This Arabic term ‘wasiyyat’ means moral exhortation or moral duty. According to Hedaya, ‘wasiyyat’ means an endowment with the property of anything after death, as if one person should say to another: ‘Give this article of mine, after my death, to a particular person’.
If we are to study the genesis of the Muslim law of ‘will’ (‘wasiyyat’), we would have to go back to the history of Pre-Islamic Arabs. Before the advent of Islam, an Arab was free to make will in respect of his entire property in favour of his chosen person, leaving his own children, spouse, parents and near kin destitute. Prophet Muhammud observed that this unrestricted right of making a will was a social and economic problem for the heirs of the testator.
Hence, in order to solve this problem in a particular and sensible way a limit of one-third had been fixed by the Prophet and according to him, this one-third for the purpose of a will is enough for a stranger whom the testator loves and the rest of the property of the testator will devolve to his lawful heirs. The logic behind this fixation is undoubtedly based on reality, reasonableness and socio-economic policy and, as a result of this, a good and harmonious relationship amongst the heirs of the testator and the legatee grow up. Consequently, the doctrine of nepotism and favouritism does not play a vital role there.
However, the above precept of the Prophet might very well have been taken by the jurists of both Shia and Sunni schools of Muslim community in order to protect the rights of all heirs and to permit bequests to the extent of one-third to fulfil the testator’s moral exhortation. Therefore, according to Muslim Personal Law a Mohammedan can bequeath only one-third share of his property to a stranger whom he loves and the rest of his property i.e., two-thirds share will devolve amongst his heirs in accordance with the Muslim law of inheritance as prescribed in the holy Quran.
In India, this rule of one-third was recognised by various courts as early as 1806 and later on in 1864 in the “Ekin Bibee” case, in the 1865 “Jummunoodin Ahmed” case, in the 1868 “Baboojan” case and in the 1874 “Sukoomat Bibee” case. Presently, in India the will of a Muslim is governed by Mohammedan Law subject to the provisions of the Indian Succession Act, 1925.
Now, in India, if any Mohammedan is desirous of using his testamentary freedom subject to the provisions of the Indian Succession Act, 1925, the following points need to be remembered:-
i) A Muslim cannot dispose of more than one-third of his estate by will and this one-third will be calculated after deduction of funeral expenses and debt of the testator. For instance, ‘M’ died leaving Rs 4 lac; his funeral costs Rs 10,000 and his debt amounts to Rs 90,000; after deduction the balance is Rs 3 lac. Hence the bequeathable one-third amounts to Rs 1 lac. So the legatee will get Rs 1 lac by the will of the testator ‘M’. ‘M’ cannot dispose of more than the said amount.
ii) If the testator bequeaths any portion of his property to an heir, then in order to validate the said will consent is required from other heirs after expiry of the testator.
iii) Where there is no heir of the testator, the testator may bequeath his entire property to anybody and in such a case the one-third limitation will not be applicable.
iv) A Muslim who had undergone a marriage under Special Marriage Act, 1954 can bequeath his entire property because the persons married under this Act are governed by the Indian Succession Act, 1925 and not Muslim Personal Law. Hence, if a Muslim registers his existing marriage under the provisions of the Special Marriage Act, he has all the Powers of a testator under the Indian Succession Act, 1925, although according to Mohammedan law such a marriage is void.
A will is a testamentary disposition of a man’s property which takes effect on the death of the testator. It differs from transfer inter vivos. A transfer inter vivos takes effect immediately. On the contrary, a Will takes effect only on the death of the testator. However, in construing a Will, primarily the court gives effect to the intention of the testator. But a Muslim Will must be construed justly says Fyzee, “primarily in accordance with the rules laid down in the Mohammedan law, bearing in mind the social conditions that prevail, the language employed and the surrounding circumstances.”
In India, Hindu law of Will is quite different from Muslim personal law. It is surprising that neither in Sanskrit nor in any local language the idea of a will was expressed. Perhaps it was at the end of the 16th century or in the beginning of the 17th century that the testamentary power of a Hindu was first recognised and settled. In the year 1772 the first important judicial pronouncement was in Nuddea’s case.
In this case the Raja of Nuddea (Testator) had bequeathed the entire Zamindari in favour of his eldest son to the exclusion of his three other sons. The said will was held to be perfectly valid according to Hindu Law. Moreover, the right of a Hindu governed by the Dayabhaga Law to bequeath ancestral property, both moveable and immovable to the exclusion of the sons was affirmatively laid down in the year 1800 in the case of ‘Gopee Vs Rajkrishna’ and thereafter in 1808 in the case of ‘Rantonoo Vs Rangopal.’
Thus in India testamentary capacity of a Hindu to make a Will is unrestricted. According to the provisions of the Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus, a Hindu may dispose of by Will any property which it is within his power to bequeath by any testamentary disposition and there is no restriction and/or limitation as in the Muslim law of Will.
Similarly in English law there is complete freedom to dispose of one’s property after death as one desires. But subsequently, observing the miserable pecuniary condition of the family and dependants of the deceased testator certain restrictions were imposed by the British Parliament by introducing the Inheritance (Provision for Family and Dependants) Act, 1975. According to this Act, any dependant may apply for provision to be made out of the estate of a deceased testator.
Actually, the English law of wills which flourished in the 17th century is of the most artificial character, founded in a great degree on feudal rules, regulated by the Acts of Parliament and adjusted by a long course of judicial determination to the demands of the people of English society. In this respect, it is relevant to mention here that there is no such provision for family and dependants of a deceased testator in any family or personal law of our country except in Muslim personal law.
Indubitably the Prophet was keenly aware of the various problems that affected a lot of people in society. Hence by imposing restriction on testamentary freedom he had brought the people of Arab countries back to reality. Such restriction, subsequently accepted by the two denominations of the Muslim community throughout the world, was quite a reasonable proposal and of course it was very fair, pragmatic and sensible advice of the Prophet. In a word, it can be said that the Muslim law of will is entirely founded upon integrity, generosity and, above all, socio-economic policy in comparison with other personal laws of the land.
The writer is a freelancer and Advocate, Calcutta High Court.