A Muslim can transfer his entire property through gift but, he has no right to make a will of his whole property. Under Muslim law, the testamentary right i.e. the right to transfer the properties through will, is restricted in two ways:
Firstly, there is a restriction upon the quantity of property bequeathed.
Secondly, in respect of the person (legatee) to whom the property is given.
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When a person dies, first of all his funeral expenses and the debts, if any, are satisfied out of the property left by him. The property, which remains after payment of funeral expenses and debts incurred by a deceased person, is called the bequeathable property if the deceased had made any will. Under other systems of personal law e.g. under Hindu law or Christian law etc. a legator can make a will of the entire property.
Except under Muslim law, a testator has right to make a will of his total assets and there is no restriction either in respect of the quantity of property or in respect of the legatee. But, the right of a Muslim testator to dispose off his properties through will is restricted to one-third of his total assets.
That is to say, where the testator is a Muslim, he is authorised to make will only of one-third of the bequeathable property i.e. one-third of what remains after payment of his funeral expenses and debts, if any.
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For example, upon the death of a Muslim, if the value of his entire property is Rs. 5,000 and if his funeral expenses and debts are Rs. 500 and Rs. 1500 respectively, then, after deducting these two expenses the remaining Rs. 3000 would be called the bequeathable property or the total assets left by him. One-third of this bequeathable property would be Rs. 1,000.
Thus, in this example, Rs. 1,000 is the bequeathable one-third. Moreover, besides the limit on the quantity of property bequeathed, the testamentary right of a Muslim depends also upon the fact whether legatee is an heir of the testator or a stranger (non-heir). Accordingly, the testamentary right of a Muslim may be studied separately under the following two heads: (a) bequest to a stranger and, (b) bequest to an heir.
(a) Bequest to Stranger (non-heir):
A Muslim can make a will of one-third of his total assets to a stranger (i.e. nonheir). In respect of a will to a non-heir, under Shia law as well as under Sunni law a Muslim has an unconditional testamentary right up to one-third of his property.
For a will of more than one-third property, the consent of the legal heirs of testator is necessary. In other words, a will in favour of any non-heir legatee is subject to the approval of heirs of testator if the property bequeathed exceeds one-third of the total assets.
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It is significant to note that this limit (of 1/3) is based on a tradition of the Prophet. The Prophet once said to Abu Vekas that he was not entitled to make any will of his whole property, nor even of two-third, not of one-half, but only of one-third of his properties.
If the legal heirs of a testator give their consent, the bequest to a stranger in excess of one-third is valid. When a Muslim makes will of his entire property to a stranger and his heirs give their consent, the will is valid.
This is obvious, because the object behind this restriction is to protect the interests of the testator’s heirs. If a Muslim be allowed to dispose of his entire assets to a stranger, his legal heirs would get nothing through inheritance.
But, if the heirs give their free consent for a will in excess of the legal third then, there is no harm in validating the will. The heirs may assent to such a will either because they are competent enough to make their livelihood without inheriting or, because they give preference to the last desires of the testator over their own interests. It is relevant to mention here that in this respect, Muslim law appears to be very reasonable.
On one hand, there is provision for carrying out the last desires of a testator whereas, on the other hand, it also makes room for giving honour to the rules of inheritance. However where a Muslim has no heir at all, he is entitled to bequest any amount of property to a stranger.
It may be noted that when a person dies intestate (i.e. without making any will) and has also no heir to inherit his properties, the government is authorised to take over his properties ‘through escheat. But, a testamentary disposition by an heirless testator defeats the government’s right to take his properties. An heirless Muslim has absolute testamentary right in respect of his properties and his will, of whatsover amount it may be, would not be void for want of heir’s consent.
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Where a Muslim testator has only his wife as the only surviving heir, he is entitled to bequeath 5/6 of his total assets to a stranger. Similarly, where the Muslim testator is a woman and her husband is her only surviving heir, she may make a will of 2/3 of her properties to a stranger. This peculiar testamentary right of a Muslim testator having only wife (or husband) as surviving heir may be explained by following illustrations:
(i) A Muslim makes a will of his entire properties to a stranger. His only heir at the time of his death is his widow. In this case, first of all the stranger would get 1/3 as a legatee and his widow would get 1/4 of what remains after this will as Quranic heir.
That is to say, the widow would get 1/4 of (1 – 1/3) i.e. 1/6. Secondly, after this normal distribution of properties, we find that there remains (1 – 1/3 – 1/6) out of the testator’s property. This remaining property (1/2) also goes to the legatee. In this manner, the legatee’s share would become (1/3 + 1/2) = 5/6.
(ii) A Muslim woman makes a will of her entire property to a stranger. She is survived by her husband as her only heir. Here, in the normal course the legatee would get 1/3 in the first instance and her husband would get 1/2 of the property which remains after giving to legatee. That is to say, the husband would get 1/3 as Quranic heir.
After distributing property in the normal course (i.e. 1/3 to the husband as heir and 1/3 to the legatee) there still remains 1/3 of the testator’s whole property. This remaining property would again go to the legatee in the second instance and the legatee’s share in property would become 2/3 (1/3 in the normal course plus 1/3 as residue).
(iii) A Muslim woman makes a will of 1/2 of her properties to a stranger. Her sole surviving heir is her husband. In this case, in the first instance, the legatee gets 1/3 in the normal course and the husband gets 1/3 (1/2 of 2/3) as Quranic heir. Now there remain 1/3 of the testator’s total assets. We find that as against bequest of 1/2 the legatee has got only 1/3 (i.e. short of 1/6 to make it 1/2).
The will shall be honoured as far as possible and legatee would get 1/6 more in the second instance so that his final share as legatee would become 1/2. But we find that after honouring the will (1/2) and giving share to the Quranic heir, (1/3) there still remains 1/6 of the testator’s whole property. The residue of 1/6 is the surplus property after legacy and inheritance.
This 1/6 should normally go to the government by escheat. But, now in India, both under Shia as well as under Sunni law, husband or wife as sole surviving heirs of each other, are entitled to return as against escheat. Therefore, the remaining 1/6 would go to husband in return. Thus the husband shall get 1/3 + 1/6 = 1/2 of the property.
(b) Bequest to an Heir:
Where the legatee is one of the legal heirs of a testator, consent of the remaining legal heirs is necessary even though the property given is one-third or less. In other words, irrespective of the quantity of property bequeathed, will to an heir of the testator is valid only if other heirs give their consent. A bequest to an heir is always subject to approval by rest of the heirs, whatsoever is the amount given under a will. The reason behind this rule has been explained by Muslim jurists as under.
When a Muslim testator makes any will in favour of one of his heirs, such heir (legatee) gets double advantage out of the testator’s properties. He gets the property given to him under the will and, would also get some property as a legal heir of the testator.
This may amount undue favour to such an heir (legatee) as against rest of the heirs. Obviously, this may cause jealousy and enmity among the heirs. Such an unpleasant situation has been avoided by Muslim jurists by making a rule that a bequest to an heir would not be valid without consent of other heirs. Hedaya lays down the object of this rule as under:
“If a man makes a bequest in favour of a part of his heirs, it is not valid; because of a traditional saying: “God has allotted to every heir his particular right”, and also because a will in favour of a part of the heirs is an injury to the rest; and therefore, if it were deemed legal, would induce breach of the ties of kindred.”
In the leading case, Ranee Khajooroonissa v. Mst. Rowshan Jehan, a Sunni Muslim, and Raja Deedar Hussain executed a will in favour of his eldest son Inayat Hussain. Under this will, he gave the sole management of some of his properties to Inayat Hussain and authorised him to expend a portion of that properly by way of pilgrimage or charity, as he may think proper.
The will further authorised Inayat Hussain to retain the remaining property for his exclusive use. It was observed by the Privy Council that through this will, Raja Deedar Hussain has attempted to give his properties to one of his legal heirs to the total exclusion of other heirs.
It could not be proved before their Lordships that any of the remaining heirs had ever given their consent. Accordingly, the Privy Council held that as there was no consent of other heirs of the testator, the will in favour of Inayat Hussain was void.