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

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

the laws of testamentary succession also, yet it is not as varied as in case of laws of inheritance or
intestate succession.

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 a 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/sub-registrar 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

A
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 nonhappening 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 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

(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 subsection (2) has been inserted.

TESTAMENTARY SUCCESSION UNDER MUSLIM LAW

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

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 manner
of gratuity postponed till after death of the testator. The document containing the will' is the wasiyatnama. 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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