One Abdul Khalaque died on 16-12-1987, leaving behind 3.25 acres of land. After his death respondent No1, since deceased, claiming to be the first wife and respondent Nos. 2 and 3 claiming to be sons of Abdul Khalaque through his first wife, claimed their share to the property left by Abdul Khalaque but the defendants i.e. appellant No.1 being the second wife and appellant Nos. 2 to 6 being the sons of Abdul Khalaque through second wife and appellant Nos. 7 and 8 being the daughters of Abdul Khalaque through the said second wife, denied the right of the respondents and refused to make a partition according to the Mahomedan Law of Inheritance and therefore, the respondents as plaintiffs instituted Title Suit (partition) in the Court of Civil Judge, Udaipur claiming partition of the suit land described in the schedule of the plaint.
The appellants being the defendants in the Title Suit, denied the claim of the plaintiffs being legal heir of Abdul Khalaque and further stated that the said Abdul Khalaque before his death executed a Will on 19-11-1987 bequeathing the suit land amongst the defendants and the defendants according to distribution made in the Will, mutated the land in heir names and further stated that they are the legal heirs of the deceased Abdul Khalaque and they prayed for dismissal of the suit.
The learned trial court by judgment dated 28-03-2001 decided all the issues in favour of the plaintiffs. Then defendants i.e. the appellants herein, filed Title Appeal before the District Judge. The District Court upheld the judgment passed by the trial Court but re-determined the share of the plaintiffs and defendants according to the Mahomedan Law. Against the judgmentof the First Appellate Court, appeal was filed in the High Court. The High Court observed that certain basic principles of Mahomedan Will or “wasiwaat” are –
Under Muslim law, a Will or “wasiwaat”, is a legal declaration of the intention of a Muslim, in respect of his property he intends, to be made effective after his death. Every adult Muslim of sound mind can make a Will or “wasiwaat”. Such a Will may either be oral or in writing, and though in writing, it is not required to be signed or attested. No particular form is necessary for making a Will or “Wasiwaat” if the intention of the testator is sufficiently ascertained. Though oral Will is possible, the burden to establish an oral Will is very heavy and the Will should be proved by the person who asserts it with utmost precision and with every circumstances considering time and place.
The person making Will, must be competent to make such Will. The legatee must be competent to take the legacy or bequest. The subject and object of the Will must be valid one under the purview of the Muslim Law and the bequest must be within the prescribed limit. The property bequeathed should be in existence at the time of death of the testator, even if it was not in existence at the time of execution of the Will. The limitation to exercise the testamentary power under Muslim Law is strictly restricted upto one third of the total property so that the legal heirs are not deprived of their lawful right of inheritance. A Muslim cannot bequest his property in favour of his own heir, unless the other heirs consent to the bequest after the death of the testator. The person should be legal heir at the time of the death of the testator. The consent by the heirs can be given either expressly or impliedly. If the heirs attest a Will and acquiesce in the legatee taking possession of the property bequeathed,this is considered as sufficient consent. Any consent given during life time of the testator is not valid consent. It must be given after the death of the testator. If the heirs do not question the Will for a very long time and the legatees take and enjoy the property, the conduct of heirs will amount to consent. If some heirs give their consent, the shares of the consenting heirs will be bound and the legacy in excess is payable out of the shares of the consenting heirs. When the heir gives his consent to the bequest, he cannot rescind it later on.
In view of the above, the finding of the First Appellate Court that the Will executed by the deceased Abdul Khalaque was invalid and it was void and inoperative was upheld. The share of the plaintiffs and the defendants to the suit land as determined by the First Appellate Court was found to be according to the Mahomedan Law of Inheritance.
Rijia Bibi & Ors vs. Md. Abdul Kachem & Anr. AIR 2013 Gauhati 34
