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In the Madras High Court, a bench constituting Justice R. Subbiah and Justice Velmurugan held that the child born of an unmarried Muslim couple is an illegitimate child and will not be considered as a legal heir as per Muslim Law. The child will be considered as the child of his/her mother and will inherit from her only.
In the matter, a will was executed by the father entrusting all his property to the second wife and his three sons. One of the son was born while the couple were unmarried and the dispute was whether he is entitled for the property or not.
The bench came to the conclusion that a Muslim can execute a will to his legal heirs with respect to 1/3 property only. The bench also came to the conclusion that the petitioner i.e. Shahul Hameed has a right to 1/3 share in the property as a non- heir and the consent of the legal heirs is not necessary in it and also that in order to enforce the will in favour of the heirs, consent of all the heirs is necessary. In this case it has not been provided by all the heirs so the will is not enforceable. The property was distributed among the heirs according to the provisions of the Muslim Law.
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