Indian Succession Act, 1925

Dr. Kavita Goel

Intestate succession + Testamentary
Succession
Application

Hindus: Applicable to testamentary Succession

Muslim: Applicable neither intestate nor testamentary

Christian: Applicable to both testamentary and intestate succession

Parsis: Applicable to both testamentary and intestate succession

 OF DOMICILE (sec 4 to 19)
intention of person to settle at place permanently
Application

This Part shall not apply if the deceased was a Hindu, Muhammadan,
Buddhist, Sikh or Jaina.
Law regulating succession to deceased person’s
immoveable Property

• Law of place where immovable property is situated

A, dies in France, leaving Immoveable property in India, The
succession to the property is regulated by the law of India
Law regulating succession to deceased person’s
moveable Property

• Law of the country in which such person had his domicile at the
time of his death
• If a person dies leaving moveable property in India, in the absence
of proof of any domicile elsewhere, succession to the property is
regulated by the law of India.
• A, having his domicile in India, dies in France, leaving moveable
property in France, moveable property in England, and property,
both moveable and immoveable, in India. The succession to the
whole is regulated by the law of India.
Types of Domicile

Domicile by birth or origin (sec 7-9)

Domicile by Choice (sec 10-13)

Special Mode of acquiring Domicile in India(sec11)

Domicile of wife on marriage (sec 15-16)

Acquisition of New domicile by choice

• A man acquires a new domicile by taking up his fixed habitation in

a country which is not that of his domicile of origin
For examples
• A, whose domicile is in England, goes to Austria, and enters the Austrian
service, intending to remain in that service. A has acquired a domicile in
Austria
• A, whose domicile is in the French Settlement of Chandernagore, is compelled
by political events to take refuge in Calcutta, and resides in Calcutta for many
years in the hope of such political changes as may enable him to return with
safety to Chandernagore. He does not by such residence acquire a domicile in
India
Special mode of acquiring domicile in India sec 11

• by making and depositing in some office in India appointed in this

behalf by the State Government, a declaration in writing under his
hand of his desire to acquire such domicile; provided that he has
been resident in India for one year immediately preceding the time
of his making such declaration
How to obtain a Domicile Certificate in India?

• Has been a resident of specific city/town/village for the past 3

years
• Owns a house/property/land in India
• A name should be included in the voter list
• Owns a ration card in the city
• Where: Department of Revenue, Government of NCT.-online or
offline
Of Wills and Codicils
Will and codicil

Sec 2(h) “will” means the legal declaration of the

intention of a testator with respect to his property
which he desires to be carried into effect after his
death.

Sec 2(b) “codicil” means an instrument made in

relation to a Will, and explaining, altering or adding
to its dispositions, and shall be deemed to form part of
the Will
Person capable of making wills (sec 59 –62)

Major

Sound mind

Deaf, dumb or blind

Married or unmarried

Sanity in intervals

State of mind from intoxication or illness

Free consent
Types of will

Privileged Wills:
Unprivileged soldier in warfare,
Wills airman so engaged
or mariner at sea
Execution of unprivileged wills (sec 63-64)

Signature of Intention to
testator make a will

Incorporation Attestation by
of papers by two or more
reference witnesses
Execution of Privileged Wills -Oral or in writing (sec 65-66)
• Writing by hand requires no sign
• Written by other and sign by testator requires no attestation
• Written by other without signature requires evidence that it was written under testator's guidance
• written instructions for the preparation of his will, but has died before it could be prepared
• in the presence of two witnesses, given verbal instructions for the preparation of his will, and they
have been reduced into writing in his lifetime, but he has died before the instrument could be
prepared
• A will made by word of mouth shall be null at the expiration of one month after the testator,
being still alive,
Of the Attestation, Revocation, Alteration
and Revival of Wills
(sec 67 to 73)
Gift to attesting
witnesses or to
his/her spouse
Valid will but void as regard to
witness or his/her spouse
Obliteration, interlineation or alteration in
Unprivileged will (sec 71)

• Execution of alteration like execution of will

• Execution in the margin or on some other part of the will opposite
or near to such alteration, or at the foot or end of or opposite to a
memorandum referring to such alteration, and written at the end or
some other part of the will.
Revocation of unprivileged will or codicil (sec 70)

By marriage

By another will or
codicil

Intention to revoke in
writing with execution

By burning, tearing or
destroying
Revival of unprivileged
will (sec 73)
Re-execution
Codicil
Revocation of privileged will or codicil (sec 72)

• by an unprivileged will .or codicil

• an intention to revoke it
• by the burning, tearing or otherwise destroying
A has made an unprivileged will. Afterwards, A,
being entitled to make a privileged will, makes a
privileged will. Is this a revocation?
Construction of will

• Indian succession act 1925

Types of Bequest

Void Onerous Contingent Conditional precedent Conditional subsequent

Void Bequests

• Impossible condition
• Illegal or immoral condition
• Legatee not in existence on the day of death of testator
• The whole interest to person who are not present with prior
bequest on date of death of testator
• Rule against perpetuity
Onerous bequest

One Bequest Different

Sec 122 and
with bequest in
123
obligation same will
Contingent bequest

• Happening and non- happening of uncertain event

• Cannot take effect before happening or non-happening
Conditional bequest

• Precedent sec 128

• Becomes impossible
• Second on failure of one

• Super-added or subseqent
• Original or ulterior bequest
• Original not affected if ulterior is not valid because of void condition
Types of leagcies

General Specific Demonstrative

Legacies Legacies legacies
Specific Legacy sec 142-149

• Specified part of the property which is distinguished from other

part of the property
• Certain sum where it is invested not a specific legacy
• Bequest of certain amount of stock
• bequest of money by proceeds
• Bequest to two or more
Demonstrative Legacy sec 150 -151

• Means
• Certain sum of money
• Certain quantity
• Stock or fund

• Bequest to two or more

Order of Payment
Ademption

Specific legacy Demonstrative legacy

• Conversion
• Conversion
• Property to be received from third party-
part or full • Specific and demonstrative-
• Removal from place received
• Change in nature of property because of
law • Removal from place
• Change without knowledge of testator
• Lent to another
• Sold and replaced
Gift in Contemplation of death sec 191

• Movable property only

• Contemplation of death
• Illness and expectation to die shortly of his illness

• Resumption in case of recovery

Differences

Specific legacy Demonstrative Legacy

• To be paid first • To be paid after payment of
specific legacy
• Ademption on conversion
• No ademption on conversion