Will and Inheritance: Will – Meaning, Difference between Will and Gift

Wills in Mohammedan Law

A will is the declaration by the owner as to how his property is to be distributed after his death.

A will takes effect on the testator’s death and may be revoked at any time before his death.

Revocation need not be express.

A subsequent will shall impliedly revoke the previous will.

Any Mohammedan, male or female completed 18 years and of sound mind can execute a will.

Under the Shia Law, a person has taken poison to commit suicide cannot make a will.

Essentials of a valid Will

  1. It should be lawfully made and should exist at the time time of the legator’s death.
  2. According to Muslim law, Will can be made orally or by clear gestures and they are valid.
  3. The legator’s intention to make the will
  4. Terms and conditions of the Will
  5. Precision of the Will
  6. A written will need not be formal but fulfill the following conditions:
    1. The legator’s clear intention should be proved
    2. His signature is not essential
    3. If the Will is signed, it need not be attested

The Wills in Muslim Law resemble similar to the ‘Privileged Will’ of the Indian Succession Act.

The will is revocable by the testator and so, the Will which is not revoked after being made, is enforceable. Revocation can be done only by the legator during his lifetime and not by his heirs or after his death.

Revocation of a Will by the legator may be express or implied by the legator’s conduct.

A subsequent sale or gift of the property bequeathed Will amount to revocation of the Will.

If a legator bequeaths a certain property to a particular person and later bequeaths it to another person, then the latter amounts to revocation of the former Will.

Under the Hanafi law, if the legatee dies before the legator, then the Will lapses. In Hanafi Law, in such a case, the following rules shall apply:

  • After the legatee’s death, the legator can revoke the Will
  • If the legator does not revoke th Will, it will pass on to legatee’s heirs.
  • If the legatee has no heir, the Will shall lapse

General Rules of Mohammedan Law of Inheritance

The Mohammedan Law of Inheritance is a system of inheritance. It imposes a restriction upon the testator to bequeath only 1/3rd by Will. The rest 2/3rd of the property is available to the heirs. The testator cannot bequeath 1/3rd of his property to any heir, and such a bequeath is void if other heirs do not consent to it after the testator’s death.

The only criticisms of the Law of Inheritance in Mohammedan Law is that it creates fragmentation of the estate and it becomes uneconomical to divide agricultural lands.

  1. Applicability
  2. Heritable property
  3. No joint family
  4. No rule of primogeniture
  5. Transfer of ‘spes successionis’
  6. Estoppel
  7. No disability for female heirs
  8. Life estate and vested remainder
  9. Vested inheritance
  10. Principle of representation
  11. Exclusion from inheritance

Contingent and Conditional Bequests

Will made in death bed or during illness

When a person creates/makes a gift out of an apprehension of imminent death and dies later, it is called “Death-Bed Gift”. In other words, if a person makes a gift during illness and dies later, it is called Death-Bed Gift or Marz-Ul-Maut.

It is subject to two restrictions:

(i) disqualification of heir; and

(ii) property disposed of should not exceed 1 /3 of the net assets. These restrictions may be relaxed with the consent of the heirs.

The Death-Bed-Gift is valid only when the donor dies of illness during which the will was made.

Essentials of Death-Bed Gift:

  1. There must he an apprehension as to immediate death.
  2. Such fear of death must be subjective
  3. The illness must not be for a long period to make the patient used to it.
  4. To effect the transfer of property, by way of gift in anticipation of death.
  5. Mere apprehension of death as to old age is not sufficient.

Transfer of Property– Section 129 deals with Death-Bed Gift or Donatio Mortis Causa.
Indian Succession Act, 1925– Section 191 deals with Death-Bed Gift with regard to movable property.

Examples of death illness: Pneumonia, Galloping consumption, rapid consumption, etc.

Muslim law of Inheritance – Shia and Sunni schools

Shia Law

Hanafi or Sunny Law of Inheritance

Hiba or Mohammedan Law of Gift

Distribution of property under Indian Succession Act of 1925 (Of Christians, Parsis and Jews)

Domicile – Sec. 4 – 22 of the Indian Succession Act, 1925


Indian Succession Act, 1925 is based on few of enactments such as the Indian Succession Act, 1865, Hindu Wills Act, 1870, the Probate and Administration Act, 1881.

Section 4. Application of Part.-This Part shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina.

Indian Succession Act is applicable to persons of Indian domicile as governed by provisions Sec. 5 to 19 of the Act. However, the Act is not applicable if the deceased was a Hindu, Mohammedan, Budhist, Sikh or Jain.

Intestate Succession of the Act are not applicable to parsis.

The object of the Indian Succession Act is to consolidate the Indian laws relating to succession, as the then existing statues and other enactments were not certain and they were repugnant to one another.

“Domicile” means the relationship between a person and a State for determining the personal status and the law applicable to such a person in the matter of majority, marriage, divorce, and succession.

For the purpose of Indian Succession Act, for dealing with the succession, the domicile is essential.

Section 5. Law regulating succession to deceased person’s immoveable and moveable property, respectively.-

(1) Succession to the immoveable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death.

(2) Succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.

Properties are divided into two types namely, movable and immovable properties. The movable property is governed by the law of succession of the country in which the deceased had his domicile at the time of his death.

However, as far as immovable properties are concerned, the rules of succession are governed by the law of the place where the property is situated. Domicile of the person at the time of his death is immaterial.


(i) A, having his domicile in India, dies in France, leaving moveable property in France, moveable property in England, and property, both moveable and immoveable, in India. The succession to the whole is regulated by the law of India.

(ii) A, an Englishman, having his domicile in France, dies in India, and leaves property, both moveable and immoveable, in India. The succession to the moveable property is regulated by the rules which govern, in France, the succession to the moveable property of an Englishman dying domiciled in France, and the succession to the immoveable property is regulated by the law of India.

Rules of Domicile

Only one domicile is allowed for a person.

There can not be a person without a domicile.

Domicile has two essential factors. Such as:

a. Factum of Residence: Physical habitation for an indefinite period.

b. Animus: Present intention to reside for an indefinite period.

Types of Domicile

1. Domicile by birth or Domicile of origin

Section 7. Domicile of origin of person of legitimate birth.- The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father’s death.


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.

2. Domicile by Choice

Section 10. Acquisition of new domicile.- A man acquires a new domicile by taking up his fixed habitation in a 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 India merely by reason of his residing there in the civil, military, naval or air force service of Government, or in the exercise of any profession or calling.

Acquisition of domicile in a foreign country where he has resided permanently with the intention of living there permanently. Appointment as Ambassador, Consul in a foreign country does not constitute domicile of choice.

Rules of domicile regarding certain persons

1. Minor

Section 14. Minor’s domicile.- The domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin.

Section 17. Minor’s acquisition of new domicile.- Save as hereinbefore otherwise provided in this Part, person cannot, during minority, acquire a new domicile.

Minor can have only domicile of birth and not choice. In the case of legitimate minor, the domicile of the minor is that of his father and in the case of illegitimate minor, it is his mother’s. If the domicile of the mother is changed, then the domicile of the minor is also changed automatically.

2. Woman

Section 15. Domicile acquired by woman on marriage.- By marriage a woman acquires the domicile of her husband, if she had not the same domicile before.

Section 16. Wife’s domicile during marriage.- A wife’s domicile during her marriage follows the domicile of her husband.

A minor female can have domicile of her parents only. After marriage, her domicile is that of her husband. If she is a unmarried major, she can change the domicile as per her will and pleasure. The domicile of the divorced woman does not follow the domicile of her divorced husband.

3. Illegitimate child

Section 8. Domicile of origin of illegitimate child.- The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.

The domicile of the illegitimate child is that of its mother. After attaining majority, it can change the domicile as per the will and pleasure. If the illegitimate child is a woman, after her marriage, she gets the domicile of her husband.

4. Lunatic

Section 18. Lunatic’s acquisition of new domicile.- An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.

A lunatic cannot change the domicile. If a lunatic is a married woman, her domicile is that of her husband. A lunatic can have only domicile of origin, unless it is changed by the guardian, or parents or husband.

Procedure for acquiring domicile

Section II of the Indian Succession Act prescribes the mode of acquiring domicile in India.


The person wishing to acquire the domicile of India should declare his intention in writing.


Such declaration in writing must be deposited with the Registrar of Domiciles, who is appointed by the Government of India for this purpose.


The person making such declaration and deposit must have resided in India for at least one year prior to the date of presentation of the declaration for depositing with the Registrar of Domiciles.

Parsis Intestate succession and Non Parsis

Intestate succession

Succession certificate

Probate and letters of administration, powers and duties of executor