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TESTATE SUCCESSION

FAMILY LAW SUBMISSION


SUBMITTED BY -
SHASHANK SHEKHAR
SAP – 500054906
ROLL – R154216093
BA., LL. B. (HONS.) WITH SPECIALIZATION IN CRIMINAL LAWS (2016 - 2021)
BATCH - 2
INTRODUCTION
Succession is a derivative of the word succeed (to inherit) and refers to the order in which or the
conditions under which one person after another succeeds to a property. It implies the act of
succeeding or following, as of events, objects, places in a series, the transmission or passing of
rights from one to another. In every system of law provision has to be made for a readjustment of
things or goods on the death of the human beings who owned and enjoyed them. The rules of
succession are, in modern systems of law, subject to many rules. There can be no doubt, however,
that these rules primarily are the characteristics of the social conditions in which that individual
lived. They represent the view of society as to what ought to be the normal course of succession
in the readjustment of property after the death of a citizen.

Black’s Law Dictionary defines inheritance as “receipt of a property from an ancestor under the
laws of intestacy” i.e. “by bequest or device.”

“the law of inheritance comprises of rules which govern devolution of property, on the death of
the person, upon other persons solely on account of their relationship with the former.”1

Succession can be of 2 types – testate and intestate.

Intestate Succession is used to denote the laws relating to inheritance. The property of a person ,
on his or her death, in absence of instructions left by him or her with respect to its devolution,
devolves in accordance with the law of intestate succession to which the deceased was subject to
at the time or his or her death.

Testamentary succession on the other hand refers to devolution of property through a testament or
a Will. A Will that is capable of taking effect in law governs succession to the property of a person
after his or her death in accordance with the rules laid down in the laws governing testamentary
succession to the property of a person to which he or she was subject at the time of his or her death.
Diversity prevails in the laws of testamentary succession also, yet it is not as varied as in case of
laws of inheritance or intestate succession.

1
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277

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WILLS – MEANING AND NEED
“The instincts and affections of mankind, in the vast majority of instances, WILL lead man to make
provisions for those who are nearest to them in kindred and who in life have been the objects of
their affections.”

A Will is a document which ensures that your wishes with respect to your assets and property are
followed after your death. There often arises problems and complications when a person dies
without a Will. A will or a testament is a declaration of the intention of the person making it with
regard to the matters which he wishes to take effect upon or after his death while a codicil is a
document which alters any one or more provisions in the will or adds any provision in the will or
rectifies the mistakes, if any, in the will. It is supplemental to and considered as annexure to a will
previously made. The concept of wills emanated from the right of absolute ownership in one's
property. When a property holder died, leaving heirs and no will, it lead to unnecessary family
squabbles. Wills and codicils came to the rescue and aided in a fair distribution of property, as per
the prerogative of the executer of the will. Wills were a medium to distribute the property acquired
by the testator in his or her life through personal preferences and minimal interference of law (as
in case of Muslim Personal Law which allows only one-third of the testator's property to be
divested through wills).

S. S.2 (h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the
intention of a person with respect to his property, which he desires to take effect after his death Will
has been defined in Corpus Juris Secundum as A ‘Will’ is the legal declaration of a man’s intention,
which he wills to be performed after his death, or an instrument by which a person makes a
disposition of his property to take effect after his death.

A person can ensure as to how his property should devolve and to whom it shall devolve, after his
death, through a Will. If a person dies without leaving behind his Will, his property would devolve
by way of law of intestate succession and not testamentary succession (i.e. in accordance to the
Will) Hence, it is preferable that one should make a Will to ensure that one's actual intension is
followed and the property is devolved accordingly. Will is an important testamentary instrument
through which a testator can give away his property in accordance to his wishes.

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The right to alter the will at any point time before the execution rests with the testator. A will may
be a simple form of expression, or a complicated disposition. In either case, the beneficiary has to
prove it by attesting witnesses, removing all suspicious circumstances surrounding its execution.
The onus of proving that the will designates the beneficiary as the true heir to the property is on
him and has to be proven beyond doubt. There may be other suspicious circumstances attending
on the execution of the Will and even in such cases it is the duty of the propounder to remove all
clouds of doubts and satisfy the conscience of the court that the instrument propounded( that is-
the will) is the last Will of the testator. The essence of every Will is that it is revocable during the
lifetime of the testator.

A Will can be made at any time in the life of a person. A Will can be changed a number of times
and there are no legal restrictions as to the number of times it can be changed. It can be withdrawn
at anytime during the lifetime of the person making the Will. A Will has to be attested by two or
more witnesses, each of who should have seen the testator signing the Will.

 The essential features are:

1. Legal declaration: The documents purporting to be a Will or a testament must be legal, i.e. in
conformity with the law and must be executed by a person legally competent to make it. Further
the declaration of intention must be with respect to the testator’s property It is a legal document,
which has a binding force upon the family.

2. Disposition of property: In a Will, the testator bequeaths or leaves his property to the person
or people he chooses to leave his assets/belongings. A Hindu person by way of his Will can
bequeath all his property. However, a member of an undivided family cannot bequeath his
coparcenery interest in the family property

3. Takes effect after death: The Will is enforceable only after the death of the testator

Under section 18 of the Registration Act the registration of a Will is not compulsory. Also, the SC
in Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot
be drawn against the genuines of the Will. However it is advisable to register it as it provides
strong legal evidence about the validity of the Will. Once a Will is registered, it is placed in the
safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen.

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It is to be released only to the testator himself or, after his death, to an authorized person who
produces the Death Certificate

Since a testamentary disposition always speaks from the grave of the testator, the required standard
of proof is very high. The initial burden of proof is always on the person who propounds the Will.

 Kinds Of Wills

Conditional Wills: A Will maybe made to take effect on happening of a condition. In Rajeshwar
v. Sukhdeo the operation of the Will was postponed till after the death of the testator’s wife.
However if it is ambiguous whether the testator intended to make a Will conditional, the language
of the documents as well as the circumstances are to be taken into consideration.

Joint Wills: Two or more persons can make a joint Will. If the joint Will is joint and is intended
to take effect after the death of both, it will not be admitted to probate during the life time of either
and are revocable at any time by either during the joint lives or after the death of the survivor.

Mutual Wills: Two or more persons may agree to make mutual Wills i.e. to confer on each other
reciprocal benefits. In mutual Wills the testators confer benefit on each other but if the legatees
and testators are distinct, it is not a mutual Will. Mutual Wills are also known as reciprocal Wills
and its revocation is possible during the lifetime of either testator. But if a testator has obtained
benefit then the claim against his property will lie. Where joint Will is a single document
containing the Wills of two persons, mutual Wills are separate Wills of two persons.

Privileged Wills: Privileged Wills are a special category of Wills and other general Wills are
known as unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or a airman or a
mariner, when he is in actual service and is engaged in actual warfare, would be a privileged Will.
S.66 provides for the mode of making and rules for executing privileged Wills. Ss. 65 and 66 are
special provisions applicable to privileged Wills whereas other sections relating to Wills are
general provisions which will be supplementary to Sections 65 and 66 in case of privileged Wills.

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 Who Can Make A Will

S.59 of Indian Succession Act provides that every person who is of sound mind and is not a minor
can make a Will.

Persons Of Unsound Mind

U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of the Will. Most
of the Wills are not made by young persons who are fully fit but are made by persons who are aged
and bed ridden Hence, law does not expect that the testator should be in a perfect state of health ,
or that he should be able to give complicated instructions as to how his property was to be
distributed. A sound disposing mind implies sufficient capacity to deal with and understand the
disposition of property in his Will -

1) the testator must understand that he is giving away his property to one or more objects
2) he must understand and recollect the extent of his property 3) he must also understand the
persons and the extent of claims included as well as those who are excluded from the Will.
In Swifen v. Swifen it was held that the testator must retain a degree of understanding to
comprehend what he is doing, and have a volition or power of choice.

Minors: A minor who has not completed the age of 18 years is not capable of making Wills. The
onus of proof on determining whether the person was a minor at the time of making a Will is on
the person who has relied upon the Will. S.12 of the Indian Contract Act also provides that a minor
is incompetent to contract.

Section 59 in the explanation part states that married women can divest by will, their personal
property. This explanation is reinforced by section 14 of the Hindu Succession Act that allows a
woman to dispose her streedhan by her will. It also states that a deaf and dumb person can also
execute a will if he or she is capable of understanding what he is doing. Similarly, an insane person
can make a valid will in the interval of sanity and a will made by a sane person, not in his senses
due to intoxication, illness etc, is not valid. Mere old age or illness of the testator however cannot
make the will invalid and has to be substantially established by evidence. Here again, the onus to
prove sanity (or insanity) at time of creation of will is on the person initiating the suit challenging
the will as the presumption of sanity lies with the testator.

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Other Persons Incapable Of Making A Will: Explanation I to S.59 of ISA provides that a Hindu
married woman is capable of disposing by Will only that property which she can alienate during
her lifetime. Explanation II provides that the persons who are deaf, dumb or blind can prepare a
Will if they are able to prove that they were aware of what they were doing. Explanation III
provides for persons who are mentally ill and insane. However subsequent insanity does not make
the Will invalid i.e. if a person makes a Will while he is of sound mind and then subsequently
becomes insane the Will is valid and is not rendered invalid by subsequent insanity. Further a
person of unsound mind can make a Will during his lucid interval. A Will made by a person who
is intoxicated or is suffering from any other illness, which renders him incapable of knowing what
he is doing, is invalid.

Though the burden of proof to prove that the Will was made out of free volition is on the person
who propounds the Will , a Will that has been proved to be duly signed and attested Will be
presumed to have been made by a person of sound mind, unless proved otherwise. Further, a
bequest can be made to an infant, an idiot, a lunatic or other disqualified person as it is not
necessary that the legatee should be capable of assenting it.

 Registration: The registration of a document provides evidence that the proper parties had
appeared before the registering officers and the latter had attested the same after ascertaining their
identity. In India, the registration of Wills is not compulsory even if it relates to immoveable
property. The non-registration of a Will does not lead to any inference against the genuineness of
a Will. In other words, registration therefore does not give any special sanctity to the Will though
registration of the Will by the testator himself evidences the genuineness of the Will.

Whether registered or not, a Will must be proved as duly and validly executed, as required by the
Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the Registrar
and therefore cannot be tampered with, destroyed, mutilated or stolen.

 Procedure for Registration : A Will is to be registered with the registrar/sub-registrar


with a nominal registration fee. The testator must be personally present at the registrar’s office
along with witnesses.
 Revocation & Amendment: A Will can be revoked, changed or altered by the testator at
any time when he is competent to dispose of his property. A person can revoke, change or alter his

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Will by executing a new Will, revoking the earlier Will, registering the new Will (if the old Will
is registered), destroying the old Will or by making a codicil. On the marriage of a Parsi or a
Christian testator, his/her Will stands revoked, this however does not apply to Hindus, Sikhs, Jains
and Buddhists.

S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable or altered
anytime during the lifetime of the testator. S. 70 of ISA provides the manner in which it can be
revoked.

 Alterations
S.71 of ISA is applicable to alterations if they are made after the execution of the Will but not
before it. The said section provides that any obliteration, interlineations or any other alteration in
a Will made after its execution is inoperative unless the alteration is accompanied by the signatures
of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the
testator and by the attesting witnesses at the end of the Will or some other part referring to the
alterations. the alterations if executed as required by the section would be read as a part of the Will
itself. However, if these requirements are not fulfilled then the alterations would be considered to
be invalid and the probate will be issued omitting the alterations. The signatures of the testator and
the attesting witnesses must be with regards to the alteration and must be in proximity of the
alteration. Further they should be in the Will itself and not in a separate distinct paper. But if the
obliteration is such that the words cannot be deciphered then the Will would be considered as
destroyed to that extent.
 Wording Of The Will

S.74 of ISA provides that a Will maybe made in any form and in any language. No technical words
need to be used in making a Will but if technical words are used it is presumed that they are in
used in their legal sense unless the context indicates otherwise. Any want of technical words or
accuracy in grammar is immaterial as long as the intention is clear.

 Execution Of A Will

On the death of the testator, an executor of the Will (executor is the legal representative for all
purposes of a deceased person and all the property of a testator vests in him. Whereas a trustee
becomes a legal owner of the trust and his office and the property are blended together) or an heir

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of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if
they have any objections to the Will. If there are no objections, the court grants probate. A probate
is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the
genuineness of a Will. It is only after this that the Will comes into effect.

 Signature Of The Testator

S.63(a) of ISA provides that the testator shall sign or affix his mark. If the testator is unable to
write his signature then he may execute the Will by a mark and by doing so his hand maybe guided
by another person. In another words a thumb impression has been held as valid.

Restrictions On A Will

1. Transfer to unborn persons is invalid. - Where a bequest is made to a person by a particular


description, and there is no person in existence at the testator's death who answers that description,
the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn
person, a prior interest for life has to be created in another person and the bequest must comprise
of whole of the remaining interest of the testator

2. Transfer made to create perpetuity. - S.114 of the Indian Succession Act, 1925 provides that
no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime
of one or more persons living at the testator's death and the minority of some person who shall be
in existence at the expiration of that period, and to whom, if he attains full age, the thing
bequeathed is to belong.

3. Transfer to a class some of whom may come under above rules. - S.115 of ISA provides that
if a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons
of the fact that the person is not in existence at the testator's death or to create perpetuity, such
bequest shall be void in regard to those persons only and not in regard to the whole class.

4 Transfer to take effect on failure of prior Transfer. - S.116 of ISA provides that where by
reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person of
a class of persons is void in regard to such person or the whole of such class, any bequest contained
in the same Will and intended to take effect after or upon failure of such prior bequest is also void.

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 Invalid Wills - Wills invalid due to fraud, coercion or undue influence
S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or
coercion, basically not by free will, will be void and the Will would be set aside.
 Wills Void Due To Uncertainty - S.89 of ISA states that if the Will were uncertain as
regards either to the object or subject of the Will then it would be invalid. The Will may express
some intention but if it is vague and not definite then it will be void for the reason of uncertainty.
 Will Void Due To Impossibility Of Condition - S. 124 of ISA provides that a contingent
legacy can take effect only on happening of that contingency. A conditional Will is that Will which
is dependent on the happening of a specific condition the non-happening of which would make the
Will inoperative. S.126 of ISA provides that a bequest upon an impossible condition is void. The
condition maybe condition precedent or condition subsequent.
 Will void due to illegal or immoral condition - S.127 of ISA provides that a bequest,
which is based upon illegal or immoral condition, is void. The condition which is contrary,
forbidden, or defeats any provision of law or is opposed to public policy, then the bequest would
be invalid. A condition absolutely restraining marriage would also make the bequest void. S.138
of ISA provides that the direction provided in the Will as to the manner in which the property
bequeathed is to be enjoyed then the direction would be void though the Will would be valid.

The laws dealing with intestate and testamentary succession in India are not uniform. A variety of
different laws are in vogue and their application depends on multiple factors like the religion or
tribe of the parties , domicile, community, sect in the community, marital status of the parties,
religion of the spouse, and the type of marriage the parties might have undergone. Before the
advent of British rule, the major laws of inheritance in India had either their roots in religion or
were deeply influenced by personal laws which owed their allegiance to religion and custom.
Muslims followed Muslim law, Hindus were governed by the Shastric and customary law, Parsis
had their own customary law. With a view to simplifying and unifying the innumerable diverse
and conflicting succession laws, the Indian Succession Act was enacted in 1865.

India has a variety of laws based on considerations of religion and domicile of the testator, for
testamentary succession. The general law of the land for regulating testamentary succession to the
separate property of an Indian is the Indian Succession Act, 1925. The Act applies to the undivided
interest of a Hindu a Mitakshara coparcenary. It is applicable to:

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(i) Muslims
(ii) Indians domiciled in the State of Goa and Union Territories of Daman and Diu
(iii)Renocants of the Union Territory of Pondicherry

Muslims are governed by the Quranic law. The procedural rules of the Indian Succession Act,
1925 with some reservation, also apply to Indian Muslims

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TESTAMENTARY SUCCESSION UNDER HINDU LAW
Section 30 of the Act lays down the rule for testamentary succession. The section runs thus:

(1) Any Hindu may dispose of by will or other testamentary disposition of any property, which is
capable of being so disposed of by him in accordance with the provisions of the Indian Succession
Act, 1925, or any other law for the time being in force and applicable to Hindus.

Explanation: The interest of a male Hindu in a Mitakshara coparcenary property or the interest of
a member of a tarwad, twazi, illom, Kutumba or Kavaru shall, notwithstanding anything contained
in this Act or in any other law for the time being in force, be deemed to be property capable of
being disposed of by him or by her within the meaning of this sub-section.

(2) For the removal of doubts it is hereby declared that nothing contained in sub-section (1) shall
affect the right to maintenance of any heir specified in the schedule by reason only of the fact that
under a will or other testamentary disposition made by the deceased the heir has been deprived of
a share in the property to which he or she would have been entitled under this Act if the deceased
had died intestate.

Mention must also be made of the relevant provisions of the Indian Succession Act, 1925. This
Act consists of eleven parts. Part VI relates to testamentary succession and comprises of Sections
57 to 191. Of these only some apply to Hindu wills, being those mentioned in Schedule III to this
Act. But these, again, do not apply to all Hindu wills, but only to such wills as are specified in
section 57 of this Act. The section is as below:

The provisions of the Part (i.e. Part VI) Schedule III shall, subjects to the restrictions and
modifications specified therein apply:

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh, or Jain on or after the 1st day of
September, 1870, within the territories which-at the said date were subject to the Lieutenant-
Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the Hindu
Courts of Judicature at Madras and Bombay;

(b) to all such wills and codicils made outside those territories and limits so far as relates to
immovable property situate within those territories or limits; and

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(c) to all wills and codicils made by Hindu, Buddhist, Sikh, or Jain on or after the first day of
January, 1927, to which those provisions are not applied by clauses (a) and (b).

It is thus clear that section 30 authorizes all Hindu, male or female, separate or a member of a joint
family, to make testamentary disposition of his or her interest in a property, a male Hindu could
dispose of her separate property, even prior to this Act, but he could not, however, do so in his
interest in the coparcenary property, till he sought partition thereof from other members of the
family, so also a female Hindu could not dispose of any property other than her Stridhan
technically so called. Now both male and female Hindu can dispose of his or her interest by means
of a will.

In K. Jwala Narasimha Reddy v. Narayan Reddy2, it has been laid down that Hindu widow who
becomes under section 41 of the Act, full owner of the property she inherited with limited interest
from her husband prior to the coming into force of the Act, is entitled under section 30 of the Act
to dispose of the property by will in accordance with the provisions of the Indian Succession Act,
1925.

This right of a person to dispose of his property by a will, will not affect the rights of the heirs
mentioned in class 1 of the schedule to claim maintenance even if under the will they have been
deprived of their shares in the property, to which they would have been entitled had the will not
been executed.

In fact, this Act does not affect the Hindu Law of maintenance; and if there are other heir also
under that law besides those mentioned in class I of the schedule, they too will be entitled to claim
the same and create a charge on the estate disposed of by means of the will.

Under the Hindu law, an heir is legally bound to provide, out of the estate which has descended to
him, maintenance for those persons whom the last proprietor was legally or normally bound to
maintain. It is to remove this doubt that the Act does not affect the existing Hindu Law relating to
maintenance that sub-section (2) has been inserted.

2
A.I.R. 1979 NOC 41 (A.P.)

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TESTAMENTARY SUCCESSION UNDER MUSLIM LAW

 Wasiyat-Nama or Will-The Primary Instrument Of Muslim Testamentary Succession.

“A will from the Muslaman point of view is a divine institution, since its exercise is regulated by
the Koran. It offers to the testator the means of correcting to a certain extent the law of
succession…of recognizing the services rendered by a stranger, or the devotion to him in his last
moments…”

The Muslim testamentary succession is entirely governed by the Muslim Personal Law which
covers the powers to make the will, the nature of the will, the execution procedure, conditions of
validity etc. The term ‘wasiyat' means an endowment with the property of anything after death. To
bequeath it, in the language of law, to confer a right of property in a specific thing, or in a profit
or advantage in the manner of gratuity postponed till after death of the testator. The document
containing the ‘will' is the wasiyat-nama. A wasiyat can be made orally or in writing in which case
it does not have to be attested. Though it is in writing, it need not be signed by the testator and
attested by the witnesses.The option of revocation or modification in the will is available to the
testator in his lifetime. The essential condition for a valid will in Muslim law (as that in the Hindu
testamentary succession) is that only property with absolute ownership of the testator can be
bequeathed. A bequest which is contingent, or conditional or in the future or is alternative to
another, pre-existing one, would be void.

The qualifications for a valid will under Muslim Personal Law are almost similar to those under
the Act.

Firstly, the testator should be a major. According to Muslim beliefs, the age of majority is attained
at puberty, in absence of signs of which, it is assumed to be fifteen years. However, this is not
applicable in India and the age of majority remains as stated in the Indian Majority Act. Secondly,
the testator should be in legal capacity to create a will, bequeathing only that which is his own,
and not under any kind of fraud, coercion or influence, with volition. He should be of sound mind
while creating the will and should continue to be so subsequently. In Also in Muslim Personal law,
a person who has attempted suicide cannot thereafter make a will, and if he does, the will shall be
considered void. The Courts however, have circumvented this rule as there have been instances

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where court has regarded the will made by a Muslim who subsequently poisoned himself as valid
as he had contemplated suicide before creating the will, but not attempted it.

 Restrictions on testamentary capacity of Muslims:

Islam recognizes the indispensible necessity that a man should have the power of making bequests.
This however does not imply that he has the power to encroach upon the share of his legal heirs as
stated in the holy Quran. Quoting Ameer Ali, “the Prophet has declared that power should not be
exercised to the injury of lawful heirs”. Hence there are restrictions imposed on the testamentary
capacity of Mulsims.

Muslim testamentary capacity is regulated in two ways:

1. The One third rule: - This rule states that a Muslim cannot make bequest of more than
one-third of his net property, after the discharge of debts and funeral expenses, if there are heirs
present. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other
heirs. All schools of Muslim Law except the Ithana Ashari School lay down that bequest of more
than one third unless consented to by the heirs is invalid or a custom or usage so permits.

2. The consent of the heirs to confer in excess of one-third through will: - As mentioned
above, a Muslim has to obtain consent of all the surviving heirs to devolve property in excess of
one-third through will. This rule is in place to ensure that the heirs have voluntarily consented to
the infringement of their right in the testator's property and are not wronged in anyway. Such
consent may be through words or implied conduct, but not through silence

Another limitation on the testamentary capacity is that this power should not be used to benefit
one particular heir, unless consented by other heirs. In the absence of such approval, the will
unjustly enriching one heir over all others shall not be recognized as a valid will.

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COMPARISON BETWEEN HINDU AND MUSLIM TESTAMENTARY LAW
Hindu traditional law has some influence on the testamentary capacity of Hindus, with respect to
the fundamental rights on property as in Mitakshara and Dayabhaga system respectively, most of
the jurisprudence on Hindu testamentary succession is statutory, codified in the form of the Hindu
Succession Act, 1956 and the Indian Succession Act 1925. On the other hand, the Muslim law on
succession is entirely personal and traditional in nature, emanating from the sayings in the holy
Quran and mandates of the Sharriat.

There are certain fundamental differences between the way property can be disposed off by Hindus
and Muslims. Firstly, while the limitations on testamentary capacity of a Hindu are based on the
mode of acquisition of property: that is whether the property is ancestral or self-acquired, the
limitations in Muslim law are based on the sayings of the Quran limiting the property to be
bequeathed by a wasiyat to one-third of the property left after discharging the debts and funeral
expenses of the deceased.

Muslim law permits a will to be made with respect to only one-third of the property of the
deceased. It gives importance to the rights of legal heirs. Legal heirs should be given their due in
any case , before any stranger get the benefit of the property by will. Thus it puts the interests of
legal heirs before those of other people to whom the deceased wanted to give his property. It is a
rational law in such aspect and doesn’t emphasize on ownership and there is no element of
arbitrariness in giving ownership of property to whomsoever the owner wants to give. On the
other hand , in case of Indian Succession Act, 1925 or the Hindu law on testamentary succession ,
the concept of “absolute ownership” gives rise to arbitrariness with respect to giving the property
to whoever the owner wants and not necessarily the legal heirs. Thus the interests of legal heirs
are not secure. The owner enjoys the freedom to name who so ever in his will as the successor or
beneficiary.

The Hindu and Muslim laws of testamentary succession also differ in regards to women. While
women in Hindu law have the power to distribute through will, the property they have absolute
ownership in, in anyway and to anyone, the rights of Muslim women, there are certain exceptions
to the general rules. For instance, generally, the share of property in bequeathed in will cannot
exceed a-third unless with consent of other heirs. However, if a Muslim woman has no blood

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relations and her husband would be the only heir, then she can Will two-thirds of her property in
his favor. Another stark difference between the two laws is that Muslim women can at no point of
time get more than that inherited by the males in the family, if the bequeathed share exceeds a-
third of the property as well as in intestate succession, where women get the exact half of their
male counterparts.

Also, until recently, Hindus were restricted in giving away their property through will for charity
by application of section 118 of the Indian Succession Act. The section plainly meant that to the
extent to which the bequest is for religious or charitable uses, the application of this section is
attracted despite the fact that the bequest may be for only a part of the property or some interest in
the property. This section was declared unreasonable, arbitrary and discriminatory and, therefore,
violative of Article 14 of the Constitution.

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CONCLUSION
The Indian Succession Act, 1925 consolidated the laws of intestate (with certain exceptions) and
testamentary succession, applying to all the Wills and codicils of Hindus, Buddhists, Sikhs and
Jains throughout India. Muslim testamentary succession however was excluded from the ambit of
application of this act and remains largely governed by the Muslim Personal Laws. Since
testamentary succession is a civil act, introducing some uniformity in the laws followed by
Muslims and Hindus will not attack the essence of the two religions. Therefore, there should be
no limitations imposed on the extent to which the property can be bequeathed, the persons to whom
such property can be bequeath and the donation of the property by will for religious and charitable
purpose and this can only be done through a Uniform Civil Code for succession, as envisaged in
Article 44 of the Constitution.

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