FAMILY LAW PROJECT

WILLS UNDER MUSLIM LAW

CONTENTS

TOPIC PAGE NO.

1. Introduction 04-06

2. Requisites of a valid Will 07-15

3. Construction of Will 16

4. Revocation of the Will 17

5. Death-bed gift (Gift in Marz-ul-maut) 18-19

Conclusion

1
 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 conferment of right to one‟s property on another.
ii. This conferment of right is to take effect after the death of the testator.

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.
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.1 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. This
tradition points in reality to another tendency that it is ethically incumbent upon a man to make moral
exhortations and give spiritual directions to his close relatives and incidentally to indicate within the limits
laid down by the law what should be done regarding his property. Illustrations of wills which are mainly
ethical may be found in abundance in ancient literature.
The object of making a will is well explained by M. Sautayra, a jurist quoted by Ameer Ali:

“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
1
Fitzgerald, 167; Fat. Law §369, 373.

2
 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.”

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.

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 Bukhari2:

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
2
Muhammed Ali, Manual of Hadith (Lahore, 1994), 334-5, No. 2
3
 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.

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. 3 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.4
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 tohim but not if the inability is recent. 5 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.”

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. 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
Bibi6 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.7 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. 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

3
Venkat Rao v. Namdeo AIR 1931 P.C. 285 at p. 287
4
Mahabir Prasad v. Mustafa AIR 1937 PC 174 at p. 177; Izhar Fatima v. Ansar Bibi AIR 1939 All 348
5
Hed. 70, Durr. 408; Bail. I. 625.
6
(1989) 21 All 91
7
(1940) 1 M.L.J. 273, 187 I.C. 414, (‘40) A.M. 153.
4
the document did not operate as a will. 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.

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. 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 Khan8 Patna High Court held that any Mohammedan having a sound mind
and not a minor may make a valid will to dispose of the property. A bequest by a person of unsound mind
cannot be deemed valid, if he becomes of sound mind subsequently. In the converse case, a bequest made
by a person, while of sound mind, becomes invalid, if the testator is permanently disabled by unsoundness
of mind.
The age of majority as regards matters other than marriage, dower, divorce and adoption, is now regulated
by the
Indian Majority Act IX of 1875. Section 3 of the Act declares that a person shall be deemed to have
attained majority when he shall have completed the age of eighteen years. In the case, however, of a minor
of whose person or property a guardian has been appointed, or of whose property the superintendence has
been assumed by a Court of Wards, the Act provides that the age of majority shall be deemed to have been
attained on the minor completing the age of twenty-one years.

Majority under the Mohammedan Law is attained at puberty, and the presumption is that a Muslim attains
majority on the completion of the fifteenth year. According to the Hanafi Law, a bequest by a youth under
puberty, even if he is a mooharik (that is approaching puberty) and even if he dies after puberty is
unlawful. The Shia Law recognises the validity of a will by a person who has attained the age of ten years.
According to the Shafei Law, a will made by a testator who has not attained puberty would be valid
provided it is made to a discreet and advisable purpose. But the rules are not applicable to wills in India
since the age of majority, in case of will is now governed by the Indian Majority Act. Thus a minor cannot

8
AIR 1991 Pat. 155
6
 make a valid will but validate a will made during minority by ratification after attained majority.9

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 Bibi10 the deceased first made
his will, and afterwards took poison. It was held that the will was valid, though he had contemplated
suicide at the time of making the will.
A will procured by undue influence, coercion or fraud is not valid, and the courts take great care in
admitting the will of a pardanashin woman.
There is conflict of opinion as to the validity of will made by a Muslim who renounces Islam afterwards.
The Maliki School holds that apostasy annuls such a will, but according to the Hanafis, the bequest will be
effective, if it is lawful according to the sect from which he has apostalized.

(ii) Legatee and his competence

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

(a) Bequest to an institution- A bequest may be validly made for the benefit of an institution.
(b) Bequest to a non-Muslim- A bequest in favour of a non-Muslim is valid. In Hedaya the following
verses of the Quran has been quoted:
“Ye are not prohibited, O believers, from acts of benevolence towards those who subject themselves to
you, and refrain from battles and contentions.”

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

(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
9
Bail I, 627; hed. 673
10
(1898) 21 All 91
7
 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 void 11 unless such person was a child enventure samere at the
time of the will and is actually born within six months of that date. Under the Shia law also a bequest in
favour of an unborn person is invalid, but if the legatee was in the womb at the time of the will, the bequest
will be valid if he is born in the longest period of gestation, i.e., ten lunar months.
(e) Joint Legatees- In cases in which a joint legacy is made in favour of two or more persons, the question
would be as to who would be entitled to the legacy if it fails in respect of any of them. In such cases, if the
legatee was not competent to be legatee from the very beginning the entire legacy would go to the
remaining legatees. If we consider a situation where A makes a bequest of one-third jointly in favour of B
and C. B was dead at the time of bequest (whether by the knowledge of A or not). C could be entitled to the
entire legacy of one-third.

But if the legatee was originally a competent legatee, but became disqualified later on by failure of a
condition the remaining legatees would be entitled only to their share in the legacy and the rest would lapse
and it would not occasion any accession to the rights of others. So if A makes a bequest of one-third in
favour of B and C, if they be poor at the time of A‟s death. C is rich at the time of A‟s death. B is would be
entitled to only one-sixth.
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. 12 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.

11
Bail, I; Hed, 674; Abdul Cadur v. Turner ILR 9 Bom. 158
12
Bail. I, 648
8
 (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. 13
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.14

A bequest should not be opposed to Islam. Thus, a Muslim cannot lawfully make a bequest for the building
a Jewish synagogue or a Christian church; or for translating the taurit; or injeel; or directing that so much
of his property should be given to named person for reading the Koran over his grave, or for the
construction of a vault or arch over it; or for shrouds to Muslims; or for aiding a tyrant or an oppressor.

(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.

13
Gangabai v. Thavar Mulla, (1803) 1 B.H.C.R. 70
14
Khajoorunnissa v. Rowshan Jahan, ILR 2 Cal 184
9
 Conditional bequest- A bequest with a condition which derogates from its completeness will take effect as
if no condition was attached to it, i.e., the bequest will be valid while the condition will be void.

Bequest of life-estate- Sunni law treats a bequest to life-estate as bequest with a condition attached to it
and as such the bequest takes effect while the condition becomes void, for instance, a bequest to A for life
and after his death to B is in its legal effect a bequest to A absolutely and B takes nothing under it. Thus a
bequest of life-estate is not recognised under Sunni law. But the same Will will take full effect under Shia
law. In such a case, what A gets is known as life-estates and what B gets is called vested remainder. It is
remainder in the sense that B gets what remains after A and it is vested in the sense that the right of B is
settled from the time the grant of A is created. The prior view of the Bombay High Court was in favour of
the recognition of life-estate, but the subsequent decisions laid down that life-estate and vested remainder
are as mush unknown to the Shia Law as to the Sunni Law 15. This question was left undecided in a case by
the Judicial Committee. 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.

(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.16It 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 Begum17 where the plaintiff (respondent) Mumtaz Begum filed a suit for
possession alleging that the land in dispute was given to her by her father under a will and she was forcibly
dispossessed by the defendant (appellant) who denied the execution of the will and pleaded that he had
been in possession after the death of Mehrab Khan (father of Mumtaz begum) as his heir as being the son
of his brother Irfan Khan, the Rajasthan High Court had confirmed the well-settled principle that a bequest
in favour of an heir, even to the extent of one-third was not valid under the Hanafi Law, unless the other
heirs consented it, expressly or impliedly after the death of his testator.

15
Jainabai v. Sethana, 34 Bom. 172; Cassamally v. Churrimbhoy, 30 Bom. 214
16
54 Alld. 98: 1932 P.C. 81
17
AIR 1971 Raj 149
10
 In Abdul Manan Khan v. Murtaza Khan18the 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 Jehan 19clears the difference between a gift and a will. It was held
in this case that the policy of Mohammedan law appears to prevent a testator from interfering with the
course of devolution of property according to law among the heirs.
The facts of the case were as follows:
D, a Muslim died in 1841, and his eldest son E possessed himself of all his property by virtue of a deed of
gift and will executed in the year 1839. In 1859, the widow of a younger son, as a guardian of her infant
daughter R, filed a suit to set aside both gift and will, and to recover the property, but after the judgement
was obtained she withdrew from the suit on terms of a compromise filed therein. In 1886, R and her
husband sued E, who was represented by Khajoorunnissa, to set aside the said compromise on the ground
of minority, fraud, etc. They applied for a review of the judgement and also applied to recover the property
covered by that suit. They also claimed a share derived by her father from his predeceased brother, a share
in the right of her grandmother and a share of the property recovered by E under the previous decisions of
the Privy Council. The compromise was set aside and therefore, the parties were restored to their original
positions. It was held by the Privy Council that the deed of gift by D purporting to give E one-third of the
property was without consideration and was unaccompanied by delivery of possession, and was only
intended to operate after D‟s death. Thus it functioned as a will. This was an evasion of Mohammedan law.
The testator could not by will interfere with the devolution of property among the heirs.

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

18
AIR 1991 Pat 155
19
3 I.A. 291, 307
11
 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.20

(b) Limitation as regards the Disposable Property-

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

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

(2) The above rule of bequeathable one-third will not apply to a case where the testator has no heir. The
right of Government to take the estate of an heirless person will not, in any way, restrict the right of a
person to make a disposition of his property, as he likes. In other words, government is no heir to an
heirless person.

Customs- A Mohammedan may dispose off his property by will even in excess of one-third, where this
is permitted by custom. Such a custom is recognised among Cutchi Memons 21 and Khojasand22 in some
cases in the Punjab High Court. 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

20
Husaini Begum v. Mohammad Mehdi, (1927) 49 All 547
21
Advocate General v. Jimbabai, ILR 41 Bom. 181
22
Allayar Khan v. Ranbhan AIR 1948 Bom. 162
12
 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.23

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

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

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

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

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

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

Rateable abatement:

23
Illyas etc. v. Badshah etc. AIR 1996 M.P. 634
13
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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 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.

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 REVOCATION OF THE WILL:

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

i. Express revocation- An express revocation may be either oral or written, e.g. A makes a
testamentary disposition of land in favour of B. At any time, after the making the disposition, he says “the
land that I gave to B is for X”. These words will amount to express revocation of the bequest. A will may
be expressly revoked by tearing it off, or by burning it. It seems that mere denial of a will does not operate
as its revocation.

ii. Implied revocation- Revocation of a bequest may be implied, e.g., where the testator
subsequently transfers the subject matter of the will or destroys it, or completely alters its nature or makes
such addition to it without which the property cannot be delivered, etc. Where A bequeaths a land to B and
subsequently builds a house over it, the bequest stands revoked. Similarly, where the subject matter of
bequest is a house and the testator sells it, or makes a gift of it, the revocation is complete by implication.

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

Probate and letter of administration:

A Mohammedan‟s will may after the due proof, be admitted in evidence though no probate has been
obtained.24 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.

24
Mohamad Yusuf v. Hargovanddas, 47 Bom. 231
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 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 theminds 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.25 The
Calcutta High Court has indicated in Hasrat Bibi v. Ghulam Jaffar26, 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. Sahebbi27 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

25
Safia Begum v. Abdul Rayaz, AIR 1945 Bom. 538
26
3 C.W.N 57
27
AIR (1973) Bom. 165
17
 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.28
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.29

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.

28
Bhoona Bi v. Gujar Bi AIR 1973 mad. 154.

29
Shamshad Ali Shah v. Syed Hassan Shah (Pakistan), PLD 1964 S.C. 143.
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CONCLUSION
Thus it can be concluded by saying that the law of wills under Muslim law is quite complex. The absence
of any specific legal formalities though might be intended for the benefit of the layman often creates
ambiguity regarding the validity of a will. It is very hard to infer the intention of the testator from his
words. Moreover since signature of the testator and attestation by witnesses are not required, there may be
doubt regarding the authenticity of the will which only increases unnecessary litigation between the parties.
Moreover regarding the doctrine of consent, rateable abatement and limitations on the testamentary power,
various schools of Islam advocate various principles which add up to the complexity.

The law of wills allows a Muslim to bequeath only one-third of his property and in case the bequest is more
than that consent of the heirs is required. In the modern era keeping the socio-economic circumstances in
mind it is quite evident that hardly any heir will give consent for such bequest as it would result in decrease
of his own share. Moreover, the bequest can be done in favour of a stranger only and not any of the heirs
(under Shia law, a testator may give legacy to an heir as long as it does not exceed one-third of his estate).
Such a limitation should not be there. It is because of such limitations that even if legatees had ill-treated
the testator they end up getting his property. Such limitations also apply in case of Marz-ul-maut. A person
should be given absolute power to bequeath his hard earned property to any one he likes. Thus, it is the
need of the hour that the Muslim law including the law of wills be codified and the various lacunae be done
away with.

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 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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