Powers Of A Hindu To Make A 'Will' Before And After Enactment Of Hindu Succession Act

The Supreme Court judgment in V. Kalyanaswamy(D) by LRS. vs. L. Bakthavatsalam(D) By LRS. has elaborately dealt with the legal principles regarding the execution of a Will. It held that, in a situation where both the attesting witnesses to a will are dead, it is sufficient to prove that the attestation of at least one attesting witness is in his handwriting. When both the attesting witnesses are dead, it observed that there is no requirement of law that the attestation as required under Section 63 of the Indian Succession Act, viz., attestation by the two witnesses has to be proved. This aspect of the judgment is already dealt in an earlier report. The facts of the case can be read here.

The Will in question was executed on 10.05.1955, i.e. before the enactment of Hindu Succession Act, 1956. However, the Supreme Court in its judgment examines the power of a Hindu to make a Will before and after the enactment of Hindu Succession Act. The following portion of this piece is a summary of observations made in this regard in the Supreme Court judgment authored by Justice KM Joseph.

Before Hindu Succession Act

The Court noticed that, though the treatises in Hindu Law do not contain reference to the concept of a Will, the courts have recognised the power of a Hindu to bequeath his separate and self-acquired properties even prior to the Hindu Succession Act being enacted. Before the Indian Succession Act, 1925, the Court observed that there was no particular law which governed the same. It further noted that the earlier Succession Act of 1865 was not applicable to Hindus. The Hindu Wills Act 1870 had limited application to Wills by Hindus in the town of Madras.

The execution of a will by a Hindu also came to be regulated from the 1st of January, 1927 with the passage of Indian Succession Act of 1925. In the matter of an unprivileged will executed by a Hindu, the requirement of Section 63 which includes attestation of such a will by a minimum of two witnesses became mandatory. (Unprivileged Wills are the Wills that can be created by every person other than those who can create a privileged will, see section 65 of Indian Succession Act) 

The court further noted that, in regard to a member of a joint Hindu family who also has his separate property, he could bequeath his separate property, even before Hindu Succession Act.

If it was a joint family property, the power depended on three situations.

1. Where the family remains joint in which case the coparcener would have an interest. As far as this interest is concerned, it could not be the subject matter of the will prior to the Hindu Succession Act.
2. In a case where there is a disruption in title or a division in status, i.e there is a partition in the sense of a division in the joint family status caused by any unequivocal declaration by a coparcener which is communicated. It can be by words. It can be by conduct. It can also embrace the very filing of a suit for partition. When such disruption takes place then the share of the coparcener in the joint family property becomes a reality and takes concrete shape in accordance with law and the rights of the members of the family. This may or may not be accompanied simultaneously with a metes and bounds partition. In such a scenario under the law prior to the Hindu Succession Act, having achieved disruption in the joint family, the right based on the principle of survivorship perishes. The share of the coparcener becomes undeniable. Should he die intestate the share would go not to the other coparceners by survivorship but to his heirs. It also opens the door to the coparcener to exercise his right to bequeath his share in accordance with his wishes. This power was certainly available to a Hindu even prior to Section 30 of the Hindu Succession Act.
   
3. Following a division in title or status in the family there is also a metes and bounds partition of the properties of the family in accordance with the share. It cannot be open to doubt that in fact, capacity of a Hindu to bequeath such property existed even prior to the Hindu Succession Act.
   

After Enactment Of Hindu Succession Act

The power of a Hindu to execute a Will came to be statutorily recognized in 1956 with the passage of Hindu Succession Act. The Section 30 of the Hindu Succession Act provides that any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her], 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.

The Explanation to this provision further clarified that 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.

Elaborating this, the bench observed:

After the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family. In other words, the words "interest in coparcenary property" can be predicated only when there is a joint family which is in tact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the right of a Hindu in the coparcenary joint family is an interest. Upon disruption or division, it assumes the form of a definite share. When there is a metes and bounds partition then the share translates into absolute rights qua specific properties

To conclude, the change brought in by the Hindu Succession Act is this: Even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family. Before the enactment, this 'interest' could not be the subject matter of a Will.