Intestate and testamentary succession:

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April 30, 2024

Intestate and testamentary succession:

Why in News?  : Will an ex-Muslim continue to be governed by the Muslim personal law — the Shariat Act of 1937 — or by the secular laws of the country in matters of succession?

The Supreme Court agreed to consider the “important point” and issued notice on a writ petition filed by a woman from Kerala raising the question.

What was her petition ?

  • Safiya, the general secretary of an organisation of ex-Muslims of Kerala, seeks a “declaration that persons who do not want to be governed by the Muslim Personal Law must be allowed to be governed by the secular law of the country, viz, the Indian Succession Act, 1925 both in the case of intestate and testamentary succession”.

The plea said the petitioner, “a born Muslim woman to a non-practising Muslim father, who has not officially left the religion, is facing the peculiar problem in protecting her precious civil rights”.

  • It also said Safiya “wishes to get a declaration that she shall not be governed by Muslim Personal Law for any of the matters listed in section 2 or 3 of the Muslim Personal Law (Shariat) Application Act, 1937, but there is no provision either in the Act or in the Rules wherein she can obtain such a certificate. It is submitted that this is a clear vacuum in the statute which can be plugged by judicial interpretation”.

What the  Supreme Court bench  said ?

  • Initially, the bench was reluctant to entertain it and said as long as the person making the will does not make a declaration under Section 3 of The Muslim Personal Law (Shariat) Application Act, 1937, they will not be governed by the Act.
  • “You don’t have to seek that declaration. Because Section 3 of the Shariat Act says that unless you make a declaration, you will not be governed by the provisions of the personal law in the matter of wills, adoptions and legacies. So if you don’t make a declaration, your father doesn’t make a declaration, they are not governed by the personal law.
  • The plea said as per the SC’s Sabarimala judgement, the fundamental Right to Religion under Article 25 of the Constitution of India, must include the right to believe or not to believe. “To have meaning for that Right, the person who leaves her faith should not incur any disability or a disqualification in matters of inheritance or other important civil Rights.     
What are Intestate  & Testamentary Successions?

·         Intestate succession applies when a person dies without leaving behind a valid will or when their will does not fully dispose of all their property.

·         In intestate succession, the state’s laws dictate how the deceased person’s assets are distributed among their heirs. These laws typically prioritize spouses, children, parents, and other close relatives in a predetermined order.

Testamentary Succession:

·         Testamentary succession occurs when a person dies leaving behind a valid will, which outlines their wishes regarding the distribution of their assets after their death.

·         The will designates one or more individuals, known as beneficiaries, to receive specific assets or shares of the estate. It may also appoint an executor to carry out the instructions of the will.


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Intestate and testamentary succession: | Vaid ICS Institute