BackAsk Mint Money | Some rules of Indian Succession Act don’t apply to all communities
Ask Mint Money | Some rules of Indian Succession Act don’t apply to all communities
PremiumMuslim men in Varanasi. AP
Can a Muslim bequeath his entire property under a will if he has registered his marriage under the Special Marriage Act?
—Hasan Ali
The Special Marriage Act, 1954 (SMA) inter alia provides that notwithstanding any restrictions contained in the Indian Succession Act, 1925 (ISA), succession to the property of any person whose marriage is solemnized under SMA and to the property of any children born out of such marriage shall be regulated by ISA.
The provisions of SMA state that special rules for Parsi intestate contained in ISA shall be deemed to have been omitted while applying provisions of ISA to persons whose marriage has been solemnized and/or registered under the provisions of SMA or to children born of such wedlock. Thus, succession to the property of a Muslim whose marriage has been solemnized and/or registered under SMA shall be governed by ISA.
In the case of Sayeeda Shakur Khan and Ors. v. Sajid Phaniband and Anr. [2006 (5) BomCR 7], the following questions were raised before the Bombay high court:
•Whether section 21 of SMA would have the effect of removing the restriction on a Muslim which permits him to bequeath only a part of his property?
•Whether a will made by a Muslim married under SMA needs to be probated? Can such a Muslim avail the enabling provision under section 213(2) of ISA?
While answering the questions, it was held that a Muslim who marries under SMA is entitled to bequeath his entire property. There would be no restriction on him to bequeath only one-third of his property as per the Muslim Personal Law. Moreover, such a person would not have to obtain the consent of the heirs to bequeath in excess of the legal third of his property. However, once a Muslim married under SMA is treated on a par with a person of other communities married under SMA, all the rigours of ISA are applicable. Prima facie, it appears to me that a will of such a Muslim who was married under SMA would need to be probated.
The view taken by the Bombay high court with regard to a Muslim not being restricted from bequeathing his entire property under a will was affirmed in the case of Bilquis Zakiuddin Bandookwala v. Shehnaz Shabbir Bandukwala [2011(1)MhLj963]. But the learned judge disagreed with the judgement in the case of Sayeeda Shakur Khan as regards the requirement for a Muslim to obtain a probate.
So if a Muslim solemnizes and/or registers his marriage under SMA, he shall be entitled to bequeath his entire property under a will and would not require the consent of heirs to do the same.
Shabnum Kajiji, Partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
Queries and views at mintmoney@livemint.com
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