A testator bequeaths 1/3 of the estate to A, 1/4 to B,1/5 to C and the heirs refuse to confirm the bequests. Ascertain the shares of each legatee under Sunni law.
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Question: A testator bequeaths 1/3 of the estate to A, 1/4 to B, 1/5 to C and the heirs refuse to confirm the bequests. Ascertain the shares of each legatee under Sunni law. [BJS 1978]Find the question and answer of Muslim Law only on Legal Bites. [A testator bequeaths 1/3 of the estate to A, 1/4 to B,1/5 to C and the heirs refuse to confirm the bequests. Ascertain the shares of each legatee under Sunni law.]AnswerIn the case of Damodar Kasinath Rasane v. Smt. Shahajadibi and others, AIR...
Question: A testator bequeaths 1/3 of the estate to A, 1/4 to B, 1/5 to C and the heirs refuse to confirm the bequests. Ascertain the shares of each legatee under Sunni law. [BJS 1978]
Find the question and answer of Muslim Law only on Legal Bites. [A testator bequeaths 1/3 of the estate to A, 1/4 to B,1/5 to C and the heirs refuse to confirm the bequests. Ascertain the shares of each legatee under Sunni law.]
Answer
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. However, when, there are no heirs or other heirs left by him, he can dispose of his entire property in favour of the stranger or the sole heir as against the right of the State to take by escheat. If the property bequeathed is in excess of One-third of the estate, the excessive bequest is not valid unless the heirs, or other heirs (if the bequest is in favour of one or some of the heirs) give their consent."
Their Lordships also held that "under the Hanafi law, the consent has to be given after the death of the testator, whereas under the other schools of law, it can be given either before or after the death of the testator."
It is also held therein that "The estate bequeathed in excess of the bequeathable third will be valid to the extent of the share of the heir or heirs consenting to such excess"
It is further stated that where there are more bequests than one, which together exceed one-third of the estate, the bequests get reduced rateable. The Division Bench was also pleased to hold that where only some of the heirs' consent, it is valid only to the extent of the share of the consenting heir or heirs.
Thus, in the present case at hand, when the testator bequeaths 1/3 of the estate to A, 1/4 to B, 1/5 to C and the heirs refuse to confirm the bequests. Such division of shares is valid and within the limit imposed by the Mohammedan Law. Because the estate bequeathed here is not in excess of one-third of the estate of A, the consent of heirs is not necessarily to be taken.
Mayank Shekhar
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