Family Law

Mohamed v. Kunhalankutty

2023 LiveLaw (Ker) 613

Facts

Beeravunni, also known as Bappu Haji, owned several properties.
He executed a will, Will No. 21 of 1997, distributing his properties among his legal heirs.
Mohamed, one of the heirs, later filed a partition suit.
He admitted that the will had been executed but argued that:
the beneficiaries were already legal heirs;
he had never consented to the bequest;
under Muslim law, a will in favour of heirs could not operate without consent after the testator’s death.
The defendants maintained that:
all heirs accepted the will after the testator died;
separate properties were taken and enjoyed under its terms;
Mohamed himself acted upon and benefited from the will.
The Trial Court and First Appellate Court found that Mohamed had impliedly consented through his conduct.
He filed a second appeal before the Kerala High Court.

Whether consent to a Muslim will in favour of heirs must always be express.
Whether post-death consent can be inferred from an heir’s conduct.
Whether Mohamed’s acceptance of property under the will prevented him from later demanding a fresh partition.

Under Sunni Muslim law:
a bequest to an heir is invalid unless the other heirs consent after the testator’s death;
a bequest to a non-heir exceeding one-third of the net estate also requires consent.
An heir’s consent binds only that heir’s own share.
Consent may be:
express; or
implied from clear, conscious and unequivocal conduct.
Mere silence, inaction or failure to immediately challenge the will is insufficient.
Conduct such as:
accepting possession under the will;
enjoying the property allotted;
recognising similar allotments to others;
dealing with property on the basis of the will, may establish implied consent.

Mohamed relied on the correct general proposition that a Muslim cannot impose a testamentary disposition upon an unwilling heir.
But the dispute was factual: whether Mohamed had in fact accepted the arrangement after the testator’s death.
The courts below found that the heirs:
entered into possession of the properties allotted to them;
dealt with those properties separately;
accepted the will as the basis of distribution.
Mohamed had also taken and enjoyed benefits under the same instrument.
His conduct went beyond passive silence.
He could not simultaneously:
retain the property given to him under the will; and
reject the will when seeking an additional share in properties allotted to others.
Acceptance of benefits, combined with separate enjoyment and recognition of the testamentary arrangement, amounted to post-death consent.
The High Court distinguished cases like Narunissa, where consent was inferred merely from non-participation.
Here, there were positive acts demonstrating acceptance.
Since both lower courts had reached concurrent factual findings, a second appeal could proceed only if a substantial question of law arose.
Reappreciating evidence concerning acceptance and possession did not constitute such a question.

The second appeal was dismissed at the admission stage.
Consent to a Muslim will may be inferred from clear post-death conduct.
Mohamed’s acceptance and enjoyment of benefits under the will established implied consent.
Use this case for: the distinction between mere silence and affirmative conduct amounting to implied consent to a Muslim will.