Law:

Section:

(a) Muhammadan Law--Will-Legatee-Rules as to neces­sity of existence for benefiting of will. The Muslim Law contains two rules about the existence of the legatee in order that he may benefit from the will, one being that he must be in existence at the time of the making of the will either actually or presumably, the presumed existence meaning, birth within six months of the will, and the other that he should be in existence at the time of the death of the testator. The two rules deal with two different sets of circumstances and are completely reconcilable with each other. Under the Muslim law as in other laws a will ordinarily becomes operative from the moment of the death of the testator and it is for that reason that a will of a Muslim that the children of so and so will get such and such property, becomes operative from the death of the testator, subject to the condition that the will or any part of it is not invalid for any reason. In the present case the will was not in favour of a foetus but in that of any child of the testator's daughter that may be born to her, and the condition of birth of the legatee within six months of the bequest being inapplicable, the will was operative ire favour of the son of the testator's daughter born before the death of the testator. Abdul Cadur Haji Muhammad v. C. A. Turner I L R 9 Bom. 158 ref. Per. Rahman C. J.---Though as a matter of strict logic the two rules enunciated in the text books, for application in the two sets of circumstances mentioned, do not appear to be quite consistent with each other, there is no reason why the specific rule governing the unnamed or unspecified progeny of a particular person, should not be held applicable in this case. In the words of Holmes J., the life of the law has been experience rather than logic. The question whether the six months' period during which a legatee in the womb of his mother, should be born, in order that the will be valid, should start from the date of the will or the date of the testators' death, does not really arise in the present case, as another definite rule covers it. (b) Will---Testator governed by custom at time of making will-Testator dying after coming…

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