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Jafri Khanum Vs. Fahmida Khanum - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All153
AppellantJafri Khanum
RespondentFahmida Khanum
Excerpt:
.....because their benefits, already efficiently secured by the law, are not within the reason of the rule on which testamentary disposition is established, and such a bequest would, as the certain occasion of family dissension, be opposed to public..........that a muhammadan testator, governed, as in this case, by the shia school of law, cannot make a valid bequest of all his property to one of his heirs to the exclusion of the other heirs, without the consent of all the heirs obtained subsequent to his death. the legacy in this case included all the testator's property, both movable and immovable, and from the will it appears that he intended to exclude one of his daughters from participation in his estate. the sunni school agree in holding that a bequest in favour of an heir is invalid, but according to the shia law it would seem that a testator can leave a legacy to one of his heirs so long as that legacy does not exceed one-third of his estate, and that such a legacy would be valid without the consent of the other heirs. where,.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. We think that the decision of the lower appellate Court is correct. It appears to be well settled law that a Muhammadan testator, governed, as in this case, by the Shia School of law, cannot make a valid bequest of all his property to one of his heirs to the exclusion of the other heirs, without the consent of all the heirs obtained subsequent to his death. The legacy in this case included all the testator's property, both movable and immovable, and from the will it appears that he intended to exclude one of his daughters from participation in his estate. The Sunni School agree in holding that a bequest in favour of an heir is invalid, but according to the Shia law it would seem that a testator can leave a legacy to one of his heirs so long as that legacy does not exceed one-third of his estate, and that such a legacy would be valid without the consent of the other heirs. Where, however, the legacy exceeds one-third of the estate, it will not be valid to any extent unless the consent of all the heirs, given after and not before the deata of the testator, has been obtained. Mr. Baillie in his Digest of Muhammadan law, at p. 238, says: If a person should make a will excluding some of his children from their shares in his succession the exclusion is not valid.' Mr. Ameer Ali in his well known work, at p. 486 of the last edition, observes that 'the author of the Sharaya has laid down that when a testator has excluded one of his children from succession and left the property wholly to others, his direction is entirely invalid and the inheritance will he apportioned among, the heirs according to their legal share.' Again, Sir Roland Wilson in his Digest of Anglo-Muhammadan Law, after stating the rule that a bequest to an heir (not exceeding the legal third) does not require the assent of the other heirs either before or after the death of the testator to render it valid, observes: 'The Shia view is certainly the most easy to reconcile with the text of the Koran (II, 178), which recommends the believer to 'bequeath a legacy to his parents and kindred in reason,'' and than, referring to the existence of the difference between the two schools and the doubt which existed on the question, says: 'This, however, was just before the publication of Baillie's translation of the Sharaya, which places the matter beyond doubt.' In the latest work on the subject namely the Institutes of Musalman law, by Nawab Abdur Rahman, some of the principal texts upon the subject and also authorities are quoted at page 276 and following pages. The learned author of that treatise observes, at p. 278: 'The alienation of one-third to a portion of the heirs will not be legal without the assent of the other heirs subsequently to the death of the testator, because their benefits, already efficiently secured by the law, are not within the reason of the rule on which testamentary disposition is established, and such a bequest would, as the certain occasion of family dissension, be opposed to public policy.' He refers to the case of Cherachom Vitil Ayisha Kutti Umah v. Valia Pudiakei Biathu Umah (1865) 2 Mad. H.C. Rep. 350, in which the question is discussed. In another case to which he refers, namely, that of Keramatulnissah Bibee (1817) 2 Morley's Digest., 120 it was held that if a man dispose of his property to his heirs and relations, to one more and to another less, or if he omit any of his relations and after his death the heirs and relations agree to the bequest, the will remains valid, otherwise the will only remains valid as to the bequest made to strangers and invalid for the heirs and blood relations who are to receive their respective shares according to Muhammadan law. See also Ranee Khujooroonissa v. Roushun Jehan (1876) L.R. 3 I.A. 291. In view of the authorties we think that the decision arrived at by the Court below was correct and we dismiss the appeal with costs.


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