NMIMS KPM SCHOOL OF LAW

A Research Paper Submitted on:

TESTAMENTARY SUCCESSION UNDER THE HINDU SUCCESSION ACT

In compliance to partial fulfilment of the marking scheme,

For semester VIII of 2018-2019,

In the subject of FAMILY LAW II

Submitted To:

Prof. Sohini Srivastava

Submitted by:

Rishabh Tiwari, A057

 TESTAMENTARY SUCCESSION UNDER THE HINDU SUCCESSION ACT

INTRODUCTION

“Succession to defunct is the most important title in law; for thereby the rights of all persons
do necessarily pass once, and frequently oftener, in every generation”.

Succession affects everyone as all property must pass to someone else on death. There are twin
regimes in place to regulate the law of succession and are as follows:

 Testate Succession and (where the individual leaves a will on death)

 Intestate Succession (where the individual does not leave a will on death)

The difference between Testate and Intestate Succession is as follows:

 Testate succession occurs when a person dies and leaves a will. Their estate will be
distributed as they bequest in the will however legal rights will still have to be satisfied
 Intestate Succession occurs when someone dies without a will and their estate is
distributed by the laws of intestacy or testamentary succession provisions given under
various Acts relating to the succession.

Webster in Comprehensive' Dictionary in international edition at page 1298, stated the meaning
of the word 'testamentary' thus: (i) derived from, bequeathed by, or set forth in a will; (ii)
appointed or provided by, or done in accordance with, a will; (iii) pertaining to a will, or to the
administration or settlement of a will, testamental. In the Law Lexicon by P. Ramanatha Aiyar,
reprint edition 1987 at P. 1271 testamentary instrument was defined to mean a "testamentary
instrument" is one which declares the present will of the maker as to the disposal of his property
after death, without attempting to declare or create any rights therein prior to such event.
Black's Law Dictionary [6th Ed. 1991] defines "testamentary disposition" at page 1475 thus -
"the passing of property to another upon the death of the owner. A disposition of property by
way of a gift, Will or deed which is not to take effect unless the grantor dies or until that event."

The Hindu Succession Act, 1956 is an Act of the Parliament of India enacted to amend and
codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains,
and Sikhs. The Act lays down a uniform and comprehensive system of inheritance and applies
to persons governed by both the Mitākṣharā and Dāyabhāga schools. It is hailed for its
consolidation of Hindu laws on succession into one Act. The Hindu woman's limited estate is
abolished by the Act. Any property possessed by a Hindu female is to be held by her absolute
property and she is given full power to deal with it and dispose it of by will as she likes. Parts
of this Act were amended in 2005 by the Hindu Succession (Amendment) Act, 2005.

In the case of males, the property of a Hindu male dying intestate, each shall be granted one
share of the deceased’s property. Also if the widow of a pre-deceased son, the widow of a pre-
deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled
to receive the inheritance.

In the case of females, Under the Hindu Succession Act, 1956, females are granted ownership
of all property acquired either before or after the signing of the Act, abolishing their “limited
owner" status. However, it was not until the 2005 Amendment that daughters were allowed
equal receipt of property as with sons. This invariably grants females property rights.

The property of a Hindu female dying intestate, or without a will, shall devolve in the following
order:

 Upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the husband,
 Upon the heirs of the husband,
 Upon the father and mother,
 Upon the heirs of the father, and
 Upon the heirs of the mother.

In this research paper we will be majorly dealing with the testamentary succession which is
recognised by the Hindu Succession Act under Section 30. The legal analysis of the same will
be followed by the various case laws which helped in evolving the provision.

ANALYSIS

The testamentary disposition means disposition of the property which would take effect after
the death, instead of co-instentine on the execution of the document. A testamentary disposition
is generally effected by a will or by a codicil which means an instrument made in relation to a
will extending, altering or adding to its disposition arid is to be deemed to form part of the will.
Will as defined in Section 2(h) of the Indian Succession Act, 1925 means legal declaration of
the intention of the testator with respect to his property which he desired to carry into effect
after his demise. It limits alienation intra vivos. While the gift being a disposition in presenting,
it becomes effective on due execution and registration and generally delivery of the possession.

The right of a Hindu to dispose of by will (or other testamentary disposition) any property
which is capable of so being disposed of by him or her, in accordance with the provisions of
the Indian law is known a testamentary succession and is generally governed by the Hindu
Succession Act.

Under Hindu law, a Hindu cannot by will, bequeath property which he could not have alienated
by gift inter vivos. That rule is now considerably modified in case of persons governed
by Mitakshara law.

Section 30 of the Hindu Succession Act expressly recognises this right of testamentary
succession. Thus, Section 30 is merely an assertion of the general rule that a Hindu is capable
of disposing of by will any properly, which is within his or her power to bequeath.

Section 30 of the Hindu Succession Act 1956, permits a member of a Mitakshara coparcenary
to dispose of by will, his undivided interest in the coparcenary property. A coparcener
under Mitakshara law has no power to dispose of his coparcenary interest by gift. That sale is
not affected by the new legislation, but he is now entitled to dispose of such interest by
will. The position of a coparcener under Dayabhaga law has not been altered in any manner.
He could always dispose of his coparcenary interest by gift or will, subject to the claims of
those who are entitled to be maintained by him.

Section 30 read as follows:

Any Hindu may dispose of by will or other testamentary disposition any property, which is
capable of being so disposed of by him, in accordance with the provisions of the Indian
Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.

Explanation: The interest of a male Hindu in a Mitakshara coparcenary property or the interest
of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad,
tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in
any other law for the time being in force, be deemed to be property capable of being disposed
of by him or by her within the meaning of this section.

2005 AMENDMENT AND ROLE OF JUDICIARY

It has been more than six decades that the law governing intestate succession was modified and
given statutory shape for majority of Hindus via the Hindu Succession Act (HSA). This
enactment was intended primarily to amend and codify the law governing intestate succession
among Hindus, enumerated in detail schemes of succession for both male and female intestates
and also provided for devolution of an undivided share in a Mitakshara coparcenary and the
extent of testamentary capacity of a Hindu.

The aim of this statutory/notional partition was to demarcate the share of the deceased, which
would then go not by survivorship to the surviving coparcener as was the law prior to the
enactment of the HSA but would be inherited by his class-I heirs that included females.

This amendment clearly was meant to put females on the equal footing and basically gave equal
rights to the females in the property thus brought gender equality.

Few landmark judgments on the testamentary succession are given below:

Thamma Venkata Subbamma vs Thamma Rattamma: A Coparcener cannot gift his undivided
interest in the coparcenary property except for purposes warranted by special text. Such a gift
is void. But a gift to another Coparcener or to a stranger with the prior consent of all other
Coparcener is valid and legal.

CONCLUSION

As per Section 30 of the Act, 1956 only male Hindu was entitled to dispose
of by Will or other testamentary disposition his interest or share
in Mitakshara coparcenary property.
By the amendment act of 2005, by substituting the words “disposition of by him or her” in
section 30 is given to the female Hindu to dispose off by will or other testamentary disposition
of her interest in Mitakshara Coparcenary Property.

Making all daughters coparceners likewise has far-reaching implications. It gives women
birthrights in joint family property that cannot be willed away. Rights in coparcenary property
and the dwelling house will also provide social protection to women facing spousal violence
or marital breakdown, by giving them a potential shelter. Millions of women - as widows and
daughters - and their families thus stand to gain by these amendments.

This amendment in section 30 was a progressive approach by the legislature and similar steps
should be taken by government and the judiciary to ensure the equal rights to the women.

Bibliography

1. Family Law Lectures - Family Law II, Poonam Pradhan Saxena

2. Manupatra.com
3. Lexisnexis
4. SCCOnline
5. Legalcrystal.com