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.
Blacks 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

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 mans 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.

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 testators 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. 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 testators 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.

Who

Can

Make

Will

S.59 of Indian Succession Act provides that every person who is of sound mind and
is

not

minor

can

make

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.

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/subregistrar with a nominal registration fee. The testator must be personally present at
the registrars 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 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

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 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
1.

On

Transfer

to

unborn

Will

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

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.
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:
(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.

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 subsection (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
(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 Reddy 2, 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.

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

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 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.

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 doesnt 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 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.

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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