Child born prior to the marriage of Muslim parents is not a legitimate child as per Mahomedan law and the child could not be treated as a legal heir, the Madras High Court has held.
A bench of Justice R. Subbiah and Justice P. Velmurugan quoted Muslim law and said an illegitimate child is considered to be the child of its mother only, and as such it inherits from its mother and its relations, and they inherit from such child.
The dispute in this case was with regard to the Will executed by father bequething all of his properties to his second wife and three sons. One of his son was born before the couple had married.
However, the bench observed, referring to Muslim law that a Mohomedan can execute a Will to his legal heirs in respect of only 1/3share. This legal point helped the Shahul Hameed, as the court observed that, in order to enforce the Will in favour of the second wife and her two legitimate children, the other legal heirs have to give their consent and since such a consent has not been given, the Will in their favour are not valid and not legally enforceable. However, the Mahomedan can bequeath 1/3 share to non-heirs, for which no consent is necessary from the legal heirs, the bench observed holding that Shahul Hameed is entitled to 1/3 rd share from the Will mentioned property.
It said: Shahul Hameed is illegitimate son of Mohamed Ansar, therefore, he does not come under the category of legal heirs (in other words non-heirs/stranger). Thus, the Shahul Hameed is entitled 27 to 1/3 rd share from the Will mentioned property, 1/3 share = 20/60. The plaintiffs and the defendants 1 to 3 are entitled to their respective portion of share from the remaining portion of 2/3 shares = 40/60.
The court, thereafter, held that the property of the deceased will devolve on all the legal heirs, as per their entitlements as per Muslim law.