MULLA's Principles of Mahomedan Law
Article 117- Where a Mahomedan bequeaths less than one-third of his property to a person, such bequest is valid under Mahomedan law Mahomedan Law is concerned, a testator may lawfully transfer % of his property to any person (third party), other than his heirs. Any transfer in excess of would not be valid unless the heirs consented after the death of the testator. "A bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator." It would appear, therefore, that the consistent view is that transfer of any quantum of property to an heir requires the consent of the other heirs after the death of the testator. In the case before us the bequest being in favour of heirs of the testator can only be valid if the other heirs consent. In the facts of the instant case there does not appear to be consent by other heirs and, therefore, the deed in question cannot be a valid deed of transfer. Noorjahan Begum =VS= Aminul Huq, [5 LM (AD) 20]
Mohamedan Law of Bequest- Bequest by a Mohamedan to his heir of any quantum of property requires the consent of his other heirs after his death to be valid. But a bequest by a Mohamedan to any stranger (other than his heir) upto one-third of the surplus of his property which remains after payment of his funeral expenses and debts is valid and does not require consent of the heirs of the testator. Bequest to a stranger over and above one-third of the property of the testator which remains after payment of funeral expenses and debts of the testator requires the consent of the heirs of the testator after his death to be valid. Rabeya Khatoon(Most.) =VS= Jahanara alias Shefali Bewa, (4 LM (AD) 298)
Valid marriage Where there has been prolonged and continuous cohabitation as husband and wife, in the absence of direct proof a presumption arises that there was a valid marriage The Family Court on assessment of the evidence of Shadrul Islam (P.W.2), Madu Mia (P.W.3), Swapan (P.W.4) and Babul Mia (P.W.5) came to the definite finding that the respondent married the appellant and that they lived as husband and wife, and decreed the suit. The Court of appeal below affirmed the judgment. A single Bench of the High Court Division in exercise of revisional jurisdiction reversed the judgments of the courts below and dismissed the suit.
Once the marriage is consummated and the parties have cohabited, the contractual defect is removed; and the marriage is declared to. be legitimate.
There are unanimous views of the jurists and authorities that even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of conduct and reputation, and the question of consummation forms often an important element in the status of valid marriage.
Where there has been prolonged and continuous cohabitation as husband and wife, in the absence of direct proof a presumption arises that there was a valid marriage. The law permits no specific ceremony for the contractual performance of a marriage: and no religions rites are necessary for contracting a valid marriage. There are even opinions that a marriage may be constituted without any ceremonial and even in the absence of direct proof. indirect proof might suffice.
Therefore, the decision of the High Cour Division is based on a misconception of the basic principles of Mohammedan Law and thus the interference of the judgments of the Courts below is an error of law apparent on the face of the record. The evidence on record sufficiently proved that there was existence of legal marriage between the appellant and respondent. The appeal is, allowed with costs of Tk. 10,000/-, Momiar Begum (Mst) VS Anowar Hossain, 19 LM (AD) 153)
Section 347- Adopted son- It is a settled principle of Mohammadan Law that Mohammadan Law does not recognize adoption (see-Section 347 of Mulla Principles of Mahomedan Law, 20th Edition page 430). Dagadabai VS Abbas. (3 LM (SC) 14]
Paragraph 220- Appointed sajjadanashin Dewan Qutab-ud-Din had never appointed the appellant as sajjadanashin and it is also conceded by him that per the custom and also a history of over seven hundred years of the shrine, the nomination of the successor is always the absolute discretion of sajjadanashin holding the post. In the absence of any written evidence of the same and the fact that the respondent has successfully been able to prove his case through witness statements and documentary evidence produced, the express nomination by the late sajjadanashin Dewan Qutab-ud-Din is the only conclusive factor of determining the entitlement of sajjadanashinship of the shrine of Baba Farid (RA). We have considered the judgment of the learned High Court which is quite elaborate, each and every aspect of the matter has been taken into consideration and on the basis of proper reading and appreciation of the evidence: factual finding has been given by the learned High Court affirming the finding already given by the learned Appellate Court. Al-Haj Deewan Bakhtiyar Syed Muhammad VS Deewan Maudood Masood, [4 LM (SC) 123]
Children born out of Irregular Marriage legitimate in Muslim Law- A marriage between a Hindu woman and Muslim man is merely irregular that the plaintiff is the legitimate son of Mohammed Ilias and Valliamma, and is entitled to his share- The marriage of a Muslim man with an idolater or fireworshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage. Any child born out of such wedlock (fasid marriage) is entitled to claim a share in his father's property. It would not be out of place to emphasise at this juncture that since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage. Plaintiff is the legitimate son of Mohammed Ilias and Valliamma, and is entitled to his share in the property as per law. The High Court was also justified in modifying the decree passed by the trial Court and awarding the appropriate share in favour of the plaintiff. No issue has been raised before us relating to the quantum of share. ...Mohammed Salim -VS- Shamsudeen, [6 LM (SC) 61]
