Applicability of Muslim Law

Hasina (Querist) 24 March 2010 This query is : Resolved
I m muslim. My grandfathether has transferrd anchestral agricultural proprty by way of gift (HIBA) to child of his choice & not to all his children.

My query is can he do that & if yes what remdey is available to me to claim share frm that proprty.

According to my interpretation of muslim law, Muslim personal law is not applicable to agriculture land (Since in law it is writen that "Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat)".

Please advice sutably
I will be very thankful.

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Raj Kumar Makkad (Expert) 23 January 2012
A Muslim cannot dispose of by will more than 1%3 of the net assets after allowing (meeting) for the debts and funeral expenses of the testator (under both Hanafi Law and Shia Law). The remaining 2/3 share should be made available for distribution amongst the heirs. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs. Relevant Case on this point is: GULAM MD.vs. GULAM IIUSSAIN, AIR 1932 PC 81 ... Held in this case that, bequest in favour of heirs without the consent of other heirs is invalid.

An heirless Muslim can bequeath his entire property. In case, his wife, is the only heir, he can bequeath all his properties minus the share of his wife (as per Koranic table).

Bequeathable One-third:-- It means a third of the estate of the testator as is left after the payment of the funeral expenses, other charges and debts of the deceased (testator). All schools of Muslim Law except the Ithana Ashari School lay down that bequest of more than one third unless consented to by the heirs is invalid or a custom or usage so permits.

Formalities of Wills:-- Muslim law requires no specific formalities for creation of a will. It may be made in writing or oral or even by gestures. Though it is in writing, it need not be signed by the testator and attested by the witnesses (Ramjilal vs. Ahmed, AIR 1952 MP 56). It is necessary that the intention of the testator should be clear and unequivocal.

Construction of Will:- A Muslim will is to be construed in accordance with the rules of construction of the will as laid down in Muslim Law. Will is a document created by any person during his life time, which operates after his death. The contents of the will arc to be implemented to fulfil the intention or desire of the testator after his death. Sometimes, the contents may not be clear. In such a case, it may be interpreted as per the option of the heirs.

For instance, if the testator, to his will, bequeaths one house to heir A and the other for heir B without any specification. Then, the heirs have to make necessary arrangement.

Revocation of Will:- A Muslim will or any part thereof may he revoked by the testator at any time before his death. The revocation may be express (oral or in writing) or implied. A will may be expressly revoked by tearing it off or by burning it. Any act, which results in the extinction of the subject matter or proprietary rights of the testator will impliedly revoke the will. For instance, if the testator transfers the same property by sale or gift subsequently to another. it amounts to implied revocation.