UNIT IV

WILL (WASIYATH)

DEFINATION OF WILLS (WASIYATH)

A Will or Testament or Wasiyat has been defined as “an instrument by

which a person makes disposition of his property to take effect after his
death.” Tyabji defines Will as “conferment of right of property in a
specific thing or in a profit or advantage or in a gratuity to take effect on
the death of the testator.”

Essentialities of wills or wasiyath.

1. Competency.
2. Free consent.
3. Formalities.
4. Property must be bequeathable property.
5. Legator must poses testamentary rights.

1. COMPETENCY;
- The testator must be of the Age of majority ie. 18yrs & above for
him to make a wasiyath. A female is also a competent person to
make a wasayath of her personal property.
- A person making wasayath must be of sound mind Soundness of
mind.
- Suicide attempt by the legator; under the Shia law if a legato
attempts suicide after executing a will the will is void. The reason
behind this is that a person where a person has attempted suicide,
he cannot be said to be in a normal state of mind. After the
attempt his mental capacity is completely disturbed.
Under the Sunnie law the will executed in such circumstances is
perfectly valid.

2. FORMALITIES;
No proper formalities.
Manifestation of intention of the testator.
Oral or in writing, if it contains the essential elements of will it is
sufficient for it to operate as will.
Name not necessary, also it is not necessary that it should be registered.
Any document where it is clearly mentioned that the creator of the
document provides manner of devolution of property after his death it is
sufficient.
ORAL WILL,
Clear indication of the testator, proper proof must be provided to the
court to prove
Regarding testamentary effect of the testator & must be convinced
beyond reasonable doubt.
Under Muslim law it is not necessary for a will to be orally spoken ,will
could be made by mere gestures & signs is considered as valid provided
it clearly indicates the intention of the testator.

3. IT MUST BE BEQEATHABLE PROPERTY;

Any property, movable immovable, corporal or incorporeal properties
could be subject matter of will. Testator may bequest the property
subject to two conditions;
1. The property is owned by the testator at the time of his death.
2. The property must be in procession of the testator at the time of
his death.
3. The will of usufruct is valid in Islam here the beneficiary will not
have any right over the corpus.
4. In Muslim law the legatee has only right over the usufruct of the
property . It is also known as will of life-interest.

TESTEMENTARY RIGHT;
Bequeathable one-third ,
1. Quantity(1/3) of the property bequeathed.
2. To whom the property is given.
One third of his total assets.
PROPERTY TO WHOM IT IS GIVEN,
1. Bequest to a stranger.
2. Bequest to the legal heir.
1 . STRANGERS
1/3 of the property could be given , if more than this consent of the
heirs has to be taken for exceeding the fraction .
If no heirs are there of the testator any amount of property can be
given to the stranger.
If no will is written where a person has died intestate to his
 property & no heirs are living
The govt can take over the property by way of escheat.
If wife only surviving the heirs, testator is entitled to bequest 5/6 to
the stranger.
A Muslim testator is a woman she can give only 1/3 of her
property by way of will to the strangers.

2. LEGAL HEIRS;
When legatee is one of the heirs of the testator the consent of
remaining legal heirs is necessary irrespective of the quantum of
the property .Bequest to the heirs is always subjected to approval
of other heirs.
Reasons; legatee will be double benefited.
In Ranee Khajooroonissa V/S Mst Rowshan Jehan( 1876 31 IA 291)
Sunni Muslim, Raja Deedar Husain executed a will in favor of his
eldest son Inayat Husain & authorized him to spend some a
portion of that property by way of pilgrimage or charity, as he may
think proper .
Will further authorized Inayath Husain to retain the remaining
property for his exclusive use. It was observed by the Privy Council
that though this will has attempted to give his properties to one of
his legal heirs to the total exclusion of other heirs. It could not be
proved before their Lordship that any of the remaining heirs had
ever given their consent. PC held that as there was no consent of
other heirs of the testator, the will in favor of Inayat Husain ,Was
void.
ABATEMENT OF LEGACIES
When a will is made to the stranger in excess of 1/3 the consent of
testator is necessary.
If there is only one legatee who has to get more than 1/3 & if the
testators heirs do not give their consent then &, the legatee would get
only 1/3 of the property even though .
Where there are several legatees & the sum total of the properties
bequeathed to each of them exceeds the legal sum then the share of
each legatee is determined by the rule of rule of Sunnie law & Shia law.
SUNNIE LAW;
Rateable Distribution; u/Sunnie law the legacy abates reteably means
proportionately i.e. Property given to each legatee is reduced in
proportion of the share allotted to him in such a manner that the
aggregate of the property given does not exceed equitable
1/3.Deduction is not made form one or two legatee but from share of
each legatee .Eg. X, a Sunni Muslim makes a will of half of his properties
to Y who is non heir. The heirs of X Refuses to give their consent , Y
rd
would get only 1/3 . Preferential Distribution, u/shia law; the principle of
reteable distribution is not recognized u/shia law. According to this
school if the sum total of the shares given to different legatees exceeds
1/3 & the testators heirs refuses to confirm then their legacies takes
effect in order of preference. The share of each legatee is not reduced &
remains intact. The legatee mentioned first in the will get the share as
mentioned in the will. After giving his share the remaining goes to the
second legatee, if still it remains it goes to the Third legatee & so on . As
soon as 1/3 is exhausted the distribution stops & the next legatee does
not get anything, this is called as the Shia rule of preferential distribution.
Exceptional rule, if two legatees are given 1/3 each in the will as per
preferential rule of Shias the shares would be given from the last not
first.

CONDITIONAL & CONTIGENT WILLS

CONDITIONALWILLS,
Will made subject to some conditions are called conditional wills.
Where testator makes any will & provides that the legatees interest
would depend upon the fulfilment of certain condition then will becomes
enforceable as if no condition was attached to it. The condition so
attached to it need no be fulfilled. Eg. Condition of sale of property made
in the will by the testator to the legatee, here the will becomes valid & is
enforceable the legatee gets unconditional interest in the property. He is
not bound by the condition.
Bequest for life; According to Sunni law, where a Sunni testator makes a
will in which he gives life interest to a legatee gets absolute interest in
respect of the property bequeathed to him.
Under Shia law, the will as such & also the condition in it both are valid.
CONTINGENT WILLS;
Vesting of interest in a legatee depends upon some uncertain future
event, the will is void & does not operate. The legatee will not get any
property even if the contingency occurs.
Alternative wills are valid.
REVOCATION OF WILLS
Will can be revoked during the life time of the testator . Testator has the
right to repudiate the ill.
Revocation may be of whole or part of the will.

TWO TYPES OF REVOCATION:

Expressed & Implied revocation.
Expressed revocation;
By making a statement of rescinding (cancellation).
Either oral or in writing.
Testator may revoke a will expressly making statement to that effect
before the court of law. Such statement revokes the will even if it has not
been destroyed.

Implied revocation;
Testator may not revoke the will expressly but his intention is to rescind
the will it is inferred from the conduct. When testator does something in
respect of the property bequested by him which is violative of his own
rights as the owner of the property, testers conduct is nothing but for
revocation of will.

DEATH BED GIFT ( Donatio Mortis Causa)

Gift made by the Muslim during ‘death illness’(marz-ul-mouth) is

regarded as wills.
This is in form of a gift but its legal effect is that of gift.When a person
makes a gift in death bed he intends to distribute his properties acc to
his own scheme giving up the whole hope of his life.
Muslim in death bed can make a gift of any quantum of property such
transaction is will.

ESSENTIALS
1. It is a complete gift.
2. Death-illness
3. The illness must have caused death.
4. There must be proximDecree of subjective apprehension of death in
the mind of the sick person.
5. Inability to attain ordinary condition.

GIFT (HIBA)

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.

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’, 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 people.

According to Hedaya– “Hiba is an unconditional transfer of ownership in

an existing property, made immediately without any consideration.”

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

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.

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.

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.
6. Sec 123 of T P Act is not applicable to gifts made by Muslims.
In gift there are two parties the donor & the donee , the donor
transfers the property & donee is the person who accepts the
property.

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, can be 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, the validity of a gift made by
parda-nasheen ladies was the question before 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.”
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 (important) 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.

Gift in favour of a 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/miscarriage 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.

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 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/S Md . Hesaruddin, a Muslim 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.”
Case in context to declaration . Ilahi Shamshuddin v/s Jaitunbi Maqbul
The SC has stated that the declaration as well as acceptance of gift may
be oral whatever may be the nature of property gifted.
A gift made in writing is called Hibanama . This gift need not be on the
stamp paper, also it need not be attested or registered. Declaration must
be in clear words.
Express Declaration: A declaration of a gift must be expressly made in
clear words that the donor is having an internship to give up his
ownership of the property completely. A gift made in ambiguous words
is null and void.
In Mainmuna Bibi V/S 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.
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/S Muftakhar, 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 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.
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/S Batilbai, 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 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.
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/S 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 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/S Najmunnissa, 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/S 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/S Naravanath , 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.

 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.

SUBJECT MATTER OF GIFT (HIBA)

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.

Gift of spes-sucession:
Spes – succession means expectation of getting property through
succession eg.. A son after the death of his father inherits his property
as a legal heir & such properties are vested in him, bit before the father
simply has a chance or getting his property through inheritance because
he may or may not survive his father. Therefore during the lifetime of his
father the son’s interest in the father’s property is merely a future
possible interest. I.e. spes succession. Hence such future property
cannot be the subject matter of gift.
Clause (a) of section 6 of the TP Act excludes mere chance of an heir
apparent of succeeding to an estate from the category of transferable
property. The technical expression for such a chance is called spes
succession. During the lifetime of a person, the chance of his heir
apparent succeeding to the estate or the chance of a relation obtaining a
legacy under his will as spes succession. Such expectancy does not
amount to an interest in property & cannot be made the subject matter
of a transfer.
Gift of Actionable claim:
Actionable claim is an intangible property. Intangible or incorporeal
property has no physical existence but it may be owned by a person. The
owner of the property may also transfer the property through a gift.
Under sec 3 of TPAct an actionable claim has been defined as, an
unsecured debt, any interest in the movable property, not in procession
of the claimant, e.g.. If X, has given certain money to Y, & loan is not
secured by y’s property then X has the right to claim the money from Y
by maintaining an action in the court of law against Y . X’s right to claim
the money from Y is X’s actionable claim which is his property & he may
lawfully make a gift of such right. X can make a gift of this right to Y , the
donee Y in this case would be entitled to get the money from X.
Actionable claim & other incorporeal properties cannot be possessed ,
therefore actual delivery
Actionable claim is defined in Section 3 of the Transfer of Property Act
as a ‘claim to any debt other than a debt secured by mortgage of
immovable property or by hypothecation or pledge of movable property
or to any beneficial interest in the movable property not in the
possession, either actual or constructive of the claimant which the civil
courts recognize as affording grounds for relief, whether such debt, or
beneficial interest be existent, accruing, conditional or contingent.’
Accordingly, this mean, it excludes not only a claim to any immovable
property for a debt but also a debt secured or any movable property in
possession of the claimant. It follows, therefore that it is a claim for a
simple debt or liability and which can be realized by a legal action. An
actionable claim is called, in English Law, a chose in action or a thing in
action as against a chose or money in possession. It denotes
incorporeal personal property of all disciplines and an interest in
corporeal personal property not in possession of the owner which
accordingly can only be claimed or enforced in action. Therefore, while
the different types of movable property governed by the Sale of Goods
Act can be called as chose in possession, an actionable claim is also a
type of movable property called chose in action. It is also a movable
property because a debt is a property and anything which is not
immovable property is movable property. Hence, when a Muslim makes
a gift (hiba) of such a right, actionable claimant is not valid unless it is in
writing & is signed by the donor.
Gift of Insurance Policy: Gift of Insurance policy is valid, under the
Insurance Act 1938, sec 38(7). The policy holder ownes this interest, this
interest is his contingent interest. As gift of contingent interest is void
under Muslim law. But under sec 38(7) of the insurance Act 1938, are
wide enough to exclude the contrary rule of Muslim law on gift this was
held in Sadiq Ali V/S Zahida Begum, by the Allahabad High Court.
Gift of Dower (Mahr): Gift of dower by a wife in favour of her husband is
valid. This is called as Hiba-e-Mahr i.e. gift of dower. But a wife can
make the gift of her dower or mahr is a debt of the husband against his
wife. Right to claim a debt is an actionable claim, hence wifes right to
dower is an actionable claim. Hence it may be subject matter of Hiba.
There are two rules regarding the gift of dower or Mahr;
1. The wife may make a gift of her dower to her husband either
unconditionally or conditionally. If the gift to husband is subject to
condition then the condition has to be fulfilled for the husband to
take effect to the gift.
2. A gift of the dower to a debt husband is also valid it operates to
extinguish the right of widow to claim the Mahr.

GIFT OF LIFE – INTEREST OR LIFE ESTATE

Under the Sunnie law gift of the life interest is not possible
because a gift for life operates as an absolute gift. But under the
Shia Law the gift of life –interest. Under this law the done can
enjoy the property during his life but after the death of the donee
the property reverts back to the donor or his legal heirs.

Difference between Gift & will

Difference Gift Will
A man can give away his whole Only one-third of the net
Quantum
property during his lifetime. estate can be bequeathed.
Beneficiary A gift inter vivos can be made in For bequeathing more than
 favour of any person without one-third of the property to
any restriction (except during any person, consent of
marz-ul-maut). heirs is mandatory.
The property may or may
not be in existence at the
Property gifted must be in
Existence time of execution of the
existence at the time of making
of Property will but it must be existing
the gift.
at the time of the death of
the legator.
A transfer of property
Under gift, the immediate and
Transfer of comes into effect only
absolute transfer of property
Property after the death of the
takes place.
legator.
Immediate delivery of Since property devolves on
Delivery of possession must take place as the legatee only after the
Possessio soon as the donor declares the death of the legator so no
n gift and the donee accept the question of delivery of
same. possession arises.
Once a gift is made, a mere
A bequest may be revoked
declaration to revoke it by the
by the legator any time
donor is not sufficient. A
after executing it and
Revocation revocation can only take place
before his death either
either by the consent of the
impliedly or expressly or by
donee or by the intervention of
a subsequent will.
the court.

Gift of share in zamindari.

A gift of Zamindari is possible and valid even without actual pocession .
Gift of share of the co. Is valid
VOID GIFTS
Void gifts are those which are not valid in the eyes of law. They are:
1. Gifts made to an Unborn child .
2. Gift to take effect in future.
3. Contingent Gift .
4. Conditional Gift .
5. Gifts of divisible musha .
DIFFERENT KINDS OF GIFTS
Hiba- bil- iwaz & Hiba-ba-shartul-iwaz are the two types of hibas
according to muslim law,

Hiba- bil- iwaz:

This is a very peculiar type of gift under the concept of personal law .
Hiba means gift and Iwaz means consideration or returns .
Hiba-bil- iwaz is a gift with consideration .
Under the TPAct such kind of Gift is not recognised but under Muslim
law such kind of gift is recognised .
In this type of Gift the donee gives some thing in exchange of a gift
.Therefore such gifts are called as such .
E.g. ‘A’ makes a gift of his house to ‘B’ ; ‘B; in turn makes a gift of a
Wagon to ‘A’ , saying that the Wagon was being given in return to gift
made by ‘A’ .here the gift of the house made by ‘A’ to ‘B’ is called Hiba-Bil
Iwaz.
Here the gift of Wagon from ‘B’ to ‘A’ is a Gift in exchange of the gift, in
lieu of ‘A’ .
Legally such transaction are termed as sale or exchange .
Generally Hiba-Bil-Iwaz is a Gift in its inception ,
But it becomes a sale or exchange afterwards when the donee takes the
pocession of Iwaz .

ESSANTIALS OR REQUIREMENTS .
Valid and complete gift by the donee.
All 3 essentials conditions must be present i.e. Declaration ,
Acceptance and Delivery and pocession .
If donee pays consideration the gift is Hiba-Bil-Iwaz .
LEGAL EFFECTS OF HIBABIL-EWAZ
Hiba-Bil-Iwaz is either sale or exchange depending on the property given
by the donee .
As it is declared as sale or exchange it is irrevocable .
Delivery of pocession , which is one of the essential element of Hiba is
not necessary for the validity of this type of Hiba .
Doctrine of Musha i.e. share in the undivided property under sunnie law
is not applicable to Hiba-Bil-Iwaz .
Right of pre -emption is exercisable by the pre-emptor in Hiba-Bil-Iwaz

Hiba-ba-shartul-iwaz:
 In this type of gift the donee does not pay the consideration
voluntarily , it is played by the donee because it is a condition precedent
for the gift .
Therefore the subsequent gift by the donee to the donor is the condition
precedent for the first gift in favour of the donee.
LEGAL EFFECTS OF HIBA-BA-SHARIATUL-EWAZ.
The whole transaction is a set of two independent gifts.
It is revocable in the beginning but once the donee makes a gift of his
property in furtherance of fulfilment of a condition the transaction
becomes irrevocable.
Right of pre-emption is exercisable here.
Doctrine of Musha is exercisable here .
This type of gift is not common and is not in practice.

DIFFERENCE BETWEEN HIBA-BA- SHARIATUL-IWAZ & HIBABIL

–IWAZ
- In Hiba-bil-iwaz the consideration is paid voluntarily, but in
Hiba-ba-shariatul-iwaz the payment of consideration is a
condition precedent.
- In Hiba-bil-iwaz the consideration is at the will of the donee,
but in Hiba-ba-shariatul-iwaz the value and the kind of
consideration is paid on the direction of the donor.
- Hiba-bil –iwaz is not a Hiba in its real sense but treated as a
sale or a exchange, where as Hiba-ba-shariatul-iwaz is
treated as a Hiba.
- Doctrine of Musha is not applicable to Hiba –bil- iwaz, but in
Hiba-ba-shariatul-iwaz the Doctrine of Musha is applicable.
- In Hiba-bil-iwaz the consideration is at the will of the donee,
but in Hiba-ba-shariatul-iwaz the value and the kind of
consideration is paid on the direction of the donor.
- Hiba-bil –iwaz is not a Hiba in its real sense but treated as a
sale or a exchange, where as Hiba-ba-shariatul-iwaz is
treated as a Hiba.

INHERATENCE & SUCESSION

SUNNIE LAW OF INHERATENCE

CLASSIFICATION OF HEIRS
 The legal heirs of Sunnie Muslims are divided into 2 categories .
Principal classes and subsidiary classes These are further divided.
According to the Sunnie law the sharers are divided into 4 Classes.
CLASS I HEIRS :
These are the Quaranic heirs .
The legal heirs of the deceased .
The legal heirs of this class will get preference over the other class of
heirs .
I.e. First the Quranic sharers will take the share .
The sharers of Class I heir are categorised into 2 they are:
Relation by affinity.
Relation by blood .
Relation by Affinity (by marriage ):
Husband ;
o Husband gets ½ of the share if there is no Child or
o A child of a son how low so ever .
o The husband gets 1/4th of the share if ,
o A child .
o Or Child of son is living .
Widow ;
o Widow gets 1/4th of the share if there is no Child or A Child of a
son .
o A widow gets 1/8th if she is with ,
o A child and A Child of son .
o If the deceased has left more than one widow all the widows will
get equal out of 1/4th share or 1/8th share as the case may be .
Relation by blood .
Father :
o Father without ;
o A child or
o A Childs son.
o is treated as the residuary , and is entitled to get the residuary , and
is entitled to get share after dividing the property b/w the Quaranic
hirers .
o Father with the Child or
o A Child of Son will get 1/6th of the share .
True Grand Father :
o He inherits only in case of absence of father .
o If the deceased leaves back True Grand Father , then in presence
of father the true grand father will not take a share .
 o The share of true grand father in absence of father his gets 1/6th
of the share .
Mother :
rd
o Share of mother is 1/3 in absence of , a Child or
o A child of a son .
o Two full sisters .
o Two full brothers .
o One brother plus one sister whether full or consanguine or uterine .
th
o Mother gets 1/6 of the property if all or any one of the relatives
are present .
o If mother is staying with father and a widow then the mother gets
1/3rd of the share after deducting the share of the widow .
True grand mother :
The true grand mother inherits only when she is not excluded by
the presence of the relations .
If not excluded the share of the true grand mother is 1/6thwhether
she is one or more than one .
If more than one then they inherit 1/6th jointly .
A maternal grand mother is excluded from inheriting in presence of
;
A mother or
A nearer maternal or paternal grand mother .
A paternal grand mother is excluded from inheriting in presence of
Mother
Father
A nearer true grand mother whether maternal or paternal .
Daughter :
The share of one daughter is ½ .
If two or more daughters are existing the share is 2/3rd to be
divided equally among them
If daughter is living with the son she is treated as a residuary .
Sons daughter :
The sons daughter inherits only in absence of ,
two or more daughters or
Sons or
Sons son
Two or more sons daughters .
sons daughter is excluded from inheriting in presence of the above
mentioned relatives .
In absence of above relatives the sons daughter gets ½ the share if
 she is alone and 2/3rd if they are more than one existing .
If the sons daughter is together with one daughter than , the share
of sons daughter is 1/6th whether such sons daughter is single or
more .
Sons daughter with sons son is treated as an agnatic heir i.e. she
inherits as a residuary .
Full sister ( she is a person born to the same parents i.e. they share
the same biological parents ) .
Share of one full sister is ½ .
rd
Share of two or more sisters is 2/3 to be divided equally among
them .
If the full sister is together with the full brother she becomes an
agnatic heir i.e. she takes the residuary .
She is excluded from inheriting in the presence of ;
Child or
Child of a son .
Father .
Fathers father .
Consanguine Sister :
The share of the consanguine sister is ½
The share of 2 or more consanguine sisters is 2/3rd to be equally
divided among them .
With one full sister the share of consanguine sister is 1/6th
whether single or more .
The consanguine sister is excluded from inheritance in presence
of
 A child or
 Child of his son .
 Father .
 Fathers Father .
 2 full sisters .
 One full brother .
With consanguine brothers the consanguine sisters become
agnatic heirs and they inherit as a residuary.
Uterine Brother ( born to the same mother but different fathers ) .
o The share of one uterine brother is 1/6th
o If there are two or more uterine brothers , the share is 1/3rd to be
equally divided among them .
Uterine brothers are excluded from inheriting in presence of ;
 A child or
 A child of a son
 Father or
 Fathers father .
Uterine sister :
o The share and the condition under which a uterine sister inherits
the property is same as that of uterine brother .
th
o She is entitled to share of 1/6 if she is alone
rd
o She is entitled to 1/3 of the share if they are more than one
uterine sisters .
o They are also excluded from the share in presence of ‘
o A child or
o Child of a son or
o Father or
o Fathers father .

CLASS II HEIRS

Residuary contribute to Class II heirs of Sunnie deceased .

When the Sunnie deceased has no heirs then all the property is
inherited by the resudiries.
The Class II heirs of Sunnie are divided into four :
Descendents :
Son ,
when they are no daughters Son takes the entire residue .
When the Son is together with a daughter then the Son takes
double the share daughter takes one the share .
Son’s , Son :
Nearer son excludes the remoter son .
2 or more son’s son inherit the property equally .
Son’s daughter together with son’s son become residuary , but the
son’s son will get double the share of son’s daughter .
Ascendants :
Father ;
As a residuary , the father gets the entire residuary .
True grand father , takes the residuary , but the nearer grand father
excludes the remoter .
Collaterals (descendents from the same stock but by different line )
Descendents of Father:
Full Brother .
If there is no full sister , the full brother inherits the entire residue .
 If there is also full sister , full brother will inherit the with her , and
his share is double the share of the sister.
Consanguine Brother (people who are biologically and genetically
related it means from the same blood eg Grand father and grand
son these are related by common origin and by marriage ):
A consanguine Brother inherits together with consanguine sister
.
The share of the consanguine brother is double the share of the
consanguine sister .
Consanguine Sister :
In absence of Consanguine brother consanguine sister is
considered as residuary .

CLASS III

Distant Kindred :
The classification of distant kindred are classified into 4 classes .
CLASS I HEIRS :
Descendents ;
In this Class the order of priority is ,
 Daughters child .
 Sons daughters Child .
 Daughters grand Child .
 Son's Son’s daughter and remote heir .
The distant Kindred are to inherit only in absence of relation .
They are 2 rules ;
1) Where an intermediate ansister of the Claimants are of similar sex ,
the property is divided among them equally . Subject to general
rules . But if the claimant are of different sex then the property will
be divided as according to general rule of ; 1:2 principle .
2) Where the immediate ancestor of the clamant is of a different
sex the property is distributed according to rule 1 as mentioned .
When one clamant is calming through one line and the other
clamant is claiming through other line than following method is
applied .
Beginning from the descendent , it has to stop at the first line of
decent in which the sex of intermediate ancestor is different .
If there are 3 or more distant Kindred claiming through different
lines of decent , the rule is to stop at the stage where the sexes of
the intermediate ancestors differ to assign the share to the Male
 and Female ancestor in ratio of 1:2.
The collective shares of all the male ancestors will be divided
among their decedents .
The share of ancestors of this line are as follows :
CLASS II HEIRS ;
In absence of class i heirs the property devolves to class ii of the
distant kindred which consists of the ascendants of the de ceased .
The property is distributed among the kindred of this group in the
order of succession .
1) Mothers father .
2) Fathers Mothers father and Mothers , Mother Father in the ration
2:1 under the general principles .
3) Mothers Fathers Father and Mothers ,Mothers Father in the ratio
2:1 .
The property is to be divided according to 3 rules ;
RULE I:
1) Heir who are nearer in decree excludes the remoter heir .
2) Among the claimants of the deceased , though shares are preferred
over those who are connected through distant kindred .
3) Where the clamant belong to the paternal as well as material side and
; 2/3 is assigned to the paternal side and 1/3 to the maternal side .
Thereafter share assigned to the paternal side is 2/3rd this is divided
among the ancestors of the Father and the share assigned to maternal
1/3rd is divided among the ancestors of the Mother .
CLASS III HEIRS .
The decedents of brothers and sisters who are neither sharers nor
residuary as included in class III heirs of distant Kindred in devolution of
estate among the heirs of this class .
3 rules are applicable , they are :
RULE I;
The nearer in decree excludes the remoter .
RULE II;
Where the clamant of the same decree of relationship ,the children of
the residuaries are preferred to the children of the kindred .
RULE III ;
Among the claimants of the same decree of relationship the decedents
of full brother excludes the decedents of consanguine brothers and
sisters.

CLASS IV:
This categories of distant kindred consists of Uncles and aunts and
decedents of Uncle .
SHIA LAW OF INHERITANCE
Classification :
Under a Shia Law , a person may become the legal heir of the deceased
either because of his relationship through Marriage or because of
relationship through blood .
The Shia heirs are classified into 2 categories they are :
1) Heirs may be by marriage or
2) By consanguine .
Heirs by marriage are Husband and Wife .
Heirs by consanguine are divided into 3 categories they are .
1. Class I heir .
2. Class II heir .
3. Class III heir .

CLASS I HEIR :
o These includes ;
o Parents.
o Children and other lineal decedents how low so ever .
CLASS II HEIRS:
o Grand parents how high so ever .
o Brother and Sisters .
o Decedents , how low so ever .
CLASS III HEIRS :
• The paternal side relatives .
• Maternal Uncles , and aunts of the deceased and her parents ,
grand parents how high so ever , and also they decedents how low
so ever .
Respective shares of the Shias are further classified into 2
categories they are :
Sharers .
Residuaries .
no Kindred .
The sharers are of 9 they are :
1) Husband .
2) Widow .
3) Father .
4) Mother .
 5) Daughter .
6) Full sister .
7) Consanguine sister .
8) Uterine Sister .
9) Uterine Brother .
HUSBAND :
Without children or lineal descendent the husbands share is ½ .
With children or lineal descendents his share is ¼ .
WIDOW :
th
Without children or lineal descendants , the widows share is 1/4 .
With children or lineal decedents the widows share is 1/8th .
A child less widow gets her 1/4th share only out of immovable
properties of the deceased husband .
FATHER :
Without the children or the lineal decedents , the father inherits as
a residuary .
With children the fathers share is 1/6th .
MOTHER :
In absence of,
A child or a lineal decedents or,
Two or more full or consanguine brothers .
One of such brother and 2 of such sister or ,
Four such sisters with father and share of mother share is 1/6th .
DAUGHTER :
Share of a single daughter is ½ .
Share of 2 or more daughters is 2/3rd to be inherited collectively .
In presence of son daughter becomes residuary .
FULL SISTER :
The share of a single sister is ½ and that of 2or more full sister is
2/3rd .
The full sister gets the above share only in absence of ;
Parents .
Fathers father and full sister , the full sister inherits as a residuary .
In presence of ;
Full brother .
Fathers Father and full sister the full sister inherits as a residuary .
CONSANGUINE SISTER :
The share of a single consanguine sister is ½ and that of two or
more consanguine sisters is 2/3rd .
The above share is inherited by the consanguine sister in absence
 of ;
Parent.
Lineal desendent.
Full brother .
Full sister.
Consanguine brother .
Fathers father .
In presence of consanguine brother and fathers father , the
consanguine sister inherits as a residuary .
UTRENE BROTHER :
The share of one Uterine brother is 1/6th and that of 2or more
uterine brothers is 1/3rd .
The above share is inherited by the Uterine brother in the absence
of , children , or lineal decendents nd parents.
UTERINE SISTER :
Same as uterine brother .
DISTRIBUTION OF PROPERTY
According to the class I heirs of inheritance , it includes
husband or wife and parents , children ,grand ,children and also
remote lineal decedents of the deceased .
When inheritance opens , the heirs of this class are entitled are to
inherit first of all .
Certain procedures are adapted at the time of distribution of
property among the heirs of this class .
All the shares are allotted to the husband or the widow as the case
may be .
Next the sharers are allotted to those heirs who inherit only as
sharers .
There after , the residue if any is divided among the reliquaries .
CLASS II HEIRS :
This class of heirs includes , Grand Parents how high so ever ,
Brother and Sisters , Descendents how low so ever , of Brothers
and Sisters .
In absence of the I Class heirs the property is distributed among
the heirs of II Class .
CLASS III HEIRS :
In absence of class I, and class II , heirs the property is divided
among the class III heirs , the Class III heirs are the residuary heirs

DOCTRINE OF INCREASE OR AUI

 According to this doctrine, after the allotment of the respective
shares to the sharers if the sum exceeds the unity ,the doctrine of
Aul or increase is applied .
SUNNIE LAW: Ex If the aggregate of shares is 13/12 , In this
example the numerator denotes the total number of shares and
denominator denotes the pieces of heritable property.
In this example 13 represents the number of shares and 12,
denotes the pieces of heritable property.
In this ex the number of sharers exceed the number of property , or
the fragments of the property is lesser than the number of sharers .
In the distribution of shares among legal heirs, two things must be
taken into consideration.
1. The sum total must come out to be unity and ,
2. The respective shares of the sharers cannot be changed because
they are specified in Quran .
The aggregate unity without changing the respective share, the
fragments of property is increased by adopting the following
methods :
Keeping the numerator intact , the denominator is increased in
such a manner that the denominator became equal to the
numerator , instead of altering the respective shares which are of
are of divine origin , the pieces of heritable property is enhanced .
By this process the aggregate of the shares is made uniform .
This signifies that the property exhausts without affecting the
shares i.e. shares not reduced .
ACCORDING TO THE SHIA LAW
According to this school of law the principle of the doctrine is as
same as that of sunnies , but the share of property from whom the
property is reduced to make uniformity in shares is , 1) daughter or
2) full sister .
DOCTRINE OF RAAD OR RETURN OR RAAD
When the sum total is less than unity, the doctrine of Raad is
applied .
When the total number of sharers are less than the fragments of
the property then this doctrine is applied .
SUNNIE LAW :
Ex if the total number of sharers is 5/12 , in this case the
sharers are only 5 where as the fragments of property heritable is
12 .
In this case the after allotting the respective shares there is still
 fragments of property remaining , when there is no residuary or
other heirs to take the left over property , in such cases the left
over fragments of the property reverts back to the sharers along
with they respective shares and is added to they respective shares
according to the doctrine .
According to the Sunnie Law the residue is added to the shares of
respective sharers according to the following rules , they are :
The residue is added to the shares of each heir in the proportion
of they own share .
The husband and the wife are removed from participating in
doctrine of return .
If among the legal heirs there are husband or the widow then the
husband or the widow will not take the property by return but the
residue will return to all the heirs .
If the husband or the wife is alone without other heirs than the
husband or the wife will take the whole of the property the
government will not take the property by way of escheat.
SHIA LAW
Shia law according to this school besides the husband and the
widow , the mother , and uterine brother and sister also do not
participate in return .
The method adopted here is ,
First of all the respective Quranic sharers should be allotted with
they shares
If there is husband and widow along with the heirs they share is
given and rest of the property is calculated .
Then the remaining property is distributed to the leftover sharers
according to they quantum of shares in they proportion.

INDIAN SUCESSION ACT 1925:

DOMICILE

LAW RELATING TO DOMICILE

Domicile, is not defined in the Act. Domicile means the place where he
has his “true fixed permanent home and establishment to which he
intends to return”.
ESSENTIALS OF DOMICIL:
They are 2 in nature they are, 1) Factum of residence. 2) Intention of
making it a home of the party.
A person acquires a new domicile in 2 ways ie 1) Factum of residence in
that country, and
2) Animus Menendi , intention to return back to his residence , for
making it a home .
Halsbury defines domicile as “that country that the person has or is
deemed to have ,his permanent house .
In Craignish v/s Craignish
In this case domicile was defined and, his lordship “ That place is
properly the domicile of a person in which his habitation is fixed without
any present intention of removing there from”.
Therefore domicile means the country is taken to be a mans permanent
home for the purpose of determining his civil status(social status) .
It is therefore different from the political status of a person.
In federal countries normally, domicile is of a particular state, and not of
a country as a whole.
Therefore a person would be domiciled in Texas and not in U.S.A, in
Ontario and not in Canada , in Victoria and not in Australia .
An interesting question arouse for judicial interpretation, whether in India
, domicile can be only of a country as a whole or whether they can be
domicile of a particular state in India .
In Joshi v/s State of Madhya Bharath .
The SC observed that apart from Indian domicile , they can also be
domicile of the state .
Similar view had been expressed by the Bombay HC in the same year , in
Radhabhai v/s The Sate of Bombay .
Later in the year ie 1957 , In The State v/s Narayandas Mangilal Dayme ,
The Bombay HC itself gave a judgement to the effect that they can be no
domicile in the state of India ; the court observed that “it is a total
misapprehension of the position of law in India to talk of a person being
domiciled in a province or a State .
KINDS OF DOMICILES
1. By birth or by origin.
2. By choice and
3. By operation of Law .

DOMICILE BY BIRTH OR ORIGIN:

Domicile of origin is a legal tie which binds a person at the movement of
his birth to a given system of law, it is a settled principal that nobody can
be without a domicile .
The law attributes to every person as soon as he is born.
The domicile that he acquires at the time of his birth is the domicile that
he known by.
The domicile of the child depends on whether the child is born legitimate,
illegitimate or posthumous this is delth under sec 7-9 of this Act. Sec 7,
legitimate child, sec 8, illegitimate.
Sec 9, continuation of domicile of origin till new domicile is acquired. It
continues till the manifestation lies of abandoning his former domicile
taking another as his sole domicile.
DOMICILE BY CHOICE sec10
Domicile by choice is the domicile which a person of full age and sound
mind acquires by full mind and voluntary choice .
A person acquires domicile by choice when he resides in a country not
of his domicile of origin, with an intention permanently or indefinitely.
Two factors are necessary to acquire new domicile , they are ;
Actual residence (factum)
and intention to stay there permanently there (animus menendi).
A new domicile can be acquired in 2 ways,
By fixed habitation sec 10 and
by special modes sec 13 of the Act.
1) By fixed habitation sec 10 : A man acquires a new domicile by
taking his fixed habitation in a country which is not of his domicile
of origin .
It is to be considered that the person who relies on a change of
domicile to prove that he has an intention of, abandoning his existing
domicile, adopting the new domiciled of choice.
Ex , 1) an English man , having his domicile of origin in England , came to
India for winding up his business and with the intention of returning to
England as soon as that purpose is accomplished .
His residence in India lasted for more than ten years , in this case of
Englishman , the fact of his stay in India for a period of 10 yrs makes no
difference ,because he has got the intention of returning back to
England he therefore does not acquire domicile in India .
2)‘A’ whose domicile is in East Pakistan , is compelled by political event
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
back to his home town . In this eg ‘A’ does not by mere such residence in
India acquire domicile in India.
2) By special mode (sec 11-13 ): Any person may acquire a domicile in
India by making and depositing in the appropriate office in India , a
deceleration in writing under his hand of his desire to acquire such
domicile .
For this a person must be resident in India for one year immediately
preceding the time of his making such declaration u/sec 11 .
No person acquires domicile when he is on a duty appointed by the
government of the country to
Be ambassador council or other representative in another country , he
does not acquire a domicile in the later country , by reason only of
residing there in pursuance of his appointment , nor does any other
person acquire such domicile by reason only of residing with that person
as part of his family, or as a servant u/sec 12.
Sec13 continuance of new domicile. Till abandment of new domicile by
choice.
3) DOMICILE BY OPERATION OF LAW (sec14-18): This is also known as ,
domicile of dependence .
Domicile by operation of law or domicile of dependence means the
domicile of dependent persons eg Minors domicile is determined by the
domicile of its parents.
In case of legitimate children and adopted children they domicile is that
of its parents domicile.
Married women's domicile is dealt u/sec 15and 16 ; a married women
acquires the domicile of her husband as long as she is married to him .
Generally a married women is deemed incapable of having a domicile of
her own .
THERE ARE TWO EXCEPTIONS TO THE RULE, in two cases ,1) when they
are separated by the Sentence of a competent court .
2) If the husband is undergoing a sentence declared by any court of law
of the land. Sec17 minors acquiring new domicile.
lunatic persons domicile is dealt under sec 18 of the act .
A lunatic persons domicile is determined by the domicile of its parents .

LAW RELATING TO SUCESSION OF PROPERTY OF AN INDIVIDUAL

TAKING INTO CONSIDERATION DOMICIL sec5;
This is not applicable to Hindus, Muslims, Buddhist ,Sick or a Jain .
In India the law for this is based on well –established principal of English
law, under which the movables of the deceases individual are regulated
by English law .
Under which the movable property is regulated by the lex domicilli (law
of the domicile) and the immovable property is regulated by the lex situs
(law of the place where the property is situated .
A Kerala HC decision makes this principle very clear ,
Sankaran Govindan v/s Lakshmi Bharathi ;
[ AIR 1964 Ker ,244] The facts of this case are as follows , Dr Krishna
lived in England from 1920-1950 in which year he died intestate in
England . During his life time he built a sizable medical practice at
Sheffield , where he bought a house .The court came to the conclusion
that he had died domiciled in India, the question arouse Whether the
heirs to the Sheffield property was to be reckoned by the Indian law (lex
domicilli ) or the British law ( lex situs ) .The learned judge came to the
conclusion that immovable property is to be governed by lex situs .
Therefore in this case the English law of succession was made
applicable .

CONSNGUINITY

When a person dies intestate, his heirs would fall in 2 groups, relatives
by blood and relatives by marriage. All people connected to the
deceased by blood would fall in the first category and his widow would
fall in the second category .Consanguinity is the connection or relation
of a person’s descendent from the same stock or common ancestor,
they are also called kindred.
Consanguinity or kindred is defined ,as “vinculum personarum ab eodem
stipite desendentium “, i.e. the connection or relation of persons
descendent from the same stock or common ancestor .
Consanguine are of two types ; 1) lineal consanguinity and 2) Collateral
consanguinity .

1.Lineal consanguinity sec 25 : It is that which subsists between 2

persons , one of whom is the descendent in the direct line from the other
, as between a man and his father , grandfather , and great grandfather
,upwards in the direct ascending line or , between the man and his son ,
grand son and so downwards in the direct descending line .
Each generation constitutes a decree, either ascending or descending. A
persons father is related to him in the first decree so likewise is his son ,
his grand A persons father is related to him in the first decree so
likewise is his son ,his grand father and grand son in the second decree ,
his great grand father and great grand son in the third decree and so on .
Lineal consanguine strictly comes within the definition of vinculum
personarum ab eodem stipite decendentium , since the descendents are
from one another and both , of course from the same common
ancestors . father and grand son in the second decree , his great grand
father and great grand son in the third decree and so on . Lineal
consanguine strictly comes within the definition of vinculum personarum
ab eodem stipite decendentium , since the descendents are from one
another and both , of course from the same common ancestors .

2.Collateral Consanguinity sec26 : Collateral consanguinity is that which

subsists between the two persons who are descendents from the same
stock or ancestor , but neither of whom is descendent from the same
stock or ancestor , but nether of whom is descendent in a direct line
from the other. This can be well understood from the table of
consanguity , in Schedule I of the Act .

INTESTATE SUCESSION OTHER THAN PARSIES

A person is said to have died intestate if he has died without leaving a

testamentary disposition which is capable of taking effect sec 29 . Eg
1)’A’ has left no will . He has died intestate in respect of whole of the
property .
2) ‘A’ has bequeathed his whole of the property for an illegal purpose ,
here it is said that ‘A’ dies intestate in respect to the property .
Intestacy are of two types they are ; total and partial intestacy . Sec 30,
as to what type of property a person dies intestate.
Eg 1) ‘X’ makes no will in favour of his property , this will be a case of
total intestacy .
2) If ‘X’ makes a will in favour of his property situated at Delhi, and
makes no will in favour of other property then this is a case of partial
intestacy , and will have deemed to have died Intestate in favour of
the rest of the property .

RULES IN THE CASE OF INTESTATE OTHER THAN PARSIS SEC 31-49

Sec 31 to 49 lays down certain rules for distribution of property of
intestate other than Parsis. The property of an intestate devolves upon
the wife and husband or his kindred, a widow will not get her husband’s
property unless she has entered into a valid contract before marriage u/
sec-21 & 22. If not she gets excluded from the share of he husband
estate. If husband survives his wife has the same rights in respect of his
wife's property if she dies intestate to the property. If an person dies
intestate leaving behind
1) Widow and a lineal descendent , Widow takes 1/3rd of the share in the
property and lineal descendent takes 2/3rd of the share .
2) Widow and kindred but no lineal descendent each takes ½ and ½ of
the share in the property .
3) Widow but no lineal descendents If the net value of the property was
5000 and less than 5000 the widow would take the whole of the property
up to the extent of 5000rs .
If no widow then the whole property will be taken by the lineal decedents
in default .in default to his kindred, and in default of both to the
government.
RULES OF DISTRIBUTION (SEC 36-48)
Rules of distribution among lineal descendents sec 36-48:
If the intestate has left a widow, her share of 1/3rd is to be first deducted.
The balance will dissolve as per the following rules:
a. If the intestate has left a child or a children only the child takes the
whole of the property, if they are more then one children, all of
them will get equal share.
e.g. ’A’ dies , leaving 3 children B,C, and D and no children of any
predeceased children , after the widows share is given to the widow , the
balance 2/3rd would be divided equally between B,C and D .

In case ‘A’s wife had died before him , then B,C and D would divide the
property equally among them .
b) If the intestate leaves back grand child or grand children behind
him , the grand child is alone survivor he will be taking the whole of
the share .
If the grandchildren are more than one the grand children will take equal
share .
E.g. A , has three children and no more , x, y, and z they all die before A ,
X leaves 3 children , Y two children and Z, leaves 4 children , later A dies
leaving these 9 grand children and no descendent of deceased grand
child in this case each of this grand child will take 1/9th of the share .
The same rule applies if deceased left only great grand children or
remoter lineal descendents Grand child or grand children or grate grand
children or great grand children . The division among them has to be per
capita .
If , however the lineal descendent are not in the decree the division has
to be per stripes .
E.g. ‘A’ had 3 children X, Y, Z ;X leaves 4 children , Y dies leaving 1 child ,
and Z alone survives father ,’A’ .
In this case 1/3rd is allotted to Z , 1/3rd to the 4 children of X , and the
remaining 1/3rd to the only child of Y.
RULES OF DISTRIBUTION AMONG KINDERED
SEC(41-48).
a) If the intestate has left a widow her share has to be first be deducted
and the rest has to be divided .
If the father of the intestate is living along with the widow after
deducting the widows share i.e. ½ the father takes ½ the share .
b) If intestates father is dead, Mother, Brother, and sister of the intestate
are alive the intestates property is to be equally divided among them .
The children of the deceased brother and sister will represent they
parents and will take the share as they parents would take during they
life time.
E.g. ‘A’ dies intestate, survived by his mother and two brothers of full
blood, E and F and sister G , who is uterine sister .
The Mother takes 1/4th , each brothers takes 1/4th and the uterine sister
takes 1/4th of the share in the property .
a) Also if the deceased leaves back only lenial descendents the
property would be equally shared b/w all the surviving lenial
descendents equally.
d) If mother alone survives then, the mother will take the whole of the
property.
f) If they is no father, mother no lineal descendents, only brother and
sister are surviving then the property is equally shared b/w such
surviving brother and sister.
g) If nobody in stock of the intestate is surviving the property could be
taken by the government by escheat.

SPECIAL RULES AS TO PARCIES INTESTATE

For the purpose of intestate succession among Parsis:
There is no distinction b/w those who are actually born in the life time
and of the deceased and those who at the date of his death were only
conceived in the womb, also who were subsequently born alive
(posthumous).
A lineal descendent (brother, sister, aunt or uncle) of an intestate who
has died in the life time of intestate without leaving a widow or any lineal
descendent such are not to be taken into consideration, while
determining succession to property of the intestate.
Where widow of any relative of an interstate has married again in the life
time of the intestate, is deemed not to be in existing at the time of the
intestate’s death.
Disqualification would also apply to the widow who re-marries.

SHARES IN CASE OF A PARSI DYING INTESTATE.

When a male Parsi dies intestate leaving;
1. Widow and children and no parents, here the son and widow will
get each double the share of daughter.
2. Children only and no widow ; the son gets double the share of each
daughter
3. Widow and children and father and mother
4. Here the share of the father will be ½ of grandson, mothers share
will be ½ the share of granddaughter’s, widow and son will get
double the share of each daughter.
Where a female parsi dies leaving behind;
1. Widower and children, here all will get equal share .
2. Children only, the property is equally divided among the living
children, whether male or female.
Where a parsi dies leaving behind;
1. Any lineal descendent and the intestate’s child who has died in his
life time .
In this case if the child was a son then the widow and children will take
equal share
2. No lineal descendent ,
If the intestate leaves a widow or widower but no widow of a lineal
descendent .
In this case the widow or the widower will take ½ the share in the
property .
3 . If the intestate leaves no widow or widower, but one widow of a
lineal descendent.
Here the widow or the widower takes 1/3rd and the widow of the other
lineal descendent gets the other 1/3rd of the share .
4 . If the intestate leaves no widow or widower but one widow of a lineal
descendent. She gets 1/3rd of the share in the property .
5. If the intestate leaves no widow or widower, but more than one widow
of a lineal descendent. Here 1/3rd of the property is to be divided equally
among all the widows surviving.
6. Neither lineal descendents nor widow nor widower nor a widow of any
lineal descendent
Here the intestates his or her next of kin (person’s closest living relative)
will take of the whole of the property.

Probate
According to section 2(f)1 of the Indian Succession Act, 1925 Probate
refers to a copy of the will that is certified by the seal of a court of
competent jurisdiction. Through Probate, rights pertaining
administration of an estate is granted to the applicant (who is an
executor under the will). It is a judicial process through which the validity
and authenticity of a will is determined in a court of law. In this process,
the executor of the will, beneficiaries, and value of the estate are
determined. Probate helps the executor to receive a certification from
the court that he is duly authorized to administer the estate of the
testator under the will. Even a beneficiary can be appointed as an
executor under the will.
To whom Probate cannot be granted
According to section 2232 of the Indian Succession Act, 1925, Probate
cannot be granted to any person who is a minor or is of unsound mind.
Neither it can be granted to an association of individuals unless it is a
company which satisfies the conditions prescribed by rules to be made
by notification in the Official Gazette by the State Government in this
behalf.
Letter of Administration
218 letter of administration is granted .
The critical difference between Probate and Letter of Administration is
that Probate is granted to an executor nominated under the will.
Whereas, if a will does not nominate an executor, the beneficiaries of the
deceased will have to file an application for Letter of Administration.
This Letter of Administration would grant the same administrative rights
to the beneficiaries that an executor would have enjoyed. However, If a
person dies intestate, then an applicant seeking administrative rights
pertaining to the deceased estate files for Letter of Administration.
Hence, when a person dies intestate/ or doesn't nominate an executor
under the will, it is then, the Letter of Administration acts as a facilitating
document. Letter of Administration is granted to the beneficiaries after
they apply to a Court of law having competent jurisdiction. Letter of
Administration entitles the administrator to all rights belonging to the
intestate as effectually as if the administration had been granted at the
moment after his death.
According to section 234 of the Act, if the executor, residuary legatee or
representative of the residuary legatee doesn't exist, declines, is
incapable of acting or cannot be found, then the person who would have
been entitled to administer the estate in case of the deceased dying
intestate would be entitled to file an application for the Letter of
Administration. The same provision under the act empowers any other
legatee having a beneficial interest or a creditor to file an application for
the Letter of Administration as the case may be.
To whom Letter of Administration cannot be granted
Letters of administration cannot be granted to any person who is a
minor or is of unsound mind, nor to any association of individuals unless
it is a company which satisfies the conditions prescribed by rules to be
made by notification in the Official Gazette by the State Government in
this behalf.
Is it mandatory to obtain Probate /Letter of Administration?
Section 213(1) makes it mandatory for every legatee or executer to
obtain a Probate of the will or Letter of Administration with the will
before they try to execute a will. Otherwise, an executor or legatee
cannot establish any right in a court of law pertaining to the concerned
will and any estate mentioned therein.
In simple words, an executor or the legatee can only perform their
testamentary operation and their respective roles disposition of the
deceased estate, when they duly obtain a Probate/Letter of
Administration from a court of competent jurisdiction.
Exception to the mandate under section 213(1)
Section 213(2) read with section 57 of the Indian Succession Act, 1925
clearly carves out certain exceptions to the mandate under section
213(1) of the Act. For a better understanding, both sections are
extracted below:
57. Application of certain provisions of Part to a class of wills made by
Hindus, etc.--The provisions of this Part which are set out in Schedule III
shall, subject to the restrictions and modifications specified therein,
apply—
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina,
on or after the first day of September 1870, within the territories which at
the said date were subject to the Lieutenant-Governor of Bengal or
within the local limits of the ordinary original civil jurisdiction of the High
Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits
so far as relates to immovable property situate within those territories or
limits, 2[and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on
or after the first day of January 1927, to which those provisions are not
applied by clauses (a) and (b):]
Provided that marriage shall not revoke any such will or codicil.
213. Right as executor or legatee when established.
(1) No right as executor or legatee can be established in any Court of
Justice unless a Court of competent jurisdiction in India has granted
probate of the will under which the right is claimed, or has granted
letters of administration with the will or with a copy of an authenticated
copy of the will annexed.
(2) This section shall not apply in the case of wills made by
Muhammadans 3[or Indian Christians], and shall only apply--
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where
such wills are of the classes specified in clauses (a) and (b) of section
57; and
(ii) in the case of wills made by any Parsi dying, after the
commencement of the Indian Succession (Amendment) Act, 1962 (16 of
1962), where such wills are made within the local limits of the 4[ordinary-
original civil jurisdiction of the High Courts at Calcutta, Madras and
Bombay, and where such wills are made outside those limits, in so far as
they relate to immovable property situate within those limits.]
A bare reading of Sections 213(2) and 57 of the Act makes it clear that
whatever exception contained in Sub-section (1) of Section 213 has no
application in respect of wills made by any Hindu, Buddhist, Sikh or Jaina,
on or after the first day of September, 1870, within the territories subject
to the Lieutenant-Governor of Bengal or within the local limits of the
ordinary original civil jurisdiction of the High Courts of Judicature at
Madras and Bombay. Also, in respect of those wills that are made
outside the territories mentioned above but deals with immovable
property situated within such territories.
SUCESSION CERTIFICATE
Succession certificate granted under this act is a document giving
authority to a person who obtains it.
To represent the deceased for the purpose of collecting the debts &
securities due to him or repayable in his name.
It allows the debtors to make payment without any risk.
When Succession certificate is granted u/sec 373,
1. If the judge decides the right belonged to the applicant.
2. If the applicant appears to him to have prima facie best title to it.
When certificate is not granted,
1. With respect to any debt or security to which
The right is to be established either by probate or letter of administration
.except in cases of Christians.
Who can grant it?
1. Can be granted by the Dist Court.
2. Or any court inferior with the powers of the Dist court.
Contents of the certificate sec 372,
1. Time of deceased death.
2. The place where ordinarily resided.
3. Name & residence or his relative.
4. Right in which the petitioner claims.
5. Absence of any impediment either in the grant or in the validity of
the certificate.
6. Debts & securities in respect of which it is applied for.
REVOCATION OF CERTIFICATE SEC 383
Circumstances under which the certificate may be revoked.
1. That the proceeding to obtain was defective in nature.
2. Certificate was obtained fraudulently by making false suggestion.
3. Certificate was obtained by untrue allegation.
4. That the certificate has become useless & inoperative through
circumstances.
5. That in an order of the suit if it renders proper that the certificate
should be revoked then it could be revoked.
Succession certificate is a sanctioning document that sanctions the
right to inherit debt and securities to the legal heirs of the deceased who
died intestate. This right to inherit is sanctioned when the beneficiaries
apply to a civil court of competent jurisdiction. In other words, a
succession certificate gives legal recognition to the right of legal heirs to
inherit the estate of the deceased. According to section 37012 of the Act,
it is pretty clear that Succession Certificate cannot be granted pertaining
to any debt or security to which the rights are required to be established
by Probate13 or Letter of Administration.
Succession Certificate is not required in case of compensation
sanctioned for an employee's death in the course of his duty.The Ho'nble
Supreme Court has discussed the status conferred upon the grantee of
a Succession Certificate in Banarsi Dass Versus Teeku Dutta (Mrs) and
another.
The court said that "The main object of a Succession Certificate is to
facilitate collection of debts on succession and afford protection to
parties paying debts to representatives of deceased persons. All that the
Succession Certificate purports to do is to facilitate the collection of
debts, to regulate the administration of succession and to protect
persons who deal with the alleged representatives of the deceased
persons. Such a certificate does not give any general power of
administration on the estate of the deceased. The grant of a certificate
does not establish title of the grantee as the heir of the deceased. A
Succession Certificate is intended as noted above to protect the debtors,
which means that where a debtor of a deceased person either voluntarily
pays his debt to a person holding a Certificate under the Act, or is
compelled by the decree of a Court to pay it to the person, he is lawfully
discharged. The grant of a certificate does not establish a title of the
grantee as the heir of the deceased, but only furnishes him with authority
to collect his debts and allows the debtors to make payments to him
without incurring any risk".
After reading the decision of our Hon'ble Supreme Court it can be easily
construed that a Succession Certificate is helpful while dealing with
movable assets like provident fund, bank deposits, shares, loans and etc.
but not a strong proof for establishing administrative rights pertaining to
an immovable property of the deceased in a court of law. Instruments
like Letter of Administration should also be supplemented for grant of
administrative rights pertaining to an immovable property.
Probate, Letter of Administration and Succession Certificate are legal
documents through which rights pertaining to the estate of the
deceased are granted. Probate and Letter of Administration are the
primary documents through which administrative rights pertaining to the
estate of the deceased are validated. The role of Succession Certificate
is very limited in comparison with the other two documents. Succession
Certificate can be used for acquiring debts and securities but rights
pertaining to immovable property and assets that are of significant
worth requires grant of Probate or Letters of Administration.

Succession certificate, Purpose

When succession certificate is required is a commonly asked query. The
succession certificate in family law empowers the holder to receive
interest/dividend on the securities and negotiate or transfer such
securities as mentioned in the certificate. All payments made to and by
the succession certificate holder on behalf of the deceased person, will
be legally valid. These are some of the important reasons on when
succession certificate is required. Also, the succession certificate in
India is valid in the entire country.
The succession certificate in family law is issued by the district judge of
the area, where the deceased lived at the time of his death or has any
property belonging to him/her. To get a succession certificate, one must
file a petition with the relevant district court.
Relevant jurisdiction would be the place where the deceased stayed
during the time of his death. In the absence of this, relevant jurisdiction
will be the place where a property of the deceased is located at.
If a family member passes away, then, the next legal heir who is directly
related to the deceased, such as his/her husband, wife, son, daughter, or
mother, is eligible to apply for the succession certificate. This certificate
can be used to transfer the telephone connection, electricity connection,
house tax, filing of IT returns, etc. For transferring property and claiming
insurance, one needs to get a legal heirship certificate from the court for
which the legal heir certificate cost should be paid. The legal heir
certificate is also called legal heirship certificate or surviving member
certificate.
Also, a succession certificate petitioner may appeal to the appropriate
high court against the revocation order.

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