Family Law- II

Concept of 'Will' under Indian Succession Act, 1925

Submitted by
Muskan Tyagi

Division B PRN 14010224091 Class of 2014-2019

Symbiosis Law School, NOIDA

Symbiosis International University, Pune.

In
February, 2016

Under the guidance of

Pronami Dutta
Assistant Professor
Symbiosis Law School, Noida
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CERTIFICATE

The project entitled Death by Rash and Negligent Act submitted to the Symbiosis Law
School, NOIDA for Law of Crimes as part of Internal Assessment is based on my original
work carried out under the guidance of Prof. Sukanya Singha from December, 2015 to
April, 2015. The Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the Candidate

Date:
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LIST OF CASES
Cases
Abraham v. Abraham ....................................................................................................................... 7
Ad. Gen. v. Anandachari.................................................................................................................. 8
Dagree v. Pacotti ............................................................................................................................. 7
Gabriel v. Mordakai ........................................................................................................................ 6
Gould v. Lewals ............................................................................................................................. 11
Jacob v. Jacob ................................................................................................................................. 6
Jaswant Kaur v. Amrit Kaur and others ......................................................................................... 16
John Jiban v. Abinash ...................................................................................................................... 8
Ma Khum v. Ma Ahma ..................................................................................................................... 7
Mozelle Joshna v. Sophia Arakie ..................................................................................................... 6
Musleah v. Musleah ......................................................................................................................... 6
Nagulapati Lakshmamma v. Mupparaju Subbaiah ....................................................................... 16
Napen Bala v. Sita Kanta................................................................................................................. 7
Pouey v. Hordern ............................................................................................................................ 12
Ram Prasad v. Bherulal .................................................................................................................. 10
Richard Skinner v. Durga Prasad ................................................................................................... 7
Shankaram Govindan v. Lakshmi Bharathi ................................................................................... 13
Sinammal v. Adm. Gen.,................................................................................................................... 8
Velasco v. Coney............................................................................................................................ 13
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INDEX
1) HISTORICAL BACKGROUND....4
2) APPLICATION OF THE ACT..4
a) PERSONS TO WHOM THE ACT APPLIES.4
3) INTRODUCTION TO THE CONCEPT OF WILL.............................7
a) FORM OF WILL.8
b) LANGUAGE OF WILL..9
c) ESSENTIALS OF A WILL.9
d) KINDS OF WILL9
4) POWER OF APPOINTMENT..10
a) CAPACITY. ...10
b) FORMAL VALIDITY11
c) MATERIAL VALIDITY11
d) CONSTRUCTION..11
e) REVOCATION...12
5) INDIAN LAW..12
a) INTESTATE SUCCESSION..12
b) TESTAMENTARY SUCCESSION13
i) CAPACITY13
ii) FORMAL VALIDITY...13
iii) ESSENTIAL VALIDITY..13
iv) CONSTRUCTION OF WILL14
v) REVOCATION OF WILL.14
6) UNPRIVILEGED WILLS...15
7) PRIVILEGED WILLS.15
8) BIBLIOGRAPHY.17
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HISTORICAL BACKGROUND
With the establishment of the British rule in India, the English rule of testamentary and
intestate succession were made applicable to practically all people living in India, except
the Hindus and the Muslims. The Indian Succession Act, 1865 gave statutory form to the
English Law of intestate and testamentary succession and, made it applicable to all classes
of people of India, but at the same time contained certain exceptions, and the exceptions
were so many, with the result that all native of India were excluded from its purview:
Neither the Hindus not the Muslims were governed by it. It was the Hindu Wills Act, 1870
which made applicable certain portions of the 1865 Act to Hindus. The Muslims continued
to be outside its purview. The Parsis were considered to be governed by the English law
both in matters of Intestate and testamentary Succession. This was not liked by the Parsis
and the Parsis Intestate Succession Act, 1865 was passed. The piecemeal enactment of
statutes continued, and by 1925, there existed as many as ten statutes on the subject. In
view of this multiplicity of statutes, the matters were referred to the Statute Law Revision
Committee. Thus, the Indian Succession Act, 1925 is purely a consolidating statute, and
embodies to a large extent the rules of English law of succession.1

APPLICATION OF THE ACT

The Act purports to apply to all persons domiciled in India, yet many persons have been
exempted from its application. The provisions of Indian Succession Act, 1925 are not
applicable to Muslims. However, a Muslim cannot claim immunity if his marriage as held
under the Special Marriage Act, 1954. In such cases the provisions of the Indian Succession
Act, 1925, shall be applicable even though the will was made before or after the marriage.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian
Succession Act, 1925.

1
Paras Diwan, Law of Intestate and testamentary Succession, Universal Law Publishing Co., 3rd ed. New
Delhi (2006).
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PERSONS TO WHOM THE ACT APPLIES

1. Jews: The Jews were governed by the English rules of succession before the
coming into force of the 1865 Act2 and after the coming into force of the 1885 Act,
they were held to be governed by the rules of Testamentary and intestate succession
laid down in the Act and not by the personal law or custom of Jews. 3 The Act
applies to succession to the property of Jews domiciled in India.

2. Parsis: The provisions of the Parsi Intestate Succession Act, 1865 has now been
incorporated in Chapter II of Part V of the Indian Succession Act, 1925 and as
regards the intestate succession the Parsis are governed by this part. Since they have
a separate law of intestate succession for them, Chapter II of part V which lays
down rules of succession for others do not apply to them. Part IV of the Act, dealing
with consanguinity also does not apply to them. In all matters of testamentary
succession the Parsis are governed by the provisions of the Indian Succession Act,
1925.

3. Europeans and mixed Europeans: The Act applies to Europeans and

persons belonging to mixed European and native Indian blood as well as to East
Indians who are domiciled in India by birth or descent. As regards the other
Europeans and English subjects who die leaving behind property in India, the
succession is regulated by the Act. If such a person dies intestate, the succession to
his property will be governed by Part V of the Act and if he dies leaving behind a
will, then succession will be regulated under the provisions of the Act relating to
testamentary succession.4

2
Musleah v. Musleah, (1844) 1 Ful Rep 420; Mozelle Joshna v. Sophia Arakie, ILR 38 Cal 704; Jacob v.
Jacob, ILR (1942) 2 Cal 20.
3
Gabriel v. Mordakai, ILR 1 Cal 148
4
Part VI of the Act.
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4. Indian Christians: The Indian Christians in matter of succession, both intestate

and testamentary, are governed by the Act, though section 33A (which contains a
special provision relating to intestates widow) does not apply to them. It is
immaterial as to which form of Christianity they follow.5

5. Convert Christians: Since a Hindu or Muslim or follower of any religion may

convert to Christianity, the question is which law governs succession to the property
of such convert? In Abraham v. Abraham6, the Privy Council observed that the
convert may abide by the old law, notwithstanding he has renounced the old
religion. After this renouncement and till the passing of the 1865 Act, the accepted
view was that the converts continued to be governed by their old law if they have
so elected to be governed, and in Richard Skinner v. Durga Prasad7, it was
observed that the Indian Christians and such other native tribes, as were not
governed by the Hindu law or Muslim law, would be governed by the law which
they have adopted in the course of their conduct or under the customary law which
they have observed from time immemorial. But after the coming into force of the
1865 Act, it has been the confirmed view that the Indians who are converts to
Christianity would be governed by the Indian Succession Act and evidence to show
that they and the community to which they belong retained the Hindu or pre-
conversion customs was inadmissible.8 All Indians who are converts to Christianity
are governed by the Act and not by the law or the custom applicable to them before
conversion.
6. Converts right to succession to the property of his Hindu relations:
It has been seen earlier that under Hindu law a Hindu who has ceased to be so by
conversion to another religion does not incur any disqualification and he will

5
Ma Khum v. Ma Ahma ILR 12 Rang 184.
6
9 MIA 194
7
ILR 31 All 239
8
Dagree v. Pacotti, ILR 19 Bom 783; Napen Bala v. Sita Kanta, 15 CWN 158
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therefore inherit the property of his Hindu relations. But the descendants of a
convert are disqualified.9
7. Right of Hindu relations to succession to the property of the
convert: It appears that Hindu relations of a convert to Christianity have no right
to succeed to his property.10 Similarly in John Jiban v. Abinash,11 where a Christian
became a Muslim, it was held that succession to his property was governed by
Muslim law and no Christian relation of his could succeed to his property.
8. Muslims: In matters of testamentary and intestate succession Muslims are
governed by Muslim Law. Sections 4 to 19 (relating to domicile), sections 20 to 22
(relating to marriage), sections 23 to 28 (relating to consanguinity), sections 29 to
49 (relating to intestate succession) and sections 57 to 191 (relating to testamentary
succession) do not apply to Muslims.
9. Persons whose marriage has been solemnized or registered under
the Special Marriage Act, 1954: Succession to the persons who marry or
whose marriage is registered under the provisions of the Special Marriage Act, 1954
is regulated not by the personal law of the party concerned but by the provisions of
the Act. However, if both the parties who have solemnized the marriage under the
Special Marriage Act, 1954 are Hindus, then succession to the property of either
party will be governed by Hindu Law, the Hindu Succession Act, 1956 and not by
the Special Marriage Act, 1954.
10.Hindus: The term Hindu includes not merely those who are Hindu by religion or
by birth but all those persons who are Jains, Sikhs or Buddhists by religion or by
birth. As to the testamentary power over the separate property of a Hindu, section
30 (1) of the Hindu Succession Act, 1956 lays down. Thus, in regard to
testamentary succession, Hindus are governed by the Act.

9
Section 26 of the Hindu Succession Act, 1956.
10
Ad. Gen. v. Anandachari, ILR 9 Mad 466; Sinammal v. Adm. Gen., ILR 8 Mad 169.
11
ILR (1939) 2 Cal 12
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INTRODUCTION TO THE CONCEPT OF WILL

Indian Succession Act, 1925

A will or testament is a legal declaration by which a person, the testator, names one
or more persons to manage his or her estate and provides for the distribution of his
or her property at death. For the devolution of property not disposed of by will.
The Indian Succession Act, 1925, incorporates the Roman and English principles
of inheritance. A uniform scheme is provided irrespective of the sex of the intestate.
Consanguinity is the determining factor for title to succession and relations by
affinity are excluded from the list of heirs. Though it has at times been thought that
a "will" was historically limited to real property while "testament" applies only to
dispositions of personal property (thus giving rise to the popular title of the
document as "Last Will and Testament"), the historical records show that the terms
have been used interchangeably. Thus, the word "will" validly applies to both
personal and real property. A will may also create a testamentary trust that is
effective only after the death of the testator.
Will as defined in the Act:

Section 2(h) of the Act defines Will as, Will is the legal declaration of the intention
of a testator with respect to his property which he desires to be carried into effect
after his death.
a) Form of Will: The unique feature of a Will is that no technical words are
necessary for making a will; nor is there any prescribed form to which a will
must conform. It is also t necessary that it should be written on court paper
or any kind of paper; nor is there any prescribed stamp duty.
The testamentary intention thus may be expressed in any form, but a
document to qualify as a will or testamentary disposition should satisfy the
following needs:
i. The directions contained in the writing are to come into effect after
the death of the maker of the instrument. If the writing confer or
intends to confer benefits inter vivos, without any reference to the
death of the maker, it cannot be called a will.
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ii. The intention of the maker of the instrument or writing should be

clearly established to be animus testandi, intention to make
testamentary disposition. A document may be formally executed as
a will, but it may totally lack animus testandi, then it is not a will.
iii. The document must satisfy the requirement of the manner in which
it is to be signed and attested, wherever such a requirement is
essential.
In Ram Prasad v. Bherulal,12 the Court found out that the so-called will
did not indicate anywhere in the will that it would come into effect after
the death of the executant. The Court held that document could not be
called a will.
b) Language of Will: A will may be written in any language and any words
may be used. Only requirement is that words should be such from which
intention of the testator is clearly discernible. A will may be written with
any material, ink, pencil, paint. It may partly be written in ink, partly in
pencil. In a will entirely written in ink, if alterations are made with pencil,
there will be presumption that alterations are deliberative. In a will written
in ink certain blank portions are filled in with pencil before its execution,
the pencil additions will be included in the probate.
c) Essentials of a Will: A will to be a valid document must satisfy the
following:
i. A will must be a legal declaration of the intention.
ii. The declaration should relate to the disposition of the property of the
testator.
iii. The declaration must indicate that the scheme or directions
contained in the will are to come into operation after the death of the
testator. Thus a will is essentially a revocable instrument which can
be revoked at any time before the death of the testator.
d) Kinds of Will: The Act mentions only two types of wills, privileged wills
and unprivileged wills.

12
AIR 1992 MP 44.
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Power of Appointment (Foreign Legislations)

English law empowers a person to give, by an instrument, such as will, to some other
person or to himself a power to appoint by will the person or persons who should succeed
to the property on the death of the person to whom the power is given. The person who
thus gives the power is known as he donor of the power or the appointer and the person
to whom the power is given is known as the donee of the power or the appointee. The
power of appointment may be either general or special. In the former case, the donee can
appoint any one including himself, and in the latter case his choice is limited to specified
persons or classes as indicated by the donor. In both the cases, the donee is dealing with
the property which is not his but of the donor. It can happen that the donor, the donee, and
the appointee, each may have a different domicile, or each one of them may change his
domicile after the creation of the power of the appointment. Superficially, it might be
thought that the matter being analogous to wills, it need not be treated differently. But
different considerations apply here. The reasons seem to be two: the power of appointment
is unknown to laws of most of the countries; secondly, the donee in exercising the power
of appointment is not dealing with his own property but with the property of the donor, and
thus he is to be regarded in some sense not as a testator making his own will, but as an
agent carrying out the wishes of the donor.13
Capacity: It has been held that if the donee has the capacity by the law of his own
domicile, then it is enough even though he is incapable by the law that governs the
instrument by which the power has created.14 The testamentary exercise of general
power is invalid for want of capacity, unless the appointer is capable by his lex

13
Paras Diwan, Law of Intestate and Testamentary Succession, (3rd ed., Universal Law Publishing Co. Pvt.
Ltd. New Delhi 2006), Dicey & Morris, 616-17.
14
Gould v. Lewals (1918) 2 Ch 391.
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domicilli; but that in the case of a special power, the exercise is valid if he is capable
by his lex domicilli or by the law that governs the instrument of creation.15
Formal Validity: The matter is now regulated by the Wills Act, 1963. Before
January 1, 1964, the testamentary exercise of power of appointment was valid if it
satisfied the formal requirement of the foreign legal system governing the
appointors will or the internal English law. Under the Wills Act, 1963, exercise of
power of appointment is formally valid if it is valid under the internal law in force
in the country where it was executed, or in the country where, at the time of its
execution or of the appointors death, he was domiciled or had his habitual
residence, or in a state of which, at either of those times he was a national, or if it
was formally valid under the law which governs the material validity of the
power.16
Material validity: The distinction between general power of appointment and
special power of appointment seems to be more pertinent here than anywhere else.
There is no difference of opinion that the material validity of a special power of
appointment is regulated by the law which governs the operation of the will.17 In
Pouey v. Hordern,18 a special power of appointment was given under an English
settlement to a domiciled French woman. She was incapable of exercising power
under the French law, though she was capable to do so under English law. But when
the donee exercises general power of appointment, different considerations operate.
Under the general power, the done is entitled to treat the property as his own and
can dispose it of as such. The Court of appeal said that the operation and effect of
his appointment must be determined by the law that governs the will by which he
exercises the power. In other words, by the law of his last domicile.19
Construction: The rule relating to the construction or interpretation of a will made
in exercise of power of appointment by will should be interpreted in accordance

15
Paras Diwan, Law of Intestate and Testamentary Succession, (3rd ed., Universal Law Publishing Co. Pvt.
Ltd. New Delhi 2006), Cheshire, 483.
16
Section 2 (1) (d) of the Wills Act, 1963.
17
Paras Diwan, Law of Intestate and Testamentary Succession, (3rd ed., Universal Law Publishing Co. Pvt.
Ltd. New Delhi 2006)
18
(1900) 1 Ch 492.
19
In re, Pryce (1911) 2 Ch 286.
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with the law intended by the testator; in the absence of any indication, it will be
presumed to be the law of his domicile at the time when the will was made.
Revocation: If power of appointment has been exercised by a will and it has been
revoked by a will, then the Wills Act, 1963, applies.20 The exercising of power may
also be revoked in a manner which is sufficient by the law of the donees domicile.21

INDIAN LAW

Law of testamentary succession in India is contained in Part IV of the Indian

Succession Act, 1925, and constitutes the law of testamentary succession in India, and
applies to all communities, except the Muslims. To the Hindus it applies with some
modifications. As to the other communities, such as Christians and Parsis, it applies
fully.
In the Indian Succession Act, 1925, letters of administration or probate can be obtained
in respect of the estate or will of any person, including a Hindu and Muslim. The Indian
courts exercise jurisdiction either on the basis of presence of assets within the
jurisdiction, or that the deceased had a fixed place of abode at the time of his death
within the jurisdiction. The Indian courts have declined to accept the jurisdiction purely
on the basis of fixed place of abode of the deceased within the jurisdiction. It seems
clear that if the Indian courts would exercise jurisdiction in granting administration it
would also exercise jurisdiction in respect of succession. There is no reported decision
of Indian court as to on what basis the Indian courts would recognize the jurisdiction
of foreign courts to determine succession to movables.

A. Intestate Succession: Intestate succession to movables is governed by the

lex domicilli of the deceased at the time of his death.22 There need not be
any doubt that this proposition applies to succession to the movables of
foreign domiciled deceased persons. Under the influence of English private

20
Section (1) (c).
21
Velasco v. Coney, (1934) P 143.
22
Shankaram Govindan v. Lakshmi Bharathi, AIR 1974 SC 1964.
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international law it is often forgotten that nationality is an important

connecting link in personal matters in India. It should not be ignored that in
India, intestate succession differs from community to community. Hindus
are governed by their own law of succession,23 Muslims by Muslim law of
Succession, Parsis by the Parsi law of Succession, and Christians and others
by their own law of intestate succession.24
B. Testamentary Succession: There is one law of testamentary succession in
India. Muslims are governed by their own law of testamentary succession,
and provisions relating to testamentary succession in the Indian succession
Act, 1925 do not apply to them.
a. Capacity: the Indian law lays down the broad rule that succession
to movables is governed by the law of the domicile of the deceased
at the time of his death. It is submitted as far as it concerns the
personal capacity, it should be governed by the law of the domicile
of the deceased at the time of making of the will. In the case of a
Muslim or a Hindu, the capacity to make a will is regulated by his
personal law at the time of making of the will.
b. Formal Validity: The general rule enacted in section 5(2) would
apply to formal validity of wills. It appears that wills executed in
India in respect of movables situated in India will be valid, if they
comply with the les fori. An Indian Muslim has the power to make
an oral will and if a will is made in respect of movables situated in
India, then its formal validity will be judged under Muslim law, the
personal law of the deceased (law of his nationality), even if he died
domiciled abroad, the formal validity will be determined by the lex
domicilli of the testator at the time of his death, because of the
provision in section 5(2).
c. Material or essential validity: Under Indian private international
law, the same rules apply to material validity as they apply to formal

23
The Hindu Succession Act
24
Chapter II of the Act.
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validity. The material validity of the will of a foreigner will be

governed by the law of his domicile at the time of his death. Under
Muslim law, a Muslim cannot bequeath more than one-third of his
property, if an Indian Muslim bequeaths one-half of movables
situated in India and if the validity of his will comes into question
before an Indian court, then such a bequeath will not be valid, even
if the Muslim died domiciled in England.
d. Construction of Will: Chapter VI of the Act contains provisions
relating to construction of wills. The cardinal rule of construction of
wills is to give effect to the intention of the testator. In case of
ambiguity, the court would apply that law with which the deceased
has most intimate connection and this can be the law of the place
where he made the will or the law of the country where he was
domiciled at the time he made the will. If the testator has indicated
some law, then the will will be interpreted according to that law. The
court shall try to give effect to the intention of the testator as far as
it is possible.25
e. Revocation of Will: under the Indian law a will may be revoked,
firstly, by another will or codicil of the deceased or by some writing
declaring an intention to revoke the same and executed in the
manner a will is executed; secondly, destroying the will, such as by
burning or tearing it26; and thirdly, marriage of the testator,27 but this
does not apply to the will of Hindus and Muslims. In the case of the
former, the law to which the testator was subject to at the time of
revocation should apply. In the third case the law of the domicile at
the time of marriage governs the matter.

25
Section 87
26
Section 70
27
Section 69
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UNPRIVILEGED WILLS
Chapter III deals with unprivileged wills. A Privileged will is executed by a soldier
employed in an expedition or engaged in actual warfare or an airman so employed
or engaged or any mariner being at sea, who has completed the age of 18 years. All
other wills are unprivileged wills, and must be executed in accordance with
formalities laid down in section 63 of the Indian Succession Act, 1925. An
unprivileged Will like Codicil can be revoked by the testator only by another Will
or by some writing declaring an intention to revoke the same and executed in the
manner in which an unprivileged Will can be executed under the Act or by burning,
tearing or destroying of the same by the testator or by some other person in his
presence and by his directions with the intention of revoking the same.
In Nagulapati Lakshmamma v. Mupparaju Subbaiah,28 the Supreme Court opined
that s.63 of the Indian Succession Act, 1925 makes a clear distinction between
testator and attestors. The attestor may sign himself or put a mark by himself or
direct some other person to sign on his behalf and in his presence. Such privilege
or power is not extended to an attesting witness.
In Jaswant Kaur v. Amrit Kaur and others,29 the Honourable Apex Court held that
the cases in which the execution of the Will is surrounded by suspicious
circumstances stand on a different footing. A shaky signature, a feeble mind, an
unfair and unjust disposition of property, the propounder himself taking a leading
part in the making of the will under which he receives a substantial benefit and such
other circumstances raise suspicion about the execution of the Will. It is an
acknowledged principle of law that each decision must be applied according to the
facts and circumstances of the given case.

PRIVILEGED WILLS
According to Sec 65 of The Indian Succession Act, 1925:-
Privileged wills- Any soldier being employed in an expedition or engaged in actual

28
AIR 1998 SC 2904
29
1977 (1) Supreme Court Cases 369
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warfare, or an airman so employed or engaged, or any mariner being at sea, may, if

he has completed the age of eighteen years, dispose of his property by a will made
in the manner provided in section 66. Such wills are called privileged wills.
Illustrations:
A medical officer attached to a regiment is actually employed in an
expedition. He is a soldier actually employed in an expedition, and can
make a privileged will.
A is at sea in a merchant-ship, of which he is the purser. He is a mariner,
and, being at sea, can make a privileged will.
A, a soldier serving in the field against insurgents, is a soldier engaged in
actual warfare, and as such can make a privileged will.
A, a mariner of a ship, in the course of a voyage, is temporarily on shore
while she is lying in harbor. He is, for the purposes of this section, a
mariner at sea, and can make a privileged will.
A privileged Will or Codicil may be revoked by the testator by an unprivileged
Will or codicil, or buy any act expressing an intention to revoke it and
accompanied by such formalities as would be sufficient to give validity to a
privileged Will, or by the burning, tearing or otherwise destroying the same by
the testator or by some person in his presence and by his direction with the
intention of revoking the same. In such cases, it is not necessary that the
testator should, at the time of doing the act which has the effect of revocation
of the Will or Codicil, be in a situation which entitles him to make a privileged
Will.
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BIBLIOGRAPHY

1) Paras Diwan, Law of Intestate and Testamentary Succession, (3rd ed., Universal Law
Publishing Co. Pvt. Ltd. New Delhi 2006).
2) Flavia Agnes, Family Law and Constitutional Claims (Vol. I Oxford University Press
2011).
3) Flavia Agnes, Family Law and Constitutional Claims (Vol. II Oxford University
Press 2011).