Under Muslim law, a bequest to a person not in existence at the time of the testator’s death is void. However, Muslim law permits bequests to be made to a child in the womb, provided it is born within six months of the death of the testator. A legacy made to a person, who does not survive the testator, lapses and forms part of the estate of the deceased.
A legacy can be made to any person, man or woman, adult or minor, Muslim or non-Muslim. A bequest can also be made for a religious or charitable object which is not opposed to Islam. Thus, a Muslim cannot lawfully make a bequest for building a Jewish synagogues or a Christian church; or for translating the taunt, or injeel; or directing that so much of his property should be given to named person for reading the Koran over his grave; or for plastering his grave or for the construction of a value or arch over it; or for shrouds to Muslims; or for aiding a tyrant or an oppressor.
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Bequest for heirs:
ADVERTISEMENTS:
The Muslim authorities lay down that no bequest can be made to an heir, unless the other heirs consent to it, after the death of the testator under the Hanafi law, or at any time under Shia law. It is not necessary that all heirs should consent. A single heir may consent so as to bind his share.
The determination, as to who are the heirs of the testator, is not made at the time when the will is made but at the time of the death of the testator. For instance, a Muslim makes a gift of 1/3 of his estate to his paternal grandfather. He dies, and is survived by his paternal grandfather, father and a son.
Since paternal grandfather is not an heir, the bequest of one-third estate to him is valid; no consent of the heirs is needed. Or, a Muslim made a bequest to his grandfather of 1/3 of his estate, at the time when he had a father and a son living.
Subsequently, his father died. When he died he was survived by his grandfather and the son. Here both are heirs, and, therefore, the bequest to the grandfather will not be valid unless the son consents. Or, P, who has five sons, bequeaths his entire property to two of his sons to the exclusion of others. He dies and is survived by all his five sons, the bequest is invalid.
ADVERTISEMENTS:
The consent of the heirs may be express or implied; but silence cannot amount to consent.
The reason for this rule has been thus given in the Daaimul-Islam: “If a bequest were permissible to an heir, verily a greater portion than that which has been fixed by God would be bequeathable to him. And he, who bequeaths to his heir, verily belittles the decision of God concerning the heir and acts in contravention of His Book….”
The law, as a matter of policy, does not allow a person to interfere with the Koranic mode of devolution of property. If he is allowed to make a bequest to the heirs, then it will amount to the diminution of the shares of other heirs, and will, therefore, induce a breach of the ties of kindred.
However, if the heirs themselves consent to the bequest, they admit voluntary reduction in their shares, and the law allows them to do so. It is immaterial that at the time when the heir gave his consent he was an insolvent.
ADVERTISEMENTS:
The Ithana Asharis take a different view. The Sharaya-ul-Islam says, “A bequest in favour of one kindred is highly proper whether they be his heirs or not”. They hold that so long as the one-third rule is not impugned, it is immaterial that the legatee is an heir or a stranger.
Thus, if P bequeaths 1/3 of his property to his son A, and dies leaving behind A and two more sons, В and C. The legacy to A is valid without the consent of В and C. But if the legacy oversteps the one-third limit, then it will not be valid without the consent of other heirs, which may be given either during the life time of the testator or after his death.
The Allahabad High Court in Fahmida v. Jafri held that where a bequest to an heir exceeds one-third of the net assets of the deceased, and the other heirs do not consent to it then the entire bequest is invalid.
Mulla doubts the correctness of this view and quoting the Sharaya-ul-Islam, says that the correct view is: “If a person should make a will excluding some of his children from their share in the inheritance, the exclusion is valid”. He further observes, “Where a bequest is made of the entire property to one heir to the exclusion of other heirs, the will is to be read as if it did not contain any disposition of the property. But it does not follow that where a bequest to an heir is not of the entire estate, but merely exceeds the legal third; such bequest also is void in its entirety”.
Custom:
A custom which limits the choice of persons in whose favour a will can be made cannot be said to be against the public policy. Among the Eunuch Community of Madhya Pradesh, under Guru-Chela system, a guru cannot will more than one-third of his property to an outsider without the consent of Chela. The custom was held valid.
Legacy of Murder:
In most systems of law, it is a rule that a murderer or a person, who abets the murder of the deceased, is not entitled to a legacy. Under the Hanafi law, this rule is found in most strict terms.
The rule is that the murderer is excluded from taking legacy, whether the homicide was intentional or accidental. The Ithana Ashari law excludes the man-slayer only when the homicide is intentional. It is immaterial whether the bequest is made before or after the act causing.