Sharia law governs succession of Shia Muslims’ property

I am a Shia Muslim and I am divorced. While I was married, it was not under the Special Marriages Act, 1954. My divorce was also done as per Muslim laws, i.e., in front of a Muslim priest. This being the case, if I want to draw up a will and bequeath my property, what should I keep in mind? Also, in case I am able to bequeath only one-third of my total assets, then is it possible to liquidate all assets in my name and transfer them to my father’s name by gift or any other way? My father was married under the Special Marriages Act and can he then accordingly make a full bequest of the property (including the property that I have gifted to him)?

—A. Lokhandwalla

Shias are a sect of Muslims and succession of their property is governed by Muslim personal (Sharia) law as applicable to Shias in India.

The general rule for a Shia Muslim is that such a person may by will, without the consent of his heirs, dispose only up to a third of his entire property which is left after payment of funeral expenses and debts. The remaining two-thirds of the testator’s property will necessarily devolve on his heirs as per the intestate laws of succession applicable to him.

If he wishes to bequeath property beyond the one-third share, then such a bequest would require the consent of all the heirs.

The law does not prohibit a bequest by a Muslim in favour of non-muslims. He may even appoint a non-muslim as his executor.

A Muslim may transfer his entire property during his lifetime by way of a gift to any person, unless it is a Marzulmaut (death bed) gift, i.e. one in contemplation of death. A gift given by a person suffering from Marzulmaut 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 his death to the excess taking effect.

A Muslim married under the Special Marriage Act, 1954, can bequeath his property in entirety. Reading section 21 of the Special Marriages Act with section 213 (2) [Section 213(2) of Indian Succession Act, Paruck’s Commentary, Edition-2011, Page 777] of the Indian Succession Act, Indian courts have concluded that a Muslim can bequeath his property in entirety, if such a Muslim is married under the Special Marriage Act.

The Bombay High Court in the case of Sayeeda Shakur Khan and Others vs Sajid Phaniband and Another (2006) has inter alia held that “a Muslim who marries under the Special Marriage Act is entitled to bequeath his entire property”. There have also been other judgments supporting this position.

Therefore, while the aforesaid gift and bequests can be made, the proposed course of action is not without its own risks. Therefore, please seek proper legal and tax advise before acting upon this course of action.

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