The testamentary power of a Hindu was first admitted in Bengal, then in Southern India, and then in the former State of Bombay. Generally speaking, a Hindu will stands more or less on the same footing as a gift.
The Privy Council in the well-known Tagore’s case (see below) has laid down that even if wills are not universally to be regarded in all respects as gifts to take effect upon death, they are generally so to be regarded as to the property they can transfer and the persons to whom it can be transferred. Today, however, the Indian Succession Act governs wills made by Hindus.
Capacity to make and to take under a will:
Subject to certain limitations, every Hindu who is of sound mind and who is not a minor may dispose of his property by will. As to acceptance of bequests under a will, there is no restriction. Thus, even a minor, a lunatic or a person disqualified from taking a share on partition may be given a bequest.
What property may be disposed of by will?
Prior to the Hindu Succession Act, 1956, a Hindu could not, by will, bequeath property which he could not have alienated by gift inter vivos. Even after the Hindu Succession Act, a Hindu cannot, by will, so dispose of his property as to defeat the legal right of his wife or any other person to maintenance. (See Ss. 18-22 of the Hindu Adoptions and Maintenance Act, 1956.)
However, the above rule that a Hindu cannot, by will, bequeath property which he could not have alienated by gift inter vivos is now altered by S. 30 of the Hindu Succession Act, 1956, which permits a member of a Mitakshara coparcenary to dispose of, by will, his undivided interest in the coparcenary property.
As regards property which a Hindu could dispose of by will, the following five propositions under the ancient uncodified Hindu law may be noted:
(i) A Hindu could not, by will, dispose of his entire property, so as to defeat the claim of his wife and of other persons who are legally entitled to maintenance from him.
(Promothanath v. Nagendrabala, 12 C.W.N. 808)
(ii) The power to make wills could be exercised in regard to the separate or self-acquired property of the testator. In this respect, there was always an agreement among all schools of Hindu law. In regard to coparcenary property, the power to make wills differ according to different schools of Hindu law. The Dayabhaga School recognised the right of a coparcener to dispose of his interest in the joint family property by will. According to the Mitakshara School, however, no coparcener could dispose of his undivided interest by will, even if the other coparceners consented to such disposition. The right of survivorship prevailed against any will made by the coparcener. (However, today, under S. 30 of the Hindu Succession Act, a Hindu may dispose of, by will or other testamentary disposition, even his interest in a coparcenary property.)
(iii) The owner of an impartible estate could dispose of such estate by will, except when the nature of the estate did not admit of such alienation or there was a special custom prohibiting such alienation.
(iv) A Hindu female could dispose of her stridhana property by will, except when the stridhana was non saudayika, in which case the consent of the husband was required to validate the will. (However, now under S. 14 of the Hindu Succession Act, any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, becomes her absolute property, and she becomes the absolute owner of such property and is, therefore, entitled to dispose of such property by will.)
(v) A sole surviving coparcener could dispose of his property by will, but such disposition would be inoperative against a subsequently born or adopted son. This rule was true in regard to coparcenary property, but a Hindu adopting a son could make a will in regard to his separate property, and the adopted son could not challenge that right. (Sri Raja Venkata Surya v. Court of Wards, 22 Mad. 383)
Representation to the estate of a deceased Hindu:
Where a Hindu dies intestate
(i) Letters of administration are not necessary to establish a right to any part of his estate;
(ii) no probate is necessary in the case of a Hindu will, except (a) where it is made within the territories of Bengal or Ordinary Original Civil Jurisdiction of High Courts at Bombay and Madras and (b) when it affects immovable property within those limits, even though the will be made outside, provided that in either case, the will was made after 1870 and before 1927;
(iii) where a debt due to the estate of a Hindu is to be recovered, no Court can pass a decree against the debtor, except on production of (a) Probate, or (b) Letter of administration, or
(c) Succession Certificate, specifying the debt.
Gift or bequest to unborn person:
As laid down in the Tagore’s case (see below), a person capable of taking under a will must, either in fact or in contemplation of law, be in existence at the death of the testator.
But this rule of pure Hindu law has been relaxed by (i) Hindu Transfers and Bequests Act, 1914 (applicable to the province of Madras, except Madras city); (ii) Hindu Disposition of Property Act, 1916 (applicable to the whole of India, except the province of Madras); and (iii) Hindu Transfers and Bequests (City of Madras) Act, 1921 (applicable to that city only).
Now, therefore, a bequest can be made to an unborn person, subject to the limitations laid down in the Indian Succession Act.
Tagore v. Tagore (1872 9 Beng. L.R. 377) In this case, a testator made a will, giving his property to A for life, and then to A’s eldest son for life. On failure of determination of the above estate, the property was to go to Â for life, and thereafter to B’s eldest son for life. Once again, on failure or determination of the second estate [i.e., Â and his heirs), the property was to go to C’s heirs. Thus, the will expressly adopted primogeniture in the male line through males, and excluded females and their descendants. The testator’s son, S, was, however, totally excluded from the will (as he had become a Christian).
When the testator died, A had no son. Â who was the head of the second series of estates, had a son D (who was born in the testator’s life-time). Ñ was dead when the will was made, leaving a grandson, F (who was also born in the life-time of the testator).
The son, S, who got nothing under the will, filed a suit to set aside the will. The Court held that the bequest to A for life was a valid bequest, but all the subsequent bequests were void. So, after A’s death, S would get whole estate, as the only heir of the deceased. The estates in tail male (i.e., B’s heirs, C’s heirs) were held to be inconsistent with the Hindu law of inheritance, and therefore, void.
Construction of Hindu Wills:
The Privy Council has laid down that, in construing a Hindu will, the words of the will are to be primarily considered.
However, in ascertaining the intention of the testator, the following five factors may also be considered:
(i) The social position of the testator;
(ii) The relationship of the testator with his family members;
(iii) The probability that the testator would use certain words in a particular sense;
(iv) The race and the religious opinions of the testator; and
(v) The ordinary notions and wishes of Hindus with respect to the devolution of property.
The English rules of construction should, however, be applied to Hindu wills with great caution. “English rules of construction have grown up side by side with a very special law of property and a very artificial system of conveyancing. It is a very serious thing to use such rules in interpreting the instruments of Hindus, who view most transactions from a different point, think differently and speak differently from Englishmen.” (Ram Lai Settv. Kanai Lai Sett, 12 Cal. 663)
In Mahomed Shumsool v. Shewukram (2 I.A. 7), it was held that “in construing the will of a Hindu, it is not proper to take into consideration what are known to be the ordinary notions and wishes of Hindus, with respect of the devolution of property.”
As the law is now settled, there is no distinction between a gift to a male and a gift to a female. The fact that the donee or devisee is a woman does not make the gift or bequest any the less absolute, where the words would be sufficient to convey an absolute estate.
Power of Appointment:
When a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property (Explanation to S. 69, Indian Succession Act). A power of appointment is thus an authority reserved by or limited to a person to deal with or dispose of, either wholly or in part, movable or immovable property, either for his own benefit or that of others. In short, such a power is the ability to dispose of property independently of any ownership over it, although a power may exist concurrently with such ownership.
The pure Hindu law did not make any provisions for appointment. The question arose for the first time in Motivahu v. Mamubai (21 Bom. 709), in which the Privy Council held that there could be no bar to such an appointment. As the testator can himself designate the person in the event of a legatee dying without issue, so also, he can authorise a legatee to appoint another person who will get the property on his death. Thus, a Hindu may, by deed or will, grant a power of appointment to a person or persons named in the will.
Before the Hindu Transfers and Bequests Act, 1914, the Hindu Disposition of Property Act, 1916, and the Hindu Transfers and Bequests (City of Madras) Act, 1921, it was necessary, for the valid exercise of a power of appointment, that it should have been exercised in favour of a person who was in existence either actually or in contemplation of law at the date of the gift or at the testator’s death, as the case might be. Since the passing of those Acts, a power can be exercised even in favour of an unborn person subject, however, to the limitations and provisions contained in (i) Chapter II of the Transfer of Property Act as regards gifts, and (ii) Ss. 113- 116 of the Indian Succession Act as regards wills.
When an appointment is made pursuant to a power in favour of two or more persons, and the appointment is invalid as to some or one of them, it may still be valid as to the rest. (Javerbai v. Kabilibai, 16 Bom. 492).