205 Muslim Law - KSLU PDF

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Privileged Wills These are the wills made by a soldier employed in an expedition or actual warfare, or an airman so employed or engaged or a mariner at sea. Persons such employed cannot be expected to have the resources and time for completing all the formalities required for validation of the will, therefore they have been excused from such legal requirements and given the privilege of making simpler wills. Execution of privileged will 1. Privileged wills may be in writing, or may made by word of mouth. 2. The execution of privileged wills shall governed by the following rules:– 3. The wills should be written wholly by the testator, with his own hand. In such case it need not signed or attested. 4. It may written wholly or in part by another person, and signed by the testator. In such case it need not attested. 5. If the instrument purporting as wills written wholly or in part by another person and not signed by the testator. The instrument shall deemed as testators will, if shown that it was written by the testator’s directions or that he recognized it as his will. 6. If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, may invalid, provided that his non-execution of it can reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.

Unprivileged Wills All other kinds of wills, which are not privilege wills are called unprivileged wills. These are the wills that need or require certain conditions to be fulfilled for the wills to be valid. These are the wills commonly made by the masses. Execution of unprivileged will 1. Testator shall sign or affix his mark to the will, or signed by other person in his presence and direction. 2. The signature or mark of the testator, or the person signing for him, shall placed that it shall appear as it intended to give effect to the writing as a will. 3. The will shall attested by two or more witnesses. Each of two seen the testator sign or affix his mark to will or seen other person sign the will. 4. The signing of the will should be    

in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and hence, each of the witnesses shall sign the will in the presence of the testator.

Executor An executor plays a crucial role in implementing the intentions of the deceased, as written in the will. An executor is, therefore, the legal representative of the deceased (the testator). He or she has been given an authority to dispose off the assets of the testator as per the will (and the codicil, if any). 

Who can be an Executor?

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Anyone can be an executor. It is usually one of the nominees or the person benefitting from the assets, or a third person (particularly if a dispute is otherwise likely), whom the testator trusts and would like to get involved in distributing the property over to his nominees.

Section 307 in The Indian Succession Act, 1925 307. Power of executor or administrator to dispose of property.— (1) Subject to the provisions of sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit. Illustrations (i) The deceased has made a specific bequest of part of his property. The executor, not having assented to the bequest, sells the subject of it. The sale is valid. (ii) The executor in the exercise of his discretion mortgages a part of the immovable estate of the deceased. The mortgage is valid. (2) If the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, the general power conferred by sub-section (1) shall be subject to the following restrictions and conditions, namely:— (i) The power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the Will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order. (ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,— (a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property for the time being vested in him under section 211, or (b) lease any such property for a term exceeding five years. (iii) A disposal of property by an executor or administrator in contravention of clause (i) or clause (ii), as the case may be, is voidable at the instance of any other person interested in the property. (3) Before any probate or letters of administration is or are granted in such a case, there shall be endorsed thereon or annexed thereto a copy of sub-section (1) and clauses (i) and (iii) of sub-section (2) or of sub-section (1) and clauses (ii) and (iii) of sub-section (2), as the case may be. (4) A probate or letters of administration shall not be rendered invalid by reason of the endorsement or annexure required by sub-section (3) not having been made thereon or attached thereto, nor shall the absence of such an endorsement or annexure authorise .

Guardian Muslim law recognises following kinds of guardians: (1) Natural or legal guardian, (2) Testamentary guardian, (3) Guardian appointed by Court or statutory guardian, and (4) Defacto guardian.

1. Natural Guardians: Natural guardian is a person who has a legal right to control and supervise the activities of a child. Father is recognised as the natural guardian of his child under all the schools of Muslim law. The father’s right to act as guardian of the minor is an independent right, and is given to him under the substantive law of Islam. Natural guardian is also called Dejure or the legal guardian As stated above, only father is the natural or legal guardian of his child. But in the absence of father, the father’s executor may also act as legal guardian. Executor is a person who is appointed by father or grandfather to act as guardian of his minor child on his behalf. In the absence of father or his executor, paternal grandfather or paternal grandfather’s executor acts as legal guardian. Thus, the natural (or legal) guardians of a minor, in order of priority, are as under: (i) Father.(ii) Executor of father.(iii) Paternal Grandfather.(iv) Executor of paternalgrandfather. Under Muslim law, in the absence of any of the above mentioned persons, nobody else is recognised as the natural or legal guardian of a minor. Shia Law: According to Shia law, in the absence of father only paternal grandfather may act as natural or legal guardian. Father’s father is known as paternal- grandfather. Thus, in presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a child. 2. Testamentary Guardians: Testamentary guardian is a person who is appointed as guardian of a minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a testamentary guardian. No special formality is required for the appoitntment of a testamentary guardian but, as is obvious, such a testamentary guardian must be competent to act as guardian. That is to say, he should be adult and sane person. A non-Muslim and a female may also be appointed as a testamentary guardian.

Shia law: A non-Muslim cannot be appointed as testamentary guardian. 3. Guardians Appointed by Court: In the absence of a natural and testamentary guardian, the court is empowered to appoint a guardian for the protection of the minor’s person or property or for both. The appointment of guardians by court is governed by the Guardians and Wards Act, 1890 which is applicable to all the Indians irrespective of their religion. In India, the courts appoint the guardians for minor’s person or property under this Statute. Therefore, such guardians are also called Statutory Guardians. The courts are empowered to appoint the guardians for a minor upon an application. Such application may be made by any of the following persons: (i) Any person desirous of being or claiming to be the guardian of the minor, or (ii) Any relative or friend of the minor, or (iii) The Collector of the district in which the minor generally resides. If the court is satisfied that it is for the welfare of the minor that an order should be made, then it may make an order: (a) Appointing a guardian of minor’s person or property, or both, or (b) Declaring a person to be such a guardian. Section 17(2) of the Act provides that in considering the welfare of a minor, the court shall have regard to the age, sex and religion of the minor; the character and capacity of the proposed guardian and his nearness of kin to the minor; the wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property. In Smt. Farzanabai v. Ayub Dadamiya, the Bombay High Court observed that under Guardians and Wards Act, the personal law of the parties is a factor which is to be kept in mind by courts subject to the interest of the child. However, as the central idea should be the welfare of the minor; therefore, the rules of Muslim personal law may be considered by the court only where they are conducive to his welfare. 4. De-Facto Guardians: A de facto guardian is a person who is neither a legal guardian nor a testamentary or statutory guardian, but has himself assumed the custody and care of a child. According to

Tyabji a de facto guardian means an unauthorised person who, as a matter of fact (defacto) has custody of the person of a minor or of his property. It may be said that a defacto

WILL Will – Meaning:- A ‘Will or Testament’ is a document or an instrument. which declares or contains the intention of the owner of the property as to how his property is to be disposed of (distributed) after his/her death. The will takes effect on the death of the person making it. It can be revoked by the maker, before his death. Testator:– The person, who makes/creates a will is called ‘Testator’. Legate:– The person/persons, in whose favour, the will is created is called ‘Legatee’, Legacy:– The subject matter of the will is called ‘Legacy’. It is the property to be distributed among the heirs. Executor:- The testator, while executing the will, may appoint a person to execute the will in accordance with its contents (after his death). He is called ‘Executor’. In the absence of the appointment of Executor by the testator, the Court may appoint a person called ‘Administrator’ to execute thee will. Codicil:- Codicil is an instrument math in relation to will. It is a part of the will. Abatement of Legacies:- When a testator bequeaths more than one third of the property, and the heirs refuse to give consent, it is to be adjusted accordingly. Lapse of Legacy:- If the Legatee does not survive, the bequest (Property under will) is distributed as if there is no will. Definition:- “A will or Wasiyat” is defined as ‘an instrument by which a person makes a disposition of his property to take effect after the death and which is in its own nature ambulatory and revocable during his life’. Essentials/Requisites of will: – A will to be valid, the following conditions are to be satisfied. 1. Capacity./Competence of Testator; 2. Competence of Legatee; 3. Subject Matter: 4. Testamentary Capacity. 1. Capacity of Testator:– According to Muslim Law, any person, who is a major and is of sound mind can make a will. However, a minor can make a will subject to ratification on attaining majority. According to Muslim Law, the age of Majority is 15 years, but it is not applicable to the wills in India. 2. Competence of Legatee:– Any person having capacity to hold the property can be a legatee. The Legatee may be a Muslim or a Non-Muslim. man or woman a major or a minor or even a child in the womb provided the child is born within 6 months of the death of the testator. 3. Subject flatter:- A Muslim can bequeath any property movable or immovable, corporeal or incorporeal, which must be in existence and transferable at the time of testator’s death. 4. Testamentary Capacity:- 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.

Domicile A person is said to have domicile in a country in which he/she is considered to have his/her permanent home. A person cannot have more than one domicile. Domicile plays an important role in writing of Will, intestate succession and succession planning. The Indian Succession Act, 1925 provides that succession to immovable property in India is to be regulated by the law of India whenever a person has domiciled in India during his/her time of passing away. Hence, the concept of domicile is important while determining distribution of property after death of a person.

Domicile by Birth Domicile by birth or origin is the domicile of a person which he/she acquires at birth from parents. The domicile of birth or origin is involuntary and continues to be the domicile of the person until the person chooses to create a permanent residence elsewhere. Most persons retain domicile by birth as their domicile, even long after moving abroad for job or education purposes.

Domicile by Choice A person can take on a domicile by choice by taking up fixed residence in a country different from domicile of birth. If an Indian national moves to the USA temporarily on a H1B visa, then obtains citizenship or Green Card to stay in the USA indefinitely with no intentions of returning to India, then it could be said that he/she has adopted a new domicile by choice. For changing of domicile, the intentions of the person must be proved by acts or by declaration. Hence, a forced residence abroad as a political refugee, fugitive or for any other reason would not change the domicile of the person, unless it is followed by a voluntary adoption of the new domicile.

Domicile in India Any person can acquire domicile in India by making a declaration in writing of his/her desire to acquire a domicile in India, provided he/she has been a resident of India for at least one year prior to making of the declaration.

MAINTENANCE The concept of Maintenance was introduced to provide support to those people who are not capable to maintain themselves. It is basically provided to the spouse who is not independent and is dependent on the other spouse. The principle of maintenance includes financial support, means of livelihood and educational facilities. Under Muslim Law, women are considered weak as compared to men. It is believed that they are not able to maintain herself on her own so it is the liability of the husband to provide maintenance to her wife in all conditions even if she is capable of maintaining herself. Maintenance is known as “Nafqah” which means what a man spends on his family. Nafqah basically includes food, clothing, and lodging. The Muslim Law of maintenance may be discussed from the point of view of the persons entitled to maintenance. Such persons are: i. ii. iii. iv.

The Wife The Children The Parents and Grandparents The other relations.

But under Muslim Law, maintenance is provided to wife even if she is capable of maintaining herself which differs it from other laws. But in case of Maintenance to Children, Parents and other relations, it is given only when they are not able to maintain themselves. Here, we are going to discuss the maintenance of wife and children under Muslim Law. Maintenance of wife Under Muslim Law, as discussed above men are considered superior to women and women in all cases is considered to be dependent on men. It is the liability of husband under Muslim Law to maintain his wife even after divorce. Obligation of Husband to provide Maintenance

It is the obligation of the husband to provide proper maintenance to his wife in all circumstances whether he is in good financial condition or not. His obligation to provide maintenance is even after the dissolution of marriage. However, the obligation of husband extends only when the wife remains faithful towards him and obeys all his reasonable orders.

Quantum of Maintenance

The quantum of maintenance is not prescribed under any matrimonial statute. It is decided as per the discretion of court depending upon the condition of husband and wife. Under the Shia Law, the quantum of maintenance is decided by taking into consideration the requirements of the wife. Under Shafei Law, the quantum of maintenance is determined by the post of the husband.

Maintenance under anti- nuptial agreements Muslim marriage is a contract, an agreement is made between the parties to the marriage which prescribes the rights and duties if husband and wife. The condition of agreement should be valid otherwise the marriage should be considered as illegal. AliAkbaVs.Mst. Fatima (1929) ILR II Lah.85 An allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in addition to the amount of maintenance which she is entitled to get from her husband. It was held that the wife is entitled to it irrespective of the fact that she refuses to stay with her husband. Divorced wife’s right to maintenance under Muslim law and section 125 of Crpc and dower Under Muslim Law the rights of the wife to get maintenance during the marriage is absolute but after the dissolution of marriage, her rights are limited. She is entitled to maint...