Family Law

Narunissa v. Sheikh Abdul Hamid

AIR 1987 Kant 222

Facts

Shaikh Abdul Gani, a Sunni Muslim governed by Hanafi law, died on 29 November 1973.
He left:
several sons;
two daughters;
immovable and movable property.
One son filed a partition suit claiming:
2/12 share for each son;
1/12 share for each daughter.
The first defendant relied upon a will dated 9 November 1973.
Under the will, one item of immovable property was bequeathed exclusively to the first defendant, who was himself an heir.
The Trial Court found:
the will was executed;
the testator was of sound mind.
However, because the daughters remained absent or ex parte, the Trial Court inferred that they had consented to the bequest.
One daughter appealed, arguing that silence and absence could not deprive her of her lawful inheritance.

Whether a Muslim can validly make a will in favour of an existing heir without consent of the other heirs.
Whether silence, inaction or failure to contest proceedings amounts to implied consent.
At what stage must consent be given?

Under Sunni Hanafi law, a bequest to an heir is invalid unless the other heirs consent.
Consent must be given after the testator’s death because:
the heirs and their shares become definite only upon death;
consent during the testator’s lifetime cannot bind an expectancy.
Even a bequest within one-third of the estate to an heir requires the consent of the other heirs.
A bequest beyond one-third to a non-heir also requires heirs’ consent.
Consent may sometimes be implied from clear and unequivocal conduct.
However:
silence;
absence from proceedings;
failure to object to mutation, do not, by themselves, establish consent.
Each consenting heir binds only their own share.

The first defendant could not obtain exclusive ownership merely by proving execution of the will.
Because he was already an heir, the special rule concerning bequests to heirs applied.
The Trial Court treated the daughters’ ex parte status as consent.
The High Court held this approach legally unsafe.
A female heir may remain absent because of:
lack of resources;
ignorance of legal consequences;
family pressure;
inability to engage counsel.
Her silence cannot be converted into voluntary surrender of property.
Implied consent requires affirmative conduct, such as:
expressly acknowledging the will;
accepting distribution under it;
transferring or dealing with property on the basis of the will;
clearly relinquishing the statutory share.
No such conduct was proved against the appealing daughter.
Another daughter, through counsel, expressly stated before the High Court that she consented to the will.
Therefore:
the bequest could operate against that consenting daughter’s share;
it could not operate against the non-consenting daughter.
The first defendant retained:
his own inheritance share; and
the additional share of any heir who validly consented.
He could not take the entire item to the exclusion of every heir merely because they had initially remained silent.

Mere silence or ex parte status did not amount to consent.
The appealing daughter retained her lawful share.
The bequest in favour of the heir was effective only to the extent of shares whose holders expressly or validly consented after the testator’s death.
Use this case for: a Muslim will benefiting an heir requires post-death consent, and silence is not consent.