Mahmood has got property worth Rs. 10 lacs. He has to pay Rs. One lac to his creditor and Rs. 50,000/- to his wife as dower. He bequeaths his entire property by Will in favour of his son. Mahmood dies without discharging his debt. Whether the son will succeed on Wasiyat? Discuss.

Question: Mahmood has got property worth Rs. 10 lacs. He has to pay Rs. One lac to his creditor and Rs. 50,000/- to his wife as dower. He bequeaths his entire property by Will in favour of his son. Mahmood dies without discharging his debt. Whether the son will succeed on Wasiyat? Discuss. [DJS 1996]

Find the question and answer of Muslim Law only on Legal Bites. [Mahmood has got property worth Rs. 10 lacs. He has to pay Rs. One lac to his creditor and Rs. 50,000/- to his wife as dower. He bequeaths his entire property by will in favour of his son. Mahmood dies without discharging his debt. Whether the son will succeed on Wasiyat? Discuss.]

Answer

Under Muslim Law, every adult Muslim of sound mind can dispose of his property by Will. However, the testamentary capacity of a Muslim is limited and he does not possess unlimited power of making disposition by Will. There are twofold restrictions on the power of Muslims to dispose of their property by Will. These are:

(a) Limitation in respect of a person in whose favour the bequest is made.

(b) Limitation as regards the extent to which a Muslim can dispose of his property.

A. Limitation as Regards the Person

Under Sunni law bequest in favour of an heir even to the extent of one-third is not valid unless the other heirs give consent to it expressly or impliedly after the death of the Testator. Under Shia law a testator may give a legacy to an heir so long as it does not exceed one-third of his estate, such a legacy is valid even without the consent of other heirs. But if the legacy exceeds one- third it is not valid unless other heirs consent to it. So only case in which testamentary disposition is binding upon heirs is when the bequest does exceed one-third of the whole estate and when it is not exceeding one-third of the estate of the testator made to a person who is not an heir.

B. Limitation as Regards the Property

The general rule with regard to the extent of property that may be disposed of by Will is that no Muslim can make a bequest of more than one-third of his net assets after payment of

(1) Funeral Expenses and death bed charges

(2) Expenses of obtaining probate letter of administration or succession certificate etc.

(3) Wages due for services rendered to testator within 3 months preceding his death by labour, domestic servant etc.

(4) Any debt of the testator in any form payable to the creditor.

So, after deducting the above-said expenses or liabilities, whatever will be left can be disposed of to the extent of one-third of it by way of a will.

In view of the above discussion, it is clear that a will in question is not valid because it exceeds the legal third and also it is made in favour of an heir without the consent of other heirs. Therefore debt of one lac to a creditor and payment of Rs. 50,000 as Dower to the wife of the deceased will be made first and then the balance will be divided among the heirs of the deceased in accordance with the provision of succession under Muslim law.

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