Index

1. Acknowledgement………………………………………………………………………03
2. Introduction……………………………………………………………………………..04
3. Concept…………………………………………………………………………………..06
4. Sunni law and Shia Law Compared……………………………………………………15
5. Conclusion………………………………………………………………………………..17
6. Bibliography……………………………………………………………………………...19
 Introduction

A will from the 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 enabling some of those relatives who are excluded from inheritance to obtain a share in his
goods, and of recognising 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 powers should not be exercised to
the injury of the lawful heirs.1
A will (wasiyat), may be oral or written, has different meanings: it may signify a moral exhortation,
a specific legacy or the capacity of the executor. It means a declaration in compliance with moral
duty of every Muslim to make arrangements for the distribution of his property. A document
embodying the will is called wasiyyat-nama.
In order to understand the rules of the Muhammadan law of wills completely, it is indispensable to
appreciate the effects of two divergent tendencies to be found in Islam. In pre-Islamic times, a man
had an almost unlimited power of disposing of his property. He was free to make will in favour of
anyone he chose, and there was nothing to prevent him from giving away his entire property to some
rich stranger, leaving his own children, parents and kindred in want. But, as the Koran laid down
clear and specific rules for the distribution of inheritance, it was thought undesirable for man to
interfere with God’s ordinances. Hence, it is true to say that the Muhammadan sentiment is in most
cases opposed to the disposition of property by will. Islam also placed a restriction on the testator’s
power, so that he was not allowed to bequeath more than one-third of his estate.
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 the devolution of property according to the laws of inheritance. 2 It is uncertain how
the limit of one-third was fixed, but it has been suggested that Roman law may have influenced this
decision.

1
Ameer Ali, I, 569.
2
Ameer Ali, I, 33.

2
The testamentary capacity of a muslim is cut down by two principal limitations: as to quantum, he
cannot bequeath more than one-third of his net estate; and as to the legatees, he cannot bequeath to
his own heirs.
The will of a Muslim is governed in India, subject to the provisions of the Indian Succession Act,
1925, by the Muhammadan law.

3
 Concept

Form of Will

Muhammadan law does not prescribe any particular form for the making of wills. The will may be
made orally or in writing. Convenience, however demands that it should be in writing, for ‘he who
rests his title on so uncertain a foundation as the spoken words of a man, since deceased, ios bound
to allege, as well as to prove, with the utmost precision, the words on which he relies, with every
circumstance of time and place’3. If the will is in writing it need not be signed; and if signed, it need
not be attested. The only requisite is that the intention of the testator should be clear, thus, a dumb
person, or a person who is unable to speak due to illness, may make valid wills through gestures.
For instance, a sick man is unable to speak from weakness. Another man addresses him and says,
“Do you give away one-third of your estate to Z?” If the sick person gives a clear nod with his head,
the will is incomplete.
A letter written by the testator shortly before his death, and containing directions concerning the
disposition of his property, was considered to constitute a valid will. If the intention is clearly
expressed, a will takes effect as a will even if it is described as tamliknama, or is in any other form.
The term tamlik is one of general import and may be applied to a gift, to a sale or to a will. Where a
man leaves one testamentary writing or several testamentary writings it is the aggregate or the net
result that constitutes his will. A document in the nature of instructions by the deceased to his legal
advisors or to his relative as to the instructrions to be given to the legal advisors as to the disposition
of his property would operate as a valid will and may be admitted to probate. But if the intention is
not clear it will not take effect as a will.4 The onus of establishing an oral will is always very heavy;
it must be proved with utmost precision, the contents and intention must be implicit from the
circumstances. So, the formalities are not material, the essentials are:
● the testator must be competent;
● the bona fide intention must be clearly expressed;
● it must be intended to operate after his death;

3
Baboo Beer Pertab v. Maharajah Rajender Pertab (1867) 12 M.I.A. 1, 28.
4
B.R. Verma, Mohammedan Law (6th edn., 1991) at p.508.

4
 ● the quantitative limits of the property must be observed;
● the qualitative requisites of the subject-matter of the will- the property- are satisfied; and
● the legatee must be competent to take the benefit.
In the case of Aulia Bibi v. Ala-ud-din5, it was found that a document purporting to be the will of a
Muhammadan 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.

Capacity of Testator

Every Muslim who is sane and rational is entitled to make a will. The testator must also be a major.
Under Islamic law majority is attained at puberty, and the presumption is that a Muslim attains
majority on the completion of the fifteenth year. In India, however, under the provisions of the Indian
Majority Act, majority, for the purpose of making a will, is attained at eighteen and not at fifteen.
But, if a guardian of his person or property has been appointed by Court or his property has come in
charge of the Court of Wards, he will attain majority on completion of 21 years.
A will procured by undue influence, coercion or fraud will not be upheld, and the courts take great
care in admitting the will of a parda-nashin woman.
In Shia law, a will made by a person after wounding himself or taking poison, with a view to
committing suicide, is invalid; but aliter, if he makes a will and then commits suicide.
By will, a Muslim can not dispose of more than one-third of his net estate; nor can he bequeath to
an heir. And it is unlawful to make a bequest to benefit an object opposed to Islam as a religion.
Where (i) a Muslim leaves to a stranger by will a house exceeding in value the bequeathable third,
and the heirs do not consent to it; or (ii) a Hanafi or a Da’udi Bohora makes a bequest to an heir and
the heirs do not consent to it; or (iii) a Muslim makes a will for building a Hindu temple, or a Jewish
synagogue, or a Christian church, the bequests would be void.

5
[1906] I.L. 28 All 715

5
Capacity of Legatee

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 Ithna Ashari (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
rd
the will, goes to the remaining legatee or legatees. Thus- A makes a bequest of 1/3 jointly in favour

6
 th
of B and C (i.e., 1/6 each). B was dead at the time of the bequest, whether A knew or not. C would

rd
get the entire 1/3 .

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.

Subject-Matter of Will

No Muslim can bequeath more than one-third of the residue of his estate, after the payment of debts
and other charges. When a Muslim dies, his debts and funeral expenses are to be paid first; therafter,
out of the residue only one-third can be disposed of by will.
It is not necessary that the property bequeathed by will must be in existence at the time of making
of the will. It may, or may not be; but it must be so at the time of the death of the testator; for, the
will takes effect from the point of the time the maker of the will dies. This is the vital point of
difference between a will and a gift. Thus, A writes a will ‘I give to B the plot X that I shall purchase
at Jodhpur’. If this plot is purchased by A later, on A’s death, B will get it as a legatee. But if A fails
to purchase it, and dies, B cannot say that the plot should be purchased from the testator’s property
and given to B in compliance with A’s ‘will’ - for there is no ‘will’ in that case.

7
Anything, movable or immovable, over which the right of property may be exercised or which may
form the subject of exchange or barter, or a fractional share thereof, or the usufruct of a thing, may
be lawfully disposed of by will. A bequest remains valid and operative, though subsequent to the
making of the will the testator makes any changes or improvements over the property subject to such
changes as imply a revocation by the testator.
The subject matter of will may be:
1. The corpus of a property, which must be in existence at the time of testator’s death, and could
be non-existent at the time of making the will;
2. The usufruct of an existing property for a limited time or for lifetime of the legatee. The
position of the legatee is the same as that of a beneficiary under a wakf. It is permissible that
the corpus may be given to one person and the usufruct of the same property to another.
3. The vested remainder. Suppose A bequeaths the usufruct of a property to B, for B’s lifetime,
and then the whole of property to C. C has vested remainder in the property.
Thus, the Muslim law differentiates between the corpus of the property and the usufruct of the
property. The corpus means the body, the physical form of the property, such as a house means the
construction. Usufruct means the fruits, the benefits, the uses, i.e. the intangible rights flowing from
the property. Thus, in regard to the house, the usufruct means the right to live in it, rental incomes
from it, etc. The bequest must vest in the legatee the absolute ownership over the corpus, and the
corpus must physically exist at the time of death. The usufruct may on the other hand be given for a
limited period; when this period related to the lifetime of the legatee, it is called life interests.
In Amjad Khan v. Ashraf Khan6 the facts were: H made a gift of his property to W subject to the
conditions that (a) W would remain in possession during her lifetime, (b) after her death the entire
property would revert to C. The questions were: (i) was this an absolute gift with void conditions,
and (ii) would the gift of a life interest be valid under Muhammadan law? On the first point the Privy
Council decided that as the intention to grant only a life interest (and not full rights of ownership)
was clearly expressed, it would be only a life interest and would not be enlarged into an absolute
estate. On the second point no opinion was considered necessary. This decision made one thing clear,
that if nothing more than limited interest for life is intended to be transferred by gift, it would not be
enlarged into an absolute interest. As a result of this decision the High Courts (of Oudh, Nagpur,

6
AIR 1925 Oudh 568: ILR (1929) 4 Luck 305: AIR 1929 PC 149.

8
Bombay and Calcutta) held that grants of life interests were valid both by way of gift of inter vivos
or by will, and they would not be enlarged into an absolute ownership.

Abatement of Legacies

A Muslim testator can make a will of only one-third of his property without the consent of his or her
heirs. If the bequest is in excess, and the heirs refuse to give their consent, the totality of the will
does not become operative or invalid but abates rateably and is valid to the extent of one-third of the
property, as has been stated in the Hedaya. In Damodar Kashinath Rasane v Shahzadi Bi7, the
Bombay High Court stated that a Muslim cannot bequeath more than one-third of his property
whether in favour of an heir or a stranger. The rule of Abatement is different in Sunni Law and in
Shia Law.
I) In Sunni Law, the general rule is that a bequest in excess of the one-third of the estate of the
deceased would take effect with respect to one-third with the excess going by inheritance. Where
there are more than one legatees and the property given to them exceeds one-third, the shares of each
of the legatees would be reduced proportionally. This is called the ‘Rule of Rateable Proportion’.
The following principles are applied:
A. The property disposed of by will, must first abate equally and rateably.
B. The proportionate part of each bequest which is for a secular purpose must be allotted to it
C. The proportionate parts so abated of bequests for pious purposes must be aggregated and the
aggregate distributed so that the priority will be given to the extent of the full bequest.
In such cases the following rules are applied:
➢ The Quranic rules will be given first preference. The Quranic heirs will have precedence over
other bequests for pious purposes.
➢ The property will be applied for certain works which are necessary.
➢ The property will be applied for voluntary purposes.8

7
AIR 1989 Bom 1
8
Mathuradas v. Raimal (1935) 37 Bom. L.R. 642

9
There is an exception to the above rule. Where the legator has left only his or her spouse, and apart
from the spouse there is no other heir, the above rule of only making one third of the property may
become inapplicable. In such cases, the spouse shall take the whole property. The rule of
bequeathable third shall have no application if no heir has survived the legator.
If a Muslim bequest more than one-third of the property and the heirs does not consent to the same,
the shares are reduced proportionately to bring it down to one-third. Bequests for pious purposes
have no precedence over secular purposes, and are decreased proportionately. Bequests for pious
purposes are classified into three categories:
1. Bequest for faraiz, that is, purposes expressly ordained in the Koran viz. hajj, zakat and
expiation for prayers missed by a Muslim.
2. Bequest for waji-bait, that is, purposes not expressly ordained in the Koran, but which are
proper such as charity given for breaking rozas.
3. Bequest for nawafali, that is, purposes-deemed pious by the testator, viz. bequest for
constructing a mosque, inn for travellers or bequest to poor. The bequests of the first category
take precedence over bequests of the second and the third category and bequests of the second
category take precedence over those of the third. An example under the Rule or Rateable
Proportion: If a Muslim Man executes a Will giving Rs.30,000 to A and Rs. 20,000 to B. He
leaves behind property that comes up to Rs.75,000 after payment of funeral expenses. Here
the bequeathable limit would be one-third, which would be Rs.25,000 while the bequest in
the will at the moment is Rs.50,000. The bequest in favour of A and B will be proportionately
reduced. The ratio of the bequest will be the same but both bequests will be reduced to half,
that is, the bequest due to A would become Rs. 15,000 and that of B would be Rs.10,000.
The sum total would then by Rs.25,000 which would make it valid.

II) Under Shia Law, the principle of rateable abatement is not applicable and the bequests made prior
in date take priority over those later in date. But if the bequest is made by the same will, the latter
bequest would be a revocation of an earlier bequest. This is called the ‘Rule of Chronological
Priority’. The legatee whose name appears first in the Will is to be given his or her share, followed
by the second legatee and then the third and so on. The moment the bequeathable one-third is
exhausted full effect has been given to the Will. Any other legatee whose name follows after the
one-third of the assets has been distributed will not receive anything. The rule of chronological

10
priority is not applicable in cases where under one legacy two or more persons have been an exact
one-third of the total assets. In such cases, the legatee whose name appears last gets the one-third
given to him under the Will, and the legatees whose names appear prior to him will not get anything.
For example, A testator dies behind leaving assets worth Rs.1,20,000. He leaves a will under which
he leaves Rs.20,000 to A, Rs. 30,000 to B and Rs. 40,000 to C. As the total assets of the testator are
to the tune of Rs.1,20,000, the bequeathable one-third of that amount would be Rs. 40,000.
Following the rule of Chronological Priority, as A’s name appears first, he will be given Rs. 20,000.
The rest of the Rs. 20,000 of the one-third will be given to B. C will not get anything as the one-
third (Rs. 40,000) is exhausted.

Revocation of Will

The basic feature of a will is its revocability. The testator may revoke his will at any time before his
or her death either expressly or impliedly. The express revocation may be either oral or in writing.
A will may be expressly revoked by tearing it off or by burning it. This revocation is possible till the
testator breathes his last which is Marzul Maut (end at the death bed). Similarly a testator is lawfully
empowered to make a subsequent will of the same property and the previous will would be revoked.
The will can be revoked impliedly by testator transferring or destroying completely altering the
subject matter of the will or by giving the same property to someone else by another will. Where the
testator has disposed of the bequeathed property by way of alienation it will be presumed that the
testator has revoked the bequest.9 A subsequent sale or gift of the property may also amount to
revocation.
Therefore under Islamic Law, the following conditions can stand as revocation:
● sale of the bequeathed property
● gifting the property
● when the property is materially changed or altered by way of addition and the property
cannot be delivered
Mere denial by the testator as to the validity of a bequest will not be sufficient to revoke the will. A
similar declaration will not amount to revocation either. Under Islamic Law, a bequest to a person

9
Abdul Karim v. Shiofiannisa (1906) 33 Cal. 833

11
is revoked by a bequest in a subsequent will of the same property to another. But a subsequent
bequest, though it be of the same property to another person in the same will does not operate as
revocation of the prior request and the property will be divided between the two legatees in equal
shares, as per the Hedaya.
Another important aspect of Revocation is intention of the legator. It is important to show that a
legator has intended to alter the will and the alteration in the deed, is a result of an altered intention
in the interest of justice and good conscience.

12
 SUNNI LAW AND SHIA LAW COMPARED

Sunni Law Shia Law

1. Bequest by one who commits the act for 1. Bequest is valid only if the act for
suicide before or after making the will is committing suicide was done after
valid. making the will. Not if the act was done
first and then the will made.

2. Bequest for unborn person valid if the 2. Bequest for unborn child is valid if the

child is born within 6 months of the child is born within 10 months of the

making of the will. making of the will.

3. Consent of heirs
● For bequest in favour of stranger 3. Consent of heirs
rd ● For bequest in favour of stranger
up to 1/3 property- not
rd
up to 1/3 property- not
required.
● For bequest in favour of heirs required.
rd ● For bequest in favour of heir
(even 1/3 ) consent of other
(1/3rd) consent not necessary.
heirs necessary.
rd
● For more than 1/3
4. Consent of the legatee presumed if he
necessary.
dies before consenting.
4. There is no presumption; but the consent
of his heirs must be obtained.

13
 5. The legacy lapses if the legatee predeceases 5. In case of death of legatee, the legacy
the legator. devolves on his heirs. But if no heirs, it does
lapse back to the legator.

14
 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-

15
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.

16
 Bibliography

Books Referred:

i. Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford Univ Pr (Txt); 5 edition (30 September
2008).
ii. M. Hidayatullah and Arshad Hidayatullah, Mulla Principles of Mahomedan Law, (Lexis Nexis
Butterworths Wadhwa Nagpur; Nineteenth edition (2010)).
iii. V.P. Bharatiya (Editor), Syed Khalid Rashid's Muslim Law, (Eastern Book Co; 4th Revised
edition edition (20 April 2004).
th
iv. F.B. Tayyabji, Muhammadan Law ( 4 edn., Bombay: N.M. Tripathi Private Ltd., 1968).

v. Dr. Paras Diwan, Muslim Law in Modern India, (8th Edition,Reprint 2008).

17