WILLS UNDER MUSLIM LAW
The rules regulating inheritance are based on the principle that the deceased's property should devolve on those who by reason of consanguinity or affinity have the strongest claim to be benefitted by it and in proportion to the strength of such claim
Testator: Individual making the will
Legatee: individual, group or institution who is receiving the bequests made.
Sec. 183 : Capacity for making wills:
1.
Sound
mind
2.
Major
3.
Free
consent
4.
Bequests
to heirs : is not valid unless the other heirs consent to the bequest after the
death of the testator. Any single heir may consent so as to bind his own share.
The consent may be express or implied.
Sec 184: Will how made: In any manner showing a clear intention to make it and shall take effect on acceptance whether expressly or impliedly by legatee after the testators death.
Oral will: A will may be made orally. [1]
Not subject to any formalities, only the clear intention to make it is
required. i.e. Clear intention of the testator must be sufficiently
ascertained.[2]
Hence strict proof required.[3] NO
WITNESSES NECESSARY for validity of will. Similarly with the attestation of a
written will by witnesses does not disprove validity of will.
Acceptance by legatee: A will becomes effective and the title of the property bequeathed is completed only with the legatee’s acceptance whether express or implied after the death of the testator.
Sec. 185: Subject of legacy: A will can be made in respect of :-
1. Corpus: the substance which may be lawfully posessed
2. Usurfruct: the profits that accrue from the
subject bequeathed.
A future bequest in void
Separate bequests of corpus and usurfruct may be
made.
Bequest of property not belonging to testator is not
valid, unless true owner gives consent to such bequest after the death of the
testator. Such consent must be voluntary and gratuitous.
Sec 186: Object of legacy : a bequest may be made for any purpose charitable, religious or otherwise which is not prohibited by mohammedan religion.
Sec 187: Who may be legatee: Any individual or a group of individual or an institution, capable of holding property. Provided that, the legatee is in existence at the time of testators death and not an apostate or a murdered (in case testator dies of unnatural causes). A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. [4]
Joint legatees: In case the legatee was not
competent from the very beginning, the
entire legacy would go to the other legatee, however if the legatee becomes
incompetent subsequently , remaining legatees would only get their share and
the other half would lapse.
Sec 188: Limits of testamentary powers: A mohammedan is not entitled to make bequests beyond the scope of sec 189 and 190. 2 fold restrictions placed :-
1.
Restriction
as to the persons to whome bequest may be made. Sec 189
2.
Restriction
as to the property of which a bequest may be made. Sec 190
Limit of 1/3rd of property to be disposed of is based on the tradition and object of preventing a person from so disposing of the property as to leave the heirs destitute. The limit on person to whome bequests can be made is done to prevent the showing of favouritism to any heir and to maintain the division of heritage according to fixed principles.
Sec 189: Bequests to heirs : Undue preference given to some particular heirs without the consent of other heirs is altogether invalid [5]. Consenting heirs must be major and sane, otherwise consent invalid.
An unequal division by will among heirs not entirely excluding any heir, such a bequest would be valid upto the extent of 1/3rd.[6]
Sec 190: Extent of bequeathable property: No disposition of property in excess of 1/3rd to a stranger allowed , except in the following cases :-
1. Subject
to the provisions of any law for the time being in force, such excess is
permitted by a valid custom.
1.
Where
there are no heirs of the testator
2.
Where
existing heirs consent of such bequest after the death of the testator
3.
Where
the only heir is husband or the wife and the bequest of such excess does not
affect their share.
4.
A
bequest in excess of 1/3rd for pious purposes is not valid. Contingent
bequests and bequests in future void. Alternative bequests valid.
RELEVANT CASE
LAW
JALIHUR RAHMAN
BORA V/S SAMNUR BIBI
Point of
determination was , what was the effect of lack of consent of the other heirs
to the bequest? A mohammedan is competent to dispose off by will 1/3rd
of surplus estate to non –heir and this power is not subject to the consent of
other heirs. In case of bequest of the remaining 2/3rd, no part of
it shall be valid unless consented to by the heirs after the death of the
testator.
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