A, Shia Muslim, leaves two grandsons X and Y from his predeceased son Z, and also one grandson F from his other predeceased son D. Divide the property of A among X, Y, and F.
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Question: A, Shia Muslim, leaves two grandsons X and Y from his predeceased son Z, and also one grandson F from his other predeceased son D. Divide the property of A among X, Y, and F. [BJS 2017] Find the question and answer of Muslim Law only on Legal Bites. [A, Shia Muslim, leaves two grandsons X and Y from his predeceased son Z, and also one grandson F from his other predeceased son D. Divide the property of A among X, Y, and F.]AnswerThe testamentary capacity of a Muslim is limited in...
Question: A, Shia Muslim, leaves two grandsons X and Y from his predeceased son Z, and also one grandson F from his other predeceased son D. Divide the property of A among X, Y, and F. [BJS 2017]
Find the question and answer of Muslim Law only on Legal Bites. [A, Shia Muslim, leaves two grandsons X and Y from his predeceased son Z, and also one grandson F from his other predeceased son D. Divide the property of A among X, Y, and F.]
Answer
The testamentary capacity of a Muslim is limited in two ways. He does not possess unlimited power of making disposition of property by will. There are twofold power restrictions on the power of a Muslim to dispose of his property by will. The first restriction is in respect of the person in whose favour the bequest is made and the second restriction is as to the extent to which he can dispose of his property.
(i) Limitation as regards the Person: General Rule is that bequest in favour of an heir even to the extent of one-third was not valid under Sunni law unless the other heirs consented to it, expressly or impliedly after the death of the testator.
(ii) Limitation as Regard to The Property: General rule with regard to the extent of property that may be disposed of by will is that no Muslim can make bequest of more than 1/3rd of his net assets after payment of funeral charges and debt.
As regards the limitation to the Person, Under Shia Law testator may without the consent of another heir give a legacy to an heir so long as it does not exceed 1/3rd of his estate. The only case in which testamentary disposition is binding upon the heirs is where the bequest does not exceed the legal third and it is made to a person who is not an heir but a bequest in excess of the legal third may be validated by the consent of the heirs.
Thus, applying the settled legal principles in the present case at hand, the property of A, a Shia Muslim is divided 1/3rd each among X, Y, and F.
Mayank Shekhar
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