FAMILY LAW – II

MEMORIAL ON BEHALF OF DEFENDANT

Submitted to- Submitted by-

Dr. Saroj Bohra Hemendra Singh
Principal Faculty Enrollment no. A21511120051
Family Law – ii BA LLB
4th Semester

1 |MEMORANDUM ON BEHALF OF THE DEFENCE

 IN THE DISTRICT COURT OF
JAIPUR

UNDER SECTION 9 OF THE CODE OF CIVIL PROCEDURE

NEELOFAR AND OTHERS

(APPLICANT)
V.
HAKIM
(RESPODENT)

-----------------------------------------------
MEMORANDUM ON BEHALF OF THE DEFENDANT
-----------------------------------------------

2022

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 TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………………..…3
LIST OF ABBREVIATIONS………………………………………………...…4
INDEX OF AUTHORITIES………………………………………………….…
5
STATEMENT OF JURISDICTION………………………………………...
…..7
QUESTIONS PRESENTED………………………………………………….…8
STATEMENT OF FACTS………………………………………………………
9
SUMMARY OF PLEADINGS…………………………………………...……
10
PLEADINGS AND AUTHORORITIES………………………………………11
PRAYER FOR RELIEF………………………………………………..………
14

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 LIST OF ABBREVIATIONS

AC Appeal Cases

A.I.R All India Reporter

Art Article

CPC The Code of Civil Procedure

Hon’ble Honourable

u/s Under section

M.P. Madhya Pradesh

Ors. Others

r/w Read with

S Section

SC Supreme Court

Sec. Section

V. Versus

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 INDEX OF AUTHORITIES

CASE LAWS
S.No. CASE LAW CASE CITATION
1. Khaiunnissa v. Karamatullah A.I.R 1933 Oudh 99
2. Mayadad Khan v. Hazari Lal A.I.R. 1928 Nag. 275
3. Kulsum Bibi v. Shiam Sunde A.I.R. 1936 All. 600
4. Izhar Fatima v. Ansar Bibi A.I.R. 1939 All. 348
5. Mahabir v. Mustafa AIR 1937 P.C. 1974
6. Venkatrao v. Nandev A.I.R. 1931 P.C. 283
7. Abdul Hameed v Mohammed Yoonus A.I.R. 1940 Mad. 153
8. Aulia Bibi v. Allaudin I.L.R. 28 All. 715
9. Ramji Lal v. Ahmed Ali A.I.R. 1952 M.B. 56
10. Hakim Rehman v. Mohammad Mahmood Hassan A.I.R. 1957 Pat 559
11. Hakim Rehman v. Mohammad Mahmood Hassan A.I.R. 1957 Pat 559
12. Subhan Ullah v. Mohammad Junaid 1980 All. C.J. 482
13. Salayjee v. Fatima (1923) 25 BOMLR 301

JOURNALS
S.No. TITLE OF JOURNAL
1. All India Reporter (AIR)
2. Supreme Court Cases (SCC)

WEBSITES
S.No. WEBSITE LINK

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1. https://indiankanoon.org
2. http://www.scconline.com
3. https://www.manupatra.com
4. https://indiancaselaws.org
5. https://blog.ipleaders.in
6. https://lexpeeps.in

STATUTES
1. The Code of Civil Procedure,1908

BOOKS
1. Baillie's Digest of Mahomedan Law
2. Mullas Principles Of Mahomedan Law

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 STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under SECTION 9 of The Code
of Civil Procedure.

SECTION 9 OF THE CODE OF CIVIL PROCEDURE

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits
of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.

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 QUESTIONS PRESENTED

1. Does the Sunni Muslim have the power to make a Will on deathbed?

2. Can a Sunni Muslim bequeath the property under Will on to his heirs?

3. Will made by Tahir is valid to what extend or its entirely invalid?

4. Does the widow, Fatima; the son, Hakim and daughter, Neelofar would be entitled for
share after the death of Tahir?

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 STATEMENT OF FACTS

1. Tahir a Sunni Muslim was suffering from cancer and was bedridden. He had a
wife, Fatima, a son, Hakim who was insolvent and a daughter Neelofar.
2. Tahir executed a Will on his deathbed bequeathing a property of worth 80 lacs to
his son Hakim and 20 lacs in favor of lord Shiva temple. He left behind total
property of worth 1 crore 30 lacs. Tahir died on 20 Nov. 2010.
3. Neelofar a day after her father’s death consented to the legacy made in favor of
her brother, Hakim by her deceased father.
4. Later, Neelofar contention was that her consent is not valid, as the consent of all
heirs is a prerequisite before bequeathing property to anyone by the testator,
which was not taken in this case.
5. In Jan 2011 the wife of the deceased, Fatima and the daughter challenged both
bequeaths made under the Will by Tahir. The suit was filed at Jaipur.

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 SUMMARY OF PLEADINGS
ISSUE 1
Does the Sunni Muslim have the power to make a Will on deathbed?
It is respectfully argued by the Defense, that Sunni Muslims has every right to make a Will
on Deathbed. Under Muslim law, every Muslim can make a will if he is of the sound mind
and has attained majority i.e., above the age of 18 years and in case there’s a guardian taking
care of him or his property then 21 years. A minor’s will be void but it becomes valid upon
him ratifying it after attaining majority.

ISSUE 2
Can a Sunni Muslim bequeath the property under Will on to his heirs?
It is humbly submitted before the Hon’ble Court that a Sunni Muslim can bequeath the
property under will on his heirs, not only heirs but Any person capable of holding property
(Muslim, non-Muslim, insane, minor, a child in its mother's womb, etc.) may be the legatee
under a Will. Thus, sex, age, creed or religion is no bar to the taking of a bequest.

ISSUE 3
Will made by Tahir is valid to what extend or its entirely invalid?
It is respectfully argued that the will made by Tahir is entirely valid as Tahir was fully
competent to make a will under Muslim law and also consented by every heir after the death
of Tahir.

ISSUE 4
Does the widow, Fatima; the son, Hakim and daughter, Neelofar would be entitled for
share after the death of Tahir?
It is respectfully argued by the Defense that the widow, Fatima; the son, Hakim and daughter,
Neelofar would be entitled for share after the death of Tahir. If they are not getting share and
they consented to it, in that case the will is also valid. In the present case Neelofar given her
consent to the will made by Tahir in favor of his son Hakim.

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 PLEADINGS AND AUTHORITIES
ISSUE 1
Does the Sunni Muslim have the power to make a Will on deathbed?
It is respectfully argued by the Defense, that Sunni Muslims has every right to make a Will
on Deathbed. Under Muslim law, every Muslim can make a will if he is of the sound mind
and has attained majority i.e., above the age of 18 years and in case there’s a guardian taking
care of him or his property then 21 years. A minor’s will be void but it becomes valid upon
him ratifying it after attaining majority. A will made by a lunatic is void and a will made by a
sane person becomes void if he becomes a lunatic subsequently.
In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The making of a Wasiyat
is not subject to any formalities. A Wasiyat can be made orally and no writing is required
under law1. When this is the case, the beneficiary is required to prove beyond doubt the
intention to make the Will by the testator 2, and the terms of the Will 3, and to prove the same
with utmost precision4. If the Will is a written one, the writing need not be described as a
Will but the intention should be decisive5, and it need not be formally signed by the testator 6,
and further it is not required to be attested or registered7.

ISSUE 2
Can a Sunni Muslim bequeath the property under Will on to his heirs?
Yes, a Sunni Muslim can bequeath the property under will on his heirs, not only heirs but
Any person capable of holding property (Muslim, non-Muslim, insane, minor, a child in its
mother's womb, etc.) may be the legatee under a Will. Thus, sex, age, creed or religion is no
bar to the taking of a bequest. Legatee (including a child in its mother's womb) must be in
existence at the time of making of the Will. Thus, a bequest to a person unborn person is
void.
Heirs are referred to as essential heirs and they are constantly qualified for a share of the
inheritance, they are never totally excluded. These essential heirs comprise of the life partner
relict, both parents, the daughter, and the son. However, in specific situations, different heirs

1
Khaiunnissa v. Karamatullah, A.I.R 1933 Oudh 99
Mayadad Khan v. Hazari Lal, A.I.R. 1928 Nag. 275
Kulsum Bibi V. Shiam Sunde, A.I.R. 1936 All. 600
2
Izhar Fatima v. Ansar Bibi, A.I.R. 1939 All. 348
3
Mahabir v. Mustafa, AIR 1937 P.C. 1974
4
Venkatrao v. Nandev, A.I.R. 1931 P.C. 283
5
Abdul Hameed v Mohammed Yoonus, A.I.R. 1940 Mad. 153
6
Aulia Bibi v. Allaudin, I.L.R. 28 All. 715
7
Ramji Lal v. Ahmed Ali, A.I.R. 1952 M.B. 56

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can likewise inherit as residuary, in particular the father, paternal grandfather, agnatic
daughter granddaughter, full sister, consanguine sister, and mother. The individuals who
inherit are ordinarily.
In Hakim Rehman versus Mohammad Mahmood Hassan, it was held that upon the death of a
Mohammedan, the entire estate devolves upon his heirs at the moment of his death and the
heirs succeed to the estate as tenants in common explicit shares.8

ISSUE 3
Will made by Tahir is valid to what extend or its entirely invalid?
Every Muslim, who is of sound mind and has attained the age of majority, has the capacity to
make a will. Two conditions mandatory are:
1. Sound Mind – A person prior to the process of making a will, if insane then the Will
so made id declared to be invalid.
2. Age of Majority- Unlike The Indian Contracts Act, 1872, the age of majority in
Muslim Law is 15 years of age. But after the Indian Majority Act, 1875 declared the
age of majority as 18 years.
Further, A Will in order to be valid must be made with free consent. A Will made under
compulsion or mistake is invalid.9 The provisions of the Contract Act may be applied for
determining whether the consent if free. The testator must be sane at the time of making the
Will. A Will made by an insane person would not become valid even if the testator recovers
after that.
A Will becomes effective and the title of the property bequeathed is completed only with the
Beneficiary’s acceptance, express or implied, after the death of the testator. Acceptance or
rejection during the life time has no effect. The facts at the time of the execution of the Will
may also be relevant for determining the question in regard to the consent after the death of
the testator.10 If a beneficiary accepts a bequest after the death of a testator, it is valid
notwithstanding he may have rejected it during his lifetime. If, however, the beneficiary
survives the testator and dies without assenting to the Will, the assent is presumed.
It was held in the case of Salayjee v. Fatima that the entire Will would be binding if all heirs
agree to the bequest.11
It is respectfully argued by the Defense that the will executed by the Tahir in Favor of his son
Hakim is completely valid as Tahir is fully competent to make a will and Neelofar (daughter
of Tahir) a day after her father’s death consented to the legacy made in favor of her brother,
Hakim by her deceased father.

8
Hakim Rehman versus Mohammad Mahmood Hassan, A.I.R. 1957 Pat 559
9
Baillie's Digest of Mahomedan Law.
10
Subhan Ullah v. Mohammad Junaid, 1980 All. C.J. 482
11
Salayjee v. Fatima, (1923) 25 BOMLR 301

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 ISSUE 4
Does the widow, Fatima; the son, Hakim and daughter, Neelofar would be entitled for
share after the death of Tahir?
Under Muslim law, no widow is excluded from the succession. A childless Muslim widow is
qualified for one-fourth of the property of the deceased husband, after meeting his burial
service and legitimate costs and obligations. Notwithstanding, a widow who has children or
grandchildren is qualified for one-eighth of the deceased husband’s property.
If the deceased had left behind a son(s) and daughter(s), the girls stop to be sharers and
become residuary all things being equal, with the residue being so distributed as to
guarantee that every son gets double of what every girl gets.
It is respectfully argued by the Defense that the widow, Fatima; the son, Hakim and daughter,
Neelofar would be entitled for share after the death of Tahir. If they are not getting share and
they consented to it, in that case the will is also valid. In the present case Neelofar given her
consent to the will made by Tahir in favor of his son Hakim.

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 PRAYER FOR RELIEF

Wherefore, in the light of the issue raised, arguments advanced and authorities cited, may this
Hon’ble Court be pleased to:
1. To declare that the will made by Mr. Tahir in favor of his son is entirely valid.

2. To declare that the bequeath of property of worth 80 lacs to his son Hakim and 20 lacs
in favor of lord Shiva temple by Tahir is entirely valid as Neelofar had given her
consent to the will after Death of Tahir.

AND/OR
Pass any other order it may deem fit, in the interest of equity, justice and good conscience.

All of which is most humbly and respectfully submitted.

Place : Jaipur (Rajasthan) COUNSEL FOR THE

RESPODENT
Date : 20th March 2002

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