Report No. 110

IV. Wills in Hindu and Muslim Law

2.15. Wills amongst Hindus and Muslims.-

In Hindu law, there was, originally, no concept of wills. No synonym for the word "'will" was to be found in the whole of Sanskrit literature. But the institution of wills in all its aspects (as applicable to Hindus) was brought into being by judicial decisions1 during the British period. In the latter half of the 19th century, the Privy Council could observe2, "It is too late to contend that because the ancient Hindu treatises make no mention of wills, a Hindu cannot make a testamentary disposition of his property."

1. Sarkar Epochs in Hindu Legal History, pp. 371 and 383.

2. Beer Partab v. Rajendra Partab, (1867) 12 MIA 1 (37).

2.16. Hindu wills, before and after 1870.-

A Hindu will executed before 1870, could be in writing or oral, and no attestation or other formalities were required1. Even signature was not necessary in law. In 1870, the Hindu Wills Act introduced various formalities for the execution of wills2. Later legislative developments on the subject are not material for the present purpose, since the sections of the Indian Succession Act which .lay down the formalities for making wills apply to Hindus5, and constitute the present law on the subject.

1. (a) Maneharji v. Narayan, 1 BHCR 77.

(b) Srinivasa v. Vijayammal, 2 MHER 224.

2. Vinayak v. Govindraj, 6 BHCR 224.

3. Sections 63-64, read with section 57.

2.17. Muslim Law.-

Amongst Muslims, the tradition of making wills goes at least as early as the Prophet1. The Indian Succession Act does not apply to wills executed by Muslims, an the law on the subject has developed on its own lines2.

1. Sekaene Muslim Law, (1968), p. 838; Tyabji Muslim Law, 1968, p. 764.

2. See also para. 2.11.