Will, Gift and Wakf

• Definition (Section 2(h)): 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 will is ambulatory (revocable), operates only on death, and requires no consideration.

• Capacity (Section 59): every person of sound mind and not a minor may make a will. A married woman can bequeath property she can alienate. A deaf, dumb or blind person can make a will if he knows what he does. Will by a person who is intoxicated, ill or otherwise unable to know what he is doing is void. Will obtained by fraud, coercion or importunity is void (Section 61).

• Execution (Section 63): (a) testator signs or affixes his mark, or another signs in his presence and by his direction; (b) signature or mark so placed as to appear to give effect to the writing as a will; (c) attested by two or more witnesses, each of whom has seen the testator sign or has received from him a personal acknowledgement of his signature; each witness signs in the presence of the testator (not necessarily in each other’s presence). Registration is not mandatory.

• Privileged wills (Sections 65–66): soldiers employed in an expedition or actually engaged in warfare, airmen and mariners at sea may make an unwritten (nuncupative) will before two witnesses; no formal attestation.

• Revocation: Section 70: an unprivileged will is revoked only by another will or codicil, by a writing declaring an intention to revoke it executed like a will, or by burning, tearing or otherwise destroying it with that intention. Section 62 states that a will is liable to be revoked or altered by the maker at any time when he is competent. Codicil (Section 2(b)) is an instrument supplementing the will.

• Probate: Probate of a will is the copy certified under the seal of a court of competent jurisdiction; compulsory (Section 213) for wills made by Hindus, Buddhists, Sikhs and Jains in the territories of the former Presidency towns (Bombay, Calcutta and Madras) (Section 57(c)) and for Parsi and Christian wills in India. Letters of administration are for intestacy or for wills without executors (Section 218). Succession certificate for debts (Section 370 ISA, now Section 372).

• Proof of will: H. Venkatachala Iyengar v B.N. Thimmajamma (1959) set out the principles: the propounder must prove due execution and the testator’s sound disposing mind; suspicious circumstances must be explained; Jaswant Kaur v Amrit Kaur (1977), Rabindra Nath Mukherjee v Panchanan Banerjee (1995) and Meenakshiammal v Chandrasekaran (2005) apply it.

• Hindu coparcener’s will: Section 30 HSA allows a Hindu to dispose by will of his coparcenary interest (Explanation to Section 30).

• Muslim will (wasiyat) rules:

  • The testator must be an adult of sound mind and a Muslim of free consent; a will of a suicidal act (a will made after taking poison or injury) is void in Hanafi law.

  • One-third rule: a bequest cannot exceed one-third of the net estate (after funeral expenses and debts) unless the heirs consent after the testator’s death (Sunni) or at any time (Shia).

  • No bequest to an heir without the consent of the other heirs (Sunni; Shia allows bequest to an heir within one-third).

  • The legatee must be in existence at the testator’s death (a child in the womb who is born within six months qualifies); a legatee who causes the testator’s death is disqualified.

  • A will may be oral; no writing, no registration, no witness required; may be revoked expressly or by implication.

  • Part VI of the Indian Succession Act does not apply to Muslim wills (Section 58), and the Shariat Act 1937 originally left wills outside its scope unless a person declared under Section 3, so Muslim will law is largely uncodified (Hedaya, Fatwa-i-Alamgiri).

  • Death-bed gifts (marz-ul-maut) are treated like wills (limited to one-third and requiring consent for more).

Hindu gift: TPA Sections 122–129

• Acceptance: need not be express; can be inferred from conduct (Asokan v Lakshmikutty, 2007). A gift is complete when accepted; possession is not essential for a registered immovable gift (K. Balakrishnan v K. Kamalam, 2004; Renikuntla Rajamma v K. Sarwanamma, 2014: a gift deed cannot be treated as valid without proof of acceptance and attestation).

• Karta’s gifts: a Hindu karta cannot gift ancestral immovable property except small gifts for pious purposes.

Muslim gift (hiba)

• Definition: an immediate and unconditional transfer of the ownership of the substance of a thing, without any return.

• Essentials: (1) declaration (ijab) by the donor; (2) acceptance (qabul) by the donee, express or implied; (3) delivery of possession (qabza): actual or constructive, appropriate to the property. Registration is not required for validity (Section 129 TPA keeps Muslim gifts out of Section 123; Mohammad Abdul Ghani v Fakhr Jahan Begam, PC 1922; Hafeeza Bibi v Shaikh Farid, SC 2011: oral gift valid if all three requirements are satisfied; writing alone is not sufficient).

• Capacity: donor must be a Muslim, major, of sound mind, and the owner; donee may be any person, including a minor (accepted by guardian), an unborn child (invalid except if born within six months).

• Mushaa (undivided share): a gift of an undivided share in property capable of division is invalid under Hanafi law unless exceptions apply; the Indian courts require division except in the case of shares in a freehold property in large buildings, shares in a company, etc.. Shia law has no objection.

• Contingent and future gifts: a gift to take effect in future is void; a condition repugnant to absolute ownership is void though the gift itself may stand, while use of property without ownership is the separate transaction of ariyat.

• Kinds: Hiba-bil-iwaz (gift for an exchange or consideration; it is a sale in effect); Hiba-ba-shart-ul-iwaz (with a stipulation for return); Sadaqah (gift for religious merit; cannot be revoked after delivery); Ariyat (loan of the use of property); Hiba of mushaa (as above).

• Revocation: before delivery, the donor can withdraw; after delivery, only by a decree of court or consent of the donee; a gift becomes irrevocable on the donee’s death, the donor’s death, the donee being a relative within prohibited degrees, a spouse, on the donee’s alienation, when consideration has been given (hiba-bil-iwaz), when the gift is sadaqah, and when the subject is lost or increased.

• Death-bed gift (marz-ul-maut): treated as a will; valid only up to one-third of the estate unless the heirs consent.

• Mahr in lieu: hiba-i-mahr; wife’s remission of dower.

Hindu gift vs Muslim gift

Definition (Waqf Act 1995, Section 3(r), as amended by the Waqf (Amendment) Act 2025): the permanent dedication of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable. The 2025 amendment replaced the earlier open definition (any person could create a wakf) with a requirement that the person showing or demonstrating that he is practising Islam for at least five years and has ownership of the property may create a waqf, removed the category of ‘waqf by user’ prospectively, and provided that a waqf-alal-aulad (family waqf) shall not deny inheritance rights of female heirs and other heirs; the Supreme Court stayed the five-year practice condition until rules are framed (see below). The principal Act was also renamed (the Unified Waqf Management, Empowerment, Efficiency and Development Act 1995: verify).

Essentials: (1) a person competent to dedicate (a Muslim of sound mind, major and owner); (2) permanent dedication (a wakf cannot be for a limited time); (3) property capable of dedication, movable or immovable; (4) a pious, religious or charitable purpose; (5) the dedication must be unconditional and irrevocable (Hanafi law: according to Abu Yusuf’s view followed in India a wakf is complete by declaration without delivery to the mutawalli; Imam Muhammad requires delivery; Abu Hanifa treats it as revocable until a judicial decree). Wakf vs trust: in a wakf the ownership vests in the Almighty; the mutawalli is a manager (not owner); a wakf is irrevocable and perpetual; a trust vests ownership in the trustee.

Types: wakf-ul-ahli or wakf-alal-aulad (family wakf; valid under the Mussalman Wakf Validating Act 1913 if the ultimate benefit is for the poor); wakf-khairi (public wakf); wakf by user (long public religious use; abolished prospectively by the 2025 amendment, SC said the abolition is not arbitrary); wakf by declaration, instrument or by dedication.

Management: Mutawalli (Section 3(i) of the 1995 Act); State Waqf Boards (supervision, registration of wakfs, powers under Sections 32–33); Central Waqf Council (advisory body to the Central Government; Section 9); Waqf Tribunal (Section 83) decides disputes relating to waqf property; Section 85 bars civil court jurisdiction; Section 51 (alienation of wakf property without Board’s sanction is void); registration (Section 36); survey by a Survey Commissioner (Sections 4–6).

Waqf (Amendment) Act 2025 and In re: Waqf (Amendment) Act 2025 (Supreme Court, 15 September 2025):

Final adjudication on the constitutional challenge was pending at last reliable report; check whether the Constitution-level or final judgment has been delivered before the exam (verify).

Other cases: M. Siddiq v Mahant Suresh Das (2019) on a mosque as wakf by user in the Ayodhya case; Pramatha Nath Mullick v Pradyumna Kumar Mullick (PC, 1925) (Hindu idol as a juristic person; contrast with wakf); Hindu endowments: debuttar property vests in the deity; the shebait is a manager.