Read Time: 08 minutes

Synopsis

The Supreme Court has decided to consider whether Muslim women have right to claim equality in succession in view of the mandate of Constitution of India under Articles 14 (fundamental right to equality) and 15 (non discrimination on the grounds of sex and others) thereof in the light of Article 44 (State's endeavour to secure uniform civil code for citizens).

A bench of Justices C T Ravikumar and Rajesh Bindal said the matter required deeper consideration, including the question whether a testator, who is governed by Mohammedan Law, is entitled to execute a Will of his entire estate left, according to his wish.

The court also framed another question whether a testator, who is governed by Mohammedan Law, can execute a Will to the extent of 1/3rd of the estate left by him in favour of any or more of his legal heirs without the consent of other legal heirs.

The bench appointed senior advocate V Giri as amicus curiae and asked Attorney General R Venkatramani to assist the court in this matter "as the issues have large ramifications and there is no direct judgment on the issue by this Court".

In its order from May 16, the bench clarified that the issues noticed may be reframed after hearing the Amicus Curiae and the Attorney General for India.

Court was hearing an appeal filed by Tarsem concerning the issue pertaining to execution of the Will by late Hazi. The parties are governed by Mohammedan Law, which is not codified, it noted.

The suit was filed by respondent no 1 and 2 (Dharma and others) claiming that late Hazi had executed a Will in favour of three of his sons namely Dharma, Gulzar and Karam Chand leaving the fourth son namely Tarsem. Trial Court had decreed the suit. The First Appellant Court modified the judgment and decree of the Trial Court and directed that late Hazi could execute Will only to the extent of 1/3 rd of his estate and the same was upheld to that extent. 

For the remaining 2/3rd estate all the legal heirs were to share the estate equally.

In further appeal to the High Court, the genuineness of the Will was upheld. The judgment and decree of the First Appellate Court was set aside and that of the Trial Court was restored.

The court noted during the course of argument various judgments of different High Courts were cited in terms of which a Mohammedan is not entitled to discriminate in bequeathing his estate amongst his legal heirs unless they consent for the same. Meaning thereby all legal heirs are to share the estate equally. 

On the other side, the testator is entitled to bequeath 1/3rd of his estate in favour of third party and the balance 2/3rd will go to the legal heirs in equal shares. This bar of 1/3rd will not be applicable in case the legal heirs consent for the same.

The bench also found in one of the judgments of the Karnataka High Court in Narunnisa Vs Shek Abdul Hamid (1987) reference has been made to an earlier judgment holding that if a Mohammedan is survived by a son and a daughter and the daughter does not consent to the deposition by the testator of giving 3/4th of the property to the son and 1/4th to the daughter, she will be entitled to claim 1/3rd of the property as her share of inheritance and not 50%.

"While going to the root of the issue, we came across “The Hedaya – Commentary on the Islamic Laws” translated by Charles Hamilton, “Mohammedan Law by Syed Ameer Ali” containing the law relating to ‘Gifts, Wakfs, Wills, Pre-emption and Bailment’, “Principles of Mohammedan Law by Mulla” and others. The times have changed ever since those views were expressed by the High Courts specially in view of the judgments of this Court in Prakash and others Vs Phulavati and others (2016) and Shayara Bano Vs Union of India and others (Invalidating Triple Talaq) (2017)," the bench said.

The court scheduled the matter for consideration on July 25, 2024.