This article has been written by Akanksha Singh. The article is a comprehensive piece of work on the case analysis of Mazhar Husen vs. Bodha Bibi (1898). This article provides a detailed study of this landmark case and aids in understanding the concept of wills under muslim law. It also deals with the detailed analysis of the judgement along with relevant case laws and precedents involved in this case. The article gives a comprehensive learning experience to all the readers. 

Introduction

The 1898 ruling in the case of Mazhar Husen vs. Bodha Bibi (1898) is considered a seminal work in the Muhammadan law. This case becomes significant as it clarifies the complex rules regulating testamentary dispositions under Islamic law. The judgement is unique with regards to the interpretation of the Muhammadan law, concerned with the Shia sect. The strict regulations governing wills under Muhammadan law are intended to maintain fair distribution among heirs and to avoid arbitrary or extravagant bequests that might upset family peace or violate fixed inheritance shares. The book titled ‘The Spirit of Islam’ written by Amir Ali says that “A will from the Mussalman point of view is a divine institution since its exercise is regulated by the Quran”. Under the Muslim law, the will is placed at a very significant place in the life of the people. The importance of the will can be understood from the Hadith named ‘Ahmad and Ibn Majah’. This says that:

“A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden.”

This landmark case of the year 1898 is a crucial resource for legal academics and practitioners working with Islamic wills because it provides significant insights into the judicial interpretation and implementation of these principles. As per the Muslim law, in the event that a will is left, the property is divided among his or her heirs in accordance with the laws of testamentary succession. In simple terms, it means that the property is divided in accordance with the terms of the testament or will. The laws of intestate succession are used in order to divide up the property among the heirs when a person passes away without leaving a testament (will), or intestate. 

Implications of the case under the Muslim Personal Law

Under the Muslim law, an Islamic will is known by the name of ‘Al-wasiyya’. As per Muslim law, the testamentary document, generally called as the ‘will’ is known as ‘Wasiyat’. The legator makes a Will or Wasiyat which is a document giving proprietary rights in favour of a legatee. The will becomes effective after the death of the legator. The legator or testator is a person making the will. The testator retains complete ownership and control of the property as long as he or she is alive. The ability of the owner of the property to transfer such property inter vivos or by any other testamentary disposition is unaffected by a will. In no way, especially before the death of the testator, is it binding on them. It is reversible by formal cancellation or by another will made on the same property in the future. The will of a person who after making such will subsequently becomes of unsound mind is void and cannot be executed after. 

There are a few important terminologies used in this case that are essential to understand clearly. In a will, there are multiple parties involved. The term testator is used for the person who makes or creates the will whereas the term legatee is used for the person or persons in whose favour the will is being created. In other words, the person who is intended to inherit or the person on whom the property of the testator will devolve. The subject matter, that is, any type of property of the testator, of the will is called the legacy. Additionally, the testator of the will might appoint a person who will be responsible for the will to be executed in accordance with the contents of the will after the death of the testator. This person is known as ‘Executor’. While the testator did not appoint any executor of the will, the court might appoint an administrator for the same purpose.  

Details of the case 

• Case name: Mazhar Husen vs Bodha Bibi
• Case No: 0029 of 1898
• Equivalent citation/neutral citation: (1899) ILR 21 91, 25M.I.A. 219  
• Subject of the case: Muhammadan Will, Suicide of Testator
• Court: Privy Council
• Coram: Hobhouse, Macnaghten, Morris and R. Couch, JJ.
• Petitioner/Appellant: Mazhar Husen
• Respondents: Bodha Bibi
• Judgement date: 3rd August 1898
• Held: Appeal Dismissed

Facts of the case 

In the case of Mazhar Husen vs Bodha Bibi, a letter contained the details and directions regarding the property of Ibn Ali, the testator of the letter or will of the 1st of August, who died shortly after writing the letter. Ibn Ali, the testator, died on the 2nd of August, in the year 1898. Ibn Ali possessed some property. In the aforementioned letter written by the testator, shortly before his death, the testator had assigned his property in favour of his three sisters, who were the daughters of the testator’s paternal uncle, in equal share. In this case, the testator did not die from a natural death. The testator died after administering poison, named arsenic, to himself in an attempt to suicide. The testator died within a few hours of administering poison to himself. 

As per the facts of the case, the letter clearly stated that the testator had taken poison with the intention of suicide. The testator had further mentioned that he wanted the words and directions written in the letter by him to be followed after his death. There were two appeals filed before the High Court of Allahabad by special leave from two decrees, dated 11th January 1894 and 17th March 1891 respectively, of the Subordinate Judge of Allahabad. Bodha Bibi was the plaintiff in both of these suits, which were heard together in the original and appellate courts. Bodha Bibi was the widow of Amir Ali. Nasiban Bibi joined Bodha Bibi in one of the suits. In both the cases, the defendants were the same. The defendants were Haidri Begam, Nazir Bandi, Habib Bandi, and Rahim Bandi. Later, after the death of Haidri Begam, she was represented by her husband Syed Mazhar Husen. Further, Rahim Bandi was represented by her husband Fayed Fazal Husen. The respondents claim the property in dispute under the letter or will of 1st of August, 1898. 

In all of the abovementioned suits, the possession of the property mentioned under the letter had allegedly been bequeathed by the letter written by the deceased Syed Ibn Ali was to the extent of one-third of his estate. The one-third of his estate consisted of zamindars and other immovables, which were bequeathed in the favour of his three first cousin sisters. The plaintiff had filed the suit to claim the properties back from the defendant. The plaintiff, claimed, as the assignees of the property, all the interest on the property from the legatees, which was bequeathed to them by the letter or will of Syed Ibn Ali.  

Issues raised 

In this case, two issues were made out before the court. They are given below:

• The first question before the court was whether the letter dated 1st August 1898 amounted to a will under the Muhammadan law or not.
• The second question before the court was whether the will became invalid if the letter dated 1st August 1898 was written after Ibn Ali had administered poison to himself or not.

Laws or concepts involved in this case

The word ‘bequeath’ as per the law of Shia means “An act of conferring a right in the substance or the usufruct of a thing after death”. As per the article by Syed Amir Ali on the Muhammadan law regarding the Shias, there are multiple ways to direct a bequest. One such way is the usage of any expression that sufficiently indicates the intention of the testator, to bequeath his property. 

In the 25th volume of the weekly reporter page 121, a ruling of their lordships of the Privy Council held that there is no need for a particular form, even of a verbal declaration, as long as the intention of the testator can be sufficiently established. The law of Shia under the Muhammadan law is applicable in the case of Mazhar Husen vs Bodha Bibi (1898). As per the law of Shia, a will becomes invalid if it is made by the testator who was injured by his own actions or who tried to commit suicide. 

However, in this case, it was held that a will written under a circumstance where in the testator was injured by his own actions or tried to commit suicide can be considered valid if it can be inferred or proved that the will was made in contemplation of taking poison but before actually taking the poison. The onus of proving contrary to the aforementioned relies on the party impugning with. Thus, it implies that under Shia law, a will made by a testator who later committed suicide is valid when while making the will, the testator had not taken any steps towards to commission of suicide.  

Arguments of the parties

Arguments by the appellant 

Advocate J.D. Mayne and Advocate W.A. Raikes, while arguing for the appellant, contested that by considering the state of the mind of the testator, there would have been little or no difference whether the testator had taken poison before or after writing the letter. They further mentioned that there are not numerous sources on it. 

Arguments by the respondent

Advocate G.E.A. Ross, while arguing for the respondent, contested that the question of whether the letter dated 1st August 1898 is a will as per the Muhammadan law has already been established. 

Judgement of the case

On both the aforementioned issues, the appellants got a decision in their favour by the Subordinate Judge of Allahabad. The Subordinate Judge of Allahabad held that the letter and its content shall not mean a bequest. The Subordinate Judge of Allahabad further held that the letter was written after Ibn Ali had administered poison to himself. An appeal was put against the decision of the Subordinate Judge of Allahabad before the Privy Council. The respondents rely on the bequest that is mentioned in the letter written by Ibn Ali to his general attorney, Syed Zain-ul-Abdin. The Privy Council accepted the contents of the letter concerned in this case and held that the contents of the letter is not disputed now. The lordships in this case agreed to the fact that the deceased Ibn Ali had taken poison after he sent the letter. The court thus dismissed the appeal with cost. 

There was an appeal against this decision of the Subordinate Judge of Allahabad, before the divisional bench. The divisional bench reversed the decision of the Subordinate Judge of Allahabad. The divisional bench held that the letter dated 1st August 1898 can be considered as a will under the Muhammadan Law, as followed by the Shia sect. The division bench said that the letter did not become invalid solely because of the reason that the letter was executed by the suicide, who had administered poison to himself in an attempt to suicide. 

The judgement of the division bench was based on the inferences drawn from the letter concerned in this case, by considering the Muhammadan law, and by referring to the evidence on record. Subsequently, the division bench held that it was of the opinion that the letter was not written after Syed Ibn Ali took poison, rather the court inferred from the circumstances that the letter was written on 1st August 1898 and the testator died on 2nd August 1898 after administering poison to himself in order to commit suicide. The bench then held that the bequest was not bad because of it being made before committing the act of suicide.  

Based on the circumstantial evidence, the Privy Council held that the testator had written the letter before taking the poison and sent the letter to his friend, who lived at a distance of some twenty miles. Thus, the court dismissed the appeal and imposed the costs. 

Analysis of the case 

While delivering the judgement, the court acknowledged the fact that in case, the letter did not amount to a valid bequest of the property of the testator to his three cousin sisters, his property would have been devolved on his mother, Hindri. The court relied upon the contents of the letter dated 1st August 1898, as the contents of the letter were accepted to be undisputed. The court arrived at the judgement based on the following facts of the letter. 

The letter stated, as a matter of fact, that Syed Ibn Ali wrote a letter in the forenoon of the 1st of August 1898 to his mukhtar, Zain-ul-Abdin. The letter appeared to have been written an hour before the death of the testator. The letter clearly mentioned that the mother of the testator, that is, Syed Ibn Ali, shall not be given any share of his property. He further wrote in the letter that his property shall be equally given to his three cousin sisters, who were the daughters of his paternal uncle. This was written in the clause 10 of the letter as follows:

“You should not have the property given to (my) grandmother and paternal uncle’s wife, but you should give the whole to my three sisters, who are my paternal uncle’s daughters. You should see that they all get an equal share, and in the same manner, as stated by me in paragraph 3.”

The Subordinate Judge of Allahabad while dealing with the issue of whether the letter of the deceased testator is a valid will under the law of Shias, the Judge held that in the letter dated 1st August 1898, there is no ‘Tamlik Ain’ which means ‘Constituting a proprietor of the property itself’. The Subordinate Judge further said that there is no ijab, that is, ‘proposal’ as well in this case. The ‘Ijab’ is an essential element for the enforcement of a bequest with regard to the profits. For the existence of ‘Tamlik Ain’, the letter should have stated clearly that the daughter of the paternal uncle of the testator shall be the rightful owner of the property after the death of the testator. Further, the Subordinate judge said that for the existence of the ‘Ijab’, the letter should have consisted of a clear statement stating that the testator had given his property to his three cousin sisters. The Subordinate judge further held that by reading the words of the letter, it is indicated that the intention of the testator was to avoid giving his property to his mother. The passages of the letter do not show any intention of the testator to carry out a bequest or to give the properties completely to his cousin sisters. The Subordinate Judge of Allahabad further held that based on the aforementioned observations, it can be inferred that the letter cannot be considered as a valid will under the Muhammadan law, as observed by the Shia sect. The judge concluded that a bequest cannot be carried on from such a writing or declaration by a letter. 

Further, on the question of whether the will was valid or invalid based on the ground that it was written after the testator administered poison to himself. To come to a decision on this question, the Subordinate judge referred to the book named ‘Riyaz-ul Masal’, popularly known as “Sharah Kabin, Volume IV, Chapter on Wills. This book contains a paragraph in Arabic, which is translated as;

“If anyone wounds himself intentionally so as to endanger his life, and then makes a bequest, then such a bequest shall not be accepted as valid will”. 

An appeal was preferred to the High Court, which the High Court refused to entertain on the ground that the decree of the case was not in the final one, within the meaning of Section 595 of the Code of Civil Procedure. However, the High Court of Allahabad accepted the appeal based on a special leave to appeal on 24th November 1894. The court noted that there were questions as to whether the testator wrote the letter after taking the poison. 

The book ‘The Spirit of Islam’ written by Amir Ali further contains a passage stating that if a person who is lunatic or in a state of intoxication and has inflicted a deadly wound on himself, makes a bequest in such a state, then such a bequest is void. It also mentioned that any bequest made in a state when the person making the bequest is wounded or has done an act which will result in death necessarily, then such a bequest is illegal. The Subordinate Judge of the Allahabad High Court further mentioned that a person making such a bequest falls under the category of a person who is dead and thus the provisions related to the living wills are not applied to the testator in the present case. The other passages also said that a valid bequest exists when the person is of sound mind while making it. The Subordinate Judge mentioned that the aforementioned book is not the only book containing such provisions. Books such as Tahzib, Maula-yah Zar-ul-Fakih, Vasail Tashaya, Furu Kaft, Sharaya-ul-Islam, and Mulchtasar Mani contain the same principle that a bequest as aforementioned shall be illegal. In the book, Javahar-ul-Kalam also mentioned the following:

“One who Voluntarily does an act from which he thinks he must die is to be classed with one who has committed suicide, instance, one who has taken poison will come under the same category.”

Thus, the Subordinate Judge at Allahabad inferred that even if the court assumes that the letter dated 1st August 1898 written by Syed Ibn Ali amounted to a will, such will was completely void and unenforceable because the will was created after Ibn Ali attempted to end his life. 

Relevant judgements on the subject of wills under Islamic law

There are several decisions under the Muhammadan law which deal with the wills. 

Ghulam Mohammed vs. Ghulam Hussain (1932)

In the case of Ghulam Mohammed vs. Ghulam Hussain (1932), the court determined that a bequest made in the favour of an heir is void unless the other heirs agree to it after the death of the testator.

Fukan vs. Mst. Mumtaz Begum (1971)

In the case of Fukan vs. Mst. Mumtaz Begum (1971), the Rajasthan High Court ruled in this case that a bequest made in the favour of an heir was invalid until and unless other heirs gave their approval, regardless of whether the bequest represented one-third of the whole property.

Abdul Manan Khan vs. Murtaza Khan (1991) 

In the case of Abdul Manan Khan vs. Murtaza Khan (1991), the Patna High Court once more determined that a bequest of property made in the favour of an heir is void unless the other heirs have given their assent to such bequest after the death of the person who made the will.

Conclusion 

The landmark case of Mazhar Husen vs. Bodha Bibi (1898) had a far-reaching impact as it not only established a precedent for future cases involving related difficulties or similar situations, but it also defined the legal position under Muhammadan law regarding the execution and limitations of wills. The judgement emphasised the need to strike a balance between testamentary freedom and the right of the heirs to inherit property and reaffirmed the need to abide by the established restrictions on testamentary bequests. In doing so, it emphasised the fine balance that Islamic law aims to preserve between personal freedom and family responsibilities.

A Muslim will must be interpreted largely in line with the rules established by the Muhammadan Law, taking into consideration the language used, the social context, and the surrounding circumstances. A will acts from the death of the testator, just like in contemporary law. When a will contains ambiguities, the court should, to the greatest extent feasible, give effect to the purpose of the testator. In other words, the court, while dealing with any uncertainty or dispute with the contents of the will, shall try to give effect to the intention of the testator. 

One of the pivotal aspects of the case is that the ruling gave a clarification as to the validity of a will made by a person who subsequently died by his own actions by administering poison to himself in an attempt to commit suicide. The in-depth examination of the ability of the testator to make a will and the legality of the will by the court established a framework for evaluating testamentary documents in the context of Islamic law. The ruling established a strong precedent for similar cases in the future by closely examining the procedural elements, such as the requirement for witnesses and the evidence standards needed to show a will. In order to ensure that Islamic law was applied fairly and accurately in a case of 1898 under a colonial setting where courts had to reconcile British legal norms with Islamic jurisprudence, procedural clarity was crucial and the case ensured that the application of the Islamic law was fair and accurate. 

Frequently Asked Questions (FAQs)

What is the difference between the law of Sunni and the law of Shia with regard to the case of ‘Mazhar Husen vs Bodha Bibi (1898)?

While there are multiple differences between the law of Shias and the law of Sunnis, the difference that is relevant in context with the case of Mazhar Husen vs Bodha Bibi (1898) is the law on the validity of a will. Under the law of Sunnis, the will remains valid even if the person who made the will commits suicide subsequently. However, under the Shia law, the will clearly becomes invalid if the person who made the will commits suicide later unless it can be established that the will was made by the deceased testator before he actually took any step towards the commission of the act of the suicide. 

What is the limitation put on the disposition of the property under the law of Shias?

Under the law of Shia, the bequest of a property by a testator to their heirs is valid only up to the extent of the one-third of the property.  

References

• https://lc2.du.ac.in/DATA/Will.pdf
• https://legalvidhiya.com/wasiyat-concept-and-formalities/#_ftn3
• http://14.139.60.116:8080/jspui/bitstream/123456789/24996/1/017_Mazhar%20Husen%20vs.%20Bodha%20Bibi%20and%20another%20%2891-99%29.pdf