THE LEGAL BRIDGE

Bridging Law, Learning & Success

HINDU LAW — COMPREHENSIVE NOTES

Topic 63

Testamentary Succession for Hindus

Indian Succession Act, 1925 (Part VI) read with S.30 HSA

Relevant Sections: S.30 HSA | S.59, 63, 68 ISA 1925

Priority: MEDIUM | Exam Relevance: RJS/DJS

www.thelegalbridge.in

Testamentary Succession for Hindus

1. Overview

The Hindu Succession Act, 1956 governs intestate succession (dying without a valid will). For testamentary succession (succession by will), Hindus are governed by the Indian Succession Act, 1925 (ISA). The bridge between the two statutes is Section 30 HSA, which expressly recognizes the right of any Hindu to dispose of property by will in accordance with the ISA.

2. Section 30 HSA — The Bridge Provision

Text: Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or 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 (added by the 2005 Amendment): 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 her within the meaning of this section.

This Explanation was a game-changer: it explicitly permitted a coparcener to bequeath his/her undivided interest in coparcenary property by will — something previously disputed.

3. Testamentary Capacity (S.59 ISA)

• Age of Majority: Every person of sound mind who has attained the age of majority may make a will. For Hindus, majority is governed by the Indian Majority Act, 1875: 18 years generally; 21 years if under a guardian appointed by court.
• Sound Mind: The testator must be of sound mind at the time of making the will. A person can make a will during a lucid interval even if generally of unsound mind (S.59, Explanation 1).
• Deaf, Dumb, Blind: Being deaf, dumb, or blind does not incapacitate a person from making a will if he/she understands what is being done (S.59, Explanation 2).
• Insolvency: An insolvent person can make a will (S.59, Explanation 3).
• Free Consent: A will obtained by fraud, coercion, or undue influence is void (S.61 ISA).

4. What Can Be Bequeathed

• Self-Acquired Property: A Hindu can bequeath his/her ENTIRE self-acquired property by will — there is no restriction, and no obligation to leave a share for any family member.
• Undivided Coparcenary Interest (Post-2005): After the 2005 Amendment, a coparcener (male or female) can dispose of his/her undivided interest in Mitakshara coparcenary property by will. This is enabled by the Explanation to S.30 HSA.
• Pre-2005 Position: Before the 2005 Amendment, the prevailing view was that an undivided coparcenary interest could NOT be bequeathed because: (a) the interest is fluctuating; (b) it is determined only on partition or death; (c) on death, survivorship applies. The 2005 Amendment overruled this position.
• Limitation: A coparcener can only bequeath his/her OWN undivided share — not the shares of other coparceners. The extent of the share is determined as if a partition had taken place immediately before death.

5. Execution of Will — Formalities (S.63 ISA)

A will under the ISA must satisfy the following formalities:

• Writing: The will must be in writing. No specific form or format is required — it may be handwritten (holographic), typed, or printed. It may be in any language.
• Signature: The testator must sign or affix his mark to the will, or it must be signed by some other person in his presence and by his direction.
• Attestation: The will must be attested by two or more witnesses. Each witness must: (a) have seen the testator sign or affix mark; OR received from the testator a personal acknowledgement of his signature or mark; AND (b) sign the will in the presence of the testator.
• No Specific Form Required: Unlike registered documents, a will need not be on stamp paper, notarized, or registered. Registration is optional (S.18, Registration Act, 1908).

Exception: Privileged wills by soldiers in actual service, airmen in actual service, and mariners at sea can be made orally and without attestation (Sections 65–67 ISA).

6. Revocation of Wills (S.62, 69–72 ISA)

• Ambulatory Nature: A will is ambulatory — it takes effect only on the death of the testator and can be revoked or altered at any time during the testator’s life.
• Modes of Revocation: (a) By making a new will or codicil with express or implied revocation; (b) By burning, tearing, or otherwise destroying with the intention of revoking; (c) By express written revocation, duly signed and attested.
• Marriage Does NOT Revoke: Unlike English law, marriage does NOT automatically revoke a Hindu’s will. This is a specific departure from the English position.
• Joint Will: A joint will by two persons can be revoked by either person during their lifetime. After one person’s death, the surviving person cannot revoke the portion relating to the deceased.

7. Proof of Will (S.68 ISA)

If a will is contested, it must be proved by calling at least one attesting witness (if available) to prove the testator’s execution of the will. In case of a registered will, the presumption of due execution arises, and the burden shifts to the person challenging it.

8. Probate

• Definition: Probate is a certificate granted by the court (District Court or High Court) certifying the validity and genuineness of a will and confirming the executor’s authority.
• Compulsory for Hindus?: For Hindus, probate is compulsory ONLY in the Presidency towns (Mumbai, Kolkata, Chennai) and certain Union Territories where the Indian Succession Act applies in full. Outside these areas, probate is OPTIONAL but advisable for establishing the will’s genuineness and preventing future disputes.
• Letters of Administration: Where no executor is named in the will, or the executor is unable or unwilling to act, the court grants Letters of Administration to an appropriate person.

9. Key Case Law

10. Exam Tips & Quick Revision

— End of Topic 63 —

www.thelegalbridge.in | For RJS, DJS & PCS-J Preparation