3. If only some of the heirs consent,

3. Bequest to the testator’s murderer.

4. Bequest of more than one-third of testator’s property.

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5. Creation of unknown estates.

Each of these five restrictions are discussed below in necessary details.

1. Bequest to an Heir:

Sunni Law:

A bequest in favour of an heir is invalid, unless the other heirs consent to it after the testator’s death. Consent, once given, cannot be rescinded. If only some of the heirs consent, the shares of those consenting will be bound, and the legacy in excess is payable out of their shares. The consent need not be express; it may also be signified by conduct showing a fixed and unequivocal intention.

Thus, attestation of the will, acquiescence in the legatee taking possession of the property bequeathed and collecting rents would be sufficient. In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testator’s death.

Problems:

1. A, a Muslim, dies leaving a son B, a widow Ñ and a grandson D by a predeceased son. A by his will, bequeathed 1/3 of the estate to D. Â and Ñ do not consent to the bequest in favour of D. Advise D.

Ans:

In these circumstances, the grandson is not an heir, and a bequest to him is valid to the extent of one-third, without the consent of the son and the widow. (Abdul Bari v. Nasir Ahmed, A.I.R. (1933) Oudh 142, 250 I.C. 330)

2. A, by his will, bequeaths certain property to his brother. The only relatives of the testator living at the time of the will are a daughter and the brother. After the date of the will, a son is born to A. The son, the daughter, and the brother, all survive the testator. The daughter does not consent to the bequest to the brother. Is the bequest valid?

Ans:

The bequest to the brother is valid, for though the brother was an expectant heir at the date 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 daughter and the brother had been the sole surviving relatives, the brother would have been one of the heirs, in which case, the bequest to them could not have taken effect, unless the daughter assented to it.

3. A Sunni Muslim dies, leaving a son and a daughter. By his will, he bequeaths three-fourths of his estate to the son and one-fourth to his daughter. The daughter does not consent to the disposition. Discuss the rights of the daughter.

Ans:

The bequest will not take effect, as a bequest to an heir without the consent of the other heirs is invalid.

Shia Law:

Under the Shia law, a testator may leave a legacy to an heir, so long as it does not exceed one-third of his estate. Such a legacy is valid without the consent of the other heirs. Moreover, the consent of the heirs may be given either before or after the death of the testator.

If a bequest is made to an heir and also to a stranger, the bequest to the heir, even if it is less than a third, is not valid without the consent of the other heirs while that with respect to the portion of the stranger is valid without such consent, provided the portion bequeathed to him does not exceed one-third of testator’s estate; otherwise, the consent of the heirs is necessary for the validity of such a bequest. (Mahomed v. Aulia, (1920) I.L.R. 42 All. 467)

2. Bequest to an Unborn Person:

Under the Sunni law a bequest to an unborn person is void. But the bequest to a child en-vantre sa mere (i.e., in its mother’s womb) is valid, provided the child is born within six months of the will.

Shia Law:

Under the Shia law, a bequest to a child in the womb is valid, if it is born in the longest period of gestation, i.e., ten lunar months. It is not necessary, as under Sunni law that the child must be born within six months of the date of the will.

3. Bequest to the Testator’s Murderer:

A bequest to a person, who causes the death of the testator, whether intentionally or accidentally, is void under Sunni law.

Shia Law:

Under the Shia Law, a legatee, who causes the death of the testator, is disentitled to take the legacy, only if he caused the death intentionally, but not if it was by accident.

4. Bequest of More than One-Third of Testator’s Property:

A Muslim cannot dispose of by will more than one-third of his property. The remaining two-thirds goes to the heirs by succession. Bequests in excess of the legal third cannot take effect and will abate proportionately, if the heirs do not consent to the excess taking effect after the death of the testator.

Problem:

Discuss whether the following is valid: A bequest to a grandson by a Muslim testator, when he dies leaving a son, a widow and the above mentioned grandson by a pre-deceased son.

Ans:

The bequest is valid, if it does not exceed one-third of the property of the testator. If, however, the grandson also takes some other property as an heir, then it is necessary that the consent of the other heirs should also be obtained to this bequest.

Difference between Bequest to an Heir and to a Non-Heir:

A bequest to an heir is not valid even to the extent of the legal third, unless the other heirs consent to the bequest after the testator’s death, whereas a bequest to a non-heir is valid to the extent of the legal third, even without the consent of the heirs.

5. Creation of Unknown Estates:

A Muslim cannot create, by will, an estate repugnant to his law. Bequests in futuro or contingent bequests are void according to Muslim law. An alternative bequest, i.e., a bequest to A or  is valid, and A will take the property if he is living at the time of the testator’s death; but if he predeceases the testator and  survives him.  will be entitled to the property. (Advocate-General v. Jimbabai, I.L.R. (1917) 41 Bom. 181)

Problem:

A Shia Muslim by his will purport to give an estate for life to A, and thereafter to  for life, with a power to  to nominate his successor.  nominates Ñ as his successor. Advise Ñ as to his rights.

Ans:

On the above facts, it was held that A and  took a life- interest, and that the power of appointment was invalid under Muhammadan law. A and  had a life-interest in the usufruct, and the testator’s heirs were the owners of the property. (Nawazish Alikhan v. Ali Raza Khan, (1948) 75 I.A. 62)