Muslim Person's Power To Dispose Property By Will Limited For Benefit Of Heirs: Kerala High Court Explains Scope

The Kerala High Court recently pondered upon the question as to how far a Muslim could dispose of their properties by Will. 

Interpreting Paragraphs 117 and 118 of the Mulla’s Principles of Mahomedan Law, which provides for 'Bequests to Heirs' and 'Limit of Testamentary Power' respectively, the Single Judge Bench of Justice A. Badharudeen explained that, 

"...the power of a Mahomedan to dispose of his property by Will is limited in two ways. Firstly, as regards the persons to whom the property may be bequeathed, and, secondly, as regards the extent to which the property may be bequeathed. The only case in which a testamentary disposition is binding upon the heirs is where the bequest does not exceed the legal third and it is made to a person who is not an heir. But a bequest in excess of the legal third may be validated by the consent of the heirs; similarly, a bequest to an heir may be rendered valid by the consent of the other heirs. The reason is that the limits of testamentary power exist solely for the benefit of the heirs, and the heirs may, if they like to forgo the benefit by giving their consent. For the same reason, if the testator has no heirs, he may bequeath the whole of his property to a stranger: (see Baillie, 625)" 

In effect, Court held that Will inasmuch as it disposes property in favour of an heir is concerned, it is invalid unless assented to by other heirs. Insofar as it disposes property in favour of a non-heir, Will is valid only to the extent of one-third of the property.

As per the factual matrix, one Beeravunni alias Bappu Haji, the father of the appellant and respondents herein, had executed a Will and separated the properties held by him in favour of his heirs, the appellant and respondents. 

It is the case of the plaintiff-appellant that the transfer that was effected by virtue of the Will necessitated the consent of all the sharers, and that he had not consented to the same. 

The defendants/respondents however disputed the above statement and averred that all the parties had consented to the Will after the death of the father and accordingly all of them got separate possession of their respective shares covered by the Will, including the appellant. It was thus argued that there was resultantly, no need for any partition. 

The trial court held that although there was no documentary evidence to support the consent by the appellant, the materials available before the Court expressed implied consent. It thus dismissed the suit holding the properties not liable for partition, which decision was also followed by the Additional District Court, Tirur. 

It was argued by the counsel for the appellant in the present Second Appeal that a Mahomedan Will without consent of the sharers thereto is not legal and the beneficiaries therein would thus not get any right or title acting on them.

The Court in the present case, ascertained that the father had executed his Will by bequeathing all his properties upon the appellant and the respondents. 

"In such a Will, definitely all the heirs must consent so as to effectuate the Will. To put it otherwise, a bequest to an heir by a Mahomedan is not valid unless others consent to the bequest after the death of the testator and the consent of the other legal heirs is the exception to the above rule. Similarly, when the bequest is in favour of a non-heir then the Will will be valid without consent of the legal heirs in so far as 1/3 of the property of the testator and not otherwise. Be it so, Ext.B1 Will will take effect only when the plaintiff also consent the same, since all others consented the Will," the Court noted. 

Upon perusing the documents, the Court found that the appellant had impliedly consented to the share of property received by him, and had also paid the tax thereof. The Court was thus of the view that the appellant's consent would be implied from the available materials, considering that the present suit had been instituted 12 years after the execution of the Will. 

The Court thus held that there was no substantial question of law in this case warranting the admission of the second appeal. 

The appeal was thus dismissed. 

Counsel for the Appellant: Advocates Bobby George, Joy C. Paul, Eldhose Joy, Baby Simon, Reejo Johnson, Noble George, and Abhilash K.P.

Citation: 2023 LiveLaw (Ker) 613

Case Title: Mohamed v. Kunhalankutty & Ors. 

Case Number: RSA No 607 of 2023

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