Undivided Share In Joint Family Can Be Disposed By Will As Per Sec.30 Hindu Succession Act : SC [Read Judgment]

The undivided interest of a Hindu in a joint family property can be disposed of by Will as per Section 30 of the Hindu Succession Act 1956, held the Supreme Court yesterday while dismissing appeals from a partition suit.

"Section 30 of the Act, permits the disposition by way of Will of a male Hindu in a Mitakshara coparcenary property", observed the bench of Justices A M Khanwilkar and Ajay Rastogi in the case Radhamma and others v Muddukrishna and others (After 2005 amendment, any Hindu, whether male or female, can do so; but the case was pertaining to pre-2005 situation)

The matter arose out of a suit for partition of the estate of one Patel Hanume Gowda, filed in 1976 by his second wife and his daughter from second marriage. After the death of Gowda in 1965, his estate came under the control of his children from first marriage, who were made defendants in the suit. In the suit proceedings, they produced a Will stated to have been executed by Gowda in 1962, by which his undivided interest was bequethed to them.

Though the plaintiff contested the validity of the Will contending that it was a result of undue influence and coercion exercised by defendants on Gowda, the trial court found that the Will was proved to have been validly executed in terms of Section 68 of the Evidence Act. The trial court however invalidated the disposition of undivided share in coparcenary interest as per the Will, on the ground that Hindu Personal Law prohibited it. The plaintiffs were therefore given 1/10th share in the undivided interest.

In appeal, the High Court of Karnataka reversed this declaration of the trial Court, relying on Section 30 of the Hindu Succession Act. "Section 30 makes it clear that a Hindu testator may dispose of any property which is capable of being disposed of by him by Will or other testamentary disposition in accordance with Indian Succession Act of 1925. The Explanation again clarifies that it is only in respect of interest of a male Hindu in Mitakshara joint family property. The disability prevailed till coming into force of Section 30 of the Act is removed so far as Will is concerned", observed the High Court, setting aside the grant of 1/10th share to the plaintiffs.

Challenging this, the plaintiffs approached the Supreme Court. Their arguments against the execution of Will were rejected by the Court, noting that the concurrent facutal findings of the High Court and trial court cannot be interfered with.

The apex court further observed that rule against disposition of undivided coparcenary interest was relaxed by Section 30.  The provision is an exemption to the general rule that the interest of a Male Hindu in joint family property will devolve by survivorship upon the surviving members of the coparcenary after his death. The Court observed :

An exception is contained in the explanation to Section 30 of the Act making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property can be disposed of by him by Will or any other testamentary disposition.

Therefore, the judgment authored by Justice Ajay Rastogi held that the testator Patel Hanume Gowda was qualified to execute a Will bequeathing his undivided share in the joint family properties by Will executed in 1962. 

"Since the testator has bequeathed his share/his undivided coparcenary interest by Will dated 16.6.1962, no further independent share could be claimed by the appellants", observed the Court while dismissing the appeals.

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