Before

THE HON’BLE FAMILY COURT,

CHANDIGARH

CIVIL PETETION_______ OF 20__

IN MATTER OF:
INSAN…………………………………………………(Petitioner)

Versus

DAUGHTER OF BENAZIR………………………….(Respondent)

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE FAMILY

COURT AT CHANDIGARH

MEMORIAL ON BEHALF OF THE PETITIONER

Submitted to: Submitted by:

Mr. Meharpreet Singh Sejal Bansal

Department of Laws, LLB 4th Sem

Panjab University Roll no. 362/22

 Table of Contents

1. Abbreviations…………………………………page 2
2. Index of Authorities…………………………..page 3
3. Statement of Jurisdiction……………………..page 4
4. Statement of Facts……………………………page 5
5. Issues…………………………………………page 6
6. Summary of Arguments……………………...page 7
7. Arguments Advanced………………………...page 8
8. Prayer…………………………………….…page 12

MEMORIAL ON BEHALF OF PETITIONER Page 1

 Abbreviations

1. Hon’ble- Honorable
2. &- and
3. PC- Privy Council
4. Sec.- Section
5. AIR- All India Reporter
6. Vs.- Versus

MEMORIAL ON BEHALF OF PETITIONER Page 2

 Index of Authorities

Table of Cases:

1. Husaini Begum Vs. Muhammad Mehdi, (1927) 49 All. 547, 100

I.C. 673 (27) A.A. 340
2. Ghulam Mohammed v. Sheik Ghulam Hussain, 54 Alld. 98: 1932
PC 81
3. Abdul Manan Khan Vs. Murtaza Khan, AIR 1991 PATNA 157
4. Khajoorunnisa Vs. Raushan Jehan, I.L.R. 2 Cal. 184

Statutes:

1. The Family Courts Act, 1984

Legal Databases:

1. www.manupatra.co.in
2. www.indiacode.nic.in

MEMORIAL ON BEHALF OF PETITIONER Page 3

 Statement of jurisdiction

The counsel for Petitioner submits to the hon’ble court that it has the jurisdiction to try the
matter under Sec. 7 of the Family Courts Act, 1984. As per explanation clause (c) to sec. 7,
family court of Chandigarh has the jurisdiction to deal with this matter.

Sec. 7 of the Family Courts Act, 1984 reads as follows:

7. Jurisdiction.

(1) Subject to the other provisions of this Act, a Family Court shall—

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate
civil court under any law for the time being in force in respect of suits and proceedings of the
nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a
district court or, as the case may be, such subordinate civil court for the area to which the
jurisdiction of the Family Court extends.

Explanation.—The suits and proceedings referred to in this sub-section are suits and
proceedings of the following nature, namely:—

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage
(declaring the marriage to be null and void or, as the case may be, annulling the marriage)
or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the

matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the
parties or of either of them…………………..

MEMORIAL ON BEHALF OF PETITIONER Page 4

 Statement of Facts

1. That Benazir, a Muslim woman married Insan, a Muslim male, in the district court of
Chandigarh.
2. That Benazir died leaving behind her husband, two sons and a daughter.
3. That before her death, she executed a Will in which she instructed to transfer her
entire movable and immovable property to her daughter.
4. That her husband, Insan challenged her Will on the ground of being beyond her
testamentary powers.

MEMORIAL ON BEHALF OF PETITIONER Page 5

 Issues

I. Whether the Will made by the deceased is beyond her testamentary

powers?
II. Whether the Will in question is considered valid?

MEMORIAL ON BEHALF OF PETITIONER Page 6

 Summary of Arguments

I. Whether the Will made by the deceased is beyond her testamentary powers?
This issue focuses on whether the Will made by the deceased (Benazir) is beyond
her testamentary powers as per the provisions of Muslim Law. The counsel
submits that as per the provisions of Muslim Law, a Muslim is allowed to make a
Will for their property up to one-third of their bequeathable property. In the
present case, Benazir has bequeathed her entire property to her daughter which is
beyond the limit prescribed by law.

II. Whether the Will in question is considered valid?

This issue focuses on whether the Will made by the deceased (Benazir) is to be
considered as a valid Will. The counsel submits that the Will made by Benazir
was beyond her testamentary powers as per provisions of Muslim Law. She
bequeathed her entire property to her daughter, which is against the One-third
rule, and this was done without the consent of the other heirs. Hence, the Will in
question will be considered invalid.

MEMORIAL ON BEHALF OF PETITIONER Page 7

 Arguments Advanced

Issue 1- Whether the Will made by the deceased is beyond her

testamentary powers?

It is humbly submitted before this Hon’ble Court that the Will made by the deceased
(Benazir) is beyond her testamentary powers as it is not in consonance with the rules for
Wasiyat under Muslim Law. There are four major requirements for making a valid Will
under Muslim Law out of which one is in breach here.

1.1 Requirements of a valid Will

The four requisites of a valid Will are as follows:

1. The testator (legator) must be competent to make the will.

Every major Muslim (above 18 years) of sound mind can make a Will.
2. The legatee (testatrix) must be competent to take the legacy or bequest.
Any person capable of holding property (Muslim, non-Muslim, insane, minor, a child
in its mother's womb, etc.) may be the legatee under a Will.
3. The subject (property) of bequest must be a valid one.
The testator must be the owner of the property to be disposed by will; the property
must be capable of being transferred; and, the property must be in existence at the
time of testator's death, it is not necessary that it should be in existence at the time of
making of Will.
4. The bequest must be within the limits imposed on the testamentary power of a
Muslim.
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.

MEMORIAL ON BEHALF OF PETITIONER Page 8

1.2 Testamentary Power

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 favor the bequest is made, and as to the extent to which he can
dispose of his property.

a) Limitation as regards to the person:

- This limitation is about to whom can the property be given. There is no objection
on bequeathing property to a non-heir in Muslim law (as long as it is below 1/3rd).
- But if the property is being bequeathed to an heir and exceeds the 1/3rd limit then,
the consent of other heirs is required.

As per the facts of the case in hand, the property was bequeathed to an heir, but it was
beyond the 1/3rd limit and the consent of other heirs was not obtained. Hence, the
Wasiyat so made is not within this restriction.

b) Limitation as regards to the property:

- The general rule with regard to the extent of property that may be disposed of by
Will is that no Muslim can make a bequest of more than 1/3rd of their net assets
after payment of funeral charges and debt. The remaining 2/3rd gets passed to the
heirs of the testator according to law.
- Thus, a testator can only transfer 1/3rd of his property by Will. Any bequest which
transfers more than 1/3rd is not valid. The testator could not by Will interfere with
the devolution of property among the heirs.
- Such Will can be made valid, if the heirs, whose rights are infringed thereby give
their consent to the bequest. But if the heirs don’t consent to the Will then bequest
will be valid to the extent of 1/3rd only and the remaining 2/3rd is passed by
intestate succession.

It was seen in the matter of Husaini Begum Vs. Muhammad Mehdi1 ,that a Muslim
cannot exclude other legal heirs and bequest the property to a single legal heir.

This provision is there to protect the rights of the legal heirs so that the entire property
is not transferred to anm outsider and not to specifically exclude some lehal heir(s)

1
(1927) 49 All. 547, 100 I.C. 673 (27) A.A. 340

MEMORIAL ON BEHALF OF PETITIONER Page 9

 from their interests. In this case, Benazir bequeathed her entire movable and
immovable property to her daughter. It is not within the restrictions imposed by
Muslim Law. Thus, the Will made by the deceased is beyond her testamentary
powers.

Issue 2- Whether the Will in question is considered valid?

It is humbly submitted before this Hon’ble Court that the Will made by the deceased
(Benazir) is beyond her testamentary powers and will not be valid.

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. A bequest of entire property to one heir to the exclusion of other heirs is
void.2

In the case of Ghulam Mohammed v. Sheik Ghulam Hussain3, it was held that: “a bequest
in favour of an heir is not valid unless other heirs consent to the bequest after the death of the
testator.”

In another such case of Abdul Manan Khan Vs. Murtaza Khan4, it was held that: “a
bequest in favour of an heir is invalid unless the other heirs consent to it after the testator’s
death. A provision has been made in law to obtain consent of the heirs after the death of the
testator, if any reason of a will more than 1/3rd of the properties is sought to be bequeathed to
an outsider, and to any extent to an heir.”

According to the facts of the present case, Benazir (deceased) bequeathed her entire property
to her daughter while excluding the other heirs, moreover the other heirs did not give consent
while executing the Will in question. Hence, the Will so made is to be held void.

According to the rule, a testator may leave a bequest to an heir provided it doesn’t total more
than one-third of his assets. Without the approval of the other heirs, such a legacy is lawful;
but, if it surpasses one-third, it is invalid without the approval of all heirs. Before or after the

2
Husaini Begum Vs. Muhammad Mehdi, (1927) 49 All. 547, 100 I.C. 673 (27) A.A. 340
3
54 Alld. 98: 1932 PC 81
4
AIR 1991 PATNA 154

MEMORIAL ON BEHALF OF PETITIONER Page 10

testator’s death, this consent may be provided. Therefore, it is invalid for a Muslim to leave
all of the property to one heir at the expense of all other heirs.

In Khajoorunnisa Vs. Raushan Jehan5, the Rule of One-third was upheld, and it was held
that “a testator can only transfer 1/3rd of his property by will. Any bequest greater than 1/3rd is
not valid. The testator could not by Will interfere with the devolution of property among
heirs. Even a bequest for a pious purpose is not allowed beyond one-third.”

The counsel for the petitioner humbly submits that the Will made by the deceased not only
contravenes the principles of Muslim Law by going beyond her testamentary power but also
excludes the other heirs making it unfair to them. Thus, the will made by the deceased is
invalid.

5
I.L.R. 2 Cal. 184

MEMORIAL ON BEHALF OF PETITIONER Page 11

 Prayer

Wherefore, in the light of facts stated, issues raised, arguments advanced and authorities
cited, the counsel humbly and respectfully in the light of justice, equity and in good
conscience prays and requests to the Hon’ble Court:

1) To declare Will made by the deceased as invalid and allow 2/3rd of the property to be
passed through inheritance.
2) To issue any appropriate directions and orders as the Hon’ble Court deems fit in the
interest of justice, equity and good conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

Sd/-

(Humbly submitted by the counsels

appearing on behalf of the

Petitioner)

MEMORIAL ON BEHALF OF PETITIONER Page 12