WILLS UNDER MUSLIM LAW

Submitted by-

Reda Tayyaba

Roll no- 45

BAL.L.B(HONS)

17-22 self-finance

Faculty of Law

Jamia Millia Islamia

Under the guidance of

Prof. Dr. Kahkashan Y Daniyal

 CONTENTS

1. Acknowledgement 3

2. Introduction - Nature of Will: 4

3. Origin of the law of Will: 5

4. Formalities of a Will: 6

(i) Testator and his competence 7

(ii) Legatee and his competence 8

(iii) Subject of will and its validity 10

(a) Limitation as regards the Legatees- 11
(b) Limitation as regards the Disposable Property- 12

5. Doctrine of Consent: 12

6. Rateable abatement: 13

7. Construction of Will: 13

8. Revocation of the Will: 14

9. Death-bed gift (Gift in Marz-ul-maut): 15

10. Conclusion: 16

11. Bibliography: 17

Page | 2
 Acknowledgement

I would like to take this opportunity to offer my acknowledgements to all those who helped
me during the course of this project. I thank profusely Dr. Kehkashan Y Daniyal, my teacher
and guide of Family Law , without whose support and supervision this project would not
have been a success. Indeed, the experience has been insightful and most often, thought
provoking. A deeper understanding of such an important topic has enriched our knowledge.

Page | 3
 INTRODUCTION

- Nature of Will:

A will is generally an instrument by which a person makes disposition of his property to take
effect after his death, and which is in its own nature ambulatory and revocable during his life.
In other words ‘will’ includes every writing making a voluntary posthumous disposition of
property. A will can be changed by the executant as and when he so likes. Tyabji defines will
as “Conferment of right of property in a specific thing or in a profit or advantage or in a
gratuity, to take effect on the death of the testator.” According to Section 2(h) of the Indian
Succession Act, 1925, “Will (wasiyat) is the legal declaration of the intention of a testator
with respect to his property which he desires to be carried into effect after his death.” So the
elements of will are as follows:

i. Will is a conferment of right to one’s property on another.

ii. This conferment of right is to take effect after the death of the testator.

The Arabic equivalent of the word ‘will’ is wasiyat. Generally wasiyat means ‘will’ but it has
also other meanings. It may signify a moral exhortation, specific legacy.

The two divergent tendencies found in Islam affect the Muhammadan law of wills
greatly. In pre-Islamic times, a man had an almost unlimited power of disposing of his
property but as the Koran laid down clear and specific rules for the distribution of the
inheritance it was thought undesirable for man to interfere with God’s ordinances. Hence, it is
right to say that Mohammedan sentiment is in most cases opposed to the disposition of
property by will.1

1
Fitzgerald, 167; Fat. Law §369, 373.

Page | 4
Mohammedan Law of Will and The Indian Succession Act, 1925- The provisions of the
Indian Succession Act, 1925 do not apply to Mohammedans excepting those relating to
probate and letters of Administration, etc. Therefore, in India a Mohammedan Will is
governed by the Mohammedan law modified by the provisions of the Succession Act, 1925,
to the extent applicable to them. Such a will will be subject to the provisions of the Shariat
Act, 1937. But a Muslim cannot claim immunity if his marriage was held under the Special
Marriage Act, 1954. In such cases, the provisions of the Indian Succession Act, 1925 shall be
applicable even though the will was made before or after the marriage.

Origin of the law of Will:

The nucleus of the law of wills is, by common consent, to be found in a tradition of the
Prophet, reported by Bukhari2:

Sad ibn Abi Waqqas said: ‘The Messenger of God used to visit me at Mecca, in the year of
the Farewell pilgrimage, on account of (my) illness which had become very severe. So I said,
“My illness has become very severe and I have much property and there is none to inherit
from me but a daughter, shall I then bequeath two-third of my property as a charity?” He
said, “No”. I said, “Half?” He said, “No”. Then he said: “bequeath one-third and one third is
much, for if thou leavest thy heirs free from want, it is better than thou leavest them in want,
begging of (other) people; and thou dost not spend anything seeking thereby the pleasure of
Allah but thou art rewarded for it, even for that which thou puttest into the mouth of thy
wife.”

Thus the policy of the Muhammadan law is to permit a man to give away the whole of
his property by gift inter vivos, but to prevent him, except for one-third of his estate, from
interfering by will with the course of the devolution of property according to the laws of
inheritance. It is uncertain how the limit of one-third was fixed, but it has been suggested that
Roman law may have influenced this decision.3

2
Muhammed Ali, Manual of Hadith (Lahore, 1994), 334-5, No. 2
3
Saksena, Muslim Law (Abridged ed. 1938), 366

Page | 5
Formalities of a Will:

As a general rule no legal formality is required for making a will. All that is required is that
there must be a clear intention to make it. A will may be made either orally or in writing. If it
is made orally, no particular form of verbal declaration is necessary as long as the intention of
the testator is sufficiently ascertained. The Court must be made certain that it knows what the
speaker said and must from circumstances and from the statement be able to infer for itself
that testamentary effect was intended, in addition to being satisfied of the contents of the
direction given. Thus strict proof will be required.4

If a testator is dumb he may make a bequest by signs provided that the signs are made in such
a manner as is commonly used to denote affirmation. In the case of a person whose inability
arises subsequently owing to some illness, etc. a Will made by signs will be valid only if the
testator was deprived of speech for a long time so as to make the signs habitual to him but not
if the inability is recent.5 The Fatwa Alamgiri says, “A sick man makes a bequest, and being
unable to speak from weakness gives a nod with his head, and it is known that he
comprehends what he is about- if his meaning be understood, and he dies without regaining
the power of speech, the bequest is lawful.”6

When a will is in writing, no specific form is laid down. It may not even be signed by the
testator or attested by witnesses.7 The reason is that a Mohammedan will is not required to be
in writing at all. Moreover the verse in the Koran regarding witnesses is considered merely as
a recommendation and is not mandatory. But it is necessary that the intention of the testator
should be clear and unequivocal for the testament to take full effect. The validity of a will
made in writing is in no way affected due to non-attestation thereof by the witnesses or
failure to prove the attestation. In the case of Mazar Husen v. Bodha Bibi8 before the Privy
Council a letter written by the testator shortly before his death and containing directions as to
the disposition of his property, was held to constitute a valid will. This principle was
followed in Abdul Hameed v. Mahomed Yoonus.9 The name of the document is immaterial.

4
Mahabir Prasad v. Mustafa AIR 1937 PC 174 at p. 177; Izhar Fatima v. Ansar Bibi AIR 1939 All 348.
5
Hed. 70, Durr. 408; Bail. I. 625.
6
Baillie, I, 625 cited in Tyabji §689, com.
7
Ranjilal v. Ahmed AIR 1952 MB 56
8
(1989) 21 All 91
9
(1940) 1 M.L.J. 273, 187 I.C. 414, (‘40) A.M. 153.

Page | 6
Requisites of a valid Will:

The essential requisites of a valid will, under Mohammedan Law are as follows:

(i) The testator must be competent to make the will.

(ii) The legatee must be competent to take the legacy or bequest.
(iii) The subject of bequest must be a valid one.
(iv) The bequest must be within the limits imposed on the testamentary power of a
Muslim.

The above mentioned requisites are explained in detail as under-

Testator and his competence

Every Muslim (male as well as female) who is of sound mind and not a minor may dispose
of his property by will.10 Thus only a person who has attained majority and is sane and
rational is entitled to make a will. In Abdul Manan Khan v. Murtaza Khan11 Patna High
Court held that any Mohammedan having a sound mind and not a minor may make a valid
will to dispose of the property. A bequest by a person of unsound mind cannot be deemed
valid, if he becomes of sound mind subsequently.

The age of majority as regards matters other than marriage, dower, divorce and adoption,
is now regulated by the Indian Majority Act IX of 1875. Section 3 of the Act declares that
a person shall be deemed to have attained majority when he shall have completed the age
of eighteen years. In the case, however, of a minor of whose person or property a guardian
has been appointed, or of whose property the superintendence has been assumed by a
Court of Wards, the Act provides that the age of majority shall be deemed to have been
attained on the minor completing the age of twenty-one years.

Will of a person committing suicide- Under Sunni law, the will if a person committing
suicide is valid. Under Shia law, a will made by a person after he has taken poison, or
done any other act towards the commission of suicide, is not valid. In Mazhar Husen v.
Bodha Bibi12 the deceased first made his will, and afterwards took poison. It was held that
the will was valid, though he had contemplated suicide at the time of making the will.

10
Hedaya, 673; baillie, 627.
11
AIR 1991 Pat. 155
12
(1898) 21 All 91

Page | 7
 A will procured by undue influence, coercion or fraud is not valid, and the courts take
great care in admitting the will of a pardanashin woman.

There is conflict of opinion as to the validity of will made by a Muslim who renounces
Islam afterwards. The Maliki School holds that apostasy annuls such a will, but according
to the Hanafis, the bequest will be effective, if it is lawful according to the sect from which
he has apostalized.

Legatee and his competence

A bequest can be made by a Muslim in favour of any person capable of holding property.
Thus sex, age, creed or religion is no bar to the taking of a bequest. No one can be made
the beneficial owner of shares against his will. Therefore, the title to the subject of bequest
can only be completed with the express or implied assent of the legatee after the death of
the testator.

(a) Bequest to an institution- A bequest may be validly made for the benefit of an
institution.

(b) Bequest to a non-Muslim- A bequest in favour of a non-Muslim is valid. In Hedaya

the following verses of the Quran has been quoted:

“Ye are not prohibited, O believers, from acts of benevolence towards those who
subject themselves to you, and refrain from battles and contentions.”

It is therefore clear that a Muslim can give his property by bequesting the same in favour
of a non-Muslim provided the non-Muslim is not hostile towards Islam. Bequest to an
infidel or refugee is also valid according to all schools. A bequest to an apostate is
invalid. The disqualification is no longer effective owing to Caste Disability Removal
Act, 1850 (Act XXI of 1850). In Shafei Law a bequest in favour of an apostate is,
according to better opinion, valid.

(c) Bequest to testator’s murder- In most systems of law, it is a rule that a murderer or a
person who abets the murder of the deceased is not entitled to legacy. Under the
Hanafi law, the rule is that the murderer is excluded from taking legacy, whether the
homicide was intentional or accidental. But a will in respect of such a person who has
caused the death of the testator can be validated if the heirs have given their consent.
According to the Sunni law, a bequest to a person who caused the death of the

Page | 8
 testator whether intentionally or unintentionally is invalid. According to Shia law, it
is invalid if it is caused intentionally and not if accidentally or unintentionally. It is
immaterial whether the bequest is made before or after the act causing the death.

(d) Bequest to unborn child- The legatee must be in existence at the time of the testator’s
death. A bequest in favour of an unborn person is void unless such person was a child
enventure samere at the time of the will and is actually born within six months of that
date. Under the Shia law also a bequest in favour of an unborn person is invalid, but
if the legatee was in the womb at the time of the will, the bequest will be valid if he is
born in the longest period of gestation, i.e., ten lunar months.

(e) Joint Legatees- In cases in which a joint legacy is made in favour of two or more
persons, the question would be as to who would be entitled to the legacy if it fails in
respect of any of them. In such cases, if the legatee was not competent to be legatee
from the very beginning the entire legacy would go to the remaining legatees. If we
consider a situation where A makes a bequest of one-third jointly in favour of B and
C. B was dead at the time of bequest (whether by the knowledge of A or not). C could
be entitled to the entire legacy of one-third.

(f) Bequest to a class- A bequest may be made in favour of a class of persons (e.g., to the
poor generally) who would jointly rank as a single legatee. The bequest may be spent,
according to Abu Hanifa and Abu Yusuf, on one poor person and according to
Mohammed on at least two persons.13 A bequest may be made to any special classes
But if the bequest is made to several persons, it will be divided equally among the
legatees irrespective of sex unless a contrary intention clearly appears.

(g) Bequest for a charitable object- A bequest for the benefit of a religious or charitable
object is valid. The only requisite is a general intention to charity, e.g., where a
bequest is made in the way of God, it is valid and the legacy must be spent on good
and pious objects. Thus a will, authorising the executor to dispose off the legacy for
such charitable purposes as he may deem proper would be valid. But is a bequest to
charity is made with the object of giving the property personally to the executor who
is also an heir, the bequest will be invalid without the consent of the other heirs.

13
Bail. I, 648.

Page | 9
 (h) Lapse of legacy- Under Sunni law if the legatee dies before the death of the testator
the legacy lapses and forms part of the testator’s estate. Under Shia law in the above
case, the legacy does not lapse but passes to the heir of the legatee, unless it is
revoked by the testator. It will lapse only if the legatee has no heir.

Subject of will and its validity

Any type of property, immovable, corporeal or incorporeal may be the subject matter of
the bequest provided such property satisfies the following requisites-

(a) the property must be capable of being transferred;

(b) the property must be in existence at the time of testator’s death. It is not necessary that
it should be in existence at the time of the making of the will;

(c) the testator must be the owner of the property to be disposed by will.

Bequest in future- A bequest cannot be made of anything to be performed or produced in

future.

Alternative bequest- An alternative bequest of property, i.e., to one or failing him to the
other person is valid.

Contingent bequests- Bequest of a property which is conditional to take effect on the

happening or not happening of an uncertain event is void.

Conditional bequest- A bequest with a condition which derogates from its completeness
will take effect as if no condition was attached to it, i.e., the bequest will be valid while the
condition will be void.

Bequest of life-estate- Sunni law treats a bequest to life-estate as bequest with a

condition attached to it and as such the bequest takes effect while the condition becomes
void, for instance, a bequest to A for life and after his death to B is in its legal effect a
bequest to A absolutely and B takes nothing under it. Thus a bequest of life-estate is not
recognised under Sunni law. But the same Will will take full effect under Shia law.
Testamentary power and its limits

The testamentary capacity of a Muslim is limited. He does not possess an unlimited power
of making disposition by will. There are two fold restrictions on the power of a Muslim to

Page | 10
 dispose of his property by will. The two-fold restrictions 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.

Limitation as regards the Legatees-

The general rule, in this regard has been very clearly laid down in Ghulam
Mohammed v. Ghulam Hussain.14 It was held in this case that a bequest in favour of an
heir is not valid unless the other heirs consent to the bequest after the death of the
testator.

In Abdul Manan Khan v. Murtaza Khan15 the Court held that a bequest in favour of an
heir is invalid unless the other heirs consent to it after the testator’s death. A provision
has been made in law to obtain consent of the heirs after the death of the testator; if in a
will more than 1/3 of the properties is sought to be bequeathed to an outsider and to any
extent to an heir. Such consent can be inferred from conduct. Acts of attestation of will
by legatee and taking of possession by them of property bequeathed could signify such
consent.

The case of Khajoorunnissa v. Raushen Jehan16 clears the difference between a gift
and a will. It was held in this case that the policy of Mohammedan law appears to
prevent a testator from interfering with the course of devolution of property according to
law among the heirs. The facts of the case were as follows:

Under Shia law, a testator may give legacy to an heir as long as it does not exceed
one-third of his estate. Such a legacy is valid without the consent of the other heirs. But
if the legacy exceeds one-third, it is not valid unless the other heirs consent thereto; such
consent may be given before or after the death of the testator. But where the whole estate
is to be bequeathed to one heir and the other heirs are excluded entirely from inheritance
the bequest is void in its entirety.17

14
54 Alld. 98: 1932 P.C. 81
15
AIR 1991 Pat 155
16
3 I.A. 291, 307
17
Husaini Begum v. Mohammad Mehdi, (1927) 49 All 547.

Page | 11
Limitation as regards the Disposable 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 funeral charges and debts. The remaining two-third must pass to the heirs of
the testator according to law. But there are two exceptions to the above-mentioned
general rule.

(1) Under the Hanafi law, a bequest of more than one-third of the net assets may be
valid, if the heirs, whose rights are infringed thereby, give consent to the bequest after
the death of the testator. In Shia law such consent validates the will whether given before
or after the testator’s death.

(2) The above rule of bequeathable one-third will not apply to a case where the testator
has no heir. The right of Government to take the estate of an heirless person will not, in
any way, restrict the right of a person to make a disposition of his property, as he likes.
In other words, government is no heir to an heirless person.

Doctrine of Consent:

There is no difference between the Sunni and the Shia Schools as to the consent of the heirs if
the bequeathed property exceeds one-third of the estate. Certain rules have been laid down as
to how and when this consent may be given to validate the bequest.

Consent when to be given? - According to Sunni law, the consent must be given after the
death of the testator. Consent given during the lifetime is of no legal effect. Under the Shia
law, the consent may be given either before or after the death of the testator. Consent of heirs
means consent of those persons who are heirs of the testator at the time of his death, and not
the consent of a presumptive or would be heir. Such consent must be free consent. A consent
given under undue influence, fraud, coercion or misinterpretation is no consent at all and it
would not be bind the person so consenting.

Consent how to be given- Consent may be either express or implied. Accordingly, the
attestation of will by the heirs and acquiescence in the legatee taking possession of the
property has been held to be sufficient consent. Similarly, when the heirs did not question the
will for three quarters of a century and the legatees had taken the allowance month after
month, it was held that the conduct of the heirs amount to consent.

Page | 12
Consent of some of the heirs- In cases where only some of the heirs give their consent the
shares of those consenting will be bound, and the legacy in excess is payable out of the
consenting heir’s share.

Consent of insolvent heir- The consent of heirs who are insolvent has been held effective in
validating a bequest.

Consent not rescindable - Consent once given cannot be subsequently rescinded.

Rateable abatement:

By rateable abatement is meant ‘proportionate reduction.’ Where a bequest of more than

one-third of the property is made to two or more persons and the heirs do not consent, under
the Hanafi Law, the shares are reduced proportionately to bring it down to one-third or in
other words, the bequest abates rateably.

Bequests for the purposes of rateable abatement are divided into bequests for pious purposes
and bequests for secular purposes. As a general class, bequests for pious purposes are
decreased proportionately to bequests for secular purposes, and do not have precedent over
them.

Under the Shia law the legatees take in order in which the legacies are granted up to the
disposable 1/3rd and the later legacies fail altogether. Let us consider a situation where A is
given ¼ th; B is given ¼ th and C is given ½. Then under the Hanafi law there is a
proportionate abatement so that the total legacy equals 1/3 only. So A takes 1/12th, B 1/12
and C 1/6th. Under the Shia law, however, A takes ¼. B takes 1/12 and C does not get
anything because the 1/3 would then be exhausted.

Construction of Will:

The general rule governing the construction of wills is that a Muslim will is to be construed
in accordance with the rules of construction of the will laid down in Muslim Law, the
language used by the testator and the surrounding circumstances. It is also a general rule of
construction of wills that unless a different intention appears, a will speaks from the death of
the testator, and the bequests contained in it take effect accordingly. It is a universal rule of
construction of wills that the court tries to give effect, as far as possible, to the intention of

Page | 13
the testator. Where the testator used such ambiguous language that its construction is not
possible by giving usual meaning to the words used, then it is left to the heirs to give it
whatever interpretation they want. Thus, where a testator lays down in his will that
“something”, or some trifle, should be given to P or “I leave a garment or a book to Q”, then
heirs may give to P and Q whatever they like, or any garment, such as a new court or an old
one or any book, a copy of the Koran or a book of songs. Where a testator bequeaths an
article by description without appropriating any specific article, and if the testator does not
own any such article at the time of his death, the bequest fails, unless the intention to
bequeath the value of the article is indicated. In such a case the article as described by the
testator will be purchased out of the assets and handed over to the legatee.

Revocation of the Will:

Mohammedan law confers on the testator unfettered right to revoke his will. He may revoke
it at any time. The revocation may be either (i) express, or (ii) implied.

i. Express revocation- An express revocation may be either oral or written, e.g. A

makes a testamentary disposition of land in favour of B. At any time, after the making
the disposition, he says “the land that I gave to B is for X”. These words will amount
to express revocation of the bequest. A will may be expressly revoked by tearing it
off, or by burning it. It seems that mere denial of a will does not operate as its
revocation.
ii. Implied revocation- Revocation of a bequest may be implied, e.g., where the testator
subsequently transfers the subject matter of the will or destroys it, or completely alters
its nature or makes such addition to it without which the property cannot be delivered,
etc. Where A bequeaths a land to B and subsequently builds a house over it, the
bequest stands revoked. Similarly, where the subject matter of bequest is a house and
the testator sells it, or makes a gift of it, the revocation is complete by implication.

Subsequent will- Where a testator makes a will, and by a subsequent will gives the same
property to someone else, the prior bequest is revoked. But a subsequent bequest though it
be of the same property, to another person in the same will does not operate as a
revocation of the prior bequest, and the property will be divided between the two legatees
in equal shares.

Page | 14
Death-bed gift (Gift in Marz-ul-maut):

Marz-ul-maut gifts of Muslim law derive their rules from two branches of Muslim law, the
law of gifts and the law of wills. It is a combination of the rules derived from both the
branches. It is a gift of ambiguous nature, not exactly a gift, nor exactly a legacy, but
partaking the nature of both.

The different schools of Muslim law take divergent views on the Marz-ul-maut gifts. The
Malikis take the view that the Marz-ul-maut gifts are void. The Shias and Hanafis hold that
such gifts to the extent of one-third are valid.

A gift to be valid as Marz-ul-maut gift must be made during Marz-ul-maut, or death illness.
The most valid definition of Marz-ul-maut is that, it is highly probable will ensue fatally. A
gift must be deemed to be made during Marz-ul-maut, if it made “under pressure of the sense
of imminence of death.” The crucial test of Marz-ul-maut is the subjective apprehension of
death in the mind of the donor, that is to say, the apprehension derived from his own
consciousness. An illness is a death-illness, when-

(i) The donor is suffering from the disease at the time of gift and which is the immediate
cause of death;
(ii) The disease is of such a nature or character as to induce in the person suffering, the
belief that death would be caused thereby, or to endanger in him the apprehension of
death;
(iii) The illness is such as to incapacitate him from the pursuit of his ordinary avocations,
i.e., standing up from prayers, which may create in the mind of the sufferer an
apprehension of death;
(iv) The illness after a long continuance has taken such a serious turn as to cause an
apprehension of death in his mind, but not if he is accustomed to the malady.

In Abdul Hafiz v. Sahebbi18 a Muslim of over 80 years of age remained ill seriously for four
days. On the day on which he died he made a gift just before his death. It was held by the
Bombay High Court that the gift was made during death-illness. The Court observed that
what is required to be proved upon the preponderance of probabilities is, whether the gift was
made by the ailing person while under the apprehension of death and that whether in such
ailing he died.

18
AIR (1973) Bom. 165

Page | 15
Though the transaction in Marz-ul-maut is partly of will and partly of gift, it being essentially
and basically a gift must satisfy all the formalities that are essential for the making of any
other gift.

It is important to note that a death-bed gift is operative as such after the death of the donor.19

But the donor’s power to dispose of his property by gift during death-illness is subject to
certain limitations which are as follows-

i. Gift to a non-heir- He cannot make a gift of more than 1/3 of his property in favour
of a non-heir unless the other heirs give consent to the excess taking effect.
ii. Gift to an heir- The gift to an heir made during death-illness is altogether invalid
unless the other heirs consent to it.
iii. A gift made during death-illness is subject to all the conditions and formalities
necessary to constitute a gift inter vivos.

As already stated Marz-ul-maut is not exactly a gift, nor exactly a legacy. Marz-ul-maut and
will - both become operative only after the death of the person concerned and are subject to
the same limitations. But a will can be made by the testator at any time irrespective of his
health conditions while for a gift to be considered as Marz-ul-maut, it should be made under
an apprehension of imminent death. Thus a will and Marz-ul-maut differ considerably.

19
Shamshad Ali Shah v. Syed Hassan Shah (Pakistan), PLD 1964 S.C. 143.

Page | 16
 CONCLUSION

Thus it can be concluded by saying that the law of wills under Muslim law is quite complex.
The absence of any specific legal formalities though might be intended for the benefit of the
layman often creates ambiguity regarding the validity of a will. It is very hard to infer the
intention of the testator from his words. Moreover since signature of the testator and
attestation by witnesses are not required, there may be doubt regarding the authenticity of the
will which only increases unnecessary litigation between the parties. Moreover regarding the
doctrine of consent, rateable abatement and limitations on the testamentary power, various
schools of Islam advocate various principles which add up to the complexity. The law of
wills allows a Muslim to bequeath only one-third of his property and in case the bequest is
more than that consent of the heirs is required. In the modern era keeping the socio-economic
circumstances in mind it is quite evident that hardly any heir will give consent for such
bequest as it would result in decrease of his own share. Moreover, the bequest can be done in
favour of a stranger only and not any of the heirs (under Shia law, a testator may give legacy
to an heir as long as it does not exceed one-third of his estate). Such a limitation should not
be there. It is because of such limitations that even if legatees had ill-treated the testator they
end up getting his property. Such limitations also apply in case of Marz-ul-maut. A person
should be given absolute power to bequeath his hard earned property to any one he likes.
Thus, it is the need of the hour that the Muslim law including the law of wills be codified and
the various loopholes be done away with.

Page | 17
 BIBLIOGRAPHY

BOOKS

 Dr. Paras Diwan, Family Law, (9th Edn., Allahabad Law Agengy, 2009)
 Aqil Ahmad, Mohammedan Law, (23rd Edn. Central Law Agency, 2009)
 M. Hidayatullah and Arshad Hidayatullah, Mulla-Principles of Mohammedan Law, (19th
Edn. Lexis Nexis Butterworths, 2010)
 Syed Khalid Rashid’s, Muslim Law EBD 5th edition

CASES

 Mahabir Prasad v. Mustafa AIR 1937 PC 174 at p. 177; Izhar Fatima v. Ansar Bibi AIR
1939 All 348
 Ranjilal v. Ahmed AIR 1952 MB 56
 Mazar Husen v. Bodha Bibi (1989) 21 All 91
 Abdul Hameed v. Mahomed Yoonus (1940) 1 M.L.J. 273, 187 I.C. 414, (‘40) A.M. 153.
 Abdul Manan Khan v. Murtaza Khan AIR 1991 Pat. 155
 Khajoorunnissa v. Raushen Jehan 3 I.A. 291, 307
 Husaini Begum v. Mohammad Mehdi, (1927) 49 All 547.
 Abdul Hafiz v. Sahebbi AIR (1973) Bom. 165
 Shamshad Ali Shah v. Syed Hassan Shah (Pakistan), PLD 1964 S.C. 143.

Page | 18