A Muslim made a Will of his properties in favour of his two friends 'Y' and 'Z', by stipulating that the former would get 1 /2 and the latter 1/4 of his property. His heirs did not approve of the Will. Determine the respective shares to which each would be entitled under Sunni law and Shia law.

Question: A Muslim made a Will of his properties in favour of his two friends 'Y' and 'Z', by stipulating that the former would get 1 /2 and the latter 1/4 of his property. His heirs did not approve of the Will. Determine the respective shares to which each would be entitled under Sunni law and Shia law. [HJS 2007]

Find the question and answer of Muslim Law only on Legal Bites. [A Muslim made a Will of his properties in favour of his two friends 'Y' and 'Z', by stipulating that the former would get 1 /2 and the latter 1/4 of his property. His heirs did not approve of the Will. Determine the respective shares to which each would be entitled under Sunni law and Shia law.]

Answer

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). 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 limitations:

a. as to quantum where he cannot bequeath more than one-third of his net estate

b. as to the legatees where he cannot bequeath to his own heirs.

Sunni Islamic Law

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 totally property unless the other heirs consent to the bequest or there are no legal heirs at all or 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.

Shia Islamic Law

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

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 given, it cannot be rescinded subsequently and the heirs are bound by it. Similarly, consent cannot be given after an heir has previously repudiated it.

In Damodar Kashinath Rasane v. Shahzadi Bi, AIR 1989 Bom 1, 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.

It is further to note that by the 'Rule of Rateable Proportion' 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.

Thus, applying the aforesaid legal provisions to the present case at hand, where A Muslim made a Will of his properties in favour of his two friends 'Y' and 'Z', by stipulating that the former would get 1 /2 and the latter 1/4 of his property and his heirs did not approve of the Will, the shares of the Y and Z will get reduced proportionately to bring it down to one-third. Thus, the revised share of Y and Z will be 1/3 and 1/3.

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