CHANAKYA NATIONAL UNIVERSITY, PATNA-

800001

The Role of Consent in Wasiyat ( Wills in Muslim

law)
Submitted By:
Shivalika Kumari

B.A.L.L.B. (Hons.),2359
(Hons.),2359

Submitted to:

Pooja Srivastava

(Research Associate/ Teaching Assistant)

This final draft is submitted in fulfilment of project in Family Law-II for the completion of
BA.L.L.B course.
 DECLARATION BY THE CANDIDATE

I, hereby declare that the work reported in the B.A.LLB(Hons.) Project Report titled “The Role
of Consent in Wasiyat ( Wills in Muslim law)” submitted at CHANAKYA NATIONAL LAW
UNIVERSITY,PATNA is an authentic record of work carried out under the supervision of Mrs.
Pooja Srivastava.. I have not submitted this work elsewhere for any other degree or diploma. I
am fully responsible for the contents of my project.

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 ACKNOWLEDGEMENT

I give all the honour and glory to God Almighty, who gave me the grace to complete this project.
I acknowledge with great appreciation, my professor, Mrs. Pooja Srivastava., for her guidance
and commitment to the success of this work, despite the large workload on his table. I am
grateful to you ma’am.

I also appreciate with great joy my parents, the best parent on the face of the planet, who ensures
my success academically. Thank you for your support spiritually, financially and morally.

I owe the present accomplishment of my project to our CNLU librarians, who helped me
immensely with materials throughout the project and without whom I couldn’t have completed it
in the present way.

I would also like to extend my gratitude to my friends and all those unseen hands that helped me
out at every stage of my project and for accommodating my trouble during the writing period of
this project. God bless you all.

THANK YOU,

SHIVALIKA KUMARI

SEMESTER:03

CNLU, Patna

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AIMS and OBJECTIVE

1. The study about the role of consent in wasiyat.

2. To know whether such consent can be written or oral.

HYPOTHESIS

Under the Shia law, the 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. But, if the legacy
exceeds one-third it is not valid unless the other heirs consent thereto.

RESEARCH METHODOLOGY
The method employed shall be that of doctrinal research. The methodology shall be the analysis
of the principles of methods, rules, and postulates employed by law. It is a systematic study of
methods that are, can be, or have been applied within law and it is based upon the study or
description of methods.

Doctrinal Research is concerned with legal prepositions and doctrines. In case of doctrinal
research the sources of data are legal and appellate court decisions whereas in the other case the
sources of data are less and mostly new techniques have to be used. Doctrinal research is not
concerned with people but documents whereas in case of non doctrinal more importance is given
to the society and people.

The scope of doctrinal research is narrower as compared to non doctrinal since it studies about
what the doctrine or the authority says yet more encouragement is given to doctrinal type of

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research than the non doctrinal. There is no requirement of imparting training for collection and
use of sources whereas training is needed to use new techniques in the non doctrinal research. In
case of doctrinal field work is not needed library is sufficient whereas in non doctrinal research
the field work is most important thing.

LIMITATION TO STUDY
Since the researcher is a student of law, she has access to a limited area. The researcher having
read the legislations, commentary, and reports itself could understand the problem clearly but it
would have been clearer if he would have read commentary of more writers. The researcher has
limited time for the project. The historical need and background is also necessary for having a
bird’s eye view of the particular topic and it gets developed only by effective and extended
reading over a long period of time. But the required materials are not available through the e-
resource access of our library. The researcher has a restricted access to the various reports and
other form of relevant literature but a huge portion of require literature is not available at the
researcher’s disposal due to limited access and paucity of time as well. But still researcher with
his hard work will manage to take out the best possible work.

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 INDEX

CHAPTER 1- INTRODUCTION

CHAPTER 2- CONCEPT OF WILL

2.1 –NATURE OF WILL

2.2 ESSENTIAL OF WILL

CHAPTER 3-IMPORTANCE OF THE CONSENT

CHAPTER 4-ABATEMENT OF LEGACIES

CHAPTER 5- REGISTRATION AND REVOCATION OF WILLS

CONCLUSION

BIBLIOGRAPHY

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Abstract:
In Muslim law, the testamentary document called the will is referred to as Wasiyat .Will or
Wasiyat is a document made by the legator in favour of legatee which becomes effective after
the death of the legator. Under Muslim law no person is entitled to make will of the whole
property. Limitations are imposed in making will.The reason being to pay the respect to the word
of prophet in order to ensure the shares of the legal heirs. In case of will of absolute property
nothing will remain for all sharers prescribed under Muslim Law. Wills are declared lawful in
the Quran, though the Quran itself does not provide for the testamentary restriction of one-third.
The permissibility of bequests up to one-third is traced to a Hadis of the Propeht which ahs been
stated by Sa’d Ibn Abi Waqqas and reported by Bukhari.

Introduction

Sa’d Ibn Abi Waqqas 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 serious. So I said, “My
illness has become very severe and I have much property and there is none to inherit from me but

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a daughter, shall I then bequeath two-thirds 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 that 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 puttest into the mouth of they wife.”

Will is the anglo-mohammedan term for its Arabic equivalent Wasiyat. Generally wasiyat means
‘will’ but it has also other meanings. Will means the legal declaration of the intention of a
testator with respect to his property, which he desires to take effect after his death. It may signify
a moral exhortation, specific legacy or the capacity of the executor, executorships. The Islamic
will is also called al-wasiyya. From this definition we get the following elements of will:

1. Will is a conferment of right to one’s property on another.

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

Wills are declared lawful in the Quran, though the Quran itself does not provide for the
testamentary restriction of one-third. The permissibility of bequests up to one-third is traced to a
Hadis of the Propeht which has been stated by Sa’d Ibn Abi Waqqas and reported by Bukhari.

The Muslim law of wills affects only Muslims. Where a Muslim gets married under the Special
Marriage Act, 1954 either to a Muslim or a non-Muslim, he or she along with the respective
spouse and the children born of this marriage would no longer be governed by the Muslim law of
Succession but will be governed by the provisions of the Indian Succession Act, 1925. The
essential differences between the rules governing disposition of property by a will under Muslim
Law and under Indian Succession Act, 1925 is that under Muslim Law, a testator cannot make a
will of more than one-third of his or her property but under Indian Succession Act, a person can
make a testamentary disposition of 100% of the property. Secondly, under Muslim Law there are
restrictions on the powers of the testator in case of an heir and under Indian Succession Act there
is no such restriction.

This research project analyses the law of Wills in general-the nature and scope of wills, the
execution of the wills and the validity of wills in both Sunni and Shia Law.

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 CONCEPT OF WILL

When a Muslim dies there are four duties which need to be performed. These are:

 Payment of funeral expenses

 Payment of his/her debts
 Execution his/her will
 Distribution of the remaining estate amongst the heirs according to Shariat.

When a person dies his/her property devolves upon his/her heirs. A person may die with or
without a will (Testament). If he or she dies leaving a will, the property is distributed among
his/her heirs according to the rules of Testamentary Succession. In other words, the property is
distributed as per the contents of the testament or will. On the other hand if a person dies leaving
no testament (will), that is dies intestate, the rules of intestate Succession are applied for
distribution of the property among heirs.

The Islamic will is called al-wasiyya. A will is a transaction which comes into operation after
the testator’s death. The will is executed after payment of funeral expenses and any outstanding
debts. The one who makes a will (wasiyya) is called a testator (al-musi). The one on whose
behalf a will is made is generally referred to as a legatee (al-musa lahu).

The Will (Al-wasiyya)

The Islamic will includes bequests and legacies, instructions and admonishments, and
assignments of rights.

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 No specific wording is necessary for making a will. In Islamic law the will (wasiyya) can be oral
or written, and the intention of the testator must be clear that the wasiyya is to be executed after
his death. Any expression which signifies the intention of the testator is sufficient for the purpose
of constituting a bequest.

There should be two witnesses to the declaration of the wasiyya. A written wasiyya where there
are no witnesses to an oral declaration is valid if it is written in the known handwriting/signature
of the testator according to Maliki and Hanbali fiqh. The wasiyya is executed after payment of
debts and funeral expenses. The majority view is that debts to Allah (SWT) such as zakh,
obligatory expiation etc. should be paid whether mentioned in the will or not.

The Testator (Al-musi)

Every adult Muslim with reasoning ability has the legal capacity to make a will. An adult for this
purpose is someone who has reached puberty. Evidence of puberty is menstruation in girls and
night pollution (wet dreams) in boys. In the absence of evidence, puberty is presumed at the
completion of the age of fifteen years. The Maliki and Hanbalifiqh also consider the will of a
discerning (tamyiz) child as valid.

Under English Law ,it is required that at least 18 years of age to make a valid will (similarly in
most of the United States of America) unless that individual is a military personnel in which case
you may make a valid will at the age of 17.

The testator must have the legal capacity to dispose of whatever he bequests in his will. When
making a will the testator must be of sane mind, he must not be under any compulsion and he
must understand the nature and effect of his testamentary act. The testator must of course own
whatever he bequests.

The testator has the right to revoke his will by a subsequent will, actually or by implication.

In traditional Sunni Islamic law the power of the testator is limited in two ways:

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  Firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs consent to
the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets
his/her legal share and the residue can be bequeathed.
 Secondly, the testator cannot make a bequest in favour of a legal heir under traditional
Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a
legal heir providing the bequest does not exceed the bequeathable onethird.

Legal heir in this context is one who is a legal heir at the time of death of the testator.

The Legatee (Al-musalahu)

Generally speaking, for a bequest to be valid, a legatee must be in existence at the time of death
of the testator except in the case of a general and continuing legatee such as the poor, orphans
etc.

The legatee must be capable of owning the bequest. any bequest made in favour of any legal heir
already entitled to a share is invalid under traditional Sunni Muslim law unless consented to by
other legal heirs. an acknowledgement of debt in favour of a legal heir is valid.

Acceptance or rejection of a bequest by the legatee is only relevant after the death of the testator
and not before. Generally speaking, once, a legatee has accepted or rejected a bequest he cannot
change his mind subsequently.

If the legatee dies without accepting or rejecting the bequest, the bequest becomes part of the
legatee’s estate according to the Hanafi fiqh because nonrejection is regarded as acceptance.
According to the other three main Sunni madhahib, the right to accept or reject the bequest
passes onto the heirs of the legatee. There is difference of opinion as to the time at which
ownership of a bequest is transferred from the testator (or his heirs) to the legatee. According to
the Hanafi and Shafei the transfer of ownership is at the time of death of the testator, according
to the Maliki and Hanbalifiqh the transfer of ownership is at the time of accepting the bequest.

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 All the Sunni madhahib agree that if the legatee dies before the testator, the bequest is invalid
since a bequest can only be accepted after the death of the testator.

If there is uncertainty as to whether or not the legatee survived the testator, such as a missing
legatee, the bequest is invalid because the legatee must be alive at the time of death of the
testator for the will to be valid.

If the testator and legatee die together, such as in an air crash and it is not certain who died first,
the bequest is invalid according to the Hanafi, Maliki and Shafiifiqh. But according to the
Hanbalifiqh, the bequest devolves upon the legatee’s heirs who may accept or reject it.

Executor of the will (Al-wasi Al- mukhtar)

The executor (al-wasi) of the will is the manager of the estate appointed by the testator. The
executor has to carry out the wishes of the testator according to Islamic law, to watch the
interests of the children and of the estate. The authority of the executor should be specified.
Hanafi and Maliki fiqh state that the executor should be trustworthy and truthful; the Shafiifiqh
state that the executor must be just. The Hanafi fiqh considers the appointment of a Non Muslim
executor to be valid. The testator may appoint more than one executor, male or female. The
testator should state if each executor can act independently of the other executor(s).

If one starts acting as an executor, one will be regarded as having accepted the appointment, both
in Islamic and in English law.

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2.1 Nature of the ‘Will’

The importance of the Islamic will is clear from the following two hadith:

 Sahih al-Bukhari: “It is the duty of a Muslim who has anything to bequest not to let two
nights pass without writing a will about it.”
 Ahmad and Ibn Majah: "A man may do good deeds for seventy years but if he acts
unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon
him, and he will enter the Fire. If, (on the other hand), a man acts wickedly for seventy
years but is just in his last will and testament, the goodness of his deed will be sealed
upon him, and he will enter the Garden.”

The will gives the testator an opportunity to help someone (e.g. a relative need such as an
orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can
be used to clarify the nature of joint accounts, those living in commensality, appointment of
guardian for one’s children and so on. In countries where the intestate succession law is different
from Islamic law it becomes absolutely necessary to write a will.

The Islamic will includes bequests and legacies, instructions and admonishments, and
assignments of rights. No specific wording is necessary for making a will. A Muslim can make a
will orally or in writing1 . Muslim law requires no specific formalities for creation of a will. It
may be made in writing or oral or even by gestures. Though it is in writing, it need not be signed
by the testator and attested by the witnesses.2 It is necessary that the intention of the testator
should be clear and unequivocal. In Islamic law the will can be oral or written, and the intention
of the testator must be clear that the will is to be executed after his death. Any expression which
signifies the intention of the testator is sufficient for the purpose of constituting a bequest.

If a document possesses the characteristics of a will, the document is considered to be a complete

will. In the case of an oral will, no specific number or class of witnesses is necessary for the
validity of a will. However the following conditions need to be satisfied3 :

1
M.Altaf v. Ahmad Bux (1876) 25 W.R. 121 (P.C.)
2
Ramjilal v. Ahmed, AIR 1952 MP 56
3
M.A Qureshi, Principles of Muhammadan Law, (Ninth Edition, 2005) p.327

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 a. Legator’s intention to make a will must be proved beyond doubt.

b. Terms of the will must be proved

c. Will must be proved with the greatest possible exactness.

On the other hand, in case of a written will, there should be two witnesses to the declaration of
the will. If the testator fails to mention the quantity or amount of bequeathed property, regard
may be given to the number or quantity owned by the testator at the time of death.

2.2 Essential of Will

For a will to be valid, the following conditions are to be satisfied.

a. Capacity/Competence of Testator;
b. Competence of Legatee;
c. Subject Matter
d. Testamentary Capacity.

a. Capacity of Testator:- According to Muslim Law, a testator or legator has to fulfil

the following conditions: age of majority, validity of gifts made by guardians, validity of
a person who has attempted suicide and soundness of mind.

According to Muslim Law, the age of Majority is 15 years, but it is not applicable to the
wills in India. It may be noted that under Shia law, age of majority is not a condition
precedent for making a will. Tyabji states that “the Shiite Law of wills must be deemed to
be unaffected by the Indian Majority Act which defines the age of majority as 18 or 21
and only questions related to marriage, divorce, adoption, and religious usages are
exempt from this”. A Shiite who is ten years old is thus exempt from the Act and has
discretion and is competent to create a will. It has however been held that this view

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 cannot be accepted. There is no expression provision in the Act which excludes the
operation of law for Shia Mulsims.

The Shafi School of Sunni Law has prescribed certain conditions:

a. A person who is capable of duties can make a valid will

b. A person who is under inhibition on account of insanity cannot make a will
c. A person who is not on his senses cannot make a will.
d. A will made by a child is also not valid. However there is a difference in opinion among
Muslim Law Scholars. However, under Muslim law, a will cannot be made by the
guardian on behalf of the minor or insane person and it will be treated as void. A will
made by a person when he was a minor but after attaining majority he ratified the same
will be treated as valid.

Under Shia Law, a will made after the testator who was injured by his own actions or tried to
commit suicide, such a will is declared as invalid. In Mazhar Hussain v Bodha Bibi 4 it was held
that a will of suicide is valid when made in contemplation of taking poison but before poison was
actually taken, onus of proving that the will was written afterwards rests on party impugning
with.

Tyabji says that “a will made by a testator whose mind is unsound does not become valid by his
subsequently becoming of sound mind. A will made by a person while of sound mind becomes
invalid if the testator subsequently becomes permanently of unsound mind.”

b. Competence of Legatee:- Any person having capacity to hold the property can be a
legatee. The Legatee may be a Muslim or a Non-Muslim who is not hostile towards
Islam, man or woman, a major or a minor or even a child in the womb provided the child
is born within six months of the death of the testator. A person who renounces Islam
cannot be a competent legatee. An institution is also a valid legatee. In the general sense,
the institution should not be hostile towards Islam and not promote anti-Islamic activities.
A will in favour of a Hindu temple or a society that propagates another religion will not

4
(1898) 21 All. 91(P.C)

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 be a valid will. However an institution engaged in promoting education and self-reliance
is a valid one as long as it is not against Islam.5

Where a legatee under a will is responsible for the murder or causing death to the testator,
the will made in his or her favour will be invalid under Sunni Law. It is irrespective
whether the murder was cause accidentally or intentionally. It is also immaterial if he
knew about being a beneficiary in the will. Under Shia Law, the legatee will be
incompetent to receive the benefits if the murder was caused only intentionally. The time
of making the will is of no consequence.

The legatee must be capable of owning the bequest. Any bequest made in favour of any
legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless
consent has been given by other legal heirs. An acknowledgement of debt in favour of a
legal heir is valid. Acceptance or rejection of a bequest by the legatee is only relevant
after the death of the testator and not before. Generally speaking once a legatee has
accepted or rejected a bequest he cannot change his mind subsequently.

Where the testator has bequeathed the property jointly to several certain or ascertained
persons, the bequeathed property will be divided equally amongst the legatees. Under
Hanafi law the legatees who have survived the testator will take the property. The whole
of a bequest made to several legatees collectively of whom one or more predeceases the
testator is taken by the surviving legatees, Where the testator has directed that legatee
will be entitled to take only a definite part of the bequest, the legatee will be entitled to
inherit such portion of the property.6

c. Subject matter:- A Muslim can bequeath any property movable or immovable,

corporeal or incorporeal, which must be in existence and transferable at the time of
testator's death. Therefore it is not necessary that the subject matter of the will must exist
at the time of making the will but it must exist when the will becomes operative that is at
the time of the death of the testator.
5
Badrul Islam Ali Khan .v Ali Begum AIR 1935 Lah 251
6
Ibid 5, p.318

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 d. Testamentary Capacity:- A Muslim cannot dispose of by will more than one-third
of the net assets after allowing for the debts and funeral expenses of the testator (under
both Hanafi Law and Shia Law). The remaining 2/3 share should be made available for
distribution amongst the heirs. Even for bequeathing the 1/3rd share, the Muslim has to
obtain the consent of the other heirs. Thus, the testamentary capacity of a Muslim is cut
down by two principal limitations7 :
i. as to quantum where he cannot bequeath more than one-third of his net estate
ii. as to the legatees where he cannot bequeath to his own heirs.

7
Asaf. A.A.Fyzee, Outlines of Muhammadan Law (Fourth Edition,1974,) p.358,

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 IMPORTANCE OF
THE CONSENT

Under Sunni Islamic law the power of the testator is limited in two ways: firstly, he or she cannot
bequest more than 1/3 of the total property unless the other heirs consent to the bequest or there
are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and the
residue can be bequeathed and secondly, the testator cannot make a bequest in favour of a legal
heir under traditional Sunni Muslim law. Here consent must be given at the time of the operation
of the Will, that is, after the death of the testator.

There are two exceptions to the one-third rule:

1) When the testator does not have any heir. In such cases, if the restriction of permissible
one-third is applied, then the beneficiary is the Government who will take the property
by doctrine of Escheat, while the primary purpose of applying the bequeathable
permissibility to the extent of one-third is to protect the rights of the heirs, and not that of
the Government. An heirless person can thus make a bequest of the total property.
2) Where the heirs themselves consent to the bequest in excess of one-third. As the chief
objective is to safeguard the interests of theirs, the excess bequest can be validated by
consent.

Under Shia Law, the bequest in favour of an heir is valid without consent of other heirs provided
it does not exceed the bequeathable one-third limit. If it is in excess of the one-third, then the
consent of those heirs is necessary whose share is likely to be affected by the bequest.

The consenting heirs must be majors, sane and not insolvent in law to be considered as valid
consent. The consent given by the heirs may be expressed or implied. It may be oral or in
writing. It can also be implied from conduct. Mere silence or inaction would not be taken as
consent even if heirs were present at the time of the proceedings for effecting the names in the
Will. Where a will is executed in writing and is attested by the testator’s heirs it is sufficient
proof of their consenting to the act of the testator. Where the testator makes a bequest in favour

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of an heir and on his death, the other heirs help the legatee in effecting a mutation in name or
allow the heir to take exclusive possession of the property it is proof of the heirs’ consent.

Under Shia Law, the consent of heirs whose shares are adversely affected can be given before or
after the death of the testator and under Sunni Law, it must be given after the testator’s death.
But once the consent is give, it cannot be rescinded subsequently and the heirs are bound by it.
Similarly, consent cannot be given after an heir has previously repudiated it.

The legacy in favour of an heir can be validated by obtaining the consent of one or some of the
heirs or even all of them collectively. Where all the heirs give their consent the legacy is valid to
the extent of the shares of all. Where only one or some of them give their consent the legacy
would be valid only to the extent of the heirs’ shares. In the case of Gulam Mohammed v Gulam
Hussain8, the Privy Council held that a bequest in favour of heirs without the consent of other
heirs is invalid.

8
AIR 1932 PC 81

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 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
Bi.9 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:

 The property disposed of by will, must first abate equally and rateably.
 The proportionate part of each bequest which is for a secular purpose must be allotted to
it.
 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.

9
AIR 1989 Bom 1

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  The property will be applied for voluntary purposes.10

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:

 Bequest for faraiz, that is, purposes expressly ordained in the Koran viz. hajj, zakat and
expiation for prayers missed by a Muslim.
 Bequest for waji-bait, that is, purposes not expressly ordained in the Koran, but which
are proper such as charity given for breaking rozas.
 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 rate able abatement is not applicable and the
bequests made prior in date take priority over those later in date. But if the bequest is

10
Mathuradas v. Raimal (1935) 37 Bom. L.R. 642

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 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 legateeand 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 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.

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 REGISTRATION AND
REVOCATION OF WILLS

REGISTRATION OF WILLS

Though it is not necessary to register a will, but the Law recognizes a Registered will when
the execution of a will is disputed and when there is an unregistered will. The provisions
relating to registration of the will have been given in sections 40 and 41 of the Indian
Registration Act. The testator, after his death, or any person claiming as executor or
otherwise under a will, may present it to any Registrar or Sub Registrar for registration. No
time limit has been prescribed for registering the will and a will may be presented for
registration at any time. A will presented for registration by the testator may be registered in
the same manner as any other document.

A will presented for registration by any other person entitled to present it shall be registered,
if the registering officer is satisfied:

a. that the will or authority was executed by the testator;

b. that the testator is dead; and

c. that the person presenting the will is entitled to present the same.

The registration of will is not the proof of the testamentary capacity of the testator as the
Registrar is not required to make an enquiry about the capacity of the testator except in case
the testator appears to him to be a minor or an idiot or lunatic.

CODICIL

Codicil means an instrument made in relation to a will and explaining, altering or adding to
its dispositions and shall be deemed to form part of the will. The codicil is generally made to
make slight changes in the will, which has already been executed. A codicil cannot alter a
will more than what is necessary to carry out the testator's intention as evidenced by the will
and the codicil.

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 REVOCATION OF WILL BY A MUSLIM

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.13A subsequent sale or gift of the property may also amount to
revocation.

Therefore under Islamic Law, the following conditions can stand as revocation:

a) sale of the bequeathed property

b) gifting the property

c) 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 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.

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 CONCLUSION

A Muslim will must be construed primarily in accordance with the rules laid down in the
Muhammadan Law, bearing in mind the social conditions that prevail, the language
employed and the surrounding circumstances. A will speaks as in modern law, from the death
of the testator. The Court should as far as possible give effect to the intention of the testator
when there is ambiguity in the will. The heirs may also be asked to interpret it. While
determining the rules guiding the interpretation of wills, it is essential to remember the
differences in the law of wills with regard to Sunni Law and Shia Law. Thus summarising
the differences:

a. In Sunni Law, the bequest to an heir is invalid even to the extent of one-third of the total
property of a testator. Whereas in Shia Law, the bequest to heirs is valid up to the extent of
onethird of the property.

b. The Consent of the heirs must be given after the death of the testator in Sunni Law but in
Shia Law, the consent of the heirs may be given before of after the death of the testator.

c. The bequest in favour of a child in the womb of his mother is valid provided he or she is
born within six months of making a will in Sunni Law but it is up to ten months under Shia
Law.

d. A will by the testator who later commits suicide is valid in Sunni Law. This is invalid in
Shia Law unless the will is made before taking any step towards commission of the act of
suicide for the will to become valid.

e. The Legacy has to be accepted after the death of the testator in Sunni Law. Legacy under
Shia Law can be accepted before or after the testator’s death.

f. Legatee who causes the death of the testator cannot take his property under Sunni Law.
Under Shia Law, if the death of the testator was caused by the legatee accidently, then the
property can be taken but not otherwise.

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 g. Under Sunni Law, if the legatee dies before the testator, the legacy lapses. Under Shia
Law, if the legatee dies before the testator, the legacy will lapse only when either the legatee
dies without leaving an heir or where the testator himself revokes the will. If an heir exists,
the legacy passes onto the heir if the will is not revoked.

h. Where the bequest is more than one person in excess of the valid one-third, the rule of
rateable proportion applies in Sunni Law. In Shia Law, it is the rule of Chronological Priority
that is applied to determine the distribution of the one-third property.

Therefore a will in Muslim law is a divine disposition of property. The object of a will is two
fold, firstly, it prevents a person from interfering and defeating the claims of his lawful heirs.
So the restriction of the legal one-third ensures that at least two-thirds of the property must
go by succession. Secondly, by permitting the testator to bequeath one-third of the property,
he or she is empowered to settle just claims of even strangers or other relatives who are not
heirs.

Bibliography

BOOKS:-

 Mohammadan Law, Aqil Ahmad, 25th edition, 2013

 Muslim Law, Paras Diwan, 18th edition, 2011
 Mohammadan Law, Mohd. Nazmi, 3rd edition 2012
 Family Law in India, Dr. S.R.Myneni, 15th edition, 2009

Websites referred:

 www.islam101.com
 www.legallight.com
 www.legalaid.c.a
 www.lawyersclubindia.com

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