One Can Only Dispose
up to One-Third of his Property
by Shabnum Kajiji
Is it true that a
Muslim can bequeath only one-third of his property through a will? Is there any
provision through which he can give all his property to any one person he wants
through a normal will? Can he gift all his property to one person without any restriction
of one-third through a gift deed?
— Ms. Neha
It is correct that
the general rule under Muslim personal laws in India (Shariat) is that a Muslim
may, by his will, dispose only up to one-third (1/3) of his property which is
left after payment of funeral expenses and debts without the consent of his
heirs.
The remaining
two-thirds (2/3) of the testator’s property must go to those who are his heirs
at the time of his death. With respect to Shia Muslims, the bequest of the
permissible one-third may be made either to an heir or / to a non-heir.
However, with respect
to a Sunni Muslim, the one-third bequest may be made only in favour of a
non-heir without the consent of his heirs.
If it is made to an
heir, it is invalid unless consent of heirs is obtained after death of
testator, in which case it is valid.
However, the above
restriction on disposition of property by will does not apply to a Muslim whose
marriage is solemnized under the provisions of the Special Marriage Act, 1954
(instead of Muslim personal laws). This is because upon solemnization of
marriage under this Act, the rules of Muslim personal law cease to apply to him
with respect to matters of succession of his property.
Accordingly, such a
Muslim may, by his will, dispose his entire property without the requirement of
his heirs’ consent.
It would also be open
to a Muslim to transfer his entire property during his lifetime by way of a
gift to any person, unless the gift is a marz ul maut (death bed) gift. Marz ul
maut is regarded under Muslim laws to be a malady which induces an apprehension
of death in the person suffering from it and which eventually results in his
death.
A gift made by a
person suffering from marz ul maut cannot take effect beyond one-third of the
estate of such donor after payment of funeral expenses and debt, unless the
heirs of the donor give their consent after the death of the donor to the
excess taking effect.
