comparitive wils

wills is contained in Part–VI of the Indian Succession Act, 1925. All the provisions of Part–VI do not apply to indus, !uddhists, Si"hs and #ains. $he provisions of this part which apply to indus, !uddhist, Si"h and #ains are enu%erated in schedule III of the Act. !ut &y virtue of section '( of the indi succession Act, 195), a indu, !uddhist, Si"h or #aina %ay e*ecute a will in accordance with the provisions of Indian Succession Act. +ills %ade &y usli%s are -overned &y the uha%%adan aw. /enerally, spea"in- the Indian succession Act, 1925 is applica&le applica&le to all Indians other than usli%s. usli%s. owever certain provisions provisions of the Act are not applica&le to indus and apply only to non0indus such as hristians, Parsis and #ews. The law of

Wills under Muslims Law :

usli% law is founded upon uran. +hich is &elieved &y usli%s to have e*isted fro% 3ternity. $he uran is effectively the relevations of /od which were %ade to Prophet oha%ad at different ti%es. ti%es. $he uran &esides &ein- the holy &oo" for usli%s, usli%s, also contains contains references to law which for%s the &asis of Shara. owever, uran is not a le-al te*t as such and wherever  the uran is silent on aspects of law recourse is ta"en to the Sunnat and the Hadis which are respectively the acts and approvals of the Prophet and his sayin-s respectively. usli% aw is therefore a co%&ination of relevations fro% /od i.e., the uran as also the sayin-s and actions of the Prophet in the for% of the Hadis and the Sunnat. usli%s can &e &roadly divided into three sects 4 1. $he follow followers ers of the Sunni School School which which would include include the Hanifis, Malikis , Sh Shafi afiss and Ambalis. Zaidya yass and Imamias . $he 2. $he $he Shia Shiass wh whic ichh incl include ude withi withinn thei theirr fold fold the the Ismailyas , Zaid Is%ailyas in turn include ho6as and !ohras. $he I%a%ias include A"ha&ari and 7suli. '. ota8ila $he usli% aw of Succession varies fro% sect to sect. Who can Make a Will under Muslim Law :

7nder the usli% aw, a +ill %ay &e %ade &oth &y %ales and fe%ales. +ill %ade &y  pardanashin wo%en, is also valid &ut &u t %uch stron-er s tron-er evidence is needed for o&tainin- a pro&ate of her +ill. +ill can &e %ade &y a %inor also if it is ratified &y hi% after his attainin- a-e of  %a6ority i.e. a-e of 1: years where the %inor has a natural -uardian and 21 years where he has a -uardian appointed &y the ourt. $he testator %ust &e sane at the ti%e of %a"in- the +ill. usli%;s law li%its the power of &e Sukunat ,>1:?@ 22 +B @((. +here, however, there are no heirs or when all the heirs a-ree and -ive their consent the one0third li%it %ay &e e*ceeded.( Allah Baksh v. Md. Umar . AIB 1992 ah @@@.  If there are no heirs, testa%entary  power can &e e*ercised e*e rcised over the entire property of the testator.( Abdul Karim v. Abdul Qayum, IB 2: All '2@.  +here the &echarity of a portion for the poor and >iii e*piation, e*piation, e.-. for prayers %issed. $he priority will &e in the sa%e order. >& !eii H first &e1 of Section 21' has no application in respect of +ills e*ecuted &y indus within the State of Andhra Pradesh in respect of i%%ova&le properties situated within the territorial li%its of the State of Andhra Pradesh. It is not necessary to o&tain pro&ate of a +ill or letters of ad%inistration, $he +ills upon which reliance is sou-ht to &e placed can always &e per%itted to &e proved in any civil  proceedin->Gan%avath "alu v. Gan%avathi $ulsi , AIB AIB 2((1 A.P. A.P. '2). . $he e*ecution of the +ill itself pre0supposes a chan-e in the nor%al rule of succession. !ut if the natural heir is disinherited it %ay -ive rise to a suspicion, which has to &e e*plained.>   Kishan .P. 25(.   Sin%h Ahlu&alia Ahlu&alia v. Sheela Se'ena Se'ena, AIB 2((1 .P. +oint ,amily -roerty 4 (handrakant $irhekor $irhekor " . )a )amunabai So!an So!an *ol# it is held-In Sarojani (handrakant As per the indu aw there is no dispute that the %ale issues do not ac'9 of 1925, or any other law for the ti%e &ein- in force and applica&le to ind indus us‖.

!y the 3*planation 3*planation appended thereto, thereto, the interest interest of a %ale indu in a ita"shara ita"shara coparcenary  property is dee%ed to &e property capa&le of &ein- disposed of &y hi% &y will within the %eanin- of the aforesaid afor esaid su&0section. +e are not concerned with this e*planation. Satyanarayana Sai, the testatri* who &eca%e the full owner under Section 1@ of the property she inherited fro% her hus&and, is entitled under Section '( of the Act to dispose of her property &y will in accordance with the provisions of the Indian Succession Act, 1925. Hindu Succession Act = &eferential Le!islation :

$he fra%ers of the indu Succession Act Act throu-h Section '( resorted resorted to the devise of what has now ca%e to &e popularly "nown as LBeferential e-islation in order to o&viate the necessity of  incorporatin- into it the relevant provisions contained in the Indian Succession Act, 1925. $he classic e*position of this su&6ect is found in the 6ud-%ent of ord 3sher B. in Be +ood=s 3state, 3*parte er a6esty=s o%%issioners of +or"s and !uildin-s.14 In that case, &y Section 9 certain sections of the Act of 1:@( are incorporated into the Act of 1:55 >Act, 1: O 19 Victoria hap. 95. $he learned aster of Bolls said40 @99999#It is ut them into the Act of )022 7ust as if they had been written into it for the first time# If a subse5uent Act brin!s into itself by reference some of the clauses of a former Act$ the le!al effect of that$ as has often been held$ is to write those sections into the new Act 7ust as if they had been actually written in it with the en or rinted in it$ and$ the moment you ha"e those clauses in the later Act$ Act$ you ha"e no occasion to refer to the former Act Act at all# ,or all ractical uroses$ uroses$ therefore$ those sections of the Act of )0*? are to be dealt with as if they were actually in the Act of )022#10

Spea"in- a&out the e-islative practice to incorporate &y reference, the Supre%e ourt of India in AT# (or!oration "# Assistant "# Assistant (olle4tor (olle4tor (ustoms (ustoms has held thus 4 LIt is a well accepted e-islative practice to incorporate &y reference, if the e-islature so chooses, the provisions of so%e other Act in so far as they are relevant for the purposes of and in furtherance of the sche%e and o&6ect of that Act L$he effect of incorporatin- one Act with another is presu%a&ly to %a"e the% parts of the sa%e ode. $hat ta"es us to a consideration of the applica&le provisions of the Indian Succession Act, 1925. Will under Indian Succession Act :

$he e*pression Lwill %eans the le-al declaration of the intention of a testator with respect to his  property which he desires to &e carried into effect after his death. $he contents and the %ain features of a will are 4 >a $here %ust he a le-al declaration of intention &y the testatorE >& that declaration %ust &e with respect to the property of testatorE and >c that declaration could &e effective and operative only after the death of the testator which i%plies that the testator has li&erty to revo"e the sa%e at any ti%e durin- his life ti%e. Section 59 of the Act provides that every person of sound %ind not &ein- a %inor %ay dispose of  his property &y will. LMo person can %a"e a will while he is in such a state of %ind, whether  arisin- fro% into*ication or fro% illness or fro% any other cause, that he does not "now what he is doin-. Section Section )1 provides provides that La will or any part of a will, the %a"in- of which has &een caused &y fraud or coercion, or &y such i%portunity i%portunity as ta"es away the free a-ency of the testator, is is void‖ . Section )' prescri&es the Bules for the e*ecution of unprivile-ed wills and resec ' >1 A indu widow who &eco%es under Section 1@ of the indu Succession Act, 195), full owner of the property she inherited with li%ited interest fro% her hus&and prior to the co%ininto force of the Act, is entitled under Section '( of the Act to dispose of that property &y will in accordance with the provisions of the Indian Succession Act, 1925. $he overridin- effect secured to the aforesaid aforesaid provisions of law throu-h throu-h Section @ thereof thereof over any te*t, rule or interpretati interpretation on of indu law or any custo% or usa-e as part of that law, should not &e lost si-ht of while interpretin- the aforesaid provisions of the indu Succession Act or any thin- done thereunder. >2 A will is a le-al declaration of the intention of a testator with respect to his property which co%es into effect after his death. A testator can %a"e a will only when he is in such a state of  %ind that he "nows what he does. e shall have to si-n or affi* his %ar" to the will and the si-nature or the %ar" shall &e so placed that it shall appear that it was intended there&y to -ive effect to the writin- as a will. $he will shall have to &e attested &y two or %ore witnesses. >Indian Succession Act, 1925. >' +hoever desires any court to -ive 6ud-%ent as to any 0 le-al ri-ht dependent on the e*istence of facts which he asserts %ust prove that those facts e*ist >Section 1(1 of 3vidence Act. e who clai%s a ri-ht under a will %ust prove the e*ecution of the will with its contents. As a will is reSec. ):. If the will is alle-ed to &e si-ned &y the testator, that si-nature shall have to &e proved to &e his >Sec. )?. >@ A will is said to he proved when the court either &elieves it to e*ist or considers its e*istence so pro&a&le that a prudent %an ou-ht, under the circu%stances of the particular case, to act upon the supposition that it e*ists. $he criteria thus adopted &y the 3vidence Act are that of the N&6ective standard of a hypothetical prudent %an for the %easure of proof. In other words, the standard of proof reh of the Indian Succession Succession Act  &eco%es effective after the death of the testator, that circu%stance only unli"e in the case of  other docu%ents introduces an ele%ent of sole%nity in the enitiatin! Susicious ;ircumstances :

$his su%%in- up of the statutory law position renders it necessary to deal in so%e depth, the theory or the doctrine of vitiatin- suspicious circu%stances invalidatin- a +ill as evolved &y case law, Suspicions rei-n is the real% of proof. In the nature of thin-s, they cannot &e either  e*haustively e*haustively enu%erated enu%erated or accurately accurately defined and it is not desira&le desira&le even if it is possi&le possi&le to do so. !ut nevertheless, nevertheless, suspicions %ust &e found &otto%ed or anchored in the facts of a particular  particular  case, a court &elieves to e*ist or the circu%stances of a particular case the e*istence of which a court considers so pro&a&le that a prudent %an %ay act upon the supposition that they e*ist. It will not do to tal" airily a&out circu%stances of suspicions. In other words, suspicions %ust &e inherent in the transaction itself which is challen-ed. $hey %ust not &e those arisin- out of a %ere conflict of testi%ony. $hey %ust pertain to one or the other of the in-redient=s that -o to constitute a +ill as defined &y the statute. +here suspicion arises fro% the nature of the case put forward &y the person clai%in- under the +ill, he alone should re%ove that suspicion which his case creates. If, however, suspicion a-ainst the +ill arises fro% the facts and circu%stances put forth &y the opposite side, then the court should see whether those facts and circu%stances -ivin- rise to such a suspicion are proved  &efore callin- upon the clai%ant under the +ill +ill to e*plain or re%ove such s uch a suspicion. It is well to re%e%&er the caution ad%onished &y ord Cue Paro< that Lthose rules en6oin a reasona&le scepticis%, not an o&durate persistence in dis&elief. $he intention of the testator as declared in the +ill disposin- his property is, to start with, of   para%ount i%portance. $he very ver y first 2 Save as provided in so &0section >1 or &y any other law for the nine &ein- in force, the  provisions of this Part shall constitute the law of 41>India in all cases of intestacy.

As to what roerty deceased considered to ha"e died intestate :  A person is dee%ed to die

intestate in respect of all property of which he has not %ade a testa%entary disposition which is capa&le of ta"in- effect. Illustrations

>1 A has left no will, e has died intestate in respect of the whole of his property p roperty >ii A has left a will, where&y he has appointed ! his e*ecutorE &ut the will contains no other   provision. A has died intestate in respect of the distri&ution of his property. propert y. >iii A has &edied intestate in respect of the distri&ution of his property. >iv A has &e' of 1:?2 re-ulated &y the  provisions of this ActE >& unless the deceased dies intestate in respect of all his property. Section ''0A >5 >& is an independent clause and is not part of Section ''0A0>5 >a of the Act.?? 11FA# Secial ro"ision ro"ision where intestate has left widow and no lineal descendants43 descendants43

%ffects of ;on"ersion :

+here a son had converted his reli-ion adoptin- hristianity, a indu father can succeed to such converted son. i"ewise in the case of &rothers and sisters also thou-h one of the% had converted converted to hristianity hristianity fro% indu reli-ion, reli-ion, there is no &ar i%posed i%posed on the% in the %atter %atter of  succession.?:

In  #ailash Shekhar )* Maya +e)i,89 Supra therefore, is not a -ood law. Will can be re"oked by marria!e : KA will &y a hristian can &e revo"ed &y %arria-e of the %a"er of the will e*cept where it is %ade in e*ercise of a power of appoint%ent. s tren-th of an unpro&ated christian will, a suit cannot he .nrobated ;hristian Will : KNn the stren-th %aintained. In "ra)in #umar v. "*  "* 'aeswarau, 'aeswarau,0/ it was heldK $he ne*t piece of evidence availa&le on record is the ad%ission of P.+. 2 that #i%%ara%%al was  &uried accordin- to hristian rites. +hile referrin- to the ad%ission ad %ission of P.+. P.+. 2, the trial court says that #i%%ara%%al could not he converted into a hristian after her death and that she had no control over her &urial. 7nfortunately, the trial court overloo"ed the fact that in this country or at any rate in this part of the country, the senti%ents of fa%ily %e%&ers would &e not to wound any feelin-s or senti%ents which were entertained &y deceased at least for a few days after the death. If #i%%ara%%al had lived throu-hout as a indu, no %e%&er of the fa%ily would have dared to  &ury her accordin- to hristian rites. $he very fact that #i%%ara%%al was &uried accordin- to hristian rites, -oes a lon- way to show that she %ust have lived as a hristian and that her  reli-ion was hristianity. r. Sa%path, appearin- for the plaintiff, contends that there is no evidence to prove that she was &uried in a ce%etery and that no hristian would &e &uried elsewhere, cannot accept this reasonin-. It is not shown &efore the ourts &elow or this court that a hristian should &e &uried only in a hristian ce%etery. If the parties had chosen to &ury her at a place which they consider proper, then that would not %ean that she was not a hristian. r. Sa%path also relies upon the fact that in the written state%ent of the first defendant, he had stated that she was a !uddhist !uddhist in the &e-innin- and -ot converted later as a hristian. hristian. It is ar-ued that

havin- pleaded conversion, the &urden was on the defendants to prove such conversion and they have not led in their evidence in this case to prove such conversion. It is the ar-u%ent of learned counsel for the plaintiff that in the a&sence of any proof &y production of !aptis% ertificate or  any entry in the re-ister of hristian churches, #i%%ara%%al cannot &e ta"en to &e a hristian. I a% of the opinion that it is not open to the plaintiff to raise such an ar-u%ent. $he plaintiff ca%e to court with a definite case that #i%%ara%%al was a indu. $he &urden is on hi% to prove the sa%e. If he fails to do so, he cannot a&and on his own case and turn round to adopt that of the my Gounder ()'23 / Mad# L+ defendant for clai%in- the relief. >-ide Govindaraj "# Kandas&a "# Kandas&amy 240:0 240:01 1 and and  Subramania  Subramania Mudaliar "# Amma!et "#  Amma!et (oo!erative (oo!erative We Weavers: avers: -roduction and Sales Society$ ()'3?/ Mad# L+ *44#

$he lower Appellate ourt while dealin- with this aspect of the %atter si%ply paraphrased the reasonin- -iven &y the trial court and held that the fact of the &urial of #i%%ara%%al as a hristian would have no relevance to the hereinafter the Act that applies to indus, Parsis, hristians, !uddhists and #ains in India, states in section 59, the necessary