“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-III]

Ans. Yes. Section 58 (1) in Chapter I of Part VI of the Indian Succession Act, 1925 declares that the provisions of Part VI of the said Act shall not apply to testamentary succession to the property of Muhammadans. This means that the Indian Succession Act, 1925 does not propose to interfere with or abrogate the principles of Muhammadan law as per which a Will executed by a Muslim need not necessarily be in writing but can be oral. There is, however, the limit of testamentary power of a Muslim not to dispose off by Will more than one third of the surplus of his estate after payment of funeral expenses and debts. Any bequest made in excess of the legal one third cannot take effect unless the heirs consent to the same after the death of the testator. Apart from Mohammedans, oral Will by word of mouth is recognized in the case of Privileged Wills made by any soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged or any mariner being at sea and covered by Sections 65 and 66 of the Indian Succession Act. But, in the case of an Indian Christian or a Hindu or a Buddhist or a Sikh of a Jaina, they cannot make any oral bequest except as above. Any Will executed by such person has to be in writing and should conform to be requirements of Section 63 of the Indian Succession Act, 1925 and the rigor of Section 68 of the Indian Evidence Act applies to such Wills in the matter of proof. Section 58 (1) of the Indian Succession Act, 1925 further declares that Section 57 of the said Act shall apply to the testamentary succession of the property of any Hindu, Buddhist, Sikh or Jaina but subject only to the saving as provided by Section 57.

In the case of Muslims, the law applicable to them in the matter of executing a will which is called “vasiyyat”, is their personal law as per which a Muslim cannot bequeath more than one third of the surplus of his estate after payment of funeral expenses and debts. Any bequest made in excess of the legal one third cannot take effect unless the legal heirs consent to the same after the death of the testator. Another important attribute of a “vasiyyat” is that it need not be in writing but can be oral.

Q.12 Are not all the provisions (Sections 57 to 191) of Part VI of the Indian Succession Act, 1925 applicable to Hindus, Buddhists, Sikhs and Jains ?

Ans. No. By virtue of Section 57 of the Indian Succession Act only those provisions of Part VI as are shown in Schedule III of the said Act and that too subject to the restrictions and modifications specified in Schedule III, are applicable to Hindus, Buddhists, Sikhs and Jains.

Q.13 Is not Part VI of the Indian Succession Act applicable to Hindus, Buddhists, Sikhs and Jains without any modification ?

Ans. No. Section 57 (to the extent relevant here) declares that the provisions of Part VI shall be applicable to Hindus, Buddhists, Sikhs, or Jains but subject only to the restrictions and modifications as specified in Schedule III of the Act.

(As per Schedule III Sections 60, 65 to 67, 69, 72, 91 to 94, 97, 99 to 100 and 118 have been omitted from Sections 57 to 190 of PART VI. One of the restrictions in Schedule III is that the above provisions Will not authorize a testator to bequeath property which he could not have alienated inter vivos. This means that a Will executed by any member of the above religions has to be in writing and should conform to the other requirements of law including Section 63 of the Indian Succession Act which inter alia provides for attestation of execution. When it comes to proof of such Will in a suit or other proceeding, the requirements of Section 68 of the Indian Evidence Act, 1872 will be applicable. Yet another modification made under Schedule III is that in the case of a Will executed by any member of the aforesaid religions, the same does not stand automatically revoked by the marriage of the testator and to that extent Section 70 stands altered.)

Q.14 Which Sections of Part VI of the Indian Succession Act, 1925 are excluded in their application to Hindus, Buddhists, Sikhs and Jains ?

Ans. Section 60 – Relating to testamentary guardian.

Section 65 - Pertaining to privileged Wills.

Section 66 - Pertaining to privileged Wills.

Section 67 - Pertaining to privileged Wills.

Section 69 – Revocation by marriage of the testator. Section 72 – Revocation of privileged Will.

Section 91 – A general bequest to include any property within the power of the testator.

Section 92 – Where there is default in the direction for appointment, the objects in the Will to operate as a gift.

Section 93 – Effect of bequest to heirs etc. of particular person without qualifying terms.

Section 94 – Effect of bequest to representatives etc. of particular person.

Section 97 – Effect of words describing a class added to the bequest in favour of a person.

Section 99 – Meaning of specified relations referred to in the Will.