Bench of Madras HC comprising justices R. Subbiah and P. Velmurugan held that the as per the Mohammedan law a child born prior to the marriage of the muslim couple is an illegitimate child and thus cannot be considered as a legal heir.
The Court observed that as per the provisions of the Muslim law that an illegitimate child born before the marriage is a child of his mother only and thus has inheritance rights in the property of the mother only. The dispute arose when the father transferred his property through will to his second wife and three sons and one of the three sons was born before the wedding.
It was further observed by the court that in accordance to the Muslim law a person can only transfer 1/3 part of his share through Will. The legal point in this case is that for execution of will in favor of second wife and her sons, the consent of other legal heirs is also required. Since in the instant case the consent by the other legal heirs has not given their consent so the will is not valid and cannot be enforced legally. However, as per the provisions of the muslim law for executing will in favor of non-heirs the consent of legal heirs is not required and thus in this case 1/3 share in property can be transferred via will to the son born before the marriage as he is not the legal heir of his father as per the Muslim law.
The court held that Shahul Hameed (son born before marriage) is an illegitimate son therefore, he is not the legal heir of his father . Thus, the Shahul Hameed is entitled to his share in the property as mentioned in the will. The court further held that all the legal heirs are entitled to receive property as per the shares they are entitled to in accordance with the muslim law.
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