A, a sunni, bequeaths one-third of his estate to B, one-fourth to C and one-fifth to D, A's heirs refuse their consent to the bequest. How will this refusal affect the rights accruing to B, C and D from the bequest? Would it makes any difference if the family had been governed by the Shia Law?

Question: A, a sunni, bequeaths one-third of his estate to B, one-fourth to C and one-fifth to D, A's heirs refuse their consent to the bequest. How will this refusal affect the rights accruing to B, C and D from the bequest? Would it makes any difference if the family had been governed by the Shia Law? [DJS 1989]

Find the question and answer of Muslim Law only on Legal Bites. [A, a sunni, bequeaths one-third of his estate to B, one-fourth to C and one-fifth to D, A's heirs refuse their consent to the bequest. How will this refusal affect the rights accruing to B, C and D from the bequest? Would it makes any difference if the family had been governed by the Shia Law?]

Answer

A Muslim 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, which 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. This is obvious, because the object behind this restriction is to protect the interests of the testator’s heirs.

Thus, both under Sunni and Shia Islamic Law, no Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is essential. Where the heirs refuse to give their consent, the bequest would be valid only to the extent of one-third of the property and the rest of the two-thirds would go by intestate succession.

In respect of bequest of one-third to an heir, the consent of other heirs is required in Sunni law, but not in Shia law. In case of a non-heir (stranger) the consent of heirs is not required in both. In the case of Damodar Kasinath Rasane v. Smt. Shahajadibi and Others, AIR 1989 Bom 1 (para 11), the Division Bench concluded that a Muslim cannot bequeath more than one- third of this property whether in favour of a stranger or his heir when there are heirs or other heirs left by him as the case may be. 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.

Thus, in the present case at hand, since the bequest to B is one-third, C has one- fourth, and one-fifth to D, there is no need to take the consent of the heirs of A. The refusal of the heirs to accept the bequest will not affect the rights accruing to B, C, and D from the bequest. Hence, such bequeath by A under Shia Law is valid. However, under Sunni Law a bequest of more than 1/3 of the totally property unless the other heirs consent to the bequest is invalid. It is clear from the facts of the present case at hand that the bequest of shares to B, C, D is below the one-third rule of bequeath and hence the consent of the A’s heirs is not necessary to be taken.

Different situation in Shia and Sunni Law

Under Indian law, a bequest is a testamentary disposition of property made by a person in their will. If the heirs of A, the deceased, refuse their consent to the bequest, it would affect the rights accruing to B, C, and D from the bequest. Without the consent of the heirs, B, C, and D would not be able to claim the property bequeathed to them.

If the family is governed by Sunni law, the heirs have the right to refuse their consent to the bequest. Under Sunni law, the legal heirs have the right of pre-emption, which means that they have the right to purchase the property bequeathed to someone else, at the same price and terms as mentioned in the will. If the legal heirs exercise this right, the bequest to B, C, and D would be void.

However, if the family had been governed by Shia law, the situation would be different. Under Shia law, the legal heirs do not have the right of pre-emption and therefore, the bequest made by A would be valid and binding on the heirs. B, C, and D would be entitled to the property bequeathed to them, regardless of the refusal of the heirs' consent.

If the family is governed by Sunni law, the heirs have the right to refuse their consent to the bequest, making the bequest void. But if the family had been governed by Shia law, the bequest would be valid and binding, regardless of the refusal of the heirs' consent.

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