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Special Miscellaneous Application No. 205 of 1984, heard on 21st April, 1986.
‑‑‑Will‑‑Bequest in favour of non‑heir‑‑Consent of heirs.
A Muslim testator can make a bequest of her property towards charity. However, the non‑heir can be validated in case the heirs consent to the same after the death of the testator‑‑Consent could be expressed or implied.
‑‑Will‑‑Grant of letters of administration and probate of will‑‑Bequest in favour of non‑heir‑‑Consent‑‑Sixteen out of twenty‑two heirs gave their consent expressly‑‑Will treated as valid to the extent of shares of sixteen heirs‑‑Mere absence of heirs cannot be treated as consent of such heirs‑‑No one can give consent on behalf of retarded person.
Abdul Latif Munshi for Petitioner.
Date of hearing: 21st April, 1986.
The petitioner, Mst. Aziz Jehan, had applied for letters of administration and probate of the Will in respect of the estate left by Mst. Sultan Jehan. The deceased has left 22 heirs and by her Will she has bequeathed to 26 beneficiaries including the 22 heirs a sum of Rs. 2,000 per son while the rest of her property she has left for distribution to charitable institutions like Mosques, Madarassah of Holy Qura'an ‑etc. The petitioner has been nominated as the sole executor of the Will.
Notice of the petition was issued, to all the 22 heirs mentioned in the Will. Next of kin No. 21 had refused to accept the notice. All the next of kin except Nos. 4, 12, 15, 20, 21 have stated that they have no objection to the grant of letters of administration to the petitioner and they have also stated that they have read the contents of the petition and its annexures and they have understood the Urdu translation of the same. Next of kin No. 18 Muhammad Wasim has filed affidavit on behalf of Muhammad Nasim as well who is a retarded person but Muhammad Nasim not being in position to consent to the same his case is to be treated as of no consent. The petitioner being herself an heir should be treated as having consented to this petition.
I find in the, petition which was originally filed for letters of administration with Will that there is mention that, the testator has given Rs. 2,000 to each of the 26 beneficiaries and it is also mentioned in paragraph 10 that the wealth is to be distributed to the charitable institution.
It is admitted position in law that a Muslim, testator can make bequest only in respect of 1/3rd of her property towards charity. However, the bequest in favour of non‑heir can be validated in case/ the heirs consent to the same after the death of the testator. The consent can be expressed or implied.
In the present case I find that only 6 heirs out of the 22 heirs listed in the list of heirs Schedule 'D' to this petition have not consented to the grant of this petition while 16 of them have consented to the same. Moreover, I find that out of the 6 heirs who have not given their consent four of them, namely, Mrs. Sarfaraz Hussain, Mrs. Shagufta Bidwai and mst. Iabal Jehan Begum have been served with the notice ey have not cared to make an appearance in this objected to the grant of the petition.
Next of kin No. 21 Mrs. Afzul Jehan has refused to 'take the notice and next of kin No. 19 is a retarded person.
Since 16 heirs have given their consent expressly, therefore, 11 treat the Will as valid to the extent of the shares of these 16 heirs. l Since not much time has gone by, therefore, I cannot treat the mere absence of the six other next of kin from this petition as their consent to this petition. In any case, Muhammad Nasim being a retarded, person nobody can give consent on his behalf and, therefore, the consen given by Muhammad Wasim on behalf of Muhammad Nasim is not vali but the same is valid to the extent of the share of Muhammad Wasi himself.
Consequently, I grant this petition and for letters of administration and probate of the Will of the deceased and direct that letters of administration and probate of the Will be issued in favour of the petitioner in respect of the immovable property bearing No. 3/54 and rent thereof lying with the Nazir, of this Court subject to the condition that the said property will be sold by the petitioner only after previous permission has been obtained from this Court but she would of course be at liberty to negotiate for the sale. The sale will be affected with the assistance of the Nazir of this Court and the consideration of sale shall be deposited in this Court. The Nazir will then purchase Khas Deposit Certificate to the extent of the shares of next of kin Nos. 4, 12, 15, 19, 20 and 21 while the balance will be paid to the petitioner for distribution to the‑ charitable institutions.
The petitioner would also be entitled to receive, from the Nazir, the already collected rent except to the extent of the shares of the above specified six heirs.
M. B. A. Order accordingly.
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