Calcutta High Court (Appellete Side)
Rabbani Begum And Ors vs Zarina Bibi And Anr on 5 August, 2011
Author: Soumen Sen
Bench: Pinaki Chandra Ghose, Soumen Sen
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
F.A. No.90 of 2007
Rabbani Begum and Ors.
Vs.
Zarina Bibi and Anr
BEFORE:
The Hon'ble Justice PINAKI CHANDRA GHOSE
A N D
The Hon'ble Justice SOUMEN SEN
For Appellant : Mr. Swapan Mallick, Sr. Adv.
Mr. Shaheen Salauddin, Adv.
For Respondent : Mr. Sabyasachi Bhattacharya, Adv.
Mr. Chandradoy Roy, Adv.
Heard on : 04.05.2011, 06.05.2011 & 12.05.2011 Judgment on : 05.08.2011
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.
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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.
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.
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.
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 3 plaintiffs could claim one-third share in terms of the prevailing Muslim Law and under no circumstances could claim half share.
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.
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.
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:
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"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."
In this regard, we may refer to some of the commentaries on Mahommedan Law.
In Radd ul-Muhtar Vol. V, P.644 consent of the heirs to a bequest was considered, relevant portion whereof is set out hereinbelow:
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 after the death of the testator; consent given during the lifetime of the testator is of no effect; the consent in order to be effectual must be not only after the death of the testator, but the parties must be adult and sui juris. The consent of heirs before the death of the testator is ineffectual because the right to the inheritance does not vest in them until his death. When consent is given according to 'us' the legatee would derive his title from the testator; according to Shafei, the right will be derived from the consenting heir. When some of the heirs consent and others do not, the legacy will be valid in proportion to the shares of the assenting 5 heirs. It is requisite that the consenting heirs should be, adult and possessed of understanding. Consequently the consent of the infant and the non-compos mentis is not valid. The consent of the person who is sick is subject to the same rules as his legacy. Whether a person is an heir or not must be considered with reference to his right of inheritance at the time of the testator's death. Therefore, when a person leaves a legacy to his brother at a time when he has no children, and afterwards children are born to him and he dies, the legacy to the brother is valid, for in the presence of the children he has no right of inheritance. Similarly, if a person were to make a bequest to his wife and afterwards were to divorce her, the legacy would be valid for she is not an heir at the time of the testator's death; the marriage relation having been dissolved, the right of inheritance also falls to the ground."
It will be convenient for us at this stage to refer to the commentaries by other distinguished authors who have interpreted the Mohamedan Law on the subject.
"5. Sir R.K. Wilson in his Anglo Muhammadan Law, Sixth Edition (1930) in paras 270, 271, 272, 272A, 273 and 274, pages 303, to 307, while dealing with the extent of the testamentary power as regards property, has stated as follows:
"270. Limit of the testamentary Power:
Bequests by a Muslim can only take effect to the extent of one- third of the net assets remaining after payment of his funeral expenses and debts, unless the excess is rendered valid by the 6 consent, given after the death of the testator, of the inheritors whose rights are infringed thereby, or by the fact of there being no such inheritors."
"271. Bequests in excess of the limit abate rateably. Exception:
Where the testator has made a number of bequests which collectively exceed one-third, and are not allowed by the heir, the rule is that they must abate rateably, provided that they are all bequests to individuals. But if some of the bequests are for pious purposes expressly ordained in the Koran, while others are for pious purposes not expressly ordained, the former will take precedence of the latter; and the bequests for non-ordained pious purposes will be satisfied in the order in which they follow each other in the will. It is uncertain whether, as between bequests "to Almighty God" and bequests to individuals, precedence should be given to the former or the latter, or whether both should abate rateably.
"272. Bequest to heir, void:
A bequest to a person entitled to inherit is void unless the other inheritors give their consent, after the death of the testator, to its taking effect.
"272A. If bequests are made to heirs and strangers, the bequests to heirs are not valid without the other heirs' consent, even if the aggregate of bequests does not exceed a third; the bequests to strangers are valid without such consent if the aggregate of valid bequests does not exceed a third; if it exceeds a third, the consent of heirs is required; in default of such consent, the strangers' bequests abate rateably, as in S.271.7
"273. To a stranger after bequest to heir for life, also void:
If a testator bequeaths property to one of his heirs for life, or to two or more of his heirs for their joint lives and the life of the survivor, with remainder to some stranger to whom he might lawfully bequeath it, or to some lawful charitable purpose, then the failure of the original bequest, for want of assent of the other heirs will involve the failure of the subsequent bequest also.
"274. Effect of consent of heirs:
When a bequest which would otherwise be void is rendered valid by the consent of the heirs, the legatee is considered to derive his title from the testator rather than from the heirs, and the actual possession is not necessary to its completion."
"7. Neil B.E. Baillie in his Digest of Mahomedan Law (1865) on pages 614-15 has stated as follows:
"A bequest to a stranger is valid without the consent of the heirs, but not beyond a third of the estate, unless assented to by them after the testator's death. It is implied that they are of full age, and no regard is had to their permission granted during the lifetime of the testator. When a man bequeaths his whole estate, having no heirs, the bequest takes effect, and there is no occasion for any assent on the part of the beit-ool-mal, or public treasury.
A bequest to an heir is not lawful, according to "us", without the assent of other heirs. If it be made to an heir and a stranger, it is valid 8 as to the share of the stranger, and dependent as to the share of the heir on the permission of the other heirs. If permitted by them, it is lawful; and if not permitted by them, it is void - no regard being had to a permission granted in the lifetime of the testator; so that they may afterwards retract."
"8. Mulla in his Principles of Mahomedan Law, Eighteenth Edition (1977) in para 117 on page 137 has stated that 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. He has also reiterated than in determining whether a person is or is not a heir, regard is to be had not to the time of the execution of the will but to the time of the testator's death. Thereafter in paragraphs 118 and 119 he has observed as follows:
"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......
"119. Abatement of legacies: - If the bequests exceed the legal third, and the heirs refuse their consent, the bequests abate rateably."
"9. Faiz Badruddin Tyabji in his Muslim Law, Fourth Edition, (1968) in para 675 on page 754 has defined the "bequeathable third" to mean one-third of the estate after payment of the funeral expenses and the debts of the deceased, and also such property as does not pass under the Muslim law of succession but a special law. While defining and 9 commenting upon the extent of the property that a Muslim can bequeath, in paras 669, 670, 671 and 672 he has stated:
"669. Under systems of Muslim law other than the Ithna Ashari Shiite law a testamentary disposition is (unless validated under Ss.670 and 671), invalid, if, and in so far as, it purports -
(a) to dispose of more than the bequeathable third; or (b) to benefit any of the testator's heirs; or (c) to benefit an object opposed to Islam as a religion. In
determining under Section 669(a) whether the bequests exceed the bequeathable third, (i) bequests that are void for some reason other than because they are in excess of the bequeathable third are not taken into account; (ii) where the bequest is of the usufruct, its capital value must be determined and that value adopted for the purposes of S.669(a)."
"670. (1) Bequests in excess of the bequeathable third and/or in favour of any heir (S.669), are validated and will be given effect to, if, after the testator's death, the heirs whose rights are affected by such dispositions consent thereto, expressly or impliedly or by passive acquiescence such consent has been held to be valid and effective though the heir is insolvent when he consents.
(2) Where some of the heirs consent and the others do not, the bequest (in so far as its validity needs consent) is payable out of the shares of the consenting heirs alone.10
(3) A testamentary disposition validated under S.670(1), operates (except under Shafii Law) as the act of the testator, and not as a gift by the heirs; and to complete the transfer of the bequest to the legatee it is not necessary except under Shafii law) that possession of its subject be transferred."
"671. In the absence of heirs and as against the right of the State to take by escheat, the testator may bequeath the whole of his property by will. Where a testator dies leaving only a wife/husband as his/her and no blood relations, if he is a man, he is entitled to bequeath of 5/6 of his estate; and if a woman to bequeath 2/3 of her estate."
"672. The Ithna Ashari Shite Law agrees with the law as stated in Ss.669-671 with the following modifications.
(a) the consent validating bequests under S.670, may be lawfully given in the lifetime of the testator, and need not be ratified after his death;
(b) the testator may, without the consent of his heirs. Lawfully bequeath -
(i) legacies to any of his heirs, payable out of the bequeathable 1/3;
(ii) any part of his estate (even if it exceeds 1/3) for the performance of such religious duties as are incumbent on himself;11
(iii) the whole or any part of his estate by way of muzarbiat or qeraz on the terms of an equal division of profits between the legatee and the testator's heirs, set quaere."
We may on the basis of the aforesaid summarize position of law on the subject as interpreted by the aforesaid distinguished authors.
According to the authorities mentioned above, it is clear that a muslim cannot bequeath more than one-third of his property whether in favour of a stranger or his heir when there are heirs or other heirs left by him as the case may be. However, if the property bequeathed, is in excess of one-third of the estate, the surplus bequest is not valid unless the heirs, or other heirs (if the bequest is in favour of one or some of the heirs) give their consent. Under the Hanafi law, the consent has to be given after the death of the testator, whereas under the other schools of law it can be given either before or after the death of the testator.
A Division Bench of the Bombay High Court in Damodar Kashinath Rasane Vs. Smt. Shahajadibi and Ors. reported in AIR 1989 Bombay had the occasion to consider a bequest in excess of the one-third of the estate where Their Lordships after taking note of the aforesaid authorities made the following observations with regard to bequest in excess of one-third share:
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"The estate bequeathed in excess of the bequeathable third will be valid to the extent of the share of the heir or heirs consenting to such excess, whether the bequest is in favour of the stranger or the heir or heirs. Where, however, there are more bequests than one which together exceed one-third of the estate, the bequests get reduced rateably. The bequests in favour heirs are discouraged under the Mohamedan Law, because the shares of the heirs are fixed and no bequest can be made to deprive the heirs of their rightful share. The object is also to avoid internecine disputes between the heirs. While bequest in favour of an heir, according to one Mohamedan School of law is entirely invalid even if it is confined to the bequeathable third, according to another school, it is valid only to the extent of one-third. It also, however, appears that where other heirs consent to the bequest, according to both schools, the bequest is valid whether it is of one- third or of more of the estate. Where only some of the heirs consent, it is valid only to the extent of the share of the consenting heir or heirs."
It is not in dispute that the plaintiff should be entitled to one-third share. The question remains as to whether they would be entitled to half share as claimed in the plaint. In this regard, the learned Court below allowed the claim of the plaintiffs on the basis of implied consent by Shamsuddin Khan during his lifetime.
In arriving at the conclusion, the learned Trial Judge has taken into consideration the following aspects:
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"(i) Samsuddin Khan is an attesting witness of the will executed by Hadinan Bibi.
(ii) The contesting defendants, that is, the heirs of Samsuddin Khan have not denied about their father being an attesting witness of the will.
(iii) Samsuddin Khan was not an illiterate person and accordingly there is no question of making fraud or undue influence upon him to sign the will as an attesting witness.
(iv) The will was executed in 1984 and Shamsuddin Khan died in 2000.
During these long 16 years Shamsuddin Khan did not prefer to file any suit against the plaintiffs with regard to the suit property.
(v) The plaintiffs are in possession of the suit property and it is the categorical assertion of the plaintiffs that Shamsuddin Khan collected rents upto 1997 and paid due share to the plaintiffs and thereafter he did not pay as per share for which a notice was served upon him.
(vi) The notice dated 27th July, 2000 clearly shows an assertion of a right to claim such share which remain unreplied."
Even on appreciation of evidence it can be seen that there is no denial that the rents were being collected by Shamsuddin Khan and the defendants did not come before the Trial Court to depose supporting their contentions as made in the written statement that the plaintiffs would not be entitled to half share. 14
In this regard it would be useful to refer to the evidence adduced on behalf of the plaintiffs. In the affidavit of evidence, the plaintiff has categorically asserted their right to half share and has clearly denied that Shamsuddin Khan had kept two-third share of the rental income and allowed the plaintiffs and the defendant No.6 retained their one-third share. On the contrary, it has been specifically stated that the said Shamsuddin Khan stopped payment to the plaintiffs of them half share since 1997 and prior thereto the plaintiffs were always receiving their half share from Shamsuddin Khan.
The said stand of the plaintiffs have not been demolished in the cross- examination. Since Shamsuddin Khan was collecting the rent and evidence ought not to have been led by the defendants to show that what in fact was paid to the plaintiffs represented only one-third share and not half share. On the contrary, it has been specifically stated in the cross-examination that the shares have been properly distributed between the plaintiff and the other shareholders. It is curious as to why the defendants did not feel necessary to adduce any evidence on this point. The learned Court below have also noticed the decision of the Patna High Court on the aspect of implied consent. The learned Single Judge in Abdul Manan Khan Vs. Mirtuza Khan case reported in AIR 1991 Patna 161 after considering the authorities held that consent can be inferred from conduct. The Acts of attestation of will by legatee and taking of possession by them of the property bequeathed would signify such consent, relevant observation of the learned Single Judge is reproduced hereinbelow:
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"75. It is now well known that the consent need not be expressed and it may be signified by conduct showing a fixed and unequivocal intention."
"76. Attestation to the will and acquiescence in the legatee taking possession of the property bequeathed and the acts of collecting rent etc. are held to be sufficient for proving such consent."
Hadinan Bibi died on 14th August, 1986 and during the long 16 years Shamsuddin Khan did not challenge the said will and on the contrary collected the rent and paid due share to the plaintiffs.
We have considered the judgment and the evidence on record and we are of the opinion that the learned Court below on correct appreciation of law and fact decreed the suit in favour of the plaintiffs and we see no disagreement with the said judgment and decree. Accordingly, the appeal is dismissed, however, under circumstances there shall be no order as to costs.
Photostat certified copy of this judgment, if applied for, be supplied to the parties.
(SOUMEN SEN, J.) I agree.
(PINAKI CHANDRA GHOSE, J.) 16 Later:
By Consent of the parties, we appoint Mr. Javed Ahmed, advocate, City Civil Court, as receiver in place and stead of Mr. Chandraday Roy.
(SOUMEN SEN, J.) I agree.
(PINAKI CHANDRA GHOSE, J.)