DR.

RAM MAHOHAR LOHIYA NATIONAL LAW

UNIVERSITY

FAMILY LAW-II

(FINAL DRAFT)

DIFFERENCE OF WILL UNDER HINDU AND MUSLIMS

LAWS

SUBMITTED BY: UNDER THE GUIDANCE OF:

PEEYUSH GAUTAM MRS. SAMREEN HUSSAIN

SECTION: ‘A’, 180101096 ASSISTANT PROFESSOR (LAW)

B.A.LL.B. (Hons.), SEMESTER IV DR. R.M.L.N.L.U.

2019-2020

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 CONTENTS

Contents 2

INTRODUCTION 3

WHAT IS A WILL? 3

ESSENTIAL FEATURES OF A WILL 4

HINDU LAW OF WILLS - AN OVERVIEW 5

Who Can Make A Will? 5

For Person of unsound mind 5
RESTRICTIONS ON A WILL 5

Transfer to Unborn Persons is Invalid 5

Transfer to a class some of whom may come under above rules 6
Transfer to take effect on failure of prior Transfer 6
MUSLIM LAW OF WILLS: AN OVERVIEW 7

Wills or Wasiyat 7
CAPACITY TO MAKE A WILL- WHO CAN MAKE WILLS? 7
WHAT CAN BE BEQUETHED ? 8

QUANTITATIVE LIMITS 8

SUBJECTS OF THE WILL 9

WHEN DOES A MUSLIM WILL BECOME EFFECTIVE 10

ABATEMENT OF LEGACY BY MUSLIMS 10

EXECUTOR 11
CRITICAL ANALYSIS OF THE DIFFERENCE BETWEEN WILLS – HINDU LAW AND MUSLIM LAW 11

GOVERNING LAW 11
RESTRICTION ON DEVOLUTION OF PROPERTY – 11
DEATH BED GIFT 12
REVOCATION 12
CONCLUSION 13

BIBLIOGRAPHY 14

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 INTRODUCTION
There are two types of succession testamentary and intestate succession. In intestate succession,
a person dies without making a will, or without deciding where and to whom his property will
go. But contradictory to this, in testamentary succession a person before dying makes a ‘will’
and decides to whom and how much his property will go. In layman’s termwill is the document
where the person concerned records his/her wish about his/her property. There are different sets
of laws in both Hindu and Muslim law regarding the testamentary succession. Hindu law don’t
have a very substantive history about making wills and is governed by statutory law, whereas
Muslim laws are entirely based upon personal laws which in turn are based upon the religious
sayings. The project tries to underline the basic difference between the laws regarding wills in
both Hindu and Muslim Spheres.

WHAT IS A WILL?
Definition of Will & Other Related Terms

Will: A Will is a solemn document by which a dead man entrusts to the living to the carrying out
of his wishes. S. S.2 (h) of Indian Succession Act, 1925 provides that Will means the legal
declaration of the intention of a person with respect to his property, which he desires to take
effect after his death. A will is not an instrument of transfer of property by sale, gift, exchange or
mortgage or lease or assignment, nor is it an agreement. These transactions need two living
person to execute them,whereas a will is a unilateral declaration of a person fixing his own line
of succession to his estate on his demise.

Codicil is an instrument made in relation to a Will, explaining, altering or adding to its

dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small
changes in the Will, which has already been executed.

An executor is appointed by the testator, as distinguished from an administrator who is appointed

by the court. Where the Will confers the powers to collect the outstanding, pay debts and manage
the properties, the person can be said to be appointed as an executor by implication.

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Probate is an evidence of the appointment of the executor and unless revoked, is conclusive as
to the power of the executor. The grant of probate to the executor however does not confer upon
him any title to the property. Is basically a copy of a will certified under the seal of a court of
competent jurisdiction with a grant of administration to the estate of the testator.

Letter of Administration is a certificate granted by the competent court to an administrator

where there exists a Will authorizing him to administer the estate of the deceased in accordance
with the Will. If the Will does not name any executor, an application can be filed in the court for
grant of Letter of Administration for the property.

Attesting means signing a document for the purpose of testifying the signature of the executants.

ESSENTIAL FEATURES OF A WILL

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

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

Posthumous effect : unlike other documents a will speaks from the death of the teatator. 2 It is to
be released only to the testator himself or, after his death, to an authorized person who produces
the Death Certificate .Since a testamentary disposition always speaks from the grave of the
testator, the required standard of proof is very high. The initial burden of proof is always on the
person who propounds the Will.

1 Modern Hindu Law, R.C. Nagpal, 2nd ed. Pg 997.

2PentakotaSatyanarayana v. PentakotaSeetharatnam(2005) 8 SCC 67.

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 HINDU LAW OF WILLS - AN OVERVIEW

WHO CAN MAKE A WILL?

S.59 of ISA3 provides that every person who is of sound mind and is not a minor can make a
Will.

For Person of unsound mind

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

1) The testator must understand that he is giving away his property to one or more objects

2) He must understand and recollect the extent of his property

3) He must also understand the persons and the extent of claims included as well as those who
are excluded from the Will. In Swifen v. Swifenit was held that the testator must retain a degree
of understanding to comprehend what he is doing, and have a volition or power of choice.

RESTRICTIONS ON A WILL

TRANSFER TO UNBORN PERSONS IS INVALID

Where a bequest is made to a person by a particular description, and there is no person in
existence at the testator’s death who answers that description, the bequest is void. S.113 of ISA
provides that for a transfer to an unborn person, a prior interest for life has to be created in
another person and the bequest must comprise of whole of the remaining interest of the testator.
In Sopher v. Administrator-General of Bengal4 a grandfather made the bequest to his grandson
who was yet to be born, by creating a prior interest in his son and daughter in law. The Court
upheld the transfer to an unborn person and the Court held that since the vested interest was

3 Indian Succession act, 1925.

4AIR 1944 PC 67

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transferred when the grandsons were born and only the enjoyment of possession was postponed
till they achieved the age of twenty one the transfer was held to be valid.

In GirishDutt v. Datadin5, the Will stated that the property was to be transferred to a female
descendant (who was unborn) only if the person did not have any male descendant. The Court
held that since the transfer of property was dependent on the condition that there has to be no
male descendant, the transfer of interest was limited and not absolute and thereby the transfer
was void. For a transfer to an unborn person to be held valid, absolute interest needs to be
transferred and it cannot be a limited interest.

TRANSFER TO A CLASS SOME OF WHOM MAY COME UNDER ABOVE RULES

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

A number of persons are said to be a class when they can be designated by some general name as
grandchildren, children and nephews. In Pearks v. Mosesley6 defined gift to a class as a gift to all
those who shall come within a certain category or description defined by a general or collective
formula and who if they take at all are to take one divisible subject in certain proportionate
shares.

TRANSFER TO TAKE EFFECT ON FAILURE OF PRIOR TRANSFER

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

5AIR 1934 Oudh 35.

6(1880) 5 App Cas 714.

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 MUSLIM LAW OF WILLS: AN OVERVIEW

WILLS OR WASIYAT
Wills or bequest[s] or Wasiyat derive their authority and sanctity from the sacred texts of the
Quran.

“It is prescribed to you when death approaches any one of you and that he is to leave any wealth
behind, he should bequeath equitably to his parents and kindred.”

“And such of you as feel the approach of death and are to die and leave wives behind shall
bequeath for their wives a year’s maintenance without requiring them to quit their homes.”

DurrulMukhtar defines will as “will is an assignment of property to take effectafter one’s

death.”7 In words of Hedaya“wasiya” tmeans an endowment with the property of anything after
death-as if one person should say to another, give this article of mine, after my death, to a
particular person.”8 And Tyabji says “the legal declaration of the intentions of a Muslim with
respect to his property, which he desires to be carried into effect after his death.”9

Wills can be made orally or in writing. The only requisite is that the intention of the testator
should be clear; meaning thereby a dumb person, or a person who is unable to speak can make
valid wills through gestures but the gestures should be clear and unambiguous.

The essentials of the will are:

1. The testator must be competent;

2. The bona fide conditions should be clearly expressed;
3. It must be intended to operate after his/her death;
4. The quantitative limits must be observed (1/3rd of the property);
5. The qualitative requisites of the subject-matter of the will- the property- are satisfied; and
6. The legatee must be competent to take the benefit.

CAPACITY TO MAKE A WILL- WHO CAN MAKE WILLS?

Any Muslim can make the will if he is
7Parasdiwan, pg 209.
8Rashid p. 327.
9 Based on the definition given in the Indian Succession 1925, S. 2.

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 1. In the full possession of his senses at the time i.e., of sound mind. A will made by an
insane person is not valid. If he makes it at a time when he was in full senses but again
relapses to insanity and that condition lasts for at least six months, the bequest will
become invalid, otherwise not.
2. He must be of the age of majority: age of majority in the Muslims is regulated by Indian
Majority Act, under which the age of majority is eighteen ordinarily and in some cases
completion of twenty-first year where the guardian of the minor is appointed under
Guardians and Wards act.
3. He must not be indebted to an extent that his debt is equivalent in value to his whole
property, the bequest will not be lawful unless the creditors relinquish their claims. 10
4. He must not be acting under compulsion or under influence or in jest, wills made by a
person acting under influence or compulsion is void.11
5. A minor can also make wills but is validity would be postponed to the event when, after
attaining majority, he ratifies it.12

WHAT CAN BE BEQUETHED?

The subject matter can be:

1. Corpus of a property, existing at the time of the testator’s death.(could be non-existent at

the time of the making of the will)
2. The usufruct of a property for a limited period of time or for lifetime.
3. The vested remainder. For example A bequeaths the usufruct of the property to B, and
then the whole of the property to C. C has vested remainder in the property.

QUANTITATIVE LIMITS
A bequest can be only to the extent of a third or 1/3rd of the testator’s property but not to any
further extent.A bequest to any amount exceeding 1/3rd of the testator’s property is not valid.
One third is calculated after deducting any debts, and funeral expenses. Where, however, there
are no heirs or when all the heirs agree and give their consent the one-third limit may be
10Rashid, pg 329.
11 Syed khalisrashid’smuslim law, pg 329.
12Rashid, 329.

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exceeded.13Where the Will is in favour of non-heirs or for a pious or charitable purpose, it is
valid and operative only in respect of one-third of the testator’s estate without the assent of the
heirs and in respect of more then one-third with their consent.

SUBJECTS OF THE WILL

Disposition by a Muslims in favour of any of his heirs not consented by all other heirs after his
death is void. A bequest to a heir is not valid unless the other heirs consent to the bequest after
the death of the testator. The policy of this law is to prevent the testator from interfering by Will
with the course of devolution of property according to law among his heirs, although he may
give specified portion as much as a third to a stranger. The reason that a bequest in favour of a
heir would be an injury to other heir as it would reduce their share, and would consequently
induce breach of the ties of kindred. The bequests in excess of the bequeathable third and/or in
favour of any heir, are validated and will be given effect to if after the testator‘s death the heirs
whose; rights are affected by such dispositions consent thereto, expressly or impliedly.

In Salayjee v. Fatima Bibi,14 it was observed by their Lordships that the Mohammedan law does
not allow a testator to leave legacy to any of his heirs unless the other heirs agree. It was further
held that the burden of proving the consent was on party claiming under the Will. Thus there is
no doubt that bequest under Mohammedan law to an heir even to the extent one-third cannot be
upheld unless the other heirs consent to the, bequest after the death of the testator.

À bequest to a person entitled to succeed as heir to the prejudice of the other heirs is void in
Mohammedan law. An unfair distribution would be an injury to the other heirs and induce a
breach of ties kindred.15 But a bequest in favour of an heir may be validated if other heirs give
their consent. If only some of the heirs give their assent, it may bind their shares only.16 The
consent must be given after the death of the testator. If the heirs are minors at the time of
testator‘s death, consent must be given only after attaining majority. A guardian is not competent
to give consent on behalf of a minor. 17 A bequest may be made for the benefit of any institution

13Allah Baksh v. Md. Umar. AIR 1992 Lah 444.

14AIR 1922 PC 391.
15Abdul Rahmanv. Uthumansa, AIR 1925 Mad 997.
16Salayjeev. Fatima, AIR 1922 PC 391.
17Ghulam Mohammad v. GhulamHussain, ILR 54 All 93 (PC).

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or in favour of any person or jointly of more-than one capable of holding property provided that
the legatee is in existence at the time of the testator‘s death. A bequest in favour of an unborn
person is void unless such person is child in the womb and is born within 6 months of the date of
the Will. The Shia Law, however, recognises the bequest to a child in the womb if it is born more
than 6 months after the date of the Will but within the longest period of gestation from the date
of the bequest.

WHEN DOES A MUSLIM WILL BECOME EFFECTIVE

A Muslim will becomes effective and the title to the property bequeathed is completed only with
the legatee‘s acceptance express or implied, after the death of the testator. If a legatee accepts a
bequest after the death of the testator it is valid even if he may have rejected it during his life
time. If however the legate survives the testator and dies without assenting to the Will the assent
is presumed.

ABATEMENT OF LEGACY BY MUSLIMS

Where the legacy exceeds the limit permitted by the law, the legacy abates in the following
manner:

The bequest will be divided into those for pious purposes and those for other purposes and a
proportionately reduced portion will be allotted to each side. In the case of bequest for pious
purposes, following priority shall follow:

(a) Bequests for faraiz, that is, for the purposes of expiation ordained in the Quran. They, are (i)
Haj (pilgrimage); (ii) Zakat (charity of a portion for the poor and (iii) expiation, e.g. for prayers
missed. The priority will be in the same order.

(b) Bequests for wajibat, that is, for purposes which are not expressly ordained but which are
considered to be necessary and proper; for example, alms of fitr and charity on the day of
breaking the fast.

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(c) Bequest for nawafil, that is, bequests of a voluntary nature, e.g., non-obligatory charity to the
poor, the building of mosques or voluntary pilgrimage, etc. In the case of bequests made for
secular purposes, priority not observed; they are reduced rateably.18

EXECUTOR
The testator may appoint any person to carry out the directions of the testator. He is called the
executor. He may be a man or woman, a stranger, or a relative. The appointment may be for a
specific purpose or may be general. If a testamentary disposition is invalid, the appointment of
the executor would remain valid so far as the guardianship of minor children and their education
are concerned. It is the duty of the executor to pay the funeral expenses, the debts and the
legacies, and to administer the estate generally.

CRITICAL ANALYSIS OF THE DIFFERENCE BETWEEN WILLS – HINDU

LAW AND MUSLIM LAW

GOVERNING LAW
Most of the jurisprudence on Hindu testamentary succession is statutory, codified in the form of
the Hindu Succession Act, 1956 and the Indian Succession Act, 1925. On the other hand, the
Muslim law on succession is entirely personal and traditional in nature, emanating from the
sayings in the holy Quran and mandates of the Sharriat.

RESTRICTION ON DEVOLUTION OF PROPERTY –

Hindu testamentary law has following restrictions

Firstly, the property to be divested has to be the testator's self acquired property or share in
ancestral property if partition has taken place, i.e., there should be absolute ownership of the
testator in the property to be divested (applicable in Mitakshara system). At no point of time can
the testator divest in his Will whole property, his share in the undivided property without
partition or a share of the property of other coparceners in the ancestral property owned by a
Hindu undivided family.

18Rashid ,pg 332.

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Secondly, in Dayabhaga school of Hindu law, the absolute owner of the property can divest it
through Will even if the property is ancestral in nature and such divestiture will deprive his heirs
or widow of their property share after the partition when he dies. However, the testamentary
power of women in Hindu law is limited to the property with their absolute ownership-that is-
streedhan. Prior to the Hindu Succession Act, 1956, Hindu women did not have the right to
absolute ownership on property-hence the power to bequeath property. This right was given to
women by section 14 of the Act.

Muslim testamentary capacity is regulated in two ways:

1. The One third rule: This rule states that a Muslim cannot make bequest of more than one-
third of his net property, after the discharge of debts and funeral expenses, if there are
heirs present. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent
of the other heirs. All schools of Muslim Law except the IthanaAshari School lay down
that bequest of more than one third unless consented to by the heirs is invalid or a custom
or usage so permits.
2. The consent of the heirs to confer in excess of one-third through will is also necessary.
As mentioned above, a Muslim has to obtain consent of all the surviving heirs to devolve
property in excess of one-third through Will. This rule is in place to ensure that the heirs
have voluntarily consented to the infringement of their right in the testator's property and
are not wronged in anyway. Such consent may be through words or implied conduct, but
not through silence..

DEATH BED GIFT

In Hindu law the concept of “MarzUlMaut” does not exist in hindu law. Though a similar
concept of death bed gifts happens to be in existence know as “Donation Mortis Causa”.

Muslim law- The concept of “MarzUlMaut” exists; it is form of death bed gift. When person has
real apprehension of death due to a particular illness, he can gift out 1/3rd property to any one of
the family members or even a stranger.

REVOCATION
In Hindu law, S.62 of the Indian Succession Act deals with the characteristic of a Will being
revocable or altered anytime during the lifetime of the testator. S. 70 of the Act provides the

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manner in which it can be revoked. A mere intention to revoke is not an effective revocation.
The revocation of the Will should be in writing and an express revocation clause would revoke
all the prior Wills and codicils. If there is no express clause to the effect then the former will
would become invalid to the extent of its inconsistency with the latest Will, this is known as an
implied revocation.

A Muslim Will can be revoked expressly or impliedly by the testator. The revocation can be oral
or in writing. In case it is in writing - signatures, attestation etc. are not required. Further a
subsequent Will will have the effect of revoking the previous Will. Revocation of the Will can
also be inferred from the conduct of the testator. For example Mr. X has made a Will
bequeathing his Car in favour of Y, yet subsequently he makes a gift of it to Z, the implication is
that the bequest has been revoked.

CONCLUSION
Testamentary succession of both the laws differ considerably in many a aspects, whether it is in
respect of revocation, restrictions or how much and what a person can will. There are also some
similarities but only in matter of capacity of testator i.e., he/she should be a major and of sound
mind. Irrespective of this there is ample amount of difference between wills under both Hindu
and Muslim law.

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 BIBLIOGRAPHY
BOOKS

● Modern Hindu Law by R.C. Nagpal, 2nd edition.

● Modern Hindu Law by Dr. ParasDiwan, 22nd edition
● Outlines ofMuhammadan Law by Asaf A. A. Fyzee and TahirMahmood,

WEBSITES

● http://legalsutra.com
● http://www.jstor.org/
● http://www.lexisnexis.com/in/legal/

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