• Lifetime Legacy in Muslim Will

My grandfather's Muslim Will is expected to devolve to 1/3 since heirs do not consent. 1 heir is stated to receive no share in lieu of previously given amount. Is past amount subject to division? - how court will treat this?

Testator was Shia.
Thank you.
Asked 1 month ago in Family Law
Religion: Muslim

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13 Answers

Past amount is not subject to division .it is done out of natural love and affection 


grand father can during his lifetime execute hibanama for his properties 

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

A Muslim can bequeath only 1/3 of his property by will, 2/3 will devolve as per Muslim law of inheritance. Any money paid earlier to a legal heir will not affect his share in the property.

Ravi Shinde
Advocate, Hyderabad
1590 Answers
19 Consultations

5.0 on 5.0

According to Muslim personal law, a Muslim can leave a Will only in respect of 1/3rd of his assets and the rest shall devolve on the legal heirs. Any amount given earlier to a legal heir during the lifetime of the deceased person shall not disqualify him/her from inheriting his/her share after the death of the Testator.

Swaminathan Neelakantan
Advocate, Coimbatore
1296 Answers
17 Consultations

4.9 on 5.0

Reason being during his lifetime father has out of love and affection given son some assets 


this does not deprive C to inherit property as per Muslim personal law on father demise 

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

Dear Querist

Shia Law of inheritance

The Shia Law divides heirs into two groups – by blood relations (consanguinity) and by marriage (affinity). The heirs by consanguinity are also termed as heirs by Nasab, while the heirs by affinity are heirs by Sabab.

Based on blood relations a further classification is drawn into three classes. Here the first shall exclude the second from inheritance and the second exclude the third. 




  • Parents
  • Children and other lineal descendants

  • Grandparents 
  • Brothers and sisters and their descendants 

  • Paternal, and
  • maternal, uncles and aunts, 
  • and their children



Testamentary Power and its Limits (Bequeathable one-Third)
A Muslim does not possess an unlimited power of making disposition by Will.

There are two-fold restrictions on the power of a Muslim to dispose of his property by Will, which are in respect of the person in whose favour the bequest is made, and as to the extent to which he can dispose of his property.

This is obvious, because the object behind this restriction is to protect the interests of the testator’s heirs.
# No Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is essential (Sunni and Shia laws).


A bequest of entire property to one heir to the exclusion of other heirs is void -Husaini Begum V. Mohd. Mehdi

Where the heirs refuse to give their consent, the bequest would be valid only to the extent of one-third of the property and the rest of the two-thirds would go by intestate succession.
# In respect of bequest of one-third to an heir, the consent of other heirs is required in Sunni law, but not in Shia law. In case of a non-heir (stranger) the consent of heirs is not required in both.
# The above rule of bequeathable one-third will not apply to a case where the testator has no heir. The right of Government to take the estate of an heirless person will not, in any way, restrict the right of a person to make a disposition of his property as he likes. Thus Government is no heir to an heirless person.
# A bequest made for pious purposes is valid to the extent or one-third of the property, both under Sunni as well as Shia law.
# The ‘1/3rd limit’ rule will not apply if a Muslim marries under the Special Marriage Act, 1954, because then he has all the powers of a testator under the Indian Succession Act, 1925.


Under Shia law, the legacy will lapse only if the legatee dies without leaving an heir or if the testator, after the death of the legatee, revokes the Will. However, if the testator even after the death of the legatee does not revoke the Will, on the date of operation of the Will, the benefit under it will pass to the heirs of the legatee.


Sunni Law

Shia Law

A bequest to a child in womb is valid if born within 6 months.

It is valid even if born in the longest period of gestation i.e. 10 months.

Rateable abatement of legacy applies.

Rule of chronological priority applies.

Heir's consent should be given after the death of testator.

Heir's consent may be given before or after the death of testator.

Acceptance of the legacy before the testator’s death is of no effect.

Acceptance of the legacy during the testator’s life time is lawful.




Nadeem Qureshi
Advocate, New Delhi
6140 Answers
292 Consultations

4.9 on 5.0

quite interesting

actually under muslim law a muslim can bequeath his property by a Will to a person OTHER THAN HIS HEIRS provided such bequest does not exceed 1/3rd of his estate

that means a muslim is allowed to make a Will in respect of his 1/3rd property completely to a stranger and the remaining property would compulsorily go to his legal heirs

however in this case the legacy is in favour of the legal heirs only and not to strangers

let me check the provision and get back as to what happens in such cases

i would want a proper family tree so that the actual legal heirs of your GF can be ascertained as per Shariat 

Yusuf Rampurawala
Advocate, Mumbai
6565 Answers
60 Consultations

5.0 on 5.0

Court will not pass any order suo motu on its own without the party to the lawsuits disputing the subject matter and refer the same before court for relief and remedy. 

If at all any shareholder/legal heir is aggrieved over the distribution of propriety bequeathed through a Will, they are at liberty to approach court of law based on their grievances to get them redressed as per the provisions of law they may rely upon. 

You have not discussed your actual problem so far but are asking clarifications over the outline doubts alone, hence you may tend to get different opinions from different lawyers based on their understanding of your question, hence you may ask the question directly instead of a round about question. 

T Kalaiselvan
Advocate, Vellore
75051 Answers
1263 Consultations

5.0 on 5.0

If any one of the legal heirs are aggrieved over the discriminating distribution of the assets by the testator, the aggrieved party has rights to approach court of law to get his grievances redressed and for equal justice as per the provisions of law relied upon. 

T Kalaiselvan
Advocate, Vellore
75051 Answers
1263 Consultations

5.0 on 5.0

The legal heirs are entitled to 2/3rd of the estate of the deceased, as the Testator could leave only 1/3rd by Will. The legal heir who was give any money or asset during the lifetime of the Testator is still eligible for a share in the 2/3rd estate.

Swaminathan Neelakantan
Advocate, Coimbatore
1296 Answers
17 Consultations

4.9 on 5.0

It will be as per the will of testator if the same is self acquired property. But if the said property is common one then it will be as per custom laws

Prashant Nayak
Advocate, Mumbai
24936 Answers
58 Consultations

4.4 on 5.0

- The said taken amount by the either of the legal heirs will not counted for the reason of releasing his share in the property as mentioned in the WILL. 

- Since , a Muslim can only write a WILL for one third share , then the remaining share in the property can be claimed by other legal heirs. 

Mohammed Shahzad
Advocate, Delhi
8498 Answers
92 Consultations

5.0 on 5.0

Dear client, 

As per your follow up question, if the will says C will get nothing then it is not possible for C to claim any share as per the will. Also, 1/3 share is not about safeness but rather how the Mahomedan law has been framed and followed. 

Thank you

Anik Miu
Advocate, Bangalore
3099 Answers
31 Consultations

4.9 on 5.0

In my view a testator can make a bequest in favour of any person of his choice, be it his own children or a rank stranger altogether 

In both these cases the 1/3rd rule will apply 

For eg. Abdullah died testate leaving behind his children Faiz and Sufiyaan 

Abdullah by his Will had bequeathed his entire property and effects to Sufiyaan alone and excluded Faiz completely 

Now applying the 1/3rd rule, Sufiyaan will only get 1/3rd of the property bequeathed to him under the Will

The balance 2/3rd will be equally divided between Faiz and Sufiyaan 

Thus Sufiyaan will get total 66% (33% under Will and 33% by intestate succession, that is half from the balance 66% estate of Abdullah)

And Faiz will get 33% as per intestate succession 

Thus the property distribution will be as below 


Sufiyaan - 33% under Will as a legatee 

Sufiyaan- 33% by intestate succession as a legal heir 

Faiz - 33% as  a legal heir 

Total- approx. 100% 


P.S. in above example had Faiz consented for the bequest in excess of 1/3rd, Sufiyaan would get 100% estate as per the Will 

However in above example Faiz did not consent to bequest in excess of 33%. Hence the above distribution 

Yusuf Rampurawala
Advocate, Mumbai
6565 Answers
60 Consultations

5.0 on 5.0

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