Abdul Manan Khan v Mirtuza Khan
Rule established
A bequest in favour of an heir is invalid unless the other heirs consent after the testator's death. The one third limit is not displaced merely because all the heirs happen to be beneficiaries, since sons and daughters do not take equal shares on intestacy and the rule would otherwise be easy to evade. Consent must be given after death, since before death it is unknown who the heirs will be and in what shares. Consent by some heirs only binds those consenting, and the excess legacy is payable out of their shares. Consent need not be express and may be inferred from conduct.
Facts
- A first appeal in a partition suit concerning a 1948 "Panchnama Will" by which Gende Bibi disposed of the whole of her property to her sons and daughters. Since every beneficiary was an heir, and the whole estate was disposed of, the will breached both rules at once: it was a bequest to heirs, and it exceeded the bequeathable third.
Issue
- Whether a will disposing of the whole estate in favour of persons who are all heirs is valid without consent; whether the one third limit applies where all the beneficiaries are heirs; and when and in what form the consent of heirs must be given.
Held
- The will was upheld, consent having been inferred. The reasoning, at paragraphs 62 to 73:
- A bequest in favour of an heir is invalid unless the other heirs consent after the testator's death.
- The one third limit is not displaced merely because all the heirs happen to be beneficiaries. The reason given is that sons and daughters do not take equal shares on intestacy, so a will distributing the whole estate among all the heirs still alters their entitlements, and treating such a will as outside the rule would make the rule easy to evade.
- Consent must be after death, because before death it is unknown who the heirs will be and in what shares.
- Consent by some heirs only binds those consenting, and the excess legacy is payable out of their shares.
Ratio Decidendi
Why an all heirs bequest does not escape the rules. The tempting argument is that if the only beneficiaries are the heirs, and they would have taken the property anyway, the bequest harms nobody and the restrictions serve no purpose. The Court's answer is that heirs do not take equally on intestacy. A daughter takes half a son's share. A will distributing the estate in different proportions therefore redistributes entitlements among the heirs, which is exactly what the rule against bequests to heirs exists to prevent, since it protects each heir's Quranic share against the testator's preference for one over another. Accepting the argument would leave the rule intact only where a stranger benefits, which would be easy to circumvent. Why consent must come after death. Heirsh
How to use it in an exam
- The modern authority to pair with Jafri Begam v Amir Muhammad Khan (1885) on the law of wills. Cite Jafri Begam for the classical statement, and this case for the application and the practical detail.
- The four detailed rules to reproduce, which is what a question on wills is usually testing:
- 1. A bequest to an heir requires the consent of the other heirs.
- 2. Consent must be given after the testator's death.
- 3. Consent by some heirs binds only those consenting, and the excess is payable out of their shares.
- 4. Consent may be implied from conduct.
- Use the sons and daughters reasoning whenever a problem presents a will in favour of all the heirs. It is the answer to the argument that such a will needs no consent, and giving the reason rather than the bare rule is what earns the mark.
- Note the Sunni and Shia divergence, which should always accompany these rules: under Shia law a bequest to an heir within the bequeathable third is valid without consent, and consent may be given before or after death. So the entire analysis above is Sunni law, and the school must be identified first.
- Note the report year: decided 8 February 1990, reported All India Reporter 1991 Patna 154.
Source
Source: AIR 1991 Pat 154. First appeal in a partition suit, S B Sinha J sitting singly. Judgment delivered 8 February 1990, so 1991 is the report year and not the decision date. Verified on audit of 12 August 2026 from the full report; the holdings appear at paragraphs 62 to 73, and the judgment expressly cites Mulla's Principles of Mahomedan Law Article 118 at paragraph 30 and Article 117 with the illustration referring to Fatima Bibee v Ariff Ismailjee (1881) 9 Calcutta Law Reports 66.
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.