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National Law Institute University, Bhopal

FAMILY LAW- II
FINAL DRAFT ON
“WILL UNDER HINDU LAW”

Submitted to:- Submitted by:-

Kavita Singh Himanshu Ahirwar
Assistant Professor 2018 BALLB 88
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ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to my teacher, KAVITA SINGH for his guidance and constant supervision as
well as for providing necessary information regarding the project and also for her support in
completing the project.

I would like to express my gratitude towards my parents, mentors, and colleague in developing the
project and for giving me such attention and time.

My thanks and appreciations also goes to Library Staff of my university for helping me out and
getting relevant material for me and people who have willingly helped me out with their abilities.
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TABLE OF CONTENTS

Introduction....................................................................................................................................................4

Wills – Meaning and Need.................................................................................................................4

Significant features of Will are...........................................................................................................6
Kinds of Wills.....................................................................................................................................6
TESTAMENTARY SUCCESSION UNDER HINDU LAW.......................................................................7

Who can make a Will under Hindu Succession Act?.........................................................................7

Will – Procedural Overview..........................................................................................................................9

Registration.........................................................................................................................................9
Revocation & Amendment.................................................................................................................9
Alterations........................................................................................................................................10
Wording of the will..........................................................................................................................10
Execution of Will.............................................................................................................................10
Restrictions on a Will.......................................................................................................................10
CONCLUSION............................................................................................................................................12
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Introduction

Succession is an act of succeeding or passing of rights from one person to another; and derived from
the principle of inheritance, referring to the conditions of transfer of property among persons. These
rules of succession are subject to many customs and conditions primarily characterized from the
society. The course of succession epitomise the outlook of one’s society regarding the passing of
property on death of a person. Inheritance as defined by Black’s Law Dictionary means “receipt of a
property from an ancestor under the laws of intestacy i.e., by bequest or device” 1. Further, “the law
of inheritance comprises of rules which govern devolution of property, on the death of the person,
upon other persons solely on account of their relationship with the former”2.

Succession broadly are of two types: i) testamentary succession (through will) and ii) intestate
(without will).3

Intestate succession means inheritance in absence of any instruction regarding the devolution of
property, by such person, upon his/her death. On the other hand, Testamentary succession means
inheritance of property through a Will (testament). “A Will that is capable of taking effect in law,
governs the succession of property of a person after his or her death in accordance with the rules laid
down in the laws governing testamentary succession to the property of a person to which he or she
was subject at the time of his or her death” 4. Though, there is diversity in testamentary succession
laws, yet it is less varied than intestate succession laws.

Wills – Meaning and Need

“The instincts and affections of mankind, in the vast majority of instances, WILL lead man to make
provisions for those who are nearest to them in kindred and who in life have been the objects of their
affections”5.

A written document ensuring the wish of an individual in regards to the devolution of his assets and
property after his/her death is known as Will.6 However, when a person dies without a will, certain
1
Black’s Law Dictionary, (2nd Ed.) available at: http://thelawdictionary.org/inheritance/.
2
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277.
3
Testate Succession and Intestate Succession, available at: http://www.lawteacher.net/free-law-essays/equity-law/testate-
succesion-and-intestate-succession-law-essays.php.
4
Sahil Shah, An Overview of Wills under Hindu Law, Legal Service India, available at:
www.legalserviceindia.com/articles/will_hindu.htm.
5
Clark Wilson, Wills, Women and Multiculturalism, available at: https://www.cwilson.com/services/18.../360-wills-
women-and-multiculturalism.html.
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complications arise, which are then solved through other Laws laid down by the legislature. This
document known as a testament (will) is a written declaration of person’s intention regarding his/her
wishes upon his/her death for transfer and settlement of property. 7 The whole concept behind the will
is originated from the right of ownership of one's property. 8 “Wills were a medium to distribute the
property acquired by the testator in his or her life through personal preferences and minimal
interference of law”9. It also aids in fair distribution of property without giving rise to family
problems, as it is done through the executor’s prerogative.

Will as per the Section 2(h) of Indian Succession Act, 1925 means “the legal declaration of the
intention of a person with respect to his property, which he desires to take effect after his
death”10. Will defined in Corpus Juris Secundum refers to a “legal declaration of a man’s intention,
which he desires to be performed after his death, or an instrument by which a person makes a
disposition of his property to take effect after his death”11.

Person dying without leaving his Will regarding his property devolution, then it will take place
through law of intestate and not testamentary. 12 Hence, it is important for a person to effectuate
his/her Will to safeguard one's intension. Testamentary succession is an important instrument for
devolution of property through one’s wishes.

The testators have the right to alter his/her will, before the execution, at any point of time. However,
during the execution of the will, beneficiaries have to prove their locus standi through attesting
witnesses and by removing all doubtful situation.13 The onus of proving beyond any doubt lies with
the beneficiary, that he/she is the designated heir [true] of the property. Since a testamentary
disposition always speaks from the grave of the testator, the required standard of proof is very high.14

6
Supra note 4.
7
Dhawesh Pahuja, Will under Indian Law, available at: http://www.legalindia.com/will-under-indian-law/.
8
All one needs to know about Will in India, The Chambers of Law, available at: http://www.tcl-india.net/node/93.
9
The Law Commission, Intestacy and Family Provision Claims on Death, available at: www.lawcom.gov.uk/wp-
content/uploads/2015/.../cp191_Intestacy_Consultation.pdf.
10
The Indian Succession Act, 1925, Section 2(h).
11
Corpus Juris Secundum, Vol 38A, available at:
http://www.mindserpent.com/American_History/reference/corpus_ juris_secundum/GrandJuries-Vol_38A-
CorpusJurisSecundum-1.pdf.
12
Supra note 3.
13
Y.S. Rao, Execution of Will, available at: www.legalservicesindia.com/article/article/execution-of-a-will-1143-1.html.
14
Kapil Chandna, Will but difficult way, available at: https://kapilchandnaadvocate.wordpress.com/2016/02/01/will-but-
difficult-way/.
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A will document could be made by a living person, however, “the essence of every Will is that it
could be changed or revoked only during the testator lifetime” 15. The attestation of will shall be done
in presence of two or more witnesses, witnessing testator signature on the Will.

Significant features of Will are:

1. Legal declaration: The documents must be executed by a person legally competent to make it and
in conformity with the law.16 Further, the intention represented in the document must be in regard to
the testator’s property, having binding force upon the testators family.17

2. Disposition of property: Under will in Hindu law, any person can bequeath the testator’s property;
however, undivided family member cannot bequeath co-parcenery interest in the family property.18

3. Effectuated upon death: The Will document is enforceable only upon the death of the testator.19

Kinds of Wills
Generally, there are four types of Wills:

i) Conditional Wills: Here, the Will is effectuated on the happening of a condition attached.
In Rajeshwar vs. Sukhdeo20, the operation of the Will was deferred till testator’s wife death.21

ii) Joint Wills: When two or more persons together makes a will, then it is known as joint Will. “If
the joint Will is joint and is intended to take effect after the death of both, it will not be admitted to
probate during the life time of either and are revocable at any time by either during the joint lives or
after the death of the survivor”.22

iii) Mutual Wills: When two or more persons agree to confer mutual reciprocal benefits then it is
known as mutual will, however, the testators and legatees shall be distinct. It is also known as
reciprocal will.

15
Wills- Difference in Hindu Law and Muslim Law, available at: http://legalsutra.com/5825/wills-difference-in-hindu-
law-and-muslim-law/.
16
Wills and Codicils - Register Your Will - Valid WILL - Legal Service India, available at:
www.legalserviceindia.com/wills.htm.
17
Mumtaj & Sushila, Law of Testamentary Succession in India, available at: https://www.academia.edu/9901904/Law_
of_Testamentary_Succession_in_India.
18
Diwan, P, Law of Intestate and Testamentary Succession, (3rd Ed. 2007 reprint) Universal Law Publishing Company,
Delhi.
19
Infra note 22.
20
Rajeshwar vs. Sukhdeo, A.I.R. 1947 Pat. 449.
21
Ibid.
22
Rajkumar S. Adukia, Succession Laws, available at: http://www.caaa.in/Image/Sucession%20Laws.pdf.
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iv) Privileged Wills: These are special category of Wills. Under Indian Succession Act Section 65,
when a will is made by soldier/airman/mariner, during actual service and warfare, it is considered as
a privileged will.

TESTAMENTARY SUCCESSION UNDER HINDU LAW

Who can make a Will under Hindu Succession Act?

Under Hindu Succession Act any Hindu (either Male or Female) under Section 30 can make
testamentary disposition of one’s property, which is capable to dispose, by giving due accord to the
Indian Succession Act or other law governing the Hindus.23 Also, under Indian Succession Act, a
major (person) with sound mind can make a will (Section 59). 24 In Swifen vs. Swifen25, the Court
held that, the testator must have power of choice and ability to comprehend about his actions. 26
Further, the Section 59 allows married women to divest her personal property through will, thereby
reinforcing section 14 of the Hindu Succession Act, which permits woman to dispose through will,
her streedhan.27

Section 30 of the Hindu Succession Act, 1956

It lays down the rules for testamentary succession, as:

“Any Hindu may dispose of by will or other testamentary disposition of 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.

Explanation: The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a
member of a tarwad, twazi, 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 sub-section”28.

23
The Hindu Succession Act, 1956, Section 30.
24
The Indian Succession Act, 1925, Section 59.
25
Swifen vs. Swifen, (1856) 1 C.B.N.S. 364.
26
Ibid.
27
The Hindu Succession Act, 1956, Section 14.
28
The Hindu Succession Act, 1956, Section 30.
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The Amendment Act, 2005 amended Section 30 of Hindu Succession Act, by adding the terms “or
by her”, thereby giving Hindu females the right over disposal of one’s property through will. In light
of the amended provision, all the succeeding commentaries shall include Hindu female’s right.
Female Hindu is now the full owner of all her property and capable is of dissolving it through will,
regardless of what is held or acquired by her, subject to the property under ‘restricted estate’
provided under Section 14 (2)29.

Further, under this act, adjudication of separate property by Hindu is not dealt with in the act;
however, ‘separate property’ is generally read in the context of ‘any property’ capable of so being
disposed. Section 30 is general assertion of disposing of property through will, however, the
explanation annexed plays a vital role in the Section, by “removing the disability against
coparcenary’s devolution of interest through will in coparcenary property”3031.

Further, under Dayabhaga law, father has the right to dispose of his both ancestral & self-acquired
property through will.32 Here, “a coparcener under law may by will dispose off his interest in the
property of joint family”33. Similarly, the explanation abrogated the Mitakshara law by stating that,
“such interest is to be deemed to be property capable of being disposed of by will” 34. However, this
right to dispose of property through will, by joint family members, is not extended to gift.35

In light of the Section 30 of Hindu Succession Act, due consideration has to be given to the Indian
Succession Act, as any property which is to be disposed of, it is done through the provisions of
Indian Succession Act. Section 57 when read with Schedule III of Indian Succession Act, mentions
those Hindu wills that shall be governed by the Act and not all Hindu wills are covered under it.

“Thus, it is clear that all Hindu, male or female, under Section 30 are authorized to make
testamentary disposition of his/her property interest, even though he/she is separate or a member of a
joint family”36. In K. Jwala Narasimha Reddy vs. Narayan Reddy case, the Court held that, “Hindu
widow who becomes, full owner of the property under section 41 of the Act, which she inherited
from her husband with limited interest, prior to the coming into force of the Act, is entitled under
section 30 of the Act to dispose of the property by will in accordance with the provisions of the

29
The Hindu Succession Act, 1956, Section 14 (2).
30
Senthilkumar vs. Dhandapani, AIR 2004 Mad 403; see also Radhamma vs. Muddukrishna, AIR 2006 Kant 68.
31
Shyam Lal vs. Sanjeev Kumar, (2009) 12 S.C.C. 454.
32
Supra note 2.
33
Ibid.
34
Ibid.
35
MSBY Board vs. Subramania, AIR 1973 Mad 277.
36
Supra note 33.
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Indian Succession Act, 1925”37. Also, this right of disposal does not affect the right of maintenance
of the heirs mentioned in schedule under class I.

Will – Procedural Overview

Registration
To ascertain the identities of proper parties, to provide proper evidence of appearance of the parties
before the registering authorities and also to attest the documents, the registration of a document is
necessary. However, the law in India does not make it mandatory the registration of Wills even if a
will is in regards to immoveable property. The case of Narain Singh v. Kamla Devi has confirmed
the said principle and held that “mere non-registration of the Will an inference cannot be drawn
against the genuineness of the Will.” 38 The authenticity of a will does not get affected by the non-
registration of the same. However, it is necessarily is to be proved that a will is validly and duly
executed in consonance of Indian Succession Act. But as soon as a will gets registered, it is placed in
the hands of the registrar and thus is avoided to get destroyed, tampered or mutilated. To register a
will it is necessary that the testator is personally present along with the witnesses at the office of the
registrar.

Revocation & Amendment

Revocation or alteration of a will can be done the testator by executing a new will but a testator can
do so only when he is competent to dispose the said property. If the old will is registered then the
registration of the new will is a must. Also, a codicil can be made. One thing that is also to
remembered is that on the marriage of a Christian or Parsi testator, his or her will gets revoked, but
this does not get applied to Hindus.

Indian Succession Act provides for the provisions in regards to the revocation or alteration of the
will. “Section 62 of the said act deals with the characteristic of a Will being revocable or altered
anytime during the lifetime of the testator.” 39 Further, Section 70 gives the manner in which a will
can be revoked.40

37
K. Jwala Narasimha Reddy vs. Narayan Reddy, A.I.R. 1979 NOC 41 (A.P.).
38
Ishwardeo Narain Singh vs Sm. Kamta Devi And Ors., AIR 1954 SC 280
39
The Indian Succession Act, 1925, Section 62.
40
The Indian Succession Act, 1925, Section 70.
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Alterations

Section 71 of the act comes into the picture only after the execution of the Will but not before it. 41
“The said section provides that any obliteration, interlineations or any other alteration in a Will made
after its execution is inoperative unless the alteration is accompanied by the signatures of the testator
and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the
attesting witnesses at the end of the Will or some other part referring to the alterations.” 42 If the
alterations are done in consonance with the said section then these will be read as a part of the Will.
The signatures attesting witnesses as well as the testator must be in regards to the alteration made
and the alterations should be made part of the Will itself and not in a separate distinct paper.

Wording of the will

Section 74 of the act says that a will can be in any language or in any form. In any case of dispute in
interpreting the technical words, it will be presumed that they are used in their legal sense unless the
context indicates otherwise.43

Execution of Will
Executor of the will or the legal heir of the deceased testator gets the authority to apply for the
probate as soon as the testator dies. Probate is the copy of the will which is certified by the court.
“Executor is the legal representative for all purposes of a deceased person and all the property of a
testator vests in him.”44 Court generally grants probate only when there are no objections raised by
any other heir. Will comes into effect only after the probate is granted.

Restrictions on a Will
 Transfer to Unborn is Invalid:

If at the testator’s death there is no person in existence, the bequest becomes void. “Section 113
provides that for a transfer to an unborn person, a prior interest for life has to be created in another
person and the bequest must comprise of whole of the remaining interest of the testator.”45

 Transfer made to create perpetuity:

“Section 114 makes a bequest invalid if it is made beyond the lifetime of one or more persons living
at the testator's death and the minority of some person who shall be in existence at the expiration of

41
The Indian Succession Act, 1925, Section 71.
42
Ibid.
43
The Indian Succession Act, 1925, Section 74.
44
INVESTOPEDIA, meaning of Executor, http://www.investopedia.com/terms/e/executor.asp
45
The Indian Succession Act, 1925, Section 113.
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that period, and to whom, if he attains full age, the thing bequeathed is to belong.” 46 “Section 115
provide for a situation according to which if a bequest is made to a class of persons with regard to
some of whom it is inoperative by reasons of the fact that the person is not in existence at the
testator's death or to create perpetuity, such bequest shall be void in regard to those persons only and
not in regard to the whole class.”47

Invalid Wills –

Section 61 of the act makes a will void which is caused by coercion, fraud or undue influence. 48
Also, a bequest made in regards to an impossible condition is invalid. This is confirmed in section
126 of the act. And the said condition may be a condition subsequent or a condition precedent. 49
Indian Succession Act also makes a bequest void which is based upon immoral or illegal condition.
“Section 127 of the act provides that a bequest would become invalid if it is forbidden, contrary or
defeats any provision of law or is opposed to public policy.” 50 Also a condition which is absolutely
restraining a marriage will make a bequest void.

46
The Indian Succession Act, 1925, Section 114.
47
The Indian Succession Act, 1925, Section 115.
48
The Indian Succession Act, 1925, Section 61.
49
The Indian Succession Act, 1925, Section 126.
50
The Indian Succession Act, 1925, Section 127.
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CONCLUSION

The essence of the religions be it hindu or muslim is not supposed to be affected much as
testamentary succession is a civil act and there are also some uniformity in the laws that are followed
by them. Thus, no limitations can be imposed on the scope, to which a property could be bequeathed,
individuals to whom the property could be bequeathed and also to the extent of donation of the
property through will for charitable and religious purposes. This can only be confirmed when there is
a Uniform Civil Code for succession in accordance with the principles of Article 44 of the
Constitution.

Henceforth, all Hindu male or female are entitled to make will under Section 30 of Hindu Succession
Act, to dissolve his/her property on the basis of their wishes, in accordance with the provisions of
Indian Succession Act. Also, the right of will does not affect the right of maintenance of the
dependants, and the beneficiary of this will is bounds to provide the maintenance from the estate.
BIBLIOGRAPHY
 A.G. Gupte, Hindu Law (1st edn., Premier Publishing Company 2003)
 Acharya Sukhlendra, Hindu Law (1st edn., Modern Law House 2002)
 Ludo Rocher, Studies in Hindu Law and Dharmasastra (1st edn, Anthem Press 2014)
 Mulla, Principles of Hindu Law (S.A. Desai ed., 20th edn., Lexis Nexis Butterworths 2007)
 Narendra Subramaniam, Family Law and Cultural Pluralism in Encyclopedia of India
(Stanley Wolpert ed., Charles Scribners Sons: Thomson Gale 2006)
 Narendra Subramaniam, Family Law and Cultural Pluralism, in Encyclopedia of India
(Stanley Wolpert ed., Charles Scribners Sons: Thomson Gale 2006)
 P.V. Kane, History of Dharmashastra (3rd ed, Bhandarkar Oriental Research Institute 1993)
 Paras Diwan, Modern Hindu Law Codified and Uncodified (10th ed., Allahabad L. Agency
1995)

 Werner Meneski, Hindu Law Beyond Tradition and Modernity (1st edn., Oxford
University Press 2003)