The Silent Wasiyat: Conduct, Consent, and the Evolution of Mahomedan Testamentary Law

A Critical Analysis and Commentary — Mohamed v. Kunhalankutty & Ors. (2023)

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Citation: 2023 SCC OnLine Ker 9248; 2023 LiveLaw (Ker) 613

Court: High Court of Kerala at Ernakulam

Coram: A. Badharudeen, J.

Decided On: 19 October 2023

Appeal: RSA №607 of 2023

I. Introduction

The Kerala High Court’s decision in Mohamed v. Kunhalankutty & Ors1 offers a noteworthy addition to the evolving jurisprudence on Muslim testamentary succession in India, filling substantial gaps. At its center lies a common problem in succession law, the tension between the textual rigidity of classical Sunni-Hanafi rules on wasiyat and the practical realities of family conduct stretched over many years.

As Édouard Sautayra, a French scholar in Muslim law, famously observed, “a will from the Mussulman’s point of view is a divine institution, since its exercise is regulated by the Koran,”2 yet its exercise must always be aligned with the Prophet’s caution that “the power should not be exercised to the injury of the lawful heirs.”3 The decision in Mohamed v. Kunhalankutty reaffirms the two primary limits on testamentary power under Sunni Mahomedan law: (1) the one-third rule, and (2) the bar on bequests to heirs without consent, while simultaneously demonstrating that “consent” may be satisfied not only through formal expression but also by implication arising from sustained conduct, possession, and acquiescence. The judgment also revisits the procedural threshold of “substantial question of law” under Section 100 of the Code of Civil Procedure, 1908.5

This commentary will critically dissect the Court’s reasoning, locate it within the doctrinal architecture of Mulla’s Principles of Mahomedan Law, Paras Diwan’s Muslim Law in Modern India, and Poonam Pradhan Saxena’s Family Law II, and evaluate its likely contribution to the future interpretation of Muslim Wills.

1Mohamed v Kunhalankutty & Ors 2023 SCC OnLine Ker 9248, RSA No 607 of 2023 (Kerala HC, 19 October 2023)

2M Sautayra, quoted in Sayyid Ameer Ali, Mahommedan Law (vol I, 5th edn, Thacker Spink 1929) 569; reproduced in Paras Diwan, Muslim Law in Modern India (12th edn, Allahabad Law Agency 2018) ch XIV, 254.

3Diwan (n 2) 254, citing the tradition reported in Muhammad Ali, Manual of Hadith (Lahore 1944) 334; see also Asaf A A Fyzee, Outlines of Muhammadan Law (3rd edn, OUP 1964) ch X.

4Sir Dinshaw Fardunji Mulla, Principles of Mahomedan Law (M Hidayatullah and A Hidayatullah eds, 22nd edn, LexisNexis 2017) paras 117–118; corresponding to §§ 80–81 of Mulla’s original treatise.

5Code of Civil Procedure 1908, s 100, read with Order XLII rr 1–2.

II. Brief Facts

The dispute arose from the Will Deed №21/1997, executed by a Sunni Muslim, Beeravunni, aka. Bappu Haji, partitioning and bequeathing his estate amongst his heirs, including the appellant/plaintiff, Mohamed. After the testator’s death, the heirs took separate possession of their respective shares, when the plaintiff personally received “Item №4” and paid property tax on it for over a decade. Almost twelve years later, in 2011, the plaintiff filed O.S. №21/2011 before the Sub Court, Tirur, seeking partition on the ground that he had never expressly consented to the bequest, rendering the Will inoperative under Hanafi law. The trial court, the first appellate court (A.S. №70/2015), and, finally, the High Court in RSA №607 of 2023, all concurrently rejected this argument, holding that implied consent was established and that no substantial question of law arose.

III. ​Issues

Three interrelated questions arose: (i) the nature and extent of a Muslim’s power of testamentary disposition under Sunni law; (ii) whether the consent of heirs required to validate a bequest to an heir, or in excess of the legal one-third, must be express, or whether it may be inferred from circumstances and conduct; and (iii) whether a regular second appeal raising what was essentially a question of fact regarding consent could be entertained under Section 100, CPC.

IV. Reasoning of the Court

Justice Badharudeen anchored the judgment in Paragraphs 117 and 118 of Mulla’s Principles of Mahomedan Law, which are passed down from §§.80–81 of Mulla’s original text.6

Paragraph 118 codifies the quantitative limit that a Mahomedan cannot, by Will, dispose of more than one-third of the surplus of his estate after payment of funeral expenses and debts, unless the heirs consent after the testator’s death.

Paragraph 117 imposes the qualitative limit that a bequest to an heir is invalid unless the other heirs consent after the testator’s death, and “neither inaction nor silence can be the basis of implied consent.” Despite the apparent rigidity of the latter clause, the Court read Paragraph 117 alongside the Kerala High Court’s earlier rulings in Abdulkader v. Hameedamma7, and Naziruddin v. Hajirambee8, treating consent as a question of fact inferable from conduct.

Applying this principle, the Court found that the plaintiff (PW1) had: (a) detailed knowledge of the boundaries of “Item №4”; (b) admitted paying property tax on that share; © instructed his counsel to draft the plaint on the strength of those very tax receipts; and (d) raised his challenge only after twelve years of uninterrupted enjoyment. These circumstances cumulatively constituted “passive acquiescence with knowledge of the disposition,” giving rise to a presumption of consent. On the procedural front, the Court invoked Nazir Mohamed v. J Kamala9, Santosh Hazari v. Purushottam Tiwari10, and Government of Kerala v. Joseph11 to affirm that, where concurrent findings of fact already exist, no substantial question of law arises, and Section 100, CPC cannot be invoked on equitable grounds alone.

6Mulla (n 4) paras 117–118; D F Mulla, Principles of Mahomedan Law (early edn) §§ 80–81 (text reproduced verbatim in modern editions).

7Abdulkader v Hameedamma (1988) 2 KLT 643 (Ker HC).

8Naziruddin v Hajirambee (2004) 1 KLT 896 (Ker HC) [LQ/KerHC/2003/512].

9Nazir Mohamed v J Kamala (2020) 19 SCC 57; AIR 2020 SC 4321.

10Santosh Hazari v Purushottam Tiwari (Deceased) by LRs (2001) 3 SCC 179 (three-Judge Bench).

11Government of Kerala v Joseph (2023) 5 KLT 74 (SC); 2023 (5) KHC 264.

V. Critical Analysis

(a) Strict Alignment with Classical Hanafi Law

The judgment correctly applies the dual limitations of Sunni testamentary capacity: (1) a quantum limit of the 1/3rd rule, and (2) a class limit that prohibits bequests to heirs in the absence of the consent of the co-heirs.

The quantum limit is not Quranic. As Saxena notes, it goes back to the celebrated Hadith of Sa‘d ibn Abi Waqqas reported by Bukhari, in which the Prophet permitted a bequest only to the extent of one-third, observing that it was “better that he leaves his heirs rich than in a state of poverty.”12 Mulla similarly explains, drawing from the Hedaya (p 671), that “the policy of that law is to prevent a testator from interfering by will with the course of devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger.”13

Diwan rationally describes the rule as a compromise between divine ordination and the moral duty of testation. The will is a means of correcting, to a certain extent, the law of succession without injuring lawful heirs.14 The Court’s articulation that “the limits of testamentary power exist solely for the benefit of the heirs, and the heirs may, if they like, forgo the benefit by giving their consent” faithfully reproduces this orthodox position, which has been consistently followed by the Privy Council since Khajooroonissa v. Mussumat Rowshan Jehan. 15

12Kusum and Poonam Pradhan Saxena, Family Law II (4th edn, LexisNexis 2019) ch 15, ‘Wills (Wasiyat)’; the Hadith of Sa’d ibn Abi Waqqas is reported in Sahih al-Bukhari and reproduced in Muhammad Ali, Manual of Hadith (Lahore 1944) 334–35, No 2.

13Mulla (n 4) para 117 (commentary); Burhan al-Din al-Marghinani, The Hedaya (Charles Hamilton tr, 2nd edn, W H Allen 1870) 671.

14Diwan (n 2) 254.

15Khajooroonissa v Mussumat Rowshan Jehan (1876) LR 3 IA 291; (1876) ILR 2 Cal 184 (PC); cited and applied in Mulla (n 4) para 117.

(b) The Nuanced Determination of “Consent.”

The most consequential element of the ruling is its calibrated stance on consent. Mulla’s text in Paragraph 117, “neither inaction nor silence can be the basis of implied consent”16, on a literal reading, appears to mandate positive evidence of acquiescence. Yet in the very same chapter, Mulla himself supplies an illustration which is doctrinally identical to the case of Mohamed v. Kunhalankutty, where a testator’s sons attest the Will and the legatee thereafter enters into possession and recovers rents “with the knowledge of the sons, but without any objection from them,” such facts are “sufficient to constitute consent on the part of the sons.”17

Saxena likewise affirms that consent may be implied from conduct, citing examples such as: (1) helping the legatee effect mutation, (2) allowing exclusive possession, or (3) recovering rents from tenants for a long period of time.18

Therefore, the court did not violate the text. It held that mere silence is insufficient, a position consistent with Diwan’s observation that ex parte non-participation cannot, by itself, constitute consent19, but silence coupled with unequivocal conduct evidencing acceptance, such as payment of tax, exclusive possession, knowledge of boundaries, and assertion of ownership for self-serving purposes, etc., does constitute consent in fact.

To insist on express written consent in family settlements within Muslim communities, which are often executed in domestic settings without formal legal advice, would defeat the very protective purpose of the consent rule and produce arbitrary results long after the testator’s death.

16Mulla (n 4) para 117.

17Mulla (n 4) commentary to para 118 (citing Fatima Bibee v Ariff Ismailjee (1881) 9 CLR 66

18Saxena (n 12) ch 15, ‘Consent May be Express or Implied’; citing Mohamed Husain v Aishabai AIR 1935 Bom 84.

19Diwan (n 2) ch XIV, 257; Mulla (n 4) para 117 (Explanation: “Neither inaction nor silence can be the basis of implied consent”); see Narunissa v Sheikh Adl Hamid AIR 1987 Kant 22; Izzul Jabbar Khan v Chairman, District Kutchery (1956) Nag 501.

(c ) The Twelve-Year Delay as a Decisive Factor

The Court’s heavy reliance on the twelve-year hiatus is doctrinally justifiable but worth scrutinising. Although classical Mahomedan law prescribes no formal limitation period for objecting to a Will, Mulla observes that consent “need not be express; it may be signified by conduct showing a fixed and unequivocal intention,”20 and that, “once given, consent is irrevocable.”21 Mohamed v. Kunhalankutty, thus, introduces a quasi-limitation principle through the back door of “implied consent.” This is consistent with broader equity principles, laches, acquiescence, and estoppel22, but is arguably innovative for Muslim personal law, where strict adherence to text has historically been the norm.

The case will likely be cited for its proposition that the longer an heir benefits from a Will without protest, the heavier the burden upon him to displace the presumption of consent. This evidentiary inversion brings Muslim personal law into closer harmony with the wider Indian laws of property, equity, and limitation.23

20Mulla (n 4) commentary to para 118 (“The consent need not be express; it may be signified by conduct showing a fixed and unequivocal intention.”).

21Mulla (n 4) commentary to para 118 (citing Hedaya 671); Mahabir Prasad v Mustafa AIR 1937 PC 174.

22Indian Evidence Act 1872, s 115; John McGhee (ed), Snell’s Equity (34th edn, Sweet & Maxwell 2020) ch 5.

23Limitation Act 1963, sch 1, art 110 (suit for partition); Transfer of Property Act 1882, s 41.

(d) Interlinking with the Indian Evidence Act — Plaintiff’s Self-Inflicting Admission

A particularly striking feature of the case is the way the plaintiff’s own evidence became the strongest weapon against him. The Court noted that the plaintiff had detailed knowledge of “Item №4”, i.e., its exact dimensions and boundaries, and tax history, and that his pleadings had been drafted based on those very tax receipts. By treating PW1’s testimony as an admission of conduct inconsistent with the case being pleaded, the Court effectively applied the rule of qui approbat non reprobat, one cannot approbate and reprobate, i.e., enjoy the benefits and then also challenge the validity of a will. This is a subtly impactful addition which links Mahomedan substantive law on consent with the frameworks of the law of evidentiary admissions under the Indian Evidence Act, 1872.24 Saxena, in fact, had already anticipated this interlinking, treating possession and rent collection as “ample proof” of consent under Mahomedan law itself.25

24Indian Evidence Act 1872, ss 17–21 (admissions); see Bharat Singh v Bhagirathi AIR 1966 SC 405.

25Saxena (n 12) ch 15: “where … the other heirs help the legatee in effecting a mutation in his name or allow the heir to take exclusive possession of the property including recovery of rents from the tenants for a long time period, it is ample proof of the heirs giving their consent.”

(e) Section 100, CPC — Reaffirmation of the Procedural Bar

By dismissing the appeal at the admission stage itself, the High Court of Kerala reinforced the Nazir Mohamed rule imposed on second appeals.26 Whether consent is express or implied is fundamentally a question of fact, and being already decided upon concurrently by two lower courts, cannot be reopened in a second appeal.27 The judgment is therefore a useful contribution to procedural norms, discouraging litigants from relitigating factual disputes through Section 100, CPC, by repackaging them as substantive questions of personal law.

26Nazir Mohamed (n 9) [11]–[15].

27Kondiba Dagadu Kadam v Savitribai Sopan Gujar (1999) 3 SCC 722; Biswanath Ghosh v Gobinda Ghose (2014) 1 SCC 371; AIR 2014 SC 152.

VI. Shortcomings and Unanswered Questions

Despite its analytical clarity, if one scrutinizes, three notable gaps still exist that deserve mention. First, the judgment does not engage with whether the bequest exceeded one-third of the estate. The entire analysis proceeds on the qualitative grounds of Para 117. Had the Will distributed property unequally and breached the bequeathable third, additional questions of rateable abatement under Sunni law would have arisen.28 Saxena offers detailed worked illustrations of how Sunni and Shia law part ways on this point, where the former reduces each legatee’s share proportionately, while the latter follows chronological priority, with later legatees taking nothing once the bequeathable third is exhausted. 29

Second, the Court does not undertake any comparative analysis with the Shia (Ithna ‘Ashari) position, where bequests to heirs up to one-third are valid without further consent and where consent may be given even before the testator’s death.30 While not directly applicable to facts, a brief comparative footnote would have enriched the doctrinal architecture of the judgment, particularly in a jurisdiction such as Kerala where both communities reside.

Third, the Court is silent on the broader reform conversation reflected in the Law Commission of India’s 2018 Consultation Paper on Reform of Family Law, which advocates codification, gender neutrality, and a proximity-based classification of heirs.31 Mohamed v. Kunhalankutty indirectly reinforces the policy case for codification by demonstrating how the very meaning of “consent” oscillates with judicial discretion.

28On rateable abatement under Sunni law and preferential abatement under Shia law, see Mulla (n 4) paras 119–120; Diwan (n 2) ch XIV, 258–60; Saxena (n 12) ch 15, ‘Abatement of Legacies’; Fyzee (n 3) ch X.

29Saxena (n 12) ch 15 (illustrations (i)–(iv)).

30Mulla (n 4) para 117 (Shia Law gloss); Diwan (n 2) 256 (the Ithna ‘Ashari rule); Saxena (n 12) ch 15.

31Law Commission of India, Consultation Paper on Reform of Family Law (31 August 2018) ch on Muslim succession; Muslim Personal Law (Shariat) Application Act 1937, s 2.

VII. Contribution to Future Jurisprudence

The decision is likely to influence subsequent litigation in three significant ways. First, it offers a workable evidentiary template for trial courts adjudicating disputes where decades-old wills are belatedly challenged, and tax receipts, possession records, and self-incriminating cross-examination acquire new doctrinal weight, complementing the conduct markers identified by Saxena and Mulla.

Second, the ruling strengthens the integration of equitable doctrines such as acquiescence and estoppel into Muslim personal law, narrowing the apparent gap between personal law and the general law of property.

Third, by establishing the question of consent to factual determinations and putting a clear procedural barrier under Section 100, CPC, the ruling effectively protects well-implemented Wills from speculative challenges later on, contributing to the security of family settlements within the Muslim community. The decision thus contributes to a growing discussion of jurisprudence, alongside Abdulkader, Naziruddin, and Mohamed Husain v. Aishabai32, in which courts have moved away from a purely textual interpretation of wasiyat toward a contextual and conduct-based interpretation. In doing so, it implicitly points towards the growing discussion of modernisation of family and personal laws, as reflected in the Law Commission’s call for codification, and the growing discussion around unification and a uniform civil code.

32Mohamed Husain v Aishabai AIR 1935 Bom 84; cf Sajathi Bi v Fathima Bi 2002 Mad 484.

VIII. Conclusion

Mohamed v. Kunhalankutty, on the surface, is just a simple dismissal of a routine second appeal. However, on deeper analysis, it is a layered judgment that reaffirms the classical Sunni-Hanafi limits on testamentary capacity while adding on top of the consent requirement, a realistic, conduct-based mechanism. The Court’s pragmatic observation that consent can be inferred from sustained acceptance of benefits and conduct, coupled with its rigid application of Section 100 of the CPC, makes the decision a signpost for both substantive Muslim law and procedural appellate practice.

In the broader, long-term view of Indian Muslim succession jurisprudence, the case stands for the proposition that the textual rigidity of wasiyat must be balanced against the equitable doctrine of acquiescence, a balance which, as this ruling demonstrates, is best achieved with a foundation of conduct, evidence, and judicial wisdom rather than on the formality of express written consent.

While the judgment leaves certain aspects still unanswered, such as the quantum limit, the Shia position, and the codification debate, it nevertheless succeeds in modernising the operation of an ancient body of personal law without disturbing its age-old religious foundations.

For legal practitioners and law students, Mohamed v. Kunhalankutty signals that the future of Muslim testamentary law in India will be determined as much by the conduct of heirs as by the words of testators.