,
according to Abu Hanifa and Abu Yusuf, on one poor person and according to
Mohammed on at least two persons.23 A bequest may be made to any special classes
(e.g., aparib, qarabat, ahl-i-beit, hushum quon, bunee, ahl-ul-ilam, etc). But if the
bequest is made to several persons, it will be divided equally among the legatees
irrespective of sex unless a contrary intention clearly appears.

(g) Bequest for a charitable object- A bequest for the benefit of a religious or charitable
object is valid. The only requisite is a general intention to charity, e.g., where a
bequest is made in the way of God, it is valid and the legacy must be spent on good
and pious objects. Thus a will, authorising the executor to dispose off the legacy for
such charitable purposes as he may deem proper would be valid.24 But is a bequest to
charity is made with the object of giving the property personally to the executor who
is also an heir, the bequest will be invalid without the consent of the other heirs.25

A bequest should not be opposed to Islam. Thus, a Muslim cannot lawfully make a
bequest for the building a Jewish synagogue or a Christian church; or for translating
the taurit; or injeel; or directing that so much of his property should be given to

23
Bail. I, 648.
24
Gangabai v. Thavar Mulla, (1803) 1 B.H.C.R. 70
25
Khajoorunnissa v. Rowshan Jahan, ILR 2 Cal 184.

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named person for reading the Koran over his grave, or for the construction of a vault
or arch over it; or for shrouds to Muslims; or for aiding a tyrant or an oppressor.26

(h) Lapse of legacy- Under Sunni law if the legatee dies before the death of the testator
the legacy lapses and forms part of the testator’s estate. Under Shia law in the above
case, the legacy does not lapse but passes to the heir of the legatee, unless it is
revoked by the testator. It will lapse only if the legatee has no heir.

(iii) Subject of will and its validity

Any type of property, immovable, corporeal or incorporeal may be the subject matter of
the bequest provided such property satisfies the following requisites-

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

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

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

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

future.

Alternative bequest- An alternative bequest of property, i.e., to one or failing him to the
other person is valid. The bequest to the first person if he is in existence at the time of
testator’s death will be deemed to be absolute. Hence he will take the bequest. If the first
person predeceases the testator, the second person will take the bequest.

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

happening or not happening of an uncertain event is void.

Conditional bequest- A bequest with a condition which derogates from its completeness
will take effect as if no condition was attached to it, i.e., the bequest will be valid while the
condition will be void.

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

condition attached to it and as such the bequest takes effect while the condition becomes
void, for instance, a bequest to A for life and after his death to B is in its legal effect a

26
Abdul v. Turner, ILR (1884) 9 Bom 158.

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bequest to A absolutely and B takes nothing under it. Thus a bequest of life-estate is not
recognised under Sunni law. But the same Will will take full effect under Shia law. In
such a case, what A gets is known as life-estates and what B gets is called vested
remainder. It is remainder in the sense that B gets what remains after A and it is vested in
the sense that the right of B is settled from the time the grant of A is created. The prior
view of the Bombay High Court was in favour of the recognition of life-estate, but the
subsequent decisions laid down that life-estate and vested remainder are as mush unknown
to the Shia Law as to the Sunni Law.27 This question was left undecided in a case by the
Judicial Committee.28 The view of Oudh Chief Court was that the creation of a life-estate
and a vested remainder would be permissible under the Shia Law.29

(iv) Testamentary power and its limits

The testamentary capacity of a Muslim is limited. He does not possess an unlimited power
of making disposition by will. There are two fold restrictions on the power of a Muslim to
dispose of his property by will. The two-fold restrictions are in respect of the person in
whose favour the bequest is made, and as to the extent to which he can dispose of his
property.

(a) Limitation as regards the Legatees-

The general rule, in this regard has been very clearly laid down in Ghulam
Mohammed v. Ghulam Hussain.30 It was held in this case that a bequest in favour of an
heir is not valid unless the other heirs consent to the bequest after the death of the
testator.

In Fakun v. Mst. Mumtaz Begum31 where the plaintiff (respondent) Mumtaz Begum
filed a suit for possession alleging that the land in dispute was given to her by her father
under a will and she was forcibly dispossessed by the defendant (appellant) who denied
the execution of the will and pleaded that he had been in possession after the death of
Mehrab Khan (father of Mumtaz begum) as his heir as being the son of his brother Irfan
Khan, the Rajasthan High Court had confirmed the well-settled principle that a bequest

27
Jainabai v. Sethana, 34 Bom. 172; Cassamally v. Churrimbhoy, 30 Bom. 214
28
Mohd. Raza v. Abbas Bandi, 59 I.A. 236.
29
Wahidunnissa v. Mushat Hussain 2 Luck 189
30
54 Alld. 98: 1932 P.C. 81
31
AIR 1971 Raj 149.

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in favour of an heir, even to the extent of one-third was not valid under the Hanafi Law,
unless the other heirs consented it, expressly or impliedly after the death of his testator.

In Abdul Manan Khan v. Murtaza Khan32 the Court held that a bequest in favour of
an heir is invalid unless the other heirs consent to it after the testator’s death. A provision
has been made in law to obtain consent of the heirs after the death of the testator; if in a
will more than 1/3 of the properties is sought to be bequeathed to an outsider and to any
extent to an heir. Such consent can be inferred from conduct. Acts of attestation of will
by legatee and taking of possession by them of property bequeathed could signify such
consent.

The case of Khajoorunnissa v. Raushen Jehan33 clears the difference between a gift
and a will. It was held in this case that the policy of Mohammedan law appears to
prevent a testator from interfering with the course of devolution of property according to
law among the heirs. The facts of the case were as follows:

D, a Muslim died in 1841, and his eldest son E possessed himself of all his property
by virtue of a deed of gift and will executed in the year 1839. In 1859, the widow of a
younger son, as a guardian of her infant daughter R, filed a suit to set aside both gift and
will, and to recover the property, but after the judgement was obtained she withdrew
from the suit on terms of a compromise filed therein. In 1886, R and her husband sued E,
who was represented by Khajoorunnissa, to set aside the said compromise on the ground
of minority, fraud, etc. They applied for a review of the judgement and also applied to
recover the property covered by that suit. They also claimed a share derived by her father
from his predeceased brother, a share in the right of her grandmother and a share of the
property recovered by E under the previous decisions of the Privy Council. The
compromise was set aside and therefore, the parties were restored to their original
positions. It was held by the Privy Council that the deed of gift by D purporting to give E
one-third of the property was without consideration and was unaccompanied by delivery
of possession, and was only intended to operate after D’s death. Thus it functioned as a
will. This was an evasion of Mohammedan law. The testator could not by will interfere
with the devolution of property among the heirs.

32
AIR 1991 Pat 155
33
3 I.A. 291, 307

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Whether a person is an heir or not, will be determined at the time of the testator’s
death because a person who is an heir at the time of making the will may not remain an
heir at the time of testator’s death and vice-versa. For example, A, by his will bequeaths
certain property to his property. The only relatives of the testator living at the time of the
will are a daughter and a brother. After the date of making the will a son is born to A. the
son, the daughter and the brother all survive the testator. The bequest to the brother is
valid, for though the brother was an expectant heir at the time of the will, he is not an
heir at the date of the death of the testator, for he is excluded from inheritance by the son.
If the brother and the daughter had been the sole surviving relatives, the brother would
have been one of the heirs, in which case the bequest to him could not have taken effect,
unless the daughters assented to it.

Under Shia law, a testator may give legacy to an heir as long as it does not exceed
one-third of his estate. Such a legacy is valid without the consent of the other heirs. But
if the legacy exceeds one-third, it is not valid unless the other heirs consent thereto; such
consent may be given before or after the death of the testator. But where the whole estate
is to be bequeathed to one heir and the other heirs are excluded entirely from inheritance
the bequest is void in its entirety.34

(b) Limitation as regards the Disposable Property-

The general rule with regard to the extent of property that may be disposed of by will
is that no Muslim can make a bequest of more than one-third of his net assets after
payment of funeral charges and debts. The remaining two-third must pass to the heirs of
the testator according to law. But there are two exceptions to the above-mentioned
general rule.

(1) Under the Hanafi law, a bequest of more than one-third of the net assets may be
valid, if the heirs, whose rights are infringed thereby, give consent to the bequest after
the death of the testator. In Shia law such consent validates the will whether given before
or after the testator’s death.

(2) The above rule of bequeathable one-third will not apply to a case where the testator
has no heir. The right of Government to take the estate of an heirless person will not, in

34
Husaini Begum v. Mohammad Mehdi, (1927) 49 All 547.

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any way, restrict the right of a person to make a disposition of his property, as he likes.
In other words, government is no heir to an heirless person.

Customs- A Mohammedan may dispose off his property by will even in excess of one-
third, where this is permitted by custom. Such a custom is recognised among Cutchi
Memons35 and Khojas36 and in some cases in the Punjab High Court37. Custom must be
such as has the force of law. If the applicability is excluded by any law, effect will not be
given to it. Custom is excluded by the Indian Shariat Act of 1937, the West Punjab and
N.W.F (Shariat) Acts, the Cutchi Memons Act X of 1938. Among Eunuchs community
of Muslims Guru-Chela system was prevalent according to which a Muslim could not
have willed more than one-third of his property without the consent of his chela to an
outsider, the will in respect of entire property of a Guru in favour of an outsider could not
be held to be valid. Under this custom a chela alone is the heir of his Guru. Though
Muslim law does not debar a Muslim from executing a will of his property in favour of
any one including the persons outside the community, a custom limiting the choice of a
person in whose favour the will is to be executed would not be contrary to this law. The
Court held such custom does not violate the aforesaid law. It only limits the choice of
legatee without affecting the right to execute the will. Justice Gulab Gupta said that such
a custom was not either against public policy or the Muslim Law.38

6. Doctrine of Consent:
There is no difference between the Sunni and the Shia Schools as to the consent of the heirs if
the bequeathed property exceeds one-third of the estate. Certain rules have been laid down as
to how and when this consent may be given to validate the bequest.

Consent when to be given?- According to Sunni law, the consent must be given after the
death of the testator. Consent given during the lifetime is of no legal effect. Under the Shia
law, the consent may be given either before or after the death of the testator. Consent of heirs
means consent of those persons who are heirs of the testator at the time of his death, and not
the consent of a presumptive or would be heir. Such consent must be free consent. A consent

35
Advocate General v. Jimbabai, ILR 41 Bom. 181
36
Allayar Khan v. Ranbhan AIR 1948 Bom. 162
37
Rahim Baksh v. Umar Din, 1915 P.R.9
38
Illyas etc. v. Badshah etc. AIR 1996 M.P. 634.

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given under undue influence, fraud, coercion or misinterpretation is no consent at all and it
would not be bind the person so consenting.

Consent how to be given- Consent may be either express or implied. Accordingly, the
attestation of will by the heirs and acquiescence in the legatee taking possession of the
property has been held to be sufficient consent. Similarly, when the heirs did not question the
will for three quarters of a century and the legatees had taken the allowance month after
month, it was held that the conduct of the heirs amount to consent.

Consent of some of the heirs- In cases where only some of the heirs give their consent the
shares of those consenting will be bound, and the legacy in excess is payable out of the
consenting heir’s share.

Consent of insolvent heir- The consent of heirs who are insolvent has been held effective in
validating a bequest.

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

7. Rateable abatement:
By rateable abatement is meant ‘proportionate reduction.’ Where a bequest of more than
one-third of the property is made to two or more persons and the heirs do not consent, under
the Hanafi Law, the shares are reduced proportionately to bring it down to one-third or in
other words, the bequest abates rateably.

Bequests for the purposes of rateable abatement are divided into bequests for pious
purposes and bequests for secular purposes. As a general class, bequests for pious purposes
are decreased proportionately to bequests for secular purposes, and do not have precedent
over them.

Under the Shia law the legatees take in order in which the legacies are granted up to the
disposable 1/3rd and the later legacies fail altogether. Let us consider a situation where A is
given ¼ th; B is given ¼ th and C is given ½. Then under the Hanafi law there is a
proportionate abatement so that the total legacy equals 1/3 only. So A takes 1/12th, B 1/12
and C 1/6th. Under the Shia law, however, A takes ¼. B takes 1/12 and C does not get
anything because the 1/3 would then be exhausted.

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8. Construction of Will:
The general rule governing the construction of wills is that a Muslim will is to be construed
in accordance with the rules of construction of the will laid down in Muslim Law, the
language used by the testator and the surrounding circumstances. It is also a general rule of
construction of wills that unless a different intention appears, a will speaks from the death of
the testator, and the bequests contained in it take effect accordingly. It is a universal rule of
construction of wills that the court tries to give effect, as far as possible, to the intention of
the testator. Where the testator used such ambiguous language that its construction is not
possible by giving usual meaning to the words used, then it is left to the heirs to give it
whatever interpretation they want. Thus, where a testator lays down in his will that
“something”, or some trifle, should be given to P or “I leave a garment or a book to Q”, then
heirs may give to P and Q whatever they like, or any garment, such as a new court or an old
one or any book, a copy of the Koran or a book of songs. Where a testator bequeaths an
article by description without appropriating any specific article, and if the testator does not
own any such article at the time of his death, the bequest fails, unless the intention to
bequeath the value of the article is indicated. In such a case the article as described by the
testator will be purchased out of the assets and handed over to the legatee.

9. Revocation of the Will:

Mohammedan law confers on the testator unfettered right to revoke his will. He may revoke
it at any time. The revocation may be either (i) express, or (ii) implied.

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

makes a testamentary disposition of land in favour of B. At any time, after the making
the disposition, he says “the land that I gave to B is for X”. These words will amount
to express revocation of the bequest. A will may be expressly revoked by tearing it
off, or by burning it. It seems that mere denial of a will does not operate as its
revocation.
ii. Implied revocation- Revocation of a bequest may be implied, e.g., where the testator
subsequently transfers the subject matter of the will or destroys it, or completely alters
its nature or makes such addition to it without which the property cannot be delivered,
etc. Where A bequeaths a land to B and subsequently builds a house over it, the
bequest stands revoked. Similarly, where the subject matter of bequest is a house and
the testator sells it, or makes a gift of it, the revocation is complete by implication.

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Subsequent will- Where a testator makes a will, and by a subsequent will gives the same
property to someone else, the prior bequest is revoked. But a subsequent bequest though it
be of the same property, to another person in the same will does not operate as a
revocation of the prior bequest, and the property will be divided between the two legatees
in equal shares.

10. Probate and letter of administration:

A Mohammedan’s will may after the due proof, be admitted in evidence though no probate
has been obtained.39 Except as regards debts due to the estate of a deceased, no letters of
administration are necessary to establish any right to the property of a Mohammedan who has
died intestate.40

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

Marz-ul-maut gifts of Muslim law derive their rules from two branches of Muslim law, the
law of gifts and the law of wills. It is a combination of the rules derived from both the
branches. It is a gift of ambiguous nature, not exactly a gift, nor exactly a legacy, but
partaking the nature of both.

The different schools of Muslim law take divergent views on the Marz-ul-maut gifts. The
Malikis take the view that the Marz-ul-maut gifts are void. The Shias and Hanafis hold that
such gifts to the extent of one-third are valid.

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

illness. The most valid definition of Marz-ul-maut is that a malady which, it is highly
probable will ensue fatally. A gift must be deemed to be made during Marz-ul-maut, if it
made “under pressure of the sense of imminence of death.” But where the malady is of long
duration, such as consumption of albuminuria and there is no apprehension of death, the
malady cannot be called Marz-ul-maut. If the disease continues for a period of more than a
year, then it cannot be called Marz-ul-maut unless it reaches a stage where the apprehension
of death is genuine or death is highly probable. The crucial test of Marz-ul-maut is the
subjective apprehension of death in the mind of the donor, that is to say, the apprehension
derived from his own consciousness, as distinguished from the apprehension caused in the

39
Mohamad Yusuf v. Hargovanddas, 47 Bom. 231.
40
Indian Succession Act, 1925, Section 212(2).

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minds of others, and the other symptoms or physical incapacities are only the indications but
no infallible signs of a ‘sine qua non’ of Marz-ul-maut.41 The Calcutta High Court has
indicated in Hasrat Bibi v. Ghulam Jaffar42, that an illness is a death-illness, when-

(i) The donor is suffering from the disease at the time of gift and which is the immediate
cause of death;
(ii) The disease is of such a nature or character as to induce in the person suffering, the
belief that death would be caused thereby, or to endanger in him the apprehension of
death;
(iii) The illness is such as to incapacitate him from the pursuit of his ordinary avocations,
i.e., standing up from prayers, which may create in the mind of the sufferer an
apprehension of death;
(iv) The illness after a long continuance has taken such a serious turn as to cause an
apprehension of death in his mind, but not if he is accustomed to the malady.

In Abdul Hafiz v. Sahebbi43 a Muslim of over 80 years of age remained ill seriously for four
days. On the day on which he died he made a gift just before his death. It was held by the
Bombay High Court that the gift was made during death-illness. The Court observed that
what is required to be proved upon the preponderance of probabilities is, whether the gift was
made by the ailing person while under the apprehension of death and that whether in such
ailing he died.44

Though the transaction in Marz-ul-maut is partly of will and partly of gift, it being essentially
and basically a gift must satisfy all the formalities that are essential for the making of any
other gift. That is to say that, there must be-

(a) Declaration of the gift by the donor,

(b) An acceptance of gift (express or implied) by or on behalf of the donee, and
(c) Actual or constructive delivery of possession of the subject-matter of the gift by the
donor to the donee.

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

41
Safia Begum v. Abdul Rayaz, AIR 1945 Bom. 538
42
3 C.W.N 57
43
AIR (1973) Bom. 165
44
Bhoona Bi v. Gujar Bi AIR 1973 mad. 154.
45
Shamshad Ali Shah v. Syed Hassan Shah (Pakistan), PLD 1964 S.C. 143.

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But the donor’s power to dispose of his property by gift during death-illness is subject to
certain limitations which are as follows-

i. Gift to a non-heir- He cannot make a gift of more than 1/3 of his property in favour
of a non-heir unless the other heirs give consent to the excess taking effect.
ii. Gift to an heir- The gift to an heir made during death-illness is altogether invalid
unless the other heirs consent to it.
iii. A gift made during death-illness is subject to all the conditions and formalities
necessary to constitute a gift inter vivos.

As already stated Marz-ul-maut is not exactly a gift, nor exactly a legacy. Marz-ul-maut and
will - both become operative only after the death of the person concerned and are subject to
the same limitations. But a will can be made by the testator at any time irrespective of his
health conditions while for a gift to be considered as Marz-ul-maut, it should be made under
an apprehension of imminent death. Thus a will and Marz-ul-maut differ considerably.

12. Conclusion:
Thus it can be concluded by saying that the law of wills under Muslim law is quite
complex. The absence of any specific legal formalities though might be intended for the
benefit of the layman often creates ambiguity regarding the validity of a will. It is very hard
to infer the intention of the testator from his words. Moreover since signature of the testator
and attestation by witnesses are not required, there may be doubt regarding the authenticity of
the will which only increases unnecessary litigation between the parties. Moreover regarding
the doctrine of consent, rateable abatement and limitations on the testamentary power,
various schools of Islam advocate various principles which add up to the complexity. The law
of wills allows a Muslim to bequeath only one-third of his property and in case the bequest is
more than that consent of the heirs is required. In the modern era keeping the socio-economic
circumstances in mind it is quite evident that hardly any heir will give consent for such
bequest as it would result in decrease of his own share. Moreover, the bequest can be done in
favour of a stranger only and not any of the heirs (under Shia law, a testator may give legacy
to an heir as long as it does not exceed one-third of his estate). Such a limitation should not
be there. It is because of such limitations that even if legatees had ill-treated the testator they
end up getting his property. Such limitations also apply in case of Marz-ul-maut. A person
should be given absolute power to bequeath his hard earned property to any one he likes.

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Thus, it is the need of the hour that the Muslim law including the law of wills be codified and
the various lacunae be done away with.

13. Bibliography:
 Mantha Ramamurti, Law of Wills, (8th Edn., Law Publishers (India) Pvt. Ltd.,
2012)
 Dr. Paras Diwan, Family Law, (9th Edn., Allahabad Law Agengy, 2009)
 Dr. T.V. Subba Rao and Dr. Vijendra Kumar, Family Law in India, (9th Edn.,
S. Gogia and Company, 2007)
 Aqil Ahmad, Mohammedan Law, (23rd Edn. Central Law Agency, 2009)
 M. Hidayatullah and Arshad Hidayatullah, Mulla-Principles of Mohammedan
Law, (19th Edn. Lexis Nexis Butterworths, 2010)
 B. R. Verma, Commentaries on Mohammedan Law, (11th Edn. Law Publishers
(Indai) Pvt. Ltd, 2009 )

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