Useful Notes on Testamentary Succession (wills) under Muslim Law

in India
1. Revocation of Muslim wills

2. Lapsing of legacies

ADVERTISEMENTS:

3. Abatement of legacies

4. Devolution of inheritance

5. Position of an executor of a Muslim will

6. Probate of a Muslim will, when necessary

7. Alienation by an heir of his share before payment of debts

8. Validity of alienation of the whole property for payment of debts

9. Decree against an heir, if binding on other heirs

10. Difference between Shia and Sunni law of wills.

1. Revocation of Muslim Wills:

A will is, by its very nature, revocable. A testator may, therefore, at any time,
revoke his will expressly or tacitly. Thus, when the testator destroys the subject-
matter of his bequest, or completely alters its nature, or transfers it to another
person, revocation may be inferred.

But the marriage of the testator after the making of the will does not operate as a
revocation of the will. This rule of Muhammadan Law is in stark contrast to the
rule under the Indian Succession Act, where marriage of the testator revokes his
will.

2. Lapsing of Legacies:
Sunni Law:
Under the Sunni Law, if the legatee does not survive the testator, the legacy lapses
and forms part of the estate of the testator.

Shia Law:
Under the Shia law, however, if the legatee does not survive the testator, the legacy
does not lapse, but passes to the heirs of the legatee. It is only when the legatee has
no heirs, that the legacy will lapse.

3. Abatement of Legacies:
Sunni Law:
If the bequests exceed the bequeathable third, and the heirs do not consent, under
the Sunni law, the bequests abate rateably. Bequests for pious purposes are also
decreased proportionately as bequests for secular purposes, and do not have
precedence over them.

But bequests for pious purposes are themselves divided into three classes : (i)
obligatory charities, e.g., a bequest for the performance of Haj on behalf of the
deceased; (ii) recommended, but not obligatory, e.g., a bequest for charity on the
second class take precedence over those of the third.

Shia Law:
The Shia law does not recognise the principle of abatement. Of several bequests,
the first in time prevails until the bequeathable third is exhausted. Where several
bequests are to be found in a will, priority is determined by the order in which they
are mentioned. It is to be noted, however, that where there are successive bequests
of the exact third to two different persons, the later bequest prevails.

Problem:
A bequeaths 1/6th of his property to C, 1/2 to F and the remaining to S, one of his
heirs. The other heirs do not give consent to these bequests. What would be the
result on the rights of the legatees, if the testator is (i) a Sunni, (ii) a Shia?

Ans:
If the testator is a Sunni, the bequest to S, who is one of his heirs, will fail. The
bequests to С and F will rateably abate, and they will take 1/12 and 1/4
respectively.
According to the Shia law, a bequest to an heir is valid so long as it does not
exceed the bequeathable third. If the testator is a Shia, S will take 1/3.

4. Devolution of Inheritance:
A deceased Muslim’s estate vests in his heirs immediately on his death, and it may
be distributed among his heirs even before the payment of his debts, unless the
estate is insolvent. Before the distribution of the deceased’s estate, all the heirs are
jointly liable to pay the debts due from the deceased to the extent of the assets
received. After distribution, each heir’s liability is proportionate to the share of the
assets that comes to his hands.

Parties to Creditor’s Suit for Debts:

(i) If there is an executor or administrator of the deceased’s estate, he must be sued,
(ii) If not, the creditor must, if the estate is distributed, join all the heirs as
defendants, so as to make their shares liable for the debt, (iii) If the estate is not
distributed, the creditor must obtain a decree against all the heirs who are in
possession of the estate.

5. Position of an Executor of a Muslim Will:

Under the strict Muhammadan law, the executor was merely a manager to carry
out the intentions of the testator. He was a trustee appointed by the testator to
superintend, protect and take care of his property and children after his death. He
was not the legal owner of the property of the deceased, and the property did not
vest in him. He had no power to sell or mortgage or alienate the property in any
other way.

But now, under the provisions of S. 211 of the Indian Succession Act, an executor
of a Muslim’s will is his legal representative for all purposes, and all the property
of the deceased vests in him; therefore, he has the power to dispose of the property
in due course of administration.

6. Probate of a Muslim will, when Necessary:

A Muslim will may, after due proof, be admitted in evidence, though no probate
has been obtained (Sir Mahomed Yusuf v. Hargovindas (1932) I.L.R. 47 Bom.
331).
The position of the executor of a Muslim will is governed by the Indian Succession
Act, 1925. The property of the testator vests in him, and can be sold and conveyed
by him, without taking a probate or obtaining the consent of all the heirs. (Sec. 307
of the Indian Succession Act).

Nor is it necessary, in case of intestacy, that his heirs should obtain letters of
administration to establish their right to any part of his property. (Secs. 212 and
213 of the Indian Succession Act, 1925). An oral will may, after proof, be admitted
to probate.

A Muslim whose marriage is solemnised or registered under the Special Marriage

Act, 1954, is governed by the exception made by Sec. 213(2) of the Indian
Succession Act. Accordingly, a probate is not necessary, and a succession
certificate can be granted under Sec. 370 of that Act. (Dr. Alma Latifi v. Nasima
Latifi, (1961) 63 BLR 940)

The only case when a title of representation is necessary is when it is ought to

recover a debt due to the deceased through the Court. No Court can pass a decree
against the debtor of a deceased Muslim for payment of his debt to a person
claiming on succession to be entitled to the effects of the deceased, or proceed
upon an application of a person claiming to be so entitled, to execute against such a
debtor a decree or order for the payment of his debt, except on the production, by
the person so claiming, of a probate or letters of administration or a succession
certificate.

7. Alienation by an Heir of his Share before Payment of Debts:

Even before the distribution of the estate, an heir may transfer his own share, and
pass a good title to a bona fide purchaser for value notwithstanding that the debts
of the deceased are not paid.

A creditor of a deceased Muslim cannot follow his estate into the hands of a bona
fide purchaser for value to whom it has been alienated by his heir-at-law. (Syed
Bazayet Hussein v. Dooli Chund, (1878) 5 I.A. 211)

Subject to S. 52 of the Transfer of Property Act, every heir of deceased Muslim is

entitled,
(1) To dispose of his share in any manner he likes; and

(2) To pass a good title to a bona fide purchaser for value, notwithstanding that the
debts of the deceased yet remain unpaid.

Thus, even before the distribution of the estate

(i) If any of the heirs transfer his own share to a bona fide transferee for value, or

(ii) If his share is sold in execution of a decree passed against him, —

It passes a good title to the transferee or to the purchaser, as the case may be,
notwithstanding any debts that might be due from the deceased.

Cases:
1. A Muslim died leaving a widow and a son. He left considerable property. After
his death, the widow brought a suit against the son, who was in possession of the
whole estate, for administration of the estate and for payment of her dower-debt. A
decree was passed, directing the son to render an account and providing for
payment of the dower-debt out of the properties.

The widow then applied for execution of the decree. Pending execution, the son
mortgaged his share to M, who filed a suit on his mortgage and obtained a decree
for sale. The son’s share was sold in execution of the mortgage-decree to P. The
question arises as to the rights of the widow as against P.

In the above circumstances, P would take the son’s share, subject to the decree in
favour of the widow. (Maulvie Mahomad Wajid v. Syed Bazayet, 1878 5 I.A. 211)

2. A Muslim dies, leaving several heirs. After his death, the heirs sell the whole of
his estate, without caring to pay any debts of the deceased. After the sale, a creditor
of the deceased obtains a decree against the heirs for his debt, and applies for
execution of his decree by attachment and sale of the property in the hands of the
purchaser.

Here, the purchaser has to prove that he was a bona fide purchaser for value, if he
does so, he will succeed, inasmuch as a creditor of a deceased Muslim cannot
follow his estate into the hands of a bona fide purchaser for value. (Land Mortgage
Bank v. Bidyadari, 1880 7 Cal. L.R. 460)

8. Validity of Alienation of the Whole Property for Payment of the Deceased’s

Debts:
The inheritance of Muslim vests at his death by a specific title in each individual
heir. A single heir cannot represent the entire estate of the deceased, and cannot
deal with the shares of co-heirs without their consent.

Therefore, an alienation of the whole of the property of a deceased Muslim by one

of his several heirs, even though he is in possession, and even if it be for the
payment of the debts of the deceased, is not binding upon his co-heirs. (Alisaheb v.
Shesho Govind, (1931) 33 Bom. L.R. 1238). Such alienation operates as a transfer
only of his interest in the property.

9. Decree against an Heir, if Binding on Other Heirs:

According to the Calcutta High Court, a creditor’s suit is an administration suit,
and any heir in possession of the estate represents the estate for the purposes of the
suit. Therefore, if a creditor of a deceased Muslim obtains a decree against some of
his heirs, the decree is binding on the other heirs. (Muttyjan v. Ahmed Ally, (1882)
I.L.R. 8 Cal. 370)

However, this would be so only if:

(i) The decree was not a consent decree or a decree obtained by fraud; and

(ii) The heir who is sued is in possession of the estate on behalf of the other heirs,
and not on behalf of himself. (Abbas Naskar v. Chairman, District Board, 24
Parganas, (1932) I.L.R. 56 Cal, 691)

According to the decision of the Bombay High Court, in Bhagirthibai v. Roshanbi

(1919 I.L.R. 43 Bom. 412), and also according to the Allahabad and Madras High
Courts, and the Chief Court of Oudh, a decree obtained by a creditor of a deceased
Muslim against some of his heirs is not binding on the other heirs. Only the parties
to the suit are bound by the decree, and consequently, only their property can be
sold under the decree.
Cases:
1. Wahidunissa v. Shubrattaum, (1870) 14 W.R. 329:
A Muslim dies, leaving two sisters as his only heirs. After his death, C, one of his
creditors, obtains a decree against the sisters for the debt due to him by the
deceased. Subsequently, D, a creditor of the sisters, obtains a decree against them
for his debt, and the property of the deceased in their hands is sold in execution of
the decree to P, an auction purchaser. C, in execution of his own decree, attaches
the property in the hands of P, and claims to set aside the sale in favour of P.

On the above facts, the Court held that where the property is transferred to a third
person in good faith for valuable consideration, the creditor of the deceased cannot
follow it in the hands of the transferee. The mere existence of debts payable by the
estate does not affect the title of the transferee, even though he has knowledge of
the debts. Therefore, С is not entitled to attach the property in the hands of P in
execution of his decree.

2. Syed Bazayet Hussein v. Dooli Chand, (1878) 5 I.A. 211:

A Muslim dies, leaving a widow and a son. A sum of Rs. 5,000 is due to the
widow for her dower. The son mortgages his own share in the estate to M, without
paying the dower-debt. After the mortgage, the widow obtains a decree for the
dower-debt against her son, who is in possession of the whole estate, and attaches
his share in execution of her decree. M then obtains a decree against the son on his
mortgage for sale of the son’s share. The son’s share is sold in execution of the
mortgagee’s decree and purchased by P.

As seen earlier, an heir may transfer his share and pass a good title to a bona fide
purchaser for value, notwithstanding any debt due from the deceased. A widow is
nothing more than an unsecured creditor in respect of the dower-debt.

M’s mortgage, having been made before the attachment by the widow in execution
of her decree against the son, P, is entitled to recover the son’s share free from
attachment. The widow cannot claim the amount of her decree from P.

3. In Jafri Begum v. Amir Muhammad, (1885) 7 All. 822, it has been held that the
whole estate of a deceased Muslim, if he has died intestate, or so much of it as has
not been disposed of by will, if he has left a will, devolves on his heirs at the
moment of his death, and the devolution is not suspended by reason merely of
debts being due from the deceased.

This principle was also confirmed by the Supreme Court in Ebrahim Aboobaker v.
Теk Chand, (A.I.R. 1953 S.C. 298).

10. Difference between Shia and Sunni Law of Wills:

The following are eight important points of difference between the Shia and Sunni
law relating to wills:

1. Bequests to an Heir:
Under the Sunni law, a bequest to an heir, whether it exceeds the bequeathable
third or not, is invalid, unless the other heirs consent to it after the testator’s death.
Under the Shia law, if the bequest to an heir does not exceed one-third of the
estate, no consent is required to validate it. If it exceeds the legal third, such
consent is necessary.

2. Consent of Heirs:
Under the Sunni law, a bequest to an heir is invalid unless the other heirs consent
to it after the testator’s death. Under the Shia law, consent by the other heirs may
be given before or after the testator’s death.

3. Consent in Case of Bequest to a Non-Heir:

Under the Sunni law, a bequest exceeding the legal third in favour of a non-heir
cannot take effect, unless the heirs consent to it after the testator’s death. Under
Shia law, the consent necessary to validate a bequest exceeding the legal third may
be given either before or after the testator’s death.

4. Lapsing of Legacy:
If the legatee dies before the testator, the legacy lapses under Sunni law. Under the
Shia law, if the legatee dies before the testator, the legacy pass to the legatee’s
heirs, unless revoked by the testator.

5. Life-Estates:
Life-estates are not recognised in Sunni law. They are, however, recognised in Shia
law.
6. Will of a Person Committing Suicide:
The will of a person committing suicide is valid in Sunni law; under Shia law, if a
person wounds himself mortally, or takes poison for committing suicide, and then
makes a will, such a will is invalid.

7. Bequests to Testator’s Murderer:

Under Sunni law, a bequest to a person who kills the testator is void, even where
the legatee accidentally causes the death of the testator; such a bequest under the
Shia law is void only when death is caused intentionally.

8. Abatement of Bequests:
Under Sunni law, where the bequests exceed the legal third and the heirs do not
consent to them, the bequests abate rateably. Under the Shia law, there is no
rateable abatement. Bequests prior in date take priority over those that are later in
date. But where there are successive bequests, all of the exact third, the later
bequest will be a revocation of the first.