This article is written by Ms. Somya Jain, from the Vivekananda Institute of Professional Studies. The article analyses the applicability of the testamentary succession before and after the commencement of the Hindu Succession Act, 1956.

Introduction 

Testamentary succession or succession through will enables a person to divest property according to their whims and fancies. A will expresses the wish of the testator pertaining to the distribution of their property after their death. The concept of will existed even before the enactment of the Hindu Succession Act, 1956. Even though the Act majorly discusses intestate succession, there is a provision that also deals with testamentary succession. The scenario in both situations, that is, before and after the commencement of the Act is almost similar. However, one of the greatest questions that is posed while considering the two situations is whether a person can make a will with regards to the coparcenary property? The Supreme Court in a recent judgment of V. Kalyanaswamy(D) by LRS. v. L. Bakthavatsalam(D) by LRS. (2020) resolved the underlying issue of what were the limits on the power of a Hindu to execute a will and the subsequent amendments brought after the commencement of the Hindu Succession Act.    

Before the enactment of Hindu Succession Act

The treaties in Hindu law did not consider the concept of a will. However, over a period of time, courts 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 Act came into force, no such law governed this concept under its purview. But, in the year 1865, Succession Act came into being, however, it was not applicable to Hindus. Further, the Hindu Wills Act that came into force in the year 1870, had limited application to wills by Hindus in the town of Madras. Later, on January 1, 1927, after the passing of the Indian Succession Act, 1925, the execution of a will by Hindu was recognised and thereby, regulated under the law. It is thus that after the 1st of January, 1927 in the matter of an unprivileged will executed by a Hindu, the requirement of attestation of such a will by a minimum of two witnesses became mandatory. (Unprivileged wills are wills that are created by those persons who do not create a privileged will. Privileged will can be created by the members of armed forces engaged in actual warfare or employed in a certain expedition.)

Prior to the Hindu Succession Act, a Hindu could execute a will bequeathing his separate and self-acquired property. As regards his authority to execute a will concerning his interest in the property of the joint family of which he is a coparcener, the law did not permit such an exercise. The Court in the case of V. Kalyanaswamy(D) by LRS. v. L. Bakthavatsalam(D) by LRS. (2020) noted four situations before the commencement of the Hindu Succession Act, where a Hindu was granted the power and at the same time, restrictions were imposed on his power pertaining to bequeathing his property by way of a will. The said situations were:

1. A member of a Joint Hindu family who also has his separate property, then the member had a right to bequeath his separate property.
2. In the next situation, the family remains joint and the member or the coparcener would have an interest. In this case, the interest in such joint family property cannot form a part of the will prior to the concerned Act. 
3. The next situation pertains to the disruption in the title or a division in status. This severance means the separation in the joint family status caused due to unequivocal declaration by a coparcener which is in turn, communicated to the joint family. Such communication can be by way of words or by way of conduct including the filing of a suit by the concerned coparcener. Now, when such disruption in the status takes place, the share of the coparcener in the joint family property becomes a reality and takes concrete shape and thus, the share of the members of the joint family becomes definite in nature. This may or may not be accompanied by the metes and bounds partition. Under this scenario, the right based on the principle of survivorship perishes and the share of a coparcener becomes undeniable. This would indicate to a situation that after the death of the coparcener the share of the Joint family property would devolve to the legal heirs of the deceased and not to other coparceners. 
4. The last situation pertains to the partition of property by metes and bounds along with the severance of the status and title in the family according to the share. The property obtained as a share on a partition by a coparcener who has no male issues is treated as his separate property. This has persisted even prior to the enactment of the Hindu Succession Act. 

Therefore, prior to the Hindu Succession Act being in force, the concept of will prevailed. If a person has a separate property he could bequeath the same. As far as the Joint Hindu family property is concerned, without there being a severance in the status regarding the share of the property to be held or partition by metes and bounds, a coparcener was not permitted to bequeath his undivided share by way of a will. 

In the case of Valliammai Achi v. Nagappa Chettiar and another (1967), the Court held that the property of a joint family is not entitled to be given away by way of a will and by merely devolving a Mitakshara coparcenary property through a will no difference to the title of the property will be changed. It was further observed that no coparcener can turn a joint family property into an absolute property as it is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. 

In another case of Sundara Adapa v. Girija (1962), the Court recognised the practice of not devolving the property through a will when the status of the Mitakshara property has not been severed. The Court stated reasons that by the time the will of the coparcener took effect his interest in the undivided family would have been taken by survivorship by the other coparceners. 

Further in the case of M.N. Aryamurthy v. M.D. Subbaraya Setty (1972), the Court reiterated the principle that a coparcener cannot dispose of a Joint Hindu family property or any part thereof, by way of a will. The Court further stated, “a coparcener cannot devise joint family property by will, because, on the date of his death when the will takes effect, there is nothing for the will to operate on, as, at the moment of his death, his interest passes by survivorship to the other coparceners.”

After the commencement of Hindu Succession Act

The statutory recognition to bequeathing a property through a will came in the year 1956 with the enactment of the Hindu Succession Act. Section 30 of the Act deals with the position of testamentary succession. The Section empowers any Hindu may dispose of any property capable of being disposed of by him, by way of a will or through testamentary disposition in accordance with the Indian Succession Act. Further, as per the Explanation stipulated under the concerned Section, 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 be deemed to be property capable of being disposed of by them. 

After interpreting the Section it is certain even without any partition or for that matter without any severance of status in the sense of a declaration to be made by a coparcener to other coparceners, it is open to a Hindu to bequeath his interest in the Joint Hindu family property. Thus, the words, “interest in coparcenary property”, can be interpreted to mean the interest of a coparcener while the joint family is indeed intact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the interest of a coparcenary in the joint Hindu family property remains in place and after the division of status, it takes the form of a definite share. Later, through the partition by metes and bounds the share translates into absolute rights qua specific properties.   

In another case of Radhamma and others v. H.N. Muddukrishna (2019), the Supreme Court held that 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. The Court observed that when a Hindu dies after the commencement of the Act, leaving behind the interest in the Mitakshara coparcenary property, that interest will devolve according to the rules governed by survivorship upon the surviving coparceners. However, there is an exception to this rule stipulated under the Explanation under Section 30, which clarifies that the interest of a male Hindu in Mitakshara coparcenary property can be disposed of by him by will or any other testamentary disposition.

Conclusion

The two situations, that is, before and after the enactment of the Hindu Succession Act 1956, can be contrasted on solely one ground. Before the commencement of the Act, without the division of the status in the sense of there being a disruption in the share of the coparceners, the coparcener was not allowed to devolve the property by way of a will or testament. However, after the initiation of the Act and the inclusion of Section 30 within its provisions, even without there being a partition by way of a declaration being 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. Apart from this difference, the devolution of the property by way of testamentary succession remains the same. 

References

1. Concept of Will in India (taxguru.in)
2. pdf_upload-378378.pdf (livelaw.in)
3. Supreme Court: Coparcener had no right to execute a Will in respect of – Team of Advocate Retainer
4. SC: when Hindu Male has bequeathed his Undivided Coparcenary Interest by Will, no further independent share could be claimed. Read Judgment. (latestlaws.com)
5. Undivided Share In Joint Family Can Be Disposed of By Will As Per Sec.30 Hindu Succession Act: SC [Read Judgment] (livelaw.in)
6. Powers Of A Hindu To Make A ‘Will’ Before And After Enactment Of Hindu Succession Act (livelaw.in)

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