Once the testator had divested himself of his entire estate, as he did in the present case by his will, he could not later, by adding a subsequent clause, seek to detract from it by imposing a condition that was clearly repugnant to the earlier bequest. Indeed, as observed by the Supreme Court in Raj Bajrang Bahadur Singh v. Thakurain Bakhtaraj Kuer, in cases where the intention of the testator is to grant an absolute estate, any attempt to reduce the powers of the owner by imposing restraints on alienation would certainly be repelled on the ground of repugnancy.

A Hindu male or female can transfer their interest in the coparcenary property but not the entire property. The limitation on the right of the coparcener is clarified in the explanation to Section 30 of the Hindu Succession Act, 1956, which makes it clear that the expression "property capable of being disposed of by him or her" refers only to the interest of a male Hindu in the Mitakshara coparcenary property. In the instant case, the joint family consisted of the deceased Venkat Reddy alias Nadipanna, the plaintiff/appellant, defendants Nos. 1 and 2/respondents Nos. 1 and 2, Achamma (widow of the deceased), and two daughters of the deceased. The deceased's share in the joint family property could lawfully have been disposed of by a will but not the entirety of the ancestral property inherited by him from his father.

Unless the final decree in the probate proceeding is passed, a suit for partition will continue.

In the present case, a preliminary decree was passed in favor of the plaintiffs in 1999, but the probate proceeding was still pending without a determination regarding the genuineness of the will. Consequently, the appellants' contention in the suit for partition is not maintainable due to the pendency of the probate proceeding. Hence, the trial court's finding regarding the maintainability of the suit is confirmed. Since the will was not probated, normal succession applies to the property of Harekrushna Harichandan, and the plaintiff is entitled to a decree for partition.

No testamentary disposition can be made under customary law after the enactment of the Hindu Succession Act, 1956. Customary laws permitting alienation through testamentary disposition have been abrogated by Sections 30 and 4 of the Hindu Succession Act, 1956.

In view of Sections 30 and 4 of the Hindu Succession Act, 1956, a Hindu governed by the Mitakshara system is not debarred from making a will concerning coparcenary or ancestral property. However, Section 30 does not cover gifts, and any gift of coparcenary property is void.

The Apex Court, in Mukund Singh v. Wazir Singh, repelled the contention that Section 30 of the Hindu Succession Act applies to dispositions made not only through wills or other testamentary instruments but also through instruments inter vivos . It was held that the plain language of Section 30 makes it impossible to interpret it as applying to dispositions inter vivos . In this case, Harnam Singh made a gift of agricultural land in favor of the appellant. Wazir Singh, who had been adopted as Harnam Singh's son according to Hindu rites and ceremonies, challenged the gift, asserting that the land was part of the Hindu joint family property shared by Harnam Singh and himself. The Court concluded that the gifted land formed part of the coparcenary property, making the gift void. This decision was affirmed by the High Court, and the Apex Court, while dismissing the appeal, reiterated that any gift of coparcenary property by a member is void.

Written By: S Kundu & Associates
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