ASSIGNMENT

FAMILY LAW

WILLS UNDER MUSLIM LAW

Submitted by

-
-Shardendu Pandey

- IInd Year
 INDEX

S.NO TOPIC Pg. No.

1. ACKNOWLEDGEMENT 03

2. INTRODUCTION 04

3. CONCEPT 05

4. REQUISITES 10

5. WILLS UNDER DEATH ILLNESS 18

6. CONCLUSION 21

7. BIBLIOGRAPHY 22

2
 ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher Prof. (Dr.)Kahkashan

Y. Danyal who gave me the golden opportunity to do this wonderful project on the topic

“WILLS UNDER MUSLIM LAW”, which also helped me in doing a lot of Research and I

came to know about so many new things I am really thankful to her.

Secondly I would also like to thank my parents and friends who helped me a lot in finalizing

this assignment within the limited time frame.

-Shardendu Pandey

3
 I. INTRODUCTION
Will is the legal declaration of a person’s intention which he wishes to be performed after his
death and once the Will is made by the testator it can only be revoked during his lifetime. A
Will does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression
of intending to appoint a person who will look after the properties after his (Testator) death.
A Will regulates the succession and provides for succession as declared by the testator.Indian
Law which is governed under ‘Section 5’ of “The Indian Succession Act, 1925” which
provides different rules for intestate succession and testamentary succession in India. It
applies to all the communities in India except Muslim. In India there is a well-developed
system of succession laws that governs a person’s property after his death. ‘The Indian
Succession Act 1925’ applies expressly to Wills and codicils made by Hindus, Buddhists,
Sikhs, Jains, Parsis and Christians but not to Mohammedans as they are largely covered by
Muslim Personal Law.

There are certain characteristics which should be included in the instrument of will such as:-

1. The Name of the Testator

2. Right to appoint Legatee
3. To take effect after death
4. Intention of the Testator is supreme

Every person who is competent to contract may make a will but he must be major, sound
mind and willing to write a will. A person of unsound mind can also make a will but only in
lucid intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons
disqualified under any law by the court.

A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a
declaration in compliance with moral duty of every Muslim to make arrangements for the
distribution of his estate or property. The Mohammedan Law restricts a Muslim person to
bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by
writing will, which will take effect after his death. The law is mainly uncodified is governed
by the holy book and customs. All such rules related to Muslim law on Wills will be
discussed in details in the assignment.

4
 II. CONCEPT
The records that have been handed down to us from antiquity regarding the customs and
usages of the pre-Islamite Arabs seem to establish abundantly that testamentary
dispositions were not unknown among the pagan tribes of the peninsula. But it is difficult
to say, from the materials in our possession, what were the conditions which regulated the
validity or invalidity of wills made by them.

The Rabbinical Law which was in force among the Jewish tribes prohibited the testator
from depriving his lawful heirs from succession; it also precluded him from constituting a
stranger as an heir. But when a disposition was effectuated by the immediate delivery of
possession, the Rabbinical Law apparently regarded it as valid. A will could be made
either verbally or in writing, but, generally speaking, the first mode was considered as the
more preferable of the two.

The Koran expressly sanctioned the power of making a testamentary disposition, and
regulated the formalities and conditions to which it is subjected1. The leading authority on
the subject of wills is the Hedaya, which was translated from the original Arabic by four
Maulvis or Mahomedan lawyers: and from Persian into English by Charles Hamilton by
order of Waren Hastings when he was Governor-General of India. The Hedayawas
composed by ShaikhBurhan-ud-Din Ali who flourished in the twelfth century. The author
of the Hedaya belonged to the Hanafi School, and it is the doctrines of that school that he
has principally recorded in that work.

“Wills,” says the Hedaya, “are lawful on a favourable construction. Analogy would
suggest that they are unlawful, because a bequest signifies an endowment with a thing in
a way which occasions such endowment to be referred to a time when the property has
become void in the proprietor (i.e., the testator), and as an endowment with reference to a
future period (as if a person were to say to another, ‘I constitute you proprietor of this
article on the morrow,’) is unlawful, supposing even that the donor’s property in the
article still continues to exist at that time, it follows that the suspension of the deed to a
period when the property is null and void (as at the decease of the party), is a fortiori
unlawful. The reasons, however, for a more favourable construction in this particular are
twofold:- First, there is an indispensable necessity that men should have the power of

1
Koran, Chap. V, verse 75

5
 making bequests, for a 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 in such a manner that if he should die of that illness, his objects
(namely, compensation or his deficiency and merit in a future state) may be obtained-or,
on the other hand, if he should recover, that he may apply the said property to his wants-
and as these objects are attainable by giving a legal validity to wills, there are, therefore,
ordained to be lawful. Secondly, wills are decided to be lawful in the Koran and the
traditions, and all doctors, moreover, have concurred in this opinion.2”

The nucleus of the law of Wills is, by common consent, to be found in a tradition of the
Prophet, reported by Bukhari3:

Sa’dibnAbiWaqqas said: “The Messenger of God used to visit me at Mecca, in the year of
the Farewell pilgrimage, on account of illness which has become very sever. 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-thirds 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 (others) 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.”

The rule of one-third was recognised by our courts as early as 1806, and later on in
EkinBibee4, Jumunoodeen Ahmad5, Baboojan6, and SukoomatBibee7.

2
V.P. Bharatiya(Editor), Syed Khalid Rashid's Muslim Law, (Eastern Book Co).
3
Muhammad Ali, Manual of Hadith (Lahore, 1944), 334-5, No. 2
4
(1864) 1 WR 152
5
(1865) 2 WR Me’e 69
6
(1868) 10 WR 375
7
(1874) 22 WR 400

6
 DEFINITION

Will (wasiyat) 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 death8. The Hedaya says that
analogy would suggest that wills are unlawful and they are lawful on a favourable
construction.The term “wasiyat” means an endowment with the property of anything after
death9. To bequeath is, in the language of law, to confer a right of property in a specific
thing, or in a profit or advantage in the manner of gratuity postponed till after death of the
testator10.

Tayyabji11 defines it as a legal declaration of intention of a Muslim with respect to his

property which he desires to be carried into effect after his death. It is also defined as a
transfer of ownership for no consideration to take effect after death.

The word wasiyat also means a moral exhortation, means a declaration in compliance
with moral duty of every Mussalman to make arrangements for the distribution of his
property. Thus the Muslim law of wills presents a compromise between two opposite
tendencies- namely, one, not to disturb or interfere with the divine law of distribution of
property after death, and two, the supposed moral duty of every Muslim to make
arrangements for the distribution of his property within prescribed limits. According to
Fyzee the Muhammadan sentiment is in most cases opposed to the disposition of the
property by will, and yet it is a moral exhortation, it is thus a reconciliation between the
dual insistence on moral exhortation as well as legal rectitude. The will of a Muslim is
governed in India subject to the provision of the Indian Succession Act, 1925, by the
Muhammadan Law.

8
Section2(h), Indian Succession Act, 1925
9
Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford UnivPr (Txt).
10
Ibid
11
F.B. Tayyabji, Muhammadan Law, 4thedn., Bombay: N.M. Tripathi Private Ltd., 1968, p. 754

7
 FORM AND CHARACTERISTICS

“By the Mahomedan law no writing is required to make a will valid, and no particular form,
even of verbal declaration is necessary as long as the intention of the testator is sufficiently
ascertained”12. In a case before the Privy Council a letter written by a testator shortly before
his death and containing directions as to the disposition of his property, was held to constitute
a valid will13. The mere fact that a document is called tamlik-nama will not prevent it from
operating as a will, if it possesses the substantial characteristics of a will14. But where a
Mahomedan executed a document which started,” I have no son, and I have adopted my
nephew to succeed to my property as title.” It was held by the Privy Council that the
document did not operate as a will. Nor did it operate as a gift, for there was no delivery of
possession to the nephew by the deceased15.

In the case of AuliaBibi v. Ala-ud-din16, it was found that a document purporting to be the
will of a Mahommedan lady was in fact drawn up in accordance with instructions given by
the testatrix to a vakil at a time when the testatrix was competent to make a will; the High
Court of Allahabad held that such a document was a valid will notwithstanding the absence
of the signature of the testatrix.

A will may be made also by signs, as in the case of a dumb person who does not possess the
faculty of speech, but who can express his meaning by signs. So also in the case of a person
who is a mariz, that is, suffering from a mortal illness and unable from weakness to speak.17
“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; in these circumstances, if his
meaning be understood, the bequest is lawful but not otherwise. And it is implied that he dies
without regaining the power of speech; for then it is evident that there was no hope at the
time of the bequest of his being able to speak, and his condition was therefore the same as
that of a dumb man.”

The burden of establishing an oral will is always a very heavy one; it must be proved with
utmost precision, and with every circumstance of time and place18. The court must be made

12
MahomedAltaf v. Ahmed Buksh, (1876) 25 W.R. 121 PC
13
MazarHusen v. BodhaBibi (1898) 21 All. 91
14
Said Kasum v. ShaistaBibi (1875) 7 N.W.P 313
15
JeswantSingjee v. Jet Singjee (1844) 3 M.L.A. 245
16
[1906] I.L. 28 All 715
17
Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford UnivPr (Txt).
18
VenkatRaov. Namdeo(1931) 58 I.A. 362

8
certain that it knows what the speaker said and must from the circumstances and from the
statement be able to infer for itselfthat testamentary effect was intended, in addition to being
satisfied of the contents of the direction given19.The person who propounds a will is under a
greater obligation to prove by clear evidence that the will was executed by the testator and at
the time of the execution he was a free agent and possessed of a sound and disposing state of
mind.

A wasiatmay be conditional or contingent. In such a case its operation will be dependent

upon the happening of the contingency and if the contingency does not happen, it will not be
given effect to20. A reference to some impending danger is common to most of the cases. For
example, a man may say, “should I die of such a 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 wasiats in these cases would not take effect if the
contingencies apprehended do not happen, whether the will be in writing or by word of
mouth.

19
Mahabir Prasad v. Mustafa (1937) 41 Cal. W.N. 933
20
And it will not be admitted to probate. Parsons v. Lance, 1 Ves. 190

9
 III. REQUISITIES

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

1. The testator must be competent to make the will.

2. The legatee must be competent to take the legacy or bequest
3. The subject of bequest must be a valid one
4. The bequest must be within the limits imposed on the testamentary power of a
Muslim

A. TESTATOR AND HIS COMPETENCE

Every Muslim who is of sound mind and of the age of majority has the capacity to make a
will. Except in case of marriage, dower and divorce, the age of Majority of Muslims is
regulated by the Indian Majority Act, under which the age of majority is the completion of
eighteenth year in ordinary cases, and completion of twenty-first year in cases where the
guardian of a minor is appointed under the Guardians and Wards Act. Muslim law-givers lay
down that a will of a minor can be ratified by him on attaining majority, but the will of a
person of unsound mind cannot be ratified on his regaining sanity. Not merely this, the
Muslim authorities hold that will made by a sane person will become invalid, if subsequently
he become a lunatic.

Every adult Muslim with reasoning ability has capacity to make a will. A Hanafi, Hanbali or
Shafii Muslim is adult for this purpose as soon as he has attained puberty; the presumption of
puberty in Sunni law being 15 years at a maximum. The Shia law and the Maliki doctrine
place the emphasis on the age of discernment, namely 10 years.

Regardless of the traditional view of the Muslim jurists about the age of disposition, the
matter is now regulated by statutes in most of the Muslim countries. In Pakistan, India and
Bangladesh, the age of majority as discussed above has been fixed at eighteen years21. The
Egyptian and Syrian laws provide that the testator must possess the legal capacity to make a
disposition for no consideration. The Iraqi law adds “and be the owner of what he bequests”.
The Algerian law is clearer requiring the testator to be of sound mind, not under 19 years of
age, that is, the Algerian age of majority. However, the Syrian law makes the will by a person
put under interdiction on grounds of prodigality or native valid, subject to the court order.

21
The Majority Act, 1875. Section 3

10
Egyptian and Kuwaiti add to the Syrian law that the person making the will has reached
18calendar years of age, which is 3 years under Egyptian and Kuwaiti age of majority. The
law in Egypt and Kuwait is based on the Shafii view which is more restrictive than that of the
Hanafi, Maliki and Hanbali who allow a will by a prodigal. The Tunisian law allows will by a
prodigal provided that such a will be passed by a Court. A bequest by a minor may be
validated by subsequent ratification22. The Shia law requires that the testator must be ‘free,
adult, of sound mind and acting on his own free will’. However, the Shia’s allow a will by a
boy of 10 and a prodigal under interdiction if it is for charity.

A will made by a person of unsound mind is void and it doesnot become valid by his
becoming of sound mind subsequently. A will made by a person while of a sound mind
becomes invalid if the testator subsequently becomes permanently of unsound mind but when
insanity has not lasted for more than six months, bequest is not avoided23. The Egyptian and
Syrian laws provide that awill should be void if the testator became incessantly insane until
death. The Iraqi law provides that the wills should become void on the testator losing his
legal capacity until his death.

Bequests by “pardanashin” ladies (women in seclusion) are allowed but subject to strict
proof. Cases of procurement, such as undue influence or even coercion, often arise in cases
where hires allege that the deceased was a pardanashin lady. The rule in this situation is that
the burden lies on the beneficiary to prove that the “pardanashin” knew what she was doing,
that the transaction was explained to her, and that she had good independent advice in making
the bequest at arm’s length from the beneficiary.

According to the Hanafischool, apostasy does not invalidate a will if it is otherwise lawful. A
will by a female apostate is lawful according to the sect to which she apostatises. However,
all these customary rules are otiose. After the coming into force of the Caste Disabilities
Removal Act, 1850, under which apostasy is no more a disqualification.

Debts have priority over legacy. If the testator is in debt to the full amount of his property, the
bequest would not be lawful unless the creditors relinquish their claims. A person condemned
to death may also make a will. A will by a person under coercion, undue influence or fraud is
disallowed. A will made by a person after he has taken poison or has done any other act

22
F.B. Tayyabji, Muhammadan Law, 4thedn., Bombay: N.M. Tripathi Private Ltd., 1968.
23
Dr.ParasDiwan, Muslim Law in Modern India.

11
towards the commission of suicide, is not valid. The Shia law however says that if the person
made the will and then committed suicide, the bequest would be valid.

B. LEGATEE AND HIS COMPETENCE

Any person capable of holding property may be a legatee under a will. Thus, sex, age, creed
or religion is no bar to the taking of bequest. No one can be made the beneficial owner of
share 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.

In principle, a wasiyat is lawful for any person or object actually or constructively in

existence at the time of the disposition. “It is an indispensable condition,” says the Shariya,
“that the legatee be in existence at the time of bequest, and if he should not be alive, the
legacy is not valid, in the same way as a legacy to a deceased person, or to one supposed to
be alive, but who is afterwards proved to have been dead at the time of bequest.” So also it is
stated in the Alamgiri, that “there is no bequest for the non-existing or the dead.”

A bequest in favour of a non-Muslim is valid. In Hedaya, the following verses of the Quran
has been quoted:“Ye are not prohibited, o believers, from acts of benevolence towards those
who subject themselves to you, and refrain from battles and contentions.”It is therefore clear
that a Muslim can give his property by bequesting the same in favour of a non-Muslim
provided the non-Muslim is not hostile towards Islam.A bequest to non-Muslims is valid
according to all schools except Shafii School.

An apostate may be a legatee. But in India, this rule of Shafii law does not apply owing to
Act Xxi of 1850. In the Shafii view, a bequest in favour of an apostate is, according to better
opinion, valid.Manslayer is one who kills another person, from whom he intends to take
legacy. Hanafi law prohibits him to take any interest in the bequest. In IthnaAshari (Shia)
law, however, the more logical view is taken and only intentional homicide leads to
exclusion. Institution, whether religious or charitable, can be valid legatees.

When bequest is made in favour of two or more persons in the same will it is called a joint
legacy. If the legacy fails in respect of any one or more of these, who would be entitled to the
legacy? In such cases, if a particular legatee, was incompetent ab initio, the entire property
subject matter of the will, goes to the remaining legatee or legatees. Thus- A makes a bequest
of 1/3rd jointly in favour of B and C (i.e., 1/6th each). B was dead at the time of the bequest,
whether A knew or not. C would get the entire 1/3rd.

12
A class of persons (“all the poor of this town”) may be made a legatee. It would jointly rank
as a single legatee. According to Abu Hanifa and Abu Yusuf, the amount may be spent on
one poor person and according to Muhammadan on at least two persons. A class may be
special class as well.

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. The legatee has a right to disclaim. Under Shia
law, a legatee may validly accept part of the bequest, and disclaim and remainder.
Acceptance or rejection during the lifetime of the testator has no effect; even if the legatee
had rejected the bequest during the lifetime of its author, he can accept it after his death, and
that would be valid. If however, the legatee survives the testator and dies without assenting to
the will, the assent is presumed. Under Shafi law the right of acceptance passes to his heirs.
The law favours the positive side, hence the implied assent. And if the legatee has derived
any benefits from the will, the assent is presumed. Similarly the assent of a child or a child in
embryo is presumed. Also when a class (‘poor’) is the legatee, the acceptance is presumed
and the will becomes irrevocable by the death of the testator.

C. SUBJECT OF WILL

Any type of property, immovable or movable, corporeal or incorporeal, which is capable of

being transferred, may form the subject-matter of a bequest. It is not necessary that the
subject-matter of the will should be in existence when the will is made, it is sufficient, if it is
in existence at the time of testator’s death. The bequest may consist of the corpus or of the
usufruct. Under Muslim law, it is possible that a testator may give corpus to one person and
the usufruct to another. Thus, a right to occupy a house during a future period of time, or to
take the rents, or future produce, or usufruct for a limited time, for he life time of the legatee
may validly constitute the subject-matter of a will24.

The corpus of property and its usufruct may be treated as separate properties for purposes of
bequests. The question will of course be one of interpretation of the terms of a will for
ascertaining as to what was the subject of the bequest. It is permissible to make a bequest of
the thing itself in favour of one person and of its produce or use to another. In these cases the
legatee of the usufruct will be exclusively entitled to the use during his term.

24
Dr.ParasDiwan, Muslim Law in Modern India

13
The bequest of property which does not belong to the testator would not be valid unless the
person to whom the property belongs given his consent after the death of the testator. The
consent being however purely voluntary and gratuitous, the owner of the property may refuse
to give the property to the legatee. The legatee is entitled to take property in the form in
which it exists at the time of the death of the testator. He is, therefore, entitled to all
accessions to the subject of the bequest before partition or distribution of the estate. This is so
even if the accession is made after the death of the testator. The bequest would continue to be
valid unless the change or the improvement is so substantial as to imply revocation of the
bequests. The accession is also subject to the testamentary limits of one-third.

The subject matter of the bequest need not be in existence at the time of the testator’s death.
The reason is that a will takes effect from the moment of the testator’s death, and not earlier.
This is the view that prevails in Pakistan and India. However, the view in the Arab countires,
except for Algeria, is to the contrary. A will is void there if its subject matter is not existing at
the time whether will is made. The reason advanced is that no person has the right to dispose
the property he does not own. Therefore, a will remains void even if the testator becomes the
owner of the subject of bequest, unless a new will is then made25.

No testator can create by will an estate repugnant to law. Things that are outside the ambit of
trade and cannot be object of property and the sale of which is void, e.g., animal’s blood and
pigs, cannot be valid subjects of a Muslims will. The same applies to things in which there is
no ownership, such as air and water, rivers and public roads. Where the bequest is of right to
take profits of a house, the beneficiary, except under Shafii law, has no right to live in it. The
apparent reason is that the hiers of the deceased are entitled to manage property whose only
obligation in such a case is to pay the rents to the legatee. Of course, heirs may permit him to
occupy it. Under Shafii law, the legatee becomes as it were the proprietor of the house.

The Egyptian law provides that: ‘The bequest is stipulated to be (1) an object that can be
inherited or may be an object for a contract during the life of the testator; (2) a valuable asset
in the possession of the testator if it is a property; (3) owned by the testator, if it was definite
per se, at the time of the will’. Kuwait adopted Egyptian law with the modification that a will
could take effect in the future and can be made subject to a valid condition. The Syrian law
also adopted the Egyptian law emphasising that the ownership of the bequest must be
transferable on the death of the testator and should constitute a valuable asset according to his

25
TahirMahmood, The Muslim Law of India

14
religious law. The Iraqi law only requires transferability of the ownership of the bequest after
the death of the testator. The Algerian law allows the testator to make a bequest of the
property which he owns or is going to own before his death, be it a substance or a usufruct.
Moroccan law simply rules that the bequest must be capable of being taken possession of.

Sunni Law treats a bequest to life-estate as bequest with a condition attached to it and as such
the rule of a conditional gift applies i.e., the bequest takes effect while the condition becomes
void, for instance, a bequest to A for life and after his death to B is in its legal effect a
bequest to A absolutely and B takes nothing under it. Thus a bequest of life-estate is not
recognised under Mohammedan Law.

D. TESTAMENTARY POWER AND ITS LIMITS

The pre-Islamic Arabs had unlimited power of disposing of their property by will also by acts
Inter vivos. There was also no restriction as to the extent of legacies. Mahommedan law has
not given unlimited testamentary powers. Two-fold restrictions are placed on the power to
make will:

1. There is a restriction as to the persons to whom a bequest may be made.

2. There is a restriction as to the property of which a bequest may be made.

The law of bequests derives its origin from the following Quranic verses:

‘It is prescribed for you, when death approacheth one of you, if he leave wealth, that he
bequeath unto parents and near parents and near relatives in kindness. (This is) a duty for all
those who ward off (evil).’ [The Quran Surah Al Baqarah 2:180]

‘(In the case of) those of you who are about to die and leave behind them wives, they should
bequeath unto their wives a provision for the year…’ [The Quran Surah Al Baqarah 2:240]

These Quranic verses, the first of which is generally known as ‘the verse of bequests’
represent historically the first Islamic regulation on the subject of succession. They enjoin
testamentary disposition only, or primarily, as a means by which the deceased might make
suitable provision for his surviving relatives, and for this reason the verse were generally held
to be superseded by the Quranic verses which laid down the rules of inheritance.

A bequest roa heir is not valid unless the other heirs consent to the bequest after the death of
the testator. There has been a great controversy over this requirement. At one extreme, the

15
Zahiris and some Malikis, Shafiis and Hanbalis rule thata will to an heir is utterly void, on the
authority of a tradition of the Prophet to that effect. Abu Imama reported: ‘I heard the Prophet
say: “Allah has already given to each entitled relative his proper entitlement. Therefore, no
bequest in favour of a legal heir.” The aforesaid jurists deem it as an act of injunction against
the other heirs who may allow it, in which case it shall not be a bequest but a gift. On the
other hand, the Shia IthnaAshari and Zaidi schools accept as valid a will within one-third of
the net estate without requiring the consent of the other heirs26. A middle course is steered by
the Hanafis and majority of Malikis, Shafiis and Hanbalis who hold that a will to an heir is
valid subject to the consent of the other heirs, adding to the cited tradition of the Prophet
‘except if allowed by the hires’.

No Muslim can bequeath more than one-third of the residue of his estate, after the payment of
debts and other chargers. When a Muslim dies, his debts and funeral expenses are to be paid
first; thereafter, out of the residue only one-third can be disposed of by will. For e.g.,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 this amount by will.

But if the hires do not give consent, the Hanafi law provides that the bequests be rateably
reduced or abated. The principle is called the “abatement of legacies”. The IthnaAshari law,
however, does not recognize the principle of “abatement of legacies”. Shia law says that if
several bequests are made through a will, priority would be determined by the order in which
they are mentioned. The first, bequest takes effect first and thereafter the subsequent
bequests, unless the bequeathable third is exhausted. For example, a testator leaves 1/12 of
his estate to A, ¼ to B and 1/6 to C and the hires refuse their consent to these bequests, then
A would take 1/12, and B would take ¼, but C who is mentioned last would get nothing, as
the one-third (1/12+1/4=1/3) is exhausted between A and B. There was however, a curious
exception to this rule; if in the above example, A and B are both to take 1/3 each the later
bequest prevails; so B will have preference over A who will get nothing.

If bequests are for religious or pious purposes but exceed the legal limit of one-third then, the
priority would be determined in the following order:

26
Dr.ParasDiwan, Muslim Law in Modern India

16
 a) Bequest for fariaz (i.e., those duties which are expressly ordained in the Koran, for
instance, performance of haj)
b) Bequest for wajbat (i.e., those acts that are recommended by the Koran, but are not
obligatory, for instance, charity on day of breaking the fast); and
c) Bequest for nawafil (i.e., voluntary but pious acts which are not even recommended,
for instance, building a bridge or an inn).

The reason for limit on bequeathable property as the policy of the Muhammadan Law, viz., to
prevent a testator from interfering by will with the course of devolution of property among
his heirs according to law. It safeguards against a breach of the ties of the kindred, practice of
favouritism and prejudice, and violation of the Koranic principles of inheritance. The object
also includes the concern to see that no heir is left destitute.

The ban against bequest to stranger (i.e. a non-heir) in excess of one-third is subject to
following exceptions, that is, may be relaxed 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.

As is well known, a Muslim testator may not make bequests which, in aggregate, exceed one-
third of his net estate unless, at least, heirs consent thereto after his death (or, in the Shia
view, also during his lifetime). This is in most cases eminently reasonable. But a Sunni
Muslim is also precluded from making any bequest whatever to one who is entitled to a share
in his estate as an heir unless, again, the other heirs consent thereto after his death. This rule
is intended to prevent him from altering in any way the division of his estate between
different heirs, as prescribed under the law of inheritance27. Again, moreover, this is perfectly
reasonable as a general rule, but circumstances often arise in which there may be excellent
reasons for making special provision for a disabled child, for example, one who has been
members of the family. The Shia law has always allowed this; and such freedom of bequest,

27
Supra note 25

17
within the bequeathable third, would seem to be the natural implication of some of the verses
of inheritance in the Koran. So, recent reforms in Egypt, the Sudan and Iraq have made this
lawful for all Muslims. It is obvious, moreover, how much the relaxation of the rule
previously accepted by Sunnis in this matter would benefit widows since their husbands
could then leave them a bequest to augment their pitiably inadequate share on intestacy.

IV. WILLS DURING DEATH-ILLNESS

A gift without consideration made in marz-ul-maut(death illness) takes effect as a will. Under
Hanafi law, it takes effect to the extent of bequeathable third, if it is not in favour of the hires,
and the possession has been taken by the donees. Under IthnaAshari (Shia) law, it takes
effect to the extent of 1/3, even if it is in favour of heirs, provided possession is transferred.
According to Fyzee, a donation mortis causa may be described as a gift of an amphibious
character, not exactly a gift, nor exactly a legacy, but partaking of the nature of both; for in
Mohammadan law such a gift is governed by rules deduced from a combination of two
branches of law- the law of gifts and the law of wills. To constitute marz-ul-maut, there must
be:

1. Proximate danger of death

2. Apprehension in the mind of the sick
3. Some external indicia, like inability to attend to routine work, etc.

But nothing is conclusive; it is a question of fact. The question of apprehension is of extreme

importance; it is essential that the gift should be made under pressure of the sense of the
imminence of death. According to the Bombay High Court the crucial test of marz-ul-mautis
the subjective apprehension of death in the mind of the donor; and this is to be distinguished
from the apprehension caused in the mind of others28. The Fatimid authorities lay down the
salutary rule that for healthy man, it is prudent to make a will; but, for a man who is ill, it is
obligatory.

A gift made during marz-ul-mautis subject to all the conditions and formalities prescribed in
Muslim aw for gifts inter vivos. Thus, transfer of possession is a must, otherwise the gift fails.
Similarly, a gift by way of will during death-illness, must comply with the two conditions-
the limit of one-third, and if made to an heir- the requirement of the consent of others heirs.
Further, the peculiarities of the Shia and Sunni laws also apply. In Commissioner of Gift Tax,

28
Safia Begum v. Abdul Rajak, (1944) 47 Bom LR 381, 384

18
Ernakulam v.Abdul KarimMohd.29, the facts were- a Muslim executed a document styled as
“settlement will” gifting certain movables to the assesse. The gift was made when the donor
was seriously ill and apprehending his death. Possession was delivered to the donee before
death. The donor died within six weeks of executing the document. The assesse claimed that
this was a gift during marz-ul-mautand as such exempted from gift tax under Section 5(1)(xi)
of the Gift Tax Act. The Supreme Court held that in view of the serious illness of the donor
and his state of mind at the time of making the gift- the gift was in contemplation of death. It
rejected the commissioner’s contention that it was a gift inter vivossimpliciter30.

SUNNI LAW AND SHIA LAW COMPARED

SUNNI LAW SHIA LAW

1. Bequest by one who commits the act
for suicide before or after making the
will is valid
2. Bequest for unborn person valid if the
child is born within 6 months of the
making of the will
3. Consent of heirs
a. For bequest in favour of stranger
rd
up to 1/3 property- not required
b. For bequest in favour of heirs
(even 1/3rd) consent of other heirs
necessary.
4. Consent of the legatee presumed if he
dies before consenting.
5. The legacy lapses if the legatee
predeceases the legator.
1. Bequest is valid only if the act for
committing suicide was done after
making the will. Not if the act was
done first and then the will made.
2. Bequest for unborn child is valid if
the child is born within 10 months of
the making of the will.
3. Consent of heirs
a. For bequest in favour of stranger
up to 1/3rd property- not required
b. For bequest in favour of heir
(1/3rd) consent not necessary. For
more than 1/3rd necessary.
4. There is no presumption; but the
consent of his heirs must be obtained.
5. In case of death of legatee, the legacy
devolves on his heirs. But if no heirs,
it does lapse back to the legator.

29
(1991) 3 SCC 520
30
V.P. Bharatiya(Editor), Syed Khalid Rashid's Muslim Law, Eastern Book Co.

19
DIFFERENCE BETWEEN WILL AND GIFT

1. Gift is an immediate transfer of right or interest, will is a transfer of right to take

effect after the death of the testator.
2. In a gift transaction, delivery of possession is necessary in a will it is not required.
3. The subject of gift must be in existence at the time of gift; it need exist at the time of
making the will. T is sufficient if the subject is in existence at the death of the testator.
4. Right of donor to a gift is unrestricted. The right of making a bequest is limited in two
ways.
5. After completion a gift cannot be revoked unless by a formal decree of a Court; a will
may be revoked at any time after making of it.

20
 V. CONCLUSION
The 'Muslim Will' Law is different from the law governing wills of Hindus or wills made
under the Indian Succession Act, 1925. The law of Wills under Muslim law as discussed
above is derived mainly from Hedaya, the Holy Quran, custom of the Prophet and different
case laws. Testamentary disposition of property is considered to be divine in nature and
draws on the Quran. The law is unique in itself as:

1. It puts a limit on how much can be bequeathed.

2. To all whom it can be made.
3. No particular formality required.

It is correct that the general rule under Muslim personal laws in India is that a Muslim may,
by his will, dispose only up to one-third of his property which is left after payment of funeral
expenses and debts without the consent of his heirs. The remaining two-thirds of the
testator’s property must go to those who are his heirs at the time of his death.However, the
above restriction on disposition of property by will do not apply to a Muslim whose marriage
is solemnized under the provisions of the Special Marriage Act, 1954 (instead of Muslim
personal laws).

A Muslim will or any part thereof may be revoked by the testator at any time before his
death. The revocation may be express (oral or in writing) or implied. Any act, which results
in the extinction of the subject matter or proprietary rights of the testator will impliedly
revoke the will. For instance, if the testator transfers the same property by sale or gift
subsequently to another it amounts to implied revocation.

Wills under Muslim law is a complex concept mainly because of different restrictions on
bequest but is also unique in it and not surprisingly, it has preserved itself since its initiation
without any major change.

It would also be open to a Muslim to transfer his entire property during his lifetime by way of
a gift to any person, unless the gift is a death bed gift. It is regarded under Muslim laws to be
a malady which induces an apprehension of death in the person suffering from it and which
eventually results in his death. A gift made by a person suffering from death illness cannot
take effect beyond one-third of the estate of such donor after payment of funeral expenses
and debt, unless the heirs of the donor give their consent after the death of the donor to the
excess taking effect.

21
 VI. BIBLIOGRAPHY

1. BOOKS:

S.NO. TITLE
1. Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford UnivPr (Txt).
2. M. Hidayatullah and ArshadHidayatullah, Mulla Principles of Mahomedan Law,
(Lexis Nexis Butterworths Wadhwa Nagpur.
3. V.P. Bharatiya(Editor), Syed Khalid Rashid's Muslim Law, (Eastern Book Co;
Revised edition
4. Dr.ParasDiwan, Muslim Law in Modern India.
5. F.B. Tayyabji, Muhammadan Law (4thedn., Bombay: N.M. Tripathi Private Ltd.,
1968)
6. TahirMahmood, The Muslim Law of India (Lexiz Nexis Butterworths, 3rd edition,
2002)

2. STATUTE:

S.NO TITLE
1. TheIndian Majority Act, 1875. (No. 9 of 1875)
2. Indian Succession Act, 1865(10 of 1865.)
3. Muslim Personal Law (Shariat) Application Act, 1937. (Act No. 26 of 1937)

22