Wills under Hindu Law & Muslim Law

May. 29, 2020 • anshu sharma

INTRODUCTION

Will implies the legitimate revelation of the goal of an individual as for his property, which he wants to produce results after his demise. It is a one-sided archive and produces results after the demise of the individual creation it. It very well may be disavowed or modified by the producer of it whenever he is equipped to discard his property. A will made by a Hindu, Buddhist, Sikh or Jain is administered by the arrangements of the Indian Succession Act, 1925. Anyway, Muslims are not represented by the Indian Succession Act, 1925 and they can arrange their property as indicated by Muslim Law.

The deceased benefactor should obviously state themselves as the creator of the Will and ought to proclaim that they deny every single past Will and codicils (add on). By doing this, any already archives would be disavowed. The departed benefactor should then show that they have the psychological ability to discard their home and they are doing so readily without power or restriction. The departed benefactor should then sign and date the Will within the sight of two observers who are not to profit by it (in this way not recipients). You can have additional observers if there is a potential for some type of contention. In the event that an observer is named as a recipient in the Will, they will either (contingent upon the locale) be refused to get under the Will or it would invalid the status of them being an observer, subsequently discrediting the Will. The departed benefactors signature must be set toward the finish of the Will. On the off chance that this isn't done, any content that is composed after the mark will be disregarded. The following arrangement is that at least one recipients should generally be referenced in the content however again this would rely upon the ward the record is composed for. It isn't fundamental for a Will to be drafted by a legal counsellor or an expert Will author. Anyway, there could be potential issues that may happen if a departed benefactor endeavour to make a home-made Will. On the off chance that the deceased benefactor goes down the course of drafting the Will themselves, they won't have somebody with the legitimate mastery to help clarify any of the arrangements or right any specialized lack or mistake in articulation that is drafted by the Will. This implies there can be a serious once in a lifetime opportunity of mix-up on the off chance that it has not been investigated appropriately.

WILLS UNDER MUSLIM LAW

Muslim Law is based on The Quran. Quran is not just a holy book but also contains several references to the law which forms the basis of Shara. It is believed that Sunnat and Hadis are respectively acts and approvals of the Prophet and his sayings. As the Quran is not a legal text, Sunnat and Hadis are taken as resources to the law.

CONCEPT OF WILL UNDER MUSLIM LAW

Will is called al-wasiyya under Muslim Law. A Will can come into operation after the testator’s death and can be executed after payment of funeral and any outstanding debts of the testator. If the testator dies without testament, rules of intestate Succession will be applicable. A will or testament or Wasiyat is defined by Tyabji as “conferment of the 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.”Ameer Ali says “a will from the Mussalman point of view is a divine institution since its exercise is regulated by the Quran”. At the same time, the Prophet declared that the power should not be exercised to the injury of the lawful heirs.[2]

These four duties to be performed when a Muslim dies:

Payment of funeral expenses
Payment of his/her debts
Execution his/her Will
Distribution of the remaining estate amongst the heirs according to Shariat.

Important Terms of Islamic Will:

Wasiyaa – Will
Al-musi - Testator, who makes a Will.
Al-musa-lahu – Legatee, The person/persons, in whose favour, the Will is created.

WHO CAN MAKE A WILL UNDER MUSLIM LAW?

According to Muslim Law,

Both males and females can make a Will. In the case of pardanashin women, Will made by her is considered as valid if stronger evidence for obtaining a probate of her Will is needed.
Age of majority- 15 years, but not applicable in India. A Will shall be void if it is made by a guardian on behalf of who is not major or insane.
A Will can be made by minor but has to be ratified after he/she attained the age of majority.
The testator must be sane at the time of the making of Will.

According to Shafi School of Sunni Law,

A person who is capable of duties can make a valid will
A person who is under inhibition on account of insanity cannot make a will
A person who is not on his senses cannot make a will
A will made by a child is also not valid.

According to Shia Law,

A Will can be made by a minor. If the testator was injured himself by his action or attempt to commit suicide, Will shall declare as void.

IN WHOSE FAVOUR MUSLIMS CAN MAKE A WILL

The legatee can be Muslim or Non-Muslim, man or woman, minor, major, even a child in the womb who takes birth within 6 months of the testator’s death, institution. Will in favour of Non-Muslim and institutions must not be hostile towards Islam. However, an institution engaged in promoting education and self-reliance is a valid one as long as it is not against Islam.[3] The legatee cannot be competent if he/she renounce Islam. A Will in favour of a Hindu temple or a society will be invalid Will.

Under Sunni Law, If legatee of the Will is responsible for the murder of the testator either murder was caused intentionally or accidentally, that is not relevant. Even though the murderer was unaware of the truth that he/she is the legatee of a Will, such Will is not valid.

Whereas under Shia Law, If legatee murder testator of the Will accidentally and not intentionally then legatee is competent to receive benefits of a Will.

TESTAMENTARY CAPACITY

Muslim Law (both Hanafi Law and Shia Law) restricts the power of estates to one-third (has to take consent of heirs for one-third part) of the net assets after payment of the funeral expenses of the deceased and testator’s debts. Reaming part of net assets must, in any case, be distributed as per rule of intestacy, thus rights of heirs can be protected. This has been stated in the Hedaya. In Damodar Kashinath Rasane v Shahzadi Bi, the Bombay High Court stated that a Muslim cannot bequeath more than one-third of his property whether in favour of an heir or a stranger.

à Under Shia Law distribution of one-third property can be distributed without the consent of heirs but if it is excess one-third, then the consent of heirs is a must. Consent of all heirs is required if one or some of them given the consent then legacy will be valid to their extent only. Heirs cannot change their minds to accepting or rejecting bequest. A bequest in favour of heirs without the consent of other heirs is invalid.

When the testator does not have an heir, the one-third rule can be restricted, and the Doctrine of Escheat will be applicable. Under this doctrine, the Government is entitled to take the property. Under Shia Law, consent of heirs can be given after or before the death of the testator whereas, under Sunni Law, consent can be given after the testator’s death.

The testamentary capacity of a Muslim is cut down by two principal limitations:

Rule of Abetment under Sunni Law:

General rule, if more than one-third of the property of the deceased would take effect to one-third with the excess going by inheritance. If exceeds one-third property given to the more than one legatee, each of them would be reduced proportionally. This is called ‘Rule of Rateable Proportion’ which is follows under Sunni Law.

Exception: If there are no heirs available and the only spouse is left then the spouse will able to take whole property.

Rule of Abetment under Shia Law:

Shia Law follows “Rule of Chronological Priority’. The bequests made prior in date take priority over those later in date. But if the bequest is made by the same will, the latter bequest would be a revocation of an earlier bequest. This is called the Rule of Chronological Priority. In the Will whose name appears first will get a benefit over second and second will prevail over third then so on. No legatee will get the benefit of the Will when his/her name appears after the one-third of assets.

Rule of Abetment under Muslim Law:

Where the legacy exceeds the limit of one-third then given below principles will follow: Bequest for a secular purpose will prevail over pious purpose. Classification of pious purpose;

The first category will prevail over second and second will prevail over the third.

REGISTRATION AND REVOCATION OF THE WILL

Section 40 and 41 of The Indian Registration Act deals with the registration of Will. The testator can revoke his Will at any before his death. It can be either expressly or impliedly. Testator can revoke the Will either orally or in writing. Revocation of the Will is possible till Marzul Maut (end at the death bed). The testator is empowered to make a subsequent will. Where the testator has disposed of the bequeathed property by way of alienation it will be presumed that the testator has revoked the bequest.[7]

WILLS UNDER HINDU LAW

In Hindu Shastra ‘Will’ is a wholly unknown concept. According to Jagannatha Sankalpa is the nearest Sanskrit expression of Will. Marna Sadana means last Will is, after all a modern expression. Thus Will was an unknown concept The Hindu Wills Act was enacted in 1870 then, it was replaced by the Indian Succession Act, 1925. Indian Succession Act deals with Intestate and Testamentary succession. In the landmark case of Tagore v. Tagore testamentary power of Hindu to make a gift by the Will was first time recognised. Will means a continuous act of gift up to moment of the donor’s death and though revocable in his lifetime, is, until revocation, a continuous act of gift up to the moment of death, and does then operate to give the property disposed of to the persons designed as beneficiaries.

Section 57 of the Act- Application of the certain provisions of Part to a class of Will made by Hindu, etc. deals with the territorial limits and it says that this Act applies to the Wills made by any Hindu, Buddhist, Sikh or Jain. Muslims are excluded from this Act. Section 57 provided that after marriage shall not revoke such Will or codicil.

TESTAMENTARY SUCCESSION

According to Section 30 of the Act, any Hindu may dispose of his property by Will which is under his capacity under provisions of Indian Succession Act, 1925 or any other law which is in force and applicable to the Hindus.
Explanation of Section 30 of the Act further clarifies that interest of a male Hindu in Mitakshara coparcenary property or interest of a member of a Tarwad, “Tavazhi, lllom or Kutumba or Kavaru, shall be deemed to be property capable of being disposed of by him or by her within the meaning of this section.

LIMITATION TO THIS EXPLANATION

In Rajamma v. Rami Reddy, it was held by Andhra Pradesh High Court that explanation of section 30 of the Act states that ‘property capable of being disposed of by him or by her’ in the matter of a male Hindu in Mitakshara Coparcenary Property. A male Hindu can only dispose of his share of the deceased out of the joint property. He is not legally bound to dispose of the entire joint family property of coparceners by Will.

DRAWBACKS OF SECTION 30

Section 30 of the Hindu Succession Act does not prohibit a gift by a coparcener of his undivided interest in the coparcenary to another coparcener or even to a stranger. A Will is not invalid if some first-class heirs were not appointed as the legatee of the Will by testator.[18] The court cannot interfere in testator’s decision of making the Will, even though he makes a Will ignoring his married daughters. A Will executed by a coparcener can only challenge by another member of the coparcenary.

PRESENT STATUS OF SECTION 30

In 2005 Section 30 was amended and it includes daughter as like male member, is a coparcener and she has same power concerning to joint family property by birth.

WHO CAN MAKE A WILL?

It lays down in Section 11 of the Indian Contract Act, 1872:

A person can make a Will who is fulfilling these conditions,

REASONS TO CONSIDER A DOCUMENT AS WILL

As per Privy Council,

Disposition to take after effect after death- A document becomes Will only after the death of testator.
Revocability- Irrevocable document cannot be termed as Will.

DIFFERENCE BETWEEN WILLS UNDER MUSLIM LAW AND HINDU LAW

While there is proof of testamentary progression by Muslims, Indian history is quiet about the start of idea of wills in Hindus. The Indian Succession Act, 1925 combined the laws of an intestate (with specific exemptions) and testamentary progression, applying to all the Wills and postscripts of Hindus, Buddhists, Sikhs and Jains all through India. Muslim testamentary progression anyway was rejected from the ambit of use of this demonstration and remains generally administered by the Muslim Personal Laws.

The law on Muslim wills is not the same as the law overseeing wills made by Hindus or those made under the Indian Succession Act, 1925. This is on the grounds that, under Muslim Law, the testamentary demeanour of property is viewed as awesome in nature and draws on the Quran.The Muslim will isn't administered by the Indian Succession Act, 1925. The Muslim individual laws in India, or the Shariat law, announces certain principles and guidelines and manners by which an individual can arrange off his/her property.

à In contrast to the Muslim Personal Law, Hindu customary law didn't straightforwardly perceive the presence of the ability to make a Will. In any case, both conventional and present-day legal scholars frequently drew the similarity between the capacity to make a ‗gift' and the Will. While managing the similarity of ‗gift' and Will, the Privy Council has set out that regardless of whether Wills are not all around to be viewed in all regards as blessings to produce results on death, they are by and large so to be viewed with respect to the property which they can move and the individual to whom it tends to be moved.

à There are sure central contrasts between the manner in which property can be arranged off by Hindus and Muslims. Right off the bat, while the confinements on testamentary limit of a Hindu depend on the method of securing of property: that is whether the property is tribal or self-gained, the constraints in Muslim law depend on the platitudes of the Quran restricting the property to be granted by a wasiyat to 33% of the property left subsequent to releasing the obligations and memorial service costs of the perished. The Hindu and Muslim laws of testamentary progression additionally contrast concerning ladies. While ladies in Hindu law have the ability to disseminate through will, the property they have supreme proprietorship in, in at any rate and to anybody, the privileges of Muslim ladies, there are sure special cases to the general standards. For example, for the most part, the portion of property passed on in Will can't surpass a-third except if with assent of different beneficiaries.

à Notwithstanding, if a Muslim lady has no blood relations and her significant other would be the main beneficiary, at that point she can will 66% of her property in support of him. Another obvious contrast between the two laws is that Muslim ladies can at no time of time get more than that acquired by the guys in the family, if the granted offer surpasses 33% of the property just as in intestate progression, where ladies get the specific portion of their male partners.

à Likewise, as of not long ago, Hindus were limited in parting with their property through Will for a noble cause by utilization of segment 118 of the Indian Succession Act. The segment evidently implied that to the degree to which the inheritance is for strict or altruistic utilizations, the use of this segment is pulled in regardless of the way that the endowment might be for just a piece of the property or some enthusiasm for the property. This area was proclaimed nonsensical, discretionary and unfair and, hence, violative of Article 14 of the Constitution.

à The heterogeneity in the Indian culture on occasion proposes an issue of sane mediation for the appointed authorities when they need to choose issues as close to home as progression and legacy. Individual laws in progression have not been challenged as seriously as the individual laws in marriage, separation and appropriation. In spite of this, one regularly feels that some consistency in progression laws will guarantee uniformity, in this way condensing the separation between privileges of Hindus and Muslims to good cause and wills. It isn't denied that there are available both individual laws and administrative institutions on whose establishment the cases are to be chosen. Be that as it may, these laws neglect to adjust to the hallowed perfect of fairness for all as cherished in the constitution.

à There have been proposals and escalated discusses, beginning from the Constituent Assembly that made our Constitution, to have a Uniform Civil Code, as under the arrangements of Article 44 of the Constitution, to provide for the Indian culture a lot of individual laws which guarantee pretty much an equivalent treatment to all, without assaulting their strict convictions. Since testamentary progression is a common demonstration, presenting some consistency in the laws followed by Muslims and Hindus won't assault the pith of the two religions. Accordingly, there ought to be no restrictions forced on the degree to which the property can be handed down, the people to whom such property can be give and the gift of the property by will for strict and altruistic reason and this must be done through a Uniform Civil Code for progression, as visualized in Article 44 of the Constitution.

CONCLUSION

To close, it might be noticed that the laws of progression vary radically relying on the individual law by which the perished individual is administered at the hour of his demise. The religion which an individual indicates to purport at the hour of his/her demise (or is known to have last adhered to) would decide the individual law material to the progression of the perished individual's property. In this manner, it is basic to know and comprehend the individual laws pertinent to the individual creation a Will or arranging the progression of his home. Further, in a few cases, the law has developed through legal points of reference what's more, in this way separated from the stated aim of the law spelled out in the resolution, it is prudent to familiarize oneself with legal points of reference, to find out the current position.

The Author is Dhruvi Anajwala from Gujarat National Law University, B.A.L.L.A.B ( third year)

References

Admin, “Will in India - Laws on Wills” (Legal Articles in IndiaMay 3, 2018) <http://www.legalservicesindia.com/law/article/960/8/Will-in-India-Laws-on-Wills> accessed April 9, 2020.
Syed Ameer Ali, Mohammedan Law Vol 1, (5th edn, Law Publishing Company, 1976)438.
Badrul Islam Ali Khan .v Ali Begum [1935] AIR 251 (Lah).
Damodar Kashinath Rasane v Shahzadi Bi [1989] AIR 1 (Bom).
Gulam Mohammed v Gulam Hussain [1932] AIR 81 (PC).
Asaf. A.A.Fyzee, Outlines of Muhammadan Law (4th edn, 1974)358.
Abdul Karim v. Shiofiannisa [1906] (Cal.).
Mulla, Hindu Law, (12th edn) 534.
Madras University, Tamil Lexion, (Vol. V) 30, 84
Jatindra Mohun Tagore v. Ganendra Mohun Tagore, [1872] 9 BLR 377 (PC).
Indian Succession Act 1925, s 57.
Indian Succession Act 1925, Exception of s 57.
Hindu Succession Act 1956, s 30.
Rajamma v. Rami Reddy [1997] (2) HLR 548 (AP).
Pariki Subbireddy v. Pariki Chinna Reddemma, [1996] (2) HLR 208 (AP).
Mangat Ram v. Dina Nath [1997] (2) HLR 220 (P&H)
Gurdev Kaur v. Kaki [2006] (1) HLR 625 (SC).
Fateh Singh v. Lakhbir Singh, [2004] (1) HLR 426 (P&H).
Abdul Ghani v. Fakhar, [1922] 24 BOMLR 1268 (PC).Athulya, “Muslim Wills: 9 Important Points on Wills & Islamic Laws” (VakilsearchApril 1, 2020) <https://vakilsearch.com/advice/muslim-will-islamic-wills-india/> accessed April 10, 2020.

Books:

Asaf. A.A.Fyzee, Outlines of Muhammadan Law (4th edn, 1974)
T.P.Gopalakrishnan, Law of Wills
Mulla, Hindu Law, (12th edn).
Madras University, Tamil Lexion, (Vol. V) 30, 84
Syed Ameer Ali, Mohammedan Law Vol 1, (5th edn)

Statutes:

Hindu Succession Act, 1956
Hindu Wills Act, 1870
Indian Contract Act, 1872
Indian Evidence Act, 1872
Indian Succession Act, 1925

Websites:

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