Course-XII – Family Law-II

Unit-I Mitakshara Hindu joint Family: Composition, Structure and 01-09

Characteristics, Joint Family Property Classification-
Unobstructed heritage, Obstructed heritage, Ancestral Property,
Separate Property, Joint Acquisitions and Accretions, Points of
Distinction between the Mitakshara Hindu Joint Family and
Dayabhaga Hindu Joint Family.

Unit-II Hindu Law of Partition: Who can make, Subject matter of 10-21
partition, Persons who have a right to partitions and Persons
who are entitled to a share on partition, How partition is
effected? Rules relating to distribution of property and modes of
partition, Reopening of Partition and Re-union. Position, status,
Liability and Powers of the Karta in the Hindu Joint Family.

Unit-III Hindu succession Act 1956 – Definitions, Succession to the 22-33

Property of a Male Hindu- Legal heirs and their Classification,
Succession to the property of a Mitakshara Hindu; Women’s
Property, Succession to the property of a Hindu Female;
General Provisions Relating to succession, Disqualifications of
heirs, Testamentary Succession.

Unit-IV Muslim Law of Gift: Who can make a Vlid Gift? Essential 34-48
requirements of a valid Gift; Subject mater of Gift, Gift of
Musha-Exceptions thereof, Revocation of Gifts under Shia and
Sunni Law.

Unit-V General Principles of Inheritance of Muslim Law Excluding able 49-61

of Heirs.

Wills; Who can make a will? Subject matter of a will;

Restrictions on the powers of a Muslim to make a will;
Abatement of Legacy; Creation of Life Estates and its validity;
Revocation of Wills.
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Unit-I
Mitakshara Hindu joint Family
Mitakshara Hindu joint family is a concept in Hindu law that refers to a system
of family governance and inheritance that is based on the principle of
coparcenary. Under this system, all members of a joint family, including both
male and female members, have an equal share in the property and assets of
the family.
The Mitakshara system is governed by a set of rules and principles that have
been developed over centuries and are based on the traditional Hindu concept
of family and inheritance. According to these principles, the joint family is
considered to be an independent legal entity, and all members of the family
have equal rights and obligations towards the family property.
Under the Mitakshara system, the property is inherited by the male members
of the family through the principle of survivorship, which means that upon the
death of a coparcener, his share in the property passes on to the other
surviving coparceners. Female members, on the other hand, have limited rights
to the property and are entitled to maintenance and support from the family.
The Mitakshara system has been subject to several legal challenges and
reforms over the years. The Hindu Succession Act, 1956, introduced several
significant changes to the traditional Hindu law of inheritance and property,
including the equal distribution of property between male and female
members of the family.
However, the Mitakshara system still has relevance in contemporary Hindu
society, and many families continue to adhere to its principles and practices.
The composition of a Mitakshara Hindu joint family typically includes the
following members:
1. Karta: The head of the family, who is usually the eldest male member, is
called the Karta. He has the authority to manage the family affairs and
make decisions on behalf of the family.
2. Male members: In a Mitakshara Hindu joint family, male members are
considered the primary heirs and have a right to the family property.
They are responsible for managing the family business and providing for
the family's financial needs.
3. Female members: Female members of the family, including wives,
daughters, and daughters-in-law, are also considered part of the family.
They have a right to be supported by the family and are expected to
contribute to the family's well-being.
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4. Dependents: The family may also include dependent members, such as

elderly parents, unmarried siblings, and orphaned children. It is the
family's responsibility to take care of their needs and provide for them.
5. Adopted members: Adopted children and their descendants are
considered part of the family and have the same rights as biological
members.
In summary, the Mitakshara Hindu joint family is a multi-generational family
unit that includes male and female members, dependents, and adopted
members. The family is headed by the Karta, who has the authority to manage
the family affairs and make decisions on behalf of the family. All members of
the family share a common bond and have a duty to contribute to the well-
being of the family.
Structure
The structure of a Mitakshara Hindu joint family is based on the principle of
coparcenary, which means that all male members of the family who are related
by blood through the male line are considered equal co-owners of the family
property. The female members of the family, including the wives of the male
members, do not have any right to the property, but are entitled to
maintenance and support from the family.
The head of the family is usually the eldest male member, who is responsible
for managing the family affairs and the family property. The eldest male
member is also referred to as the Karta or the manager of the family. In the
absence of the eldest male member, the next eldest male member assumes the
position of the Karta.
The Karta has the power to make decisions related to the family property and
to enter into contracts on behalf of the family. He is also responsible for
ensuring that all family members are provided with the necessary support and
maintenance.
Under the Mitakshara system, the property of the family is held jointly by all
the male members of the family. The property is inherited by the male
members through the principle of survivorship, which means that upon the
death of a coparcener, his share in the property passes on to the other
surviving coparceners.
The female members of the family, on the other hand, have limited rights to the
property. They are entitled to maintenance and support from the family, but do
not have any right to the property itself.
The structure of a Mitakshara Hindu joint family is based on the concept of
intergenerational wealth transfer and the preservation of family wealth. The
system has been subject to several legal reforms, but it still holds significance
in contemporary Hindu society and is practiced by many families.
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Characteristics
Here are some key characteristics of Mitakshara Hindu joint family:
1. Joint ownership: In a Mitakshara Hindu joint family, all the members of
the family own and manage the family property collectively. The
property is inherited by the male members of the family, and it is their
duty to manage it for the benefit of the entire family.
2. Common ancestry: All the members of the Mitakshara Hindu joint family
are related to each other by blood, marriage or adoption. They share a
common ancestry and are bound together by strong familial ties.
3. Authority of the eldest male: The eldest male member of the family is
considered the head of the family and has the final say in all matters
related to the family. He is responsible for the well-being of all the
members and is expected to make decisions that benefit the family as a
whole.
4. Co-residence: In a Mitakshara Hindu joint family, all the members live
together under one roof. This fosters a sense of unity and cooperation
among the members and ensures that everyone is taken care of.
5. Joint family business: Mitakshara Hindu joint families often engage in
joint family businesses, where all the members contribute to the
business and share the profits equally. This helps to strengthen the
family bond and provides financial security to all the members.
6. Obligation towards the family: All the members of the Mitakshara Hindu
joint family have a duty towards the family. They are expected to
contribute to the family income, take care of the elderly and the young,
and maintain the family traditions and customs.
Overall, the Mitakshara Hindu joint family is a close-knit and cohesive unit,
where the welfare of the family is considered paramount. The family members
work together towards common goals and share the joys and sorrows of life as
one big family.
JOINT FAMILY PROPERTY
“Property is intended to serve life, and no matter how much we surround it with
rights and respect, it has no personal being. It is part of the earth man walks on.
It is not a man.” -Martin Luther King, Jr.
The word ‘property’ is derived from the Latin word ‘proprietary’ and the
French comparable ‘proprius’ which implies a thing owned. The concept of
property and ownership is closely associated with one another. There is often
no property without possession and no possession without property. The
concept of property possesses a significant place in human life since it’s
impossible to measure the extent of ownership without property.
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The property includes an exceptionally more extensive meaning in its real

sense. It not only includes the money and only the other tangible things but it
also includes intangible rights which are considered as a source of income or
wealth. The interest which a person has in lands and chattels to the exclusion
of others and it is proper to enjoy and to lose certain things most supremely as
he pleases, provided he makes no utilization of them precluded by law.
The sea and the air, cannot be appropriated; one may appreciate them, but no
one has an exclusive right over it. When things are fully our own, or when all
others are prohibited from intruding with them, or from interfering around
them, no individual other than the proprietor, who has this exclusive right, can
have any claim either to use them, or to prevent him from disposing of them as
he satisfies.
And the reason behind is that the property, considered as an exclusive right to
things, contains not as it were a right to utilize those things, but a right to a
range of them, either by exchanging them for other things or by giving them
away to any other individual, without any consideration, or even throwing
them away.
Classification of Property
Classification of Property means Property is divided into different forms which
are known by different names and all the different properties have their own
characteristics, features, and way of conducting its property. According
to Article 220 of Hindu Law, Property is classified into two types: (1) Joint
Hindu Family Property (2) Separate Property. Joint-family Property is also
known as ‘Coparcenary Property and this property consists of (a) Ancestral
Property (b) Property jointly acquired by the members of the Joint family. (c)
Separate property of a member “thrown into the common stock.” (d) Property
acquired by all or any of the coparcener with the aid of joint family funds.
There is a lot of division and classification in Property. Before the enactment
of Hindu law, there were two principal schools
i.e. Mitakshara and Dayabhaga. Mitakshara School divides the property into
two categories and the first one is Unobstructed Property and the second one
is Obstructed Property. Further, after the enactment of Hindu law and the
decline of both principal school, the Property is divided into two parts i.e. Joint
Family Property and Separate Property under Hindu law.
Obstructed property
The property to which right accrues not by birth but on the passing of the final
owner is called obstructed property. It is called obstructed since the accrual of
the right to it is obstructed by the existence of the final owner. Hence the
property devolving on parents, brothers, nephews, uncles, etc. upon the
passing of the last owner, is obstructed property. These relatives are not
vested intrigued by birth. Their right to it arises only on the passing of the last
owner.
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In this way, any property acquired by a male Hindu from relations other than
father, father’s father and father’s father’s father would be called obstructed
heritage. The owner of this property holds the property as Separate and
absolute one and there is no chance of combining property.
Obstructed property rights gained by the owner after the succession of the
final owner but there are some exceptional cases where the ownership passes
by survivorship. The exception cases were mentioned below:
 Two or more than two sons, grandsons, and great-grandsons succeeding
as heirs to the separate property of their paternal ancestor take as joint
tenants with survivorship.
 Two or more grandsons of a daughter who is a member of a joint family
succeed as heirs to their maternal grandfather as joint tenants with the
right of survivorship.
 Two or more widows succeeding as heirs of their husband take as joint
tenants with survivorship rights.
 Two or more daughters succeeding as heirs of their father take as joint
tenants.
These are the only 4 conditions or exceptional circumstances in which
ownership of the obstructed property transfers to another before the
succession of the previous owner.
Illustration - An acquired the certain property from his brother who passed
on issueless. The acquired property within the hands of A will be a
discouraging legacy for the children of A. The children of A will acquire the
property from A as it were after his passing.
Unobstructed property
The property in which an individual secures and is intrigued by birth is called
unobstructed property. It is called unobstructed since the accrual of the right
to it isn’t obstructed by the presence of the owner. Hence property inherited by
a Hindu from his father, grandfather, and great grandfather is unobstructed
heritage as regards his claim male issues, that is, his sons, son’s and son’s child.
These rights arise on account of their birth in the family and the male
descendants in whom the property vests, are called coparceners. Thus, the
hereditary property in the hands of the final male owner is unobstructed.
Illustration - ‘A’ acquired certain property from his father. Two children born
to A, M and N are coparceners with A. M and N will procure an interest by birth
within the hereditary property of A. Thus the property within the hands of A is
unhindered legacy, as the presence of the father is no obstacle or obstacle to
his children procuring an intrigued by birth within the property.
It is seen that the distinction between obstructed and unobstructed property is
recognized by the Mitakshara School and according to Dayabhaga School all
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the properties should be considered as Obstructed property because no one

can inherit the property just after the birth or no one can have interest in
another’s property by birth. This difference of thought of both the school
demarcates Obstructed and Unobstructed Property.
Ancestral property
Ancestral Property is also known as Self-acquired Property after the partition
in a Joint Hindu family. As the name suggests Ancestral Property this property
is automatically inherited to next-generation people. This Ancestral property
was inherited till 3 generations or it is also considered as a part of Coparcenary
property as it also includes property descended from father, great grandfather.
Self-acquired property and the ancestral property is part of Separate property
as above discussed.
Separate Property is the second category of property under Hindu law in
which the property is inherited by the other members of non-blood relations.
In the case, Gurdip Kaur vs. Ghamand Singh Dewa Singh, 1965, the dictionary
meaning of Ancestral Property is “Property which has been inherited from the
ancestors” was accepted by the Court. It was also held that a property
inherited from a father, father’s father or great grandfather is ancestral
property.
A question arises that ‘who can acquire ancestral property?’ This was
answered in the case of Arshnoor Singh vs. Harpal Kaur, 2019, it was held by the
Hon’ble Supreme Court that “Under Mitakshara law, whenever a male ancestor
inherits any property from any of his paternal ancestors up to three degrees
above him, then his male legal heirs up to three degrees below him, would get
an equal right as coparceners in that property.”
After the amendment and enforcement of the Hindu Succession Act in 2005,
women were also allowed to enjoy the Self-acquired property or Ancestral
property with equal rights but this right on the ancestral property was not
earlier provided to the Women. Now, women and men have equal rights over
their ancestral property. There are some incidents of Ancestral property which
are mentioned below:
 The Ancestral Property should be for 4 generations old or we can say that
ancestral property should be continued for four generations and should
be inherited from generation to generation.
 The Ancestral Property should not be divided by the members and when
the division takes place, the property becomes the self-acquired
property.
 In the Ancestral Property, the person has the right or interest in the
property right from birth.
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 The ancestral property rights are controlled by per strip and not through
per capita.
 The Shares in the ancestral property is first determined for each
generation and then subdivided for the successive generation.
Separate Property
 Separate property refers to assets and property that are owned by an
individual spouse and are not considered community property. In other
words, separate property is property that is not subject to division in the
event of a divorce or legal separation.
 Separate property can include assets that were acquired by one spouse
prior to the marriage, gifts and inheritances received by one spouse
during the marriage, and any property that is specifically designated as
separate property through a prenuptial or postnuptial agreement.
 In some states, any increase in the value of separate property during the
marriage may also be considered separate property, while in other
states, it may be subject to division as community property.
 It's important to note that the laws regarding separate property can vary
from state to state and can be complex, so it's a good idea to consult with
a qualified attorney if you have questions or concerns about your
separate property rights.
Joint family property
Joint family or coparcenary property is that property in which every
coparcener has a joint interest or right and over that property, the coparcener
has a joint possession. Or we can also say that the joint family property is the
property which is jointly acquired by the member of the family with the aid of
ancestral property.
Joint family Property defines as if any member of joint family property
acquired in his own name in the presence of an ancestral nucleus. In V.D.
Dhanwatey v. CIT, 1968, it was held that “The general doctrine of Hindu law is
that property acquired by a Karta or a coparcener with the aid or assistance of
joint family assets is impressed with the character of joint family property. To
put it differently, it is an essential feature of a self-acquired property that it
should have been acquired without assistance or aid of the joint family
property. It is therefore clear that before an acquisition can be claimed to be
separate property, it must be shown that it was made without any aid or
assistance from the ancestral or joint family property.”
Many times it is believed that property possessed by members of a joint family
is a Joint family property. In the case of Srinivas Krishna Rao Kango vs. Narayan
Devji Kango, 1954, it was held that “The Hindu law upon this aspect of the case
is well settled. Proof of the existence of a joint family does not lead to the
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presumption that any property held by any member of the family is joint, and
the burden rests upon anyone asserting that any item of property was joint to
establish the fact.
Some considered Coparcenary property and Joint family property as two
different things but actually both are same under Hindu law.
The basic difference which is considered and said that both are different is that
in joint family property, both males and females are considered as members
whereas, In coparcenary, only male members are considered as a
member. Female members have no right or interest in the property by birth in
a Joint family but In Coparcenary, all members have equal right or interest in
the property by birth.
These little differences make people think that both Joint family property and
coparcenary are two different concepts otherwise it is considered as the same
under Hindu law.
Conclusion - Property related matters are a serious concern or problem that is
faced by the Indians. A lot of rules and amendments were made in order to
lessen the number of disputes related to property matters and the government
has also established many regulatory bodies which regulate the problem of
property and classification of property under Hindu law and Hindu succession
act.
Land dispute or property dispute is not something new dispute or conflict
which arises in this generation. It has been prevalent since the very early
period but there were no provisions of law that can regulate the conflict of
property.
Another conclusion which can be derived from this whole article is that with
the passage of time the status of female members or we can say that the rights
of female members are secured in the different forms of property which were
totally absent or neglected in the early period when there is no Indian
succession Act, Hindu law and many others.
DISTINCTION BETWEEN THE MITAKSHARA & DAYABHAGA HINDU JOINT
FAMILY
The Mitakshara and Dayabhaga schools are two distinct schools of Hindu law
that govern the principles of inheritance and succession in Hindu joint families
in India. While both schools recognize the concept of a Hindu joint family, there
are several points of distinction between them. Here are some of the key
differences between the Mitakshara and Dayabhaga schools:
1. Coparcenary: Under the Mitakshara school, all male members of a joint
family, including sons, grandsons, and great-grandsons, acquire an equal
share in the ancestral property at birth. This is known as coparcenary. In
contrast, the Dayabhaga school does not recognize coparcenary, and the
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property is owned jointly by all members of the family, regardless of

their gender or age.
2. Succession: The Mitakshara school follows the principle of survivorship,
which means that when a coparcener dies, his share in the ancestral
property is automatically passed on to the surviving coparceners. In the
Dayabhaga school, the property is divided equally among all members of
the family, including daughters, in the event of a coparcener's death.
3. Partition: The Mitakshara school recognizes two types of partition -
partial and complete. Partial partition involves the division of a specific
portion of the ancestral property among the coparceners, while complete
partition involves the division of the entire ancestral property. In the
Dayabhaga school, only complete partition is recognized.
4. Women's rights: The Mitakshara school does not grant women equal
rights in ancestral property. Women only have limited rights in the
property, and their share is determined by the male members of the
family. In contrast, the Dayabhaga school grants women equal rights in
ancestral property and allows them to inherit the property on the same
basis as male members of the family.
5. Adoption: The Mitakshara school recognizes adoption as a means of
continuing the family line and inheriting ancestral property. However,
the Dayabhaga school does not recognize adoption as a means of
inheriting ancestral property.
In summary, the Mitakshara and Dayabhaga schools have different approaches
to the concept of joint family, coparcenary, succession, partition, women's
rights, and adoption.
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Unit –II
PARTITION UNDER HINDU LAW
Introduction
Partition is an act by which a coparcener severs his relations with joint family
and loses his status of coparcener. The essence of coparcenary is unity of
ownership. No undivided member in the coparcenary property has any
specific share in the property so long as the family is joint. An important
consequence of such partition is that the share of coparcener or coparceners
seeking partition which is till partition uncertain, fluctuating and
unpredictable, becomes specific and definite, as a result of partition, and thus
allotted to the respective members.
Meaning of Partition
According to Webster’s Law Dictionary, the word “partition” means “a
separation by a court of real estate owned jointly into two or more separately
owned parcels, so that each of the former joint owners may enjoy having his
or her own share in the estate”.
According to the Mitakshara Law, it is the adjustment of the diverse interests
regarding the whole, by distributing them into particular portions of the
aggregate. Therefore, Mitakshara partition is used into two distinct senses:
firstly, the adjustment into specific shares the diverse rights of the different
members according to the whole family property; secondly; the severance of
the joint status, with the legal consequences resulting therefrom. It has been
defined as the crystallization of the fluctuating interest of a coparcenary into
a specific share in the joint family estate.
Lord Westbury in Approvier v. Ram Subba Aiyer, held that “no individual
member of the family, while it remains undivided can predicate of the joint
and undivided property that he, that particular member has a certain definite
share.
According to Dayabhaga, the partition consists in splitting up joint
possession, i.e., separating the shares of the coparceners or in others words
dividing the property by metes and bounds among several co-sharers.
Subject matter of partition:
It should be understood that Coparcenary property is liable to partition.
Separate property is not liable to partition at all. It belongs absolutely to the
owner there of. In Poonam Mishra vs Rajkumari Mishra, the High court has
held that property acquired subsequently even do with joint funds to be
regarded as self acquired property and it has to be excluded from partition.
Property incapable of division and rule of partition of such property
Properties to which the rule of primogeniture applies cannot be divided, e.g.,
a raj. Nor can family idols and places of worship be divided. Certain kinds of
properties are by their nature indivisible e.g., animals, furniture, etc. Their
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value may be determined and distributed among the shares of some of those
properties may be enjoyed by coparceners jointly or by turns. Under this
category properties like wells, idols and temples are included.
According to Manu, “a dress, a vehicle, ornaments, cooked food, water and
female slaves, property destined for pious use and sacrifices and a pasture
land are indivisible.
Thus, there are several kind of kinds of properties indivisible by nature in
respect of which an agreement has to be reached so that they remain in the
common use of all coparceners. For example, staircase, courtyards, tanks,
roads, right-of-way and the like are incapable of valuation or division.
Provisions to be made before a partition takes place
From the property liable to partition provisions must first be made for:-
1. debts incurred for joint family which are payable out of joint family
property.
2. maintenance of dependent female members and disqualified heirs.
3. marriage expenses of unmarried daughters of the last male holder but
not of the collaterals.
The amount of expenses must be commensurate with the wealth of the family
there is no need for making provision for the marriage of unmarried
coparceners.
In Sankaranarayanan v. Official Receiver, Tirunelveli the Madras High Court
has held that where the marriage of a daughter is performed after filing the
petition should but before the finalization of the said suit the amount
expended for the marriage of daughter is recoverable from the joint family
property.
4. Expenses for funeral ceremony of the video and the mother of the last
male holder.
After the above provisions as we have been made an account must be taken
at the joint family property in the hands of the manager and other members
of the joint family it would also be noted that no charge will be made against a
coparcener, because a large share of the family income was spent on his
family in consequence of his having a large family to support.
Persons having Right to partition/ Entitled to a share on Partition
Every coparcener has right to partition and entitled to a share on partition:
1. Father: In exercise of this power the concept of son is immaterial.
However, father must act bona fide. If division made by him is unequal or
fraudulent or vitiated by favoritism, partition can be reopene. the father can’t
exercise this power by ‘will’ except the son's consent.
2. Son grandson and great grandson: They have a right to partition. But,
in Bombay school the son has no right to partition without the assent of
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father if father is joint with his own father, brothers and other collaterals.
Under Punjab customary law also sons have no right to partition against their
father.
3. After born sons and after born daughters of a coparcener -
After born sons we considered into two sets. Firstly, those born as well as
begotten after the partition, and secondly, those born after partition but
begotten before it or those in their mother’s womb at the time of partition. A
son in his mother's womb at the time of partition is treated, in point of law in
existence and is entitled to reopen the partition to receive share equal to that
of his brothers. In the case of a son born as well as begotten after the partition
his father has taken a share for himself and separated from the other sons,
then the after born son is entitled to his father share at the partition and also
his separate property to the exclusion of the separated sons and is not
entitled to reopen the partition. The same principle would now apply in case
of a daughter of a coparcener, who is a coparcener in her own rights after the
commencement of the Hindu Succession (Amendment) Act, 2005.
4. Illegitimate sons: An illegitimate son among three regenerate classes,
having no vested interest in the property, cannot demand a partition but he is
entitled to maintenance out of his father's estate. The Madras and Allahabad
High court have held that the legitimate son of Sudra may enforces a partition
against his legitimate brothers but not against his father or father’s
coparceners, as for instance, his father's brother or their sons. In Bombay case
also the same view was expressed. But the Calcutta High court has taken an
opposite view. The share of illegitimate son according to some is half of what
it would have got had he been a legitimate son and
according to others his share is half of that of a legitimate son.
5. Widows: Widow though not a coparcener under Mitakshara law is
entitled to obtain a share when the property is made between the
coparceners. However, she cannot demand for a partition.
6. Alienee: An alienee of coparcener’s interest, whenever such an
alienation is valid, has also right to partition in Smt. Kailashpati Devi v. Smt.
Bhubaneswari Devi, the Supreme court held that the purchaser of joint
family property from a member of a joint hindu family may have the right to
file a general suit for partition against the members of joint family and that
may be the proper remedy for him to adopt to effectuate is purchase.
7. Female Sharers: The term female shares into three types of female
members of coparcenary, namely (i) the wife, (ii) widowed mother and (iii)
paternal grandmother. These female shares cannot demand a partition nor
can they claim share upon a mere severance of a joint family status. They are,
however, entitled to get their share only when the joint family property is
actually divided not on every partition but on some partitions only. According
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to Mitakshara law except (Madras), a wife is entitled on a partition between

her husband and his son to share equal to that of a son, but she cannot
enforce partition According to Mitakshara law, when a partition takes place
after the father's death between the son and the mother or step mother is
entitled to share equal to that of a son or stepson. Under Dayabhaga law,
sonless widow is not entitled to a share on partition not nor a stepmother
entitled to a share if she has no son.
8. Adopted children an adopted children is treated as a natural born child
and therefore he would be entitled to demand partition anytime after
adoption. Now, under the Hindu Adoption and Maintenance Act, 1956 and
adopted child is entitled to a share equal to that of a natural born child on
partition.
Under Dayabhaga, every adult coparcener whether male or female has the
right to enforce partition.
Sons, grandsons and great grandson of Hindu governed by Dayabhaga law do
not take interest by birth in the ancestral property and therefore not entitled
to partition of ancestral property against him. For the same reason no
question of wife taking any share in ancestral property arises. The rights of a
widowed mother under the Dayabhaga law are the same as those and other
Mitakshara law except in the following respects:
1. Under Dayabhaga law mother may inherit both in her own right as well
as heirs of her deceased sons.
2. Under the dayabhaga law a sonless step mother is not entitled to a
share on a partition between her step sons.
Who can sue for partition
1. Every adult coparcener- Every coparcener is entitled to sue for
partition and is entitled to have a share on partition. No other person has
such right. Prior to the Hindu Succession (Amendment) Act 2005, females had
no right to demand partition. This Amending act has made the daughter of
coparcenar, a coparcener in her own rights and therefore she is now entitled
to demand partition of the Mithakshara Coparcenary property and she would
get share equal to that of a son, when a partition takes place. Some other
females (father's wife, mother and grandmother) are also entitled to a share
on partition. In Bombay, a son is not entitled to sue his father for partition
against his will.
In Ahar Hamir Duda v. Ahar Duda Arjan, the Gujarat High Court declared that
in the case when the sun was asking not only for severance of status but also
for partition of the properties by metes and bounds without the assent of his
father, his father not having separated from his grandfather, the son was not
entitled for partition by his father.
2. A Purchaser of a coparcenary interest of a coparcener at a sale in
 P a g e | 14

execution of a decree- such a purchaser can demand a partition.

Suit by Minor-
The Hindu law makes no distinction between a minor and major coparcenary
so far as their rights to join properties are concerned. A minors rights at
partition are precisely those of a major. According to Gujarat High court in K.
Bankey Lal v. Babubhai, where any coparcener is minor he is still entitled to
get partitioned from joint family property if the minor has got any complaint
he can reagitate the entire partition on ground that it is inequitable or
fraudulent.
At this stage it is necessary to examine the nature of the jurisdiction with the
courts exercise when they decide whether a suit is for the benefit of the minor
or not. The theory is that the sovereign as parens patrie has the power and is
indeed under a duty to protect the interest of minors and this function has
devolved to the courts. In discharge of that function, therefore, they have the
power to conduct all proceedings before then where in minors are concerned.
They can appoint their own officers to protect their interest and stay
proceedings if they consider that they are vexatoius. When, therefore, the
Court decides that the suit has been instituted for the benefit of the minor
and partition is decreed by it, it is done so in the exercise of jurisdiction
which is inherent in it and which extends over all minors.
When the division in status takes place- The division in status takes place
when there is unambiguous declaration by a coparcener of his intention to
separate and the very institution of a suit for partition constituted the
expression of such an intention. In a case where the suit is filed by a major
coparcener, there is no difficulty and intention to separate is clear when such
suit is filed. The Supreme court in the case has held that this principle can
also be applied when the suit for partition is instituted by minor acting
through his next friend.
Effect of the death of the minor during pendency of suit-
A suit for partition brought on behalf of minor coparcener in joint mitakshara
family does not abate on death of the minor before trial but it is open to his
legal representatives to continue the suit and satisfy the court of the
institution of the suit was for the benefit of the minor, in which case, there
would be division status from the date of the plant and the interest of the
minor in the joint family properties would devolve on his heirs.
Benefit to the minor-
Where the transactions, which adversely affected the interests of the minor
entered by the karta of joint hindu family prior to the birth of the minor a suit
for partition on behalf of the minors on the basis of those transaction which
your pre judicial to minor's interest can be filed and such an action in seeking
the partition would be for the benefit of the minors.
 P a g e | 15

Special power of father to effect partition- The father possesses a special

power to affect partition between himself and his sons even without their
consent and he has also the power to affect a partition among the sons inter
se. It seems that the same right the father has now against the daughter also
after the commencement of the Hindu Succession (Amendment) Act 2005.
The father has the power to divide the family at any time during his lifetime
without the consent of his sons and if he makes a division it has the effect of
separating, not only the father from the sun but also son also inter se.
The right is peculiar to the father alone, the grandfather has no power to
bring about a separation among his grandsons. The partition so made by him
binds his sons, not because the sons are a consenting party to it, but because
it is the result of a power enforced by the father. The father can exercise this
power only in his lifetime, he cannot by his will direct a partition amongst his
sons. No such power is vested in any other coparcener. The father in exercise
of this power can affect partial partition between his minor sons and himself.
However, it is necessary that he must exercise this power bonafide. If the
partition effected by father is fraudulent, unfair, unequal or vitiated by
favoritism, it can be reopened
Modes of partition
1. Partition by mere declaration to separate: Partition under
Mitakshara Law is a severance of joint status and such it is a matter of
individual volition. All that is necessary to constitute partition is a definite
unequivocal indication of his intention by a member of joint family to
separate himself from the joint family and enjoy his share in severalty. In
Roopchand v. Indradur, the Madhya Pradesh Highcourt held that mere
admission that the four brothers were living separately in the same house
and doing separate business does not permit raising a presumption that
there was a family settlement to deal with the property independently of their
shares.The communication of intention to sever must be communicated to all
interested parties.
2. Partition by Notice: A severance of joint status may be affected by
serving notice by a coparcener on the other coparceners including his
intention to separate and enjoy the property in several to your demanding
partition of the property
3. Partition by Will: Partition may be effected by a corparcener by
making a will containing a clear and unequivocal intimation to his
coparceners of a desire to sever himself from the joint family or containing an
assertion of his right to separate.
4. Conversion to another faith: Conversion of a coparcener to any other
religion operates as partition of the joint status between him and other
members of the family.
5. Marriage under special marriage act 1954: Marriage of Hindu under
 P a g e | 16

Special Marriage Act causes severance between him and the other members
of the family.
6. Partition by Agreement: The true test of partition being the intention
of the member of joint family to become separate owners, it follows that an
agreement between the members of the joint family to hold and enjoy the
property in certain defined shares as separate owner operates on partition,
although the property itself has not been actually divided by metes and
bounds.
7. Partition by arbitration agreement: An agreement between the
members of a joint family whereby the appoint an arbitrator to arbitrate and
divide the property operates as a the partition from the date thereof. The
mere fact that no award has been made is no evidence of the renunciation of
the intention to separate.
8. Partition by father : The father may also cause the severance of the
sons without their consent. It is remnant of the ancient doctrine of ‘Patria
Potestas’ (paternal power). Hindu father under Mitakshara Law can demand
for partition along with his sons in presence of the karta of the family and
thus can bind the sons by partition.
9. Partition by Suits: The institution of suit for partition ipso facto effects
severance of joint family status and as such the institution of such a suit
effects immediate severance of joint status. A decree may be necessary for
working out the resultant severance for allotting definite share but the status
of the plantiff as separate in estate is brought about on his assertion of his
right to separate whether he obtains a consequential judgement or not. Their
lordships of the Supreme court held in Girjanandani v. Brijendra that partition
may ordinarily be affected by the institution of suit.Iin case of suit for
partition in joint status father’s consent to the suit for partition is no longer
necessary that the sun is fully eligible to file a suit for partition even during
the lifetime of his father .
The modes of partition provided here are not exhaustive there may be other
circumstances which if indicated unequivocal intention of partition will be
admissible.
Partial Partition
A partition effected between coparceners by mutual agreement may be
partial, either in respect of the property or in respect of the persons making it.
I. Partial as to property: It is open to the members of a joint family to
make a division and severance of interest in respect of a part of the joint
property, while retaining their status as a joint family, and holding the rest as
the properties of a joint and undivided family. But, once it is shown that the
parties intended to sever themselves, the joint status comes to an end, and
even the property which remains undivided would lose its joint nature, and
the members of the family would hold it as tenants-in-common, unless there
 P a g e | 17

is a special agreement to hold it as joint tenants.

II. Partial as regards persons: Just as a partition may be partial as regards

the property, so it may be partial as regards the persons separating. The rules
of presumption regarding partial partition or otherwise, as laid down in
several important decisions of the Privy Council and the Supreme Court may
be summed up as follows:
(i) The general principle is that every Hindu family is presumed to be joint,
unless the contrary is proved.
(ii) But once it is proved that one member of the joint family has separated
from the others, there is no presumption that the rest continue to live jointly.
The Privy Council has observed in Balabux v. Rukmabai, (1903) 30 I.A. 130:
“There is no presumption when one coparcener separates from the others,
that the latter remain united. An agreement amongst the remaining members
of the joint family to remain united or to re-unite must be proved like any
other fact.”
But no express agreement is necessary for this purpose. The intention to
remain joint may be inferred from their conduct indicating such an intention.
The Supreme Court also has approved these principles in Bhagabati Prasad v.
Dulhin Rameshwari, [(1951) S.C.R. 603].
(iii) When there has been a separation between members of a joint family,
there is no presumption that there was a separation between one of the
members and his descendant. (Haribaksh v. Babulal, (1924) 51 I.A. 153)
(iv) A Hindu father may be separated from his sons, and the sons may
remain joint, or he may be separated from his sons by one wife, and remain
joint with his sons by another wife.
(v) In a suit for partition, the decree for the partition is the evidence to
show whether the separation was only a separation of the plaintiff from his
coparceners or was a separation of all the members of the joint family from
each other. (Palani Ammal v. Muthuven Katacharla, (1925) 52 I.A. 83)
(vi) A renunciation, by a member, of his interest in the family property
does not lead to the presumption that the other members are separated.
Though a partition may be partial by mutual agreement of the parties, no
coparceners can enforce a partial partition against the other coparceners.
In K.T. Prasad v. C.I.T. [(1982) 1 S.C.C. 447)], the Supreme Court reiterated
following basic principles of partition and partial partition:
(i) When there is a partition, it is presumed that it was a total partition,
both as to parties and property.
(ii) When there is a partition between brothers, there is no presumption
that there has been a partition between one of them and his descendants.
 P a g e | 18

(iii) However, it is open to any person who alleges that a partition has been
partial (either as to persons and as to property), to establish that fact.
(iv) Hindu law does not require that, in every case of partition, the
property must be partitioned by metes and bounds. A declaration of intention
by a coparcener to become divided brings about a severance of status, and it is
open to the parties to thenceforth enjoy their respective shares of the
property as tenants-in-common.
Deemed Partition
Section 6(3) of the Hindu Succession Act, 1956 (as amended) provides as
follows:
Where a Hindu dies after the commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the property of a joint Hindu family
governed by the Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship, and
the coparcenary property shall be deemed to have been divided as if a
partition had taken place
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they
would have got had they been alive at the time of partition, shall be allotted to
the surviving child of such pre-deceased son or of such pre-deceased
daughter;
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-
deceased daughter, as such child would have got had he or she been alive at
the time of the partition, shall be allotted to the child of such pre-deceased
child of the pre-deceased son or a pre-deceased daughter, as the case may be.
For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have
been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to claim
partition or not.
The explanation to Section 30 of the Hindu Succession Act, 1956 (as
amended) also clearly states that the interest of a male Hindu in a Mitakshara
co-parcenary property shall notwithstanding anything contained in the
Hindu Succession Act, 1956 (as amended) or in any other law for the time
being in force, be deemed to be property capable of being disposed of by him.
Therefore, on the death of a member of a joint Hindu family, his share in the
family property will not pass on to the other members but will devolve as per
the bequests made in his will or as per the rules of intestate succession that
would govern him. So, a member’s share in a joint Hindu family property can
be bequeathed on the basis of a notional partition.
Technically, no one should be able to claim against such a bequest, unless
 P a g e | 19

such bequest is challenged and an order is decreed in favour of the person

challenging it. In terms of the provisions of the Hindu Adoptions and
Maintenance
Act, 1956, one cannot by will, so dispose of his property so as to defeat the
legal rights of his wife or any other person to maintenance.
Settling an important aspect of the Hindu Succession Act, a Division Bench of
Justices B.N. Agrawal and P.P.
Naolekar said in an order "the operation of the notional partition should be
only for the purposes of devolution of interests of the deceased in the
coparcenary property".
One Nagar Mal adopted Nemi Chand as his son. Mal died in 1989 without a
will and his two daughters claimed equal share along with the adopted son
Chand. Courts below accepted one-third partition of the properties amongst
all the three wards of the deceased.
On appeal, the Supreme Court said since Mal and Chand had formed the
coparcenary, a notional partition should be done as it having been effected
just before the death of Mal.
The apex court concluded that 50 per cent of the property would have to be
notionally partitioned between Mal and his adopted son Chand on 50-50 basis
and after the death of Mal his share of the 50 per cent property should be
divided equally amongst the three heirs.
In other words, the two daughters would be entitled to one sixth each of the
suit property.
Re-opening of partition
According to Manu, "Once only a partition made". If the partition is once
made, it is final and irrevocable and hence, it cannot be re-opened. To this
principle, there are the following exceptions. A partition can be re- opened on
the grounds of Mistake, Fraud, Son in Womb, Adoption, Disqualified
coparceners, Son conceived and born after partition, Absentee coparcener;
and Minor coparcener.
1. Fraud - In case the partition is found fraudulent, it can be set-aside and
the person injured can claim to reopen of the partition. For instance,
Worthless assets are fraudulent misrepresented is valuable assets and are
distributed to a coparcener, he has a right to claim the reopening of partition.
2. Son in womb -At the time of partition, if a son is in the womb, and not
share is reserved for him, he can get the partition reopened.
3. Adopted son -In case if a window of a coparcener adopted a son after
the partition, the adopted son is entitled to re-open the partition.
4. Disqualified coparcener -A disqualified coparcener is one, who is
deprived of his share at the time of partition due to some
disqualification/technical constraint. After the disqualification is removed, he
 P a g e | 20

can get the partition removed.

5. Son conceived and born after partition - Where a father does not take
share on the partition and a son is begotten and born to him, the son can
reopen the partition.
6. Absentee coparcener -Where a coparcener is absent at the time of
partition and no share is allotted to him, he can get the partition reopened.
7. Minor coparcener - When at the time of partition a coparcener is a
minor if his interests are not properly safeguarded he may reopen the
partition.
Even when there is no fraud, misrepresentation or undue influence, a
partition can be reopened at the instance of a minor coparcener. if the
partition was unequal, unfair or prejudicial to the interest of the minor.
8) Mistake - If by mistake some of the joint family properties had been left
out of partition they may be subjected to partition later on
Re- Union
The leading text on re-union is the text of Brihaspati which says, “He who,
being once separated, dwells again through affection, with father, brother or
a paternal uncle, is termed reunited with him.”A re-union can take place
between persons who were parties to the original partition [Bala Bux v.
Rukhma Bai (1913) 130IA 130; B.C. Naik v. Bhaba Bewa A.I.R. 1972 Orissa
72].
According to Mitakshara, re-union cannot take place with any person
indifferently but with father, a brother or a paternal uncle. According to
Dayabhaga also, a re-union is valid only with a father, brother or paternal
uncle.
There is a difference of opinion between the different schools on the question
whether any two persons who were parties to the partition may reunite.
According to Bombay and Mithila schools any two persons who were parties
to the original partition can reunite. According to Banaras, Bengal and
Madras schools reunion can take place only with the father, the brother or
uncle who has been expressly named in the text of Brihaspati.
No writing is necessary for a reunion. It may take place by verbal
arrangement but there must be an intention to reunite. Mere living and
carrying on business together is not conclusive evidence of reunion.
[Bhabgati v. Murlidhar, 1943 A.L.J. 328 P.C.).
To constitute a reunion there must be an intention of the parties to reunion is
estate and interest. There can be no reunion unless there is an agreement
between the parties to reunite in estate with the intention to remit them their
former status as members of a joint family. But possession of family
properties at the time of reunion is not essential. A minor cannot reunite
because he is not competent to contract.
 P a g e | 21

Effect of reunion:
The effect of reunion is to remit the reunited members to their former status
as members of a joint Hindu family. [Pran Krishan v. Mathur Mohan (1865)
10 M.I.A. 403], The question is whether the property, which was formerly
joint but was later on parted as a result of partition will pass by survivorship
or by inheritance. The majority of High Courts are of the view that property
will pass by survivorship like any other joint family property. There is no
difference in coparcenaries by birth and coparcenaries by reunion. The
special rules of inheritance are applicable only to the separate property of the
reunited members.
 P a g e | 22

Unit-III
The Hindu Succession Act, 1956
Introduction
The Hindu Succession Act, 1956 is an Act relating to the succession and
inheritance of property. This Act lays down a comprehensive and uniform
system that incorporates both succession and inheritance. This Act also deals
with intestate or unwilled (testamentary) succession. Therefore, this Act
combines all the aspects of Hindu succession and brings them into its ambit.
This article shall further explore the applicability, and the basic terms and
definitions and the rules for succession in the case of males and females.
The rules of Hindu personal law are heavily dependent on the two schools
popularly known as Mitakshara School and Dayabhaga School. According to
the Mitakshara School, there are two modes of devolution of property. These
are:
 Devolution by survivorship
 Devolution of succession
The rule of survivorship is only applicable with respect to joint family property
or coparcenary property. On the other hand, succession rules apply to separate
property held by a person. However, the Dayabhaga school places emphasis on
succession as the only mode of devolution of property. The article discusses
the rules of succession under the Act and gives an overview of the whole Act. It
also describes the devolution of coparcenary property along with the major
changes brought by it.
Applicability
Section 2 of this Act lays down the applicability of this Act. This Act is
applicable to:
 Any person who is Hindu by religion or any of its forms or
developments, including a Virashaiva, Lingayat, or a Brahmo, Prarthna
or Arya Samaj follower.
 Any person who is a Buddhist, Sikh, or Jain by religion.
 Any other person who is not a Muslim, Christian, Parsi, Jew, unless it is
proved that such person would not be governed by Hindu law or
custom.
 This Act shall also extend to the whole of India.
However, this Section shall not apply to any Scheduled Tribes covered under
the meaning of Article 366 of the Constitution, unless otherwise directed by
the Central Government by notification in the Official Gazette.
Who qualifies as a Hindu, Sikh, Jain or Buddhist
 P a g e | 23

 A legitimate or illegitimate child, where both of his parents are either

Hindus, Buddhists, Jains or Sikhs.
 A legitimate or illegitimate child, one of whose parents is a Hindu,
Buddhist, Jain or Sikh and is brought up as a member of the tribe,
community, group or family to which such parent belongs.
 Any person who is a convert or reconvert to the Hindu, Sikh, Jain or
Buddhist religion.
Basic terms and definitions
Agnate
Section 3(1)(a) defines ‘agnate’. A person is said to be an agnate of another if
the two are related by blood or adoption wholly through males.
Cognate
Section 3(1)(c) defines a person to be a ‘cognate’ of another if such a person is
related to the other by blood or through adoption but not wholly through
males.
Heir
According to Section 3(1)(f), ‘heir’ is any male or female person, who is entitled
to receive the property of the intestate.
Intestate
According to Section 3(1)(g), a person who dies without leaving behind a will
is referred to as intestate.
Related
According to Section 3(1)(i), ‘related’ means the relationship between kin(
kinship), which should be legitimate. Illegitimate children shall be deemed to
be related to their mother and to one another, and their legitimate descendants
shall be deemed to be related to them and to one another.
Which properties does this Act not apply to
Section 5 lays down the properties that this Act does not apply to:
 Any property whose succession comes under the regulation of the Indian
Succession Act, 1925 by reasons of the provision under Section 21 of the
Special Marriage Act, 1954. Section 21 of the Special Marriage Act states
that succession to the property of any person whose marriage is solemnized
under this Act and the property of the issue of such marriage shall be
governed by the Special Marriage Act.
 Any estate or property which goes to the single heir through the terms of
any agreement or covenant formed between the Ruler of an Indian State
and the Government or through any enactment formed and passed before
the commencement of this Act.
 P a g e | 24

 The Valliamma Thampuran Kovilagam Estate and the Palace Fund are
under the administration of the Palace Administration Board due to the
powers conferred under the Proclamation (IX of 1124), dated 29th June
1949, given by the Maharaja of Cochin.
Features of the Act
The importance of the Act lies in the fact that it provides uniform rules for
succession and reduces the conflict that arose due to confusion over different
rules based on the ideas of two schools. Other features of the Act are:
 It makes a uniform system of inheritance and devolution of property that is
equally applicable to areas of Mitakshara and Dayabhaga school. The
applicability of the Act is explained thoroughly under Section 2 of the Act.
However, it does not apply to people governed by the Special Marriage Act,
1954.
 Another important feature of the Act is its overriding effect given
under Section 4. It abrogates all the earlier laws, customs, rules, etc. that
were applicable to Hindus with respect to succession. Any Act or law that is
inconsistent with the provisions of this Act will be ineffective.
 It has also abolished the concept of impartible estate and its succession by
special mode.
 Earlier, the rule of survivorship in coparcenary property was only
applicable to male heirs. Female heirs were not recognised and given the
right to inherit by survivorship. But after the enactment of the Act, there has
been a change in this concept. Now, if a male dies intestate, leaving behind a
female heir, the property would devolve according to the provisions of this
Act and not the rule of survivorship.
 The Act provides order of succession based on the doctrine of propinquity,
i.e., nearness or closeness of blood, and gives four different categories that
are:
o Class I heirs
o Class II heirs
o Agnates (people related to each other either by blood or
adoption only through males)
o Cognates (people related to each other either by blood or
adoption but not through males)
 The rules of succession are different for the property of males and females.
In the case of a male who dies intestate, Class I heirs are usually given
preference over Class II heirs, and Class II heirs are further preferred over
any other heirs.
 P a g e | 25

 The Act further abolished the limited estate of women, and she is now the
absolute owner of her property, irrespective of its source. Earlier, she was a
limited owner, and the rights to her property were exercised by her
husband, but now all the rights are exercised by her, and she can even
dispose of her property and take decisions.
 The Act also recognises the right of a child in the property who is in the
mother’s womb. (Section 20) It states that an unborn child in a woman’s
womb would have the right to inherit the property, assuming that he has
been born before a person dies intestate.
 The Act also clarifies that full-blood relations are preferred over half-blood
relations under Section 18. It further explains the concept of shares that are
to be divided per capita or per stirpes (division of shares in which share is
given to a branch of heirs as a whole) and such heirs inherit property as
tenants in common. (Section 19)
 It gives a list of people that are excluded from inheriting a property on
different grounds. However, it abolished all the grounds that excluded a
person due to his physical deformity or capability under Section 28. It also
provides that the right of an illegitimate child to inherit property is confined
to the mother’s property and not the father’s property.
Devolution of interest in Coparcenary property
Coparcenary is a concept that consists of those people in a Hindu joint family
who inherit or have a common legal right to their ancestral property. Such
people are called coparceners. These are the descendants of a common
ancestor, and they acquire their right to joint property by birth. The Act also
provides for the devolution of interest in coparcenary property, and there has
been a change in the position with respect to coparcenary property due to
the Hindu Succession (Amendment) Act, 2005. This is discussed in detail
below.
Before Amendment
As mentioned earlier, the Mitakshara school recognises two modes of
devolution of property, i.e., by survivorship and by succession. The rule of
survivorship applies to coparcenary property, while succession applies to the
separate or self-acquired property of a person. Coparcenary property is an
ancestral property of a Hindu joint family and consists of:
 Property inherited by a person from their ancestors,
 Any property whose acquisition was done by the coparceners with the
help of ancestral property,
 Joint acquisition by coparceners,
 Separate property of coparceners as common stock.
 P a g e | 26

The concept of coparcenary ceases to exist once a partition is done in a Hindu

joint family. Section 6 of the Act provides for the devolution of interest in
coparcenary property. Before the Amendment of 2005, if a person died
intestate, i.e., without making a will, his interest in the coparcenary property
would be governed and devolved according to the rule of survivorship and not
succession. It further prescribed that if a person who died intestate left female
heirs mentioned in Class I, then the rules of succession would be applicable,
which means that the rule of survivorship was not applicable to female heirs
nor did they inherit property if male heirs were present.
For example, if A person X dies intestate, leaving behind his two sons, B and C,
and a daughter, D. His undivided share would devolve on B and C according to
the provision before the amendment. In the case of Satyendra Kumar v.
Shakuntala Kumaru Verma (2012), the court held that if a person or coparcener
gifts his undivided share in a coparcenary property as a gift and there is no
evidence to show the completion of partition, such a gift will be void.
After amendment
The position of the law with respect to coparcenary property has changed
since the 2005 amendment. It is now a well-established law under Section 6 of
the Act that daughters are coparceners by birth and have the same and equal
rights as sons. She has all the rights to inherit coparcenary property like a son
and would also have to fulfil the liabilities. All of this is applicable after the
commencement of the amendment Act. However, there will be no change in
any devolution done before 2004.
It also provides that such a property inherited by a female will be her own
property, and she will be an absolute owner and not a limited owner. It further
states that a coparcenary property will be devolved assuming that a partition
has taken place with respect to such property, in which the daughters will
receive the same share as given to the sons. The Court, in the case of Ramesh
Verma v. Lajesh Saxena (2017), held that the rules of succession will be
applicable to separate property acquired by a person on division by notional
partition.
The Madras High Court clarified that unmarried daughters are coparceners by
birth and must be treated equally with sons and hence be given an equal share
like him. The Amendment Act also provides that the right of married girls to
seek partition is an absolute right and is not restricted by any limitation
(Nagammal v. N. Desiyappan, 2006). The Supreme Court in one of the cases
held that the rights of daughters as coparceners under the 2005 amendment
were not limited to their date of birth. They are entitled to be coparceners
irrespective of their birth date (Prakash v. Phulavati, 2016).
Types of succession
Testamentary Succession
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When the succession of the property is governed by a testament or a will, then

it is referred to as testamentary succession. Under Hindu law, a Hindu male or
female can make the will for the property, including that of a share in the
undivided Mitakshara coparcenary property, in favour of anyone. This should
be valid and legally enforceable. The distribution will be under the provisions
of the will and not through the laws of inheritance. Where the will is not valid,
or not legally enforceable, then property can devolve through the law of
inheritance.
Intestate Succession
Intestate has already been defined above as someone who dies leaving behind
no will or testament. When such a situation happens, then this property will be
distributed among the legal heirs by following the laws of inheritance.
Rules for ownership in the case of males
Section 8 lays down the general rules for succession in the case of males.
Section 8 applies in cases where succession opens after the commencement of
the Act. It is not necessary that the death of the male Hindu, whose property
has to be devolved by inheritance, should take place after the commencement
of this Act. For example: if a father, during his lifetime, settles his property in
favour of his wife and after the death of his wife, wishes that it should pass to
his daughter, and the daughter dies after the commencement of this Act, then
the succession will open and the property would devolve accordingly.
Classification of heirs
Heirs are classified into four categories:
 Class I
 Class II
 Class III (Agnates)
 Class IV (Cognates)
Class I heirs
 Sons
 Daughters
 Widows
 Adopted sons
 Mothers
 Sons of a predeceased son
 Widows of a predeceased son
 Son of a predeceased son of a predeceased son
 Widows of a predeceased son of a predeceased son
 Daughter of a predeceased son
 Daughter of a predeceased daughter
 Daughter of a predeceased son of a predeceased son
 Son of a predeceased daughter
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 Daughter of a predeceased daughter of a predeceased daughter

 Son of a predeceased daughter
 Son of a predeceased daughter of a predeceased daughter
 Daughter of a predeceased daughter of a predeceased son
 Daughter of a predeceased son of a predeceased daughter
All of them will inherit simultaneously and even if any of them is present, then
the property will not go to the Class II heirs. All Class I heirs have absolute
rights in the property and the share of a Class I heir is separate, and no person
can claim a right by birth in this inherited property. A Class I heir cannot be
divested of his/her property, even by remarriage or conversion, etc.
Until the Hindu Succession (Amendment) Act, 2005, the Class I heirs consisted
of twelve heirs, eight of which were females and four were males, but after
2005, four new heirs were added, of which eleven are female and five are male.
Now we will observe who classifies as son, mother, daughter or widow and
what kind of interests they have in the property.
Son
The expression ’son’ can include both a natural-born son or adopted son but
does not include a stepson or illegitimate child. In Kanagavalli v. Saroja AIR
2002 Mad 73, the appellants were the legal heir of one Natarajan. Natarajan
was earlier married to the first respondent, the second respondent was the son
and the third respondent was the mother of Natarajan. The first respondent
obtained a decree of restitution of conjugal rights but still no reunion occurred
between them. The first appellant claimed to have married Natarajan in 1976
and the appellants 2 to 5 were born through them. Natarajan died afterward.
The suit was filed for declaration that the appellants were the legal heirs of the
said Natarajan along with respondents 1 to 3, and they were entitled to the
amounts due from the Corporation where Natarajan worked. The Court held
that a son born of a void or voidable marriage that is declared to be annulled
by the Court will be a legitimate child and would thus inherit the property of
his father. A son has an absolute interest in the property and his son cannot
claim birthright in it. Therefore, ‘son’ does not include a grandson, but does
include a posthumous son.
Daughter
The term ‘daughter’ includes a natural or adopted daughter, but not a
stepdaughter or illegitimate daughter. The daughter of a void or voidable
marriage annulled by the Court would be a legitimate daughter and thus would
be eligible to inherit the father’s property. The daughter’s marital status,
financial position, etc is of no consideration. The share of the daughter is equal
to that of the son.
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Widow
The widow gets a share that is equal to that of the son. If there exists more than
one widow, they collectively take one share that is equal to the son’s share and
divide it equally among themselves. This widow should have been of a valid
marriage. In the case of Ramkali v. Mahila Shyamwati AIR 2000 MP 288, it was
held that a woman who was in a voidable or void marriage, and that marriage
was nullified by the Court on the death of the husband, would not be called his
widow and would not have rights to succeed to his property.
If the widow of a predeceased son, or the widow of a brother has remarried,
then she shall not be given the term of ‘widow’, and will not have the
inheritance.
Adopted son
The Act has clearly clarified the position of sons with respect to succession. He
has been given all his rights as of the date the Act was enacted. Before the
amendment of 2005, he was preferred over daughters and was eligible to be a
coparcener but after the amendment, even the daughters are given equal
rights. The question that arises now is whether an adopted son has any right to
inherit property. This question has been amicably addressed by the Act. The
explanation to Section 6(4) of the Act clearly states that a son, grandson, or
great-grandson includes a son who was born or adopted before the
commencement of the Amendment Act of 2005. This also means that an
adopted son is treated the same as a natural son under the Act and has all the
rights given to him.
Class II heirs
The Class II heirs are categorized and are given the property in the following
order:
 Father
 Son’s Daughter’s son
 Son’s daughter’s daughter
 Brother
 Sister
 Daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s
son, daughter’s daughter’s daughter
 Brother’s son, sister’s son, brother’s daughter, sister’s daughter
 Father’s father, father’s mother
 Father’s widow, brother’s widow
 Father’s brother, father’s sister
 Mother’s father, mother’s mother
 Mother’s brother, mother’s sister
If no one from the Class I heirs takes the property, then Class II heirs fall in line
to get the property. In Kalyan Kumar Bhattacharjee v. Pratibha Chakraborty
 P a g e | 30

AIR 2010 (NOC) 646 (Gau), the property fell into the share of the defendant’s
brother named Ranjit, who was unmarried. However, he became traceless and
the property was divided amongst two other brothers in equal shares. The
plaintiff’s brother called Jagadish then executed a will in favour of both the
plaintiff and died afterward. However, the defendants then asked them to
vacate the land, contending that inter alia that the land has been purchased in
the name of three brothers; namely Jagadish, Ranjit and Kalyan, defendant
number 1. It was held that when a Hindu male is unmarried and he dies, and is
not survived by a Class I heir, the Class II heirs would get the property.
Similarly, when in heirs in Class III and IV are there, the property would only
go to them if no one from Class II is present.
Class III heirs
This consists of the agnates of the deceased. Class III heirs only inherit the
property when none from the earlier classes gets the property.
An agnate is a person who is related to the intestate only through male
relatives. An agnate can be a male or a female.
Rules of preference among agnates
 Each generation is referred to as a degree. The first degree is
intestate.
 Degrees of ascent mean ancestral or upwards directions.
 Degrees of descent means in the descendants or downward direction.
 Where an agnate has both ascent and descent degrees, each has to be
considered separately.
 An agnate having a descent degree will be preferred over the one
having an ascent degree.
 When two agnates have ascent and descent degrees, the one having a
lesser number of ascent degrees will be preferred.
Class IV heirs
A cognate (Class IV) is someone who was related to the intestate through
mixed relatives, in terms of sex. For example, an intestate’s paternal aunt’s son
is his cognate, but his paternal uncle’s daughter will be an agnate.
Therefore, to sum up it can be said that the property of the Hindu male
devolves in the following manner:
 First, to the heirs in Class I.
 Second, if there exists no heir of Class I, then it goes to Class II heirs.
 Third, if none from the Class I or II exists, then it goes to the agnates
(Class III).
 Fourth, if no one from the earlier three classes exists, then it goes to
the cognates (Class IV).
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Persons disqualified from heirs

The Act abolished all disqualifications on the basis of physical deformities,
mental capabilities, or morals and instead gave a new set of disqualifications.
Prior to the amendment of 2005, remarriage was a ground of disqualification
for:
 Intestate’s predeceased son’s widow,
 Widow of predeceased son of a predeceased son,
 Widow of a brother of intestate.
However, after the amendment, disqualification of heirs has been classified as:
 Disqualification due to murder
 Disqualification due to conversion
Disqualification due to murder
Section 25 of the Act disqualifies a murderer from inheriting the property of
the person whom he murdered. He is treated as non-existent and is not
considered a part of the line of descent (Nirbhai Singh v. Financial
Commissioner, Revenue, Punjab & Ors., 2017). A murderer under the Section
also includes a person who aids or abets such a crime.
Disqualification due to conversion
Section 26 of the Act disqualifies a person or his children born after
conversion, who converts from the Hindu religion to any other religion. The
only condition upon which his descendants are eligible to inherit is that they
must be Hindus at the time of succession. Section 27 further gives the effect of
disqualification and mentions that in case of any disqualification, the property
would be inherited considering that the person disqualified died before the
intestate.
Changes brought by Succession Act 1956
The Act has brought some major changes in the rules of succession of the
property. One of those is the manner of devolution of property. It has provided
a uniform system of devolution of a coparcenary property and self-acquired or
separate property. The other changes are discussed below.
Sapinda relationships are abolished
The present law has made several changes, and among those, it abolished the
previous Sapinda relations that used to inherit property out of love and
affection. It has now mentioned the list of heirs and divided them into four
categories. People mentioned in such categories like Class I heirs, Class II heirs,
agnates and cognates are entitled to inherit the property.
Changes with respect to the Hindu joint family
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Earlier, coparceners did not have any right to make a will with respect to their
share or property. This right has now been recognised under Section 30. The
rule of survivorship has been replaced by uniform rules of succession that are
different for males and females. The Act also recognised the rights of daughters
as coparceners and they would now have the same rights as sons.
Removal of various disqualifications
The previous law disqualified the following people from inheriting a property:
 Lunatics,
 Idiots,
 Unchaste widows,
 Disqualifications based on physical deformities, etc.
However, such disqualifications have been abolished now, and the only 2
disqualifications under the Act are being a murderer or a converted person.
Succession in the separate property of a propositus
The right of succession in the separate property of propositus i.e. a person who
died, was not recognised earlier, but now, it is well established that Class I
heirs can inherit the property of propositus in equal proportion
simultaneously with the succession in joint property. These Class I heirs are
preferred over Class II heirs, and they cannot inherit if Class I heirs are present.
Similarly, Class II heirs are preferred over agnates, cognates, and so on.
Changes with respect to illegitimate sons
An illegitimate son can only inherit his mother’s property but not his father’s
property. He has not been given any rights in coparcenary property. His
position was earlier chaotic due to the two schools and varied from caste to
caste.
Changes in consanguine and uterine blood relations
Uterine blood relations were not recognised under the previous law and rules,
but consanguinity had its recognition. Uterine relations are those where there
is a common ancestress but different husbands. Under the present law, both
relationships are recognised and given rights accordingly.
Other changes
The other changes are:
 Women are absolute owners of their property rather than limited owners.
 Earlier, the benefit of the doctrine of representation was given only to sons,
grandsons, great-grandsons or pre-deceased sons. But it extends to
daughters as well.
 The Act abolished impartible estate and its succession.
 It abolished the disqualification based on remarriage.
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 It is not applicable to people governed by the Special Marriage Act, 1954.

 It has removed any kind of difference between male and female heirs.
Rules for ownership in the case of females
With the coming of The Hindu Succession Act, 1956, women are granted
ownership of property, whether it was acquired before or after the
commencement of the Act, thus abolishing their ‘limited owner’ status. But it
was only in the Hindu Succession (Amendment) Act, 2005 that it was decided
that daughters would be entitled to an equal share in the property as the son.
Therefore, the 2005 Amendment serves as a defender for female rights.
The property in case of a female Hindu intestate dying will devolve through:
 Firstly, through the sons and daughters, which would also include the
children of a predeceased son or a predeceased daughter) and the husband.
 Secondly, on the heirs of the husband.
 Third, upon the mother or the father.
 Fourth, on the father’s heirs.
 Fifth, on the heirs of the mother.
In the case of any property being inherited by a female Hindu by her father or
mother and there is no son or daughter of the deceased (including a child of
predeceased son or daughter), then it shall devolve in favour of the heirs of the
father.
Similarly, in the case of any property being inherited by a female Hindu by her
husband or her father-in-law, and there is no son or daughter of the deceased
(including the child of a predeceased son or daughter), it shall devolve in
favour of the heirs of the husband.
Conclusion – This article explored some basic terms and definitions used in
the Hindu Succession Act, 1956. There are four classes of heirs to which
property devolves in case if a Hindu dies leaving behind a will, in which case he
becomes intestate. This property devolves through these classes. If no one
from the earlier class is present, then it devolves to the next class and so on.
Lastly, this article also explored the 2005 Amendment to this Act, which
brought much-needed protection to women’s rights regarding the property.
The Act has been successful in bringing uniformity to the succession of
property among Hindus. It tried to rectify all the loopholes that existed by
enacting the 2005 amendment. However, there is an ambiguity as to people to
whom this act is not applicable. One of the major impacts of this Act is that it
emphasises equality between males and females by recognising the rights of
daughters as coparceners. Women now have the right to be a coparcener,
inherit property, be absolute owners, etc. The Act also abolished
disqualifications based on the physical deformity and mental depravity and
instead disqualified murderers and converted persons, which is reasonable.
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Unit-IV
Muslim Law of Gift
Introduction
A Muslim can devolve his property in various ways. Muslim law permits the
transfer of property inter vivos (gift) or through testamentary dispositions
(will). A disposition inter vivos is unrestricted as to quantum and a Muslim is
allowed to give away his entire property during his lifetime by gift, but only
one-third of the total property can be bequeathed by will. Conventionally, a
gift, being a transfer of property is governed by the Transfer of Property Act,
1882.
But Chapter VII of the Transfer of Property Act, 1882 regulating the gifts does
not apply to the ‘Muslim Gifts’ or the ‘Hiba’. Although there is no such
difference between a gift made by a non-muslim or a Muslim yet, the
formalities of Hiba are different from that of a gift made by a non-muslim.
Therefore, Hiba is governed by the Muslim Personal Law.
Meaning and Definition of Gift
A gift is generally a transfer of ownership of a property by a living person to
another living person without any consideration. In Islamic law, gifts are
known as ‘Hiba’. To be very precise, gift implies to an extensive overtone and
appertain to all kind of transfers of ownership not involving any
consideration. On the other hand, the term ‘Hiba’ includes a narrow
connotation. It is basically transferred inter vivos i.e. between living person.
According to Hedaya– “Hiba is an unconditional transfer of ownership in an
existing property, made immediately without any consideration.”
According to Ameer Ali– “A Hiba is a voluntary gift without consideration of
property by one person to another so as to constitute the donee the proprietor of
the subject-matter of the gift.”
According to Mulla– “A Hiba is a transfer of property, made immediately and
without any exchange by one person to another and accepted by or on behalf of
the latter.”
According to Fyzee– “Hiba is the immediate and unqualified transfer of the
corpus of the property without any return.”
Salient Features of a Hiba
After anatomizing the definitions and meaning, some prominent features of
Hiba emerge as follows:
1. Hiba is a transfer of property by act of the parties and not by operation
of law. It means that any transfer of property done by the court of law or
any transfer of ownership by the Muslim law of inheritance will not be
considered as Hiba.
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2. Under Hiba, a living Muslim voluntarily transfers the ownership of any

property to another living person. Hence, it is a transfer inter vivos.
3. The transferor transfers ownership of the property in absolute
interest and the transferee gets the complete title in respect of the
property given to him. Conditions, restrictions or partial rights in the
gifted property are averse to the concept of Hiba under Islamic law.
4. Hiba is operative with immediate effect and deprives the transferor of
his control and ownership over the property. Moreover, as the property
is passed immediately to the transferee, the property must be in
existence at the time when the gift is made. A gift made for a property
which will exist is future is termed as void.
5. A Hiba is a transfer of property without any consideration. If anything
of any value is taken by the transferor in return or exchange, such a
transfer of property is not a gift.
Competency of the Donor: Capacity and Right
A person who makes the declaration of a gift is called a donor. A donor must
be a competent person to make a gift. Every Muslim, male or female, married
or unmarried, who has attained the age of majority and has a sound mind is
a competent donor. For the purpose of making a gift, the age of majority is the
attainment of 18 years and 21 years if he is under a certificated guardian.

Capacity to make a Hiba

Mental capacity: A person who is of sound mind and has the mental capacity
to understand the legal implications of his act is eligible to make a gift.
However, a gift made by a person of unsound mind during lucid intervals is a
valid gift. Also, the donor must be free from any coercive or fraudulent
influence while making a gift.
In the case of Hussaina Bai v. Zohara Bai[1], the validity of a gift made by
parda-nasheen ladies was declared by the court. In this case, a parda-nasheen
Muslim lady was brought from Nagpur to Burhanpur on an excuse that her
brother-in-law was seriously ill. After reaching the place, she had a fit of
hysteria, and soon after it, she was made to sign a gift deed without informing
her the content of the deed and no opportunity was given to her to take an
independent decision. The court held that-
“When a gift is made by a parda-nasheen lady, it is important to establish that
the consent of the lady was free and she made the gift on her independent
advice. The burden to prove that the gift was made free from compulsion lies on
the donee. In this case, the deed was executed from the lady under compulsion, it
was not her voluntary act, and hence, the deed was held invalid.”
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Financial Capacity: According to the Hanafi view, if a person is under

insolvent circumstances, he is allowed to make a gift. However, the Kazi has
the power to declare any gift as void if it is made with a view to defraud the
donee. The Indian courts have accepted the view of the Hanafi school that
from the fact of indebtedness or embarrassing financial circumstances of the
donor, it cannot be inferred that the donor has fraudulent intentions.
So, in every gift, there must be a bona fide intention on the part of the donor to
transfer property to the donee. Evidently, if a gift is made with a malafide
intention to defraud the donee, the gift is invalid.
Right to make a Hiba
Capacity to make a gift is not solely enough. The donor must also have a right
to make a Hiba. A Muslim has a right to gift only those properties of which he
has the ownership. If he is simply a tenant in a house, he is not allowed to gift
that house to someone because he does not have the ownership of that house.
Such a gift is considered as invalid.
However, a Muslim has a right to gift away all his properties which are under
his ownership at the time of declaration of the gift. The transfer of the
property by the donor must be in the absolute interest of the donee.
Therefore, it is imperative that the donor himself has the ownership of that
property which he intends to pass on to the donee.
Competency of the Donee
The person in whose favour the gift is made is known as the donee. For being
a competent donee, the only essential requirement is that a donee must be any
person in existence at the time of the making of a gift. He may be a person of
any religion, sex, or state of mind. Thus, a Muslim can make a lawful Hiba in
favour of a non-muslim, female, minor or an insane person.
Child in Womb: A child in the mother’s womb is a competent donee provided
that it is born alive within six months from the date on which the gift was
made. If after the declaration of the gift the child dies in the womb or an
abortion takes place, the gift becomes void. Also, the child must be in
existence in the mother’s womb at the time of the making of the gift. If a child
is not in the mother’s womb or the conception takes place after the
declaration of the gift, such a gift is void ab initio.
Juristic Person: A juristic person includes a firm, corporation, company,
association, union, university or any other organization. A juristic person is
presumed to be an adult of sound mind like a human being in the eyes of law
and hence, is a competent donee in whose favour a gift can be made. A gift in
favour of a mosque, temple or a school is valid.
Two or more Donees: A donee may be an individual or a class of persons. In
case the donee is a group of people, all the people in that particular group
must be ascertainable.
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The Subject matter of Hiba

Islamic law does not make any distinction between ancestral or self-acquired
or between movable or immovable property as far as the concept of Hiba is
concerned. Any form of the property upon which the dominion can be
exercised may constitute the subject-matter of the Hiba. Both incorporeal and
corporeal property can be the subject-matter of a Hiba.
Similarly, a gift can be made of property on lease, a property of attachment or
any actionable claim. Unlike the concept of the will or wasiyat under Islamic
law in which only one-third of the total property can be bequeathed by a will,
a Hiba or gift can be made of the entire property.
Formalities of a Hiba
It is often supposed that the word ‘gift’ connotes the exact identical meaning
as the term ‘Hiba’. A gift is a broad and generic concept whereas Hiba is a
narrow and well-defined legal concept. Juristically, in Islamic law, a Hiba is
treated similar to a contract consisting of an offer to give something on the
part of donor and acceptance on the part of the donee. Thus, to make a Hiba
three essential formalities have to be fulfilled.
1. A declaration of gift by the donor
2. Acceptance of the gift by the donee
3. Delivery of possession by the donor and taking of possession by the
donee
These three formalities are discussed in detail below:-
Declaration of gift by the Donor
Declaration simply signifies the intentions of the donor to make a gift. It is a
substantiation of the intention of the donor to transfer the ownership of the
property to the donee.
Oral or Written: The donor may declare a gift of any kind of property either
orally or through a written deed.
In the case of Md. Hesabuddin v. Md. Hesaruddin, a Muslim woman made a
gift of her immovable properties in favour of her son. The gift was written on
ordinary paper and was not a registered deed. The court held the validity of
such gifts in this case as-
“ Under Muslim law, writing is not essential for the validity of a gift whether it is
moveable or immovable property. Therefore, the gift, in this case, was held to be
valid because writing and registration of a gift are not mandatory requisites to
make a valid gift.”
Express Declaration: A declaration of a gift must be expressly made in clear
words that the donor is conceding his ownership of the property completely.
A gift made in ambiguous words is null and void.
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In Maimuna Bibi v. Rasool Mian, it was held that-

“ It is necessary that the donor divest himself completely of all the dominion and
ownership over the property of gift. The donor must express his explicit intention
to transfer the ownership to the donee clearly and unequivocally.”
Free Consent: The consent of the donor in making the gift must be free. A
declaration of a gift must be made voluntarily by the donor. Any gift made by a
donor under threat, force, coercion, influence or fraud is not a valid gift.
Bona fide Intention: Mere announcement of a gift is not considered as a valid
declaration until it entails the intention of the donor. Absence of real and
honest intention to transfer the ownership of the property will make a gift
ineffective. A gift made with an intention to defraud the donee is void. A gift
without an intention may be pretence gift, colourable or Benami transaction
etc. however, mere indebtedness does not affect the competency of the donor
unless his malafide intention is established.
Acceptance of gift by the Donee
For the validity of a gift, it must be accepted by the donee. Acceptance
manifests the intention of the donee to take the property and become its new
owner. Without acceptance, the gift is considered to be incomplete. Since
under Islamic law, Hiba is treated as a bilateral transaction, therefore, it is
important that the proposal made by the donor to transfer the ownership of
the property must be accepted by the donee.
Minor: In case the donee is minor, the acceptance on behalf of a minor can be
given by the guardian of the property of the minor.
Juristic person: If a gift is made in favour of any institution or any other
juristic person, the acceptance of the gift is made by either manager or any
other competent authority.
Two or more Donees: Gift made in favour of two or more donees must be
accepted by each and every person separately. If the share of each person is
explicitly specified by the donor then, they will get the separate possession in
the same way as declared by the donor. But if the share under a gift is not
specified and no separate possession is given by the donor, then also the gift is
valid and the donees will take the property as tenants-in-common.
Delivery of Possession
The formalities laid down for gifts under Section 123, Transfer of Property
Act, 1882, are not applicable to Muslim gifts. Under Islamic law, a gift is
complete only after the delivery of possession by the donor and taking of
possession by the donee. Thus, it is obligatory that the declaration and
acceptance must be accompanied by the delivery of possession of the
property.
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The gift takes effect from the date when the possession of the property is
delivered to the donee and not from the date when the declaration was made
by the donor. Delivery of possession is an overriding facet in Islamic law. The
importance is to such an extent that without the delivery of possession to the
donee, the gift is void even if it has been made through a registered deed.
The donor must divest himself of not only the ownership but also the
possession in favour of the donee in order to make a gift complete. Muslim law
does not presume transfer of ownership rights from donor to a donee without
the explicit delivery of possession of the property.
In Noorjahan v. Muftakhar[4], a donor made a gift of certain property to the
donee, but the donor continued to manage the properties and takes the profit
himself. Till the death of the donor, no mutation was made in the name of the
donee. It was held by the court that since no delivery of possession was made,
the gift was incomplete and ineffective in nature.
Mode of Delivery of Possession
The mode of delivery of possession totally depends upon the nature of the
property gifted. Legally, the donor is required to do something by which the
donee gets the physical control over the property in order to constitute the
delivery of possession.
A donee is said to be in possession of a property when he is so placed that he
can exercise exclusive dominion over it and gain the benefits out of it as is
usually derived from it. Therefore, the delivery of possession can be either
actual or constructive i.e. symbolic.
Actual Delivery of Possession
Actual delivery means when a property is physically handed over to the
donee. This type of delivery is possible only with tangible properties (movable
as well as immovable) which are capable of being physically possessed and
given.
Where the property is movable, it must be actually transferred and handed
over to the donee.
For example, if a donor gifts a car to the donee, he must give the keys of the
car and all other documents of the car to the donee so that he can use it. Mere
declaring the gift on a document is not enough. The property must be handed
over immediately.
Similarly, where the property is immovable, its actual delivery of possession
is compulsory. But since it cannot be picked up and handed over, the donor
may delivery such property by giving all the documents related to that
property and by placing it to the donee so that he can use it as he likes.
For example, if a donor gifts the house in which he is residing, he must vacate
it and ask the donee to live in it in order to make his gift valid. In case of a
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garden, the donor may give full dominion to the donee to use the garden in
whichever way he wants including all the rights to enjoy the fruits and
flowers.
Constructive Delivery of Possession
Constructive delivery of possession means a symbolic transfer of property. In
this mode of delivery, the donor does some act due to which it is legally
presumed that the possession has been delivered to the donee. Such type of
delivery of possession takes place only when the property is of such a nature
that it is not possible to delivery through actual mode. Constructive delivery of
possession is sufficient to constitute a valid gift under two circumstances only:
1. Where the property is intangible.
2. Where the property is tangible but, under the situation, its actual
delivery of possession is not possible.
When the constructive delivery of possession is completed?
When the possession of the movable property is delivered, the exact time of
delivery of possession can be easily determined. The problem arises in the
case of immovable or incorporeal properties where it is onerous to prove the
exact time of the delivery of possession. However, in India, there are two
judicial views regarding the exact time of the completion of delivery of
possession.
 Benefit Theory: Under this view, it is believed that a constructive
delivery of possession is complete as soon as the donee starts getting
the benefits out of the gifted property. Where even after the
declaration of the gift, the donor is enjoying the benefits, the gift is
not complete. But, if the donor enjoys the benefits, it is deemed that
the delivery of possession has taken place.
This approach lays more emphasis on the facts of donee’s benefits from the
gifted property instead of the act which symbolises constructive delivery of
possession.
For example, if a donor gifts a rented house to the donee, the delivery of
possession is considered to take place from the date on which the donee gets
the rent from the tenants.
 Intention Theory: This approach supports the view that the delivery
of possession is completed on the date on which the donor intent to
transfer the possession to the donee. The intention of the donor can
be proved on the basis of the facts and circumstances which vary
from case to case. In correspondence to the intention of the donor,
some potent facts must be established which exhibit that the donor
has physically done everything he could in the given circumstances.
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In other words, the court accepts that the delivery of possession is deemed to
have taken place only when the bona fide intention of the donor to complete
the gift is thoroughly established and it is not important to prove that from
which date the donee reaps the benefits of the property given.
For example, if the donor and donee are living in the same house which
constitutes the subject-matter of the gift, the donor’s intention to transfer the
possession to the donee is sufficiently proved if the donee has been authorised
to manage the house.
Who may challenge the Delivery of Possession?
It is not at all necessary to prove separately in each and every case that the
delivery of possession has been completed until and unless the validity of gift
is challenged by the donor, the donee or any person legally authorised to
claim on behalf of them.
In the case of Y. S. Chen v. Batulbai[5], a Muslim woman made a gift of a
portion of her house to her daughter. The gifted portion of the house was
occupied by a tenant who used to pay the rent regularly to the daughter
(donee) recognising her as the landlady. After some time, the tenant refused
to recognise the daughter as his landlady on the ground that the gift made in
her favour was void because there was no delivery of possession. It was held
by the court that –
“Any objection as to the validity of gift on the ground of absence of delivery of
possession cannot be raised by the tenant who is a stranger to the transaction of
a gift.”
Conditional or Contingent Hiba
The contingent or conditional gifts whose operation depends upon the
occurrence of a contingency. A contingency is a possibility, a chance, an event
which may or may not happen. Under Islamic law, conditional or contingent
gifts are void.
For example, if a Muslim made a gift to his wife for life, and after her death to
his children who are living at the time of his death, the gift is said to be
contingent.
Revocation of Hiba
Although Prophet was against the revocation of gifts, it is a well-established
rule of the Islamic law that all voluntary transactions, including Hiba, are
revocable. Different schools have different views with regard to revocation.
The Muslim law-givers classified the Hiba from the point of view of
revocability under the following categories:
 Revocation of Hiba before the delivery of possession
All gifts are revocable before the delivery of possession is given to the donee.
For such revocation, no orders of the court are necessary. As discussed above
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that under Muslim law, no Hiba is complete till the delivery of the possession
is made, and therefore, in all those cases where possession has not been given
to the donee, the gift is incomplete and whether it is revoked or not, it will not
be valid till the delivery of possession is made to the donee.
It implies that the donor has changed its mind and not willing to complete the
gift by delivery of possession.
For example, X, a Muslim, makes a gift of his car to Y through a gift deed and
no delivery of possession has been made to Y. X revokes the gift. The
revocation is valid.
 Revocation after the delivery of possession
In this situation, a Hiba can be revoked in either of the following ways:
1. With the consent of the donee
2. By a decree of the court.
Mere declaration of revocation by the donor or filing a suit in the court or any
other action is not enough to revoke a gift. The donee is entitled to use the
property in any manner until a decree is passed by the court revoking the gift.

Gift to Minor
Any gift made in favour of a minor or insane person is valid. They may not
have the capacity to understand the legal consequences but they are persons
in existence and thus, are competent donee. But such gifts are valid only if
accepted by the guardian of the minor or insane donee. A gift is void without
the acceptance by the guardian.
For the purpose of acceptance of the gift, the guardian of a minor or insane
donee are as under in the order of priority:
1. Father
2. Father’s executor
3. Paternal grandfather
4. Paternal grandfather’s executor
Therefore, in the presence of the father, the paternal grandfather is not
allowed to accept the gift on behalf of the minor or insane and so on. If all the
above-mentioned guardians are not present, then the gift is accepted by the
‘guardian of the property of minor or insane’.
If a guardian himself makes a gift in favour of his ward, he will declare the gift
acting as a donor and has the capacity to accept the gift as the guardian of the
minor or insane.
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It is to be noted here that the mother is not recognized as the guardian of

the property of her minor child. Hence, she is not entitled to accept the gift
on behalf of her minor child.
Where a gift is made to a minor or lunatic, the gift is complete only if the
guardian has taken the actual or constructive delivery of possession of the
property on behalf of such persons. If the possession is taken by any other
person who is neither a legal guardian nor a de facto guardian, the gift
becomes ineffective and void.
Katheessa Ummand v. Naravanath Kumhamuand is a leading case on this point.
Facts: In this case, a Muslim husband made a registered gift to his wife who
was a minor. The gift was accepted by the donee’s mother. Unfortunately,
after two years, the husband died and soon after it the donee (wife) also died.
The validity of the gift was challenged by the elder brother of the donor
(husband) on the ground that there was no delivery of possession as a gift to
the minor was accepted by her mother who is not a legal guardian according
to the Islamic law.
Issue: The question before the court was whether a gift by a Muslim husband
to his minor wife and accepted by the mother on behalf of the minor wife, is
valid?
Held: The court, in this case, held that it is a well-established rule under
Islamic law that mother is not a legal guardian of the minor’s property,
therefore, she is incompetent to take the delivery of the possession on behalf
of the minor donee. But, in case there is no legal guardian to accept the gift,
the completion of the gift for the benefit of the minor has the utmost
significance.
If the donee had already attained the age of puberty, the gift is valid even if it
is accepted by a person who has no authority to accept the gift on behalf of a
minor. In this case, the gift was held to be valid although the delivery of
possession was not accepted by any competent guardian on behalf of minor
but since the minor had reached the age of discretion (fifteen years) and was
competent to accept the gift herself.
When Delivery of Possession is not necessary
Islamic law of gift binds great significance to delivery of possession especially
in case of immovable property. The other essentials of Hiba will have no legal
effect unless accompanied by delivery of possession. But there are certain
exceptions to this general rule. The following are the situations under which a
gift is valid without actual or constructive delivery of possession:
 Donor and donee live jointly in the gifted house: Where the subject-
matter of a gift is a house in which the donor and donee both resides
together, any formal delivery of possession is not necessary to complete
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the gift. Since the donee is already continuing the possession of the house
in some other capacity, there is no need to give the donee the same
possession again in a different capacity.
But, there must be some conspicuous act or apparent activity on the part of
the donor that indicates the bona fide intention of the donor to transfer the
possession.
In Humera Bibi v. Najmunnissa[6], a Muslim lady executed a gift deed of her
house in favour of her nephew who was living with her in the same house. The
property was transferred in the name of the nephew but she continued to live
with him as before. But after the making of the gift, the rents were collected in
the name of the donee. It was held that “ the gift was valid although there was
neither any physical transfer to the donee nor any physical departure of the
donor from the house.”
 Gift by a husband to wife or vice versa: where a gift of immovable
property is made by a husband to wife or vice versa, no transfer of
possession is mandatory. The reason behind this is that a joint residence is
an integral aspect of the relationship of marriage. To perform the
matrimonial obligations it is necessary the husband and wife must live
together.
In the case of Fatmabibi v. Abdul Rehman, the husband made an oral gift of a
house to his wife. Later, the deed was also registered. The stepson, who lived
with his wife in the gifted house, challenged the validity of the gift on the
ground that there was no delivery of possession of the house. It was held that–
“Oral gift in presence of two persons amounts to the declaration, mentioning the
name of the wife in the registration deed amounts acceptance and mutation in
the name of the wife at the instance of the wife amounts sufficient delivery of
possession keeping in view the relationship between the parties.”
In Katheessa Ummand v. Naravanath Kumhamuand, the Supreme Court held
that “ where a husband made a gift in favour of his minor wife by a registered
deed and possession is handed over to the mother of minor wife, the gift was
valid. Since the wife had no father and grandfather alive, nor any executor, the
delivery of the gift deed to her mother instead of the minor wife herself did not
invalidate the gift, as the intention was well established.”
 Gift by Guardian to Ward: In case a guardian makes a gifts in favour of his
ward, he declares the gift as donor and accepts the gift on the part of the
donee, the delivery of possession is not compulsory provided that there is a
bona fide intention on the part of the guardian to divest his ownership and
give it to his ward.
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 Gift of property already in possession of donee: The basic objective

behind the concept of delivery of possession is to give the physical
dominion over a property to the donee. But, anyhow if the donee already
has possession of the property given by donor under a gift, mere
declaration and acceptance are enough to complete the gift. No formal
delivery of possession is required to complete the gift.
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Doctrine of Mushaa
The word ‘Mushaa’ has an Arabic origination which literally
means ‘confusion’. Under Islamic law, Mushaa denotes an undivided share in
joint property. It is, therefore, a co-owned or joint property. If one of the
several owners of such property makes a gift of his own share, there may arise
confusion in regard to what part of the property is to be given to the donee.
Practically, it is too difficult to deliver the possession of a joint property if a
gift is made by a donor without partition of the joint property.
To circumvent such confusion, the Hanafi Jurists have developed the doctrine
of Mushaa. Gift of Mushaa i.e gift of a share in the co-owned property is invalid
without the partition and actual delivery of that part of the property to the
donee. If the co-owned property is not capable of partition, the doctrine of
Mushaa is impertinent. A Mushaa or undivided property is of two kinds:

Mushaa Indivisible
It includes the property in which the partition is not possible. A gift of an
undivided share (Mushaa) in a property which is incapable of being divided or
where the property can be used for better advantage in an undivided
condition, is valid. The doctrine of Mushaa is not applicable where the
property constituting the subject-matter of the gift is indivisible. All the
schools of Islamic law accept the view that a gift of Mushaa indivisible is valid
without partition and the actual delivery of possession.
For example, a staircase, a cinema hall, a bathing ghat etc. comprises
indivisible Mushaa properties. If these kinds of properties are divided, then
their original identity will be lost.

Mushaa Divisible
Mushaa divisible is the property which is capable of division without affecting
its value or character. If the subject-matter of a Hiba is Mushaa divisible, the
doctrine of Mushaa is applied and the gift is valid only if the specific share
which has been gifted, is separated by the donor and is actually given to the
donee. However, a gift without partition and the actual delivery of possession
is merely irregular and not void ab initio.
For example, a co-owned piece of land or a garden or a house is a Mushaa
divisible property which can be divided by a visible mark of identification
without changing its original character.
Shia law does not recognize the principle of Mushaa. According to Shia law, a
gift of a share of divisible joint property is valid even if it is made without
partition.
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Comparison of Gift and Will

Basis of Gift Will
Comparison
Quantum A man can give away his whole Only one-third of the net
property during his lifetime. estate can be bequeathed.
Beneficiary A gift inter vivos can be made For bequeathing more than
in favour of any person one-third of the property to
without any restriction (except any person, consent of heirs is
during marz-ul-maut). mandatory.
Existence of Property gifted must be in The property may or may not
Property existence at the time of making be in existence at the time of
the gift. execution of the will but it
must be existing at the time of
the death of the legator.
Transfer of Under gift, the immediate and A transfer of property comes
Property absolute transfer of property into effect only after the death
takes place. of the legator.
Delivery of Immediate delivery of Since property devolves on
Possession possession must take place as the legatee only after the
soon as the donor declares the death of the legator so no
gift and the donee accept the question of delivery of
same. possession arises.
Revocation Once a gift is made, a mere A bequest may be revoked by
declaration to revoke it by the the legator any time after
donor is not sufficient. A executing it and before his
revocation can only take place death either impliedly or
either by the consent of the expressly or by a subsequent
donee or by the intervention of will.
the court.
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Unit-V
General Principles of Inheritance of Muslim Law
Introduction
We know that we are living in a constitutional civilized society, but we have
no Uniform Civil Code in India except in Goa. Every religion practiced in India
has governed by its respective personal laws. Islamic Law of inheritance is a
mixture of the pre-Islamic customs and the rules introduced by the Prophet.
The Muslim Law of Inheritance derives its principles from four principal
sources of Islamic Law. They are as follows-
 The Holy Quran
 The Sunna (it is the practice of the prophet)
 The Ijmaa (it is the consensus of the learned men of the community on
what should be the decision over a particular subject matter)
 The Qiyas (it is the deduction based on analogy on what is right and just
in accordance with God).
Inheritance means the transfer of property to the living person from the
deceased along with any other transferable rights. Inheritance has a different
meaning in Islam. There is no particular definition of Inheritance in the Quran
but many Scholars have defined it in their own ways. According to Sir Abdur
Rahim, inheritance is the transfer of the rights and obligations of the deceased
person to his/her heirs.
Under the Indian legislative Scheme, the rules that govern inheritance under
Muslim law depend on the kind of property involved. Like, in case of non-
testamentary succession, the Muslim Personal Law (Shariat) Application Act,
1937, will govern it. On the other side, in the case of testamentary succession
(it means, the person has created his will before the death); in this case, the
Shariat law of Muslim applies for the inheritance of the property of the
deceased, which is as applicable to Shia and Sunni.
In cases where the subject matter of the property is an immovable property,
specifically situated in the state of West Bengal or property falling within the
jurisdiction of the Madras and Bombay HC, the Indian Succession Act, 1925,
shall bound on the Muslims. This exception is only applicable to testamentary
succession.
Types of Heirs:-
There are two types of heirs under Muslim law – the Sharers and the
Residuary. Firstly, the Sharers are the ones who are entitled to a certain share
in the property of the deceased and, secondly, the Residuary (as the word
Residuary itself say) are the ones who would take up the share in the property
that is left over after the Sharers have taken their part from the property.
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Total 12 relations fall under the category of Sharers in Muslim Law:

1. Husband,
2. Wife,
3. Daughter,
4. Daughter of a son (or son’s son or son’s son and so on),
5. Father,
6. Paternal Grandfather,
7. Mother,
8. Grandmother or the male line,
9. Full sister,
10. Consanguine sister,
11. Uterine sister, and
12. Uterine brother.
The share taken by each sharer will differ in some conditions. For example, a
wife of a deceased will takes 1/4th of the share in case where the couple is
without lineal descendants, and 1/8th share otherwise. A husband (in case of
succession to the wife’s estate) takes a half share in case where the couple is
without lineal descendants, and a 1/4th share otherwise. A sole daughter takes
a half share. Where the dead person has left behind more than one daughter,
all daughters jointly take 2/3rd. If the dead person had left behind sons and
daughters, then the daughters stop to be sharers and become residuary
instead, with the residue being so distributed as to make sure that each son
gets double of what each daughter gets.
Distribution of Property under Muslim Law:
Under the Muslim Law of Inheritance, the distribution of the property can be
done in two ways –
1. Per Capita Distribution – This method generally used in Sunni law.
According to this method, the property leftover by the ancestors will get
equally divided among the heirs. Therefore, the number of heirs of the dead
person will determine the amount of share for each heir in the property of the
deceased. The heir does not represent the branch from which he or she
inherits.
2. Per Strip Distribution – This method is mostly used in Shia law. According
to this method, the property of the deceased is distributed among the heirs
according to the strip they belong to. Hence, the quantum of their inheritance
also depends upon the branch and the number of persons that belong to the
branch.
General Principles of Inheritance under Muslim Law
Unlike Hindu law, there is no provision of distinction between individuals i.e.
self-acquired or ancestral property. Each property that remains within the
ownership of a person can be inherited by his successors. Whenever a Muslim
dies, all his property whether acquired by him during his lifetime or inherited
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from his ancestors can be inherited by his legal heirs. Consequently, on the
death of every such legal heir, his inherited property and property acquired
by him during his lifetime shall be transferred to his heirs.
The general principles associated with the Muslim Law of inheritance
are as follows –
1. Nature of heritable property: The meaning of heritable property is that
property which is available to the legal heirs for inheritance. After the death of
a Muslim, his properties are used for paying funeral expenses, debts and wills.
After the payment of these expenses, the remaining property is called
heritable property.
For the purpose of inheritance, the Muslim Law does not make any difference
between corporeal and incorporeal or movable and immovable property. Any
property which is in the ownership of the deceased at the time of his death
would be considered as heritable property.
2. Joint or Ancestral property: Unlike Hindu law, the Islamic law of
Inheritance does not recognize the concept of joint family or coparcenaries
property. Whenever, a Muslim dies, his properties will pass on his heirs in
definite share of which the heir becomes the absolute owner. Similarly, on the
death of such legal heir, the property owned by him will devolve among his
legal heirs and this same process continues. Unlike Hindu law, there is no
provision for Ancestral or Joint-family property. And there is also not
distinction between Self-acquired or ancestral property.
3. Birthright under the Muslim Inheritance Law: Inheritance opens only
after the death of a Muslim. Muslim law follows the principle of ‘nemo est
haeres viventis’ i.e. nobody can become an heir to a living person. It means
the legal right to inheritance of property will only arise when the death of a
deceased person will take place and not upon the birth of a child.
4. Doctrine of Representation: This Doctrine is a well-known principle
recognized by the Roman, English and Hindu laws of inheritance. According to
this principle of Representation, the son of a predeceased son represents his
father for the purpose of inheritance. The Islamic law of inheritance does not
recognize this Doctrine. It is because under Muslim law the nearer ones will
exclude the remoter ones.
5. Rights of Females: Under the Muslim law of Inheritance, both men and
women have given equal rights. On the death of an ancestor, nothing can
restrict both girl and boy child to become the legal heirs of the inheritable
property. However, it is generally found that the quantum of share of female
heir is half of that of the male heirs. The reason behind this is that under
Muslim law a female shall receive Mehr and maintenance from her husband
during marriage ceremony. Whereas, a male will only have the property of the
ancestors for Inheritance and male have the duty of maintaining their wife
and children.
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6. Rights of a Widow: Under the Shia law, a Muslim widow who does not
have any children shall be entitled to inherit one-fourth share of the property
of the deceased husband. However, a widow with children or grandchildren is
entitled to one-eighth of the deceased husband’s property. In cases where a
Muslim man gets married during a period when he is suffering from some
mental illness and without consummating the marriage, then the widow shall
not be entitled to any right over her deceased husband’s property. However,
in case if her ill husband divorces her and subsequently, he dies from that
illness, then the widow is entitled to a share of her husband’s property until
she remarries.
7. Rights of Inheritance of a child in womb: Under Muslim law, a child in
the womb of a mother at the time of his/her father’s death shall only entitle to
inherit the property if he or she is born alive. In case, if the child is born dead
then the share, which vested in him, will cease to exist and it will be presumed
that it has never existed.
8. Right of Inheritance of the stepchildren: The stepchildren are not
entitled to any right to inherit the property of their stepparents. Similarly, the
stepparents are also not entitled to inherit the property from stepchildren.
However, the stepchild is competent to inherit the property of his Natural
Father or Natural Mother. Moreover, the stepbrothers (or stepsisters) can
inherit each other’s property.
9. Escheat: It refers to the transfer of right to the government to take
ownership of estate assets or unclaimed property. It occurs when a Muslim
person dies with no wills and no heirs, then the property of a deceased shall
go to the government. The State is then considered the ultimate heir of
Property.
Conclusion
The Holy Quran says “Allah has purchased from believers their persons and
their wealth in lieu of Jannah”. Man is a keeper of the wealth that he owns
during his lifetime. But after the death of such a person, his trusteeship over
his property and wealth will get expires. And all his property should be
redistributed among his legal heirs according to the directions given by Allah
Taala. It can be concluded from the above that Islam is a religion with a
complete code of conduct and inheritance is one of them and by proper
application of Islamic Laws, it will be possible for us to make sure peaceful
environment in this world and can ensure peace in the life after death.
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Will under the Islamic Law of Inheritance in India

Introduction
There are enormous ways to make disposition of property in Hindu law as
well as in Islamic Law. Under Islamic law, a Muslim can dispose of his
property by gift, by creating a wakf or by accessing his testamentary powers
i.e. by making a Will.
The concept of a Will under Islamic law is a sort of bargain between two
different propensities. One, the view of the prophet is clear that after the
death of a person, his property has to be distributed to his heirs and this rule
is considered as divine law and any interference to it is unacceptable. On the
other hand, it is a moral duty of every Muslim to make appropriate
arrangements for his property after his death.
Meaning and nature of Will
Conventionally, a Will, also called ‘testament’ is an implement which enables a
person to dispose of his own property to someone whom he wants to give
after his death. A Will comes into effect only after the death of the person who
created the Will. A Will is a legal declaration of transfer of property by a
person after his death.
In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The person
who executes the Will is called ‘legator’ or ‘testator’ and the person in whose
favour the Will is made is known as ‘legatee’ or ‘testatrix’. A very famous
Muslim scholar ‘Ameer Ali’ defined a Will from the point of view of Mussalman
as a divine institution because its exercise is regulated by the Holy Quran. At the
same time, Prophet had proclaimed that such testamentary powers must not
exert any damage to the lawful heirs.
There is a strict rule in Islamic law that governs the validity of a Will.
According to this rule, a Muslim can make a Will in favour of anyone, only to
the extent of one-third of his total property. If the Will is made beyond one-
third of the property, the consent of the legal heirs is mandatory no matter in
whose favour the Will is made.
It can be hypothesized that a Will is a kind of gratuitous transfer of ownership
made through a testamentary document which comes into play after the death
of the legator. As far as the legal concept of Will is concerned, basically it is a
gift testamentary.
Essentials of a valid Will
If we talk about the legal validity of a Will under Muslim law, there are certain
requisites which make a Will apt and capable of taking effect. Thus, the
following discussed requirements must be satisfied:
 The legator must be competent to make a Will.
 The legatee must be capable of taking such endowment.
 P a g e | 54

 The property which is endowed by the legator must be a

bequeathable property.
 Free consent of the legator and the legatee.
 The legator must possess testamentary rights over the property.
Who can make a Will?
In order to constitute a valid Will, the competency of the legator is the
foremost requirement. A legator is considered to be capable to make a Will if
he holds the following discussed features.
o He must be a Muslim
A Will made by a Muslim only is considered as an authentic Will under Islamic
law. If a legator is Muslim at the time of execution of the Will then only the
Will is governed by the Muslim Personal Law.
In a case where a Muslim has married under the Special Marriage Act, 1954,
the Will made by such Muslim is regulated by the provisions of the Indian
Succession Act, 1925 and not by the Muslim Personal Law.
A situation may arise where the legator is a Muslim when he executed the Will
but afterwards renounced Islam, thus recognized as a non-muslim at the time
of death. A Will created by such a Muslim is considered as a valid Will under
Muslim law.
Since there are two schools of Muslim with different views, so, it must be
noted that a Will is governed by the rule of that school to which the legator
belongs at the time of the declaration of the Will. For example, if a legator is a
Sunni Muslim at the time of the creation of the Will, then the Sunni Laws of
Will is pertinent.
o Soundness of mind
When the Will is being made, the legator must be sane. Under Muslim law, it
has been quoted that a legator must possess a perfect ‘disposing mind’ at the
time of execution of a Will. In other words, a legator must be competent to
understand his actions and the legal consequences of what he is doing not
only for the particular time period when the Will is being made but also
sustain the same till his death.
If a legator is of sound mind when the Will is declared and subsequently turns
insane and remains the same till death then, the Will made by such legator
becomes void. On the other hand, if a legator executed a Will while he is
insane then also the Will is considered as null and void even if he recovers the
insanity afterwards and remains the same till death.
A Will made by an insane during his lucid interval will remain valid only if the
insanity does not last for more than a period of 6 months. An insane person
cannot ratify the Will after reattaining his sanity.
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o Age of majority
The legator must attain the age of majority at the time of execution of the Will.
In general, the age of majority under Muslim law is regulated by the Indian
Majority Act, 1875, with the exception in the case related to marriage, dower
and divorce.
Under the Indian Majority Act, the age of majority is specified as 18 years in
ordinary case and 21 years if the person is under the supervision of Courts of
Wards. Any Will executed by a minor is considered to be void. The validity of
such Will is suspended till the legator attains majority. Therefore, in order to
create a valid Will, a legator should be of 18 years or 21 years as the case may
be. As soon as the legator turns into a major and ratifies the Will, the Will
becomes valid in nature.
o Attempt to suicide by Legator
If a Will is executed by a person who has attempted to commit suicide, such a
Will is contemplated as void under the Shia law. The logic behind this rule is
that if a person has attempted suicide, he cannot be held in his normal state of
mind rather, he is assumed to be mentally unstable and disturbed.
For example, a person who takes poison or seriously hurt himself and
executes a Will before his death then, the Will is declared as null and void.
However, under Sunni law, a Will executed in such circumstances is
completely valid. Moreover, both Shia and Sunni law upheld the validity of a
Will declared by a legator before attempting to commit suicide.
o Consent of Legator
While executing a Will, the free consent of the legator is mandatory. Any Will,
if found to be executed by a legator under coercion, undue influence or fraud
Will be treated as null and void and the legatee Will not be entitled to get any
property under that Will.
The free consent is generally presumed by the law unless proved. But in case
of pardanashin lady, the free consent is not presumed and the legatee has to
prove that the Will has been executed by the lady exercising her independent
discretion.
Who can take property under a Will?
Besides competency of legator, there is one more essential requirement of a
valid Will and that is the competency of the legatee. The following are the
characteristics of a legatee who is capable of taking a Will executed by a
legator.
o He must be a person in existence
A legatee is competent to take a Will on condition that he must be living at the
time of death of the legator. This is because a Will comes into effect only after
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the death of the legator and not when it is made by the legator. Thus, a legatee
has to be a person in existence at the time of death of the legator.
A Will can be declared in favour of a non-muslim, minor or an insane person.
What is important is that a legatee must be in existence and competent to hold
the property. The age, sex, caste, religion, gender and state of mind is
insignificant in order to become a lawful legatee. A charitable or religious
institution is also capable legatee and any Will in favour of it is lawful.
o Child in mother’s womb
A child in a mother’s womb is treated as a living person and thus, is a
competent legatee under Islamic law under two conditions. Firstly, he must be
in existence in the mother’s womb at the time of declaration of the Will.
Secondly, the child must be born alive within six months from the date of
execution of Will under Sunni law and within 10 months under Shia law.
o Murderer of Legator
A Will comes into effect only after the death of legator. Thus there is a
possibility that an avaricious and impatient legatee may cause the death of the
legator in order to grab the property as soon as possible.
A legatee kills or causes the death of the legator either intentionally or
unintentionally is not allowed to take the Will and generally disentitle to take
the property. However, under Shia law, if a legatee causes the death of the
legator either unintentionally, negligently or accidentally, then he is qualified
to take the property and the Will is treated as a valid Will.
o Consent of Legatee
Before transferring legal title to the legatee under a Will, it is important to
take the consent of the legatee to know whether he wants to accept the Will or
not. The acceptance can be expressed or implied. A legatee has a complete
right to disclaim the Will. So, if a legatee declines to own any property
bequeathed to him, then the Will is considered to be incomplete and invalid.
o Joint Legatee
Sometimes, legator issues Will jointly in favour of several legatees. In such
circumstances, the legatees are known as joint legatees. A Will can be made in
favour of joint legatees in two ways-
Where the share is specified
If the share of all the legatees is specified explicitly by the legator himself
under the Will, then there arises no point of confusion regarding the share.
The property Will be distributed as per the ratio mentioned by the legator in
the Will and each legatee Will get the respective share allotted to him.
For example, if a legator executes a Will in favour of his three sons,
mentioning that the ratio of the distribution of S1: S2: S3 should be 3:2:1
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respectively. Here the property Will be distributed among the three sons in
the same ratio as specified by the legator.
Where the share is not specified
It might be possible that under some cases, the share of each legator is not
explicitly described. In such cases, applying the general rule, the property is
supposed to be divided equally among the legatees. When a Will is made in
favour of a class of persons, such class is treated as a single legatee only and
each person gets the equal property.
For example, if a legator makes a Will under which the property is to be given
to a mosque and the poor people of the locality of the legator, then half of the
bequeathable property Will be given to the mosque and the remaining half
Will be distributed equally among the poor people in the locality.
Formalities of a Will
Muslim law does not expressly propound any specific formalities for the
execution of the Will. The intention of the legator plays a crucial role in
validating a Will. The intention must be explicit, clear and unequivocal in
nature.
A Will can be made either orally or in writing or even by gestures.
Oral Will
A simple oral declaration is also considered as a valid Will. It is not abiding to
follow any particular process or formality in order to constitute a Will. A mere
oral declaration is enough. But the burden to corroborate such Will is very
hefty. Eventually, an oral Will has to be proved with extreme fidelity with
precision in date, time and place.
Written Will
For a Will to be declared in writing, no specific form is described. A Will is
valid even if it is not signed by the legator or attested by the witnesses. The
name of the document is immaterial. If it possesses the essential
characteristics of a Will, then it Will be treated as a valid Will.
Will made by Gestures
Under Islamic law, a Will may be made by gestures. For example, if a sick
person makes an endowment and cannot speak due to weakness, gives a nod
with his head in a comprehensive way and if it is understood what he is trying
to convey and subsequently, he dies without regaining his ability to speak, the
bequest is valid and lawful.
The subject matter of a Will
Any type of property, corporeal or incorporeal, moveable or immovable, can
constitute the subject matter of the Will. But a legator can bequest a property
in a Will only under two conditions-
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 If he owns the property at the time of his death.

 The property must be transferable.
A property bequeathed under a Will may or may not exist at the time of
execution of Will but it is mandatory that the bequeathed property must be in
ownership of the legator at the time of his death. The logic behind this rule is
very simple. A Will comes into operation after the death of the legator and the
transfer of property to legatee takes place from the date of legator’s death and
not from the date of execution.
For example, ‘A’ executes a Will giving all his property to ‘B’. Suppose ‘A’ owns
a house at the time of execution of Will but at the time of his death, he owns a
car as well. Thus, ‘B’ is entitled to have the house as well as the car under the
Will.
Principle limitations on testamentary powers
Contrary to the general rule, there are certain restrictions on the testamentary
powers of a Muslim. There are two types of restrictions:
 With respect to the extent of the property that can be bequeathed
If a Muslim desire to make a Will of his property, he is allowed to do so only to
the extent of one-third of the bequeathable property. This extent of one-third
is calculated after the expenses of his debts and funeral etc. Any bequest
exceeding the limit of one-third Will not come into effect unless the heirs of
the legator give their consent to it. In case the heirs do not give their consent,
then the bequest Will be valid to the extent of one-third only and the
remaining two-thirds Will be transferred through intestate succession.
A Muslim who does not has any heir may bequest his property to anyone and
in whatsoever amount he may desire to give. But if a Muslim bequest his
property to a non-heir or a stranger, then the consent of the legal heirs is of
utmost significance if the property exceeds the one-third of his total property.
The reason is to protect the rights and interests of the legal heirs which may
adversely affect in case of such bequest. If heirs give their consent to give an
entire property to a stranger, the Will is valid otherwise it is valid to the limit
of one-third.
 With respect to the legatees to whom the property is given
Furthermore, the second restriction comes into action only where the legatee
is one of the heirs of the legator. Whether the property bequeathed is one-
third or less, the consent of the other legal heirs of the legator is a dominant
factor in order to establish a valid Will. The ground of this rule is that a legator
may make a bequest in favour of one of the legal heirs giving more precedence
to him which may result in a feeling of jealousy and enmity among the other
heirs.
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On the other hand, Shia law doesn’t discriminate between an heir or a non-
heir. A bequest can be made in favour of anyone till the extent of one-third of
the property is treated to be valid. Thus, it can be concluded that Shia law
provides ample powers to make a Will as compared to Sunni law.
Construction of a Will
Generally, a Will has to be construed in accordance with the rules laid under
Islamic law and scrutinizing the language and intention of the legator. A Will is
a document which is made by a person during his lifetime and comes into
effect after his death. So, a Will must be interpreted to accomplish the
intentions of the legator after his death. At certain times, the language may not
be clear and the intention of the legator is ambiguous. In such circumstances,
it is left to the discretion of the heirs to elucidate such Will in whatever way
they want.
For example, a legator bequests a house and a shop for his two sons but
doesn’t specify what is given to whom. Here, the content of the bequest is
perplexed. Thus, it is up to the option of heirs to mutually decide who wants to
take what.
Revocation of a Will
Muslim law grants an emancipated right to legator exercising which he can
revoke the Will or any part of the Will executed by him anytime. Similarly, he
can add something reasonable to the Will as well.
A legator may revoke the Will either expressly or impliedly.
Express Revocation
An express revocation may be done in oral or in writing. For example, if a
legator bequests some of his property to a person and by making a
subsequent Will he bequeaths the same property to another person, then the
first Will is considered to be revoked automatically.
If legator burns or tears off a Will executed by him, then also the Will is said to
be expressly revoked. It is to be noted that mere denial of a Will is not
sufficient to amount a Will as revoked. Some action must be taken by the
legator which indicates his clear intention for the revocation of the Will.
Implied Revocation
Any act done by legator contrary to the bequest Will revoke the Will. In other
words, an act which leads to the annihilation of the subject-matter of the
bequest is considered as an implied revocation of the Will. For example, if a
legator executed a Will giving land to a person and builds a house on the same
land, or if he sells or gifts that land to someone else, then consequently, the
Will is said to be impliedly revoked.
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Abatement of Legacies
When a bequest exceeds the limit of one-third and heirs deny to give their
consent, the ratio of the legatees is subsidised in order to maintain the rule of
bequeathable one-third. This reduction in the legacy of the legatees is known
as abatement of legacies. Under the Sunni law, the abatement occurs in a
rateable manner (proportionally) whereas in Shia law it is done preferentially.
Rateable distribution
This rule of abatement is followed in under Sunni law. In this method, if a
Sunni Muslim bequeaths his property in a certain ratio which the limit of one-
third, then the abatement is done in the same ratio in which the property was
distributed.
For example, ‘T’ is a Sunni Muslim who makes a Will in favour of A, B and C.
Under the Will, he directs to give Rs. 4,500/- to A, Rs. 3,000/- to B and Rs.
1,500/- to C and his total property amounts to Rs. 9,000/-. Now, as per the
rule, only one- third of the total property is bequeathable. So, one-third of Rs.
9,000/- equals to Rs. 3000/- which is the required bequeathable property. It
can be observed that the legator divided the property among A, B and C in the
ratio 3:2:1 respectively. Applying the rateable abatement rule, the shares of A,
B and C Will be reduced in the same ratio i.e. 3:2:1. Thus, the share of A Will
become Rs. 1,500/-, the share of B becomes Rs. 1,000/- and the share of C
turns to be Rs. 500/-.
Preferential distribution
The Shia law recognizes a different rule for abatement. According to this
school, if the bequeathable property exceeds one-third of the total property
and heirs refuse to give their consent, then the rule of preferential distribution
is applied. This implies that no reduction Will be done in the shares of the
legatees rather the share Will be given on the preference.
The preference is decided by the order in which the name of the legatees is
mentioned under the Will. The legatee whose name is mentioned first Will get
his full share as specified in the Will and the remaining Will be passed in
favour of the second legatee and so on. As soon as one-third of the property is
finished, the distribution comes to its end. Therefore, it can be concluded that
either a legatee Will get his full share or he Will get nothing.
For example, ‘T’ is a Shia Muslim who executed a Will under which the share
of A is Rs. 2,000/-, the share of B is Rs. 1,000/- and share of C is also Rs.
1,000/-. The total property is Rs.9,000/- which is beyond one-third of the
bequeathable property. So, one-third of Rs. 9,000/- comes out to be Rs.
3,000/- which is the required bequeathable amount. Now, according to the
preferential rule, A Will get his full share i.e. Rs. 2,000/-, B Will get the
remaining Rs. 1,000/- which constitutes his full share and C Will not get any
share because the bequeathable property exhausted after the share of B.
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Comparison of Sunni and Shia law of Will

The two schools of Muslim law differs at various points when the concept of
wasiyat (Will) is considered. Following is a comparison table depicting the
points of differences between Sunni and Shia law of Will.
Basis for Sunni law Shia law
Comparison
A bequest to an It is invalid even to the one-third It is valid up to one-third of
heir of property without the consent property and for more than
of other heirs. one-third, consent is a must.
Time of Consent Consent of heirs must be given Consent can be given either
after the death of the legator. before or after the death of the
legator.
Legatee causing If legatee commits murder or If the death is caused
the death of causes the death of the legator, intentionally, legatee can’t take
Legator he cannot take legator’s property the property whereas if the
under a Will. death is caused accidentally or
negligently, then he can take
the property.
Suicide attempt A Will is valid if a legator A Will is valid only if the legator
by Legator commits suicide before or after commits suicide after executed
the execution of the Will. the Will.
Child in Womb Bequest for an unborn child is Bequest for an unborn child is
valid if he is born within 6 valid if he is born within 10
months of making the Will. months of making the Will.
Abatement of The rule of rateable distribution The rule of preferential
Legacies is followed. distribution is applied.
Legatee dies If so happened, the legacy reverts The legacy Will lapse only
before Legator to the legator. when legatee dies without
leaving an heir or the legator
revokes the Will himself.
Conclusion
A Will is a device which confers right to property to legatee in a gratuity
manner, postponed till the death of the legator. It provides an opportunity for
a legator to correct the law of succession to some extent. This is because it
empowers some of the relatives to obtain a share in the property who are
legally from excluded from inheritance under Islamic law. The Islamic law of
Will allows a person to devolve his property upon a person of his own choice.
But simultaneously, it maintains a rational balance between the law of
inheritance and devolution of property under a Will.