ABDUL MAJEETH KHAN SAHIB Vs. CKRISHNAMACHARIAR

JUDGEMENT

(1.) The question referred to us is in these words: When one of the co-heirs of a deceased Muhammadan, in possession of the whole estate of the deceased or of any part of it, sells property in his possession forming part of the estate for discharging the debts of the deceased, is such sale binding on the other co-heirs or creditors of the deceased and, if so, to what extent? The answer must be in the negative.

(2.) On the death of a Muhammadan, the inheritance vests in his heirs according to their respective shares, although in the administration of the estate the funeral expenses, debts and legacies must be paid first and it is only the residue that is available for distribution among the heirs. It is not correct to say that the devolution of the estate on the heirs does not take place or is postponed until the funeral expenses and the debts and legacies have been paid. This is evident from the following facts : if an heir designated by the law dies after the death of the propositus his share descends on his own heirs and does not lapse to the i general estate. Bach heir is entitled to the income that has accrued since the testator s death in proportion to his share and s he can transfer his share by sale or gift subject, it may be, as to the latter form of disposition to such restrictions as are imposed by the doctrine of Musha.

(3.) The theory of Muhammedan jurisprudence, on Which the right of succession and inheritance is based, is that even after death, the deceased s rights in properties still inhere in him, to the extent necessary for meeting the funeral charges and the legal obligations and liabilities iucurred in his lifetime and also for carrying out his wishes, as expressed in his last will and testament, within the limits laid down by the law. A deceased person is classed among persons of defective capacity and his rights and obligations are considered not merely with reference to matters pertaining to this world but also with respect to his spiritual concerns. The payment of his funeral expenses and debts is described as his last need. And as for testamentary bequests, it is stated that, according to strict juristic theory, they should not be lawfull at all but have been sanctioned in order that the testator might make up for his shortcomings in life by making gifts to deserving objects.