Willing away property to a stranger

Guest post by Pallavi Mohan

Recently, the Supreme Court clarified an important point on the law of inheritance of property, i.e. whether a person can bequeath their self-acquired property to a stranger. The answer to this is Yes.

Why did the Supreme Court make this ruling?

In a case, where the inheritance of property by a woman claiming to be the deceased’s wife, through a will was questioned, the Supreme Court said that if the will was validly executed, it did not matter if the woman was the deceased’s wife or not. This means that the deceased may bequeath his self-acquired property to anyone he chose, even if that person was a stranger.

What types of property can a person dispose of by a will?

The person who makes the will is called the testator. A testator can only dispose of by a will property over which they have absolute ownership. This is also called self-acquired property and it includes:

• property purchased by the testator through their income/personal resources,
• property received by the testator through a gift deed or inherited through a will, and
• ancestral property received by the testator as their share after a partition (for example, a partition of joint Hindu family property).

Self-acquired property can be willed away to the testator’s heirs or to just one heir excluding all others or even to a stranger/non-heir since the testator has absolute ownership over such property.

A person with a share in ancestral property, i.e. property that has remained undivided over four generations, acquired at the time of birth (for example, a coparcener in an HUF) does not have absolute ownership over their share of the property. Therefore, they cannot give such ancestral property by will to their heirs or to a stranger.

What do the Indian succession laws say about bequeathing property to a stranger through will?

In India, succession is decided according to the personal laws of different religions. Succession among Hindus, Sikhs, Jains and Buddhists is covered under the Hindu Succession Act, 1956. Section 30 states that they may dispose of any property that can be disposed of by them, through a Will or other testamentary disposition in terms of the Indian Succession Act, 1925. There is no restriction in the Hindu Succession Act as to whom a property can be willed to.

The Indian Succession Act governs succession in the Christian, Parsi and Jewish communities living in India. Part IV of the Indian Succession Act provides for testamentary succession. This allows any person of sound mind, who is not a ‘minor’, to dispose of their property by will (Section 57). Apart from restrictions on bequeathing property to someone who was not alive at the time of the testator’s death (i.e. to an unborn child) or beyond the lifetime of a person (i.e. in perpetuity), there are no restrictions in the Indian Succession Act that say that property cannot be willed to a stranger.

However, Section 58 of the Indian Succession Act categorically states that Part IV does not apply to testamentary succession in Muslims. Sharia Law governs Muslim testamentary succession. It states that a Muslim person can will their property to any person only to the extent of 1/3rd of the total property. To will over 1/3rd of property, the testator needs the consent of legal heirs, irrespective of whether the property is being willed to the legal heirs or a stranger. No restriction in Muslim personal law states that this ‘bequeathable third’ cannot be willed to a stranger, as long as this person is not an ‘apostate’ (a former Muslim who has renounced Islam) or the murderer of the testator. [Note: There are minor differences in Sunni and Shia law related to consent for willing property to a non-heir/stranger].