NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

FAMILY LAW-II

VI TRIMESTER

PROJECT ON:

“WILL UNDER MUSLIM LAW”

SUBMITTED TO: SUBMITTED BY:

Kavita Singh Gaurav Singh

Associate Professor 2018BALLB34

Table of Contents
CERTIFICATE...................................................................................................................................3
ACKNOWEDGMENT........................................................................................................................4
OBJECTIVES......................................................................................................................................5
HYPOTHESIS.....................................................................................................................................5
RESEARCH METHODLOGY..........................................................................................................5
REVIEW OF LITERATURE.............................................................................................................5
INTRODUCTION-Nature of Will......................................................................................................6
Origin of the law of will.......................................................................................................................7
Formalities of will................................................................................................................................7
Requisites of a valid will......................................................................................................................9
1. Testator and his competence...................................................................................................9
(II) Legatee and his competence...................................................................................................10
(III) Subject of will and its validity...............................................................................................11
(IV) Testamentary power and its limits.......................................................................................12
(a) Limitation as regards the Legatees-....................................................................................12
(b) Limitation as regards the Disposable Property-................................................................13
Doctrine of Consent:..........................................................................................................................14
Rateable abatement:..........................................................................................................................15
Construction of Will..........................................................................................................................16
Revocation of the Will.......................................................................................................................16
i. Express revocation.................................................................................................................16
ii. Implied revocation.................................................................................................................16
Probate and letter of administration:...............................................................................................17
Death-bed gift (Gift in Marz-ul-maut):............................................................................................17
Conclusion..........................................................................................................................................19
Bibliography......................................................................................................................................20

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 CERTIFICATE

This is to certify that this project on “Will under Muslim Law” has been
prepared and submitted by Gaurav Singh who is currently pursuing B.A. LLB
(Hons.) at the National Law Institute University, Bhopal in fulfilment of Family
Law - II Course. It is also certified that this is this research is original and this
research has not been submitted to any other University, nor published in any
journal.

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 ACKNOWEDGMENT

I would like to acknowledge and extent my heartfelt gratitude to Kavita Singh

for guiding me throughout the development of this project work into a coherent
whole by providing helpful insights and sharing his brilliant expertise. I would
also like to thank the officials of The Gyan Mandir, NLIU for helping me to
find the appropriate research material for this project work. I am deeply
indebted to my parents, senior and friends for all the moral support and
encouragement.

GAURAV SINGH

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OBJECTIVES
The proposed research paper aims to achieve the following objectives: -

 To understand the origin of the law will.

 To understand the concept of will under Muslim law.
 To understand the Requisites of a valid Will.
 To understand the Revocation of will under Muslim law.

HYPOTHESIS
The hypothesis taken by the researcher is that the under Muslim law there is no proper
concept of Will under Muslim law.

RESEARCH METHODLOGY
The various books, various articles, websites, Law journals, Acts, Treatises, are referred for
this topic. The sources from which the material for this research collected are primary &
secondary. The methodology used in the research has been Doctrinal. No non-doctrinal
method has been used by the researcher in this project work.

REVIEW OF LITERATURE
 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.

 Mantha Ramamurti, Law of Wills, (8 th Edn., Law Publishers (India) Pvt. Ltd., 2012).

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  Dr. Paras Diwan, Family Law, (9th Edn, 2009)

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:

 Will is a conferment1 of right to one’s property on another.

 This conferment of right is to take effect after the death of the testator.

The Arabic equivalent of the word ‘will’ be 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. 2 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. 3 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:

1
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.
2
Fitzgerald, 167; Fat. Law §369, 373.
3
Muhammad Ali, Manual of Hadith (Lahore, 1994), 334, No. 1

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 “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 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.”4

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 Bukhari5
Sad ibn Abi Waqas 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 put test 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 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 decision6.

Formalities of 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

4
Ameer Ali, I, 569.
5
Muhammed Ali, Manual of Hadith (Lahore, 1994), 334-5, No. 2
6
Saksena, Muslim Law (Abridged ed. 1938), 366

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heavy one on those who assert it and it must be proved with the utmost precision, and with
every circumstance of time and place.7 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 required8.
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 to
him but not if the inability is recent. 9 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.”11
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.12 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 Bibi 13 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.14 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. 15 But where a Mohammedan
executed a document which started, “I have no son, and I have adopted my nephew to
7
Venkat Rao v. Namdeo AIR 1931 P.C. 285 at p. 287
8
Mahabir Prasad v. Mustafa AIR 1937 PC 174 at p. 177; Izhar Fatima v. Ansar Bibi AIR 1939 All 348.
9
Hed. 70, Durr. 408; Bail. I. 625.
10
Hed. 707.
11
Baillie, I, 625 cited in Tyabji §689, com.
12
Ranjilal v. Ahmed AIR 1952 MB 56
13
(1989) 21 All 91
14
1940) 1 M.L.J. 273, 187 I.C. 414, (‘40) A.M. 153.
15
Saiad Kasum v. Shaista Bibi (1875) 7 N.W.P. 313; Ishri Singh v. Baldeo (1884) 11 I.A. 135, 141-143, 10 Cal.

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succeed to my property and title,” it was held by the Privy Council that the document did not
operate as a will.16 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.17

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-

1. 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.18 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 Khan 19 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
16
Jeswant Singjee v. Jet Singjee (1844) 3 M.I.A. 245
17
Abdul Manan Khan v. Murtaza Khan AIR 1991 Pat. 155
18
Hedaya, 673; baillie, 627.
19
AIR 1991 Pat. 155

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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 make a valid will but validate a will made during
minority by ratification after attained majority20.

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
Bibi21 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 partnership 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
Hanafi’s, the bequest will be effective, if it is lawful according to the sect from which he has
apostatized.

(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.

20
Bail I, 627; hed. 673.
21
(1898) 21 All 91

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(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.
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 An
absolutely and B takes nothing under it. Thus, a bequest of life-estate is not recognised under
Sunni law. But the same 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. 22 This question
was left undecided in a case by the Judicial Committee. 23 The view of Oudh Chief Court was

22
Jainabai v. Sethana, 34 Bom. 172; Cassamally v. Churrimbhoy, 30 Bom. 214
23
Mohd. Raza v. Abbas Bandi, 59 I.A. 236.

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that the creation of a life-estate and a vested remainder would be permissible under the Shia
Law.24
(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.25 It was held in this case that a bequest in favour of an heir is not valid
unless the other heir’s consent to the bequest after the death of the testator.
In Fakun v. Mst. Mumtaz Begum26 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.
In Abdul Manan Khan v. Murtaza Khan27 the Court held that a bequest in favour of an heir is
invalid unless the other heir’s 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 Jehan28 clears 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:

24
Wahidunnissa v. Mushat Hussain 2 Luck 189
25
54 Alld. 98: 1932 P.C. 81
26
AIR 1971 Raj 149.
27
AIR 1991 Pat 155
28
3 I.A. 291, 307

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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.
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
entirety29.

29
Husaini Begum v. Mohammad Mehdi, (1927) 49 All 547.

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(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 of his property by will even in excess of one-third,
where this is permitted by custom. Such a custom is recognised among Cutchi Memons 30 and
Khojas36 and in some cases in the Punjab High Court37. 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 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.31

30
Advocate General v. Jimbabai, ILR 41 Bom. 181
31
Illyas etc. v. Badshah etc. AIR 1996 M.P. 634.

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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 binding 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:
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.

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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 the; B is given ¼ tie 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.

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.

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

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 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 sell 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.39 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 intestate32.

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.

32
Indian Succession Act, 1925, Section 212(2).

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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 the minds 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.33 The Calcutta High Court has indicated in Hasrat Bibi v.
Ghulam Jaffar34, that an illness is a death-illness, when-
1. The donor is suffering from the disease at the time of gift and which is the immediate
cause of death;
2. 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;
3. 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;
4. 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. Sahebbi35a 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 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.36

33
Safia Begum v. Abdul Rayaz, AIR 1945 Bom. 538
34
3 C.W.N 57
35
AIR (1973) Bom. 165
36
Bhoona Bi v. Gujar Bi AIR 1973 mad. 154.

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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-
 Declaration of the gift by the donor,
 An acceptance of gift (express or implied) by or on behalf of the donee, and
 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 donor37.
But the donor’s power to dispose of his property by gift during death-illness is subject to
certain limitations which are as follows-

 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.
 Gift to an heir- The gift to an heir made during death-illness is altogether invalid
unless the other heir’s consent to it.
 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.

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
37
Shamshad Ali Shah v. Syed Hassan Shah (Pakistan), PLD 1964 S.C. 143.

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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.

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)
 B. R. Verma, Commentaries on Mohammedan Law, (11th Edn. Law Publishers
(Indai) Pvt. Ltd, 2009)

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