Mala fide Wills ‘Remain Inoperative’ Without Express Consent of All Heirs — Silence Is Not Consent: : Allahabad High Court

“A Muslim Cannot Bequeath Property to His Own Heirs Without Their Consent”, Allahabad High Court dismissed a first appeal under Section 96 CPC, affirming the trial court’s refusal to cancel a sale deed and grant injunction.

Justice Sandeep Jain held that Wills executed by Sunni Muslims in favour of their own heirs are legally ineffective unless expressly consented to by all other heirs after the testator’s death. The Court further found that the alleged Wills were surrounded by serious suspicious circumstances and failed to confer any right, title, or interest upon the plaintiffs.

The dispute arose from a suit seeking cancellation of a sale deed dated 24.10.2016 and permanent injunction over a commercial property allegedly owned by the plaintiffs based on two Wills executed by Mohd. Anas (2015) and Mohd. Iliyas (2016).

The plaintiffs, being sons and legal heirs, claimed ownership through these Wills. However, the defendants—also legal heirs—denied the execution of the Wills and termed them “forged and fabricated”, asserting that they had validly sold the property as co-heirs.

The trial court dismissed the suit, holding that the Wills were invalid under Hanafi Muslim law, not duly proved, and surrounded by suspicious circumstances. The present appeal challenged that finding.

The High Court addressed core questions relating to: validity of Wills under Muslim law, proof of Wills, non-joinder of parties, and maintainability of reliefs.

The Court laid down a clear legal position:

“A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator… neither inaction nor silence can be treated as consent.”

It further clarified a commonly misunderstood principle: “The rule of one-third applies to strangers, not to heirs — a bequest to an heir without consent is altogether invalid.”

The Court emphasized that testamentary power under Muslim law is restricted not only in extent but also in favour of persons, thereby protecting the natural scheme of inheritance.

On the validity of the Wills, the Court held that since the plaintiffs themselves were legal heirs, any bequest in their favour required express consent of all other heirs, which was completely absent.

The Court categorically held: “Without the express consent of all the legal heirs… the Wills remain inoperative and confer no right, title or interest.”

Additionally, the suit suffered from a fundamental defect—non-joinder of necessary parties. The plaintiffs failed to implead several heirs of the deceased, whose consent was indispensable:

“Consent of heirs must be express… it cannot be assumed or implied from silence.”

On proof of the Wills, the Court found multiple suspicious circumstances that were never explained. One glaring inconsistency noted was:

“The Will of Mohd. Iliyas mentions Mohd. Anas as alive, though he had already died… such an error could not occur if the Will was genuine.”

The Court also noted that:

“The propounder of the Will did not even enter the witness box to dispel the suspicion.”

Further, contradictions regarding the place of execution, inclusion of properties not exclusively owned, and unreliable testimony of attesting witnesses led the Court to conclude that:

“The suspicious circumstances do not inspire confidence… the Wills were rightly disbelieved.”

On the challenge to the sale deed, the Court held that the defendants, being legal heirs, had inherited shares in the property, and thus:

“The sale deed cannot be declared void ab initio merely on the basis of inoperative Wills.”

On the claim for injunction, the Court relied on settled law to hold:

“A true owner cannot be restrained by injunction… when equally efficacious remedy of partition is available.”

Since the plaintiffs failed to seek partition, the suit was also barred under Section 41(h) of the Specific Relief Act.

The Allahabad High Court dismissed the appeal at the admission stage, reaffirming that Muslim testamentary law strictly restricts bequests in favour of heirs without their consent, and that courts will not uphold Wills clouded by suspicion and legal infirmities.

The ruling underscores that title disputes must be properly framed with necessary parties and appropriate reliefs such as partition, failing which civil claims are bound to fail.

Date of Decision: 18.03.2026