A Muslim cannot bequeath more than one-third of his property without the consent of the heirs, and such consent can be implied from the conduct of the heirs.

SOUMEN SEN, J.

The right of a Muslim to make bequest to a stranger over and above third of the surplus of her estate is the subject-matter of challenge in this appeal arising out of a decree dated 16th December, 2005 passed by the Fifth Bench of the City Civil Court in a suit for partition filed by the respondent in this appeal.

2. The plaintiff in the suit is a legatee under a registered Will executed by one Hadiana Bibi by which bequest was made of the suit properties in favour of the plaintiffs and the defendant No.6.

3. By virtue of the said Will, the plaintiff No.1 became entitled to one-third and the plaintiff No.2 and the defendant No.6, one-sixth share each and one Shamsuddin Khan being the defendant No.6 became entitled to the remaining one-third share of the said two premises.

4. The Shamsuddin Khan was an attesting witness to the said Will. He was, in fact, collecting the rent undisputedly upto 1997 and thereafter it appears some disputes arose between the parties with regard to collection and distribution of rents. The plaintiff demanded their due share of the rent from Shamsuddin Khan by their letter dated 17th July, 2010.

5. The plaintiff alleges that although the plaintiffs are entitled to half share in the suit premises, the said Shamsuddin Khan was refusing to give such due share even after the said notice was served. Shamsuddin Khan expired on 16th August, 2000. The defendant Nos. 1 to 5 being the present appellants are the local heirs of the said Shamsuddin Khan. The defendant Nos.1 to 5 have contested the said suit and raised objection with regard to the entitlement of the plaintiff as claimed in the said plaint. However, it has been accepted that the plaintiffs could claim one-third share in terms of the prevailing Muslim Law and under no circumstances could claim half share.

6. The learned Court below has correctly observed that there is no dispute that a mahomedan can bequest his or her one-third share in favour of a stranger and bequest in excess of such one-third share cannot take effect unless the heirs consent thereto after the death of the testator.

7. It is very laudable aspect of the Muslim personal law in so far as it recognizes the valuable rights of the heirs and a clear intention to preserve the assets and properties of the family within the family. Right to make bequest was restricted to one-third share and any bequest, over and above, is not ordinarily permitted without the consent of the years after the death in case of such disposition is made in favour of a stranger. All heirs would be entitled to their full share and a bequest to an heir would not be valid unless other heirs consent to such bequest after the death of the testator. The only exception carved out was in favour of a bequest to a stranger to the extent of one-third share as mentioned hereinabove.

8. In fact, there are two provisions with regard to such bequest. One is bequest to heirs and the other is limit of testamentary power, relevant portions whereof are set out hereinbelow:

“117. Bequests to heirs.- A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share.”

“118. Limit of testamentary power. – A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator.”

9. In this regard, we may refer to some of the commentaries on Mahommedan Law.

10. In Radd ul-Muhtar Vol. V, P.644 consent of the heirs to a bequest was considered, relevant portion whereof is set out here-in-below:

Consent of the heirs to a bequest. – “A bequest,” says the Radd ul-Muhtar, “to a stranger (or non-heir) is valid to the extent of one-third of the testator’s estate, but it may be validated respecting a larger proportion with the assent of the heirs