Intestate Succession.

Intestate Succession - Muslim Law

•
When a Muslim die there are four duties which need to be performed.
1. Pay funeral and burial expenses.
2. Paying debts of the deceased.
3. Determine the value / will of the deceased (which can only be a maximum of
one third of the property),
4. Distribute the remainder of estate and property to the relatives of the
deceased according to Muslim Law of Inheritance
Persons who have a share
● Sharers
○ Sunni law - 12 Sharers(8 female 4 male)
○ Shia Law - 9 (6 female 3 male)
● Residuaries
● Distant Kindred
● ESCHEAT

Sunni law = sharers, residuaries, Distant kindred, escheat.

Shia law= sharers, residuaries, Distant kindred, escheat.

Rules of Exclusion.

● Muslim law in general doesn't recognise the rule of principle of representation and provides
for the rule of nearer in degree excluding the remoter.
● This rule is applicable to sharers, residuaries and also distant kindred.
● Firstly, the father would exclude the paternal grandfather, and a son would exclude a son's
son.
● Secondly, an heir who is related to the deceased through another person will be excluded in
the presence of the person through whom he or she is related to the deceased. example, a
sister or a brother is related to the deceased through the father, and if the father is present,
they would be excluded in his presence.
○ (The Mother is an exception to the rule of exclusion, presence of mother won't exclude brother/sister relations)
● Thirdly, Full Blood Will Exclude Half blood, but uterine relationships won't be excluded
● There are five primary heirs, who if present would not be excluded and would invariably
inherit the property. They are: surviving spouse (husband/wife), son, daughter, mother and
father.
The Sharers are 12 in number (Sunni)
● (1) Husband,
● (2) Wife
● (3) Daughter
● (4) Daughter of a son (or son's son or son's son's son and so on),
● (5) Father,
● (6) Paternal Grandfather,
● (7) Mother
● (8) Grandmother on the male line,
● (9) Full sister
● (10)Consanguine sister
● (11)Uterine sister, and
● (12)Uterine brother.
● There are five primary heirs, who if present would not be excluded and would
invariably inherit the property. They are: surviving spouse (husband/wife),
son, daughter, mother and father.
● The son is a residuary but the rules of inheritance are so designed that he
would always inherit the property.
● Husband
○ Husband will get 1/4th.
○ If no lineal descendants then husband will get ½.
● Wife
● If wife and children inherit together, then wife will get 1/8th
● If there are no children, then wife will get 1/4th
● if multiple wives are there then the share will be divided in the
Son and Daughter
● If no son’s :
○ Single daughter will get 1/2,
○ More than 1 daughter then 2/3rd in total among all daughters
● Son will always get double the share of each daughter.
● If son is there : son gets ⅔- daughter becomes the residuary-⅓
Mother
● If mother inherits with children then mother will get 1/6th
● If there are no children mother will get 1/3rd
Father
● Father has fixed 1/6th
Doctrine of aul (Increase)
● A Muslim woman W dies leaving behind her parents M and F,
● her husband H and three daughters D1, D2 and D3.
● Share of H is one-fourth (1/4th),
● Share of M and F is one-sixth (1/6th) each
● Three daughters collectively will take two-thirds (2/3rd).
● The sum total would be 1/4 + 1/6 + 1/6 + 2/3 = 15/12
Doctrine of radd (Return)
● If nobody is alive to take balance share after the fixed share is given, and
there is balance left then it is called as excess share and is returned to the
people with fixed share. This is called Radd or Return
○ (only applies when there are no residuary)
○ (widow and widower will not participate if there is any other sharer or distant kindred)
Disqualifications to Inheritance

If you are different religion you can't inherit.

● This rule has been removed for converts by Caste Disabilities Removal Act, 1850.
● Illustration: If you are born a Muslim and you convert to Hinduism then you can still inherit
your Muslim father's property.
● But,If your father was a Hindu and he converted to a Muslim and you are still a Hindu then
you cant inherit your Muslim fathers property.
Illegitimate Child
● Under Sunni law an illegitimate child is deemed to be related to its mother, and inherits
from her and her relations but does not inherit from the father or any of his relations.
● Under Shia law, an illegitimate child does not inherit from any of the parents nor from any of
their relatives
If you kill the person whose property is up for inheritance.
● If the person who is supposed to inherit has killed the person from whom he is
inheriting is disqualified.
● In Shias- if he had intention of killing then only, he is disqualified, if he kills
accidentally then he is not disqualified.
Daughter is excluded in some areas because of customary practises or
special statutes.
● Rule of primogeniture:
● elder son will get preference in some aspects of inheritance.
● (applies to certain Muslims as custom or under special statute)
Residuaries
● Descendants
○ Son —daughter becomes Residuaries
○ Son’s son—son’s daughter
● Ascendant's
○ Father —If there are no children
○ True grandfather- near’s degree excludes the older one
● Descendants of father
○ Full brother -full sister takes as residuary
○ Full sister- son’s daughter
○ Consanguine brother -consanguine sister, son’s daughter, daughter’s daughter.
● Descendants of grandfather h.l.s
○ Full, Consanguine, paternal uncle
○ Full, consanguine paternal uncle's son,
○ Full, consanguine paternal uncle's son’s son.
Distant kindred
● Daughters children
● Son’s daughters children
● Daughters grandchildren
● Son’s son’s daughter’s children
● Daughters great-grandchildren
Indian Succession act 1925
Domicile.
Sec4-Law regarding it given in Part Il of the Act and shall not apply if the deceased was a Hindu,
Muhammadan, Buddhist, Sikh or Jaina,

Sec 5;-

Succession to immovable property situated in India:- as per Indian law Succession to movable property of
deceased person shall be according to the law of the country where such person had the domicile at the
time of death.

● A, having his domicile in India, dies in France, leaving movable property in England and property,
both movable and immovable, in India. The succession to the whole is regulated by the law of India.
● A, an Englishman, having his domicile in France, dies in India and leaves property both movable and
immovable, in India. The succession to the movable property is regulated by the rules which govern,
in France, the succession to the movable property of an Englishman dying domiciles in France, and
the succession to the immovable property is regulated by law of India.
Types of domicile
Sec 6: for the purpose of law of succession of movable property, the

person can have only one domicile

Types:- Domicile of origin and Domicile of choice

Domicile of origin:- continues till the new is acquired (sec 91

Sec 7 & 8: in case of legitimate child- domicile of father and in case of

illegitimate child- mother

At the time of the birth of A, his father was domiciled in England. A's

domicile of origin is in England, whatever may be the country in which he

was born.
Sec 10: New domicile can be acquired by taking up the fixed habitation in the country which is not that of his domicile of origin :-

Explanation.-A man is not to be deemed to have taken up his fixed habitation in I'(India) merely by reason of his residing there in 2
the civil, military, naval or air force service of Government), or in the exercise of any profession or calling. | refer sec 12 as well

11. Special mode of acquiring domicile in India.-Any person may acquire domicile in I*(India) by making and depositing in some
office in l'(India), appointed in this behalf by the State Government, a declaration in writing under his hand of his desire to acquire
such domicile; provided that he has been resident in 1"(India) for one year immediately preceding the time of his making such
declaration.

12. Domicile not acquired by residing as representative of foreign government or as part of his family.

13. Continuance of new domicile.-A new domicile continues until the former domicile has been resumed or another has been
acquired
Minor's Domicile
Sec 14: minor's domicile follows the domicile of his parent from whom he derived his domicile of
origin It won't happen if the minor is married or is in employment in the service of Govt or holds a
office or sets up a distinct business with the consent of the parent.

Sec 17: a minor during minority can not acquire new domicile

Married woman’s domicile :

15: domicile acquired by women on marriage

16.wife’s domicile by during marriage- follows husbands domicile

● exceptions: not if sentence of separation is given by court or husband is going under

imprisonment.

18: lunatic: can’t acquire new domicile unless it follows another’s domicile.
INTESTATE SUCCESSION OTHER THAN PARSIS
(31-49)
● 31. Chapter not to apply to Parsis.-Nothing in this Chapter shall apply to
parsis
● 32. Devolution of such property,-The property of an intestate devolves upon
the wife or husband, or upon those who are of the kindred of the deceased, in
the order and according to the rules hereinafter contained in this Chapter.
● 33.where interstate has left widow and lineal descendant, or widow and
kindred only, or widow and no kindred.
○ Widow and lineal descendants- W ⅓, L.D ⅔
○ Widow and kindred- W ½ , k ½
○ If there is widow and no kindred the whole shall go to widow.
○ Philips alfred malvin v. Y.J gonsalvis- adopted son can be considered as natural son.
 ● 34-where there is no widow or no kindred : property will in this case go to lineal descendants in
their share of property. (Sec 36-40)
● 35- Rights of widower- same as widow

DISTRIBUTION WHERE THERE ARE LINEAL DESCENDANTS/L.D

● 36-Rules of distribution- if widow is there along with L.D (in 37-40)

● 37 Where the interstate has left child or children only- child- whole property, children- equal
dividend among all.
● 38 If no child but, grandchild or grandchildren- grand child-whole, grandchildren- equally divided
● 39 Where only great grandchildren then it goes to them.
● 40 Where intestate leaves lineal descendants not all in same degree of kindred to him, and
those through whom the more remote are descended are dead.
○ A has three children, John, Mary and Henry; John died, leaving four children, and Mary died, leaving one, and Henry
alone survived the father. On the death of A, intestate, one-third is allotted to Henry, one-third to John's four children, and
the remaining one third to Mary's one child,.
Distribution where there are.no lineal descendants.
● 41. Rules of distribution where intestate has left no lineal descendants.-(Mentioned in 42-48)
● 42. Where intestate's father living--If the intestate's father is living, he shall succeed to the
property.
● 43. Where intestate's father dead, but his mother, brothers and sisters living- will be divided
equally.
● 44. Where intestate's father dead and his mother, a brother or sister, and children of any
deceased brother or sister-living.- equal share (if brother or sister have more than one child then
share will be divided) ⅕
● 45. Where intestate's father dead and his mother and children of any deceased brother or
sister living.-equal share (if brother or sister have more than one child then share will be divided) ⅓
● 46. Where intestate's father dead, but his mother living and no brother, sister, nephew or
niece.- mother will get the entire share.
● 47.Where there is no lineal descendants nor, father, nor nor mother .equally dividing to their
brother and sister and there children.
● 48. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister.-
Nearest decree of kindred.
 Parsi Succession
(Important topic=explained during classes, refer lectures
notes, sec 50-58)
50. General principles relating to intestate succession:

● Distribution only to persons who were alive during the death of interstate
● Child in womb- no right
● lineal descendant of an intestate who has died in the lifetime of the intestate without leaving a widow
or widower or any lineal descendant- no claim
● If widow or widower remarry - no claim.

51. Division of intestate property among widow, widower, children and parents

● (a) where such Parsi dies leaving a widow or widower and children, among the widow or widower,
and children so that the widow or widower and each child received equal shares;
● (b) where such Parsi dies leaving children, but no widow or widower, among the children in equal
shares.
● (2) Where a Parsi dies leaving one or both parents in addition to children or widow or widower
and children, the property of which such Parsi dies intestate shall be so divided that the parent or
each of the parents shall receive a share equal to half the share of each child.
53. Division of share of predeceased child of intestate leaving lineal
descendants.-
● If such deceased child was a son, his widow and children shall take shares in
accordance with the provisions of this Chapter as if he had died immediately
after the intestate's death:
● Provided that where such deceased son has left a widow or a widow of a
lineal descendant but no lineal descendant, the residue of his share after such
distribution
● If such deceased child was a daughter, her share shall be divided equally
among her children.
●
Probate, Letter Of Administration. (PART IX, chapter 1- 8, sec 217-369)

218. To whom administration may be granted, where deceased is a Hindu, Muhammadan, Budhist, Sikh,
Jaina or exempted person.—(1) If the deceased has died intestate and was a Hindu, Muhammadan,
Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person
who, according to the rules for the distribution of the estate applicable in the case of such deceased, would
be entitled to the whole or any part of such deceased's estate.

(2) When several such persons apply for such administration, it shall be in the discretion of the Court to
grant it to any one or more of them.

(3) When no such person applies, it may be granted to a creditor of the deceased.

219. Where deceased is not a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.—If the
deceased has died intestate and was not a person belonging to any of the classes referred to in section
218, those who are connected with him, either by marriage or by consanguinity, are entitled to obtain
letters of administration of his estate and effects in the order and according to the rules hereinafter stated,
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.
● In this process, the executor of the will, beneficiaries, and value of the estate are determined.

Objective :

● 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.
● Determine the authenticity of the will.

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.
Difference between probate and letters of administration :

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.
● Sec 222: Probate only to appointed executor
○ The appointment maybe expressor by necessary implementation
● To whom Probate cannot be granted
○ According to section 223 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 .
● Who may apply for letter of administration -sec 233
○ executor, residuary legatee or representative of the residuary legatee
● 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.
● Who can’t apply:
○ 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
An application for probate or for letters of administration is to be filed u/S.276 of the Act.

● Probate is to be granted only if an executor is appointed under the Will. Otherwise, the request should be one for the grant of letters of
administration

Documents Required for Probate

● While submitting a probate application, you need to submit certain documents that prove that:
● The will is genuine and is the last will made by the testator.
● The proof of death of the testator.
● That the will is validly executed in clear conscience of the testator.

Grant of Probate

● Once the application is submitted, it will be verified by the authorities and letters (notifications) will be sent out to the nearest kin of the deceased,
intimating them of the issue of probate. A general notice is published for the public to view, and giving an opportunity for raising any
objections to the grant of probate.
● The probate is issued if no objections are received from any kin or any general public, and is done after the court fees are paid. The court fees
depend upon the value of the immovable assets.

S.293, Indian Succession Act, 1925.

● A probate shall be granted only after the expiry of seven days from the date of death of the testator
Case laws
● Balan Alias Balendu Jayant Sawant v/s. I.K. Agencies Pvt. Ltd. According
to the law of testamentary succession, no matter what property is being
bequeathed in a will, it does not have to be determined who owns it. This
court’s only job is to determine if the deceased was of sound mind and
capable of making a will and to ensure that the will is in line with the
law. It only matters whether or not a person’s will is their final testamentary
instrument, whether or not they were in a sound state of mind when they
created it, and whether or not the will was properly executed and witnessed
as required by law.
● Sushila bala Saha v. Saraswati Mondal, AIR 1991 Cal 166.it settled law that
a probate court cannot go into the contents of the will, even with the consent
of the parties
● Rukmani Devi v. Narendra Lal Gupta, AIR 1984 SC 1866.
● A decision of the probate court would be a judgment in rem which would not
only be binding on the parties to the probate proceedings but would be
binding on the whole world. Therefore, a solemn duty is cast on the probate
court.
● Ishwar Narain Singh v, Smt. Kamta Devi, AIR 1954 SC 280.
● The question whether a particular bequest is good or bad is not within the
purview of the Probate Court.
Executor
Powers of executor or Administrator
● 305. In respect of causes of action surviving deceased and debts due at death.-An
executor or administrator has the same power to sue in respect of all causes of action that
survive the deceased, and may exercise the same power for the recovery of debts as the
deceased has when living
● 306. Demands and rights of action of or against deceased survive to and against
executor or administrator.-All demands whatsoever and all rights to prosecute or defend
any action or special proceeding existing in favour of or against a person at the time of his
decease, survive to and against his executors or administrators; except causes of action for
defamation, assault, as defined in the Indian Penal Code,
○ A sues for divorce. A dies. The cause of action does not survive to his representative.
● 307. Power of executor or administrator to dispose of property.-an executor or
administrator has power to dispose of the property of the deceased, vested in him under
section 211, either wholly or in part, in such manner as he may think fit.
○ Illustrations: The deceased has made a specific bequest of part of his property. The executor, not having
assented to the bequest, sells the subject of it. The bale is valid.
● 309. Commission or agency charges.-An executor or administrator shall not be entitled to receive
or retain any commission or agency charges at a higher rate than that for the time being fixed in
respect of the Administrator-General by or under the Administrator-General's Act, 1913 (3 of 1913).
● 310. Purchase by executor or administrator of deceased's property.-, the sale is voidable at the
instance of any other person interested in the property sold.
● 311. Powers of several executors or administrators exercisable by one.-When there are several
executors or administrators, the powers of all may, in the absence of any direction to the contrary,
be exercised by any one of them who has proved the will or taken out administration
● 314. Powers of administrator during minority.-An administrator during minority has all the powers
of an ordinary administrator.
● 315. Powers of married executrix or administratrix.-When a grant of probate or letters of
administration has been made to a married woman, she has all the powers of an ordinary executor
or administrator.
Duties of executor or administrator
● 316. As to deceased's funeral.-It is the duty of an executor to provide funds
for the performance of the necessary funeral ceremonies of the deceased in a
manner suitable to his condition, if he has left property sufficient for the
purpose.
● 317. Inventory and account.An executor or administrator shall, within six
months from the grant of probate or letters of administration, or within such
further time as the Court which granted the probate or letters may appoint,
exhibit in that Court an inventory containing a full and true estimate of all the
property in possession, and all the credits, and also all the debts owing by any
person to which the executor or administrator is entitled in that character
● 322. Wages for certain services to be next paid, and then other debts.-Wages
due for services rendered to the deceased within three months next preceding his
death by any labourer, artizan or domestic servant shall next be paid, and then the
other debts of the deceased according to their respective priorities
● 323. Save as aforesaid, all debts to be paid equally and ratably.-Save as
aforesaid, no creditor shall have a right of priority over another; but the executor or
administrator shall pay all such debts as he knows of, including his own, equally and
ratably as far as the assets of the deceased will extend
● 324. Application of moveable property to payment of debts where domicile not
in India.-If the domicile of the deceased was not in 1*[India], the application of his
moveable property to the payment of his debts is to be regulated by the law of
● 325. Debts to be paid before legacies.-Debts of every description must be paid before any legacy.
● 327. Abatement of general legacies.-If the assets, after payment of debts, necessary expenses
and specific legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or
be diminished in equal proportions, and, in the absence of any direction to the contrary in the will,
the executor has no right to pay one legatee in preference to another, or to retain any money on
account of a legacy to himself or to any person for whom he is a trustee.
● 328. Non-abatement of specific legacy when assets sufficient to pay debts.-Where there is a
specific legacy, and the assets are sufficient for the payment of debts and necessary expenses, the
thing specified must be delivered to the legatee without any abatement
● 329. Right under demonstrative legacy when assets sufficient to pay debts and necessary
expenses.-Where there is a demonstrative legacy, and the assets are sufficient for the payment of
debts and necessary expenses, the legatee has a preferential claim for payment of his legacy out of
the fund from which the legacy is directed to be paid until such fund is exhausted and if, after the
fund is exhausted, part of the legacy still remains unpaid, he is entitled to rank for the remainder
against the general assets as for a legacy of the amount of such unpaid remainder
● 330. Rateable abatement of specific legacies.-If the assets are not sufficient to answer the debts
and the specific legacies, an abatement shall be made from the latter ratably in proportion to their
respective amounts.
Succession Certificate
Succession Certificate Under Indian Succession Act (sec 370-391)

● A succession certificate, under the Indian Succession Act, is a document that

gives authority to the person who obtains it, to represent the deceased for the
purpose of collecting debts and securities (movable property)due to him or
payable in his name. Usually, a succession certificate is the key in the
absence of a will, a succession certificate will be the primary document
through which the heirs can stake a claim to the assets of a deceased
relative.
● Succession Certificate is a certificate granted by the Courts in India to the
legal heirs of a person dying intestate leaving debts and securities. A person
is said to have passed away intestate when he/she does not leave a legal
Will.
● Most importantly required for movable property.
● Sec: 370 Restriction on grant to any debt for which probate or letter of
administration is required u/s 213, 212
Procedure for Obtaining Succession Certificate:

● Sec 371 competent court: To obtain succession certificate, a petition to the

District Judge within whose jurisdiction the deceased person ordinarily
resided at the time of his or her death or, if at that time he or she had no fixed
place of residence, the District Judge within whose jurisdiction any part of the
property of the deceased may be found.
● Petition for Certificate(sec 372)
○ A petition for succession certificate must contain the following particulars:
○ Time of death of the deceased;
○ Residence or details of properties of the deceased at the time of death within which Judge the
jurisdiction falls under;
○ Details of family or other near relatives;
○ The rights of the petitioner;
○ Absence of any impediment to the grant of certificate.
Grant of Certificate: (sec 373)
On making the petition, if the District Judge is satisfied as to the ground of making
the petition, can grant an opportunity of hearing to persons who, in his/her opinion,
should be heard. After hearing all parties, the Judge can decide the right of the
petitioner to be granted the succession certificate. The Judge would then pass an
order for grant of certificate specifying the debts and securities set forth in the
application empowering the person to receive interest or dividend or to negotiate
or transfer or do both.
● Jiwan kaur v. Jasbir
○ held that nominee is holder in due course and is treated in law as a trustee on behalf of actual
claimant, but he cannot seek precedence over actual claimant. The Claimants/grand sons are
the legal heirs of deceased and have precedence over the nominee in the matter of
succession.
Restriction on Succession Certificate(sec 375) (request of security)

A court can sometime require a bond with one or more surety or sureties or any
other security for rendering an account of debts and securities received by the
petitioner of succession certificate for indemnifying the persons who may be
entitled to any part of the debt or securities.
Revocation of the Succession Certificate (sec 383)
● As per Section 383 of the said Act, a certificate so issued may be revoked for any of
the following causes:-
● Process for obtaining the certificate was defective.
● Certificate was obtained fraudulently.
● Certificate becomes useless and inoperative due to circumstances.
● Decree or order of other competent court in dealing with the debts and securities of
the same deceased person, renders it proper that the certificate is revoked.
● Against an order of the District judge, in the matter of grant, refusal or revocation of
certificate, a person may appeal to the appropriate High Court
● Jagjit singh v. Dalip and ors: widow who remarried after Succession doesn't lose
right on deceased husband’s property .
 Will
Unite-5
Will (sec 59-141)
Definition

● Sec 2(h) :Will” means 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.

Requests to create a will:

● Persons capable of making a will : (sec 59) Sound mind, not a minor.
● Sec 61: will should be obtained without: fraud, coercion, or any such importunity
○ Ill: A, falsely and knowingly represents to the testator, that the testator’s only child is
dead, or that he has done some undutiful act and thereby induces the. testator to make
a will in his, A’s favour; such will has been obtained by fraud, and is void.

Revocation sec 62:

● Maker of the will can revoke it any time he is competent to dispose of the property,
Types of will :
Privileged will and unprivileged will :
● Unprivileged will: ordinary will, any will accept for privileged
● Sec 63 : Conditions for a execution of unprivileged will (refer case laws)
○ The testator should sign or affix his mark (e.g., thumb mark)
○ The Will must be attested by 2 or more witnesses
○ The witnesses must have seen the testator sign or affix his mark to the Will
○ Each witness shall sign the Will in the presence of the testator.
○ The witness should not be a beneficiary under the Will.
● Privileged will : Soldiers, airman, mariner-complete age of 18 may dispose
of his property according to section 66
○ Ill : A, 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.
● Sec 66. Mode of making, and rules for executing, privileged wills.—(1)
Privileged wills may be in writing, or may be made by word of
mouth.(refer case laws )
○ (a) The will may be written wholly by the testator, with his own hand. In such case it need not
be signed or attested.
○ (b) It may be written wholly or in part by another person, and signed by the testator. In such
case it need not be attested.
○ (c) If the instrument purporting to be a will is written wholly or in part by another person and is
not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by
the testator's directions or that he recognised it as his will.
Sec 122. Onerous bequests.—
● Where a bequest imposes an obligation on the legatee, he can take nothing by it
unless he accepts it fully.
● Illustration: A, having shares in (X), a prosperous joint stock company and also
shares in (Y), a joint stock company in difficulties, in respect of which shares heavy
calls are expected to be made, bequeaths to B all his shares in joint stock
companies; B refuses to accept the shares in (Y). He forfeits the shares in (X).
Contingent Bequest/will:
● Sec 124: Bequest contingent upon specified uncertain event, no time being
mentioned for its occurrence.
● Ill: A legacy is bequeathed to A when and if he attains the age of 18, and, in case of
his death, to B. A attains the age of 18. The Legacy to B does not take effect.
Conditional Bequests (sec 126-137)
● 12.6 Bequest on impossible condition- void
○ An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.
● 127. Bequest upon illegal or immoral condition.—A bequest upon a condition, the
fulfilment of which would be contrary to law or to morality is void.
● 128. Fulfilment of condition precedent to vesting of legacy:
○ A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A marries with
the written consent of B. C is present at the marriage. D sends a present to A previous to the marriage. E has
been personally informed by A of his intentions, and has made no objection. A has fulfilled the condition.
● 129. Bequest to A and on failure of prior bequest to B.
○ A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B. A dieswithout
having ever had a child. The bequest to B takes effect.
● 131. Bequest over, conditional upon happening or not happening of specified
uncertain even
● 132.. Condition must be strictly fulfilled.
●
Of Bequests with Directions as to Application or Enjoyment
138. Direction that fund be employed in particular manner following absolute bequest of same to
or for benefit of any person.
● A sum of money is bequeathed towards purchasing a country residence for A, or to
purchase an annuity for A, or to place A in any business. A choses to receive the legacy in
money. He is entitled to do so.
139. Direction that mode of enjoyment of absolute bequest is to be restricted, to secure specified
benefit for legatee.-
● Ill: A bequeaths the residue of his property to be divided equally among his daughters, and
directs that the shares of the daughters shall be settled upon themselves respectively for
life and be paid to their children after their death. All the daughters die unmarried. The
representatives of each daughter are entitled to her share of the residue.
 Curator
Protection of property of deceased
Protection of property of deceased (192-209)
● 192. Person claiming right by succession to property of deceased may
apply for relief against wrongful possession.-
● 193. Inquiry made by Judge.-The District Judge to whom such application is
made shall, in the first place, examine the applicant on oath, and may make
such further inquiry, if any, as he thinks necessary as to whether there is
sufficient ground for believing that the party in possession or taking forcible
means for seizing possession has no lawful title.
● 194. Procedure.-
○ The district judge after making enquiry, if satisfied
○ Will give sufficient time for vacation of property
○ And give the possition to sucessor.
Curator (right and duties)
● 195. Appointment of curator pending determination of proceeding.-
○ If danger is to be apprehended of the misappropriation or waste of the property during period
of inquiry
● 197. Prohibition of exercise of certain powers by curators.
○ Where a certificate has been granted under Part X or under the Succession Certificate Act,
1889 1*, (7 of 1889.) or a grant of Probate or letters of administration has been made, a
curator appointed under this Part shall not exercise any authority
● 196. Powers comfortable on curator.
○ To hold possession of property
○ until security is given by the party in possession, or until inventories of the property have been
made.
● 198. Curator to give security and may receive remuneration :
○ 5% from proceeds of property-surplus deposited to court.
● 199. Report from Collector where estate includes revenue-paying land.-
○ Where the estate of the deceased person consists wholly or in part of land paying revenue
to Government, in all matters regarding the property
● 200. Institution and defence of suits.-The curator shall be subject to all
orders of the District Judge regarding the institution or the defence of suits,
● 201. Allowances to apparent owners pending custody by curator.-if
District court holds parties interested he considers necessary.
● 202. Accounts to be filed by curator.-The curator shall file monthly
accounts in abstract, and shall, on the expiry of each period of three months
● 203. Inspection of accounts and right of interested party to keep
duplicate.
Limitations
● 204. Bar to appointment of second curator for same property.- As the
court may deem fit
● 205. Limitation of time for application for curator- 6 months
● 206. Bar to enforcement of Part against public settlement or legal
directions by deceased.-
● 207. Court of Wards to be made curator in case of minors having
property subject to its jurisdiction.-
● 208. Saving of right to bring suit.-
● 209. Effect of decision of summary proceeding.-
 Legacies
Not the most important topics. You need to know about types of legacy and ademption
of legacy’s
Legacies (Refer sec 142-190)
Specific Legacies (sec 142-149)
142. Specific legacy defined.-Where a testator bequeaths to any person a
specified part of his property, which is distinguished from all other parts of his
property, the legacy is said to be specific.
● Illustrations
● A bequeaths to B--"the diamond ring presented to me by C": "my gold chain":
● "a certain bale of wool":
● "a certain piece of cloth"
● "the sum of 1,000 rupees in a certain chest":
● "the debt which B owes me"
Demonstrative Legacies (150-151)
150. Demonstrative legacy defined.-Where a testator bequeaths a certain sum of
money, or a certain quantity of any other commodity, and refers to a particular fund
or stock so as to constitute the same the primary fund or stock out of which
payment is to be made, the legacy is said to be demonstrative.
● Illustrations
● (i) A bequeaths to B, 1,000 rupees, being part of a debt due to him from W. He
also bequeaths to C 1,000 rupees to be paid out of the debt due to him from
w. The legacy to B is specific, the legacy to C is demonstrative.
Ademption of Legacies

152. Ademption explained.-If anything which has been specifically bequeathed does not belong to the
testator at the time of his death,

or has been converted into property of a different kind, the legacy is adeemed; that is, it cannot take effect,
by reason of the subject- matter having been withdrawn from the operation of the will.

Illustration : A bequeaths to B--

"the sum of 1,000 rupees, in a certain chest":

"all the horses in my stable".

At the death of A, no money is found in the chest, and no horses

in the stable. The legacies are adeemed.

NEED FOR UCC
What is UCC ?

● The concept of UCC will eliminate conflicting personal and religious laws, bringing all citizens under one law
regardless of religion or gender. The applicability of UCC is found in Article 44 of the Constitution, which states
that “The State shall endeavour to ensure for its citizens a uniform civil code throughout the territory of
India.” The article is located in Part IV of the Constitution, which is dedicated to Directive Principles of State Policy
(DPSPs). The UCC is inapplicable even when our constitution implies its application. This is because Article 37 of
the Constitution expressly states that the (DPSP) Directive Principles of State Policy “shall not be
enforceable by any court” but are “fundamental to the country’s governance.” It’s almost like a form of
advice to the country.

Significant reformers

● Several significant reforms, in fact, contributed to the promotion of UCC: the Hindu code bill to reform Hindu laws; the
amendment to the Hindu Succession Act 1956 on September 9 to provide daughters with inheritance rights; the
Hindu Marriage Act, Minority and Guardianship Act, Adoptions and Maintenance Act; and the Special Marriage Act for
civil marriages outside of any religious personal law
Need
● To address the gender disparity produced by specific religious laws
● To address personal laws that constitute a loophole in the legal system(
tradition panchayat systems)
● To aid in the integration of India
● To ensure that all citizens have an equal status
● To deal with vote bank politics
● To promote secularism
● To keep pace with global progress
Cases
● Shah Bano case- maintenance of wife 125
● Daniel Latifi Case
● This case demonstrates how universally applicable law should prevail over unjust religious
laws. In this case, Muslim Women’s Act (MWA) was challenged for violation of Articles
14,15 & 21 of the Constitution.
● Sarla Mudgal case-
● second marriage solemnised after conversion to Islam would constitute an offence under
Section 494 of the Indian Penal Code (IPC).
● John Vallamattom Case
● The case in which Section 118 of the Indian Succession Act was declared unconstitutional
after John Vallamattom challenged it on the grounds that it discriminated against Christians
by imposing unreasonable restrictions on their willed gifts for religious or charitable
purposes. This demonstrated the inconsistencies under religious laws.